text:
    In re the ADOPTION OF M.D.L. L.R.C. and P.D.C., Petitioners-Respondents, v. D.L., Defendant-Appellant.
    No. WD 35537.
    Missouri Court of Appeals, Western District.
    Dec. 18, 1984.

      Walter R. Simpson, Kansas City, for defendant-appellant.
    Stuart J. Newman, Kansas City, for petitioners-respondents.
    Before PRITCHARD, P.J., and SHAN-GLER and BERREY, JJ.
   BERREY, Judge.

Petitioners-respondents sought adoption of M.D.L. The natural mother consented to the adoption but the natural father D.L., an inmate at Central Missouri Correctional Center in Jefferson City, Missouri, objected.

In a very complete finding the trial court held that the father had wilfully abandoned and neglected the child for more than six months prior to the filing of the adoption. The court also found D.L. had wilfully failed to maintain a parent-child relationship with M.D.L. from October, 1981, through September 29, 1983. The court further found that the petitioners-respondents are suitable adoptive parents and that it is in the best interest of M.D.L. that the adoption take place.

Appellant, D.L., assigns two points of error: (1) that there was no substantial evidence that he wilfully abandoned or wil-fully substantially and continuously neglected to provide the child with care and protection for six months prior to the petition being filed, and (2) that the appellant had a continuous intent to maintain his parental relationship with his daughter and the judgment was against the weight of the evidence which established this claim.

On July 10, 1981, D.L. was convicted of “stealing by physically taking from a person” and was sentenced to the Missouri Department of Corrections for seven years. He was placed on parole December 21, 1982. D.L. was in Kansas City during the thirty days he was on parole. First he lived at a NARA Residential Treatment Center, 712 East Linwood, Kansas City, Missouri. He stayed at the half-way house seven days and absconded. D.L. was subsequently arrested for parole violation on January 22, 1983, and administratively revoked March 23, 1983.

According to Judy Chase, Assistant District Supervisor of the Missouri State Department of Probation and Parole, “He had at least three criminal convictions prior to that time, and at least three traffic matters.” Subsequent interrogation of the witness revealed only two prior convictions, one for assault on a police officer and the other for destruction of property.

Tom Schroeder, a case worker with Missouri Division of Family Services testified that M.D.L. was born November 5, 1978, and she was first detained by the Division of Family Services August 15, 1980. She was adjudicated and placed in foster care October 16, 1980. On April 3, 1982, she was transferred to foster care with the petitioners.

Petitioners filed for adoption on February 15, 1983; six months prior would have been August 15, 1982. Schroeder testified that during the six month period, he had no contact with appellant D.L., that D.L. sent no money to the Department of Family Services or directly to M.D.L., and that he sent no gifts, cards or letters to M.D.L. In fact, the last visit D.L. made with M.D.L. according to the Department of Family Services records was January 16, 1981. D.L. did send her a birthday card received by Department of Family Services on November 2,1981, and a Christmas gift for her on December 3, 1981. There were no letters or gifts since Christmas 1981. Since the filing of the petition February 15, 1983, D.L. made no effort to contact Department of Family Services or M.D.L.

Mr. Schroeder further testified on October 5,1981, he sent D.L. a letter explaining who he was, how to reach him, his address, telephone number and a hand book for natural parents regarding their rights and responsibilities while his child was in foster care. D.L. was also informed:

That he needed to write to us and ask about M.D.L.’s health and behavior and progress on a regular basis, and that he should write M.D.L. or send her cards on her birthday or holidays by addressing them to her in care of me. And that he should contribute to her support by — .

In whatever amount that he can manage. D.L. replied on October 12, 1981, that he could send no money but that he would send birthday cards and presents.

Schroeder wrote D.L. on October 19, 1981, and informed him about M.D.L. and D.L. responded October 25, 1981. On December 8,1981, Division of Family Services advised D.L. they had received and forwarded to M.D.L. the birthday card and that the Christmas present would be given to her in two weeks. On April 2, 1982, Division of Family Services sent D.L. a letter summarizing the previous events to which they received no response. On August 5, 1982, the Department of Family Services again wrote D.L. advising him they expected him to contact them once a month to inquire about M.D.L. There was no response. On November 9, 1982, Department of Family Services wrote D.L. again advising him that they “were attempting to make some permanent plans for M.D.L. and needed to know what his present plans for her were. And I asked him to write me.” He did not respond.

According to Schroeder, D.L. made no contact with him or the Department of Family Services during the thirty days he was on parole in the Kansas City area, in fact, Schroeder was not aware of the parole until March, 1983.

Mr. Schroeder of the Division of Family Services recommended final adoption custody in petitioners and that the court find abandonment or neglect. The Division of Family Services advised that M.D.L. has made a very good adjustment in that home.

Sharon Anderson, a social service worker in foster care of the Missouri Division of Family Services was assigned as the foster care worker for M.D.L. and had been on the case since October, 1981. She testified D.L. had made no contact with her regarding visits with M.D.L. and he had not visited M.D.L. since she was assigned the case. She received no gifts, cards or letters from D.L. to be given to M.D.L. from August 15, 1982, to February 15,1983. Anderson stated that M.D.L. had made a good adjustment and it would be in M.D.L.’s best interest that the petitioners be granted the adoption.

Petitioner L.R.C. testified there had been no visitation between D.L. and M.D.L. while M.D.L. had been in their custody since April, 1982, that there had been no letters, cards, presents, or money, sent to M.D.L. directly or through the Division of Family Services from D.L.

This court reviews both the law and the evidence and will defer to the trial court the opportunity to judge the credibility of witnesses and choose between conflicting testimony. Matter of Adoption of G., 618 S.W.2d 462, 464 (Mo.App.1981). Rule 73.01(c)(3).

The decree of adoption is to be sustained unless there is no substantial evidence supporting it, it is against the weight of the evidence or it erroneously applies the law. Matter of Adoption of Pearson, 612 S.W.2d 30, 31 (Mo.App.1981).

Each case must be judged on its own unique set of facts, S.C.H. v. C.W.H., 587 S.W.2d 945, 947 (Mo.App.1979), and only after determining there has been a wilful abandonment or wilful neglect will the issue of the child’s best interest be reached. In re Adoption of W.B.L., 647 S.W.2d 531, 533-34 (Mo. banc 1983), citing Adoption of R.A.B. v. R.A.B., 562 S.W.2d 356, 357 (Mo. banc 1978).

In order to constitute wilful neglect there must be more than evidence of a parent’s failure to support. S.C.H. v. C.W.H., supra. Indeed, in the instant case the record is replete of D.L.’s failure to, in any fashion, be a father to his daughter, M.D.L. From Christmas 1981, to the day of the hearing in February, 1983, he had no contact with M.D.L., despite urgings from the Division of Family Services workers to write her, send her letters, cards or gifts.

Appellant was on furlough in late November and early December, 1982, and alleges he went to a hearing on M.D.L. but because he was concerned over his wife’s boyfriend being present, he left before the hearing took place. He saw M.D.L. at this time but did not communicate with her.

On December 21, 1982, he was paroled and lived in the Kansas City area for thirty days at which time he was rearrested for parole violation. He acknowledges he made no effort either through the Division of Family Services, or directly, to contact his daughter. Such actions demonstrate an unconcern and total disregard for M.D.L.

Wilful neglect is a matter of intent and evidence of appellant’s conduct either before or after the statutory period may be considered to determine his intent. Adoption of R.A.B. v. R.A.B., supra, at 358. In the instant case his actions speak much louder than do his protestations raised at trial. The record is one that he made. Despite his incarceration he did not follow the recommendations of the Division of Family Services regarding periodic letters, cards and gifts. He did not attempt a visit when home on parole. Clearly he has wil-fully neglected and wilfully abandoned M.D.L.

The court in In re Adoption of K.L.G., 639 S.W.2d 619, 626 (Mo.App.1982), cited by both parties touches upon incarceration and the severance of parental rights. The appellant offers the following from K.L.G., “It is generally held that such imprisonment does not per se constitute abandonment.” He fails to cite the remainder of that paragraph which reads, “On the other hand, a majority of the decisions hold that under appropriate circumstances imprisonment may constitute abandonment.” K.L.G., supra, at 626.

In the instant case D.L. was contacted by the Division of Family Services and given directions on how to keep contact with M.D.L. For a period of time he followed their directions. However, the evidence is overwhelmingly clear, cogent and convincing that D.L. evidenced intent to and did wilfully abandon and wilfully neglect M.D.L.

After finding that D.L. had wilfully abandoned and neglected M.D.L. the court did not err in decreeing the adoption; the evidence was clear it was in the best interest of M.D.L. to be adopted by the petitioners.

The record demonstrates that petitioners have a stable two-person home with a healthy loving environment in which to raise M.D.L., that close family ties now exist between members of the family and M.D.L. and vice versa, and that the best interest of M.D.L. will be served by this adoption.

Judgment affirmed.

All concur.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Norman Wray TERRY, Appellant.
    No. WD 35603.
    Missouri Court of Appeals, Western District.
    Dec. 18, 1984.

      Chris Hoberock, Nevada, for appellant.
    John Ashcroft, Atty. Gen., and Mary Patrick Seigfreid, Asst. Atty. Gen., Jefferson City, for respondent.
    Before KENNEDY, P.J., and DIXON and CLARK, JJ.
   PER CURIAM:

In 1979 Norman Terry was charged in Henry County with the second-degree murder of his ex-wife. By order of December 14, 1979, the trial court found Terry not guilty by reason of mental disease or defect excluding responsibility and ordered that he be committed to the Missouri Department of Mental Health for custody, care and treatment in a state mental hospital, § 552.040.1, RSMo 1978.

On May 10, 1983, Terry filed an application for release from custody, § 552.040, RSMo Supp.1982. The prosecuting attorney of Henry County filed an objection to the defendant’s release. After a hearing on November 16, 1983, Judge Robert L. Koffman concluded that defendant failed to meet the criteria for release and denied the application. From denial of that application, defendant appeals, arguing that the trial court’s decision to deny his application for release was against the weight of the evidence.

We affirm the judgment.

