*1 argues an requiring filed a motion “for the The this is a Order wife frivolous plaintiff personal appeal. appeal do to be to turn over those items not find required pursuant that she was do the frivolous. 4, Opinion of 1996.” Court’s October On judgment of the We affirm trial court 21, 1997, May a husband filed motion respects. in all are Costs assessed to hearing a “to determine the value that the appellant and this case is remanded to the may
plaintiff owe for her failure to turn over trial court. respective property all of the that the defen- pursuant dant was to receive to the various GODDARD, Presiding M. HOUSTON ...” Court’s Orders INMAN, Judge, WILLIAM H. Senior Judge, concur. 28, hearing July A was held on 1997 to proper- value of determine the the husband’s
ty by not returned the wife. The trial court’s August part: states in
order dated having
the Court heard the statements of
counsel, testimony of the and their whole,
witnesses and the record as a from accordingly
all of which it is ORDERED KINARD,
John Anderson Plaintiff/Appellee, defendant, King, 1. That the David M. against hereby Judgment awarded a
plaintiff, King Ann in the amount of KINARD, Defendant/Appellant. Linda being up made of for the $511.03 $150.00 Tennessee, Appeals Court failure a to return sofa and $361.33 Section, Middle at Nashville. discretionary costs for costs ex- hearing penses cause. of this Aug. 1998. Aug. Granting Rehearing apparent Order
The thrust of hus appeal argument band’s is that the trial Appeal Applications for Permission court failed to award him sufficient credit for by Supreme Court Denied personal not items returned wife. 16, 1999. 19, 1999 Jan. and Feb. transcript hearing There is no in the therefore, record, and, testimony in no
record as to what items were not returned handwritten, single
the wife. There is unsigned in the
unsworn and exhibit record returned,”
styled with “items list
various items and their values. estimated transcript
In or a absence of state evidence, conclusively
ment of the we must every
presume admissible fact under pleadings should have was found or favorably appellee.
been found (Tenn. Powell, 118, 121
Leek v.
App.1994); citing Lyon Lyon, (Tenn.App.1988). preponderate does not evidence
against judgment awarding the trial court’s no husband There is merit $511.03.
the husband’s second issue.
222
224 *6 Kidwell, Murfreesboro, inappropriate E. Tennes- and marital
Dicken able differences Plaintiff/Appellee: consisting interfering his see for conduct of with making unfounded accusations business Tennessee, Heldman, Franklin, J. Russell fidelity. his Ms. Kinard counter- about Defendant/Appellant: for a from and board. claimed divorce bed trial, Following judge de- the trial bench OPINION parties clared the divorced in accordance KOCH, Judge. 36-4-129(b) (1996), with Tenn.Code ending a appeal This involves divorce estate, Ki- awarded Ms. divided marital long-term marriage. The filed suit husband spousal support of nard rehabilitative thirty years to divorce his wife months, thirty-six per month for and denied Chancery County, and Court for Rutherford an award request Ms. Kinard’s for additional from the wife a divorce counterclaimed attorney’s for her fees. judge, sitting The trial with- bed and board. divorced, jury, parties out a declared the lawyer Ms. Kinard retained a new after property, and awarded divided marital judge decision. the trial announced his alimony three wife rehabilitative thirty days entry the final after Within appeal years. The takes issue this wife decree, lawyer filed divorce new parties di- with the to declare the decision requesting judge the trial to alter motions vorced, property, marital division of decree, grant a new amend the divoree spousal long-term the failure award her trial, his himself recuse because attorney’s insists support and fees. also She relationship Ki- professional prior with him- that the trial should have recused lawyer. hearing, Following a nard’s prior professional associa- self because of his well as judge denied the recusal motion as lawyer. conclude tion with husband’s interlocutory request for an Ms. Kinard’s disqualified was not from appeal. perfected has now hearing we find that While also ease. numer- right in which she raises appeal as declaring proper, divorced was objections relating to manner ous of marital have determined that division granted, was the division divoree which award property spousal support and the support property, spousal marital *7 but that the should should be modified wife award, to order and the trial refusal legal an award her not receive additional legal expenses. Kinard to her pay Mr. expenses. II. I. Linda and John A. Kinard were Supplementation the Record a August in Mr. Kinard is married further, proceeding turn our Before we a pharmacist. Ms. Kinard was licensed evidentiary Follow- to record. attention but, parties married teacher when the school ing entry final divoree decree of the teaching request, she left at Kinard’s motions, R. Civ. P. 69 the denial the Tenn. year marriage the first of the when she after re- judge Ms. Kinard to permitted the trial two pregnant with the of their became first testi- present additional open the record to bought phar- couple The their first children. given trial had mony have that she would
