Patsy Wicks Dawson v. Isaac Dale Dawson

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

July 23, 2008 Session

PATSY WICKS DAWSON v. ISAAC DALE DAWSON

Appeal from the General Sessions Court for Roane County

No. 8428A & 8435A Dennis W. Humphrey, Judge

No. E2008-0199-COA-R3-CV - FILED SEPTEMBER 5, 2008

After more than eighteen years of marriage, Patsy Wicks Dawson (“Wife”) sued Isaac Dale Dawson

(“Husband”) for divorce. After a trial, the Trial Court entered an order, inter alia, awarding Husband

a divorce and distributing the marital property. Wife appeals raising an issue regarding the

distribution of the marital property. We vacate the distribution of the marital property and remand

this case to the Trial Court to value items of marital property as necessary to effectuate an equitable

division of marital property under the facts of this case such that Husband receives 60% and Wife

receives 40%. The remainder of the Trial Court’s Final Decree of Divorce is affirmed.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the General Sessions Court

Vacated, in part; Affirmed, in part; Case Remanded

D. MICHAEL SWINEY , J., delivered the opinion of the court, in which HERSCHEL P. FRANKS, P.J., and

CHARLES D. SUSANO , JR., J., joined.

James S. Smith, Jr., Rockwood, Tennessee for the Appellant, Patsy Wicks Dawson.

Browder G. Williams, Kingston, Tennessee for the Appellee, Isaac Dale Dawson.

OPINION

Background

Wife and Husband were married in July of 1988. While no children were born of the

marriage, Wife and Husband each have adult children from previous marriages. Wife sued Husband

for divorce in February of 2007.1 The case was tried without a jury.

Wife was a LPN and was in school seeking to obtain her RN license when the parties

married. Wife obtained her RN license early in the marriage. Husband, in addition to working

outside the home, owns an interest in farm property that he inherited from his parents. The farm

property consists of over 100 acres that Husband owns jointly with his sister. Wife conceded at trial

that the farm is not marital property.

Prior to the marriage, Husband and his father operated the farm together. Before the

parties were married, Husband owned ten cows and Husband’s father owned fifteen. During the

marriage, Husband inherited his father’s cows. At the time of trial, Husband owned twenty-one

cows and one bull.

During the marriage, Husband and Wife lived in a house at 1007 Swan Pond Circle

in Harriman, Tennessee. When Husband and Wife first were married, the marital home property was

owned by Husband’s parents. After the parties were married for a year or so, Husband’s parents

deeded the title to the marital home property to Husband and Wife. Husband and Wife did not pay

Husband’s parents anything when the parents deeded the property to them in 1990. No debt is owed

on the marital home property.

Daniel Holloway, a state-certified real estate appraiser, testified at trial regarding the

value of the marital home property. Mr. Holloway inspected the property approximately one month

before trial. He testified that the home is a split-level ranch, approximately thirty-three years old,

and in “a little bit below-average condition.” Mr. Holloway gave the marital home property a fair

market value of $135,000.

Wife testified that she made improvements to the marital home during the marriage.

She testified that early in the marriage, she purchased and installed five ceiling fans and that over

the years she also paid for new carpet and flooring in the kitchen, dining room, living room, and

hallway. Wife testified that she and Husband put central air in the house at a cost of approximately

$7,500, and that part of this cost was paid for using the parties’ joint income tax refund. Husband

testified that the central air was installed in the early 1990's and that he sold a group of calves to pay

for this expense. Husband could not recall if the parties had spent any of their tax refund money to

pay for the central air. Wife testified that she paid $785 to have a bathroom vanity built and also

paid $8,500 to have kitchen cabinets built and installed. Wife testified that she paid $7,000 to put

1

Husband also filed a separate suit for divorce and the Trial Court entered an order consolidating the two cases

and designating Husband’s case as a counter-complaint for divorce.

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new windows in the house. Husband produced a receipt at trial and testified that the windows were

purchased in 2002 and cost only $4,650. The carpet and floors were done shortly after the parties

married, and the cabinets were installed approximately a year before trial. Wife testified that she

spent approximately $28,600 on the house “not counting - - I mean, I’ve done electrical repairs. I’ve

repaired the electrical outlet in the bedroom. I’ve done plumbing repairs before in the bathroom.

I ran phone lines to put extra phones in the house. I ran them and installed the phones myself.” Wife

valued the marital home at $150,000, stating:

Well, there’s been a lot of building going on out there, and I’ve been looking at the

prices of just 5/10's of an acre building lot are sometimes getting $30,000. So, you

know, I’m looking at this house sitting on an acre of land and with - - I know the

outside is - - needs repairs on it and - - but, you know, you could get more than

135,000 out of it, just because of the fact it’s in Swan Pond ….