On review, we will sustain the judgment of the trial court unless there is no substantial evidence to support it, unless it erroneously declares or applies the law, or unless it is against the weight of the evidence. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). A judgment is set aside as being against the weight of the evidence upon “a firm belief that the decree or judgment is wrong.” Id.

Defendant presented his testimony and that of five other witnesses on his behalf. The state offered no evidence.

Dr. William Clary, a Springfield psychiatrist in private practice, testified that he first examined defendant in August, 1979, and that at his request a psychologist tested defendant. They found him to be a chronically ill mental patient, a schizophrenic, currently in need of hospitalization and treatment.

In September, 1981, after defendant’s second examination by Dr. Clary and tests by a psychologist, Dr. Clary noted vast improvement with some slight inward turning tendencies remaining. He concluded defendant’s schizophrenia was in remission.

In July, 1983, Dr. Clary examined defendant and a clinical psychologist conducted a battery of psychological tests on defendant once again. Dr. Clary noted considerable improvement with no evidence of psychosis and no evidence of psychological disorder except for “the remorse about his rather tragic set of past circumstances.” His conclusion: This was a somewhat unusual case of “spontaneous remission.” He also stated not enough long range studies of spontaneous remission have been done.

He recommended a conditional release for defendant rather than an unconditional one because, he said, “Everybody would feel a little less uneasy if he were required to check in every now and then,” and “you ought to do everything possible to protect society.”

He stated that he. knew that institutional psychiatrists in general felt schizophrenics “never get over it.”

In response to the court’s question “[c]ould his problems originally have resulted from a physiological problem?”, Dr. Clary answered:

It’s hard to say .... what the current thinking is, Judge, on schizophrenia is that you have to have two switches both in the on position, to get the actual disease. You have to have an hereditary predisposition to the illness .... you have to have the make up of your brain or your chemistry, and then you have to have sufficient stress in your upbringing and/or in later events to throw that switch two into operation and cause the actual disease.

We note that Dr. Clary stated he did not at any time perform a positron emission tomograph, that is, a “PET scanner” test, of defendant’s brain, a laboratory test which shows actual changes in the brain. The record is unclear whether he omitted to perform this test because of his possible lack of access to the technology involved or, because, based on his diagnosis of defendant’s specific type of schizophrenia, he thought he would find nothing abnormal.

Dr. Ernest Anderson, D.O., is an institutional psychiatrist at Nevada State Hospital in charge of the ward to which defendant was assigned at the time of the hearing. He testified that his first contact with the defendant was February or March, 1983, some eight or nine months before the hearing. At no time did Dr. Anderson find any symptoms in defendant of psychosis or of paranoid or other schizophrenia. Dr. Anderson believes defendant's case is in remission. Three electroencephalograms (EEG) on defendant have indicated no motor damage, but no other formal testing of defendant had occurred at Nevada State Hospital — no psychological testing, no stress testing. When asked whether he thought that defendant “would be a threat to anybody if released either conditionally or unconditionally,” Dr. Anderson answered, “I really don’t see any evidence that he would. There, again, you never know when mental illness is going to strike anyone.”

The court directed several questions to Dr. Anderson on the spontaneous remission theory, and, in answer to the court’s question, “Is spontaneous remission of schizophrenia generally accepted by most of the people in those [psychiatric and medical] fields?”, Dr. Anderson stated, “By most? I don’t really think so.”

Arlene Pierson, R.N., and Sally Bachtal, L.P.N., workers in defendant’s ward at Nevada State Hospital, the former on day shift and the latter on afternoon shift, both testified that defendant was cooperative. Wanda Finney, a Nevada State Hospital music therapist, testified she is taking guitar lessons from defendant. The defendant then took the stand and described his life and routine at the hospital, and his plans for the future if released.

The burden is upon the applicant to establish facts to support his release. State v. Montague, 510 S.W.2d 776, 778 (Mo.1974). Keeping in mind that “[t]he purpose of a criminal commitment is to assure that conduct which has harmed one or more persons not again be permitted to constitute a threat of danger,” State v. Davee, 558 S.W.2d 335, 338 (Mo.App.1977), we reiterate that the ultimate decision on release lies with the trial court, and it is he who must be convinced that the statutory requirements have been met for an application for release to be granted. State v. Montague, 510 S.W.2d at 779-80.

We recognize there is evidence from which the trial court could have granted defendant’s application for release. He did not do so. Upon review of the evidence presented, we do not hold “a firm belief that the decree or judgment is wrong,” Murphy v. Carron, 536 S.W.2d at 32. Dr. Clary diagnosed defendant’s schizophrenia as being in remission; that the case was one of “spontaneous remission.” He stated that not enough long range studies of spontaneous remission of schizophrenia have been done. Dr. Anderson testified that the spontaneous remission theory is not generally accepted in the psychiatric and medical fields. There were tests available to defendant and to his physicians which had not been administered. Defendant’s position implicitly is that in the absence of contradiction or impeachment of his evidence, the trial court was obliged to accept it. The trial court was under no such duty, but was required to evaluate the evidence for its convincing quality. J.L.P. v. D.J.P., 643 S.W.2d 865 (Mo.App.1982). The testimony did not convince the trial court of the defendant’s present freedom from mental disease or defect, and of his freedom from the likelihood of such disease or defect within the reasonable future, which would pose the kind of threats described in Sec. 552.040.1, supra. Under the principles of appellate review which we follow, Murphy v. Carron, supra, we cannot reverse the trial court judgment upon this record.

The judgment is affirmed.

      . The statute in question. Section 552.040.1, reads in pertinent part:
      No person shall be released from such commitment until it is determined through the procedures provided in this section that he does not have and in the reasonable future is not likely to have a mental disease or defect rendering him dangerous to the safety of himself or others or unable to conform his conduct to the requirements of law.


author: MANFORD, Judge.

text:
    In the Interest of Michael BELL, Glenda Foster & Duane Foster, Appellants, v. Kevin BELL, Respondent.
    No. WD 35798.
    Missouri Court of Appeals, Western District.
    Dec. 18, 1984.

      Roger Merrill Driskill, Richmond, for appellants.
    Steven Douglas Wolcott, Gladstone, for respondent.
    Before TURNAGE, C.J., MANFORD and MESSINA, Special Judge.
   MANFORD, Judge.

This appeal follows the entry of a circuit court judgment in the form of an order denying registration of a foreign judgment. The judgment is affirmed.

While formally a sole point is presented generally charging that the circuit court erred in denying registration of a foreign judgment, there is to be found within that generally charged error two specific issues which allegedly support the error charged. These are (1) that Kansas was the proper legal forum for litigation of the issue of custody of the minor child under the Uniform Child Custody Jurisdiction Act (UCCJA) and (2) .that the Kansas decree should be accorded full faith and credit.

In summary, the facts are as follows. Ronda and Kevin Bell were married in October, 1979. They are the natural parents of minor Michael Bell, born in August, 1980. The Bells generally lived in Missouri. In April, 1981, the marriage was dissolved in Ray County, Missouri, custody of Michael was awarded Ronda, and Kevin Bell was granted visitation. In April, 1982, Ronda, along with the minor Michael, moved to Atchison, Kansas. On November 11, 1983, Rhonda Bell was murdered. The details of her death are not disclosed upon this record and do not pertain to the disposition of this appeal. At the precise time of her death, the minor Michael, in accordance with the grant of visitation, was with his father, respondent Kevin Bell. Kevin Bell had continued his residency in Missouri. Subsequent to the death of Ronda, the minor Michael remained with his father, Kevin Bell.

On November 18, 1983, the maternal grandparents of Michael Bell, Glenda and Duane Foster, filed an action seeking custody of the minor, Michael Bell, in the District Court of Atchison County, Kansas. On the same day (November 18, 1983), Kevin Bell filed a motion to modify the dissolution decree to affix custody of Michael in Kevin Bell. This motion was filed in the circuit court of Ray County, Missouri. Kevin Bell was personally served in the Kansas proceedings on December 23, 1983. On the day before service (December 23, 1983), an attorney for Kevin Bell, by letter, advised the Kansas District Court of Kevin Bell’s refusal to enter any appearance in the Kansas proceedings. On January 11, 1984, the Kansas District Court ordered custody of Michael to appellants, Glenda and Duane Foster. On January 19, 1984, appellants filed the Kansas judgment with the circuit clerk of Ray County, Missouri. On the 15th day of March, 1984, the circuit court of Ray County, Missouri entered its order judgment, finding that the Kansas judgment was not final relative to the custody of the minor, Michael and that the Kansas judgment was thus not recognized, and denied appellant’s petition for the registration of the foreign (Kansas) judgment. This appeal followed.

The disposition of this matter turns upon the consideration of the Uniform Child Custody Jurisdiction Act. Missouri has adopted the UCCJA and the provisions of same are found in §§ 452.440-452.550, RSMo 1978. For reference, the adoption of the UCCJA by Kansas is to be found in § 38-1301-1335 K.S.A. (1983 Supp.).

Attention is now directed to point (1) above, charging that Kansas was the proper legal forum under the UCCJA.

Since adoption of the UCCJA, “Missouri courts are required under § 452.500, RSMo 1978 to recognize and enforce a custody decree of a court of another state if the other state ‘had assumed jurisdiction under statutory provisions substantially in accordance with § 452.440 to § 452.550’, or if the decree of the other state ‘was made under factual circumstances meeting the jurisdictional standards of § 452.440 to § 452.550...” Kilgore v. Kilgore, 666 S.W.2d 923 (Mo.App.1984). In Kilgore, this court noted that neither the pleadings nor the decree of the Texas court asserted facts that the Texas court assumed jurisdiction under the statutory provisions of § 452.410-§ 452.550, nor was there anything to indicate that the decree issued under factual circumstances meeting jurisdictional standards of those statutory provisions. Under such findings, this court ruled that Missouri courts are not required to recognize and enforce foreign decrees. This court denied the sought-after relief in Kilgore.

The petition of appellants filed in the Kansas District Court and the decree of that court have been reviewed. The petition fails to set forth facts which would indicate jurisdiction of the Kansas Court. In addition, the decree of the Kansas court merely asserts that that court has jurisdiction over the parties and the subject matter and fails to assert either statutory authority or a factual basis for its jurisdiction. Hence, this matter is subject to the ruling in Kilgore.

