Sidney Tillman Hoover v. Daniel Edmondson Hoover

IN THE COURT OF APPEALS OF TENNESSEE
WESTERN SECTION AT NASHVILLE
______________________________________________
SIDNEY TILLMAN HOOVER, FROM THE WILLIAMSON
COUNTY CIRCUIT COURT
No. 95337
Plaintiff-Appellee, THE HONORABLE HENRY
DENMARK BELL, JUDGE
Vs. C.A. No. 01A01-9706-CV-00245
VACATED AND REMANDED
DANIEL EDMONDSON HOOVER, Virginia L. Story of Franklin
For Appellee
Defendant-Appellant. Nathaniel H. Koenig of Nashville
For Appellant
___________________________________________________________________________
MEMORANDUM OPINION1
FILED
___________________________________________________________________________
March 6, 1998
CRAWFORD, J.
Cecil W. Crowson
Appellate Court Clerk
This is a divorce case. Defendant-appellant Daniel Hoover appeals the trial court’s
division of marital property and asserts that the land containing the parties marital home was
improperly classified as wife’s separate property. Plaintiff-appellee Sidney Hoover asserts
that the trial court erred in failing to award her one-half of Husband’s retirement account.
Daniel Hoover (Husband) and Sidney Tillman Hoover (Wife) were granted a divorce
in February 1997 after fourteen years of marriage. In September 1983, nine months after the
parties were married, Wife’s parents conveyed a five acre portion of their 105 acre farm to
the parties for construction of their marital home. The deed provides in pertinent part as
follows:
For and in consideration of the sum of Ten ($10.00) dollars,
cash in hand paid, and other good and valuable considerations,
the receipt and sufficiency of which is hereby acknowledged,
we, GEORGE NEWTON TILLMAN AND WIFE, SYDNEY
HART TILLMAN, have bargained and sold and by these
presents do hereby transfer and convey unto DANIEL E.
HOOVER AND WIFE, SIDNEY TILLMAN HOOVER, their
heirs and assigns, the following described property situated in
the 8th Civil District of Williamson County, Tennessee, to wit:
[Description of Property]
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Rule 10 (Court of Appeals). Memorandum Opinion. -- (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 opinion when a formal opinion would have no precedential
value. When a case is decided by memorandum opinion it shall be designated
"MEMORANDUM OPINION," shall not be published, and shall not be cited or relied on for
any reason in a subsequent unrelated case.
TO HAVE AND TO HOLD said tract or parcel of land,
with the appurtenances, estate, title and interest thereto
belonging to the said Daniel E. Hoover and wife, Sidney
Tillman Hoover, their heirs and assigns, forever.
In addition to providing for the custody and support of the parties’ minor children,
and rehabilitative alimony to Wife, the Amended Final Decree of Divorce, entered February
13, 1997, provides for the distribution of property as follows:
3. REAL PROPERTY. That the Court has heard the testimony
of the parties, experts and witnesses, regarding the real
property located at 2131 S. Berry’s Chapel Road, Franklin,
Williamson County, Tennessee and has considered the
statutory factors as well as other appropriate criteria allowed by
Tennessee law in considering the equity between the parties in
the division of this property. That the Court finds said property
to be valued at One Hundred Ninety Three Thousand
($193,000.00) Dollars although Wife’s appraisal showed the
property to be valued at One Hundred Seventy Five Thousand
($175,000.00) Dollars. However, the Court finds that if the
Wife continues to live on the property with the minor children
she should not have the problems of the septic lines and
improvements to driveway which her appraiser took into
consideration in his evaluation if the property were sold to a
third party. The Court further finds that the land upon which
the residence was constructed was given to the parties by the
Wife’s family and the Wife’s family continues to own the
surrounding property this property having been in her family
since the early 1900's, the Court finds that said land was valued
at Fifty Thousand ($50,000.00) Dollars at the time of the
conveyance to the parties and therefore finds that this should be
considered as Wife’s separate property and deducted from the
net marital equity. The Court does not find controlling that the
title was placed in both parties’ names or that the actual
consideration listed on the warranty deed was Five Thousand
($5,000.00) Dollars as the testimony and evidence at trial
verify that the transfer was in family conveyance for love and
affection. Further the Court finds that Wife is disadvantaged
and she has less education and lower income than Husband and
will not have the ability to substantially acquire assets in the
future. Further, the Husband testified that he has family land
which may be available to him in the future as it was offered to
him at the time the parties were married. That Court also finds
that Husband has a retirement with the State of Tennessee in
the approximate amount of Twenty Eight [Thousand] Five
Hundred Thirty Three and 94/100 ($28,533.94) Dollars and
Wife has no retirement available to her.
Therefore, based upon the foregoing the Court awards
the marital residence to the Wife charging her with the
repayment of the mortgage in the amount of Forty Four
Thousand ($44,000.00) Dollars which she shall expressly
assume and hold Husband harmless therefrom. That Husband
shall pay the remaining marital debts being Visa, $4,673.76,
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Mastercard $491.40, Dr. Bond $25.00, Dr. Bressman $20.00,
Midsouth Dental $110.00, William Yost $88.00, Pediatric
Associates $101.00, Dr. Henderson $178.00, Moody’s $250.00,
litigation costs of $4,075.00 to Wife’s attorney, $4,860.65 to
Husband’s attorney, Court reporter fees for depositions and per
diem of $272.00, $142.50, $335.00, $55.00, $225.00, $112.50
for a total marital debt of Sixteen Thousand Three Hundred
Fifty Two and 31/100 ($16,352.31) Dollars plus court costs.
