Bunch v. Bunch

IN THE COURT OF APPEALS OF TENNESSEE
FILED
AT KNOXVILLE March 24, 1999

Cecil Crowson, Jr.
Appellate C ourt
Clerk
CURTIS EUGENE BUNCH, ) C/A NO. 03A01-9805-GS-00156
)
Plaintiff-Appellee, )
)
)
)
v. ) APPEAL AS OF RIGHT FROM THE
) ROANE COUNTY GENERAL SESSIONS COURT
)
)
)
SYNDIE TARENE MURPHY BUNCH, )
) HONORABLE THOMAS A. AUSTIN,
Defendant-Appellant.) JUDGE

For Appellant For Appellee

CHARLES H. CHILD BROWDER G. WILLIAMS
O’Connor, Petty, Child Harriman, Tennessee
& Boswell
Knoxville, Tennessee

O P I N IO N

AFFIRMED AND REMANDED Susano, J.

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 This is a divorce case that was before us on an earlier

occasion. On the first appeal,1 we held that the trial court had

improperly valued one of the marital assets. Accordingly, we

directed the trial court to “redetermin[e]” its division of

property between the parties. Following our remand, the trial

court concluded that the defendant, Syndie Tarene Murphy Bunch

(“Wife”), was entitled to an additional $12,500 as her share of

the increase in value of her husband’s business -- an increase

that had occurred in the last year of the parties’ marriage.

Being dissatisfied with the trial court’s new judgment, Wife

appeals. She presents three issues that raise the following

questions for our consideration:

1. Does the evidence preponderate against
the trial court’s new division of marital
property?

2. Is the additional award of $12,500
effective as of the date of entry of the
judgment of divorce so as to entitle Wife to
interest on the additional award from and
after that date?

3. Is Wife entitled to recover from her
husband, Curtis Eugene Bunch (“Husband”), the
attorney’s fees incurred by her in connection
with the hearing on remand and for services
rendered on this appeal?

I. Proceedings Leading to this Appeal

In the earlier appeal, we concluded that Husband’s sole

proprietorship interest in Bunch Marine -- a business primarily

engaged in the retail sale of boats -- was properly valued at

1
Bunch v. Bunch, C/A No. 03A01-9609-GS-00301 (Tenn.App. at Knoxville,
May 13, 1997).

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$165,000, rather than the $104,000 found by the trial court. We

remanded to the trial court “for the purpose of redetermining the

apportionment of the [parties’] marital assets.” In all other

respects, we affirmed the judgment of the trial court.

As previously stated, the trial court on remand

concluded that Wife was entitled to an additional award of

$12,500. The rationale for the trial court’s judgment is found

in its order:

...it is the opinion of the Trial Court that
the issue for determination is basically the
amount of the Wife’s interest in the
Husband’s business during the period of time
that the Wife was incapacitated and the
Husband was solely responsible for running
the business and the home. The Court
considering that the clear proof at the trial
was that there was a substantial increase in
the value of the Husband’s business during
this period of time and that the Wife made no
contribution to the business or the home and,
further, that the proof at the trial by Steve
Parsons, CPA, called as a witness by the
Husband, was that he found a $50,000.00
increase in the value of the business during
the last year of the marriage and that the
Court of Appeals of Tennessee, Eastern
Section, at Knoxville, clearly advised that
the business should be valued at $165,000.00,
and the Court considering TCA §36-4-121(c)(5)
and its instruction that the Court look at
the contributions made by each party in
determining the parties [sic] interest in the
marital estate, the Court is of the
opinion...

The Wife should not share in the total
increase of the business, however, it is the
Court’s opinion that the Wife’s interest in
the business during this period of time
should be set, additionally, at $12,500.00.

II. Standard of Review

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 Our review of this non-jury divorce case is de novo

upon the record of the proceedings below. Rule 13(d), T.R.A.P.

The record comes to us with a presumption of correctness as to

the trial court’s factual findings -- a presumption that we must

honor unless the “preponderance of the evidence is otherwise.”

Id. However, the presumption of correctness does not extend to

the trial court’s conclusions of law. Campbell v. Florida Steel

Corp., 919 S.W.2d 26, 35 (Tenn. 1996).

III. Law of Division of Property

T.C.A. § 36-4-121(a) mandates an equitable division of

marital property. It is clear beyond any doubt that a trial

court has broad discretion in dividing the marital property of

divorcing parties. Watters v. Watters, 959 S.W.2d 585, 590

(Tenn.App. 1997). This being the case, it follows that a trial

court’s division of marital property is entitled to great weight

on appeal. Id.

“Judicial discretion when used as a guide for judicial

action ‘means a sound discretion...a discretion exercised not

arbitrarily or willfully, but with regard to what is right and

equitable under the circumstances and the law, and directed by

the reason and conscience of the judge to a just result.’”