Furthermore, Kansas should not have accepted jurisdiction. “The jurisdictional requirements of the UCCJA are designed to increase the probability that a custody decision will be in the best interests of the child by providing that custody be decided in the court with the greatest access to relevant information.” In Re B.R.F., 669 S.W.2d 240, 246 (Mo.App.1984). Section 452.450.1 prescribes four bases for jurisdiction to obtain custody of a child.

452.450. Jurisdiction

1. A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:

(1) This state:
(a) Is the home state of the child at the time of commencement of the proceeding; or
(b) Had been the child’s home state within six months before commencement of the proceeding and the child is absent from this state for any reason, and a parent or person acting as parent continues to live in this state; or
(2) It is in the best interest of the child that a court of this state assume jurisdiction because;
(a) The child and his parents, or the child and at least one litigant, have a significant connection with this state; and
(b) There is available in this state substantial evidence concerning the child’s present or future care, protection, training, and personal relationships; or
(8) The child is physically present in this state and:
(a) The child has been abandoned; or
(b) It is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse, or is otherwise being neglected; or
(4) It appears that no other state would have jurisdiction under prerequisites substantially in accordance with subdivision (1), (2), or (3), or another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine the custody of the child, and it is in the best interest of the child that this court assume jurisdiction.
2. Except as provided in subdivisions (3)and (4) of subsection 1 of this section, physical presence of the child, or of the child and one of the litigants, in this state is not sufficient alone to confer jurisdiction on a court of this state to make a child custody determination.
3. Physical presence of the child, while desirable, is not a prerequisite for jurisdiction to determine his custody.

Considering first “the home state” basis, under the facts and circumstances herein, Kansas could not be found to be the home state of the minor, Michael Bell. Section 452.445(4) reads:

(4) ‘Home state’ means the state in which, immediately preceding the filing of custody proceeding, the child lived with his parents, a parent, an institution; or a person acting as parent, for at least six consecutive months; or, in the case of a child less than six months old, the state in which the child lived from birth with any of the persons mentioned. Periods of temporary absence of any of the named persons are counted as part of the six-month or other period;

In the present case, it must be remembered that at the time of death of Ronda Bell and subsequent to her death (including the time immediately preceding the filing of the Kansas proceedings) the minor child Michael was residing with his father, Kevin Bell, in Missouri. The conclusion that the minor was residing in Missouri arises from the presumption that a minor child’s domicile is the same as the custodial parent and upon the death of the custodial parent (Ronda), the domicile of the minor child becomes that of the surviving parent (Kevin). Matter of Jackson, 592 S.W.2d 320, 321 (Mo.App.1979). Thus, upon the death of Ronda Bell, the domicile of the minor Michael Bell became the same as his father’s, or in other words, the domicile of Michael was Missouri, not Kansas. Thus, under § 452.450.1(l)(a), Kansas does not qualify as the “home state”, nor could Kansas qualify as the home state under § 452.450. l(l)(b) since there is no parent or person acting as parent who continued to live in Kansas. Appellants Glenda and Duane Foster are residents of Missouri, as is Kevin Bell. It should be noted that if Kansas had otherwise met the statutory jurisdictional requirements, which it did not, it could have exercised its jurisdiction over the minor Michael since with the death of Ronda Bell, Missouri’s jurisdiction to modify the original divorce decree ceased with and upon her death. In Re B.R.F., supra at 244.

Under § 452.450.1(2), jurisdiction arises if, in the best interests of the minor child, there is a significant connection of the child with his parents or the child with at least one litigant within the state having a significant connection with the state, and there is available in the state substantial evidence concerning the child’s present or future case, protection, training, and personal relationships. Kansas could not have obtained jurisdiction under § 452.450.1(2), because under the facts and circumstances herein, the “significant connections” are with the state of Missouri. Kevin Bell, the father, the Fosters, and Michael Bell all reside in Missouri.

Under § 452.450.1(3), in order that jurisdiction be conferred in an emergency situation, the minor child must be physically within the state. The minor herein was not, at the time the Kansas proceedings were commenced, physically within the state of Kansas. Thus, Kansas could not have obtained jurisdiction under this section of the statute.

Lastly, under § 452.450.1(4), jurisdiction may be exercised where it appears that no other state would have jurisdiction. Under the facts and circumstances herein, it cannot be said that it would have appeared to the state of Kansas that Missouri neither had jurisdiction or that Missouri would not exercise its jurisdiction. Thus, Kansas could not have obtained jurisdiction under this section of the statute.

There is no merit to appellants’ point (1) and upon the foregoing reasoning, said point is ruled against them.

Appellant’s point (2), that the Kansas decree is entitled to full faith and credit, can and is hereby taken up and summarily ruled against appellants. This result is obvious and must be reached because the Kansas court lacked proper jurisdiction to enter its decree (see point (1) above). Because that Kansas decree is of no validity, Missouri is not required to accord that decree full faith and credit.

For and upon the above reasons, the judgment herein is in all respects affirmed.

All concur.


text:
    In re the Marriage of Jerome C. BUNGART, Respondent, v. Connie L. BUNGART, Appellant.
    No. WD 35779.
    Missouri Court of Appeals, Western District.
    Dec. 18, 1984.
    Solbert M. Wasserstrom, Stephen K. Nordyke, Kansas City, for appellant.
    Robert C. Paden, John W. Dennis, Jr., Paden, Welch, Martin, Albano & Graeff, P.C., Independence, for respondent.
    Before TURNAGE, C.J., and LOWEN-STEIN and BERREY, JJ.
   ORDER

PER CURIAM:

Appeal from judgment changing custody of seven year old daughter from the mother to the father.

Judgment affirmed. Rule 84.16(b).


author: LOWENSTEIN, Judge.

text:
    Ray W. PAXTON, Appellant, v. AMERICAN FAMILY MUTUAL INSURANCE COMPANY, Respondent.
    No. WD 35695.
    Missouri Court of Appeals, Western District.
    Dec. 18, 1984.

      Jack N. Bohm, Richard E. Standridge, Buck, Bohm & Stein, P.C., Kansas City, for appellant.
    John E. Turner, Popham, Conway, Swee-ny, Fremont & Bundschu, P.C., Kansas City, for respondent.
    Before LOWENSTEIN, P.J., and SOM-ERVILLE and NUGENT, JJ.
   LOWENSTEIN, Judge.

Plaintiff-appellant, Paxton, was stopped at a traffic light at the intersection of Nichols Parkway and Ward Parkway in Kansas City when his automobile was rear-ended by Margaret Benson’s automobile. It was cloudy and raining on the morning of June 21, 1981 when the collision occurred. Paxton testified the traffic light was red when his car was struck; Benson said the light had already changed to green. Paxton said his foot was on his brake pedal, and his taillights were working right before impact. Benson said she saw no brake lights on Paxton’s car, and with the light green she thought he would be moving.

After the accident Benson’s car was towed away, while Paxton had a damaged bumper that cost $528.75 to repair. Paxton testified at trial that the collision caused him to be thrown forward snapping his neck, resulting in excruciating pain in the neck and shoulders. Since Benson had no liability insurance, Paxton made his claims for property damages and personal injury against the defendant-respondent, American Family Mutual Insurance Company, on the uninsured motorist coverage of his policy with the insurance company. The only claim at trial was for lost wages and physical injury. The jury returned a verdict for the insurance company.

On appeal, three of Paxton’s four points dealt with the defendant’s contributory negligence Jury Instruction Number 9 which read:

Your verdict must be for defendant if you believe:
First, plaintiff had his vehicle stopped on the travel portion of a public street during adverse weather conditions without giving an adequate warning of his intention to remain stopped, and
Second, plaintiff was thereby negligent, and
Third, such negligence of plaintiff directly contributed to cause any damage plaintiff may have sustained.

Paxton contends this not-in-MAI instruction was improperly submitted because MAI 17.20 was applicable. While it is clear that Rule 70.02(b) requires the use of applicable MAI’s to the exclusion of all others, MAI 17.20, which reads, “[defendant stopped his automobile in a lane reserved for moving traffic,” is not appropriate under the facts of this case. Here the initial stopping could not be deemed negligent, for Paxton was required by law to stop for a red light. If any negligence occurred, it dealt with Paxton having remained stopped.

Paxton improperly relies on Saunders v. Flippo, 639 S.W.2d 411 (Mo.App.1982), for the proposition that the insurance company has to make a clear showing that there was no prejudice to Paxton in using the not-in-MAI instruction. The rule stated in Saunders refers to a deviation of an applicable MAI. The same confusion arose in Van Dyke v. Major Tractor & Equipment Co., 557 S.W.2d 11, 13 (Mo.App.1977). This court said the rule is different when there is no applicable MAI so that a not-in-MAI must be given. In such a case Rule 70.02(e) applies, and the proponent must make sure the instruction be “simple, brief, impartial, free from argument, and shall not submit to the jury or require findings of detailed evidentiary facts.” Instruction Number 9 meets those requirements.

Paxton also contends that the elements of the first paragraph of the instruction were not supported by the evidence. He says there was no evidence of adverse weather conditions. However, both parties testified that it was raining and cloudy. This was enough to submit the issue to the jury. It was the jury’s perogative to decide whether the rain did or did not amount to an “adverse” condition. As to whether Paxton gave an adequate warning of his intention to remain stopped, there was contradictory testimony. The fact Benson said the light turned green, and she saw no brake lights was enough evidence on which to submit this issue. The submitted instruction actually benefitted Paxton by placing more elements of proof on the insurance company. Had the jury not determined the weather to be adverse under Number 9, they could not have found contributory negligence.

In fact, upon reviewing the record, Pax-ton’s main problem lay not with the issue of contributory negligence, but with proving damages. The only live testimony at trial came from Paxton and his chiropractor. (Benson’s testimony was read from her deposition.) The claim for $11,000.00 in lost wages was difficult to prove since Paxton was a self-employed traveling salesman. He claimed to be totally disabled from June 25th, the date of the accident, until August 17, 1981. Yet he took a trip from July 20 to July 30 from Kansas City to Wyoming and back and deducted the entire mileage from his income taxes as a business expense. Paxton admitted to calling on customers, but claimed those stops were just for “good will” and the trip was really for pleasure.

