*1 ment for all of the father’s interest Daly UMSTOT, Mary
Reed Hooker Road?”3
Brown v.
Ann
Plaintiff-Counter-
Defendant/Appellee,
previously
this Court
determined that
the
finding that the check “constitut-
chancellor’s
intent,
expressed
a valid transfer and
ed
UMSTOT, Defendant-
Edward Shirer
son,
...
that the son
both the father and
Counter-Plaintiff/Appellant.
proper-
have all title and interest
the said
“[wjhile
ty” was error and held:
the check
Tennessee,
Appeals of
Court of
satisfy
may be a sufficient memorandum to
Section, at Jackson.
Western
Frauds,
itself,
the Statute of
Sept.
1997.
not,
opinion,
check does
our
rise to the
dignity
conveyance
an
instrument of
Application
Appeal
for Permission
subject proper-
transfer of title in
and to
Court,
by Supreme
Denied
Brown,
ty.”
the case on this issue. See Ladd v. Honda Co., (Tenn.App.
Motor 90-92 S.W.2d
1996). Although only Brown finds “may satisfy
document be” sufficient to frauds, court, nonetheless,
statute of represent
holds that the check does not conveyance
instrument of or transfer of title.
The trial court is instructed on remand
disallow the admission of for this evidence purpose establishing such. judgment
It results that trial
court is reversed and this cause remanded to a new trial consistent with holdings opinion. in this are as- Costs against appellee,
sessed for which execu- may necessary.
tion if issue
CRAWFORD, P.J., W.S., TOMLIN, Judge,
Senior concur. decision, unnecessary acknowledges inconsistency this matter. it is address This Court hy jury. light findings our made *2 Gerber, Cicala, Memphis, R.
Hal Karen Appellant.
CRAWFORD, Presiding Judge, W.S. This is a divorce case. Edward Shirer (Husband) appeals the order of the Umstot divorce, alimony trial court a solido, Mary support to Ann Um- and child (Wife). stot parties August on The were married during the mar- 1977 and had two children divorce, was riage.1 At the time of the Wife old, years old. years and Husband was 53 health, good is in was but Wife recently diagnosed malignant with melano- a 40% chance ma. She testified that she has years. living another five Arlington Developmental works for Wife technologist a net Center as a medical with monthly and at Method- income of monthly Hospital with a net income of ist has a defined benefits retire- Wife $200.00. plan with the of Tennessee worth ment State $76,309.00.2 Husband is a research associate University Tennessee-Memphis for the $35,418.96per year. net earning Husband’s $2,271.64, his monthly retire- income $158,563.00. are worth Hus- ment benefits began a plan retirement with balance band’s marriage. at the time of the mari- parties The owned an unencumbered expert presented testi- tal residence. Wife $130,- was mony that the real estate worth 000.00, presented expert and Husband $146,- the real estate at witness who valued parties also owned four auto- 571.00.3 mobiles, personal property worth various retirement two individual about govern- accounts each worth $24,000.00. Each savings worth ment bonds account. a bank maintained III, annuity and some General Taylor, Wife inherited an Loyd Taylor, James H. Daniel marriage. during Motors stock Appellee. Memphis, for divorce, ultimately paid out retirement one the children will 1. At the time of the years years eighteen many and the other child was or a was old of so of service the attainment years fifteen old. age. certain plan, expert, valued the testified 2. Wife’s who accepted value be- the lower 3.The plan plan which a a defined benefit parties that the occa- testified cause during working one’s benefit years is accumulated sionally floods. particular employer or tenure with a help pay support to lump child in a sum as affair with a co- Wife had an expense of extraordinary educational relationship worker, for the she terminated the but daugh- parties’ trip Europe one year. Husband testified after one him, support- verbally was not ters. abusive him, sexual withheld affection and ive of *3 judgment of the appeals the Husband con- him. Husband relations from 1) issues for review: presents five court and Irving, Lynn ex-girlfriend, Grover tacted an awarding erred the trial court whether relationship. platonic and reestablished solido; 2) the trial alimony whether Wife Irving that Husband and testified Wife ali- additional Wife court erred every day. telephone Husband talked