Package Express Center v. Snider Foods, 788 S.W.2d 561, 564

(Tenn.App. 1989) (quoting from Langnes v. Green, 282 U.S. 531,

541, 51 S.Ct. 243, 247, 75 L.Ed. 520 (1931)).

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 IV. Analysis

A.

Wife argues that “[f]airness and equity dictate that

[she] should be awarded one-half of the increased value in Bunch

Marine, as determined by the Court of Appeals, or $30,500.” She

claims that the trial court, at the first hearing, concluded that

an equitable division in this case was, in fact, an equal one.

She urges us to apply this finding to our determination that the

trial court undervalued the marital estate by $61,000, and award

her $30,500 rather than the $12,500 decreed by the trial court.

Husband argues that our earlier opinion did not require

the trial court to equally divide the amount by which we found

the marital estate to be undervalued. He contends that had this

been the sole permissible option available to the trial court, we

would have so decreed in our original opinion. He takes the

position that the trial court did not abuse its discretion in

awarding Wife the lesser sum, in view of that court’s finding

that Wife had not made any contributions to the marriage during

the period of time in which the business was increasing in value.

A divorce litigant is not necessarily entitled to an

equitable share of each and every individual marital asset.

Brown v. Brown, 913 S.W.2d 163, 168 (Tenn.App. 1994). Rather,

the law requires only that the overall division of the total

marital estate be equitable. Thus, we must examine the overall

division of the parties’ marital estate. This, in turn, requires

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an evaluation of the trial court’s allocation of the marital

debts as well as its division of the marital assets.

In the instant case, the trial court divided the

parties’ marital assets and debts as follows:

Husband

Bunch Marine $165,000
Real estate - equity (net of debt) 46,000
Annuity 7,886
Bank accounts 325
Monies due Wife (17,500)

$201,711

Wife

Monies due from Husband $ 17,500
Real estate - equity (net of debt) 124,000
Retirement 11,976
Automobiles 9,896
Bank accounts 1,387
1994 Tax Refund 2,434

$167,193

Thus, it can be seen that the trial court’s division of the

marital estate, as modified by it on remand, provides Husband

with 54.68% of the net marital estate while awarding Wife 45.32%

of that estate. While this unequal division may, at first blush,

appear to be inequitable to Wife, who devoted 19 years of her

life to this marriage, we have concluded that the evidence does

not preponderate against the trial court’s division.

The trial court found that during the latter part of

the parties’ marriage, Wife failed to provide any support,

emotional or otherwise, to Husband or to the parties’ children,

6
and failed to otherwise contribute to the marriage in any way.

During this period, the parties separated in September, 1994.

Shortly thereafter, and until the end of January, 1996, both of

the parties’ children resided exclusively with Husband, while

Wife took up a new residence funded by him. All of this caused a

significant financial drain on the parties’ resources.

It was during this period of Wife’s non-contribution

that Husband’s business experienced a significant increase in

value. Under the circumstances, the trial court found that it

would not be equitable to allow Wife to share equally in this

increase. In effect, he awarded Husband 75% of this increase,

while awarding Wife 25%.

Dividing a net marital estate is not an exact science.

The factors set forth at T.C.A. § 36-4-121(c)(1)-(10) cannot be

applied in a mechanical fashion. Batson v. Batson, 769 S.W.2d

849, 859 (Tenn.App. 1988). The trial court -- in exercising its

broad but sound discretion -- must decide how much weight should

be given to each of the factors that it finds to be relevant.

Id. In the instant case, the trial court concluded that the

assets other than Bunch Marine should be divided in approximately

equal portions; but it concluded that the factor at T.C.A. § 36-

4-121(c)(5)2 uniquely impacted the division of the Bunch Marine

2
The factor at T.C.A. § 36-4-121(c)(5) is as follows:

The contribution of each party to the acquisition,
preservation, appreciation or dissipation of the
marital or separate property, including the
contribution of a party to the marriage as 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 has fulfilled its role;

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asset so as to require, in fairness, a greater apportionment of

that asset to Husband. We cannot say that the evidence

preponderates against this finding. Cf. Brock v. Brock, 941

S.W.2d 896, 903-05 (Tenn.App. 1996).

Rare is the divorce case that presents only one

apportionment option that would satisfy the statutory mandate of

an equitable division. In most cases, there is a range of

equitable alternatives, any one of which would satisfy the

prescriptions of T.C.A. § 36-4-121. It is only when the trial

court strays from this range of permissible options that an

appellate court is authorized to interfere with the discretionary

role of the lower court. In the instant case, the evidence does

not preponderate in such a way as to warrant a decision by us

that the trial court has gone outside the permissible range of

decisions.

We do not find that the trial court abused its

discretion when it divided the net marital estate of

approximately $368,904.

B.

In her second issue, Wife contends that the trial court

erred in failing to award her interest for a period of time prior

to the entry of the most recent order of the trial court.