On direct and cross-examination Paxton testified to having regularly seen his chiropractor for about four years for back pain just prior to the accident. After the accident he claimed to be in extreme pain, yet was not hospitalized nor did he receive any medication. Though an orthopedic surgeon took x-rays of his neck and shoulders, this doctor did not treat Paxton. In fact the only treatment he received was from the chiropractor “manipulating” his back with his bare hands. The jury may well have believed Paxton was free from contributory negligence, yet awarded him no damages because they simply didn’t believe he’d been hurt.

Paxton’s third argument against Instruction Number 9 was that the court improperly relied upon Stigers v. Harlow, 419 S.W.2d 41 (Mo.1967), a case where the Missouri Supreme Court approved a not-in-MAI instruction in a wrongful death situation. There is nothing in the record to indicate that the court did in fact rely on Stigers. Even if it did, that would not amount to a reversible error. The important question is whether Rules 70.02(b) and (e) were properly followed, which this court has already answered in the affirmative. Although several of Paxton’s points on instructional error present a close case as to preservation, they nevertheless have been considered and ruled adversely to him.

The final point on appeal is that the insurance company should not have been allowed to argue a negative inference from Paxton’s failure to call Dr. Schecter as a witness. A plaintiff’s physician is presumed to be peculiarily available to him and thus, the defendant is generally allowed to comment on that physician’s failure to testify. Eickman v. St. Louis Public Service Co., 363 Mo. 651, 253 S.W.2d 122 (Mo.1952); Mathews v. Chrysler Realty Corp., 627 S.W.2d 314, 317 (Mo.App.1982). The only time such comment is prohibited is when the witness is “equally available.” Hills v. Boles, 583 S.W.2d 141, 145 (Mo. banc 1979). But “available” does not just mean accessible to subpoena. Trzecki v. St. Louis Public Service Company, 258 S.W.2d 676 (Mo.1953).

Paxton was sent to Dr. Schecter, an orthopedic surgeon, by his own attorney. X-rays were taken, but no further treatment was rendered. Paxton tries to argue that there was no indication that Dr. Schecter’s testimony would add any new information, and so was improper to make a negative comment. O’Donnell v. Heutel, 637 S.W.2d 377, 379 (Mo.App.1982). Had the orthopedic surgeon found a condition which favored Paxton's case, his testimony would have been far from repetitious. To the contrary, it would have made Paxton’s case more persuasive.

Thus, the trial court did not err in allowing the insurance company to make a negative inference from Dr. Schecter’s failure to testify because he was not equally available to both parties, nor would his testimony have been merely cumulative. This point does not call for a reversal.

The judgment of the trial court is affirmed.


author: HIGHERS, Special Justice.

text:
    Robert L. ANDERSON, Plaintiff-Appellee, v. DEAN TRUCK LINE, INC., and Excalibur Insurance Company, Defendants-Appellants.
    Supreme Court of Tennessee, at Jackson.
    Dec. 10, 1984.
    Robert M. Burton, Memphis, for defendants-appellants.

      Howard R. Paul, Memphis, for plaintiff-appellee.
   OPINION

HIGHERS, Special Justice.

This worker’s compensation case raises questions concerning the material evidence rule and the calculation of temporary total disability.

The plaintiff, Robert L. Anderson, a truck driver for Dean Truck Line, sought compensation for blindness in his right eye allegedly resulting from an injury occurring on May 24, 1979, while he was employed on defendant’s premises. The plaintiff testified that on that date something blew into his eye. The foreman helped plaintiff in an attempt to rinse the eye, applied eye drops and bandaged the eye. Plaintiff stated that later, “it felt like something popped in the eye. Then the pains all started in it real bad.” The plaintiff was sent to a hospital emergency room, sedated, and referred to Dr. Wood, an ophthalmologist, who had been treating the plaintiff since 1975 when a paint chip injured plaintiff’s right eye. Apparently from this injury, herpes keratitis developed in the right eye. According to Dr. Wood’s depositions, this disease weakened the eye making it more susceptible to injury.

When plaintiff was examined on May 24, 1979, Dr. Wood found that his right eye had been perforated. Dr. Wood stated that he could not say for certain whether the “something in the eye” caused the perforation, but he did state that “it would be difficult to deny that the foreign body must have played a role in the perforation of the eye.” The eye “burst” again three days later after plaintiff had returned to work. Beginning in September 1979, the plaintiff underwent a series of eye operations. On September 3, 1979, he had a corneal transplant. On June 14, 1983, plaintiff had a tarsorrhaphy and a conjunctival flap on July 25, 1983. The plaintiff now wears a cosmetic plastic shell over his eye. Between May 1979 and February 1983, plaintiff had seen Dr. Wood nearly eighty times.

In his deposition, Dr. Wood stated that the first corneal transplant was made necessary by the perforation which occurred on May 24,1979. Dr. Wood said that plaintiff had 20/200 vision qualifying him as legally blind for industrial purposes on his first visit in 1975. By 1979, his visual acuity deteriorated to 6/200 and this improved to 20/200. Currently, however, his vision is worse. As Dr. Wood put it, “if he can tell light from dark it would be lucky_ His eye now is non-functional visually.” Plaintiff’s vision was good enough with corrective lenses to pass the Department of Transportation test for truck drivers in 1977. Later, after the 1979 injury, he failed the exam twice.

In 1980, plaintiff continued working for Dean Truck Lines for about eight weeks. He stated that he could not do loading or dock work because of the pressure and strain put on the eye when lifting heavy loads. When the defendant told him not to come back until his eye problem was remedied, the plaintiff looked for work with several other trucking firms during 1981 and 1982. In 1983, he finally found employment for roughly six months.

The trial court found that the injury arising out of and in the course and scope of his employment on May 24, 1979, aggravated a pre-existing condition in plaintiff’s right eye, leading to its 100% disability. The question is whether the loss of sight in the right eye was caused by the normal progress of the pre-existing disease or whether it was aggravated by the May 1979 injury. We believe there is material evidence to support the finding of the trial court. Dr. Wood testified that a perforation or other injury could make plaintiff’s disease worse. He also stated that the accident probably played a role in the perforation of the eye. The record further indicates that the plaintiff’s eyesight declined after the injury. Although he was able to pass the Department of Transportation examination necessary to qualify as a truck driver in 1977, he was unable to pass the exam after the injury.

The defendant argues that the material evidence rule does not apply to this case. The material evidence rule binds this court to accept the trial court’s findings of fact in worker’s compensation cases where those findings are supported by any material evidence. See Gregg v. J.H. Kellman Co. Inc., 642 S.W.2d 715 (Tenn.1982); Liberty Mutual Insurance Co. v. Taylor, 590 S.W.2d 920 (Tenn.1979).

The defendant points out, however, that “[w]hile this Court is bound by the findings of the Chancellor on questions of fact, whenever there is any evidence to sustain the findings, we are not bound by the conclusions drawn by the Chancellor from undisputed facts, and may reach a different legal conclusion from that of the Chancellor on the same findings of fact.”

Wright v. Gunther Nash Mining Construction Co., 614 S.W.2d 796, 797 (Tenn.1981), quoting Insurance Company of America v. Hogsett, 486 S.W.2d 730, 733 (Tenn.1972). It is alleged that the facts in this case are undisputed and that therefore this court is free to reach its own conclusions from the record.

This argument, however, overlooks an elaboration of the quoted language which was made by this court in Davis v. Liberty Mutual Insurance Co., 214 Tenn. 287, 379 S.W.2d 777 (1964). In that case, it was explained:

It is only when the evidentiary facts are undisputed and no conflicting inferences respecting the ultimate fact can be drawn therefrom that the question becomes one of law for this Court. If reasonable minds might differ as to the conclusions to be drawn from undisputed facts, the conclusions reached by the Trial Judge are binding on this Court.

379 S.W.2d at 780. See also Greeson v. American Lava Corporation, 216 Tenn. 461, 392 S.W.2d 931 (1965); Sudduth v. Williams, 517 S.W.2d 520 (Tenn.1974).

In the case at hand, the defendant offered no testimony. The record is composed entirely of the depositions of Dr. Wood and the testimony of the plaintiff and his wife. The question before the Court is whether plaintiff’s disability resulted from the normal progress of a preexisting condition or whether plaintiff’s pre-existing disease was aggravated by the May 1979 injury. Thus, the issue is essentially one of causation and questions of causation are generally questions of fact. City of Lawrenceburg v. Nelson, 219 Tenn. 177, 407 S.W.2d 674 (1966).

Dr. Wood stated that plaintiff’s visual acuity in his right eye was 20/200 or worse when Dr. Wood first tested him in 1975. Dr. Wood also stated that plaintiff’s visual acuity was measured as low as 6/200 in 1979 before the May 24th injury but that it subsequently improved to 20/200. At the same time, a comparison of plaintiff’s performance on the Department of Transportation examinations, and Dr. Wood’s plain statement that the plaintiff's eyesight is now worse than before the May 1979 injury, support the finding that plaintiff’s eyesight has deteriorated. This proof, coupled with the statement of Dr. Wood that the May 1979 injury could have aggravated the diseased condition of plaintiff’s right eye, further supports the allegation that the May 1979 injury did in fact aggravate the blinding effects of plaintiff’s condition. Although the evidence presented by the deponent and by the witnesses is not self-eon-tradicting and is not disputed, reasonable minds might differ as to the inferences to be drawn from the evidence. The trial court found that the injury did in fact aggravate a pre-existing condition and according to the rule stated in Davis, supra, we find that there is material evidence to support the finding and that this Court is bound thereby.

The recognition that differing inferences could reasonably be drawn from the evidence on this case negates plaintiff’s argument for damages based on a frivolous appeal. In the cases citing the frivolous appeal statute, it is apparent that a factual or legal dispute will preclude an award of damages for frivolous appeals. Liberty Mutual Ins. Co. v. Taylor, 590 S.W.2d 920 (Tenn.1979); Davis v. Gulf Ins. Group, 546 S.W.2d 583 (Tenn.1977); Combustion Engineering Inc. v. Kennedy, 562 S.W.2d 202 (Tenn.1978); Zwick v. Jones, 589 S.W.2d 664 (Tenn.App.1979). In this case, there is a legal dispute as to whether the material evidence rule applies. This question in turn is resolved by the recognition that there is a dispute over the inferences to be drawn from the evidentiary facts. Damages for a frivolous appeal should therefore be denied.

