The opinion
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
May 3, 2000 Session
JAMES PATRICK DORTCH, SR. v. EVONNE P. DORTCH
Appeal from the Circuit Court for Davidson County
No. 98D-3460 Muriel Robinson, Judge
No. M1999-02053-COA-R3-CV - Filed July 17, 2001
This appeal involves a dispute over the division of a marital estate following a seventeen-year
marriage. Both parties sought a divorce in the Circuit Court for Davidson County. During a short
bench trial, they stipulated that each of them had grounds for divorce but contested the classification,
valuation, and division of their separate and marital property. The trial court declared the parties
divorced and undertook to divide their marital estate equally. Both parties are dissatisfied with the
division of the marital estate. The husband asserts that the trial court made a significant
mathematical error in calculating the amount required to equalize the division. For her part, the wife
asserts that the trial court misclassified items of separate property as marital property. We have
determined that the trial court properly determined that the parties should receive equal shares of the
net marital estate. However, we also find that the trial court misclassified a number of items of the
wife’s separate property and erroneously calculated the amount to be awarded to the wife to equalize
the division of the marital estate. Accordingly, we have corrected the errors and affirm the judgment
as modified herein.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Modified and
Affirmed
WILLIAM C. KOCH , JR., J., delivered the opinion of the court, in which BEN H. CANTRELL , P.J., M.S.,
and PATRICIA J. COTTRELL , J., joined.
D. Scott Parsley, Nashville, Tennessee, for the appellant, James Patrick Dortch, Sr.
Amanda McClendon, Nashville, Tennessee, for the appellee, Evonne P. Dortch.
OPINION
James Patrick Dortch, Sr. and Evonne Papineau Dortch were married on April 20, 1982.
Both had been previously married, and no children were born of the marriage. When they first met,
Ms. Dortch was working as a retail store cashier, and Mr. Dortch was working to establish a
commercial printing business that he had started in 1978. The parties began cohabiting prior to their
marriage, and Ms. Dortch spent a significant amount of time helping Mr. Dortch with his printing
company’s bookkeeping. During the marriage, Ms. Dortch participated in every part of Mr. Dortch’s
business except operating the printing press itself.
On November 10, 1998, after seventeen years of marriage, Mr. Dortch filed suit in the Circuit
Court for Davidson County seeking a divorce on the grounds of inappropriate marital conduct and
irreconcilable differences. In January 1999, Ms. Dortch counterclaimed for a divorce on the ground
of cruel and inhuman treatment. During the July 1999 trial, the parties stipulated that each of them
had grounds for a divorce and focused their attention on their disputes over the division of their
marital property. In its August 19, 1999 decree, the trial court declared the parties divorced in
accordance with Tenn. Code Ann. § 36-4-129(b) (Supp. 2000). The trial court also undertook to
award the parties equal shares of their net marital estate, and in doing so, directed Mr. Dortch to pay
Ms. Dortch $91,532.50 “to equalize the division of the property.” The trial court also ordered Mr.
Dortch to pay Ms. Dortch $1,000 in monthly spousal support until her death or remarriage. Both
parties filed post-judgment motions which were denied by the trial court. Mr. Dortch perfected this
appeal, and Ms. Dortch has raised issues of her own in accordance with Tenn. R. App. P. 13(a).
I.
STANDARDS FOR REVIEWING THE DIVISION OF A MARITAL ESTATE
The issues presented by this appeal involve the manner in which the trial court divided the
parties’ net marital estate. The standards by which appellate courts review decisions involving the
division of marital property and debts are well-known. Dividing a marital estate is not necessarily
a mechanical process but rather is guided by considering the factors in Tenn. Code Ann. §
36-4-121(c) (Supp. 2000). Trial judges have wide latitude in fashioning an equitable division of
marital property, Fisher v. Fisher, 648 S.W.2d 244, 246 (Tenn. 1983); Brown v. Brown, 913 S.W.2d
163, 168 (Tenn. Ct. App. 1994), and appellate courts accord great weight to a trial judge's division
of marital property. Wilson v. Moore, 929 S.W.2d 367, 372 (Tenn. Ct. App. 1996); Edwards v.
Edwards, 501 S.W.2d 283, 288 (Tenn. Ct. App. 1973). Thus, appellate courts will ordinarily defer
to the trial judge's decision unless it is inconsistent with the factors in Tenn. Code Ann. §
36-4-121(c) or is not supported by a preponderance of the evidence. Brown v. Brown, 913 S.W.2d
at 168; Mahaffey v. Mahaffey, 775 S.W.2d 618, 622 (Tenn. Ct. App. 1989); Hardin v. Hardin, 689
S.W.2d 152, 154 (Tenn. Ct. App. 1983).
II.
THE CLASSIFICATION OF THE PARTIES’ PROPERTY
Ms. Dortch asserts that the trial court erred by including approximately $14,700 worth of her
separate property in the marital estate. This property included five pieces of jewelry1 and a $400
Lowry organ that had been given to her as gifts or by inheritance during the marriage. Mr. Dortch
1
The jewelry included a $12,000 diamond and emerald ring, a $900 diamond cluster ring, a $500 gold and
diamond watch, a $7 50 diam ond neck lace, and a $ 150 jew eled tennis b racelet.
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acknowledged at trial that these items were Ms. Dortch’s separate property and specifically laid no
claim to them.
An integral part of the process of dividing the property interests of divorcing parties is
identification and distribution of the parties’ separate property. Batson v. Batson, 769 S.W.2d 849,
856 (Tenn. Ct. App. 1988). Property should not be included in the marital estate unless a party can
prove that it is marital property as defined in Tenn. Code Ann. § 36-4-121(b)(1)(A). Cutsinger v.
