Sherry Watson v. Beazer Watson ( 2010 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
October 6, 2010 Session
SHERRY WATSON v. BEAZER WATSON
Appeal from the Circuit Court for Claiborne County
No. 9546 John McAfee, Judge
No. E2010-00577-COA-R3-CV - FILED DECEMBER 29, 2010
This is a divorce action filed by Sherry Watson (“Wife”) against Beazer Watson
(“Husband”). Following a bench trial, the court granted the parties a divorce based on
stipulated grounds. It also classified and distributed substantial property, some as separate
and the rest as marital. Wife secured new counsel and filed motions, with supporting
exhibits, challenging the classification and division of property. The motions purport to be
pursuant to, respectively, Tenn. R. Civ. P. 59 and 60.02. The trial court denied the motions.
Wife appeals the denial of her motions. We affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Affirmed; Case Remanded
C HARLES D. S USANO, J R., J., delivered the opinion of the Court, in which D. M ICHAEL
S WINEY and J OHN W. M CC LARTY, JJ., joined.
Johnny V. Dunaway, LaFollette, Tennessee, for the appellant, Sherry Watson.
David H. Stanifer and Lindsey C. Cadle, Tazewell, Tennessee, for the appellee, Beazer
Watson.
OPINION
I.
A.
When the parties separated, they had been married for approximately five years. Both
parties had been married numerous times before, and had grown children from those previous
marriages. No children were born of this marriage. Wife was in her early forties and
Husband was in his early sixties when this proceeding was commenced. After Wife filed her
complaint for divorce and Husband filed his counterclaim, the parties remained separated
until the case was tried approximately two years later. The focus of the trial was on the
identification, classification and distribution of property. The same is true on appeal.
B.
Wife testified that, other than one joint account, which we will discuss later in some
detail, the parties maintained individual bank accounts during the marriage. She worked and
deposited her money into an account in her individual name. According to Wife, she paid
her “own” bills and Husband did the same. Her employer at the time of the marriage was
England Corsair. She continued there for approximately two years into the marriage when
she developed tendinitis and needed to change jobs. According to Wife, she was offered a
new job with her employer, but Husband convinced her to come to work with him as a
“partner” in his fence company. Husband denied making such an offer and testified that
Wife was allowed to work as an hourly employee because she was unable to continue her
previous job. The proof was undisputed that Wife was paid as an employee and deposited
her check into her individual account. On or about the time of the parties’ separation, Wife
secured a job with a new employer making considerably more money than she had made as
an “employee” of the fence company.
It is undisputed that, at the time of the marriage, Husband owned the house in which
the parties lived during their marriage. The size of their home was nearly doubled by an
addition made during the marriage. It is undisputed that Husband’s elderly sister contributed
at least $80,000 toward the addition with the understanding that she would be able to stay
with her brother when she lost her independence. In fact, Husband’s sister was living in the
addition at the time of trial. Husband testified that $80,000 was the initial check deposited
into a joint checking account in the names of Husband and Wife for the purpose of funding
the construction of the addition. Wife readily admitted that she did not put any money into
the account. Husband also testified that he did not put any money into the account.
Numerous times during the trial, both parties and their counsel spoke in terms of $100,000
spent on the addition. Wife testified that there was $20,557.11 remaining in the account
when Husband closed the account and deposited the balance into another account. Wife
claimed that she was entitled to one-half of the funds in the joint account and one-half of the
increase in the value of the house. She did not introduce proof of the value of the house
before the addition. She did introduce proof that the value at separation was $256,500 and
argued that the increase in value during the marriage was at least equal to the expenditures
of $100,000.
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One piece of real property that the parties acquired jointly was a lot adjoining the
marital home. The parties agreed that the lot was marital property, but disagreed as to its
value. Wife did not offer an opinion of value but testified that they paid $10,000 for the lot.
Husband testified that they paid $2,800, as recited on the face of the recorded deed, but that
the lot was probably worth $5,000.
It is undisputed that, at the time of the marriage, Husband owned a fence business
known as Watson Fence Company. Husband claimed at trial that the business was a
partnership with his grown daughter by a previous marriage. Husband and his daughter, Tina
Watson, testified that they were equal partners. Husband was cross-examined with respect
to his tax returns. They reflected that the fence business was a sole proprietorship.
