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IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE
October 2, 2002 Session

DONNA LYNN SEALS v. LARRY CLYDE SEALS
Appeal from the Chancery Court for Hamilton County No. 00-360 Howell N. Peoples, Chancellor FILED NOVEMBER 26, 2002 No. E2002-00100-COA-R3-CV

Donna Lynn Seals ("Wife") and Larry Clyde Seals ("Husband") were divorced in 2001, after seventeen years of marriage. The parties have one minor child ("Child"). Wife was primarily a stayat-home mother during the marriage. Husband is employed as a general superintendent by Williams Union Boiler. The Trial Court found Husband's earnings for 2001 to be $117,000 in regular wages plus $16,380 in per diem. The Trial Court awarded Wife the parties' home in Hamilton County as alimony in solido and further ordered Husband to pay rehabilitative alimony in the amount of $1,365 per month for forty-two consecutive months. The Trial Court also ordered Husband to pay $2,063 per month in child support, which is an upward deviation due to Husband's absence of overnight parenting time since December 2000. Husband filed a post-trial Tenn. R. Civ. P. 52.01 motion for findings of fact. The Trial Court addressed this motion and entered its Final Decree of Divorce in November 2001. Husband appeals. We affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed; Case Remanded

D. MICHAEL SWINEY, J., delivered the opinion of the court, in which HOUSTON M. GODDARD , P. J., and HERSCHEL P. FRANKS , J., joined. Selma Cash Paty, Chattanooga, Tennessee, for the Appellant, Larry Clyde Seals. John R. Meldorf, III, Hixson, Tennessee, for the Appellee, Donna Lynn Seals.

OPINION Background

After seventeen years of marriage, Donna Lynn Seals ("Wife") and Larry Clyde Seals ("Husband") were divorced in 2001. The parties have one minor child ("Child"). Wife, who has been primarily a stay-at-home mother, was working for the Tennessee Valley Authority ("TVA") when the parties married. She was working out a three-month lay off notice at the time she learned she was pregnant. Although Wife was offered another position at TVA, she declined this offer. Instead, Husband told Wife that no wife of his had to work, and suggested she quit work. Wife took this suggestion to heart. Since then, Wife's only employment outside the home involved work she did in connection with a small antique business the parties started in 1986. At the time of trial, Husband was employed as a general superintendent by Williams Union Boiler, a division of Williams Union Power, and was working at the TVA plant in Paradise, Kentucky. In addition to his regular wages, which the Trial Court found to be $117,000 for 2001, Husband receives a per diem because his home is in Chattanooga, Tennessee and his duty station is in Kentucky. The Trial Court found Husband's per diem earnings for 2001 to be $16,380. In 1986, the parties started a small antique business. They rented a booth in a mall, although neither party had to staff the booth. The price of each antique was affixed to the item and a cashier at the mall collected money from customers. Husband and Wife shared equally in traveling around to buy antiques for their booth. Wife kept the books. Wife owned a vehicle prior to the marriage. At some point during the marriage, Wife borrowed approximately $6,000 against this vehicle and gave the money to Husband so he could pay a premarital income tax obligation. When Wife left her job at TVA, she chose to receive her retirement money rather than continue with her retirement plan. Wife also received a severance package. She used a portion of the severance package to pay off the loan against her vehicle. In the Final Decree of Divorce filed November 19, 2001, the Trial Court found Wife was in need of both alimony in solido and rehabilitative alimony. The Trial Court awarded Wife the parties' home in Hamilton County as alimony in solido and further ordered Husband to pay rehabilitative alimony in the amount of $1,365 per month for forty-two consecutive months. The Trial Court also ordered Husband to pay $2,063 per month in child support, which included an upward deviation based upon Husband's absence of overnight parenting time since December of 2000. Post-trial, Husband filed a Tenn. R. Civ. P. 52.01 motion requesting findings of fact regarding Husband's income and the amount of his per diem; Wife's income and/or earning capacity; -2-