Husband testified that he has resided in the marital home for approximately thirty-two

years starting when he and his previous wife built the house. When Husband and his previous wife

divorced, she was awarded $8,000 for her interest in the home, even though the property at that time

was owned by Husband’s parents. When asked how much value he thinks that the improvements

Wife testified about added to the value of the house, Husband stated: “I would say about 8- to

$10,000, in my opinion only.” Husband testified that the property assessor valued the home at

$131,300.

Up until the time of trial, both parties continued to reside in the marital home. Wife

admitted that shortly before she filed for divorce, she stopped doing things around the house

including cooking, cleaning certain areas of the house, and paying the utilities. Wife also started

smoking in the house. A few months after she filed for divorce Wife got a dog that is not house-

trained. Wife leaves the dog inside during the day while she is at work and the dog messes on the

floors and carpets.

During the marriage, Wife paid the utility and phone bills and Husband paid for the

groceries, the real estate taxes, and the homeowner’s insurance. When either party purchased a

vehicle, the purchasing party made the payments. The parties maintained separate bank accounts

in their own names. Husband testified: “when we filed our income tax, I would sign my name and

she’d put it into an account, and that’s where the moneys would come from for big items like

[installing windows in the house].”

Wife testified that she helped out on the farm stating:

I worked on the farm after we were married. I even worked out in the fields, me and

my daughters, loading hay on the wagons. I’ve helped deliver calves. I’ve bottled

(sic) fed calves. I’ve tube fed calves. I’ve helped build fence. I’ve fed the cows in

the wintertime. I gave the cows their vaccinations every year.

Wife agreed that she did not do as much work on the farm as Husband did. When asked about work

that Wife did on the farm, Husband stated:

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about every April, we’d vaccinate our cattle. She’d give shots. And if we had a cow

had a problem, she would help deliver the calves. And lots of times, if there was any

medicine to do or having to work with them in that respect, she would - - she would

help.

Husband, however, also stated: “She done very little. I do about all of it.”

After trial, the Trial Court entered a Final Decree of Divorce (“Final Decree”) on

November 20, 2007 incorporating by reference the Trial Court’s separately filed Findings of Fact

and Conclusions of Law. In its Final Decree, the Trial Court, inter alia, awarded Husband a divorce,

ordered Husband to pay Wife $20,000 for her share of the marital home valued at $135,000, found

the livestock herd to be marital property and awarded Wife $3,000 as her share of this asset, and

distributed the remaining items of marital property.

Wife appeals the distribution of marital property to this Court.

Discussion

Although not stated exactly as such, Wife raises one issue on appeal: whether the

Trial Court’s distribution of the marital property was equitable.

Our review is de novo upon the record, accompanied by a presumption of correctness

of the findings of fact of the trial court, unless the preponderance of the evidence is otherwise. Tenn.

R. App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001). A trial court's conclusions of

law are subject to a de novo review with no presumption of correctness. S. Constructors, Inc. v.

Loudon County Bd. of Educ., 58 S.W.3d 706, 710 (Tenn. 2001).

Courts must look to Tenn. Code Ann. § 36-4-121 when determining how to distribute

property in a divorce. In pertinent part, Tenn. Code Ann. § 36-4-121 provides:

(b) For purposes of this chapter:

(1)(A) “Marital property” means all real and personal property, both tangible

and intangible, acquired by either or both spouses during the course of the marriage

up to the date of the final divorce hearing . . . .

(B) “Marital property” includes income from, and any increase in

value during the marriage of, property determined to be separate property in

accordance with subdivision (b)(2) if each party substantially contributed to its

preservation and appreciation, . . . .

***

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(D) As used in this subsection (b), “substantial contribution” may

include, but not be limited to, the direct or indirect contribution of a spouse as

homemaker, wage earner, parent or family financial manager, together with such

other factors as the court having jurisdiction thereof may determine.

***

(2) “Separate property” means:

(A) All real and personal property owned by a spouse before

marriage,….

***

(D) Property acquired by a spouse at any time by gift, bequest, devise

or descent;

***

(c) In making equitable division of marital property, the court shall consider all

relevant factors including:

(1) The duration of the marriage;

(2) The age, physical and mental health, vocational skills, employability,

earning capacity, estate, financial liabilities and financial needs of each of the

parties;

(3) The tangible or intangible contribution by one (1) party to the education,

training or increased earning power of the other party;

(4) The relative ability of each party for future acquisitions of capital assets

and income;

(5) The contribution of each party to the acquisition, preservation,

appreciation, depreciation or dissipation of the marital or separate property,

including the contribution of a party to the marriage as homemaker, wage

earner or parent, with the contribution of a party as homemaker or wage

earner to be given the same weight if each party has fulfilled its role;

(6) The value of the separate property of each party;

(7) The estate of each party at the time of the marriage;

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(8) The economic circumstances of each party at the time the division of

property is to become effective;

(9) The tax consequences to each party, costs associated with the reasonably

foreseeable sale of the asset, and other reasonably foreseeable expenses

associated with the asset;

(10) The amount of social security benefits available to each spouse; and

(11) Such other factors as are necessary to consider the equities between the

parties. . . .