During the marriage, numerous items of personal and real property were acquired
using funds from the fence business. One of those items was a 2006 Ford F150 pickup truck
worth approximately $20,000; it was titled in the name of Tina Watson. She testified that
her father purchased the truck for her and that she was making payments to her father on it.
She did not know if the fence company had paid for the truck. Husband testified that his
daughter purchased the truck and paid for it out of the fence company, as was her right
according to Husband. Both Husband and daughter claimed that the truck was hers, but they
both admitted that it was frequently parked in Husband’s driveway and that he often drove
it. In fact, Husband admitted that he was the person who primarily drove the 2006 Ford.
Other property allegedly purchased with proceeds from the fence company were two
lots comprising approximately two acres referred to at trial as “the Duncan Trail property.”
Wife testified that Husband promised the property to her grown son, Chad Yeary, as a
wedding gift and that she was present when Husband agreed to purchase the lots from Eula
Simmons and her husband for six equal monthly payments of $3,000. Wife testified that she
later learned the property had been deeded by the Simmons to Tina Watson. Chad Yeary
testified that he had been living on the property in a mobile home for almost two years.
Yeary further testified that Husband told Yeary that he, Husband, would buy the property and
give it to him as a wedding gift. Neither Husband nor Tina Watson were asked any questions
at trial concerning the Duncan Trail property.
There was testimony concerning numerous other pieces of property, some of which
one of the parties owned before the marriage, but most of which they purchased during the
marriage. The property included a lot next to their house, boats, personal water craft, guns,
motorcycles, mowers, and equipment used in the fence business paid for by the fence
company.
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C.
The trial judge invited counsel to help him work through the disputed property to
make sure he did not miss or mistakenly allocate any property. The bulk of the items were
treated as marital property and awarded to one party with an “equity” allowance of one-half
of the value of the item to the other. In total, Wife was awarded marital property valued by
the court at approximately $24,500. Husband was awarded marital property valued by the
court at approximately $45,000. Husband was ordered to pay Wife $10,500 to equalize the
distribution.
The court found that the fence company was Husband’s sole proprietorship and that
there was no evidence that it increased in value during the marriage. The court
acknowledged that the fence company purchased equipment, but the court noted that it did
not have any proof as to the value of the equipment. It pointed out Wife’s admission that she
did not know the value of the equipment. The court found that Wife was a mere employee
during the time that she worked for the fence company and that she never became a partner.
The court found that the marital home was Husband’s separate property, and that there
was no proof of the value at the time of the marriage to compare to the value at the time of
the divorce. The court was willing to consider Wife’s argument that the home increased in
value by the amount spent on it, but found that Wife did not substantially contribute to the
increase. Rather, as the court found, the home increased in value only because Husband’s
sister made the money available to fund the addition. The court also found that funds in the
construction account did not belong to either party but were in fact owned by Husband’s
sister.
The court found that the Duncan Trail property was not the property of either spouse.
The court specifically stated that it was not convinced that Husband somehow used his
daughter Tina as a shelter against a finding that he had acquired marital property. However,
the court did find that the 2006 Ford pickup was marital property and awarded Wife one-half
the value of the pickup, which total value the court placed at $20,000. The court also found
that the lot next to the marital home was marital property. It considered the conflicting
testimony and credited Husband’s testimony regarding the purchase price over Wife’s
because his testimony was corroborated by the deed. The court valued the lot at $5,000.
D.
After failing to achieve her desired property distribution at trial, Wife hired new
counsel who filed a timely “Motion for New Trial and/or Reconsideration.” As stated in
Wife’s brief, the motion asserted the following six grounds:
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[T]he Trial Court awarded the funds deposited into the parties’
joint checking account to [Husband’s] sister even though she
was a non-party and had not made a claim for the money;
[T]he Trial Court divested [Wife] of her interest in the Watson
Fence Company without determining the commercial value of
the business;
[T]hat the Trial Court erred in finding that improvements to the
marital residence resulted solely from the contributions of
[Husband’s] sister and, therefore, that [Wife] had no equitable
interest therein;
[T]hat the Trial Court awarded [Husband’s] sister an interest in
the marital residence;
[T]hat [Husband] testified falsely that he purchased the Bailey
Lane property for $2,800 when, in fact, he paid $10,000 for the
property; and
[T]hat the Trial Court should make Tina Watson and Chad
Yeary parties in order to determine ownership and value of the
Duncan Trail property.