That Wife shall pay to Husband the sum of Twenty
Eight Thousand Eight Hundred Thirty Eight ($28,838.00)
Dollars and 00/100 representing his one-fourth of the equity
($193,000.00 less $50,000.00 land value found to be Wife’s
separate property, less $44,000.00 mortgage = $99,000.00) and
the marital debts 1/4th of which is awarded to him based upon
the Wife’s disadvantaged status and Husband’s receipt of his
entire retirement account. Husband is then to pay the marital
debts as listed above upon receipt of the $28,838.00 Judgment
from Wife.
Husband is awarded his entire retirement in the
approximate amount of Twenty Eight Thousand Five Hundred
Thirty Three ($28,533.94) Dollars and 94/100 free and clear of
claims of Wife.
* * * *
Both parties appeal the order of the trial court and present the following issues for
review:
Husband’s issues:
1. Whether the trial court erred in classifying land given by the
Wife’s parents to the parties during their marriage as the Wife’s
separate property.
2. Whether the trial court’s property division, in which
Husband received only 25% of the martial property while
incurring 75% of the marital debt is equitable under the facts of
this case.
Wife’s issues:
1. Whether the trial court erred in failing to award Wife one-
half of Husband’s retirement account.
2. Whether Wife should be awarded her attorney fees and costs
on appeal.
Since this case was tried by the court sitting without a jury, we review the case de
novo upon the record with a presumption of correctness of the findings of fact by the trial
court. Unless the evidence preponderates against the findings, we must affirm, absent error
of law. T.R.A.P. 13(d). On review, we must also keep in mind that trial courts have broad
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discretion in dividing the marital estate upon divorce. Kincaid v. Kincaid, 912 S.W.2d 140,
142 (Tenn. App. 1995).
In making a division of property in a divorce case, the trial court must first classify
each piece of property as either “marital” or “separate.” Batson v. Batson, 769 S.W.2d 849,
856 (Tenn. App. 1988). Marital property “means all real and personal property, both tangible
and intangible, acquired by either or both spouses during the course of the marriage . . .”
T.C.A. § 36-4-121(b)(1)(A) (1996). Separate property means:
(A) All real and personal property owned by a spouse before
marriage;
(B) Property acquired in exchange for property acquired before
the marriage;
(C) Income from and appreciation of property owned by a
spouse before marriage except when characterized as marital
property under subdivision (b)(1); and
(D) Property acquired by a spouse at any time by gift, bequest,
devise or descent.
T.C.A. § 36-4-121(b)(2) (1996). We hold that the trial court improperly classified the value
of the land conveyed to the parties as Wife’s separate property. We interpret the above
statutes to mean that when property is acquired by both spouses during the course of the
marriage it is marital property. If property is acquired by one spouse during the course of the
marriage it is marital property unless it was acquired by gift, bequest, devise, or descent.
Williamson v. Williamson, C.A. No. 03A01-9602-DR-00073, 1996 WL 555234 (Tenn. App.
E.S. Oct. 1, 1996); England v. England, C.A. No. 88-234-II, 1989 WL 3161 (Tenn. App.
W.S. Jan. 20, 1989). Since the property in question was acquired by deed to both parties
during their marriage, it is considered marital property. Because classifying the land as
Wife’s separate property has tainted the distribution of the remaining marital property, this
case must be remanded for an equitable redistribution. Therefore, we cannot address
Husband’s issue #2 regarding the equity of the property distribution until the trial court
makes a redistribution in accordance with this opinion and the factors listed in T.C.A. § 36-4-
121(c). However, we note that in the Amended Final Decree of Divorce, the trial court
improperly listed litigation costs and attorney fees as “marital debt,” and then assigned all
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marital debt to Husband.2 Attorney fees and costs can be awarded in the discretion of the
trial court, but an award of such fees is considered alimony. Gilliam v. Gilliam, 776 S.W.2d
81, 86 (Tenn. App. 1988). Furthermore, without an action having been brought by Husband’s
attorney, the trial court has no authority to reduce Husband’s attorney’s fees to judgment.
Because the trial court must start over with the redistribution of marital property, it is
unnecessary to address at this time whether Wife should be awarded one-half of Husband’s
retirement account. Wife’s request for attorney fees and costs on appeal is denied.
On remand, the trial court is directed to reclassify the full value of the marital home
and real property on which it is located as marital property. The retirement benefits earned
by Husband during the marriage are also marital property, but the court may, in its discretion,
leave Husband’s retirement account intact and award Wife a corresponding share of other
marital property in the interest of maintaining equity between the parties. Attorney fees
incurred by each party are not marital debt. If the trial court feels that an award of fees is
justified after considering the relevant factors in T.C.A. § 36-5-101(d)(1) and the parties’
ability to pay, then a separate award may be made.
For the foregoing reasons, the order of the trial court is vacated and the case is
remanded for further proceedings in accordance with this opinion. Costs of the appeal are
assessed equally between the parties.
_________________________________
W. FRANK CRAWFORD,
PRESIDING JUDGE, W.S.
CONCUR:
____________________________________
ALAN E. HIGHERS, JUDGE
____________________________________
DAVID R. FARMER, JUDGE
2
It is unclear from the trial court’s order whether Husband is charged with all marital
debts, or whether 1/4 of those debts are assigned to Wife. The order states that “Husband shall
pay the remaining marital debts,” but the following paragraph can be interpreted as charging
Wife with 1/4 of those debts. It is apparent from the wording of Husband’s issues on appeal that
counsel is confused by the wording of the order as well.
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