Malcolm Yates Worley v. Rita K. Worley

MALCOLM YATES WORLEY, )
)
Plaintiff and Counter-Defendant/ )
Appellant, )
) Hickman Chancery
) No. 9511296
VS. )
) Appeal No.
) 01-A-01-9601-CH-00037
RITA K. WORLEY, )
)
Defendant and Counter-Plaintiff/
Appellee.
)
) FILED
June 7, 1996
IN THE COURT OF APPEALS OF TENNESSEE
Cecil W. Crowson
MIDDLE SECTION AT NASHVILLE
Appellate Court Clerk
APPEAL FROM THE CHANCERY COURT OF HICKMAN COUNTY
AT CENTERVILLE, TENNESSEE
HONORABLE CORNELIA A. CLARK, CHANCELLOR
DOUGLAS THOMPSON BATES, III
P.O. Box 1
Centerville, Tennessee 37033
ATTORNEY FOR PLAINTIFF/APPELLANT
DANA DYE
P.O. Box 11
105 West End Avenue
Centerville, Tennessee 37033
ATTORNEY FOR DEFENDANT/APPELLEE
MODIFIED, AFFIRMED AND REMANDED
HENRY F. TODD
PRESIDING JUDGE, MIDDLE SECTION
CONCUR:
SAMUEL L. LEWIS, JUDGE
BEN H. CANTRELL, JUDGE
MALCOLM YATES WORLEY, )
)
Plaintiff and Counter-Defendant/ )
Appellant, )
) Hickman Chancery
) No. 9511296
VS. )
) Appeal No.
) 01-A-01-9601-CH-00037
RITA K. WORLEY, )
)
Defendant and Counter-Plaintiff/ )
Appellee. )
O P I N I O N
This is a suit and countersuit for divorce in which the wife was granted an absolute
divorce on grounds of inappropriate marital conduct of the husband. On appeal, the husband
presents issues which relate only to identification and division of the marital estate:
The parties were married in 1958 and separated in 1995. Both parties worked during
the marriage. Their earnings were approximately equal. There are no minor children.
The husband’s first issue is:
1. It was error for the Trial Court to hold that the assets of the
parties were acquired by equal contribution of the parties.
Husband does not question the approximate equality of earnings, but asserts that,
during the marriage, he acquired $152,625.34 worth of assets by inheritance from his family.
The Trial Judge recognized $47,000 in certificates of deposit as being derived from
inheritance and therefore separate property of the husband. The husband insists that the
remainder of the $152,625.34 inheritance, or $102,625.34 be also assigned to him out of the
marital estate of $126,204.10. In respect to the inheritance, the Trial Judge stated orally from
the bench:
I also find under these definitions that the three CD’s of ten
thousand dollars, seventeen thousand dollars and twenty
thousand dollars were and remain the separate property of Mr.
Worley, because those monies came primarily from
inheritance. They have come fairly recently, since 1993, they
can be traced separately, and I don’t find there’s been enough
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proof of an intent or purpose to really treat them as marital
funds to count them in any different way.
The funds that were received at the same time, because those
were not the total of the funds received on those three
occasions, but spent for other things, did become marital
property and they’ve been spent up or given to the children or
otherwise disposed of, and I’m not going to attempt to deal
with those today.
....
And to the extent I need to make a finding, I find that in this
marriage of thirty-seven, or thirty-six and a half years, where
both parties have worked outside the home for some substantial
period, Mr. Worley has contributed significant inherited funds
to the preservation of the family, but Mrs. Worley has also
worked inside the home as homemaker and has decorated the
house, has raised the children, has done all the business and
financial management for the family, that there has been a
substantial contribution, or an equal contribution, of both
parties to the ultimate course of the marriage and that both
should be credited with that.
The judgment of the Trial Court states:
Both parties have made substantial and equal contributions to the
accumulation of marital assets and the distribution of those assets
identified as marital assets should be approximately equal.
Husband argues that the Trial Court included the $102,625.34 in the marital estate
because the wife did housework at home in addition to her work outside the home. This
Court disagrees. The housework was mentioned to justify an equal division of the increase in
value or income from inherited property. The justification for failing to designate as separate
property the $102,625.34 was the failure to trace it into any severable asset as was done with
the three certificates of deposit. As stated by the Trial Judge, so far as this record shows, the
$102,625.34 has been “spent for other things or spent up” or given to the children or
otherwise disposed of. The record does not reflect a preponderance of the evidence against
this finding. Consideration of the interesting question about recognition of housework ably
presented by counsel must await a more suitable factual and decisional situation.
The husband’s second issue is:
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2. It was error for the Trial Court to ignore the uncontradicted
proof of $9,500 contributed by husband toward the purchase
price of the house when such funds came from the sale of an
asset husband held before the marriage.