(Paragraph numbering omitted.)
While the motion for new trial was pending, Wife filed a motion requesting that,
pursuant to Tenn. R. Civ. P. 60.02 (1), (2), and (5), the court “set aside the Judgment of
Divorce and conduct a new trial for determination of the value of the marital estate and
distribution of the assets between the parties.” Wife filed four affidavits in support of her
second motion, the pertinent contents of which we will summarize.
Wife’s son, Chad Yeary, signed an affidavit which essentially repeated his trial
testimony. He added to that earlier testimony that Tina Watson took title to the Duncan Trail
property approximately two months before the divorce trial and had never made a claim or
demand for possession against him. Chad Yeary’s father-in-law, Hugh Singleton, signed an
affidavit which stated that Husband had told him that he, Husband, bought the property as
a wedding gift for Chad.
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Wife’s affidavit repeated much of her trial testimony and also expanded on some of
that testimony. She stated that the Duncan Trail property was paid for from marital assets
and then recorded in Tina’s name to diminish the marital estate. A copy of the deed from
Robert and Eula Simmons to Tina Watson was attached to Wife’s affidavit. Her affidavit
added that, consistent with Husband’s testimony at trial and contrary to the findings of the
court, the marital home was encumbered by a mortgage at the time of the marriage and that
approximately $7,000 to $8,000 was owing at the time of the marriage. A copy of a deed
recorded December 18, 2006, releasing a deed of trust on the marital home was made an
attachment. Wife attached to her affidavit a series of cancelled checks and statements on the
joint account used to fund the addition which she asserted proved (1) that Wife contributed
to the increase in value by her efforts of picking out materials as shown by checks she signed
for those materials, (2) that the $80,000 check from Husband’s sister could not have been the
initial funding of the account because the account pre-dated the check by several months, (3)
that Husband used the account for purchases other than the addition, and (4) that Husband
closed the account and transferred the funds to a new account opened in his name and the
name of his daughter. Wife attached a copy of a deposit in the amount of $20,557.11 into
the new “Watson Building Account.”
Wife’s new counsel, Johnny V. Dunaway, also signed an affidavit. Dunaway’s
affidavit can be characterized as a document pointing out parts of the record that support
Wife’s post-trial motions.
E.
In denying Wife’s motions, the court stated that even with the presentation of “stuff
that I was not aware of at trial, . . . to say that there was a fraud perpetrated on the Court at
this time, it would seem to me to be a leap.” With regard to the Duncan Trail property, the
court noted that, as represented to the court by counsel, Wife’s “son’s filed a separate suit in
reference to that issue.” Ultimately the court concluded that “for me to go unring a bell
under the facts and circumstances that have been presented here today, I don’t think I can.”
The court entered an order denying both of Wife’s post-trial motions. Wife filed a timely
notice of appeal.
II.
Wife raises the following issues which we have quoted verbatim from her brief:
Did the trial court err in denying [Wife’s] motion for new trial
and/or reconsideration?
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Did the trial court err in denying [Wife’s] Rule 60 motion?
Did the trial court err in divesting [Wife] of any interest in the
funds in the parties’ joint checking account and any interest in
the marital residence, while vesting the joint checking account
funds and an interest in the marital residence in a third party,
Cecil Groves, who is neither a party to, a witness for, nor a
claimant in the divorce litigation?
Did the trial court err in failing to declare a transmutation of the
marital residence?
III.
Wife labeled her second motion as a Tenn. R. Civ. P. 60.02 motion. Such a motion
is designed to relieve a party from a “final judgment, order or proceeding.” (Emphasis
added.) When the second motion was filed, the trial court’s judgment was not “final” since
Wife’s Tenn. R. Civ. P. 59 motion was still pending. We elect to treat Wife’s second motion
as an amendment to her Rule 59 motion. We construe a person’s motion according to its
substance and not its label. See Bemis Co., Inc. v. Hines, 585 S.W.2d 574, 576 (Tenn.
1979). A trial court’s ruling on a motion for new trial or to alter or amend a judgment is
reviewed for an abuse of discretion standard. Chambliss v. Stohler, 124 S.W.3d 116, 120
(Tenn. Ct. App. 2003).
