Dixie Millburn Selby v. Landon Selby

• Court: Court of Appeals of Tennessee
• Decided: December 6, 1996
• Docket: 01A01-9604-CH-00159
• Status: Published

Opinion

DIXIE MILLBURN SELBY, ) ) Plaintiff/Appellee, ) Appeal No. ) 01-A-01-9604-CH-00159 v. ) ) Rutherford Chancery LANDON SELBY, ) No. 94DR-775 ) Defendant/Appellant. ) FILED COURT OF APPEALS OF TENNESSEE December 6, 1996

Cecil W. Crowson MIDDLE SECTION AT NASHVILLE Appellate Court Clerk

APPEAL FROM THE CHANCERY COURT FOR RUTHERFORD COUNTY

AT MURFREESBORO, TENNESSEE

THE HONORABLE DON R. ASH, CHANCELLOR

DAVID W. GARRETT 214 Second Avenue, North Suite 103 Nashville, Tennessee 37201 ATTORNEY FOR PLAINTIFF/APPELLEE

TERRY A. FANN Waldron and Fann 202 West Main Street Murfreesboro, Tennessee 37130 ATTORNEY FOR DEFENDANT/APPELLANT

AFFIRMED AND REMANDED SAMUEL L. LEWIS, JUDGE 1 MEMORANDUM OPINION This is an appeal by defendant/appellant, Landon Selby, from

a decision of the chancery court which granted appellant and

plaintiff/appellee, Dixie Millburn Selby, a divorce and distributed

the parties' marital and separate assets. The facts out of which

this case arose are as follows.

The parties married on 17 July 1987. At the time of the

marriage, appellant was forty-nine and appellee was forty-seven.

Both parties entered the marriage with separate property. Appellee

owned six duplexes on Glaze Court and five lots in Dixieland

Estates ("the lots"). The duplexes were encumbered by a

$140,000.00 debt. Appellant owned a house, a truck, and a boat and

trailer all of which were free of debt.

Three years after the wedding, appellant lost his job. He

began managing the Glaze Court duplexes and the lots instead of

obtaining outside employment. Appellant claimed that his

management increased the property values. In addition, he pointed

out that at the time of the divorce the parties had reduced the

debt on the duplexes to $29,365.00 and claimed that this was due,

in part, to his management.

During the marriage, appellee accumulated retirement

benefits of $14,809.15 and appellant accumulated retirement

benefits of $8,538.30. The parties maintained joint banking

1 Co u r t o f Ap p e a l s Ru l e 1 0 ( b ) : Th e Co u r t , wi t h t h e c o n c u r r e n c e o f a l l j u d g e s p a r t i c i p a t i n g i n t h e c a s e , ma y a f f i r m, r e v e r s e o r mo d i f y t h e a c t i o n s o f t h e t r i a l c o u r t b y me mo r a n d u m o p i n i o n wh e n a f o r ma l o p i n i o n wo u l d h a v e n o pr e c e de nt i a l val ue . W e n a c a s e i s d e c i d e d b y me mo r a n d u m o p i n i o n h i t s h a l l b e d e s i g n a t e d " M ORANDUM OP I NI ON, " s h a l l n o t b e EM publ i s he d, and s ha l l not be c i t e d or r e l i e d on f or any r e a s on i n a s u bs e q ue nt unr e l a t e d c a s e .

2 accounts. In addition, they had two certificates of deposit worth

$10,000.00 each. The parties also purchased a seventh duplex at

1026-28 Glaze Court.

The parties separated on 11 July 1994. On that date,

appellee withdrew a total of $44,000.00 from the parties' joint

account and the duplex account. Appellee filed her complaint for

divorce on 15 July 1994. On 11 August 1995, the parties filed a

Joint Stipulation and Statement in Compliance with Rule 12.02 of

the local rules. Two of the items left blank in the stipulation

were the agreed values of the appreciation of the properties

brought into the marriage by appellee.

The court entered its final decree of divorce on 7 September

1995. The court awarded the parties a divorce and distributed the

marital and separate property. Appellant received: 1) one

$10,000.00 certificate of deposit; 2) equity in the Thompson

Mechanic retirement account ($8,593.29); 3) appreciation in the

house on Holston Drive ($7,000.00); 4) duplex at 1031-33 Glaze

Court ($40,000.00); 5) John Deere tractor ($1,750.00); 6) funds in

cash investment account ($16,259.50); 7) checking account

($13,500.00); 8) home on Holston Drive, his truck, and his boat and

trailer; and 9) furniture and other personal items. In addition,

the court held that the Thompson Mechanic retirement account equity

was a marital asset and that the home on Holston Drive, the truck,

and the boat and trailer were separate assets. Appellee received:

1) appreciation on the 6 Glaze Court duplexes brought into the

marriage by appellee ($50,000.00); 2) duplex at 1026-28 Glaze

Court; 3) appreciation on the lots ($20,000.00); 4) one $10,000.00

certificate of deposit; 5) responsibility for the note on the

duplexes ($29,265.91); 6) the Glaze Court duplexes; 7) duplex

account ($28,702.00); 8) 1992 Caprice Classic ($12,500.00); 9) VA

thrift savings plan ($9,641.27); 10) SEP account ($5,167.88); 11)

3 the lots; 12) furniture and other personal items; and 13) Calvary

Bank checking account. Moreover, the court specifically held that

the appreciation in the properties owned by appellee prior to the

marriage was a marital asset as well as the duplex located at 1026-

28 Glaze Court. As to appellee's separate property, the court held

that the properties brought into the marriage by appellee and her

Calvary Bank checking account were separate assets. Although the

court did not clearly identify each asset as marital or separate or

value each asset, it found that it had awarded appellant $97,102.79

in marital assets and appellee $106,644.09 in marital assets.

On 19 September 1995, appellant filed a motion to alter or

amend. Appellant argued that the court failed to consider the

$44,000.00 in withdrawals made by appellee and the reduction in the

debt on the Glaze Court properties. On 29 December 1995, the court

entered an order on appellant's motion. The court found that it

should have considered $26,000.00 of the $44,000.00 which appellee

had withdrawn from the parties' joint account. Thus, the court

adjusted the parties' cash awards by ordering appellee to pay

appellant $5,520.00. The court held that appellant's claim as to

the reduction in debt was without merit.

Appellant filed his notice of appeal on 5 January 1996 and

presented the following issues:

1. Whether the trial court erred in its valuation and distribution of the separate and marital property of the parties? 2. Whether the trial court erred by failing to value the equity gained in the duplex properties as marital property, and to include as the equity position of the duplex properties debt reduction which was paid during the marriage, as well as the appreciation in said real property?

In her reply brief, appellee responded to these issues and

requested attorney's fees on appeal.

4 We have reviewed this record and are of the opinion that the

evidence does not preponderate against the trial court's division

of the marital property or of the separate property. The evidence

further does not preponderate against the trial court's evaluation

of the equity in the duplex properties.

We are of the opinion that appellee is entitled to an award

of attorney's fees on appeal. On remand, the trial court shall

determine a reasonable fee for the attorney's representation of

appellee on appeal.

Therefore, it results that the judgment of the trial court

is in all things affirmed, and the cause is remanded to the trial

court for any further necessary proceedings. Costs on appeal are

taxed to the defendant/appellant, Landon Selby.

__________________________________ SAMUEL L. LEWIS, JUDGE

CONCUR:

_________________________________ HENRY F. TODD, P.J., M.S.

WILLIAM C. KOCH, JR., J. DISSENTING IN SEPARATE OPINION

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