Tenn. Code Ann. § 36-4-121 (2005).

A trial court has wide discretion in dividing the interest of the parties in marital

property. Barnhill v. Barnhill, 826 S.W.2d 443, 449 (Tenn. Ct. App. 1991). As noted by this Court

in King v. King, when dividing marital property:

The trial court’s goal in every divorce case is to divide the parties’

marital estate in a just and equitable manner. The division of the

estate is not rendered inequitable simply because it is not

mathematically equal, Cohen v. Cohen, 937 S.W.2d 823, 832 (Tenn.

1996); Ellis v. Ellis, 748 S.W.2d 424, 427 (Tenn. 1988), or because

each party did not receive a share of every item of marital property.

Brown v. Brown, 913 S.W.2d [163] at 168. . . . In the final analysis,

the justness of a particular division of the marital property and

allocation of marital debt depends on its final results. See Thompson

v. Thompson, 797 S.W.2d 599, 604 (Tenn. App. 1990).

King v. King, 986 S.W.2d 216, 219 (Tenn. Ct. App. 1998) (quoting Roseberry v. Roseberry, No.

03A01-9706-CH-00237, 1998 Tenn. App. LEXIS 100, at *11-12 (Tenn. Ct. App. Feb. 9, 1998), no

appl. perm. appeal filed).

In support of the Trial Court’s distribution, Husband argues on appeal that since he

built the marital house before the marriage, he owned the house even though his parents owned the

land on which the house sat. From the record before us, the Trial Court found Husband to be

incorrect, and the evidence does not preponderate against this finding. Husband made improvements

to real property owned by his parents, and there is nothing in the record showing that Husband

owned the improvements, i.e., the house. While his parents still owned the land, Husband would

have had a potential claim against his parents for the monies that Husband expended improving the

real property. When Husband’s parents deeded the real property to Husband and Wife during the

marriage, the conveyance included the land, the house, and any other improvements upon the land.

The parties’ treatment of the house and the land as one asset over the years of their marriage is

consistent with this finding. When Husband’s previous wife was awarded money during that divorce

as her share in the house, what she apparently was awarded was an interest in the marital funds spent

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during that marriage to improve property owned by Husband’s parents pursuant to the potential

claim as mentioned above.

The evidence in the record on appeal does not preponderate against the Trial Court’s

finding that the marital home, including both the real property and the house itself, constituted

marital property. Nor does the evidence preponderate against the Trial Court’s finding that the value

of the marital home is $135,000.

The evidence in the record on appeal does not preponderate against the Trial Court’s

findings that the livestock herd and the parties’ bank accounts were marital property. However, the

Trial Court made no specific findings regarding the value of these items of marital property.

At trial, the parties stipulated that each would receive the retirement accounts in that

party’s name. The parties did not stipulate as to the specific value of these accounts although the

parties acknowledge in their briefs on appeal that these accounts were of approximately equal value.

The Trial Court made no findings with regard to these accounts.

Wife’s brief on appeal, including her property table prepared by Wife’s attorney in

accordance with Rule 7 of the Rules of this Court, asserts that the Trial Court awarded her

approximately 20% of the marital estate and awarded Husband approximately 80%. As the record

on appeal does not contain values for several items of marital property, we are unable to determine

what the exact percentage division was. However, we note that Husband on appeal does not argue

that it was not an 80% - 20% split as Wife asserts.

A careful and thorough review of the record on appeal in light of the relevant

statutory factors, including among others, the contribution of both Husband and Wife to the

acquisition, preservation, appreciation, depreciation or dissipation of the marital property, shows that

an 80/20 split of marital property in this case would be inequitable. This was a marriage of over

eighteen years and the evidence shows that both parties maintained careers and made significant

contributions toward the marital estate over the years. The evidence also shows, as found by the

Trial Court, that Husband’s contribution to the marital estate was greater than Wife’s.

We hold that given the evidence and the circumstances of this case in light of the

relevant statutory factors, an equitable division of the marital estate would be 60% to Husband and

40% to Wife. We, therefore, vacate the distribution of marital property and remand this case to the

Trial Court to value items of marital property as necessary and to distribute the marital property to

effectuate this 60/40 division of the marital property. We affirm the remainder of the Final Decree.

Conclusion

The judgment of the Trial Court is vacated as to the distribution of marital property

and this cause is remanded to the Trial Court for valuation of items of marital property as necessary

to distribute the marital property to effectuate a division such that Husband receives 60% and Wife

receives 40%, and for collection of the costs below. The remainder of the Trial Court’s judgment

is affirmed. Costs on appeal are assessed against the Appellee, Isaac Dale Dawson.

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___________________________________

D. MICHAEL SWINEY, JUDGE

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