Cutsinger, 917 S.W.2d 238, 241 (Tenn. Ct. App. 1995). Separate property cannot, by definition, be
included in the marital estate, and Tenn. Code Ann. § 36-4-121(b)(2)(D) provides that property
acquired by a spouse during a marriage by “gift, bequest, devise or descent” is separate property.
Thus, gifts by one spouse to another that might otherwise be considered marital property should be
classified as the recipient spouse’s separate property. Hanover v. Hanover, 775 S.W.2d 612, 617
(Tenn. Ct. App. 1989); Batson v. Batson, 769 S.W.2d at 859.
Based on the undisputed evidence that the five pieces of jewelry and the organ were gifts to
Ms. Dortch, the evidence preponderates against the trial court’s conclusion that these items were
marital property. Accordingly, we modify the judgment to provide that Ms. Dortch receives the five
pieces of jewelry and the organ as her separate property. We also reduce the marital personalty from
$29,699 to $14,999 to reflect that these items are not part of the marital estate.
III.
THE EQUALIZATION OF THE PARTIES’ SHARES OF THE MARITAL ESTATE
Mr. Dortch asserts that the trial court erred by ordering him to pay $91,532.50 to Ms. Dortch
to “equalize” the property division. While he does not take issue with the trial court’s decision to
award each party an equal share to the marital estate, he points out that the trial court overlooked
reducing the value of his share of the marital property by $91,532.50 to reflect the “equalization
payment” the trial court ordered him to make. As a result of this oversight, Mr. Dortch received
approximately 43% of the marital property, while Ms. Dortch received approximately 57%. Ms.
Dortch does not take issue with these calculations but rather simply asserts that the trial court’s
division of the marital estate, even if it was not equal, is equitable.
The trial court was extremely explicit regarding its intentions for the marital property. Based
on the evidence it heard, the court determined that the parties should receive equal shares of the
marital estate they had accumulated during their seventeen years of marriage. Because the trial court
believed that the property awarded to Mr. Dortch was worth substantially more than the property
awarded to Ms. Dortch, the trial court eventually determined that Mr. Dortch should pay Ms. Dortch
$91,057 to “ equalize the marital estate.”
We have no basis to second-guess the trial court’s decision that the parties should receive
equal shares of the marital estate. Ownership of marital property should be presumed to be equal
until proven otherwise. Kelly v. Kelly, 679 S.W.2d 458, 462 (Tenn. Ct. App. 1984); Salisbury v.
Salisbury, 657 S.W.2d 761, 770 (Tenn. Ct. App. 1983). On the other hand, a division is not rendered
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inequitable simply because it is not precisely 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 piece of marital property. Brown v. Brown, 913 S.W.2d at 168. After reviewing this
record, we find no basis for concluding that it would be more equitable to award Ms. Dortch more
than one-half of the marital estate.
After correcting for the misclassification of Ms. Dortch’s separate property and the trial
court’s failure to include the parties’ individual retirement accounts and marital consumer debt in
its calculations, we conclude that the parties’ gross marital estate is worth $605,999 and that the
parties’ marital debts amounted to $186,443. Thus, their net marital estate is worth $419,556.
The trial court divided the marital property and debts in the following manner:
Marital Assets
Husband: Value: Wife: Value:
Personalty $ 2,650 Personalty $ 12,349
Commercial Property 350,000 Marital Home 200,000
Business of P D Printing, Inc. 38,000
IRA2 1,000 IRA 2,000
_______ _______
$391,650 $214,349
Marital Debts
Commercial Property Mortgage $116,943 Marital Home Mortgage $ 59,500
Marital Consumer Debt3 5,000 Marital Consumer Debt 5,000
_______ _______
$121,943 $ 64,500
NET VALUE $269,707 $149,849
Based on this unadjusted division, Mr. Dortch received 64% of the net marital estate, while
Ms. Dortch received 36%. Each party would be entitled to $209,778 worth of property if their net
marital estate were divided equally. To accomplish this, the trial court should have required Mr.
2
The court neglected to value Mr. and Ms. Dortch’s retirement accounts. These were marital property. The
court heard testimony concerning them at trial and allocated possession of them in the court’s final divorce decree.
However, the trial court did not explicitly value them. Making an explicit valuation finding provides helpful insight into
the trial court’s reasoning, materially enhances the parties’ understanding of the trial court’s decision, and helps focus
the issues on app eal. Murray Ohio Mfg. Co. v. Vines, 498 S.W.2d 897, 901-02 (Tenn. 1973 ). After reviewing Ms.
Dortch’s testimony at trial, we value Mr. Dortch’s IRA at $1,000 and Ms. Dortch’s IRA at $2,000.
3
The court recognized $10,000 of marital consumer debt and stated in its final decr ee of divor ce that it would
“divide” this debt. However, there is no sign of this promised division anywhere else in the record. We assume the court
intended this $10,000 marital debt to be split evenly between Mr. and Ms. Dortch.
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Dortch to pay Ms. Dortch $59,929. Accordingly, the trial court’s September 30, 1999 order directing
Mr. Dortch to pay Ms. Dortch $91,057 to “equalize” the division of the marital estate must be
reduced to $59,929.
IV.
We modify the judgment by reducing the amount Mr. Dortch must pay to Ms. Dortch to
equalize the division of the marital estate from $91,057 to $59,929. The remainder of the judgment
not inconsistent with this opinion is affirmed. We tax one-half of the costs to Mr. Dortch and his
surety and one-half of the costs to Ms. Dortch for which execution, if necessary, may issue.
_____________________________
WILLIAM C. KOCH, JR., JUDGE
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