Gentry v. Gentry ( 1997 )

JULIA ANN GENTRY, )
)
Plaintiff/Appellee, ) Appeal No.
) 01-A-01-9611-CH-00512
v. )
) Montgomery Chancery
JAMES WALTER GENTRY, III, ) No. 94-75-573
)
Defendant/Appellant. )
FILED
May 14, 1997
Cecil W. Crowson
COURT OF APPEALS OF TENNESSEE Appellate Court Clerk
MIDDLE SECTION AT NASHVILLE
APPEAL FROM THE CHANCERY COURT FOR MONTGOMERY COUNTY
AT CLARKSVILLE, TENNESSEE
THE HONORABLE ALEX DARNELL, CHANCELLOR
MARK A. RASSAS
JULIA P. NORTH
Rassas & Rassas
Suite 104, Glenn Building
P. O. Box 361
Clarksville, Tennessee 37041-0361
ATTORNEYS FOR PLAINTIFF/APPELLEE
FRANK J. RUNYON
MARKLEY RUNYON GILL
P. O. Box 1023
Clarksville, Tennessee 37041
ATTORNEYS FOR DEFENDANT/APPELLANT
AFFIRMED AS MODIFIED,
AND REMANDED
SAMUEL L. LEWIS, JUDGE
MEMORANDUM OPINION1
This is an appeal by the defendant, James Walter Gentry, III, from a
decision of the Montgomery County Chancery Court. Defendant takes issue with the
court’s decision which awarded the plaintiff, Julia Ann Gentry, a portion of
Defendant’s stock, ordered Defendant to pay $550.00 per month in child support, and
awarded Plaintiff $8,000.00 as her share of the equity in the marital property.
Plaintiff also raises the issue of whether the court erred when it awarded Defendant
control of the assets of the parties’ minor child, William Todd Gentry. The facts out
of which this matter arose are as follows.
The parties were married on 9 January 1982. Prior to the marriage, both
parties were commissioned officers in the United States Army and were stationed at
Fort Knox, Kentucky. Plaintiff has a master’s degree in human services and human
resources, and Defendant has a master’s degree in education. Plaintiff became
pregnant after the parties married and resigned her commission. William Todd
Gentry was born on 3 May 1983. During the marriage, Plaintiff was active in various
military and community volunteer activities. At some point, she began working as
a part-time substitute teacher. The Army released Defendant from active duty in
1990. He received approximately $30,000.00 in severance pay.
After Defendant left the Army, the family moved to Chattanooga, Tennessee
to live with Defendant’s parents. The parties were not getting along at this time.
Defendant testified that he put out hundreds of resumes, but could not find work for
approximately six months. Thereafter, he took a part-time position with the
Tennessee National Guard.
Plaintiff and William moved from Defendant’s parent’s house to
Clarksville, Tennessee because Plaintiff found a full-time job at Fort Campbell. After
the parties had been separated three months, Defendant stated he wanted to get the
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 op inion when a formal opinion would have
no precedential value. When a case is decided by memorandum opinion, it shall be designated
"M EM ORA ND UM OPIN ION ," shall not be published, and shall not be cited or relied on for any
reaso n in a sub sequent unre lated case.
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family back together and joined Plaintiff and his son in Clarksville. Defendant
promised to get counseling and to get a job as part of the reconciliation. Although he
failed to get counseling, Defendant continued his work with the National Guard on
a part-time basis and obtained a full-time position with the Video Cart Company as
a consultant. Unfortunately, the full-time job did not work out because the company
went out of business in 1993. Despite Defendant’s continuous unemployment
history, the parties were able to purchase a home in Clarksville in June 1992.
In June 1994, Defendant went on a National Guard training exercise. He
told Plaintiff he would be gone for two or three weeks with the Guard and then for
another two weeks where he would be unable to tell her his whereabouts. While
Defendant was away, Plaintiff gave notice and left her employment. She and William
moved back to her hometown of Rogersville, Tennessee. She left a message for
Defendant that she was at her mother’s house and had paid all the bills. Plaintiff was
employed as a court services counselor at the time of trial. Defendant continued his
part-time employment with the Guard and also claimed to be self-employed.
