IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
January 8, 2002 Session
KIMBERLY LYNN HAAS v. ALBERT JAMES HAAS.
Appeal from the Circuit Court for Davidson County
No. 99D-3509 Muriel Robinson, Judge
No. M2000-02850-COA-R3-CV - Filed July 18, 2002
In this appeal from the Davidson County Circuit Court, the Appellant, Kimberly Lynn Haas,
questions whether the trial court erred in granting her an absolute divorce and rendering a final
disposition of the parties’ marital property, whether the trial court erred in denying the
appellant’s motion for judgment on the pleadings, whether the trial court erred in refusing to
bifurcate the issues of liability and damages to the appellee’s two antique chairs, whether the
trial court erred in its division of the appellant’s 401K Deferred Compensation Plan, whether the
trial court erred in permitting the appellee to assert the Fifth Amendment on the issues of
dissipation of marital assets and adultery, whether the trial court erred in refusing to
meaningfully consider the appellant’s gift of $25,000 to the appellee in dividing the parties’
property, whether the trial court erred in awarding the appellee the Toyota 4-Runner, whether the
trial court erred in awarding the appellee the rosewood antique table, whether the trial court
erred in awarding the appellee the $2,500 General Motors Cash Rebate, whether the trial court
erred in not requiring the appellee to assume any of the outstanding marital debt on the Honda
Accord, whether the trial court erred in its division of the General Motors credit card debt, and
the method of payment of such marital debt. We affirm the judgment of the trial court in part,
reverse in part and remand as consistent with this opinion. Costs of this appeal shall be split
between the parties.
Tenn.R.App.P.3. Appeal as of Right; Judgment of the Circuit Court
Affirmed in Part, Reversed in Part and Remanded in Part
DON R. ASH , S.J., delivered the opinion of the court, in which WILLIAM B. CAIN , J., and BEN H.
CANTRELL , P.J., M.S., joined.
R. Eddie Davidson, Nashville, Tennessee, for the appellant, Kimberly Lynn Haas.
Phillip Robinson, Nashville, Tennessee, for the appellee, Albert James Haas.
1
OPINION
I.
This is an appeal from a judgment entered by the Fourth Circuit Court for Davidson County
in a divorce action between the Appellant/Plaintiff, Kimberly Lynn Haas, and the
Appellee/Defendant, Albert James Haas. The parties were married on November 19, 1994. Mr.
Haas entered active military service on October 1, 1999. Mr. Haas left the marital residence in
November 1999 without notice to Ms. Haas or her fourteen-year old daughter from a previous
relationship. The stepdaughter responded to Mr. Haas’ leaving by throwing two of his antique
chairs over the balcony. Ms. Haas allegedly contacted Mr. Haas’ superiors at the Army,
declaring her husband abandoned her and was not supporting her financially. On December 13,
1999, Ms. Haas filed a Complaint for legal separation. She testified she still loved Mr. Haas and
did not want a divorce. In contrast, Mr. Haas has not spoken to Ms. Haas since leaving the
household and has expressed he will never return to her.
On December 30, 1999, Mr. Haas filed a Motion, inter alia, seeking damages for two
antique chairs and requesting the court to prohibit Ms. Haas from contacting the United States
Army regarding his activities. Thereafter, on January 19, 2000, Mr. Haas filed an Answer,
admitting he committed adultery during the marriage, and a Counter-Complaint for divorce. On
February 9, 2000, the trial court granted Mr. Haas’ motion of December 30, 1999,and found Ms.
Haas liable for the damage to Mr. Haas’ antique chairs. The wife filed a Motion opposing the
trial court’s judgment regarding the damaged chairs. She then filed a Motion for judgment on
the pleadings on April 7, 2000. The trial court denied this motion. On May 19, 2000, the trial
court made an evidentiary ruling permitting Mr. Haas to assert the Fifth Amendment regarding
his adulterous relationships. Ms. Haas filed a Motion seeking clarification of this order on May
26, 2000. The trial court held Mr. Haas would be permitted to rely upon the Fifth Amendment
regarding any adultery committed after October 1, 1999—the date he went on active duty in the
military. Ms. Haas filed a Motion to exclude from trial all issues concerning the actions of her
daughter, or in the alternative, to bifurcate the trial on issues regarding liability and damages to
Mr. Haas’ antique chairs. The trial court denied this motion on September 8, 2000.
