BRENDA L. GRAY, ) ) Plaintiff/Appellee, ) Appeal No. ) 01-A-01-9508-CV-00359 v. ) ) Sumner Circuit STEPHEN D. GRAY, ) No. 12431-C ) Defendant/Appellant. ) FILED COURT OF APPEALS OF TENNESSEE March 6, 1996
MIDDLE SECTION AT NASHVILLE Cecil W. Crowson Appellate Court Clerk
APPEAL FROM THE CIRCUIT COURT FOR SUMNER COUNTY
AT GALLATIN, TENNESSEE
THE HONORABLE THOMAS GOODALL, JUDGE
JOE P. BINKLEY, SR. First American Center 315 Deaderick Street Suite 2395 Nashville, Tennessee 37238
JOHN BELL WHITESELL 150 Second Avenue North, Suite 300 Nashville, Tennessee 37201 ATTORNEYS FOR PLAINTIFF/APPELLEE
CAROL L. SOLOMAN 214 Second Avenue North 400 Washington Square Nashville, Tennessee 37201
THOMAS F. BLOOM 500 Church Street Fifth Floor Nashville, Tennessee 37219 ATTORNEYS FOR DEFENDANT/APPELLANT
AFFIRMED AND REMANDED SAMUEL L. LEWIS, JUDGE MEMORANDUM OPINION1
Following a marriage of approximately eight years, Wife
filed a complaint for absolute divorce in November 1993. In her
complaint, she alleged adultery, inappropriate marital conduct, and
irreconcilable differences. Husband answered and filed a counter-
complaint which alleged cruel and inhuman treatment, inappropriate
marital conduct, and irreconcilable differences.
After the pre-trial conference in October 1994, the trial
court declared the parties divorced pursuant to Tennessee Code
Annotated section 36-4-120 and held that either party could present
evidence of fault where relevant at the final hearing. On 13 March
1995, the trial court held the final hearing and heard the parties’
arguments.
In its decree of 23 March 1995, the trial court divided the
disputed items of separate and marital property. The trial court
awarded Wife a Corvette automobile, a 1992 Cadillac automobile, and
a Clayton-Marcus sofa. In addition, the court ordered Wife to
assume responsibility for keeping proper insurance coverage on the
automobiles, to assume all indebtedness on the automobiles, and to
hold Husband harmless from any future payments on the automobiles.
The trial court equally divided the net proceeds of $60,804.00 from
the sale of the parties’ marital home. The trial court ordered
Husband to be responsible for and hold Wife harmless from all debts
incurred by Husband. As to any remaining items of marital
property, the trial court instructed the parties to submit their
proposed division for its consideration.
1 Court of Appeals Rule 10(b): The Court, with the concurrence of all judges participating in the case, may affirm, reverse or modify the actions of the trial court by memorandum opinion when a formal opinion would have no precedential value. When a case is decided by memorandum opinion it shall be designated "MEMORANDUM OPINION," shall not be published, and shall not be cited or relied on for any reason in a subsequent unrelated case.
2 In a supplemental order entered on 28 March 1995, the court
divided the remaining marital property. The court also awarded
Wife $10,755.00 for attorney’s fees and $10,000.00 alimony in
solido as further distributions of the marital property.
Husband filed a notice of appeal as to that portion of the
decree distributing the marital property.
The parties’ marriage lasted for approximately eight years.
At the time of the divorce hearing, Wife was 44 years old and
Husband was 37 years old. There were no children born as a result
of the marriage.
At the time of the parties’ marriage in 1986, Wife worked
at Cummings Sign Company. She worked there until she was “laid
off” on 30 September 1990. After losing her job, she was unable to
find suitable work in the job market. For the next three years,
she helped Husband in every aspect of his mobile home hauling
business. Her responsibilities included escorting mobile homes,
keeping the company books, and balancing the checkbooks. She also
mowed grass, picked up parts, and did anything else that needed to
be done. At trial, Husband admitted that Wife’s work, which was
mostly uncompensated, saved money for the company. In addition to
working in the business, Wife also maintained the home and did
everything necessary to keep the house going and Husband
comfortable.
During the parties’ marriage, Husband acquired vehicles,
equipment, and assets used in the business. He also acquired race
cars and related racing tools and equipment. Wife valued all the
vehicles, equipment, and other assets used in the business as well
as the race cars and related racing tools and equipment acquired
and accumulated during the marriage at $143,000.00. Wife asked the
3 court to award her the 1972 Corvette automobile which she testified
Husband had given her as a gift during the marriage. The parties
agreed that the Corvette’s value was approximately $7,500.00.
Shortly after their marriage, the parties purchased a home
for $160,000.00. Wife initially paid $26,000.00 from the sale of
her pre-marriage home as a down payment for the marital home.