Moreover, there can be no award of punitive damages against defendant. Although the statute does not expressly preclude it, this Court has held that punitive damages are not recoverable in worker’s compensation cases. Liberty Mutual Insurance Company v. Stevenson, 212 Tenn. 178, 368 S.W.2d 760, 764 (1963).

The defendant contends that because plaintiff began looking for work in 1981, he was not entitled to temporary total disability benefits after that date. Temporary total disability “refers to the injured employee’s condition while disabled to work by his injury and until he recovers as far as the nature of his injury permits.” Redmond v. McMinn County, 209 Tenn. 463, 354 S.W.2d 435, 437 (1962). Stated another way, “[tjemporary total disability benefits ... are terminated either by the ability of the employee to return to work or [by] the attainment of maximum recovery from his injury.” Brown Shoe Company v. Pipes, 581 S.W.2d 140, 141 (Tenn.1979); Simpson v. Satterfield, 564 S.W.2d 953 (Tenn.1978). Thus, when a plaintiff becomes able to work at any employment permitted by the nature of his injuries, temporary total disability ends at that time.

In this case, the plaintiff was employed after the first corneal transplant. He worked for approximately eight weeks in 1980. The last corneal transplant was performed in the summer of 1981, but the plaintiff did not work again until 1983 when he was employed by the Okolona Truck Leasing Company for approximately six months. In July of 1983 the conjuncti-val flap was done and plaintiff’s injured eye was encased in a plastic covering. The plaintiff did seek work continuously but without success during 1980, 1981 and 1982. As the trial court held, the plaintiff is not entitled to temporary total disability payments during the time that he was employed after the May 1979 injury. A.C. Lawrence Leather Company v. Loveday, 224 Tenn. 317, 455 S.W.2d 141 (1970). The fact, however, that he was endeavoring to find employment and that he eventually was successful indicates an ability to work and that he was not entitled to temporary total disability payments during all of this period. The failure of the trial court to exclude from coverage the time plaintiff was able to work as well as the time that he did in fact work was error. We cannot, however, recalculate the number of weeks for which plaintiff is entitled to temporary total disability. The record does not indicate precisely when the plaintiff reached maximum recovery and began looking for work. The matter is therefore remanded to the trial court for determination of this issue.

The judgment of the trial court is in all other respects affirmed. Costs are taxed to the defendant.

COOPER, C.J., and BROCK, HARBI-SON and DROWOTA, JJ., concur.


author: BROCK, Justice.

text:
    Lucille HOLDEN and Husband, Ronald Holden, Plaintiffs-Appellees, v. Dr. G.A. RANNICK, Defendant-Appellant.
    Supreme Court of Tennessee, at Knoxville.
    Dec. 26, 1984.

      Jerry S. Jones, David R. Denny, Johnson City, for plaintiffs-appellees.
    J. Paul Coleman, Walter Lee Price, Johnson City, for defendant-appellant.
   OPINION

BROCK, Justice.

This is a medical malpractice suit based on the doctrine of informed consent. The sole issue on appeal is whether the trial judge adequately performed his function as a thirteenth juror in approving the jury verdict in favor of the defendant.

The plaintiffs theory at trial was that her consent to undergo a simple mastectomy was invalid, because the defendant doctor obtained the consent from her without informing her that an alternate procedure, a subcutaneous mastectomy, was available and would produce better cosmetic results. The case was heard before a jury which returned a verdict for the defendant. The plaintiff filed a motion for new trial, asking the trial judge to weigh the evidence and find that it preponderated against the findings of the jury. The trial judge overruled the motion. The Court of Appeals reversed and remanded for a new trial, finding that the trial judge failed to perform his function as a thirteenth juror. We granted the defendant’s application to review the action of the Court of Appeals, and we now affirm.

The duty of a trial judge to act as a thirteenth juror in a civil trial in Tennessee is well established. The rule was described in Cumberland Telephone & Telegraph Co. v. Smithwick as follows:

“[T]his is one of the functions the circuit judge possesses and should exercise — as it were, that of a thirteenth juror. So it is said that he must be satisfied, as well as the jury; that it is his duty to weigh the evidence; and, if he is dissatisfied with the verdict of the jury, he should set it aside.”
112 Tenn. 463, 469, 79 S.W. 803, 804 (1904).

Where a trial judge has simply approved the verdict without comment, an appellate court will presume that he has adequately performed his function as a thirteenth juror. Central Truckaway System v. Waltner, 36 Tenn.App. 202, 217, 253 S.W.2d 985, 991 (1952). If reasons are given, “this court looks to them only for the purpose of determining whether he passed upon the issues, and was satisfied or dissatisfied with the verdict thereon.” Smithwick, supra, 112 Tenn. at 470, 79 S.W. at 805. If a trial judge, in discharging his duty as a thirteenth juror, makes comments which indicate that he has misconceived his duty as a thirteenth juror, an appellate court must reverse the trial judge and remand for a new trial. See Nashville, C. & St. L.R. Co. v. Neely, 102 Tenn. 700, 52 S.W. 167 (1899).

With the above stated principles in mind, we must examine the comments of the trial judge in overruling plaintiff’s motion for new trial to determine if he adequately performed his function as a thirteenth jur- or. During the hearing on that motion, the trial judge made the statements indicated in the exchange set forth below:

“THE COURT: Well, of course, Mr. Jones, the Court doesn’t substitute its judgment for that of the jury where the issue is fairly presented to the jury and in this case frankly I think it was. As I recall Dr. Rannick testified that this lady had an unholy and unnatural fear of having cancer.
“MR. JONES: He did.
“THE COURT: That she had had this cystic fribrosis [sic] disease for a good long while and that it was her insistence rather than his that the type surgery be done that was done. Again my recollection is that she had consulted with a plastic surgeon and that the plastic surgeon, I want to say Dhaliwal, is that, is that the one?
“MR. PRICE: That is correct, your Hon- or.
“THE COURT: Had actually come in before surgery and had marked her breasts showing where to cut and so forth with the cosmetics in mind that he was going to do some additional surgery later.
“MR. JONES: May I ask if your Honor agrees with the verdict of the jury?
“THE COURT: Yes, I do. The Court as I say does not substitute its judgment for that of the Plaintiff (sic) I would just as readily have agreed with the verdict the other way. The verdict neither way would have shocked the Court frankly. I thought the issues were very fairly put to the jury. I thought each side had a fair and full day in court and the jury made its decision and I approved the verdict, expressly approved the verdict so I respectfully overrule.”

The comments of the trial judge, considered as a whole, indicate that he misconceived his duty as a thirteenth juror. Although the trial judge said that he agreed with the verdict for the defendant, he indicated that he would also have agreed with a verdict for the plaintiff. That position is inconsistent with his duty to weigh the evidence and pass on the issues. If a trial judge properly weighs the evidence and passes on the issues, he will not find that the evidence does not preponderate in favor of the plaintiff because the verdict is for the defendant, but would preponderate in favor of the plaintiff if the verdict had been for the plaintiff.

The trial judge stated that he expressly approved the verdict. It appears from the context of that statement, however, that he approved the verdict because he felt that the case was fairly presented and he was not shocked by the verdict, rather than because he reached the same verdict as the jury after independently weighing the evidence and passing upon the issues. Twice the trial judge stated that the court does not substitute its judgment for that of the jury. Those statements reveal a mistaken belief on his part that he was under no duty to pass upon the issues.

Because the trial judge stopped short of making an independent decision on the issues presented by the case, and deferred to the judgment of the jury, he failed to perform his duty as a thirteenth juror. The Court of Appeals correctly reversed his decision and remanded the case ' for a new trial.

The judgment of the Court of Appeals is affirmed. Costs are taxed to the appellant.

COOPER, C.J., and FONES, HARBISON and DROWOTA, JJ., concur.


author: HARBISON, Justice.

text:
    In re ESTATE OF Louis Frank MONTESI. Rita MONTESI, Plaintiff-Appellee, v. ESTATE OF Louis Frank MONTESI, Defendant-Appellant.
    Supreme Court of Tennessee, at Jackson.
    Dec. 26, 1984.

      David E. Caywood, Thomas T. Woodall, Memphis, for plaintiff-appellee.
    Michael A. Robinson, Steven H. McCles-key, Memphis, for defendant-appellant.
   OPINION

HARBISON, Justice.

In this case Rita Montesi, estranged wife of the decedent, Louis Frank Montesi, filed a dissent from the decedent’s will and claimed her elective share as a surviving spouse pursuant to T.C.A. §§ 31-4-101 through 105. The Probate Judge sustained objections filed by the Executor upon the ground that Mrs. Montesi was not a “surviving spouse” because of a prior property settlement agreement entered into between her and the decedent. See T.C.A. § 31-1-102(b)(3).

The Court of Appeals reversed and this Court granted further review. We are of the opinion that the Court of Appeals correctly construed and interpreted the statutory provisions involved. However, we are also of the opinion that all property rights of Mrs. Montesi are governed by the settlement agreement and that she is not entitled to dissent and claim an elective share.

A. The Factual Background

There is no dispute concerning the relevant facts in this case. Mr. and Mrs. Mon-tesi were married on December 27, 1975. This was his fourth marriage and her second. He was fifty-seven years of age and she was twenty-nine. He had five children by a previous marriage, and they are the beneficiaries named in the will from which Mrs. Montesi has filed a dissent.

Mr. and Mrs. Montesi separated during the fall of 1977. On October 26, 1977, twenty-two months after their marriage, they executed the settlement agreement at issue in this case.

In the probate court Mrs. Montesi testified that the parties had separated because Mr. Montesi was an alcoholic and that when he drank he became violent and threatened her. She said that he told her on several occasions that if she wished to leave him, she could do so but that he would not permit her to take any property with her and that she would have to go empty-handed.

It was under those circumstances that she consulted with an attorney in Memphis, who represented the large grocery store chain in which Mr. Montesi was a substantial stockholder. This attorney drafted the agreement which the parties executed.

