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IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON
November 20, 2002 Session DEBORAH BOWERS SMITH v. RILEY DEAN SMITH
A Direct Appeal from the Chancery Court for Gibson County No. H4486 The Honorable George Ellis, Chancellor

No. W2002-00477-COA-R3-CV - Filed January 15, 2003

This is an appeal of a final decree of divorce and the order of the trial court on the moton to alter or amend, involving issues of division of marital property, alimony in futuro, contempt of court, and injunctive relief for Wife's alleged harassment of Husband. Husband appeals. We affirm in part, reverse in part, and remand. Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Affirmed in Part, Reversed in Part, and Remanded W. FRANK CRAWFORD , P.J., W.S., delivered the opinion of the court, in which ALAN E. HIGHERS, J. and HOLLY KIRBY LILLARD, J., joined. C. Timothy Crocker, Michael A. Carter, Milan, For Appellant, Riley Dean Smith Mary G. Middlebrooks, Jackson, For Appellee, Deborah Bowers Smith OPINION Deborah Bowers Smith ("Ms. Smith," "Appellee," or "Wife") and Riley Dean Smith ("Mr. Smith," "Appellant," or "Husband") were married on July 24, 1977. There are two children born of the marriage, Brentley Dean Smith (d/o/b January 20, 1978) and Brooke Deanna Smith (d/o/b July 17, 1984). Ms. Smith filed a complaint for Absolute Divorce on February 8, 2001, citing irreconcilable differences and marital misconduct on the part of Mr. Smith. She filed an Affidavit in support of her Complaint on February 15, 2001. The Affidavit reads in pertinent part as follows: 1. That my gross income from my employment with Gibson County School System is approximately $2,904.50 per month; net income is approximately $1,936.22 per month. 2. That I have no additional sources of income.

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4. That [Mr. Smith's] gross income from his employment with Jones Company, Ltd. is approximately $13,531.26 per month ($162,375.22 for year 2000). Attached to this Affidavit was an exhibit listing monthly household expenses, which totaled $7,024.55. Mr. Smith filed an Answer and Counter-Complaint on February 23, 2001, alleging inappropriate marital conduct on the part of Ms. Smith. The Counter-Complaint further stated that: 5. [Mr. Smith] avers that [Ms. Smith] is calling him at all hours of the day and night, harassing him, making threatening statements including, but not limited to, taking the parties' minor daughter and moving out of State in order to prevent him from having a relationship with his daughter and threatening to kill him and herself. * * *

[Mr. Smith prays:] That a Restraining Order issue, enjoining [Ms. Smith], her agents or anyone acting in her behalf, from coming about, telephoning, threatening, harassing, bothering, or having any contact with [Mr. Smith], either at his residence or his workplace, except as it relates to visitation issues concerning the parties' minor daughter, and from removing the parties' minor daughter from the jurisdiction of this Court, during the pendency of this cause. The chancellor entered a Temporary Restraining Order on February 23, 2001 and set a hearing for March 20, 2001 to determine whether a Permanent Injunction should be issued. On March 20, 2001, a hearing was held on motions for temporary child support and alimony pendente lite filed by Ms. Smith and on the Temporary Restraining Order granted to Mr. Smith. An Order was entered on April 27, 2001, which dissolved the Temporary Restraining Order and ordered Mr. Smith to pay alimony pendente lite to Ms. Smith in the amount of Five Hundred Dollars ($500) per month. Mr. Smith was also ordered to maintain all health insurance, marital debts, and mortgage payments pending a hearing of the case. A Temporary Parenting Plan was entered on April 27, 2001, requiring Mr. Smith to pay Nine Hundred Dollars ($900) per month in child support. On April 24, 2001, Ms. Smith filed a Motion for Provision of Vehicle, which states in pertinent part:

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1. That Defendant, Riley Dean Smith, was providing [Ms. Smith] with a 2000 Volvo and paying the lease payments on said vehicle by Court Order. 2. That [Ms. Smith] was involved in a motor vehicle accident, which totaled the Volvo. 3. That [Mr. Smith] has refused to provide [Ms. Smith] with a comparable vehicle. THEREFORE, [Ms. Smith] moves this Honorable Court as follows: 1. That [Mr. Smith] be required to provide [Ms. Smith] with a vehicle comparable to a 2000 Volvo. On May 18, 2001, a status hearing was held. An Order was entered on May 31, 2001, which granted Mr. Smith's Interlocutory Appeal, set Ms. Smith's Motion for Provision of Vehicle for hearing on June 12, 2001 and set the matter for trial on August 15, 2001 due to the failure of mediation attempts. Ms. Smith filed a Motion for Civil Contempt against Mr. Smith on June 7, 2001, alleging, inter alia, that he had failed to provide her with a means of transportation and that he had failed to pay a cellular telephone bill. On August 10, 2001, Mr. Smith filed a Petition for Restraining Order and Permanent Injunction, alleging that, since the Temporary Restraining Order had been dissolved, Ms. Smith had continued to harass and threaten him. The non-jury trial was held on August 15, 2001. Prior to trial, the parties stipulated to grounds of adultery on the part of Mr. Smith. On September 28, 2001, Ms. Smith filed a Motion for Restraining Order, which reads in pertinent part as follows: The Plaintiff, Deborah Bowers Smith, moves this Court for a Restraining Order. In support of said Motion, the Plaintiff would show as follows: 1. That Plaintiff is informed, and therefore believes, that the Defendant, Riley Dean Smith, has been terminated from his employment with The Jones Company. 2. That Plaintiff is informed, and therefore believes, that Defendant now has in his possession all liquid assets from his retirement fund with The Jones Company.

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3. That Plaintiff is informed, and therefore believes, that Defendant received a substantial severance package upon his termination of employment. Chancellor Ellis issued a temporary Restraining Order on September 28, 2001, pending a hearing on Ms. Smith's Motion. A hearing was held on October 22, 2001. An Order for Absolute Divorce was entered on November 21, 2001. The Order reads in pertinent part as follows: ...After statement of counsel, testimony of certain witnesses, submission of certain exhibits, and upon the entire record, the Court issued its ruling, as follows: * * *

The Court finds there is a great disparity in the incomes of the parties, with Mr. Smith's income for the last three years being $151,670.28, $188,800.65, and $162,375.22, and that for the first seven months of this year his income has been $127,990.40. Deborah Bowers Smith's income as a teacher is $34,854. The Court finds that the parties have $407,056 in debt and that $336,000 of this is in real estate, leaving a consumer debt in the amount of $71,056. The Court finds that Deborah Bowers Smith as of this year makes about 16 percent of the income of Riley Dean Smith, and therefore, she shall be ordered to pay the debt to UP Bank in the amount of $2,000, a debt to David Bowers in the amount of $5,225, and a Mastercard bill in the amount of approximately $1,150, $1,100 to Summit Vacuum and $1,000 to Service Merchandise. Riley Dean Smith is ordered to pay the remaining marital debts as listed on the exhibits. * * *

As to the question of alimony in futuro, the Court finds that the standard of living enjoyed by the Smiths was a good one, above average, and that Riley Dean Smith's actions, as he stipulated to, has [sic] caused the rupture of this marriage. And to force Deborah Bowers Smith to a lower standard of living because of the infidelity of Riley Dean Smith would not be consistent with the laws of the State of Tennessee, and, therefore, alimony in futuro is ordered to be paid by Riley Dean Smith in the amount of $3,000 per month to Deborah Bowers Smith until her death or remarriage.

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The Court further finds that Riley Dean Smith was in contempt of Court by not replacing the leased vehicle that was wrecked, but, however, he did provide Deborah Bowers Smith with a vehicle, and the Court is going to tax attorney's fees and costs for this matter as the only sanction that's brought against Riley Dean Smith * * *

IT IS THEREFORE ORDERED: * * *

3. That Husband shall receive the real property located at 168 Pleasant Hill Road, Humbolt, Gibson County, Tennessee...one-half (

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