macy years Today, later. the busi- several lawyer. represented by present her been she Centers, Inc., ness, Drug into a grown has pro- whether this novel must determine We drugstores. of nine chain permitted by the contemplated or cess in 1992 began to Marital difficulties surface because of Civil Procedure Tennessee Rules and Mr. last child left home when question to will dictate the answer this in the busi- Ms. Kinard’s role Kinard reduced rendering we consider facts that will thirty years of In after ness. March decision. marriage, in the Mr. Kinard filed suit Chan- judge Kinard’s seeking denied Ms. County a After the trial cery for Rutherford Court in- for an post-trial motions and her motion on irreconcil- from Kinard based divoree terlocutory appeal, present lawyer Foley (Tenn.Ct.App.1986); Dayton her re- Bank quested permission Trust, to make an “offer of & (Tenn.Ct.App. 1985). proof’ findings by because the denial of Ms. a Kinard’s While factual we review for a new trial that jury motion meant she would judge sitting trial a de novo with without square not be “back at one” would not be presumption of correctness accordance given an “opportunity to start 13(d), over.” As R.App. with Tenn. P. we do not cus lawyer’s best as we can her understand rea- tomarily consider evidence has neither soning, he depo- -wishedto take Ms. Kinard’s presented by been nor considered the trial to preserve appellate sition order to re- judge been part unless it has made of the testimony view substance of additional with P. R.App. record accordance Tenn. she given would have at a second trial judge 14. Because the never trial considered judge had the trial recused himself and 1,May deposition, Ms. Kinard’s we granted lawyer a new trial. The believed decline to now. consider it testimony that this would somehow become declining There is a second reason for to if relevant this court later determined that 1,May deposi- consider Ms. Kinard’s judge trial should have recused himself. lawyer tion. Ms. believed Kinard’s that the judge agreed trial allow this “offer of deposition only appel- would be needed if an proof’ objection. May over Mr. In late court were to determine that the trial 1996, fully ten original months after the di- judge granted a should have new trial and vorce trial and four months after the denial then recused himself. As we more discuss post-trial motions, gave Ms. Kinard fully III, in Section determined that deposition answering questions from her judge by declining did not err lawyer present lawyer that her former had Accordingly, recuse himself the case. from original not asked her in proceeding. there is no need to consider Ms. Kinard’s deposition This part appellate now a questions lawyer answers to that her former though presented record even it was never failed to ask her at trial. judge. considered the trial precedent can find no for this novel post-trial fact gathering. being Rather than III. proof sense, an offer of in the traditional it is Judge’s Disqualification accurately attempt more an to include testi- The Trial mony appellate in the record was not question We turn now to the of the trial considered the first judge’s qualification hear this case. After instance. The reasons for Kinard’s fail- had entered final divorce present testimony ure to at trial are not decree, present lawyer Ms. Kinard’s insisted altogether not, clear. Ms. Kinard does granted that he should have new trial and *8 cannot, on testimony based the nature of the stepped prior then pro- aside because of his testimony claim that her after-the-fact con- relationship fessional with Mr. Kinard’s law- newly cerned discovered information. We yer. We have determined the evidence only present can conclude that Ms. Kinard’s provide ques- does not a reasonable basis for lawyer lawyer decided that her former tioning impartiality. judge’s questions should have asked her these at and questions that he ask the decided to though already himself even case had A.
been concluded. Litigants, as the courts have often said, neutrality
We have determined that the “cold an sub are entitled to the of 1,May of deposi impartial stance Ms. 1996 v. Leighton court.” See Henderson, 419, 91, 98, appeal. tion should not be on 414 considered 220 Tenn. S.W.2d jurisdiction only. (1967); appellate Chumbley Our is 421 v. & See Tenn. Bank People’s 16-4-108(a)(l) (1994); 787, Co., 655, 659, §Ann. Code Duncan Trust 165 Tenn. 57 S.W.2d Duncan, (1933). 765, (Tenn.1984); judicial v. 672 principle S.W.2d 767 788 of neutrali- Const, 681, 6, Poynter, ty v. Mallicoat 722 S.W.2d is in Tenn. 682 embodied both art.