Mrs. Montesi testified that Mr. Montesi had apologized to her and stated that he was sorry for his past misconduct and that he was going to stop drinking. He professed that he was still fond of her and sought a reconciliation.

Following execution of the agreement the parties did become reconciled, and Mr. Montesi transferred very substantial assets, both real and personal, to Mrs. Mon-tesi, either outright or as a tenant by the entirety. The terms and provisions of the agreement will be discussed in more detail subsequently.

Mrs. Montesi testified that at the time of the execution of the October 1977 agreement, Mr. Montesi already had in effect a will leaving her one-half of his estate. She said that the parties had discussed this in March 1977 because Mr. Montesi told her that if he did not include her in his will in this fashion, she would only receive a “child’s share” since he had five children by a previous marriage.

The reconciliation between the parties continued for about two and one-half years, or until May 1980. Mrs. Montesi testified that the decedent continued to drink from time to time and that when he did so he would threaten her. She said that the threats became more serious in May 1980, so that she separated from him. On June 3, 1980 she filed a complaint for divorce. She testified that she did so because Mr. Montesi would not provide her with funds or with household furnishings. She testified that he harassed her at her work. She called upon him to make payments to her as provided under the terms of the settlement agreement, but he refused to do so. Accordingly she sought enforcement of that agreement in the divorce proceedings, and she was awarded a pendente lite support decree requiring monthly payments in the same amount as those provided in the settlement agreement. The divorce court, however, expressly refrained from attempting to enforce the agreement pendente lite.

Mrs. Montesi testified that she left Mr. Montesi on May 16, and that thereafter he was hospitalized until the latter part of June 1980 for alcoholism. In October 1980 his attorneys filed an answer and counterclaim in the divorce proceedings, and in this document Mr. Montesi attempted to repudiate the 1977 settlement agreement.

Despite this, however, Mrs. Montesi testified that she and Mr. Montesi “started seeing each other and started spending time together and going out” after he was released from the hospital. She testified:

“A. ... In the daytime we would play golf and go to the show and stuff like that during the day, and at night we went out to dinner and that sort of thing. We just spent our time together.
Q. Did you ever travel with him?
A. Oh, yes.
Q. When did you travel with him?
A. Well, let’s see. He got out of the hospital the last of June, so we went to New York in December, and we stayed up there for, I think, ten days.
Q. Now, is this December 1980?
A. Yeah.
Q. Did you live together as husband and wife during that trip?
A. Oh, yes.
Q. All right. Following that trip did you travel with him?
A. Yes. Then in June, I think it was, of ’81 we went to the Breakers Hotel in Palm Beach and we stayed there for another week or ten days. And then in November we went back to New York and stayed at the Plaza for another week.
Q. Is this November 1981?
A. Yeah. November. And then in December we stayed a couple of days at the Peabody, of ’81.”

Mr. Montesi died a few months later, on March 3, 1982. The will from which Mrs. Montesi sought to dissent was dated July 12, 1980, not quite two months after the time of their separation, and about a month after she had filed her divorce action.

The divorce case was never tried, and apparently it remained dormant after the pendente lite hearing. Mr. Montesi paid Mrs. Montesi the pendente lite support award, in the amount of $1,000 per month, until his death. As stated previously, this was the same monthly support provided for in the settlement agreement. In addition Mr. Montesi gave his wife numerous gifts. She testified that in December of 1981 he bought her a new fur coat, and that he was constantly urging her to resume their marriage relationship. Just before he died he offered to purchase an automobile for her. She testified:

“He wanted me to come back home. There is no doubt of that.”

She testified, however, that he was not able to stop drinking except for short periods of time. At the time of Mr. Montesi’s death, Mrs. Montesi lived separately from her husband and had in her possession a number of items of personal property which she said belonged to him, including his 1981 Cadillac automobile.

B. The Settlement Agreement

This document, upon which resolution of the litigation turns, is entitled, “RECONCILIATION AND PROPERTY SETTLEMENT AGREEMENT.” It consists of a little over three pages, and was executed by Mr. and Mrs. Montesi on the fourth page. Their signatures were witnessed. Attached to it was a thirteen-page schedule of items of personal property, all but a few of which were to be delivered to Mrs. Mon-tesi and were to be her sole property thereafter. This portion of the agreement was carried out, and insofar as the record reveals Mrs. Montesi has all of these items in her possession. The value of this extensive list of personal property is not shown in the record, but an examination of the contents of the list reveals that the total value of the property transferred to her under this schedule must have been substantial.

The agreement contains four paragraphs of recitals, stating that the parties were estranged and separated, and that each was contemplating a divorce from the other. It recites that the parties desire to become reconciled and jointly to attempt to preserve their marriage. It then continues:

“WHEREAS, disputes and uncertainties relating to property are among the principal causes of controversy and mistrust between the parties and
“WHEREAS, it is their mutual desire to settle property rights as between the parties in the event of a successful reconciliation or in the event that reconciliation fails and renewed separation and/or divorce between the parties occurs.”

The agreement recites that in consideration of these premises and in consideration of the mutual promises and obligations thereafter undertaken, the parties had agreed to the following:

1. That they would resume cohabitation promptly following execution of the agreement.

2. That the husband would within five days convey to his wife an estate as tenant by the entirety in the residence of the parties situated at 2238 Hickory Crest, Memphis, Tennessee. He further agreed that when he became sixty-five years of age he would convey all of his right, title and interest in the residence to the wife.

3. Mr. Montesi agreed to execute and keep in force a valid will providing that if the parties were living together as husband and wife at the time of his death, she should receive not less than one-half of his net estate.

4. Mr. Montesi agreed that within five days following execution of the agreement he would transfer to his wife 1000 shares of stock in the grocery corporation in which he was a large stockholder. On each anniversary date following execution of the agreement, he agreed to convey an additional two hundred fifty shares of stock, provided that upon the anniversary date the parties were then living together as husband and wife. As long as they continued to live together as spouses, Mrs. Mon-tesi agreed to execute and keep in effect a proxy under which Mr. Montesi could vote the shares and receive all dividends thereon, to be available to him for the general living expenses of the parties. The agreement stated, however, that in the event of separation or divorce, Mrs. Montesi could revoke the proxy and receive for her separate use any dividends on the shares thereafter.

5. “In the event of failure of the reconciliation and subsequent separation of the parties,” it was agreed that Mr. Montesi would be privileged to live in the residence of the parties for a period of up to six months, during which time the residence would be listed for sale. The net proceeds from the sale were to be divided equally between the parties. All of the household items, including china, crystal and silver, were to become the property of Mrs. Mon-tesi, and the extensive list of these was attached as a schedule, as above stated.

6. It was agreed that in the event of a separation lasting for as long as thirty days, at any time subsequent to execution of the agreement, Mr. Montesi would begin paying the sum of $1000 per month to Mrs. Montesi “while said separation continues.” The payments were to be made for the period of the separation, not to exceed sixty months following the first payment. They were to cease upon remarriage of Mrs. Montesi during the sixty month period.

7. This paragraph dealt with the eventuality of divorce and provided as follows:

“In the event of separation for as long as thirty (30) days following this reconciliation, the parties are mutually agreed that irreconcilable differences exist between them and either may obtain a divorce from the other upon such grounds or such other grounds as may exist at law and in the event of any such divorce at the instance of either party, the property rights of the parties shall have been fully settled and satisfied by the performance of the obligations hereinabove set out and neither party shall have any further or other claim against the other as an incident of such divorce or otherwise.”

8. It was agreed that the document should be governed by the laws of Tennessee, “and more particularly as expressed in the opinion of the Supreme Court in Hoyt v. Hoyt, 213 Tenn. 117, 372 S.W.2d 300, a copy of which is annexed hereto and made an exhibit to this agreement.” The document concluded with an acknowledgment by both parties that they had had opportunity and encouragement to obtain independent legal counsel as to the legality and effect thereof.

C. Proceedings Below

After a full hearing on the objections filed to Mrs. Montesi’s dissent, including a stipulation of facts and oral testimony, the Probate Judge filed a memorandum opinion. He held:

“... The agreement was a valid separation agreement which stated that it was in settlement of all questions and claims concerning the property of the parties.
“In the Reconciliation and Property Settlement Agreement, Rita Montesi received a substantial settlement of the parties’ property which had been consummated in almost all respects.”

He concluded that the agreement satisfied all of the property rights of the parties and that Mrs. Montesi was therefore not entitled to dissent from Mr. Montesi’s last will.

The Court of Appeals reversed. It concluded that the transfer of the residence, personal property and stock to Mrs. Mon-tesi “were to be met upon reconciliation and were not in material part otherwise conditioned.”

The Court of Appeals further found that the agreement provided for the disposition of the property of the parties in the event of a divorce, but did not make a permanent disposition of the rights of Mrs. Montesi in the event the reconciliation failed but that no divorce was obtained. The court stated:

“It is our interpretation of the agreement that the parties intended that if the reconciliation was unsuccessful, the agreement would terminate and settle all marital rights upon the happening of that eventuality and a divorce. The parties did not intend that it was to be a settlement of all rights in any event, but only was to operate as such in both events. From a reading of the entire instrument it is evident to this Court that the parties never conceived of another separation without a divorce.”

The Court of Appeals concluded:

“We hold that the reconciliation agreement intended to settle or terminate all matters conditioned upon a separation and a divorce. Since the divorce did not occur, and the parties were married at the time of the husband’s death, there was no agreement that unconditionally settled all marital rights.”

The Court of Appeals also indicated that Mr. Montesi’s estate was very nearly es-topped because of his attempt to repudiate the agreement in the divorce proceedings.

D. Our Conclusions

As discussed in the opinions of both courts below, reconciliation agreements between married parties who are separated have been held valid in this state and not contrary to public policy. This was emphasized in the agreement itself, because express reference was made to the decision of this Court in Hoyt v. Hoyt, 213 Tenn. 117, 372 S.W.2d 300 (1963), and a copy of the opinion in that case was attached to the agreement itself. In that case the trial court had held that such an agreement was not contrary to public policy and was enforceable. After granting review, this Court affirmed, stating that the agreement was not necessarily conducive to divorce or collusive with respect to divorce proceedings. The Court said:

“We have a husband and wife, mature in age, each having been previously married, each having children from previous marriages, who have now reached the point in their own marriage where the wife has a divorce action pending against the husband. Under such circumstances these parties, each represented by counsel, have begun negotiations to the end this contract was executed, which had the apparent present intention of effecting a reconciliation of the parties. It is apparent from the contract property was one of the principal causes of friction between the parties, and by this contract they attempted to settle this matter between themselves for the present and the future.” 213 Tenn. at 124-125, 372 S.W.2d at 303.