The general standard for reviewing a division of marital property was well-stated in
Blevins v. Blevins, No. M2002-02583-COA-R3-CV, 2003 WL 23094162 (Tenn. Ct. App.
M.S., Dec. 30, 2003):
An appellate court’s review of a trial court’s findings of fact is
de novo upon the record of the trial court accompanied by a
presumption of the correctness of the findings, unless the
preponderance of the evidence is otherwise. Unless there is an
error of law, we must affirm the trial court’s decision as long as
the evidence does not preponderate against the findings. Where
the trial court does not make findings of fact, we must conduct
our own independent review of the record to determine where
the preponderance of the evidence lies. Questions of law are
reviewed de novo with no presumption of correctness.
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Trial courts are afforded wide discretion in dividing the interests
of parties in jointly owned property. Accordingly, the trial
court’s distribution will be given great weight on appeal, and
will be presumed to be correct unless we find the preponderance
of the evidence is otherwise. The appellate courts of this state
are inclined not to disturb a trial court’s division of marital
property unless they find that the distribution lacked proper
evidentiary support or results from either an error of law or a
misapplication of the statutory requirements.
Id. at *2. (Citations and quotation marks in original omitted.)
IV.
Wife acknowledges that if she is entitled to any relief pursuant to Tenn. R. Civ. P. 59,
it is pursuant to part 59.04 which provides for motions to alter or amend a judgment.1 She
is correct that her motion for “reconsideration” may be treated as a motion to alter or amend.
McCracken v. Brentwood United Methodist Church, 958 S.W.2d 792, 794 n.3 (Tenn. Ct.
App. 1997). Wife argues that the motion to alter or amend should have been granted “to
prevent manifest injustice.” See Derryberry v. Derryberry, No. 03A01-9801-CV-00023,
1999 WL 486863 at*5 (Tenn. Ct. App. E.S., filed July 13, 1999). Wife acknowledges that
the function of a motion to alter or amend is not to relitigate issues or raise new arguments.
See In re M.L.D., 182 S.W.3d 890, 895 (Tenn. Ct. App. 2005). She also acknowledges in
her lead brief 2 that “[a] trial court may . . . modify a judgment on the basis of newly
discovered evidence, but only if the evidence was not known at or during the trial and the
evidence could not have been discovered through the exercise of reasonable diligence. See,
e.g., Leek v. Powell, 884 S.W.2d 118 (Tenn. Ct. App. 1994).”
1
Tenn. R. Civ. P. 59.04 states:
A motion to alter or amend a judgment shall be filed and served within
thirty (30) days after the entry of the judgment.
2
Wife seems to dispute in her reply brief the very proposition that she stated in her lead brief. We
do not think that this is a proper function of a reply brief. We will therefore examine the appeal in the
context of the arguments made in Wife’s lead brief. We are aware of the Supreme Court’s discussion of the
“newly discovered evidence” criterion in Harris v. Chern, 33 S.W.3d 741, 743 (Tenn. 2000). Our analysis
in this case is not inconsistent with Harris v. Chern.
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As best as we can decipher Wife’s arguments, she limits her manifest injustice
argument to the construction account and the marital residence. We will examine each in
turn.
With regard to the joint checking account, Wife argues that “[d]ivesting [Wife] of her
share of the joint checking account is a manifest injustice that the Trial Court should have
rectified by granting [Wife’s] motion.” Her argument is based solely upon two “new”
propositions of fact put to the trial court by the motion and the later-filed affidavits. One is
that, contrary to Husband’s testimony at trial that the money in the joint account belonged
to his sister, “the money had actually been on deposit in [Husband’s] joint account with his
daughter for almost two years.” The other is that “the $80,000 check from [Husband’s] sister
that he testified at trial was used to establish the parties joint checking account was . . .
deposited into the account on November 21, 2005 [, b]ut [Wife] presented proof at the post-
trial motion hearing that the account had been in existence since at least May 16, 2005 and
that the parties had spent thousands of dollars in renovating the marital residence before
receiving the ‘founding check’ from [Husband’s] sister.”
There are a number of reasons we cannot concur in Wife’s arguments. First, the
evidence is not especially new. Wife testified at the trial that Husband had moved the money
from the joint checking account. The only thing new is the exact identity of the new account.