A trial was held in this cause on September 11, 2000. The trial court granted Ms. Haas
an absolute divorce, and rendered a final disposition regarding the parties’ property, including an
order for Ms. Haas to pay Mr. Haas $39,000 under the settlement of the parties’ deferred
compensation plans. The trial court’s order was entered October 23, 2000. Ms. Haas filed a
notice of appeal on November 14, 2000 and filed a Motion for the stay of the proceedings on
November 21, 2000. On December 14, 2000, the trial court granted her Motion and stayed all
matters pending appeal.
2
II.
Ms. Haas raises eleven issues for our review, which we restate as follows:
1. Did the trial court err in granting the appellant an absolute divorce and rendering a
final disposition of the parties’ marital property;
2. Did the trial court err in denying the appellant’s Motion for judgment on the
pleadings;
3. Did the trial court err in refusing to bifurcate the issues of liability and damages to the
appellee’s two antique chairs;
4. Did the trial court err in its division of personal property;
5. Did the trial court err in its division of the appellant’s 401K Deferred Compensation
Plan; and
6. Did the trial court err in permitting the appellee to assert the Fifth Amendment on the
issues of dissipation of marital assets and adultery?
III.
1. Did the trial court err in granting the appellant an absolute divorce and rendering a
final disposition of the parties’ marital property?
Ms. Haas argues the trial court erred in granting her an absolute divorce pursuant to
T.C.A. § 36-4-129 when she only pled for legal separation pursuant to T.C.A. § 36-4-102.
T.C.A. § 36-4-129 provides the court may, upon…proof of any ground for divorce pursuant to
T.C.A. § 36-4-101, grant the divorce to the party who was least at fault. In accordance with this
provision, the trial court granted Ms. Haas an absolute divorce in light of Mr. Haas’ admitted
adultery. Ms. Haas adamantly insists she never requested a divorce and cannot be entitled to
relief for which she did not request. Ms. Haas further maintains she should not be circumvented
from receiving the relief for which she rightfully pled.
T.C.A. § 36-4-102(a) provides a party who alleges grounds for divorce from the bonds of
matrimony may file a complaint for only legal separation as an alternative to filing a complaint
for an absolute divorce. The statute indicates the court shall declare the parties legally separated
unless the other party specifically objects to the granting of an order for legal separation. The
prospects of reconciliation are a major factor guiding the court’s discretionary determination
regarding ordering legal separation or an absolute divorce. The trial judge may grant legal
separation and decline to distribute the marital property where the possibility of reconciliation is
promising. In contrast, divorce and property division is generally considered preferable where
the prospects of reconciliation are poor or nil and the marital relationship has ended.
Reconciliation is impossible in the present case as Mr. Haas clearly declared his intention to
never return to Ms. Haas.
The trial court’s ruling is also consistent with an analysis of the history of Tennessee
divorce powers. The court recently examined its power to grant an absolute divorce where
continued cohabitation is unacceptable in Earls v. Earls, 42 S.W.3d 877 (Tenn. Ct. App. May 14,
2000). The court stated,
3
“Upon proof of any ground for divorce in Tenn. Code Ann. § 36-4-101, including
inappropriate marital conduct, the general assembly has empowered the courts to grant a
divorce to the party who was less at fault or, if either or both parties are entitled to a
divorce, declare the parties to be divorced, rather than awarding a divorce to either party
alone…Accordingly a Tennessee court should grant a divorce from the bonds of
matrimony whenever there is evidence of continued misconduct by one or both spouses
that makes continued cohabitation unacceptable.” Earls v. Earls, at 833.
Ms. Haas attempts to distinguish this case from Earls v. Earls, where the husband first
filed for divorce on grounds of irreconcilable differences, and later by an amended complaint
alleging inappropriate marital conduct. Ms. Earls did not plead for a divorce in any of her
pleadings, but affirmatively requested spousal support and injunctive relief. In contrast, Ms.
Haas reiterates she affirmatively and proactively filed a complaint for a legal separation. She
remarks this statute was relatively new at the time of her filing. Ms. Haas speculates Ms. Earls
may have sought relief under the legal separation statute if it were available. She emphasizes the
legal separation statute was recently enacted by our legislature. However, our trial courts have
been empowered since 1933 to grant an absolute divorce, even where the complainant only
requested a legal separation, when reconciliation between the parties is impossible and no
societal interest can be served by perpetuation of the union. Lingner v. Lingner, 165 Tenn. 525,
56 S.W.2d 749 (1933). The Tennessee Supreme Court remarked the purpose of legal separation
is to provide the parties with time to allow their passions to subside and promote reconciliation.