Husband’s testimony was that he initially paid $7,000.00 or
$8,000.00 down on the marital home and that he later added
improvements. Even though Wife’s initial investment of pre-marital
assets into the marital home was approximately three times that of
Husband’s, Wife agreed to split the net proceeds from the sale of
the marital home equally with Husband.
The parties had only one joint debt which was on the
Cadillac automobile. Husband, however, argued that both of the
parties were responsible for a VISA credit card debt of some
$4,000.00. He admitted that the VISA account was solely in his
name and that the Wife had never used the VISA card. Nevertheless,
he asked the court to split the indebtedness between the parties
because he claimed to have used the card to pay off “household
stuff” and to make a house payment on one occasion. Husband was
unable to substantiate these claims.
It was Wife’s testimony that the VISA card debt belonged
solely to Husband. She explained that Husband had used his credit
card exclusively to make purchases for himself. She also testified
regarding his purchase of a race motor using a $4,000.00 credit
card cash advance. The trial court held that Husband was
responsible for and would pay the VISA credit card debt.
During the marriage, the parties owned two certificates of
deposit each with a value of $10,000.00, not including the amount
4 of interest accrued during the marriage. Husband cashed the
certificates in March 1994 even though they were the joint property
of the parties. Wife never ascertained what Husband did with the
proceeds of the certificates of deposit; however, at the hearing,
it was shown that Husband had paid $20,500.00 as a down payment
toward the purchase of a house in January 1995.
Husband’s own proof of his income contradicted his testimony
regarding the source of the down payment. He testified that he
received the $20,500.00, which he used for the down payment on the
house, from Luv Homes for contract labor he had performed. In that
same hearing, however, he testified that he was destitute and
introduced an income and expense statement to show that he had an
income of only $25,000.00 before taxes in 1994. The irony of this
testimony lies in the fact that less than one month after Husband’s
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BRENDA L. GRAY, ) ) Plaintiff/Appellee, ) Appeal No. ) 01-A-01-9508-CV-00359 v. ) ) Sumner Circuit STEPHEN D. GRAY, ) No. 12431-C ) Defendant/Appellant. ) FILED COURT OF APPEALS OF TENNESSEE March 6, 1996
MIDDLE SECTION AT NASHVILLE Cecil W. Crowson Appellate Court Clerk
APPEAL FROM THE CIRCUIT COURT FOR SUMNER COUNTY
AT GALLATIN, TENNESSEE
THE HONORABLE THOMAS GOODALL, JUDGE
JOE P. BINKLEY, SR. First American Center 315 Deaderick Street Suite 2395 Nashville, Tennessee 37238
JOHN BELL WHITESELL 150 Second Avenue North, Suite 300 Nashville, Tennessee 37201 ATTORNEYS FOR PLAINTIFF/APPELLEE
CAROL L. SOLOMAN 214 Second Avenue North 400 Washington Square Nashville, Tennessee 37201
THOMAS F. BLOOM 500 Church Street Fifth Floor Nashville, Tennessee 37219 ATTORNEYS FOR DEFENDANT/APPELLANT
AFFIRMED AND REMANDED SAMUEL L. LEWIS, JUDGE MEMORANDUM OPINION1
Following a marriage of approximately eight years, Wife
filed a complaint for absolute divorce in November 1993. In her
complaint, she alleged adultery, inappropriate marital conduct, and
irreconcilable differences. Husband answered and filed a counter-
complaint which alleged cruel and inhuman treatment, inappropriate
marital conduct, and irreconcilable differences.
After the pre-trial conference in October 1994, the trial
court declared the parties divorced pursuant to Tennessee Code
Annotated section 36-4-120 and held that either party could present
evidence of fault where relevant at the final hearing. On 13 March
1995, the trial court held the final hearing and heard the parties’
arguments.
In its decree of 23 March 1995, the trial court divided the
disputed items of separate and marital property. The trial court
awarded Wife a Corvette automobile, a 1992 Cadillac automobile, and
a Clayton-Marcus sofa. In addition, the court ordered Wife to
assume responsibility for keeping proper insurance coverage on the
automobiles, to assume all indebtedness on the automobiles, and to
hold Husband harmless from any future payments on the automobiles.
The trial court equally divided the net proceeds of $60,804.00 from
the sale of the parties’ marital home. The trial court ordered
Husband to be responsible for and hold Wife harmless from all debts
incurred by Husband. As to any remaining items of marital
property, the trial court instructed the parties to submit their
proposed division for its consideration.
1 Court of Appeals Rule 10(b): The Court, with the concurrence of all judges participating in the case, may affirm, reverse or modify the actions of the trial court by memorandum opinion when a formal opinion would have no precedential value. When a case is decided by memorandum opinion it shall be designated "MEMORANDUM OPINION," shall not be published, and shall not be cited or relied on for any reason in a subsequent unrelated case.
2 In a supplemental order entered on 28 March 1995, the court
divided the remaining marital property. The court also awarded
Wife $10,755.00 for attorney’s fees and $10,000.00 alimony in
solido as further distributions of the marital property.