With regard to the $80,000 “founding check,” Wife’s position at trial was that more than
$80,000 – more like $100,000 – was spent on the addition. Thus, it could have been no
surprise to her that there were other checks deposited to the account as described at trial. At
most, the “new” part was that Husband was wrong about the timing of the “initial” or
“founding” check. Second, there was absolutely no showing at the motion hearing and
almost no reason of which we can conceive that this “[‘new’] evidence was not known at or
during the trial and the evidence could not have been discovered through the exercise of
reasonable diligence.” Third, we do not see how, even if there were some other source of
funds, this fact alone could demonstrate a “manifest injustice” to Wife, since she readily
admitted that she did not put any of her money into the account. Wife testified that she
deposited her earnings into a separate account from which she paid her own bills. Finally,
even if we had some degree of discomfort with the trial court’s denial of the motion with
regard to the joint account, which we do not, we would not be at liberty to simply substitute
our judgment for that of the trial court. Henry v. Goins, 104 S.W.3d 475, 479 (Tenn. 2003).
We must recognize that the trial court was in a better position than this Court to determine
whether relief from the judgment is needed for justice to have been done. Id.
With regard to the marital residence, Wife’s position is that she “is entitled to either
a share of the total value of the marital residence under the doctrine of transmutation, or a
share of the increase in value of the marital residence during the marriage due to her
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contribution to said increase.” Wife argues that “divesting her of any interest in the marital
residence is a manifest injustice justifying relief under Rule 59.04.” Wife acknowledges that
she “did not contribute monetarily towards the renovation of the marital residence,” but
argues that she substantially contributed to the increase in value of the marital residence by
her “sweat equity.” See Tenn. Code Ann. § 36-4-121(b)(1)(B)(2010). This allegedly
consisted of carrying blocks and picking out wallpaper and similar items. Whether a spouse
has substantially contributed to the preservation or appreciation of property is a fact question.
Keyt v. Keyt, 244 S.W.3d 321, 329 (Tenn. 2007). The contribution must be “real and
significant” and a “link” must be demonstrated between the spouse’s contribution and the
increase in value. Id. It is sufficient in this case for us to say that we have reviewed the
record and determined that even with the “new” evidence submitted in support of the post-
trial motions, the evidence does not preponderate against the trial court’s refusal to find that
Wife substantially contributed to an increase in the value of the marital residence. It follows
that no “manifest injustice” existed to be corrected.
Wife’s argument that the residence transmuted from Husband’s separate property to
marital property is based upon her application of the factors identified in Fox v. Fox, No.
M2004-02616-COA-R3-CV, 2006 WL 2535407 (Tenn. Ct. App. M.S., filed Sept. 1, 2006):
Four of the most common factors courts use to determine
whether real property has been transmuted from separate
property to marital property are: (1) the use of the property as a
marital residence; (2) the ongoing maintenance and management
of the property by both parties; (3) placing the title to the
property in joint ownership; and (4) using the credit of the
non-owner spouse to improve the property.
Id. at *5. Whether or not transmutation has occurred is a fact question. Id. at *3
(classification questions are factual). Wife concedes that factors number 3 and 4 do not
apply. It is true that the parties used the property as a marital residence, but the “residence
should not be classified as marital property simply because the parties have lived in it.” Id.
at 5. Thus, the strength or weakness of Wife’s argument depends on the amount of joint
maintenance and management. While Wife’s testimony, if accepted in its entirety, would
demonstrate some efforts toward the addition, they do not rise to the level one would expect
from a joint owner of a major addition. She apparently did not even know whether or not a
mortgage existed until the small indebtedness was completely paid. She used her own
earnings for her own bills and was content to allow the addition to be funded from another
source. At most, she picked out some colors and materials and wrote the check to pay for
the materials from an account that she knew she did not fund. In short, the evidence, even
as supplemented by post-trial motions and affidavits, does not preponderate against the trial
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court’s treatment of the marital residence as Husband’s separate property. Accordingly, there
is no manifest injustice and no error in the trial court’s denial of Wife’s Rule 59 motion.
We will now address Wife’s arguments concerning her second motion. Many of the
same considerations that we have discussed apply to this motion, since it is based upon the
same “new” evidence submitted by affidavit. We will not repeat our previous analysis.