228
§ 111 may right in the of party and Code Judicial Conduct.2 A lose the to chal Thus, juris- tenets lenge by one of the central of our a judge’s impartiality engaging in prudence litigants right is that all a strategic upon have conduct. Courts frown impartial fair their cases heard and manipulation impartiality gain issue of the judges. procedural advantage and not permit will litigants asserting to refrain from known recognized, also The courts have grounds disqualification for in order ex “to however, preservation public’s that the periment ... with the court raise neutrality judicial in requires confidence not objection the result of the trial later when is only fact, judge impartial that the be in but (8 Eason, 76 unfavorable.” Holmes v. Tenn. judge perceived also impar that the be to be Lea) 754, (1882); 757 see also Gotwald v. States, 11, tial. See v. United 348 U.S. Offutt Gotwald, 689, (Tenn.Ct.App. 768 S.W.2d 694 14, 11, 13, (1954) (hold 11 75 99 L.Ed. S.Ct. 1988). Thus, motions must recusal be filed ing satisfy “justice must appearance forming promptly facts after the basis for Cameron, justice”); 614, In re 126 Tenn. known, motion see United become States 658, 151 (1912). 64, Thus, 76 when S.W. even (M.D.Tenn. Baker, 612, F.Supp. v. 441 616 judge a or believes he she can hear a 1977); Hunnicutt, 516, 248 Hunnicutt v. Ga. fairly impartially, case the judge should 891, (1981), 283 S.E.2d 893 failure to recuse himself or herself if “the im timely manner assert them a results a partiality might reasonably questioned.” be a party’s right question judge’s waiver of a 10, 3(E)(1); See Tenn. R. Canon S.Ct. Chum Cameron, impartiality. re 126 See In Tenn. bley Co., People’s v. Bank & Trust Tenn. 165 663, 78; at 151 at Trust Co. v. S.W. Radford 659, at at 788. 57 S.W.2d Co., 126, East Lumber 92 Tennessee Tenn. The decision of whether recusal is 136-37, (1893); 329, 21 331 v. S.W. Holmes warranted must the first instance be made Eason, (8 Lea) 76 at Tenn. judge himself or herself. Unless grounds for fall within recusal those enumer B. Const, 6, § ated in Tenn. art. 11 or Tenn. 17-2-101(1994), judge § Code Ann. decisions The fact that a once these was discretionary. lawyer are Raspberry, professionally See State v. with a for associated not, 678, 875 (Tenn.Crim.App.1993); parties 681 one of in a case is without S.W.2d Cohen, more, grounds Bd. Realtors v. ABA Memphis disqualification. for See Comm, (Tenn.Ct.App.1989); Responsi Wise Ethics and Professional (1987). Thus, bility, man Spaulding, Op. Informal 87-1524 However, (Tenn.Ct.App.1978). disqualifying instead of absence of other circum stances, subjective consistently making this decision based on no concluded courts have impartiality, disqualified judge tions his or her must that a not when the objective lawyer be more and must ask a rea one of the former law what sonable, partner,3 associate,4 person knowing all co-counsel.5 A disinterested solely disqualified relevant facts would think about his or her is likewise because he State, impartiality. Alley may had an or she one time have office lawyer (Tenn.Crim.App.1994). sharing arrangement with one Const, provides, Digital Equip. Corp., part: 1. Tenn. art. 3. See Alvarado Morales v. *9 16, (D.P.R.1988); Dolphin F.Supp. 699 18 v. Supreme Judge or No of the Inferior Courts Wilson, 815, 1, any 328 Ark. 817-18 preside shall on the trial of in the cause (1997); interested, may City City, Isle 243 Ferren v. Sea she] event which he be or [or of 737, 522, parties N.J.Super. (App.Div. 739-40 where either of the shall be connected 580 A.2d by affinity 1990). consanguinity, [or her] with him law, degrees may prescribed by as be within such may or sel, have coun- [or she] in which he been of Shortridge, City 691 4. See Bank National may presided [or she] or in which he in 1210, (Ind.1998). N.E.2d 1211 Court, any except of all the inferior consent parties. 14, Bonelli, A.2d 5. See 214 Conn. 570 Bonelli 2(A). 189, 10, (1990). Canon 192 See Tenn. S.Ct. R.
229 Savani, entirely ing in a unrelat- parties. the Savani v. lawsuit (1991). N.C.App. relationship 403 S.E.2d ed divorce ease. This is to this disqualification a simply on a attenuated to draw such conclu- When a motion for based too judge’s party’s with a law- in the record that former association sion. There is no evidence filed, yer totality of judge played any the the circumstances role or received the trial examined, following including litigation should any be the from the earlier benefit (1) Considering factors: the nature and extent Mr. the totali- behalf of Kinard. (2) prior association, length circumstances, of time since find that a rea- ty of (3) terminated, possi- person, knowing association all the relevant was sonable bility judge might facts, judge that the bene- trial continue to not conclude that the would (4) relationship, Accordingly, fit from the and the exis- impartial. be the trial could not personal relationships by denying tence of or social judge not abuse his discretion did springing professional relationship. from the after Ms. Kinard’s recusal motion the final Bonelli, 192; See Bonelli v. A.2d had been entered. divorce decree James, App.3d James v. Ohio (1995).
