Opinion
No. M2006-01452-COA-R3-CV.
July 11, 2007 Session.
Filed July 20, 2007.
Appeal from the Circuit Court for Williamson County No. 03578 Russ Heldman, Judge.
Judgment of the Circuit Court Affirmed in Part; Modified in Part.
Edward L. Hiland, Nashville, Tennessee, and Hilary H. Duke, Dickson, Tennessee, for the appellant, Sucheta Misra.
Robert Todd Jackson, Brentwood, Tennessee, for the appellee, Amaresh Misra.
FRANK G. CLEMENT, JR., J., delivered the opinion of the court, in which WILLIAM B. CAIN, P.J., M.S., and ROBERT S. BRANDT, SP. J., joined.
MEMORANDUM OPINION
Tenn. Ct. App. R. 10 states:
This Court, with the concurrence of all judges participating in the case, may affirm, reverse or modify the actions of the trial court by memorandum opinion when a formal opinion would have no precedential value. When a case is decided by memorandum opinion it shall be designated "MEMORANDUM OPINION," shall not be published, and shall not be cited or relied on for any reason in any unrelated case.
In this divorce matter, the wife appeals contending the trial court erred in finding her partly at fault for the divorce, failing to award her alimony in futuro, dividing the assets of the parties based solely upon the husband's suggested division, and finding the husband was more credible than she. Finding no evidence to support a conclusion that the wife was at fault, we reverse the trial court on that issue; however, we find no other error, and therefore affirm in all other respects.
Sucheta Misra, Wife, and Amaresh Misra, Husband, married on February 20, 1984. The parties had two children, one of whom is now an adult and the other remains a minor. Following twenty years of marriage, Husband filed a Complaint for Divorce on October 13, 2003, requesting that the parties be declared divorced pursuant to Tenn. Code Ann. § 36-4-129 on the grounds of irreconcilable differences. After two years of relative inactivity, Husband filed an Amended and Supplemental Complaint for Divorce on October 5, 2005, in which he adopted the allegations of the original Complaint for Divorce and supplemented it by alleging that Wife was guilty of inappropriate marital conduct to an extent that rendered further cohabitation improper. On December 6, 2005, the trial court entered an Agreed Order enjoining and restraining Wife from contacting Husband or his employees at his medical office in Nashville, Tennessee.
On January 10, 2006, Wife filed an Answer admitting the statistical information but denying that the parties had suffered irreconcilable differences and denying that she had engaged in inappropriate marital conduct.
In April of 2006, the parties entered into a stipulated Permanent Parenting Plan, which was approved by the trial court, whereby Wife was awarded custody of the child for 209 days and Husband 156 days with provisions for specific holiday visitation. It was also stipulated that the parties would share major decision making regarding the child's education, health care, religion and extra-curricular activities.
It was stipulated that Wife's gross monthly income was $3,600, and Husband's gross monthly income was $9,816.50. Child support was set pursuant to the guidelines based upon the respective incomes.
On April 24, 2006, the trial court conducted a full evidentiary hearing concerning all unresolved issues at which time both spouses testified as did other witnesses. Several weeks later, on June 8, 2006, the trial court entered a Final Decree of Divorce by signing an order prepared by counsel which stated, inter alia, that the court accepted the parties' stipulation prior to trial pursuant to Tenn. Code Ann. § 36-4-129 that Wife would be granted the divorce. The trial court, however, acting sua sponte, added a handwritten notation to the order stating that "both parties committed marital fault." Several specific findings were incorporated in the Final Decree of Divorce, including the finding that the "Plaintiff, Amaresh Misra, appeared more credible than the Defendant, Sucheta Misra, and therefore, this credibility discrepancy must color the Court's view of the evidence."
In the Final Decree of Divorce, Wife was awarded transitional alimony in the amount of $1,000 per month for 48 months "because of the earning capacity disparity between the parties and the Defendant's need." The trial court additionally ordered the Husband to pay the sum of $9,000 toward Wife's legal fees, finding Wife should not have to deplete a significant amount of assets to pay her attorney. The trial court also incorporated in the Final Decree of Divorce the parties' Permanent Parenting Plan, finding it addressed the best interests and welfare of their minor child. Following the entry of the Final Decree of Divorce, Wife perfected this appeal in which she raises several issues.
As her first issue, Wife contends the trial court erred by adding the handwritten notation stating that "both parties were at fault." She contends this was inconsistent with the formal stipulation of the parties that Husband was at fault and that there was no evidence upon which to base a finding that she too was at fault. Having reviewed the record, we find that the only evidence pertaining to fault by either party is the formal stipulation that Husband was at fault due to his inappropriate marital conduct. Moreover, the record contains no evidence indicating that Wife was at fault.
Tenn. Code Ann. § 36-4-129 provides that in actions for divorce the parties may stipulate as to grounds, and the court may upon stipulation or proof of any ground for divorce grant a divorce to the party who is less at fault. There being no evidence that Wife was at fault and there being a stipulation by both parties of Husband's inappropriate marital conduct, we find the trial court erred by adding the handwritten footnote entry which reads that "both parties committed marital fault."
Wife also contends on appeal that the trial court erred by failing to award her alimony in futuro, by dividing the assets of the parties based solely upon the Husband's suggested division, and by finding that Husband was more credible than Wife. As for alimony in futuro, we find the contention without merit for three reasons. One, she did not affirmatively seek alimony in futuro in her Complaint. Two, she was awarded transitional alimony. Three, she has two masters degrees and, therefore, is obviously a person of intelligence and diverse skills. Although the record indicates her command of the English language is somewhat limited, with her intelligence, she can address this deficiency during the period she receives transitional alimony.
In her Answer to Husband's Amended and Supplemental Complaint Wife requests alimony; however, that is not the proper procedure by which a party may request affirmative relief pursuant to the Tennessee Rules of Civil Procedure.
As for the division of property, we find the division of property was not inequitable and thus affirm on that issue. Finally, Wife contends the trial court erred in its determination that Husband was more credible than Wife. Credibility determinations are within the discretion of the trial court, and the burden on Wife to overturn this determination is substantial. See Estate of Walton v. Young, 950 S.W.2d 956, 959 (Tenn. 1997); B G Constr., Inc. v. Polk, 37 S.W.3d 462, 465 (Tenn.Ct.App. 2000) (noting that the appellate courts give great weight to a trial court's determinations of credibility of witnesses). She has failed to carry that burden on appeal, and thus, we affirm the trial court on this issue as well.
For his part, Husband contends he should be awarded his legal expenses incurred on appeal. Having ruled in part for Wife and in part for Husband, we find that the parties should be responsible for their own respective legal fees on appeal and therefore deny the Husband's request.
IN CONCLUSION
We therefore reverse the decision of the trial court as it pertains to the handwritten notation that "both parties committed marital fault," and remand with instructions to delete the handwritten notation. As for all other issues, we find no error, affirm the trial court, and remand to the trial court for further proceedings consistent with this opinion. Costs of appeal are assessed against the parties equally.