Barnhill v. Barnhill

826 S.W.2d 443, 1991 Tenn. App. LEXIS 561
CourtCourt of Appeals of Tennessee
DecidedJuly 17, 1991
StatusPublished
Cited by212 cases

This text of 826 S.W.2d 443 (Barnhill v. Barnhill) is published on Counsel Stack Legal Research, covering Court of Appeals of Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Barnhill v. Barnhill, 826 S.W.2d 443, 1991 Tenn. App. LEXIS 561 (Tenn. Ct. App. 1991).

Opinions

FARMER, Judge.

This is a divorce action in which the parties appeal the trial court’s distribution and valuation of their marital assets, the trial court’s custodial award, and the wife appeals the denial of her request for alimony and attorney’s fees.

The parties were married August 8, 1971 in Wayne County, Tennessee. Three sons were born of the marriage: one in 1979 and twins in 1981. Prior to the parties’ marriage the defendant, James Howell Barnhill (hereinafter “Husband”), received a bachelor degree in math and physics from UT Martin. During the initial stages of the marriage, the parties moved several times because Husband was in the Army. When the parties ultimately moved to Memphis the plaintiff, Sherri Lee Barnhill (hereinafter “Wife”), enrolled in a dental hygiene program at the University of Tennessee. While in school she worked two or three nights a week as a dental assistant and weekends at K-Mart. Husband worked various jobs during this period which included a job at Coca-Cola and painting apartments. Wife graduated from the dental hygiene program in 1975. In January 1976, Husband enrolled in dental school at the University of Tennessee. Husband quit work at this time, but he received G.I. benefits while attending school. He graduated in December of 1978 and began prac[446]*446ticing dentistry in March 1979. Shortly thereafter, Wife became pregnant and quit work for several months. After the oldest son was born Wife began to work for Husband as a dental hygienist.

Husband sold his dental practice in October 1987 to Dr. Benson Parris for $97,500. Wife adamantly protested the sale of this dental practice. Allegedly, Husband sold his practice due to disabling health which was attributable in most part to a disease described as spondylitis. After the sale, Husband received disability insurance in the amount of $3,180 a month. Wife continued to work as a dental hygienist until June 16, 1988 at which time she started Davis-Lee, Inc., a construction company. Prior to the sale of the dental business the parties started a greenhouse and sod operation. Since October 1987 the sod operation has been Husband’s main occupation. On November 20, 1989, Husband’s disability benefits were terminated.

On November 9, 1988, Wife filed a complaint for divorce and Husband responded with a counter complaint. At the time of the divorce the parties’ marital assets consisted of the residence, furniture and household items, bank accounts, IRA’s, certificate of deposit, vehicles, Davis-Lee, Inc., the sod business, and certain real estate. Both parties sought custody of the parties’ three minor children. After a hearing on this matter, the trial court found that:

The Court finds that the evidence does not support the allegations in the Complaint filed by Plaintiff, Sherri Lee Barn-hill, that the Defendant, James Howell Barnhill, is guilty of cruel and inhuman treatment....
It further appeared to the Court that the allegations in the countercomplaint filed by James Howell Barnhill are true, and that the counterdefendant, Sherri Lee Barnhill, is guilty of such cruel and inhuman treatment or conduct toward the counterplaintiff, James Howell Barn-hill.... and he is, hereby awarded an absolute divorce....
The Court determined that in the best interest and welfare of the parties’ three minor children ... that Plaintiff and Defendant have Joint Custody of said minor children, with Defendant to have said children during the school year and Plaintiff to have said children during the summer months when said children are not enrolled in school....
The Court did find that the marital property should be divided equally....
The Court did find that neither party would owe child support to the other for maintenance of said minor children, but that Defendant will be solely responsible for the maintenance, upkeep and support of the children, particularly in consideration of the finding of the Court that the Sod business awarded to Defendant was much more valuable than the Construction business awarded to Plaintiff.... [T]hat Plaintiff is not entitled to receive from Defendant alimony.... and finds that each party shall pay their own attorney’s fees....

It is from this judgment that the parties appeal. The issues as set forth by the parties are:

I. Whether or not the trial court erred in granting a divorce to Husband rather than to Wife.
II. Whether or not the trial court erred in its distribution of marital property-
ill. Whether or not the trial court erred in failing to award exclusive custody of the parties’ three minor children to Wife.
IV. Whether or not the trial court erred in failing to award reasonable alimony to Wife.
V. Whether or not the trial court erred in denying Wife’s request for an award of attorney’s fees.
VI. Whether or not the trial court erred in failing to rule on Wife’s motion in limine to hold inadmissible evidence derived from taped telephone conversations.
VII. Whether or not the trial court erred in not allowing Husband to testify concerning the values of the properties of the parties.
[447]*447VIII. Whether or not the trial court erred in allowing Emmett Yeiser, Jr., to testify as an expert.
IX. Whether or not the trial court erred in failing to recuse himself since he is not a lawyer.

I.

Grounds for Divorce

Wife contends that there was insufficient evidence to support the trial court’s determination that Wife was guilty of cruel and inhuman treatment. Wife also insists that the preponderance of the evidence supports her position that Husband was guilty of cruel and inhuman treatment. On appeal the trial court’s factual findings are accompanied by a presumption of correctness. We will affirm the trial court’s factual determinations unless we find that the preponderance of the evidence is otherwise. T.R.A.P. 13(d).

Husband presented evidence that Wife spent an inordinate amount of time with a gentleman friend and business associate; that she threatened Husband with a gun, verbally abused him, threw furniture at him and, that he overheard a conversation between Wife and the gentleman friend indicating that they intended to do him physical harm. Wife contends that Husband exhibited inappropriate marital conduct by selling his dentistry practice and that this placed great stress on their marriage and undue hardship on the family.

Husband testified that he quit practicing dentistry because:

Q Now, just tell the Judge why you quit practicing.
A Well, at the time, I didn’t know what specifically was wrong with me, and I had been going to several doctors to find out. I knew there was something wrong with me, and, finally, after a few months, I ended up going to Memphis to have what they call an MRI, a magnetic residence (sic) imaging study done on my lower brain stem and cervical spine region to rule out the possibilities of a couple of fatal neurological diseases, and in the process, they found out that my central nervous system was okay, but they said that I needed to go see a rheu-matologist because I had bone spurs on all the vertebrae.

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Cite This Page — Counsel Stack

Bluebook (online)
826 S.W.2d 443, 1991 Tenn. App. LEXIS 561, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barnhill-v-barnhill-tennctapp-1991.