Legal separation would merely prolong a bad situation that society has no interest in preserving
where reconciliation is impossible. Id.at 752. Finally, the judgment of the court ultimately
controls whether legal separation or an absolute divorce is appropriate. The Court stated, “The
wishes of neither party in a divorce case control the actions of the court. The court, of course,
gravely considers the desires of the wronged party, but the court reserves the right to determine
for itself what is best for a party.” Id at 752.
The court recently reiterated the Lingner analysis of legal separation in Asher v. Asher,
E2000-00821-COA-R3-CV, Tenn. App. LEXIS 342 (Tenn. Ct. App. May 9, 2001). Ms. Asher
filed for legal separation under T.C.A. § 36-4-102 and her husband counterclaimed for divorce.
The trial court granted the wife a divorce under T.C.A. § 36-4-119, and Ms. Asher appealed,
arguing the trial court erred because she requested only a legal separation. The Court of Appeals
rejected Ms. Asher’s argument, declaring the language of T.C.A. § 36-4-119 vests broad
discretion in the trial court regarding the type and extent of relief granted. The Court stated,
“While we acknowledge that Ms. Asher prayed for legal separation only in her complaint, the
Chancery Court was not restricted by her request.” Id, at *2-3. The Court continued with the
Lingner analysis, and then also indicated the testimony of the parties regarding adultery and
inappropriate marital conduct was sufficient to grant an absolute divorce pursuant T.C.A. § 36-4-
102(d).
The trial court was not restricted by her request for legal separation and properly granted
an absolute divorce in this matter.
2. Did the trial court err in denying the appellant’s motion for judgment on the pleadings?
4
Ms. Haas claims the trial court erred in denying her Motion for judgment on the
pleadings. Motions for Judgment on the Pleadings are governed by rule 12.03 of the Tennessee
Rules of Civil Procedure. Rule 12.03 provides:
After the pleadings are closed, but within such time as not to delay the trial, any party
may move for judgment on the pleadings. If, on a motion for judgment on the pleadings,
matters outside the pleadings are presented to and not excluded by the court, the motion
shall be treated as one for summary judgment and disposed of as provided in Rule 56.
Ms. Haas maintains her motion should have been granted since she was clearly entitled to
legal separation under T.C.A. § 36-4-102 in light of Mr. Haas’ acknowledgment of adultery.
Although Ms. Haas correctly proclaims she was entitled to legal separation, she fails to consider
the significance of Mr. Haas’ Counter-Complaint for divorce. Mr. Haas asserted he was entitled
to a divorce based upon grounds of inappropriate marital conduct and irreconcilable differences.
The trial judge believed the final determination of these issues was more appropriate for trial.
The Committee Comment regarding the rule for judgment on the pleadings provides trial judges
with this discretion: “Rule 12.03 allows these matters and the motion for judgment on the
pleadings to be disposed of in advance of trial, upon application of any party, but the trial judge
may defer hearing and determination of these matters until the trial (emphasis added).”
Consequently, this Court concludes the trial court was justified in denying Ms. Haas’ Motion for
judgment on the pleadings.
3. Did the trial court err in refusing to bifurcate the issues of liability and damages to the
appellee’s two antique chairs?
Ms. Haas argues the trial court erred by refusing to bifurcate the issues of liability and
damages to Mr. Haas’ antique chairs. The evidence showed Ms. Haas’ daughter threw her
stepfather’s chairs from the balcony when she discovered he abandoned the residence. The trial
court ruled Ms. Haas would be responsible for her daughter’s damage to the chairs.
Mr. Haas insists Ms. Haas should compensate him for the damage to the chairs because
each party is obligated not to dissipate or devalue the marital estate after filing for divorce.
T.C.A. § 36-4-121(c)(5). The Kentucky Court of Appeals deftly described the public policy
behind the court’s examination of dissipation of assets in Robinette v. Robinette, 736 S.W.2d
351, 354 (Ky. Ct. App. 1987), where they declared the ultimate question to be answered when
considering this issue is whether the assets were expended by one spouse with the intent of
diminishing the other spouse’s share of the marital estate. The record in this matter does not
support the conclusion that Ms. Haas took any affirmative action to deprive Mr. Haas of his
share of the marital estate.