Plaintiff filed a complaint for absolute divorce on 19 July 1994. Plaintiff
alleged irreconcilable differences, inappropriate marital conduct, and adultery as
grounds for the divorce. Defendant admitted there were irreconcilable differences
between the parties, but denied he was guilty of inappropriate marital conduct or
adultery. In addition to his answer, Defendant filed a counter-complaint. He too
alleged irreconcilable differences, but also alleged Plaintiff was guilty of cruel and
inhuman treatment.
The court heard the case on 26 September 1995. During the trial, each party
accused the other of inappropriate and odd behavior. Plaintiff claimed Defendant
became very depressed after the Army released him from active duty. She alleged
Defendant lost interest in personal hygiene and in his marriage and child. She also
alleged Defendant had been involved in extra-marital affairs and Plaintiff had
contracted chlamydia, a sexually transmitted disease, as a result of Defendant’s
activities. Plaintiff recounted stories in which she feared Defendant would harm her
or William. Plaintiff stated that on one occasion she saw Defendant standing in the
backyard nude looking up at the trees. Finally, Plaintiff testified she found hardcore
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pornography in Defendant’s footlocker. Defendant questioned the veracity of
Plaintiff and thought she fabricated information. Defendant also expressed his
concerns as to Plaintiff’s mental state. He stated she “goes through a series of
elations and depressions.” He also stated he was concerned about his son because of
certain superstitious beliefs held by Plaintiff.
On 23 October 1995, the court entered an interim order. The court
determined the issues regarding the value of the Clarksville home and Defendant’s
income were unanswered and ordered counsel to conduct an appropriate investigation
and to report back to the court. The court then awarded custody of William to
Plaintiff and awarded Defendant unsupervised visitation. Finally, the court made the
following findings as to the stock and William’s assets:
The Court finds that JULIA GENTRY is entitled to One
Thousand Two Hundred Eighteen (1218) shares of the Bank of
McMinnville stock which is held in trust and there shall be a
qualified domestic relation order drawn whereby the bank would
sequester the shares denoted to her and place them in a separate
account and distribute them to her upon her request, but not more
than (20%) per year for the next five (5) years.
Regarding the Twenty Six Thousand Dollar ($26,000.00)
account for the child, JULIA GENTRY has no claim at all on it,
no interest in it.
Plaintiff made a motion to place some control or accounting restrictions on William’s
money on 26 October 1995.
The court entered the final decree of divorce on 29 May 1996. The court
awarded Defendant the marital residence and ordered Defendant to pay Plaintiff
$8,000.00 for her interest in the real estate. The court also determined Defendant
should pay $550.00 per month in child support based on his 1995 income and the
child support guidelines. The court restated the portion of the interim order regarding
the stock and concluded William’s account was William’s property.
Defendant filed a motion to alter or amend on 20 June 1996. The court
addressed the motion in an order dated 10 September 1996. The court affirmed its
holdings as to the child support and the stock. The court clarified its holding as to the
marital residence by explaining the $8,000.00 figure “equaled not only her share of
the equity in the house, but also her interest in the MFS Fund and the remaining funds
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at the Pioneer Bank.” Defendant filed his notice of appeal on 23 September 1996.
Defendant’s first issue is whether the trial court erred in awarding Plaintiff
a portion of the McMinnville Bank stock. The court found Plaintiff was entitled to
1,218 shares of the Bank of McMinnville stock. Defendant insists Plaintiff was not
entitled to any portion of the stock because it was his separate property.
Tennessee Code Annotated section 36-4-121(b) provides:
(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 and owned by either or both spouses as of the
date of filing of a complaint for divorce, except in the case of
fraudulent conveyance in anticipation of filing, and including any
property to which a right was acquired up to the date of the final
divorce hearing, and valued as of a date as near as reasonably
possible to the final divorce hearing date.
(B) “Marital property” includes income from, and any increase in
value during the marriage, of property determined to be separate
property . . . if each party substantially contributed to its
preservation and appreciation and the value of vested pension,
retirement or other fringe benefit rights accrued during the period
of the marriage.
Tenn. Code Ann. § 36-4-121(b)(1)(A)&(B) (1996). The phrase “any increase in
value during the marriage” in section 36-4-121(b)(1)(B) means the reason for the
appreciation is irrelevant. Ellis v. Ellis, 748 S.W.2d 424, 426-27(Tenn. 1988); see
also Harrison v. Harrison, 912 S.W.2d 124, 127 (Tenn. 1995) (explaining Ellis).
“The word ‘any’ is all inclusive and does not allow exception.” Ellis, 748 S.W.2d at
426.