N.E.2d 404-05 IV. judge lawyer The trial and the The Award of the Divorce representing Kinard Mr. had an office shar to Both Parties ing arrangement lasting years two that end eight years sought ed before Mr. Kinard Ms. Kinard also issue with the takes judge divorce grant parties from Ms. Kinard. The trial trial decision to both judge’s had Ki pursuant severed all financial ties with Mr. to 36-4- divorce Tenn.Code 129(b) lawyer years nard’s divorce assigning two before the instead of fault to Mr. Ki lawyer argues suit he was filed when sold the his that record contains nard. She building fault, interest in the their ample that housed of Mr. Kinard’s includ evidence suggestion ing offices. There no record abuse. Mr. his emotional verbal judge any that the deny stands to benefit Kinard does that his conduct con way lawyer’s from Kinard’s practice marriage Mr. or to the tributed dissolution of that he present points was ever involved case to the but evidence of Kinard’s any present occurring primarily other matter related to inappropriate conduct af lawyer case. Mr. Kinard’s did not undertake left ter their son home. represent him in proceeding this divorce gained reciting be from the de- Little can long until professional relationship after his about complaints tails of these judge
with the trial had ended.6 There is waning years during other’s conduct any likewise no indication the record that marriage. Ms. Kinard testified to two personal relationship might social or that physically, which Mr. was incidents in judge exist Ki between the trial and Mr. emotionally verbally, and abusive. Mr. Ki- lawyer prevented judge nard’s the trial from explained suspicions nard how Ms. Kinard’s being impartial. jealousy prompted disrupt his her
Thus, only calling employees question Ms. Kinard is left with business his one circumstance substantiate her claim them his whereabouts his conduct about employees. reviewing After disqualified the trial should have with his female hearing de with himself from this case. She asserts the evidence novo in accordance 13(d), say R.App. that a P. that the person reasonable would conclude Tenn. we cannot preponderates impartial against not be could because evidence sharing arrangement he had an with that both contrib- office conclusion and, marriage lawyer during portion breakup of the uted to the therefore, they simply lawyer time that be de- represent- Mr. Kinard’s was should *10 3(E)(1)(b) disqualification judge required requiring 6. would The trial have been to Canon if previously prac- lawyer judge had himself if he still had an office shar- “a with whom the recuse ing arrangement during lawyer when served association as a with Mr. Kinard’s ticed law such concerning lawyer S.Ct. Mr. Kinard filed for divorce. See Tenn. R. the matter.” Recognizing divorced in dared accordance with Tenn. that Mr. not Kinard did desire 36-4-129(b). § pension, Code Ann. Kinard to share Ms. in his the trial
judge gave paying him the option of Ms. y. sixty Kinard months instead. Un- $500 arrangement, using der this Ki- and Mr. The Division of the Marital Estate of property, nard’s valuations the Ms. Kinard property approximately received worth turn now to the We division of the $448,150, property while Mr. Kinard received not insubstantial marital Ms. Kinard estate. $412,850. approximately worth that the overall the asserts division of estate inequitable judge is and that trial incor- the $146,500 properly In addition to the in Centers, rectly Drug the valued Inc. note. Kinard classi- Ms. asserts should have been hampered Our review of this issue has been separate property, fied as her Ms. Kinard properly trial the failure to classi- residence, the marital the received household fy property place the and to a value on the goods Drag and furnishings, the Centers property disputed. whose value was value, thirty percent note at a reduced face have determined that the mar- the division of retirement, Drug of Mr. Kinard’s Centers ital estate must be the modified correct pieces property. and several other of Mr. pro- and valuation classification errors and stock, Drug received all Kinard the Centers equitable a more vide distribution of the estate, Gatlinburg timeshare, Florida real property and marital debts. remaining seventy percent Drug the of his retirement, gun
Centers and his and coin A. He also his in collections. received interest on Kay mother’s home his Street. The Kinards’ marital was worth be- estate Kinard) $600,000 (according tween to Ms. B. Kinard). $850,000 (according to Mr. Dividing neces a marital estate Kinard value marital While Ms. tended to sarily begins with the classification Kinard, property princi- than lower Mr. property separate prop either as or marital pal for the valua- reason difference their McClellan, erty. See McClellan is that included tion evidence Mr. Kinard (Tenn.Ct.App.1993). The $146,500 approximately property in worth of “separate and “mari property” definitions estate the marital that Ms. Kinard asserts property” § tal Tenn.Code 36-4- separate been should have classified as her 121(b) (1996) provide ground rales for property.7 principal The estate assets been classi property the task. Once has house, payable the Kinards’ were a note (¿vide fied, judge’s goal the trial Centers, Inc., Drug the Kinards from essentially equitable property marital an Centers, Drug Inc., Ki- stock in and Mr. inequita manner. A division not rendered Drug Centers, nard’s Inc. retirement ac- equal, simply precisely because ble it is parties disputed The value of the count. Cohen, see Cohen v. 937 S.W.2d house, note, Drug Drug Centers and the (Tenn.1996); Ellis, Ellis v. stock, but did not Centers (Tenn.1988), party each did because conflicting to resolve evi- undertake every piece a share of of marital not receive dence. Brown, property. Brown v. pro- adopted Mr. Kinard’s 163, 168(Tenn.Ct.App.1994). posed division of the marital estate with one exception. awarding Dividing is not Instead a marital estate Drug process guided pension, all of his Centers mechanical but rather is considering judge decided that Ms. Kinard should receive the factors in Tenn.Code Ann. 36^4-121(c). thirty lati percent judges of this asset. Trial have wide the value (1) proper- property property real that this This includes Mercedes. Kinard asserted Starkville, (2) $146,435; Mississippi, placed Dean Witter ty worth was while stocks, (3) (4) jewelry, parties' property. a value of silver, china, (5) 10-year-old crystal,
231
$35,-
fashioning
equitable
produce
evidencing
an
tude
division of
could not
a note
Fisher,
31,
property,
Drug
marital
000
see Fisher v.