on the fees; attorney’s mony pay her in solido parties’ children about informed the even 3) court erred in its deter- the trial whether Irving Irving told Wife that he loved and in the value of the increase mination that sent he loved Wife. Husband more than property was marital separate Husband’s $7,500.00 long-dis- Irving and incurred 4) the trial court erred property; whether $2,500.00talking to Irv- phone bills of tance support guidelines; deviating from the child this rela- Husband to end ing. Wife asked 5) erred the trial court and whether refused. After told tionship, but he Wife only. awarding a divorce to Wife house, stop calling Irving to by tried the court this case was Since beeper Irving so he and could purchased a jury, we review the case de sitting without a continue to talk. presumption of with a novo the record 22, 1995, September Wife filed a com- On findings by of fact the trial of the correctness plaint alleging irreconcilable dif- for divorce preponderates the evidence court. Unless inappropriate marital conduct. ferences and affirm, absent against findings, we must 9,1995, Husband filed an answer On October 13(d). error of law. T.R.A.P. answer, counter-complaint. and a differences, irreconcilable Husband admits third first consider Husband’s We will inappropriate guilty that he is but denies valuation of Husband’s issue. Because the counter-complaint, marital conduct. In his of the plan affects the division retirement agrees parties that the have irrec- argues that property, Husband marital alleges that Wife oncilable differences that the in its determination trial court erred On guilty inappropriate marital conduct. plan in the value of his retirement increase 6, 1996, May that de- Wife filed answer property. The trial court deter marital guilty inappropriate she was marital nied $4,437.00 of Hus of the value mined that conduct. separate plan was his band’s retirement $154,106.00, repre which 20,1996, property entered a On June the trial court of the retirement the increase value divorce that awarded sents final decree of absolute prop during marriage, was marital grounds inap- plan to Wife on the divorce both the erty. trial court awarded final propriate marital conduct. The decree $154,106.00 $4,437.00 to Husband. granted custody of the minor children court allotted that the trial to Husband. Husband asserts with liberal visitation Wife pension at the only original value of pay child Husband was ordered $4,437.00, separate as marriage, of the through May then to time per month $730.00 argues that the trial property. He per The trial court di- pay month. $479.00 interest considered the should have also assets and determined vided the marital property. separate on that as retirement earned the increase in value of Husband’s $131,000.00 of the only He contends that property. The trial benefits was marital property, instead in value is martial in the increase Husband’s interest court awarded because of the full marital valued original on the the interest accumulated awarded in solido and and is therefore amount of alimony in solido as additional 36-4-121(b)(l)(B) pro § property. T.C.A. attorney’s Finally, the trial fees. Wife’s $1,000.00 vides: court ordered Husband to Wife property” from, passive
“Marital
includes income
income that has
since the
accrued
any
during
increase in value
parties’ marriage”;
“passive”
but the
na-
marriage,
property
during
determined to be
ture of the
marriage
accrual
separate property
36-4-121(b)(l)(B)
§
in accordance with sub-
immaterial.
T.C.A.
(b)(2)
division
if
party substantially
provides
each
that marital
includes
preservation
appre-
contributed to its
pension,
“the value of a vested
retirement
pension,
ciation and the value of
fringe
rights
vested
or other
benefit
accrued dur-
retirement
fringe
rights
ing
period
or other
benefit
marriage.” (Empha-
Added).
during
period
accrued
mar-
sis
This code section does not
riage.
by “pas-
differentiate between value added
sive income” and value added
additional
36-4-121(b)(1)(B) (1996).
T.C.A.
Marital
*4
during
marriage.
contributions
the
The
benefits,
property includes retirement
both
critical determination is whether the value
unvested,
during
vested and
that accrue
the
during
marriage.
“accrued”
the
In this
Cohen,
823,
marriage. Cohen v.
937 S.W.2d
case, everything in Husband’s thrift and
(Tenn.1996).