Wife argues that her previous counsel was guilty of neglect which justifies relief. She
points to counsel’s failure to take economic discovery, his failure to present evidence of the
value of the marital residence at the time of the marriage, and his failure to present evidence
of the value of the fence business at the time of the marriage and at the end of the marriage.
We think it significant that Wife’s present counsel, who is charged with arguing neglect,
submitted his own affidavit in support of the second motion and said absolutely nothing
about neglect on the part of previous counsel. Even if we look beyond the terminology, and
ignore whether the affidavit speaks of “neglect” or “mistake,” there is no mention in present
counsel’s affidavit of what previous counsel failed to do or should have done. Thus, Wife
did not even make a prima facie case of neglect versus deliberate choice in the handling of
the trial. We have previously noted that most of the “new” evidence is not new substance.
Given the short duration of the marriage and Wife’s practice of depositing her earnings into
her account to pay her “own” bills, there is every reason to believe that prior counsel, and
Wife for that matter, decided less is more, thinking that the trial court would likely try to put
the parties in the same position they were in before the marriage and much as they conducted
themselves during the marriage. Wife acknowledges in her reply brief that Husband
“correctly states that in cases involving marriages of relatively short durations, the trial court
should place the parties as nearly as possible to the position they were in prior to the
marriage.” See Broadbent v. Broadbent, 211 S.W.3d 216, 222 (Tenn. 2006), reh’ng granted
(Nov. 14, 2006). We cannot divine the thinking of trial counsel or the trial court. We can,
however, state with confidence that the trial court did not abuse its discretion in finding that
Wife did not make a showing of mistake or neglect.
Wife further argues that she is entitled to relief because Husband is guilty of “an
intentional contrivance . . . to keep [Wife] and the Court in ignorance of the real facts.” Her
basis is Husband’s testimony that his sister provided the funds for the initial deposit into the
joint construction account and his testimony that the F150 pickup truck belonged to his
daughter. As to the truck, the court determined the matter in favor of Wife. Therefore, if
there was a contrivance, it did not work. As to the deposit, it was accepted at trial that there
was more than one deposit, and, as we have previously stated, Wife argued that $100,000
was spent on the house from funds she did not supply. She was authorized to sign checks
on the construction account and appears to have had full access to the banking records so as
to be aware of all deposits and withdrawals. The fact that she introduced no specific proof
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at trial of the number and source of deposits speaks volumes. The same is true even with
regard to the banking records she submitted in support of her motion. Wife acknowledges
that to succeed on her fraud theory she must offer clear and convincing evidence of fraud.
See Duncan v. Duncan, 789 S.W.2d 557, 563 (Tenn. Ct. App. 1990). The trial court
specifically noted that it could not comfortably conclude that Husband had committed a fraud
on the court. The record fully supports the trial court’s conclusion. We hold, therefore, that
the trial court did not abuse its discretion in refusing to overturn the judgment for fraud.
Wife argues that she should be granted relief pursuant to the “catch-all” provision of
“any other reason justifying relief” in Tenn. R. Civ. P. 60.02(5). As we have earlier noted,
Rule 60.02 is not applicable to this case; but even if it were, it is clear that the broad language
of subsection (5) is not implicated by the facts of this case, that subsection having been
narrowly construed by the courts. Federated Ins. v. Lethcoe, 18 S.W.3d 621, 625 (Tenn.
2000); Duncan, 789 S.W.2d at 564. In application, the standard for relief under 60.02(5) is
“more demanding than those applicable to the other grounds for Tenn. R. Civ. P. 60.02
relief.” Id. “Relief under Rule 60.02(5) is only appropriate in cases of overwhelming
importance or in cases involving extraordinary circumstances or extreme hardship.” Lethcoe,
18 S.W.3d at 624. Having considered all of Wife’s arguments with respect to her second
motion, we hold that the trial court did not abuse its discretion in denying that motion.
V.
The judgment of the trial court is affirmed. Costs on appeal are taxed to appellant,
Sherry Watson. This case is remanded, pursuant to applicable law, for enforcement of the
trial court’s judgment and for collection of costs assessed by the trial court.
_______________________________
CHARLES D. SUSANO, JR., JUDGE
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