648
debt.
Centers’s December
244,
$25,000
(Tenn.1983);
1993balance sheet listed a
S.W.2d
246
Brown v.
receivable
Brown,
Kinard,
168,
appellate
from Mr.
but this indebtedness had
913 S.W.2d
$4,200
approximately
by
been
great weight
judge’s
courts accord
reduced
trial
company prepared
September
time the
its
property.
division of marital
See
v.
Wilson
Moore,
30,
367,
1994 balance sheet. Mr. Kinard’s own
(Tenn.Ct.App.
929 S.W.2d
372
1996);
Edwards,
283,
17,
v.
sworn financial statement dated
Edwards
501 S.W.2d
October
Thus,
any personal
Drug
(Tenn.Ct.App.1973).
288
1994 did not list
debt to
we will ordi
narily
judge’s
strongly
defer to the trial
un Centers. This evidence
indicates
decision
if
Drug
less it is
that Mr. Kinard ever owed
Centers
inconsistent with the factors in
36-4-121(e)
$35,000,
repaid
prior
he had
this
sup
Tenn.Code
or is not
debt
ported by
Accordingly,
reviewing
divorce trial.
preponderance
after
the evidence.
Brown,
168;
R.App.
See Brown v.
the record in accordance with Tenn.
note awarded to Kinard should be re- $35,000. C. by duced Drug We have also determined that Valuation of Centers Note preponderates against evidence $145,952 Both by listed a note judge’s Drug conclusion that the value Drug pretrial Centers on their statements of by Centers note should be further reduced property. trial, marital At Ms. Kinard stat- $12,000. trial, At Mr. Kinard asserted that ed that the value of the note remained at Drag Centers owned the Mercedes and that $145,952. asserted, however, Mr. Kinard $12,000 company paid should be before that the amount of the note should be re- transferring the title of the car to Ms. Ki $98,000 $35,000 duced to to reflect a debt he part, nard. For her Ms. Kinard testified $12,000 Drug owed to Centers and advance gift that the Mercedes had been a Christmas corporate purchase funds used to produced from Mr. even a note Kinard’s Mercedes. judge accepted The trial by “Merry stating, written testimony concerning the value A Christmas. new Mercedes.” Based on of the note. evidence, pre we find that the evidence The valuation of a marital asset ponderates concluding in favor of question is a by of fact. It is determined Kinard, gift Mercedes was a to Ms. and thus considering evidence, all relevant and each separate property. By that it was her party bears the bringing burden of forth token, any Drug same indebtedness to Cen competent Wallace, evidence. See Wallace v. ters that Mr. Kinard incurred order to (Tenn.Ct.App.1987). S.W.2d If should, purchase present for his wife conflicting, evidence of value is trial analysis, by the final be borne Mr. Kinard. judge may assign a value that is within the Thus, is a matter between Mr. range supported by of values the evidence. Centers, Drug Kinard and and the trial (Tenn. Ray Ray, by reducing erred the amount of the Wallace, Ct.App.1995); Wallace 733 Drag note that amount. Centers appeal, presume at 107. On we The trial should not have reduced factual determinations are cor Drag the value of the Centers note awarded preponderates rect unless the evidence $47,000. Accordingly, to Ms. Kinard Jahn, against them. See John v. property provide amend the settlement (Tenn.Ct.App.1996). Drug that the Center note awarded to Ms. The exact part status of Mr. Kinard’s Kinard as of the division the marital Drug fully debt to Centers was never devel estate should be valued at its face amount— oped $145,952. at trial. Mr. Kinard admitted that he
232 complained
