John Edmund Streun v. Delores Jean Streun - Concurring

• Court: Court of Appeals of Tennessee
• Decided: February 5, 1998
• Docket: 03A01-9707-CV-00299
• Status: Published

Opinion

IN THE COURT OF APPEALS OF TENNESSEE

JOHN EDMUND STREUN, ) FILED C/A NO. 03A01-9707-CV-00299 ) Plaintiff-Appellant,) February 5, 1998 ) ) Cecil Crowson, Jr. ) Appellate C ourt Clerk ) ) APPEAL AS OF RIGHT FROM THE ) HAMILTON COUNTY CIRCUIT COURT v. ) ) ) ) ) DELORES JEAN STREUN, ) ) HONORABLE ROBERT M. SUMMITT, Defendant-Appellee. ) JUDGE

For Appellant For Appellee

CHARLES D. PATY GLENNA M. RAMER Paty, Rymer & Ulin, P.C. Chattanooga, Tennessee Chattanooga, Tennessee

O P I N IO N

REVERSED IN PART AFFIRMED IN PART REMANDED Susano, J.

1 This is a divorce case. Following a bench trial, the

court awarded Delores Jean Streun (“Wife”) an absolute divorce on

the ground of inappropriate marital conduct, divided the parties’

property, and ordered John Edmund Streun (“Husband”) to pay

periodic alimony in futuro of $350 per month. Husband appealed,

arguing, in effect, that the evidence preponderates against the

trial court’s determination that Wife was entitled to periodic

alimony in futuro. Wife contends that the alimony award is

appropriate. She submits an additional issue -- that, in her

words, “the trial court erred in not enforcing the parties’

settlement agreement of November 7, 1995.”

In this non-jury case, the record of the trial court’s

proceedings comes to us with a presumption of correctness as to

the trial court’s factual findings. We must honor this

presumption “unless the preponderance of the evidence is

otherwise.” Rule 13(d), T.R.A.P. The trial court’s conclusions

of law are not accorded the same deference. Campbell v. Florida

Steel Corp., 919 S.W.2d 26, 35 (Tenn. 1996); Presley v. Bennett,

860 S.W.2d 857, 859 (Tenn. 1993).

In a divorce case, a “court may make an order and

decree for the suitable support and maintenance of either spouse

by the other spouse, or out of either spouse’s property, ...

according to the nature of the case and the circumstances of the

parties.” T.C.A. § 36-5-101(a)(1). The threshold question is

whether the spouse requesting alimony is “economically

disadvantaged, relative to the other spouse.” T.C.A. § 36-5-

101(d)(1). Pursuant to the provisions of T.C.A. § 36-5-

2 101(d)(1)(A)-(L), there are twelve factors that a court should

consider “[i]n determining whether the granting of an order for

payment of support and maintenance to a party is appropriate, and

in determining the nature, amount, length of term, and manner of

payment.” The “real need” of the requesting spouse “is the

single most important factor.” Cranford v. Cranford, 772 S.W.2d

48, 50 (Tenn.App. 1989). See also Aaron v. Aaron, 909 S.W.2d

408, 410 (Tenn. 1995). “In addition to the need of the

disadvantaged spouse, the courts most often consider the ability

of the obligor spouse to provide support.” Cranford, 772 S.W.2d

at 50. A trial court has broad discretion in making an alimony

determination. Aaron, 909 S.W.2d at 410. In any event, alimony

in excess of need is punitive, and, hence, should not be awarded.

Duncan v. Duncan, 686 S.W.2d 568, 571 (Tenn.App. 1984). Alimony

is not designed to punish an errant spouse. Id.

The parties to this litigation were the only witnesses

who testified as to facts relevant to the subject of alimony.

With the exception of two exhibits that are not directly related

to the issue of alimony, the only documents introduced at trial

were the financial affidavits of the parties.

Wife presented an income and expense affidavit,

reflecting the following:

Net monthly income from employment $1,338.39

Less: Expenses Regular monthly expenses $1,470.71 Other expenses of Wife 318.00 Expenses of two adult children 485.00 2,273.71

Alleged shortfall <$ 935.32> =========

3 Husband does not challenge the correctness of many of Wife’s

expenses; but he does challenge the inclusion in her affidavit of

the expenses of his two adult children.1 He also questions the

accuracy of Wife’s “regular monthly expenses” of $1,470.71, which

include, in her words, an “auto payment, credit cards, automatic

payroll deduction for loan with credit union, etc.” of $788.

Unfortunately, the record does not reflect a breakdown of these

monthly credit card and note payments. A breakdown would have

been helpful since the trial court’s judgment provides that “the

outstanding indebtedness of the parties” is to be paid from the

sale of the parties’ two unimproved lots and, further, that

certain other debts are to be paid directly by Husband. Be that

as it may be, it is clear from the record that Wife’s monthly

credit card and note payments, post-divorce, will not amount to

$788 as set forth in her affidavit.

