Mary Ann Umstot v. Edward Shirer Umstot - Dissenting/Concurring

IN THE COURT OF APPEALS OF TENNESSEE
WESTERN SECTION AT JACKSON
MARY ANN UMSTOT, FILED
No. 02A01-9701-CV-00008
Plaintiff/Counter-Defendant/Appellee September 5, 1997
Shelby Circuit No. 150200 R.D.
Vs. Cecil Crowson, Jr.
Appellate C ourt Clerk
EDWARD SHIRER UMSTOT,
Defendant-Counter-Plaintiff/Appellant.
DISSENTING IN PART; CONCURRING IN PART
I respectfully dissent from that portion of the majority's opinion which
concludes that the trial court's award of alimony in solido was excessive. As
noted by the majority, the trial court's order awarded 58% of the marital estate to
the wife and 42% percent of the marital estate to the husband. This court's
ruling, in its attempt to achieve “a more equitable division," awards 51% of the
marital estate to the wife and 49% percent to the husband.
On appeal, our review is guided by the principle that the trial court's
division of marital property is presumed correct, unless the evidence
preponderates otherwise. Tenn. R. App. P., Rule 13(d). Moreover, a division is
not rendered inequitable simply because it is not precisely equal. Ellis v. Ellis,
748 S.W.2d 424, 427 (Tenn. 1988). A review of the record reflects that the trial
court properly considered factors relevant in arriving at an equitable division of
the marital estate. Specifically, the court noted the eighteen year duration of the
parties' marriage, contributions to the marital estate, the age and physical health
of each party, and the relative earning capacity of each, including education and
training. With respect to the last factor, the trial court noted that the husband
holds a master's degree in biochemistry and that the wife is a medical
technologist. The husband is employed at the University of Tennessee -
Memphis as a research associate. Moreover, the proof established that the
wife's income is greater, in part, due to the fact that she holds two jobs as a
medical technologist. Finally, the trial court observed that the husband is in good
health while the wife, who has been diagnosed with malignant melanoma, has a
40% percent chance of living another five years.
Upon de novo review of the record, I am unable to conclude that the
evidence preponderates against the trial court's findings or that an error of law
has been committed. Accordingly, although I concur with the majority as to the
remaining issues raised on appeal, I would affirm the trial court's award of
alimony in solido.
____________________________________
DAVID G. HAYES, Judge
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