830
An
in
interest
a retirement
$5,091
profit sharing plan, save the
in
plan
property subject
benefit
is marital
to
marriage,
there at the
of
time
the
“ac-
36-4-121(a)(1)
§
division under T.C.A.
marriage.
crued” after the
(1996). Cohen,
1.
agree
reasoning
the
of retirement
June
We
with the
benefits
during
marriage
accrued
the
are marital
of the Franklin Court that the critical deter
property subject
equitable
to
division.
mination whether the value “accrued” dur
ing
marriage.
the
The statute is clear that
during
Retirement benefits accrued
pension,
“the value of vested
retirement or
marriage
subject
property
are marital
fringe
rights
during
other
benefit
accrued
equitable
though
division even
the non-
period
marriage”
prop
is marital
employee spouse did not contribute to the
36-4-121(b)(1)(B) (1996).
erty.
§
T.C.A.
increase in their value.
case,
this
plan,
all of Husband’s retirement
3. The value of retirement benefits must
except
during
accrued
the mar
possible
be determined at a date as near as
riage.
correctly
The trial court
held that
to the date of the divorce.
plan
of the retirement
was mari
Id
property.
tal
argues
the amount of the
during
retirement benefits that accrued
issue,
argues
In his first
marriage
should
include the amount that
that the
in awarding
trial court erred
alimo
separate property.
accrued as a result of his
ny
argues
in solido to Wife. Husband
separate
apprecia-
He asks this Court to
award,
Wife does not
that he
need
does
plan
tion of the retirement
into two income
award,
ability
not have the
and
only
separate
streams: one based
on the
perception
the court’s
of the relative
property amount of
and
based
one
fault,
which can be considered
an award of
on the contributions made to the retirement
alimony, unfairly
on him.
In this
focused
plan during
marriage.
case, the trial court
in
awarded Husband’s
terest
in the marital
valued at
case,
unreported
an
this Court ad-
alimony
to Wife as
in solido.
dressed the division of retirement funds:
We believe the trial court abused its
Trial courts have broad discretion in divid-
$13,311
discretion in
in-
ing
Loyd
the marital estate
divorce.
parties’
stead of half of the total of the
Loyd,
(Tenn.App.1993);
411
S.W.2d
retirement accounts accumulated after the
Lancaster,
Lancaster v.
marriage.
obviously
The trial court was
(Tenn.App.1984).
by
express finding
influenced
his
that “a
36-5-101(d)(l)
§
good
provides:
has been
T.C.A.
[the increase]
(H)
regard
made with
assembly
provisions
The
general
It is
intent of the
as
36-4-
economically
the marital
defined
spouse
disad-
that a
who is
spouse,
vantaged,
to the other
relative
121;
possible by the
whenever
rehabilitated
(I)
living the
es-
parties
The
standard
payment
of an
granting
order for
reha-
marriage;
during
tablished
bilitative, temporary support and mainte-
(J)
has
which each
The extent
is such relative
nance. Where there
eco-
intangible contri-
tangible
made such
and
disadvantage
nomic
and rehabilitation is
marriage
monetary
as
butions to
of all relevant
not feasible
consideration
contributions,
tangible
homemaker
factors,
set out in
sub-
including those
this
party to
intangible contributions
section,
may grant
then
the court
order
education, training or
earn-
increased
payment
support and
maintenance
party;
ing power
the other
long-term
or until the death or
on a
basis
(K)
parties
fault
relative
except
remarriage
recipient
oth-
as
court,
discretion,
its
cases where
(a)(3).
provided in
Re-
erwise
subdivision
so;
appropriate
it
to do
deems
is a
habilitative
and maintenance
(L)
factors,
tax
including the
Such other
spousal support
class
distin-
party,
consequences
each
as are neces-
period-
guished from
solido
*5
sary
equities
to consider the
between
alimony.
determining
In
ic
whether
parties.
granting
payment
sup-
of an
for
order
of
(1996).
36-5-101(d)(l)
§
T.C.A
party is
port
appro-
and maintenance to a
nature,
priate,
determining
ability
pay
to
the critical
Need and the
are
amount,
term,
length
alimony
of
and manner of
of
setting
the amount
an
factors
payment,
Smith,
155,
all
court shall consider
rele-
159
v.