D. name because she had that she had no in her own name. He assets wrote The the Classification following the when note to Ms. Kinard he set Separate Property up the “I Dean Witter account: told have remaining turn next to the four items We Edgar put your in this account name —not of property that Ms. Kinard asserts her were joint. speak I can still with him —but it will separate property even though the trial (emphasis your money be and decision.” in property.8 classified them as marital original). personal jewelry, the Kinard’s Ms. judge adopted Because Mr. Kinard’s $38,000, gifts at valued were likewise to her division, proposed property necessarily it during marriage. the adopted Mr. Kinard’s that this assertion property prop- should be classified as marital property final item of the The erty. have determined that the evidence Starkville, property Mississippi in where the against preponderates this conclusion. parties’ parties purchased son lives. The property during marriage placed this the part integral process An in the title name of Ms. Kinard and the their dividing property divorcing the interests of Thus, son. Kinard is the owner of rec parties is identification and distribution ord of an interest undivided one-half of this parties’ separate property. the See Batson property. though property the Even was Batson, (Tenn.Ct.App. 856 funds, acquired the fact with marital that it 1988). not Property should be included placed was name of the Ms. Kinard and the party prove marital a can estate unless parties the strong her son evidence that property that it is marital as defined in Tenn. property by intended for be controlled 36M-121(b)(l)(A). § Code See Cut by Ms. Kinard rather than and her son singer Cutsinger, parties themselves. (Tenn.Ct.App.1995). Separate property can not, definition, by be included in the marital Having the evidence accor- reviewed estate, and Tenn.Code Ann. 36—4- 13(d), R.App. P. we dance with Tenn. 121(b)(2)(D) provides property acquired that preponderates determined that the evidence spouse during marriage by “gift, against judge’s classification of Ms. bequest, separate prop devise or descent” is silver, crystal, jewelry, Kinard’s and chi- Thus, erty. gifts by spouse one to another na, accounts, brokerage and Ms. Kinard’s might that otherwise be considered marital property interest as marital the Starkville property recipient classified as should be agree that Ms. property. we Kinard While spouse’s separate property. Hanover v. property, it should have should received Hanover, (Tenn.Ct.App. S.W.2d part not of the division of the have been as Batson, 1989); Batson v. at 859. marital rather as distribution of estate but separate gross property. her value of does support The evidence not be marital should reduced estate conclusion four trial that these property. the total of this value property property. were items of marital Ms. Kinard testified without contradiction china, E. crystal, received the and sil she $20,800 wedding gifts
ver valued at
as
The Debt
Planters
Bank
to Union
marriage
throughout
special
then
oc
birthday
anniversary
relating to
divi
such as her
or
The final matter
casions
Both
sion of the
involves
alloca
at Christmas.
testified
marital estate
$100,-
paying opened
brokerage
responsibility
accounts
tion of the
equity
000 home
Union Planters
Dean Witter and J.C. Bradford valued
loan with
$45,635
$51,500
Bank. The
determined that this
between
for his wife
responsibility,
Kinard’s
during
marriage.
debt should be Ms.
Kinard stated
ostensibly
received the
placed
he
these accounts
because she
house
and,
section,
gift Ms.
preceding
that the
therefore,
was a
concluded that the
Mercedes
In
concluding
separate property.
preponderates in favor
evidence
her
(48%
does
of the net marital
that secured the debt. The evidence
valued at
estate).
support
adjustments in
this conclusion.
result of the
As a
*13
sections,
preceding
apportionment
this
the
debt,
proper
Marital
like marital
changes.
value of the entire marital
The
ty,
equitably
should be divided
in accordance
$99,548
by
of
estate
decreased
as a result
is
the factors in
36-4-
with
Tenn.Code.
adjustments for the
of
the
increased value
121(c)
(1)
light
and in
of
incurred
party
which
of
Drag
the
note and reclassification
Centers
(2)
(3)
debt,
debt,
purpose
the
the
of the
that
separate property
the
had been classi-
party
incurring
which
benefitted from
the
erroneously
property.9
fied
as marital
In
(4)
debt,
party
and
which
able to
better
addition,
Kinard’s share of the marital
Ms.
repay
Cutsinger Cutsinger,
the debt. See
v.
$47,952
by
repre-
increased
estate has been
243;
Mahaffey,
Mahaffey
917 S.W.2d at
v.