Specifically, she argues that she is entitled to interest on the

trial court’s additional cash award of $12,500 at a rate of 10%

per annum from “the date of the final judgment of divorce in the

8
trial court regardless of whether the judgment was originally

awarded in the trial court or whether the judgment was modified

by the appellate court.” In this connection, she relies upon

T.C.A. § 47-14-121, which provides in pertinent part as follows:

Interest on judgments, including decrees,
shall be computed at the effective rate of
ten percent (10%) per annum, except as may be
otherwise provided or permitted by
statute;....

Wife also relies upon the decisions of this Court in the cases of

Wade v. Wade, 897 S.W.2d 702 (Tenn.App. 1994), Inman v.

Alexander, 871 S.W.2d 153 (Tenn.App. 1993), and Inman v. Inman,

840 S.W.2d 927 (Tenn.App. 1992), to support her contention that

the interest to which she is entitled should accrue from the date

of the trial court’s original divorce judgment.

The cases cited by Wife, however, are distinguishable

from the instant case. In each of the cited cases, the appellate

court modified the lower court’s judgment, i.e., changed specific

monetary awards therein. See Wade, 897 S.W.2d at 717-18; Inman

v. Alexander, 871 S.W.2d at 153-54; and Inman v. Inman, 840

S.W.2d at 931. In the instant case, by contrast, after

determining that the trial court had undervalued the Bunch Marine

asset by $61,000, we remanded the case to the trial court for the

purpose of “redetermining the apportionment of marital assets.”

Thus, the trial court was required to take further action, and

not merely to enter judgment in accordance with specific

modifications by us. Our decision left the actual redistribution

of the parties’ marital property --if any -- to the trial court.

9
Accordingly, a final determination regarding the division of

property occurred only upon remand of the case and the trial

court’s subsequent judgment.

In short, we believe that a remand for a possible

reapportionment of marital assets, absent any actual, specific

modifications to the previous distribution, presents a different

situation from one in which the lower court’s judgment is

modified to reflect the appellate court’s revised specific

monetary determination. For this reason, the above-cited cases

are not applicable to the instant case.

By the same token, the provisions of Rule 41, T.R.A.P.,

do not apply here. That Rule provides as follows:

If a judgment for money in a civil case is
affirmed or the appeal is dismissed, whatever
interest is allowed by law shall be payable
computed from the date of the verdict of the
jury or the equivalent determination by the
court in a non-jury case, which date shall be
set forth in the judgment entered in the
trial court. If a judgment is modified or
reversed with a direction that a judgment for
money be entered in the trial court, the
mandate shall contain instructions with
respect to allowance of interest.

In our previous decision, we did not affirm or dismiss the

appeal; nor did we modify or reverse the lower court’s decision

with the direction that a judgment for money be entered. Thus,

the provisions of Rule 41, T.R.A.P., are not applicable here.

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 The general rule regarding the computation of interest

on judgments is set forth at T.C.A. § 47-14-122, which provides

as follows:

Interest shall be computed on every judgment
from the day on which the jury or the court,
sitting without a jury, returned the verdict
without regard to a motion for a new trial.

Under the circumstances of this case, the date on which the trial

court entered judgment after reapportioning the parties’ marital

assets upon remand -- April 7, 1998 -- is the date upon which it

“returned the verdict” for purposes of T.C.A. § 47-14-122. We

therefore hold that Wife is entitled to interest on the amount

awarded to her from that date, and not from the date of the trial

court’s original divorce decree.

C.

Finally, Wife contends that she is entitled to an award

of attorney’s fees for services rendered by her counsel on

remand3 and on this appeal.

A trial court has the authority to award a party his or

her legal expenses as an award in the nature of alimony. Dover

v. Dover, 821 S.W.2d 593, 595 (Tenn.App. 1991). Such awards are

within the sound discretion of the trial court, and that court’s

judgment on the subject will not be disturbed on appeal absent an

abuse of that discretion. Lyon v. Lyon, 765 S.W.2d 759, 762-63

(Tenn.App. 1988). In the instant case, we cannot say that the

3
In the divorce judgment, the trial court denied Wife’s request for her
legal expenses to that point. We affirmed that decree.

11
trial court abused its discretion in denying Wife her legal

expenses in connection with the hearing on remand. Therefore, we

decline to hold that such fees are appropriate in this case.

We further find that this is not an appropriate case

for an award of legal expenses on appeal.

V. Conclusion

The judgment of the trial court is affirmed, with costs

on appeal taxed to the appellant. This case is remanded to the

trial court for enforcement of the judgment and collection of

costs assessed below, all pursuant to applicable law.

__________________________
Charles D. Susano, Jr., J.

CONCUR:

_________________________
Houston M. Goddard, P.J.

_________________________
Herschel P. Franks, J.

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