912 S.W.2d
award. Smith
factors,
Lancaster,
including:
vant
(Tenn.App.1995);
671 S.W.2d
Lancaster,
(A)
In
this Court stated:
earning capacity,
The relative
obli-
needs,
gations,
of
and financial resources
Alimony
has
intend-
not and never
been
is
pension,
party, including
from
each
income
punitive.
to be
legislature
ed
our
See
profit sharing
plans
all
or retirement
580,
McClung McClung,
Tenn.App.
29
v.
sources;
other
(1947).
820,
do we
198
822
Nor
S.W.2d
(B)
simply
training
it
as an award
The relative education and
of
believe
intended
designed
as
party,
ability
opportunity
It
not
to serve
each
of
virtue.
is
wife; or
party
annuity
to
such education
an
for the
as Professor
each
secure
alimony
purpose
training,
necessity
party
of a
to
has
“[t]he
Clark
stated
divorce,
further
needs
training
secure
education and
is to care for the wife’s
after
profit-
a
improve
party’s earning capacity
provide
such
to a
not to
her with
life-time
Clark,
level;
sharing plan.”
Law Domestic
H.
reasonable
14.9(4) (1968).
Relations
(C)
marriage;
The
duration
(D)
age
The
condition of each
awarding alimony
and mental
as
propriety of
Id. The
party;
awarded
adequacy
well as the
amount
unique facts of each case.
(E)
depends
physical
party,
of each
The
condition
(Tenn.
Butler,
467,
Butler v.
470
to, physical
including, but not limited
dis-
alimony
to be
App.1984). The amount
ability
incapacity
or
to a chronic
due
debili-
for the trial court’s
disease;
awarded
a matter
tating
particular circum
in view of the
discretion
(F)
The extent to which it would
unde-
case,
appellate
and the
courts
stances
party
employment
for a
to seek
sirable
except
not
to alter the awards
are
inclined
such
will
outside
home because
where the
reflects
such discretion
record
minor
mar-
be custodian of a
child
Gilliam,
been
Gilliam
has
abused.
riage;
(Tenn.App.1988).
S.W.2d
(G)
separate
party,
of each
assets
monthly
Wife’s
personal, tangible
Husband
net
real and
and intan-
asserts
both
his,
more
than
that she has
income more
gible;
separate property,
quate
and that her income ex-
property and income is not entitled to
expenses.
ceeds her
monthly
Wife’s net
in-
an
alimony
compen
award
additional
come is
and Husband’s net month-
attorney’s
expenses.
sate for
fees and
See
$2,271.64.
ly
addition,
income is
Duncan,
(Tenn.
Wife Duncan v.
Wife will have received or 51% of just by parent desired the custodial or the estate, the marital and Husband will have minor child.” received or 49% of the estate. We find that this division of the marital provide upward The Guidelines for the ad- equitable considering assets is more the cir- justment support extraordinary of child for cumstances of this case. expenses: educational (1) percentage Since these amounts are issue, In argues his second Husband mínimums, the court shall increase the by that the trial awarding court erred Wife award calculated in Rule 1240-2-4-.03 for as additional in solido for following reasons: attorney’s her fees. In determining whether fees, to attorney’s award the trial court again
should consider the relevant factors in 5—101(d)(1). T.C.A. Kincaid v. Kin 36— (c) Extraordinary expenses educational caid, 140, (Tenn.App.1995). 912 S.W.2d extraordinary expenses medical not party When one demonstrates that it is fi by covered insurance shall be added to the counsel, nancially unable to afford when percentage calculated in the above rule. party ability pay, the other has to Comp. Regs. Tenn. R. & tit. ch. 1240-2- may properly court order the other to 4-.04-.04(1)(c) (1994). pay attorney’s fees. Id. An award of attor ney’s Dwight Dwight, fees is within the discretion of v. sound 936 S.W.2d court, pre (Tenn.App.1996), pri- trial and unless the evidence this Court found that ponderates award, against the it will not be vate school tuition is not to be considered as appeal. spouse support disturbed on Id. A with ade a of child under the Guide- testifying is a far better can demeanor while percentages line and that child is- to those position than this Court decide adjusted upward private school tuition. be for Bank, Brighton Mays sues. Id. 950. The choice to send a child to weight, (Tenn.App.1992). The be 351-52 is not one that must made private school faith, given any witness’s to be if the credit by professional a to determine added needed, first with testimony lie in the instance the courts al- expense is have will fact, credibility accorded private trier of and the upward school lowed deviation by appellate court. given great weight considering whose decision it tuition without Id. at 352. private school. was to send child to addition, private is a school tuition never prepon- say We cannot evidence “necessary” expense, do and the Guidelines against the trial court’s decision derates extraordinary say that educational grounds a to Wife on the award divorce “necessary.” expense must be conduct. inappropriate marital case, Likewise, in this do not we believe judgment the trial Accordingly, Europe child to