adjustment
senting
the
the value of the
portion App.1989). purpose long-term spous the retirement trans- account be The hand, by Qualified support, provide al on the ferred to her Domestic Rela- other is to support disadvantaged spouse tions Order. who is degree
unable to achieve some self-suffi Loria, ciency. See Loria v. VI. (Tenn.Ct.App.1997). Spousal Support The Award statutory preference for re Ms. Kinard also takes issue with the *14 support entirely displace habilitative does not $1,000 decision award her in to spousal support other forms of when the thirty-six spousal support rehabilitative long-term open-ended facts or warrant more months. She insists that she is entitled to Aaron, support. v. See Aaron 909 S.W.2d permanent spousal support and that the Isbell, 408, (Tenn.1995); 410 Isbell v. 816 monthly spousal support amount of ordered (Tenn.1991). 735, judges Trial S.W.2d 739 her month is far less than prerogative type have the to determine the ly needs. determined spousal support that best fits the circum spousal support amount of Ms. Kinard’s case, judges may stances of and thus trial should be increased and that the duration of types support in award several different support lengthened. should be it. same case when facts warrant See Cheatham, Cheatham v. No. 01A01-9508- A. (Tenn.Ct. CH-00380, 731784, 1997 at *7 WL There are no hard and fast 1997) (No 25, R.App. App. Nov. Tenn. P. 11 spousal support rules for decisions. See filed). application (Tenn. Crain, 232, v. 925 233 Crain S.W.2d Stone, Ct.App.1996); Tenn.App. v. 56 Stone though Even fault is relevant (1966). 607, 615-16, 388, 409 392-93 S.W.2d setting spousal support, consideration when judges Trial deter have broad discretion to 36-5-101(d)(l)(K), § Ann. see Tenn.Code spousal support mine whether is needed spousal support to decisions are not intended and, so, nature, amount, if its and duration. Duncan, punitive. v. 686 be See Duncan 744, Garfinkel, See v. 945 S.W.2d Garfinkel 568, McClung (Tenn.App.1984); 571 S.W.2d Jones, (Tenn.Ct.App.1996); 748 Jones v. 784 580, 584, Tenn.App. McClung, v. 29 198 349, (Tenn.Ct.App.1989). Appel S.W.2d 351 (1946). 820, purpose of S.W.2d 822 The generally late courts are disinclined to sec spousal support disadvantaged is to aid ond-guess judge’s spousal support a trial spouse remain self-sufficient to become and supported by decision unless it is not and, when economic rehabilitation is not feas contrary public policies evidence or is to ible, mitigate to the harsh economic realities applicable in reflected statutes. See Shackleford, of divorce. See v. Shackleford Brown, 169; v. In Brown 913 S.W.2d 598, (Tenn.Ct.App.1980). 611 601 S.W.2d 262, gram Ingram, v. 264 living separately incur more persons Two (Tenn.Ct.App.1986). living together. expenses persons than two 36-5-101(d)(l) Thus, unlikely § it Ann. in most divorce cases Tenn.Code preference temporary, parties will able to maintain their reflects a rehabili both be proceedings spousal support, opposed long- pre-divorce lifestyle once the are tative as Brown, Herrera, v. 913 support. v. 944 concluded. See Brown S.W.2d term See Herrera 379, enabling economically (Tenn.Ct.App.1996); at 169. dis S.W.2d 387 Wilson While Moore, 367, advantaged spouse pre-di maintain the (Tenn.Ct.App. v. 929 375 S.W.2d 1996). lifestyle goal, we have purpose support vorce is a laudable of rehabilitative realistically recognized in most divorce disadvantaged spouse to is to enable the skills, education, cases, job satisfied with acquire the courts must be additional awarding “closing money” is award training that him or her to be will enable —that Smith, as ing funds to return spouse more Smith v. 912 sufficient self-sufficient. See economically possible pre- to the (Tenn.Ct.App.1995); closely as is S.W.2d 160 Cran
235 Aaron, However, light support. of the lifestyle. divorce See Aaron v. 909 that much long marriage, of the Ms Kinard’s S.W.2d at 411. duration business, contributions to support hinge Spousal decisions ability earn between the disparity require unique on the of the ease facts assets, and to accumulate income and balancing of the careful factors Tenn.Code has been manner in which the marital estate 5—101(d)(1) (Supp.1997). See 36— divided, have determined that Hawkins, Hawkins v. pay should be ordered to Loyd Loyd, (Tenn.Ct.App.1994); support per long-term spousal until month (Tenn.Ct.App.1993). In vir S.W.2d sixty-five years This award for she is old. case, important tually every the two most support spousal will remain of the factors are the demonstrated need judge may judge’s jurisdiction, and the trial disadvantaged spouse obligor and the alter either amount or duration spouse’s pay. Varley, ability Varley par- upon proper showing either award (Tenn.Ct.App.1996); ty. spousal support award This increased Crain, 925 Crain v. S.W.2d at 234. sixty days opinion shall take effect after *15 However, suspended if is filed. it shall be B. timely application party either files a for presently fifty-five years party Ms. Kinard is old permission appeal. to either Should good degree permission appeal, and health. She has a application B.S. file an for to University from Middle and pay Tennessee State shall Ms. continue to Kinard However, $1,000 is been per appeal pending certified to teach. she has month is while the thirty years out of for a obligation long the workforce as and shall continue for as this result of should pending expire. decision that she is not appeal as the and shall remain to children. permis- at home raise their application If Mr. Kinard files an for denied, capable working, While Ms. Kinard that he shall appeal sion to is later op- realities of the labor market her pay narrow Ms. Kinard the difference between unlikely tions. It is able to spousal support actually she will be while paid he earning capacity match Mr. Kinard’s or that permission appeal for application to was she will to up be able make the economic pending spousal support he would and ground past thirty she has lost over permission paid application have had no for years. appeal to been filed. hand, Kinard, On the other Mr. who is now VII. old,