Furthermore, Ms. Haas indicates T.C.A. § 37-10-103 governs a parent’s liability for the
torts of a child. That statute reads:
“(A) A parent or guardian shall be liable for the tortuous activities of a minor child that
causes injury to person or property where the parent or guardian knows or should
5
know, of the child’s tendency to commit wrongful acts which would be expected to
cause injury to persons and property and where the parent or guardian has an
opportunity to control the child but fails to exercise reasonable means to restrain
the tortuous conduct (emphasis added).
(B) A parent or guardian should be presumed to know if a child’s tendency to commit
wrongful acts if the child has previously been charged with or been responsible for such
acts.”
The evidence indicated Ms. Haas was in the garage when the chairs were damaged and
was unaware of her daughter’s actions until afterwards. Nor does the record contain a finding
regarding Ms. Haas’ knowledge of her daughter’s likelihood to damage property. Thus, the
record in this matter does not support the trial court’s judgment in favor of Mr. Haas. This Court
concludes the trial court erred by refusing to bifurcate the issues of liability and damages to Mr.
Haas’ antique chairs, as well as requiring Ms. Haas to pay for the damage caused by her
daughter. Consequently, Mr. Haas shall receive the two damaged chairs per the trial court’s
property division but Ms. Haas shall be relieved from the Judgment Order for damages. Finally,
Mr. Haas may elect to sue his former stepdaughter for the damage to his separate property in an
appropriate forum if he so chooses.
4. Did the trial court err in its division of personal property?
Ms. Haas raises eight issues challenging the trial court’s division of personal property.
She specifically questions the trial court’s consideration of her gift of $25,000 to the appellee,
the award of the Toyota 4-Runner, rosewood antique table and $2,500 General Motors Cash
Rebate to the appellee, the trial court’s refusal to require the appellee to assume any of the
outstanding marital debt on the Honda Accord, and the division of the General Motors credit
card debt.
T.C.A. § 36-4-121 governs the division of property in divorce cases and generally
provides the trial court shall equitably divide the property without regard to fault. The trial court
must also employ the same analysis when dividing marital debts. Mahaffey v. Mahaffey, 775
S.W.2d 618, 623 (Tenn. Ct. App. 1989). This statute confers wide discretion on the trial court in
adjusting and adjudicating the parties’ rights and interests in all jointly owned property. Fisher
v. Fisher, 648 S.W.2d 244, 246 (Tenn. 1983). Accordingly, its division of the marital estate is
entitled to great weight on appeal. Edwards v. Edwards, 501 S.W.2d 283, 288 (Tenn. Ct. App.
1973). This Court shall presume the trial court’s division of property was correct unless the
evidence preponderates otherwise. Lancaster v. Lancaster, 671 S.W.2d 501, 502 (Tenn. Ct. App.
1984); Tenn.R.App.P. 13(d). Furthermore, it is well established the property division must only
be “equitable” and need not be an “equal” one, as each case is unique and must be decided on its
own facts. Wade v. Wade, 897 S.W.2d 702, 717 (Tenn. Ct. App. 1994); Batson v. Batson, 769
S.W.2d 849, 859 (Tenn. Ct. App. 1988). Nor is each party entitled to receive a share of each
piece of marital property. Thompson v. Thompson, 797 S.W.2d 599, 604 (Tenn. Ct. App. 1990).
Rather, the correctness of the trial court’s property division is determined solely by its final
results. Id.; Bookout v. Bookout, 954 S.W.2d 730, 732 (Tenn. Ct. App. 1997); Wade v. Wade, at
6
717. Thus, although Ms. Haas challenges several aspects of the property division, this Court will
focus on the final results achieved by the trial court.
The equity of the overall property division is determined by the following factors set
forth in T.C.A. § 36-4-121(c):
(1) The duration of the marriage;
(2) The age, physical and mental health, vocational skills, employability, earning
capacity, estate, financial liabilities and financial needs of each of the parties;
(3) The tangible or intangible contribution by one party to the education, training or
increased earning power of the other party;
(4) The relative ability of each party for future acquisition of capital assets and
income;
(5) The contribution of each party to the acquisition, preservation, appreciation or
dissipation of the marital or separate property, including the contribution of each
party to the marriage as a homemaker, wage earner or parent, with the
contribution of a party as homemaker or wage earner to be given the same weight
if each party fulfilled its role;
(6) The value of the separate property of each party;
(7) The estate of each party at the time of the marriage;
(8) The economic circumstances of each party at the time the division of property is
to become effective;
(9) The tax consequences to each party; and
(10) Such other factors as are necessary to consider the equities between the parties.
