Mary Ann Umstot v. Edward Shirer Umstot - Dissenting/Concurring

• Court: Court of Appeals of Tennessee
• Decided: September 5, 1997
• Docket: 02A01-9701-CV-00008
• Status: Published

Opinion

IN THE COURT OF APPEALS OF TENNESSEE WESTERN SECTION AT JACKSON

MARY ANN UMSTOT, FILED No. 02A01-9701-CV-00008 Plaintiff/Counter-Defendant/Appellee September 5, 1997 Shelby Circuit No. 150200 R.D. Vs. Cecil Crowson, Jr. Appellate C ourt Clerk EDWARD SHIRER UMSTOT,

Defendant-Counter-Plaintiff/Appellant.

DISSENTING IN PART; CONCURRING IN PART

I respectfully dissent from that portion of the majority's opinion which

concludes that the trial court's award of alimony in solido was excessive. As

noted by the majority, the trial court's order awarded 58% of the marital estate to

the wife and 42% percent of the marital estate to the husband. This court's

ruling, in its attempt to achieve “a more equitable division," awards 51% of the

marital estate to the wife and 49% percent to the husband.

On appeal, our review is guided by the principle that the trial court's

division of marital property is presumed correct, unless the evidence

preponderates otherwise. Tenn. R. App. P., Rule 13(d). Moreover, a division is

not rendered inequitable simply because it is not precisely equal. Ellis v. Ellis,

748 S.W.2d 424, 427 (Tenn. 1988). A review of the record reflects that the trial

court properly considered factors relevant in arriving at an equitable division of

the marital estate. Specifically, the court noted the eighteen year duration of the

parties' marriage, contributions to the marital estate, the age and physical health

of each party, and the relative earning capacity of each, including education and

training. With respect to the last factor, the trial court noted that the husband

holds a master's degree in biochemistry and that the wife is a medical

technologist. The husband is employed at the University of Tennessee -

Memphis as a research associate. Moreover, the proof established that the wife's income is greater, in part, due to the fact that she holds two jobs as a

medical technologist. Finally, the trial court observed that the husband is in good

health while the wife, who has been diagnosed with malignant melanoma, has a

40% percent chance of living another five years.

Upon de novo review of the record, I am unable to conclude that the

evidence preponderates against the trial court's findings or that an error of law

has been committed. Accordingly, although I concur with the majority as to the

remaining issues raised on appeal, I would affirm the trial court's award of

alimony in solido.

____________________________________ DAVID G. HAYES, Judge