The Trial Judge stated orally:
. . . As to the house, I find that the entire sixty-five thousand
dollar equity value, which is apparently unencumbered by any
lien, is to be considered marital property and may be disposed
of in that way. I recognize that Mr. Worley initially made a
contribution of about nine thousand five hundred dollars from a
house he owned previous to this marriage, but that being more
than thirty-five years ago, and this house having appreciated
substantially since then and having been the marital residence
of these parties, insofar as they’ve testified, forever, I find that
that has been treated as and has become marital property. And
so I’m not making any deduction to his credit for that long ago
contribution, either.
At the marriage, the husband owned a house of unstated value. About eight years
later he sold the house for $9,500. Appellee argues that any increase in the value of the house
during the marriage could be deemed a part of the marital estate. However, a more important
consideration is that the husband merged the $9,500 into the joint ownership of the new
home. Such is subject to consideration as a presumed gift or the subject of transmutation
which can occur by the conversion of separate ownership of nonmarital property into a form
of common ownership or commingling non marital property with marital property.
McClellan v. McClellan, Tenn. App. 1993; 873 S.W.2d 350; Barnhill v. Barnhill, Tenn. App.
1991, 826 S.W.2d 443; Batson v. Batson, Tenn. App. 1988, 769 S.W.2d 849; 27B C.J.S.
Divorce § 522, pp. 525,526.
Husband’s third issue is:
It was error to hold that timber cut on inherited land would be
separate property.
The judgment of the Trial Court states in part:
. . . Thus, the marital assets of these parties consist of the
marital home valued at $65,000.00, the $15,000.00 certificate
of deposit which is found to be income derived from the
husband’s separate property, . . . .
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The Trial Judge stated orally:
. . . The fifteen thousand dollar CD, number 46748, which I
think everybody agrees was purchased after the sale of timber
cut from Mr. Worley’s inherited property, I find to be marital
property under (b) (1) (B), in that it really constitutes income
from separate property and, therefore, should be defined to be
marital property.
This Court cannot agree with the Trial Court that the proceeds of timber removed
from separately owned real estate is marital income. Timber is part of the land upon which it
grows. New River Lumber Co. v. Blue Ridge Lumber Co., 146 Tenn. 181 (1922). The
increase in value of the land by the timber growth which occurred while the land was owned
by the husband during the marriage would be a part of the marital estate, but the amount of
such increased value, or the proportion of the timber proceeds attributable to growth during
such period does not appear in this record. Accordingly, there is no evidentiary basis for
classifying any part of the timber proceeds as marital property.
Husband’s fourth and last issue is:
It was error to give wife $13,442.00 more of marital assets
upon a theory of “Partial Attorney’s Fees” especially when the
issue never came up at the trial until the court announced its
ruling and there was no proof of what fee was owing.
The tabulation of assets awarded the parties shows that $56,381.10 was received by
the husband and $69,823 was received by the wife - a difference of $12,942.90. As to this
difference, the Trial Judge stated orally:
I also recognize that when the numbers are added up, the total
numbers may work in favor of Mrs. Worley slightly. To the
extent that they do, then I also intend that they constitute an
award, a partial award of attorney’s fees, and I’m not going to
award her those or in any other alimony in solido separately
because she has now been given assets and/or judgment that
will give her some liquidity.
This Court cannot agree that a $12,942.90 difference in distribution of property can be
justified by “attorney’s fees” which are awarded as a part of alimony. Gilliam v. Gilliam,
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Tenn. App. 1988, 776 S.W.2d 81; Raskind v. Raskind, 45 Tenn. App. 583, 325 S.W.2d 617(1959).
The counter-complaint of the wife did pray for attorney’s fee. Although no evidence
is found in the record as to the amount of legal services rendered or the reasonable charges
therefor, it is possible for a court to make a determination of the reasonable services which
appear on the face of the record. Kahn v. Kahn, Tenn. 1988, 756 S.W.2d 685.
The record of the Trial Court and the briefs and argument before this Court justify at
least $5,000 in legal fees which will be awarded to the wife.
The elimination of the $15,000 timber proceeds will reduce the share of the wife by
$7,500, which, together with the elimination of the $12,942.90 will reduce the amount of the
wife’s share in the marital estate to the extent of $20,442.90.
Accordingly, the judgment of $25,000 in favor of the wife and against the husband is
reduced to $4,557.10, and an award of $5,000 attorney’s fee to the wife is added to the
judgment. As modified, the judgment is affirmed. The costs of this appeal are taxed equally.
That is, each party shall pay one-half. The cause is remanded for necessary further
proceedings.
Modified, Affirmed and Remanded.
_____________________________________
HENRY F. TODD
PRESIDING JUDGE, MIDDLE SECTION
CONCUR:
_____________________________________
SAMUEL L. LEWIS, JUDGE
_____________________________________
BEN H. CANTRELL, JUDGE
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