A substantial contribution can include “the direct or indirect contribution
of a spouse as homemaker, wage earner, parent or family financial manager, together
with such other factors that the court having jurisdiction may determine.” Tenn. Code
Ann. § 36-4-121(b)(1)(C). “Substantial contributions are ones which are real and
significant. They need not be monetarily commensurate with the appreciation in the
property’s value during the marriage.” Mahaffey v. Mahaffey, 755 S.W.2d 618, 623
(Tenn. App. 1989). “[C]ontributions need not be directly related to the specific
property involved. They are substantial if they enabled the spouse who owns the
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property to retain it during the marriage.” Id. at 623.
Here, the Bank of McMinnville stock was held by Defendant prior to the
marriage and was titled in his name alone. Nevertheless, the value of its appreciation
during the marriage is marital property subject to division under the foregoing code
sections and case law. Plaintiff made a direct effort that substantially contributed to
the appreciation and value of the stock. Defendant did not work for approximately
six months after he resigned. Thereafter, he worked as a part-time member of the
Tennessee National Guard and full-time for less than two years. Plaintiff shouldered
the burden of supporting the family during this time. Without Plaintiff’s efforts
Defendant may have been forced to sell the stock in order to provide for the family.
Instead, the parties enjoyed a comfortable standard of living and Defendant was able
to keep the stock.
The court determined the increase and value of the stock was marital
property and awarded Plaintiff her interest in it. This was a reasonable and proper
decision both under the statute and the case law of this state. Although we are of the
opinion the court’s decision was correct and affirm, we are also of the opinion the
court should have given Defendant the option of paying Plaintiff the value of the
McMinnville Bank stock and retaining the stock in his name. If Defendant elects this
option on remand, the court shall conduct a hearing to determine the value of
Plaintiff’s share of the stock and shall provide that Defendant may pay Plaintiff the
value of the stock over a period of three years with interest at the statutory rate as set
forth in Tennessee Code Annotated title 47, chapter 14.
Defendant’s second issue is whether the trial court erred in ordering child
support payable in the amount of $550.00 per month. Defendant contends this
amount is not in conformity with the guidelines and Defendant’s current income.
The child support guidelines establish a method for calculating child
support based upon a percentage of net income. There is a rebuttable presumption
that the guidelines are applicable to cases involving child support. Tenn. Code Ann.
§ 36-5-101(e)(1) (1996). It is possible for a party to rebut the presumption. Section
36-5-101(e)(1) provides:
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If the court finds that evidence is sufficient to rebut this
presumption, the court shall make a written finding that the
application of the child support guidelines would be unjust or
inappropriate in that particular case, in order to provide for the
best interest of the child(ren) or the equity between the parties.
Findings that the application of the guidelines would be unjust or
inappropriate shall state the amount of support that would have
been ordered under the child support guidelines and a justification
for the variance from the guidelines.
Id.
Defendant contends the child support award exceeded the appropriate
amount by approximately $100.00 per month. In response, Plaintiff argues the court
found Defendant was underemployed and determined the amount of support based
on Defendant’s potential income. Unfortunately, none of the orders in the record
include any findings regarding the amount of Defendant’s income or whether he was
underemployed. Thus, if the court concluded the evidence rebutted the presumption,
then its orders awarding child support failed to comply with Tennessee Code
Annotated section 36-5-101(e)(1). It is the opinion of this court that this issue should
be remanded to the trial court for a proper determination of the amount of child
support to be paid by Defendant each month. Moreover, the trial court shall consider
Defendant’s current income and any other funds includable as income under the
guidelines. Finally, the court shall enter an order which complies with Tennessee
Code Annotated section 36-5-101 and the child support guidelines.
We have further considered each of the remaining issues raised by the
parties. We are of the opinion the evidence does not preponderate against the findings
of the court and there is no error of law.
Therefore, it results that the judgment of the trial court is affirmed as
modified, and the cause is remanded for the entry of an order in conformity with this
opinion. Costs on appeal are taxed equally to plaintiff/appellee, Julia Ann Gentry,
and defendant/appellant, James Walter Gentry, III.
____________________________________
SAMUEL L. LEWIS, JUDGE
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CONCUR:
_____________________________________
HENRY F. TODD, P.J., M.S.
_____________________________________
WILLIAM C. KOCH, JR., JUDGE
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