This Court considers Ms. Haas’ higher net worth prior to the marriage, her advanced
education, and superior earning power prior to the marriage, throughout the relationship, and
afterwards, to be highly relevant to the property division. Ms. Haas challenges several aspects of
the trial court’s property division, whereby she received the vast majority of the marital property.
This Court concludes the final results of the trial court’s property division were not inequitable
towards Ms. Haas.
1. Did the trial court err in its division of the appellant’s 401K Deferred Compensation
Plan?
Ms. Haas argues the trial court erred in its division of her 401K Deferred Compensation
Plan. Ms. Haas specifically challenges the trial court’s method of valuing the deferred
compensation plans. She also alleges the trial court erred in determining Mr. Haas was entitled to
any portion of the increased value of her deferred compensation plan where he made no
substantial contributions to such increase. Finally, Ms. Haas insists the trial court erred by
disregarding principles of equity when it equally divided the increased value of the deferred
compensation plans held by both parties.
In contrast to a pension plan, where an employee earns future compensation for present
employment, a deferred compensation plan is funded with pre-tax monies earned in the present.
Mr. Haas’ Pepsico Deferred Compensation Plan was funded entirely during the marriage and had
7
a value of $17,900. In contrast, Ms. Haas’ Security First Group Deferred Compensation Plan
was valued at $91,804.59 on November 2, 1994, just prior to the marriage. Her plan appreciated
to $123,264.05, and Ms. Haas withdrew $76,627.17 on October 10, 1996 for the purpose of
purchasing a more expansive residence. $46,636.88 remained after the distribution. Ms. Haas
made additional contributions during the marriage totaling $16,400. The deferred compensation
funds of both parties received significant contributions during the marriage and the trial court
considered these plans to be marital property. In its final disposition of marital property, the trial
court jointly divided in equal shares the increase in the value of the deferred compensation plans
held by both parties. The trial court ultimately determined Ms. Haas owed Mr. Haas $39,000 as
his share of the deferred compensation plans.
Ms. Haas specifically challenges the trial court’s method of valuing the deferred
compensation plans. She argues the trial court erred in determining the cash value of the
deferred compensation plans was the actual amount of funds contained within the plans. Ms.
Haas submits the “present value” of the deferred compensation plans was their value at the time
of withdrawal of the funds, taking into account the necessity for the payment of income tax and
penalties for early withdrawal. However, we find Ms. Haas’ objections to the trial court’s
method of valuation to be without merit. The choice of valuation method remains within the
sound discretion of the trial court to determine after consideration of all relevant factors and
circumstances. Cohen v. Cohen, 937 S.W.2d 823, 831 (Tenn. 1996). We do not find the trial
court abused its discretion in selecting the method of valuation.
Ms. Haas further contends the trial court erred in awarding Mr. Haas one-half of the
increased value of her deferred compensation plan. Ms. Haas claims Mr. Haas should not be
entitled to any portion of the increased value of her deferred compensation plan where he made
no substantial contributions to such increase. See Sherrill v. Sherrill, 831 S.W.2d 293, 295
(Tenn. Ct. App. 1992); Crews v. Crews, 743 S.W.2d 182, 189 (Tenn. Ct. App. 1987). As stated
previously, Mr. Haas’ Pepsico Deferred Compensation Plan was funded entirely during the
marriage and had a value of $17,900, and Ms. Haas made additional contributions to the Security
First Group Deferred Compensation Plan during the marriage totaling $16,400. The deferred
compensation funds of both parties received significant contributions during the marriage. This
court will not disturb the trial court’s conclusions regarding the contributions of the parties to the
increased value of the deferred compensation plans.
Ms. Haas asserts the trial court disregarded all principles of equity in the distribution of
marital property by equally dividing the increased value of both deferred compensation plans.
However, an equitable distribution of property during the dissolution of a marriage does not
necessarily require an equal disposition. Rather the trial court must divide the property in the
most equitable manner. Cohen v. Cohen, at 832. The trial court shall equitably divide the
property in a divorce case without regard to fault under T.C.A. § 36-4-121. As we stated earlier,
the trial judge is afforded wide discretion regarding the division of the marital estate. Fisher v.
Fisher at 246. The trial court’s division of the marital estate is entitled to great weight on appeal.