Husband filed a notice of appeal as to that portion of the
decree distributing the marital property.
The parties’ marriage lasted for approximately eight years.
At the time of the divorce hearing, Wife was 44 years old and
Husband was 37 years old. There were no children born as a result
of the marriage.
At the time of the parties’ marriage in 1986, Wife worked
at Cummings Sign Company. She worked there until she was “laid
off” on 30 September 1990. After losing her job, she was unable to
find suitable work in the job market. For the next three years,
she helped Husband in every aspect of his mobile home hauling
business. Her responsibilities included escorting mobile homes,
keeping the company books, and balancing the checkbooks. She also
mowed grass, picked up parts, and did anything else that needed to
be done. At trial, Husband admitted that Wife’s work, which was
mostly uncompensated, saved money for the company. In addition to
working in the business, Wife also maintained the home and did
everything necessary to keep the house going and Husband
comfortable.
During the parties’ marriage, Husband acquired vehicles,
equipment, and assets used in the business. He also acquired race
cars and related racing tools and equipment. Wife valued all the
vehicles, equipment, and other assets used in the business as well
as the race cars and related racing tools and equipment acquired
and accumulated during the marriage at $143,000.00. Wife asked the
3 court to award her the 1972 Corvette automobile which she testified
Husband had given her as a gift during the marriage. The parties
agreed that the Corvette’s value was approximately $7,500.00.
Shortly after their marriage, the parties purchased a home
for $160,000.00. Wife initially paid $26,000.00 from the sale of
her pre-marriage home as a down payment for the marital home.
Husband’s testimony was that he initially paid $7,000.00 or
$8,000.00 down on the marital home and that he later added
improvements. Even though Wife’s initial investment of pre-marital
assets into the marital home was approximately three times that of
Husband’s, Wife agreed to split the net proceeds from the sale of
the marital home equally with Husband.
The parties had only one joint debt which was on the
Cadillac automobile. Husband, however, argued that both of the
parties were responsible for a VISA credit card debt of some
$4,000.00. He admitted that the VISA account was solely in his
name and that the Wife had never used the VISA card. Nevertheless,
he asked the court to split the indebtedness between the parties
because he claimed to have used the card to pay off “household
stuff” and to make a house payment on one occasion. Husband was
unable to substantiate these claims.
It was Wife’s testimony that the VISA card debt belonged
solely to Husband. She explained that Husband had used his credit
card exclusively to make purchases for himself. She also testified
regarding his purchase of a race motor using a $4,000.00 credit
card cash advance. The trial court held that Husband was
responsible for and would pay the VISA credit card debt.
During the marriage, the parties owned two certificates of
deposit each with a value of $10,000.00, not including the amount
4 of interest accrued during the marriage. Husband cashed the
certificates in March 1994 even though they were the joint property
of the parties. Wife never ascertained what Husband did with the
proceeds of the certificates of deposit; however, at the hearing,
it was shown that Husband had paid $20,500.00 as a down payment
toward the purchase of a house in January 1995.
Husband’s own proof of his income contradicted his testimony
regarding the source of the down payment. He testified that he
received the $20,500.00, which he used for the down payment on the
house, from Luv Homes for contract labor he had performed. In that
same hearing, however, he testified that he was destitute and
introduced an income and expense statement to show that he had an
income of only $25,000.00 before taxes in 1994. The irony of this
testimony lies in the fact that less than one month after Husband’s
destitute year ended, he came up with a down payment of $20,500.00,
80% of his 1994 before tax income, with which to purchase a new
house.
Husband’s explanation for how he spent the $20,000.00 in
proceeds from the certificates of deposit was also suspect. He
testified that he spent the money on household bills, company
expenses, and to catch up on house payments “at the end.” The
proof showed, however, that Husband’s explanation was clearly
erroneous. The marital home was sold in February 1993. At the
closing, three months of back payments on the house note and back
taxes were deducted from the sale proceeds. Moreover, Husband did
not cash the certificates of deposit until more than a year after
the sale of the marital home.
Husband’s issue is whether the trial court properly awarded
alimony in solido and attorney’s fees to Wife as further
distributions of the marital property.
5 We review the findings of the trial court de novo upon the
record with a presumption of correctness as to the trial judge’s
findings unless the evidence preponderates otherwise. Tenn. R.
App. P. 13(d).
In this case, the evidence does not preponderate against the
trial court’s findings. We are of the opinion, after reviewing
this record, that the preponderance of the evidence fully supports
the findings of the trial court.
Therefore, we affirm the judgment of the trial court and
remand the case to the trial court for any further necessary
proceedings. Costs on appeal are taxed to the appellant, Stephen
D. Gray.
__________________________________ SAMUEL L. LEWIS, JUDGE
CONCUR:
_________________________________ HENRY F. TODD, P.J., M.S.
_________________________________ BEN H. CANTRELL, JUDGE