It is also clear that Wife earns more than the

$20,363.202 annual gross income claimed on her affidavit. She

admitted that she worked some overtime for her employer, Olan

Mills -- overtime that is not reflected on her affidavit. She

testified that her W-2 wages from Olan Mills in 1995 were

“probably” $23,000. Furthermore, Wife testified that she earned

money from two other sources, neither of which is reflected in

her income and expense statement:

1 Wife’s complaint did not seek to predicate a child support request on the theory that either of these children was disabled to the extent that child support beyond the age of majority would be justified. Cf. Stevens v. Raymond, 773 S.W.2d 935, 938 (Tenn.App. 1989). One of the children was employed and Wife’s counsel acknowledged at trial that the other child, while unemployed, was not disabled. 2 $391.60 per week x 52 weeks.

4 Q In addition to trying to work overtime, do you have other things that you do try to do to generate money?

A Yes, ma’am, I do. I do hair on the side to try to make extra money. I also do wallpaper on the side to make some extra money.

Particularly significant to the question of alimony is the

following exchange during Wife’s cross-examination:

Q If you didn’t have your son to support or your daughter, you could support yourself, couldn’t you?

A Just on my own, yes, but I have to have a home for my children as long as they need me.

We are required, in our de novo review, to determine

the preponderance of the evidence in this case. Considering only

Wife’s testimony, we find that the evidence preponderates against

her claimed need for alimony. It is clear that she cannot claim

her children’s expenses to support her alimony request. Husband

is not obligated for these expenses. See T.C.A. § 34-11-102(b).

It is likewise clear, again only considering Wife’s testimony,

that the income on her affidavit is understated and that her

monthly credit card and note payments are overstated. Finally,

Wife acknowledged that she had sufficient income to support

herself. The alimony award cannot stand.

By way of a separate issue, Wife contends that the

trial court erred in failing to enforce the “parties’ settlement

agreement of November 7, 1995.” We find that Wife has waived

this alleged error.

5 It is clear from the record that the parties met on

November 7, 1995, and reached an agreement regarding

substantially3 all of the pending issues. It is likewise clear

that, following their settlement conference, the parties

announced the details of their settlement in open court. Without

opposition from Husband, Wife asked that she be granted a divorce

on the ground of inappropriate marital conduct. The court

refused to do so, believing, incorrectly, that it was precluded

from doing so because Wife did not have a corroborating witness.4

Instead, the court orally awarded a divorce on the ground of

irreconcilable differences, even though the parties had not

reduced their agreement to writing.5 On a day subsequent to the

announcement, and before a judgment was entered, Husband

repudiated the agreement and this case proceeded to a contested

hearing before the trial court.

A transcript of the November 7, 1995, settlement

announcement was introduced at trial; but the court refused to

precisely follow its terms. We do not find this to be reversible

error in this case.

We acknowledge that the facts of this case are somewhat

similar to the case of REM Enterprises, Ltd. v. Frye, 937 S.W.2d

920 (Tenn.App. 1996) where we held that a detailed settlement

3 Husband points out that the November 7, 1995, agreement did not address Wife’s retirement account at Olan Mills. That fund was equally divided by the court in its judgment.

4 Cf. T.C.A. § 36-4-129. 5 It is clear that a divorce on the ground of irreconcilable differences should only be granted after the parties have executed a written marital dissolution agreement. See T.C.A. § 36-4-103(b).

6 announced in open court and acknowledged to be such by the

parties at that court session was binding even though disavowed

by one side before the judgment was entered. Id. at 921-22. In

so holding, we distinguished Harbour v. Brown for Ulrich, 732

S.W.2d 598 (Tenn. 1987) where the parties announced to the court

that they had reached a settlement but failed to state the terms

of the settlement. In Harbour, the court allowed a party to

repudiate the settlement, noting that “a valid consent judgment

cannot be entered by a court when one party withdraws his consent

and this fact is communicated to the court prior to entry of the

judgment.” Id. at 599. In the instant case, however, we do not

find it necessary to reach the issue raised by Wife. This is

because we find that wife has waived this alleged error.

Following the hearing below, the court entered its

judgment. After the judgment was entered, counsel for the

parties approved an “Agreed Order” which was subsequently signed

and entered by the trial court. In addition to modifying the

judgment, the Agreed Order prescribes terms regarding the court’s

division of assets and debts that are at variance with the terms

of the parties’ agreement of November 7, 1995. Significantly,

the Agreed Order does not reserve to Wife the right to raise the

issue of the enforceability of the earlier agreement. In effect,

by approving the Agreed Order, Wife has assented to certain terms

of the division of property and debts now before us. Even

assuming, solely for the purpose of discussion, that the earlier

agreement was enforceable, we could not enforce it now since it

conflicts with the terms of Wife’s most recent agreement. By

agreeing to change the court’s judgment, Wife has waived the

7 issue now being raised by her. See Rule 36(a), T.R.A.P.

(“Nothing in this rule shall be construed as requiring relief be

granted to a party...who failed to take whatever action was

reasonably available to prevent or nullify the harmful effect of

an error.”)

So much of the judgment of the trial court as awards

Wife periodic alimony in futuro of $350 per month is hereby

reversed. The remainder of the court’s judgment is affirmed.

Costs on appeal are taxed to the appellee. This case is remanded

for enforcement of the trial court’s judgment, as modified by

this opinion, and for collection of costs assessed below, all

pursuant to applicable law.

__________________________ Charles D. Susano, Jr., J.

CONCUR:

________________________ Houston M. Goddard, P.J.

________________________ William H. Inman, Sr.J.