Edwards v. Edwards at 288. This court believes the evidence in this case does not preponderate
against the trial court’s presumption of correctness. Lancaster v. Lancaster, Tenn.R.App.P.
13(d).
8
This court affirms the trial court’s division of the 401K Deferred Compensation Plans.
2. Did the trial court err in permitting the appellee to assert the Fifth Amendment on the
issues of dissipation of marital assets and adultery?
Ms. Haas argues the trial court erred in permitting Mr. Haas to assert the Fifth
Amendment privilege regarding adultery and dissipation of marital assets. Mr. Haas feared his
testimony might be used against him under the Uniform Code of Military Justice (UCMJ) in a
military court. The trial court permitted Mr. Haas to assert the Fifth Amendment with respect to
activities occurring after October 1, 1999, the date when Mr. Haas began active military service.
Ms. Haas requests this Court remand the case for a new trial, with explicit instructions to the
trial court to permit the admission of evidence establishing Mr. Haas’ alleged dissipation of
marital assets and adultery.
There is no question that a party to a civil action may claim the benefit of the privilege
against self-incrimination. Arndstein v. McCarthy, 254 U.S. 71 (1920). However, the privilege
against self-incrimination is an affirmative right and will be deemed waived unless it is
effectively invoked. Rogers v. United States, 340 U.S. 367 (1951). The privilege should only be
sustained in the absence of any previous admission of guilt or incriminating facts. McCarthy v.
Arndstein, 262 U.S. 355, 359 (1923). Witnesses who fail to invoke the Fifth Amendment against
questions to which they could have claimed it are deemed to have waived the privilege
respecting all questions on the same subject matter. United States v. O’Henry’s Film Works,
Inc., 598 F.2d 313 (2d Cir. 1979).
The record relevant to this issue indicates Mr. Haas waived his right to invoke the
privilege against self-incrimination in three respects. First, the protection of the Fifth
Amendment does not extend to non-privileged communications to third parties, such as the
sworn Answer filed by Mr. Haas in which he admitted the alleged adultery. Next, Mr. Haas’
voluntary testimony throughout this proceeding is also consistent with the waiver of his Fifth
Amendment privilege. Finally, Mr. Haas should not be permitted to seek affirmative relief in the
form of an absolute divorce and an equitable property division and simultaneously preclude Ms.
Haas from cross-examining him on matters relevant to such relief.
Mr. Haas entered active military service on October 1, 1999. The potential for
prosecution for adultery under the Uniform Code of Military Justice was present when Mr. Haas
filed a sworn Answer in which he admitted the incriminating allegations of adultery in a general
statement that did not specify the dates of such marital infidelity. Mr. Haas could have invoked
his Fifth Amendment privilege out of fear of potential military prosecution at the time he filed
his sworn Answer on January 19, 2000. Yet Mr. Haas admitted his guilt regarding the acts of
adultery alleged in paragraph 4 of the Complaint. The Fifth Amendment protection against
compulsory furnishing of evidence against oneself does not extend to non-privileged
communications to third parties. Sheets v. Hathcock, 528 S.w.2d 47 (Tenn. Crim. App. 1975).
Mr. Haas’ Answer is a non-privileged document of public record. The filing of this sworn
document admitting his guilt effectively waived his Fifth Amendment privilege regarding the
details of those acts. A witness in a civil case who discloses a fact or transaction, without
invoking his privilege against self-incrimination, is deemed to have waived the privilege with
9
respect to the particulars of such fact or transaction. International Brotherhood of Teamsters v.
Hatas, 252 So.2d 7, 22 (Ala. 1971). See also Bonham v. Bonham, 489 So.2d 578 (Ala. Civ. App.
1985).
The Fifth Amendment implications of filing a verified answer was closely examined in
Southbridge Finishing Company v. Golding, 143 N.Y.S.2d 911 (S. Ct. NY 1955). The privilege
against self-incrimination was held to be waived, “or, more accurately I think, rendered
untenable, only when (apart from the instances of a defendant taking the stand upon the trial of
an indictment against him) the party asserting the privilege has actually given incriminating
evidence against himself (as distinguished from ‘voluntarily testifying about the subject matter
in issue’); and as the service of even a verified answer which denies the charges of a crime, or a
verified answer which, in addition to such denial, sets up affirmative defenses which are not in
themselves incriminating, is not the giving of incriminating evidence, it necessarily follows that
the service of such an answer is not a waiver.” Southbridge Finishing Company v. Golding. In
contrast, Mr. Haas filed a sworn Answer admitting he committed the acts of adultery alleged in
the Complaint. Thus, Mr. Haas furnished incriminating evidence against himself and waived his
Fifth Amendment privilege regarding the details of those acts.