sixty years is a pharmacist licensed and major is the chief executive officer and Ms. Requests for KinaRd’s corporation stockholder in owns a Legal Expenses drugstores. chain Ki- Despite of nine matter, As a final Kinard as nard’s direct and indirect contributions serts that trial should have re business, this Mr. Kinard has received the quired legal pay Kinard to for her ex part business as of the division marital penses trial at and that she is entitled to an $80,000 year per estate. His income exceeds expenses legal award for the in additional generous fringe bene- and he also receives judge gave appeal. this curred on package provides profit sharing fit request. her no reason its denial of automobile, insurance, pays for other his property Based the division of the marital daily needs. opinion, as modified we deter Ms. Kinard has demonstrated a need for mined that Ms. Kinard has not demonstrated spousal support, and Mr. Kinard able to funds to that she should receive additional pay support. Ms. Kinard that she asserts defray legal expenses. her $3,500 per at month in order to needs least action, In lifestyle comparable pre- a divorce an award of maintain a to her alimony. lifestyle. sup- attorney’s This fees is treated See divorce record does as Smith, 161; pay port a that Mr. can Smith 912 S.W.2d at Gilliam conclusion $150,000 Gilliam, obligation (Tenn.Ct.App. lite to maintain a dente 776 S.W.2d 1988). spous- attorney’s policy fees to ensure that his The decision to award life insurance obligation support al would be met the sound discretion of the trial lies within Aaron, judge, see Aaron v. 909 S.W.2d at event of his death. Brown, 411; at Brown v. upon peti- Based our consideration of will not interfere with the trial tions, opinion, our earlier and the entire rec- prepon the evidence decision unless appeal, ord on we have determined that Mr. Batson, against derates it. See Batson v. petition rehearing should be de- Kinard’s party at 862. A is entitled to attor not overlook the trial nied. While we did ney’s he she lacks sufficient fees when or existing Equitable Life court’s award of the expenses pay legal funds to his or her or Kinard, Policy to Mr. we have Insurance deplete required to other assets to would be August opinion our determined that Brown, do so. Brown v. 913 S.W.2d at provide that Ms. Ki- should be modified 170; Kincaid, 140, 144 Kincaid v. entitled, option, her either to nard is (Tenn.Ct.App.1995). $2,000 per spousal support the amount of case, we have con- Under the facts of continuing in Mr. month with no interest responsible cluded that Ms. Kinard should be Policy Equitable Life Insurance legal expenses. re- for her own She has spousal support in the amount of revised division ceived sufficient funds along continu- per month with Mr. Kinard’s pay of the marital her to her estate enable Equitable ing obligation to maintain the Life easily lawyers. could come These funds Policy in to secure Insurance effect order Drug in the amount of the from the increase payment spousal support of his obli- *16 pays after she these Centers note. Even gation. file with the trial Ms. Kinard shall that, expenses, has sufficient assets she still these two court her written election between properly managed, provide
if her with will spousal support options on or before October long term. additional income over 5,1998. is, therefore, ordered, adjudged, and It VIII. petition decreed that Mr. Kinard’s for re- modi- affirm the final divorce decree as We hereby It is fur- hearing be and is denied. ease to opinion fied and remand the petition for ther ordered that Ms. Kinard’s proceed- further for whatever rehearing granted and that this court’s be ings may required. tax the costs of be opinion in accor- August be modified appeal equal proportions to John this order. dance with to Linda Kinard and Anderson Kinard and Henry execution, surety necessary, if F. Todd which her /s/ Todd, Judge Henry Presiding may F. issue.
Middle Section TODD, Judge, Presiding HENRY F. Ben H. Cantrell /s/ CANTRELL, Section, H. Middle BEN Cantrell, Judge Ben H. Judge, concur. Koch, William C. Jr. /s/ PETITIONS
ORDER ON Koch, Jr., Judge William C. REHEARING FOR petitions have filed for re- Both R.App. P.
hearing in accordance with Tenn. requests Anderson Kinard John to enable the trial
this case be remanded certain mari-
court to reconsider the value of adjustments to the
tal assets and to make marital estate and the award
division of the requests spousal support. Linda Kinard pen- court reinstate Mr. Kinard’s
that this