The Court held that in the absence of fraud or other vitiating circumstances, an agreement entered into by separated spouses was not in violation of the public policy of the state, even though it contained terms which might make provision for future divorce or separation. The Court emphasized that the wife, who was seeking to repudiate the agreement, had received assets in the amount of $45,000 under the terms of the agreement.

In the present case the Court of Appeals was called upon to construe the provisions of T.C.A. § 31-1-102, enacted as part of 1977 Tenn.Pub.Acts, ch. 25. This statute contains provisions concerning the effect of divorce or annulment upon persons who might otherwise qualify as a surviving spouse. Subsection (b) provides that a surviving spouse does not include:

“... (3) A person who was a party to a valid property settlement agreement or a valid proceeding concluded by an order purporting to terminate all marital property rights.”

Although the grammar is difficult and there is no punctuation within this clause, the Court of Appeals held that only where a property settlement agreement purported to terminate all marital rights would the survivor be precluded from asserting his or her right to dissent. It is insisted by the Executor that the phrase “purporting to terminate all marital property rights” modifies only the words “a valid proceeding concluded by an order” and does not modify the term “a valid property settlement agreement.” In other words, it is insisted by the Executor that any valid property settlement agreement between spouses constitutes a waiver of all rights as a surviving spouse.

The Court of Appeals held otherwise, and we are of the opinion that that decision was correct. There might be valid property settlement agreements between spouses executed for limited purposes, and some of these could affect only a small portion of the total assets of the parties. We are of the opinion that only if the agreement purports to conclude all marital rights and to effect a full settlement thereof under all contingencies would it have the effect of waiving the right to dissent or other rights of a surviving spouse.

We are of the opinion, however, that it was the intention of the parties in this ease to effect such a settlement, and that the settlement was not conditioned solely and alone upon the obtaining of a divorce. We agree with the Court of Appeals that the terms of paragraph 7 of the agreement, dealing with divorce, clearly provide that if a divorce is obtained by either party, all of the rights to which either party is entitled are spelled out and set forth in the agreement itself.

It is conceded by Mrs. Montesi that had the reconciliation between the parties been permanent, the agreement did effect a full settlement. She was to receive one-half of the net estate under the will, as well as the residence by survivorship, together with all of the personal property and stock transferred to her.

It is her insistence, however, that all of these transfers were made to her in consideration of the reconciliation, and that no provision whatever was made for her in the event of Mr. Montesi’s death during a renewed separation without a divorce. The Court of Appeals so held. We are unable to construe the agreement to this effect.

In the first place, we find nothing in the agreement stating that the transfers to Mrs. Montesi were made solely in consideration of the reconciliation. They were made to her outright and in all events as a part of the entire agreement. She was made a tenant by the entirety in the residence — an estate which, by its very definition, carries a right of survivorship if Mr. Montesi were to die first. This has occurred, and we assume that she has received the residence, said to be valued at about $140,000 for estate tax purposes. In the second place she was to receive substantial transfers of stock. These were carried out, and indeed were greater than called for in the agreement. Mr. Montesi transferred to her 1000 shares immediately, 250 shares on the first anniversary of the agreement and 500 shares on (he second anniversary. She thus received 1750 shares of stock in the grocery, said to be valued at over seventy dollars per share for estate tax purposes, or about $123,000. She received all of the extensive personal property listed in a thirteen-page schedule, as previously stated, and all of this property was to be hers outright, whether there was a separation or a permanent reconciliation. Further, it was agreed that in the event there was a further separation between the parties lasting for as much as thirty days, she was to receive $1000 per month for a period up to five years. This was to terminate at the end of five years, whether the parties had been divorced or not.

As quoted previously, at its very inception the agreement provided that it was executed out of the mutual desire:

“to settle property rights as between the parties in the event of a successful reconciliation or in the event that reconciliation fails and renewed separation and/or divorce between the parties occurs.”

The various transfers of property made to Mrs. Montesi, estimated at over $200,000 not including the value of the personal effects, were not made solely in consideration of the reconciliation but were an integral part of the entire agreement. She was provided for in the event of his death, both by transfer of the residence to a sur-vivorship estate and by transfer of virtually all of the tangible personal property and of stock having a very substantial value.

If the reconciliation had remained permanent, Mr. Montesi had made further provision for Mrs. Montesi by his will as required. He did not change this until after they had separated and she had sued for divorce. In the event the reconciliation failed and there was a separation at the time of his death, she was entitled to retain all of the assets he had transferred into her control. Upon their separation, she was entitled to revoke the proxy and to exercise control of the corporate shares which already stood in her name.

We are of the opinion that the probate court correctly construed the agreement and that it should be carried out as written. We find no basis for an estoppel on the part of either of the parties. The divorce court did not rule upon the validity of the agreement, and no transcript of the testimony heard by the divorce court has been preserved. Mrs. Montesi insisted in the divorce proceedings that the agreement did represent a full and equitable settlement of her marital rights, and she sought its enforcement. She concedes that she would not have been entitled to anything else from Mr. Montesi in the event of a divorce but insists that she is entitled to much more than the agreement has already provided for her in the event that there was a continued separation without a divorce. We cannot so construe the agreement, because we do not think that this was the intention or expectation of either party.

We find no basis for an estoppel against Mr. Montesi. It is true that he sought to repudiate the agreement because he challenged its legal effect and also claimed duress, coercion or collusion. There was no factual or legal finding to this effect in the divorce proceedings, and his alleged testimony as to his own legal conclusions or opinions is certainly not binding on his executor. The cases cited by the Court of Appeals dealt with situations where there had been an adjudication in one case and an attempt to avoid that adjudication in another or where one entitled to make an election of remedies had done so in an irrevocable manner. That is not the situation here.

We are of the opinion that the probate court correctly held that the agreement effected a full settlement of all marital property rights of Mrs. Montesi. It was suggested by counsel for Mrs. Montesi that Mr. Montesi had failed to carry out his obligations or to comply fully with the agreement. If so, or to such extent as this can be shown, Mrs. Montesi is free to proceed on an alternate claim which she has filed against the estate seeking full enforcement of the agreement.

The judgment of the Court of Appeals is reversed and that of the Probate Court is reinstated. The cause is remanded to the Probate Court for such further proceedings as may be necessary. In our discretion we tax all costs of these proceedings to the estate.

COOPER, C.J., and FONES, BROCK and DROWOTA, JJ., concur.

      . Tidwell v. Chattanooga Boiler & Tank Co., 163 Tenn. 420, 43 S.W.2d 221 (1931)

      . E.g., Montlake Coal Co. v. Chattanooga Co., Ltd., 137 Tenn. 440, 193 S.W. 1057 (1917). This and other authorities cited by the Court of Appeals were decided before adoption of Rule 8.05(2) T.R.C.P. expressly permitting alternative pleadings "regardless of consistency."


author: FONES, Justice.

text:
    Loretta BROOKS, Appellant, v. UNITED UNIFORM COMPANY and the Travelers Insurance Company, Appellees.
    Supreme Court of Tennessee, at Jackson.
    Dec. 31, 1984.

      B.J. Wade, Gerber, Gerber & Agee, Louie Polk, Gerber, Gerber & Agee, Memphis, for appellant.
    George T. Wheeler, Jr., Harris, Shelton, Dunlap & Cobb, Memphis, for appellees.
   OPINION

FONES, Justice.

The sole issue in this worker’s compensation case involves plaintiffs effort to obtain reimbursement of expenses and attorney’s fees under T.R.C.P. 37.03, as a sanction against defendant for objecting to certain requests for admissions of facts under rule thirty-six.

Plaintiff sought recovery of benefits arising from two separate accidents, one alleged to have occurred on September 23, 1982, and the other alleged to have occurred on October 18, 1982. At the conclusion of the trial, the court found that plaintiff did not prove that the alleged injury of September 23 was sustained in the course and scope of her employment, and that plaintiff did not comply with the statutory requirements regarding medical treatment and expenses. The trial court, therefore, denied worker’s compensation benefits as to the alleged September 23 accident. The trial court, however, held that the October 18 injury was compensable under the Worker’s Compensation Act and awarded medical expenses, but the court found that plaintiff was not entitled to any temporary or permanent disability benefits.

Plaintiff filed a motion for expenses and attorney’s fees under T.R.C.P. 37.03, for failure to admit matter requested under T.R.C.P. 36. The trial court heard, and denied, plaintiff’s motion. Plaintiff did not file a transcript of the evidence adduced at the trial on the merits of the case, nor did she file a transcript of the hearing on the rule thirty-seven motion.

An examination of the technical record reveals that plaintiff filed three separate requests for admissions of fact. Defendant answered the requests, admitted some of the requested matters, denied others, and objected to certain requests that related to medical causation, on the grounds that they called “for the defendant to admit or deny the truth of hearsay statements or documents, ... to admit or deny the medical opinion of a witness, and ... to admit or deny matters not within the knowledge of the defendant or readily obtainable by it.”

Plaintiff sought reimbursement for the deposition fees of two doctors, the court reporter’s expense for taking the depositions, and an attorney’s fee for the preparation and taking of two depositions on the theory that defendant’s objection to the medical evidence it was requested to admit required plaintiff to take the depositions of the two doctors for proof at trial.

Tennessee Rules of Civil Procedure 37.03 provides:

If a party fails to admit the genuineness of any document or the truth of any matter as requested under Rule 36, and if the party requesting the admissions thereafter proves the genuineness of the document or the truth of the matter, he may apply to the court for an order requiring the other party to pay him the reasonable expenses incurred in making that proof, including reasonable attorney’s fees. The court shall make the order unless it finds that (1) the request was held objectionable pursuant to Rule 36.01, or (2) the admission sought was of no substantial importance, or (3) the party failing to admit had reasonable ground to believe that he might prevail on the matter, or (4) there was other good reason for the failure to admit. (Emphasis added.)