Furthermore, Mr. Haas’ testimony throughout this proceeding is also consistent with the
waiver of his Fifth Amendment privilege. “Requiring full disclosure of details after a witness
freely testifies to a criminating fact does not rest upon a further ‘waiver’ of the privilege against
self-incrimination.” Rogers v. United States, at 374. Mr. Haas had already waived his privilege
of silence when he freely admitted the allegations of adultery in his Answer. See Rogers v.
United States, at 374. “As to each question to which a claim of privilege is directed, the court
must determine whether the answer to that particular question would subject the witness to a
“real danger” of further crimination.” Rogers v. United States, at 374. The record reveals Mr.
Haas voluntarily chose to take the stand and candidly admitted his infidelity throughout the
marriage. His attorney ultimately stipulated Mr. Haas was co-obligated on a lease with his
paramour, to which Mr. Haas earlier testified he paid the entire lease amount. Furthermore, an
application for a loan on a vehicle purchased the day after Mr. Haas abandoned the marital
residence was introduced into evidence. This document also identified Mr. Haas’ paramour as a
co-applicant and included her vehicle as a trade-in on the new purchase. We believe the answers
to the questions regarding the alleged dissipation of assets would not subject Mr. Haas to a “real
danger” of further crimination in light of his previous sworn Answer and testimony admitting
adultery.
Finally, the Answer filed by Mr. Haas sought affirmative relief in the form of a prayer for
an absolute divorce and an equitable property division. An equitable distribution of property is
contingent upon several factors, including the conduct the parties regarding the dissipation of
assets. Such a limitation of cross-examination as sought by Mr. Haas is in derogation of Ms.
Haas’ right to cross-examine on these relevant issues. Mr. Haas should not be permitted to seek
affirmative relief and simultaneously preclude Ms. Haas from cross-examining him on matters
relevant to such relief. See Pulawski v. Pulawski, 463 A.2d 151 (R.I. 1983). One who seeks
affirmative relief by way of counterclaim, cross-petition, or otherwise, may appropriately be
subjected to the sanction of dismissal of such claim for affirmative relief when they refuse to
answer questions in discovery or at trial which are relevant and material to the issues presented.
10
“When the court deals with private litigants, the privilege against self-incrimination must be
weighed against the right of the other party to due process and a fair trial. The shield of the
privilege must not be converted into a sword.” Pulawski v. Pulawski, id. See Brown v. United
States, 356 U.S. 148 (1958).
Mr. Haas specifically objected to the granting of a legal separation and freely provided
the incriminating statement admitting his adultery in an effort to obtain affirmative relief in the
form of an absolute divorce. Thus, the shadow of testimonial compulsion upon the accused is
lacking in this case. See Sheets v. Hathcock, id., quoting Schmerber v. California, 384 U.S. 757,
765 (1966). Mr. Haas cannot admit he committed adultery and voluntarily take the stand in his
own behalf, and then avoid cross-examination regarding the disputed details of those acts and the
possible dissipation of assets raised by his own testimony. Consequently, this court concludes
Mr. Haas waived his Fifth Amendment privilege regarding the details of the possible dissipation
of assets. The trial court erred in permitting Mr. Haas to refuse to answer relevant questions on
cross-examination regarding this issue. This court denies Ms. Haas’ request to remand this case
for a new trial. However, this case shall be remanded for the limited purpose of considering the
admission of evidence establishing Mr. Haas’ alleged dissipation of marital assets.
IV.
This Court concludes the trial court did not err in granting the appellant an absolute
divorce and rendering a final disposition of the parties’ property, the trial court’s denial of
appellant’s motion for judgment on the pleadings was proper, the trial court erred in refusing to
bifurcate the issues of liability and damages to the appellee’s antique chairs and by requiring the
appellant to pay for the damage caused by her daughter, the trial court’s property division was
proper, and the trial court erred in permitting the appellee to assert the Fifth Amendment on the
issue of dissipation of marital assets. For the foregoing reasons, the judgment of the trial court is
affirmed in part, reversed in part and remanded in part, as consistent with this opinion. Costs of
this appeal shall be split between the parties.
___________________________________
DON R. ASH, S.J.
11