that the decision to send a attorney reversed. awarding court fees is “professional,” be made and be- must judgment require modified to Wife extraordinary expenses are cause educational $30,000.00for in the pay equity his “necessary” expenses, not limited and, remand, home, court on the trial marital in ordering did not err Husband to payment the manner for shall determine trip Europe.4 his daughter’s necessary security for the any this sum and in all judgment payment. The affirmed Finally, argues that tri as- respects. appeal are other Costs erred in al court divorce to Wife parties. equally to the sessed only. ignored He asserts that the trial court inappropriate acts the numerous marital FARMER, J., concurs. part on the Wife conduct of Wife. admitted she had an with a co-worker in affair HAYES, J., part, concurs dissents 1980, and Husband that there was testified opinion. part by separate an absence of from the mar love HAYES, dissenting part; Judge, verbally riage and that Wife abused him. concurring part. him appreciated He stated Wife never hand, encouraged him. On the other *7 from of respectfully I that dissent that Wife testified she loved Husband and that opinion which concludes majority’s the fully appreciated for him. and cared in solido the trial court’s award by majority, the excessive. As noted the was court The trial awarded divorce mari- of the trial court’s order awarded 58% grounds inappropriate marital Wife on the percent 42% of the tal estate wife and to the conduct and found that Husband’s relation- court’s This marital estate to husband. Irving ship precipitated the divorce. with more attempt “a ruling, achieve its her testified that Husband told that he division,” mari- awards of the equitable 51% more he Irving loved than Wife to the percent wife and 49% tal estate to the relationship par- his new with discussed husband. ties’ children. The evidence showed spent Irving Husband lent appeal, guided by is On our review phone Finally, on bills. principle the trial court’s division Irving’s find happened testified that he correct, presumed unless marital phone book while he phone number preponderates otherwise. evidence visiting library. local 13(d). Moreover, P., Rule R.App. Tenn. simply inequitable rendered issues a ease division is not
When the resolution of the Ellis v. witnesses, precisely equal. because it is depends the truthfulness Ellis, (Tenn.1988). A judge opportunity to the trial who has the the trial record reflects that review the observe the witnesses their manner trip. than one-half of the cost of the 4. We note that is less properly court relevant in considered factors
arriving at an equitable of the mari- division Specifically,
tal estate. the court noted the
eighteen year parties’ duration mar- of the estate,
riage, contributions to marital age physical party, of each health each, earning capacity
and the relative in-
cluding training. education and With re- factor,
spect to the last court the trial noted degree
that the husband holds a master’s
biochemistry and that is a the wife medical
technologist. employed husband is University Memphis as a Tennessee — Moreover, proof
research associate. es- greater,
tablished that the wife’s income part, due to the fact that she holds two
jobs Finally, as a technologist. medical observed is in that the husband wife, health
good has been while the who di- melanpma,
agnosed malignant with has percent living
40% chance of another five
years. record,
Upon de novo review of I am prepon-
unable conclude that the evidence against findings
derates trial court’s
that an error of law has been committed.
Accordingly, although I with the ma- concur
jority remaining as to the on issues raised I
appeal, would affirm court’s the trial award alimony in solido. MABON, spouse surviving
Robert representative
personal Estate of Mabon, Plaintiff-Appellant, Mae
Jewel
JACKSON-MADISON GENER- COUNTY George
AL HOSPITAL and E. Thom-
as, M.D., Defendants-Appellees. Tennessee, Appeals
Court of Section,
Western at Jackson.
Sept. 1997.
Application Appeal for Permission to by Supreme April
Denied Court Thomas, Thomas, Memphis,
Al Ira M. H. Plaintiff-Appellant.