and the amount of child support that would have been ordered under the child support guidelines. The Trial Court's Order of November 27, 2001, as later amended, addressed Husband's Rule 52.01 Motion. The Trial Court denied the motion and specifically held that the findings contained in its Final Decree were sufficient to comply with the Tennessee Rules of Civil Procedure. In the Final Decree, the Trial Court specifically found Husband's earnings for 2001 were $117,000 in regular wages and $16,380 in per diem, and the child support obligation pursuant to the guidelines to be $1,611 per month. The Trial Court did not state specific figures for Wife's income and/or earning capacity in the final decree. Discussion On appeal, Husband raises the following issues: (1) did the Trial Court err in setting the amount of child support by considering Husband's per diem as income to him and by making an upward deviation based upon Husband's failure to exercise visitation; (2) did the Trial Court err in failing to make a finding of fact as requested in Husband's Tenn. R. Civ. P. 52.01 motion; (3) did the Trial Court err in awarding Wife $31,859 from the Boilermaker-Blacksmith National Pension Trust; (4) did the Trial Court err in awarding Wife the marital home as alimony in solido, and; (5) did the Trial Court err in setting the amount of rehabilitative alimony. Wife raises the additional issue of whether this appeal is frivolous and, therefore, she should be awarded attorney's fees and costs for being required to defend. Our review is de novo upon the record, accompanied by a presumption of correctness of the findings of fact of the trial court, unless the preponderance of the evidence is otherwise. Tenn. Rule App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001). A trial court's conclusions of law are subject to a de novo review with no presumption of correctness. S. Constructors, Inc. v. Loudon County Bd. of Educ., 58 S.W.3d 706, 710 (Tenn. 2001). Before we consider the issues on appeal, we first address Husband's motion to consider post judgment facts. The motion requests this Court to consider that, by the Trial Court's August 12, 2002 Order, the primary residence of the Child now is with Husband, and, therefore, Husband no longer is obligated to pay child support to Wife. Wife admits these facts are true. In the exercise of our discretion, we grant the motion to consider post judgment facts. Husband's issue regarding whether the Trial Court erred in setting the amount of child support is moot post August 12, 2002 as Husband has no existing obligation to pay any future child support. Despite Husband's well-stated argument that we still should consider this issue as the minor child may yet primarily reside with Mother at some future time, such event may or may not happen. Therefore, we decline to address this issue. We next address Husband's issue regarding whether the Trial Court erred in failing to make a finding of fact in response to Husband's Tenn. R. Civ. P. 52.01 motion. Tenn. R. Civ. P. 52.01 provides: "In all actions tried upon the facts without a jury, and upon request made by any party prior to the entry of judgment, the court shall find the facts specially and shall state separately its conclusions of law thereon and direct the entry of the appropriate judgment." Tenn. R. Civ. P. -3-

52.01. "Findings of fact and conclusions of law rendered by the trial court `promote[] a just and speedy determination of the issues,' and facilitate appellate review by the courts and appellate case preparation by the parties." Bruce v. Bruce, 801 S.W.2d 102, 104 (Tenn. Ct. App. 1990) (quoting Murray Ohio Mfg. Co. v. Vines, 498 S.W.2d 897, 902 (Tenn. 1973)). "It is not necessary for the trial court to treat separately each fact or question at issue so long as his findings as a whole cover all relevant facts necessary to a determination of the case." Hodge v. Provident Life & Accident Ins. Co., 664 S.W.2d 297, 300 (Tenn. Ct. App. 1983). The Middle section of this Court has held: [T]he failure of the trial court to render findings of fact and/or conclusions of law is not necessarily reversible error. As stated in Hill, "Rule 52.01, Rules of Civil Procedure, does provide for findings of fact, but there is no provision as to what facts must be found and what need not be found specially. Evidently, some discretion must reside in the trial judge in this regard." Bruce, 801 S.W.2d at 104-05 (quoting Metro. Dev. & Hous. Agency v. Hill, 518 S.W.2d 754, 769 (Tenn. Ct. App. 1974)). A review of the record discloses the Trial Court did make specific findings regarding Husband's income, the amount of his per diem, and the amount of child support that would have been ordered under the child support guidelines without any upward deviation. The only finding requested, and not specifically made, involved Wife's income and/or earning capacity. The Trial Court did, however, find Wife was in need of both rehabilitative spousal support and spousal support in solido. The evidence in the record does not preponderate against this finding. The Trial Court's findings, as a whole, covered all of the relevant facts necessary to a determination of the case. Therefore, we hold the Trial Court properly exercised its discretion in making its findings of fact. We affirm on this issue. We next discuss the Trial Court's award to Wife of $31,859 from the BoilermakerBlacksmith National Pension Trust. Tenn. Code Ann.

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