Rule 37.03 expressly provides for three specific grounds for the court to deny the motion for expenses and one general discretionary ground. 4A J. Moore, W. Taggart & J. Wicker, Moore’s Federal Practice ¶ 37.04 (2d ed. 1976) has noted that the “good reason” language of Rule 37(c) (the identical federal counterpart of T.R.C.P. 37.03) leaves the matter “largely in the discretion of the trial court.” See Popeil Brothers, Inc. v. Schick Electric, Inc., 516 F.2d 772, 777 (7th Cir.1975).

On appeal, the exercise of discretion by a trial court in imposing sanctions will not be disturbed in the absence of an affirmative showing of abuse. See Holt v. Webster, 638 S.W.2d 391, 394 (Tenn.App.1982).

The order denying plaintiffs motion recited that it was heard upon the “entire record,” which we do not have before us, and the order failed to delineate the basis for the trial judge’s denial.

Not only is the record brought to this Court devoid of any matter upon which an abuse of discretion can be predicated, but it facially shows that the matters objected to by defendant and relied upon by plaintiff as requiring reimbursement for her medical testimony, involved expert opinion which is not subject to discovery under T.R.C.P. 36, for the elementary reason that it is not fact.

Defendant has moved this Court for an award of damages for a frivolous appeal under T.C.A. § 27-1-122. We think this is an appropriate case for such an award. There are three deficiencies on the part of plaintiff in the prosecution of this appeal. The appeal is patently meritless on the face of the record, for the reason stated, but if that threshold deficiency had not been fatal to plaintiffs appeal, we could not have reached the merits of plaintiffs contention because plaintiff failed to bring to this Court the entire record which the trial judge said he took into consideration in passing upon the motion; and last, plaintiff failed to insist that the trial judge specify which of the four grounds delineated in T.R.C.P. 37.03 he applied in denying plaintiffs motion.

The judgment of the trial court is affirmed. The case will be remanded to the trial court for an assessment of damages under T.C.A. § 27-1-122. Costs are assessed against plaintiff.

COOPER, C.J., and BROCK, HARBI-SON and DROWOTA, JJ., concur.


text:
    Dr. Coby SMITH and Lee V. Powell, Appellants, v. STATE TECHNICAL INSTITUTE AT MEMPHIS, et al., Appellees.
    Supreme Court of Tennessee, at Jackson.
    Dec. 31, 1984.

      John A. Donald, Memphis, for appellants.
    William M. Leech, Jr., Atty. Gen., R. Stephen Doughty, Deputy Atty. Gen., Nashville, for appellees.
   OPINION

FONES, Justice.

This civil action arises under the teachers tenure law applicable to state special schools, promulgated by the State Board of Education pursuant to authorization contained in Public Acts of 1967, chapter 210, codified as T.C.A. § 49-5-515, and is before this Court for review pursuant to T.C.A. § 49-5-513(i), which provides that appeals by tenured faculty upon dismissal “shall be heard on the transcript of the record from the chancery court.”

Appellants, Dr. Coby Smith and Mr. Lee Powell, were tenured administrative employees of State Technical Institution at Memphis [hereinafter STIM]. Dr. Smith was Division Head, Planning and Development, and he coordinated and implemented various programs at STIM, calling on and being apprised of the needs of local businesses and developing programs to meet the needs of those businesses. Mr. Powell served as Department Head of Community Relations, and his duties included calling on industry and public and private organizations for the purpose of establishing training classes in order to meet the needs of these organizations for qualified personnel.

Mr. Charles Whitehead, President of STIM at the time of trial, and Dr. Warner Dickerson, former Director of Administrative Affairs, testified that prior to the notification to appellants on April 28, 1980, that their positions were to be abolished, it had become apparent to the STIM administration that funds appropriated by the General Assembly for fiscal year 1980-81 would be insufficient to meet all anticipated expenses. Governor Alexander had initially submitted a budget to the Legislature that President Whitehead believed would be sufficient to maintain the status quo with respect to the number of staff at STIM. A second budget subsequently submitted to the Legislature, however, significantly reduced the proposed appropriation for STIM. The final appropriations bill provided for a $64,100 increase in funding for fiscal year 1980-81 and mandated a reduction in force statewide of 3,000 positions.

President Whitehead concluded that with mandatory pay increases and increased operating costs due to inflation, the modest increase in funding approved by the General Assembly would not be sufficient to maintain the existing number of staff at STIM. To alleviate these financial constraints, President Whitehead instructed his executive committee members to recommend positions in their respective divisions that could be eliminated and without which STIM could still function efficiently. Included among the nineteen recommended positions that could be eliminated were the positions occupied by appellants. Not only were appellants’ positions eliminated, but their respective divisions were also abolished, with the duties previously performed in their positions being divided among the remaining staff, some of whom were non-tenured personnel in other departments.

Appellants first assert that the retention of these non-tenured personnel was improper, and that appellants, as tenured personnel, should be allowed to “bump” these employees from their positions. It is important to note that at the time these decisions that affected appellants were made, the only written policy statement of the State Board of Education with respect to the method of selection of positions to be abolished was contained in Tennessee Department of Education Rule 0520-2-2-.09, adopted by the Board pursuant to T.C.A. § 49-5-515. Rule 0520-2-2-.09 provides that:

No teacher shall be dismissed, demoted, or suspended except as provided in these rules and regulations. The cases for which a teacher may be dismissed are as follows: incompetence, inefficiency, neglect of duty, conduct unbecoming to a member of the teaching profession, and insubordination. A teacher’s or administrative officer’s services may be terminated at any time in case his office or position shall be discontinued. (Emphasis added.)

Appellants contend, however, the emergency rules promulgated by the State Board of Education are controlling, and the emergency rules mandate that a tenured teacher be given preference over a non-tenured teacher when budgetary considerations require abolition of positions. The emergency rules specifically state that the effective dates of the rules are from June 24, 1980 to October 20, 1980. Appellants were given notice by STIM that their positions were to be abolished on April 28, 1980, and the Board approved the abolishment of the positions on June 13, 1980. Therefore, the emergency rules were only effective subsequent to the date that the Board acted to approve the recommendation by STIM. Even if these rules were to be given retroactive effect, STIM and the Board acted properly in their selection of the positions to be abolished under the applicable provisions of the rules. Emergency Rule 0520-2-3-01(1) provides that: “If the reduction in force is due to budgetary requirements the priority for selecting positions to be discontinued is in the following order: (a) Administrative personnel, (b) Non-teaching professionals, (c) Clerical and support personnel, [and] (d) Teaching faculty.” Furthermore, the factors outlined in 0520-2-3-01(4) of the Emergency Rules were considered before the decision as to the necessary abolishment of positions was made. There is nothing in the record that indicates STIM had anything other than “sufficient, just, and non-discriminatory reasons” for the bona-fide elimination of the positions which appellants held, and its action was, therefore in accord with Department of Education Rule 0520-2-2-01(10) and T.C.A. § 49-5-501(1).

Appellants also assert that STIM and the State Board of Education violated principles of fundamental fairness by retaining certain- non-tenured personnel in other functional areas, and in support of their contention they rely on State ex rel. Chapdelaine v. Torrence, 532 S.W.2d 542 (Tenn.1975). In Chapdelaine, a tenured university professor challenged his dismissal without a hearing and sought back pay and reinstatement. The Court stated:

When any educational institution is required for any reason to reduce its teaching force, a decent regard for the spirit and purpose of the tenure laws and for fundamental fairness demands that nontenured teachers be first dismissed followed by tenured teachers in the order of their seniority, with due regard being given to certifications and other controlling circumstances. 532 S.W.2d at 549.

Chapdelaine is, however, distinguishable from the circumstances of the present case. The Chapdelaine holding was limited to those situations in which the statutorily required hearing was denied or in which a teacher was terminated without written charges. Neither such condition is present in the instant case. Furthermore, plaintiff in the Chapdelaine case was a faculty member in the mathematics department of Tennessee State University, whereas plaintiffs in this case were administrative personnel who were not involved in the day-today teaching of the curriculum offered at STIM. The Court in Chapdelaine, even though back pay was awarded, declined to order reinstatement, specifically noting the fact that “budgetary limitations forced a decrease in personnel.” 532 S.W.2d at 549. The apparently broad directive in Chapde-laine regarding priority for tenured instructors was also qualified by language of the Court that “other controlling considerations” may be present, and the expansive interpretation that appellants attempt to give to the Chapdelaine decision is not merited under the facts of this case.

Appellants also argue that they should have been given preference for any position at STIM that was to be filled during the current school year or the school year immediately following their termination, if such person meets the minimum requirements for such position. State Board of Education Rule 0520-2-3-01(5). Although the rule does provide this preferential treatment, there was unrebutted evidence that there were no vacant positions during the 1980-81 school year for which appellants possessed the necessary qualifications. Although a position held by a Mr. Swearengen (similar to the position that had been occupied by Mr. Powell) became vacant, that position could not be filled because of an impoundment of funds by the Tennessee Department of Finance and Administration, which necessitated still further staff reductions by STIM. With respect to an English teaching position held by a Ms. Shotwell, the record reflects that her employment was justified as she was already a tenured faculty member at STIM, with more seniority than either of appellants. Furthermore, she was qualified for this position, and neither of appellants possessed the required qualifications for this position. Finally, the filling of Dr. Dickerson’s position in the fall of 1981 occurred during the 1981-82 school year, after the expiration of the time period during which appellants, by Board rule 0520-2-3-01(5), would be given preference.

As noted in Potts v. Gibson, 225 Tenn. 321, 469 S.W.2d 130 (1971), review of the dismissal of a tenured teacher is de novo with a presumption of the correctness of the chancellor’s decision unless the evidence preponderates against the findings of the chancery court. The evidence in this case does not preponderate against the chancellor’s findings, and we must, therefore, affirm. Costs are adjudged against plaintiffs.

COOPER, C.J., and BROCK, HARBI-SON and DROWOTA, JJ., concur.

      . Mr. Powell was the only person in his department. Dr. Smith’s division consisted of only himself and his secretary.

      . Appellants were terminated during the school year 1979-80, albeit at the very end of that year, and they do not contend that any positions were available during that period.