CATHY P. McMANAMAY, )
) Montgomery Chancery
VS.
Plaintiff/Appellee, )
)
)
FILED
No. 97-01-0151
)
November 9, 1998
CHARLES T. McMANAMAY, ) Appeal No.
) 01A01-9802-CH-00081
Cecil W. Crowson
Defendant/Appellant. )
Appellate Court Clerk
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
APPEAL FROM THE CHANCERY COURT OF MONTGOMERY COUNTY
AT CLARKSVILLE, TENNESSEE
HONORABLE CAROL A. CATALANO, CHANCELLOR
Gregory D. Smith
One Public Square, Suite 321
Clarksville, Tennessee 37040
ATTORNEY FOR PLAINTIFF/APPELLEE
Mark A. Rassas
Julia P. North
RASSAS & RASSAS
P.O. Box 361
Suite 104, Glenn Building
Clarksville, Tennessee 37040
ATTORNEYS FOR DEFENDANT/APPELLANT
AFFIRMED IN PART; VACATED IN PART;
AND REMANDED.
HENRY F. TODD
PRESIDING JUDGE, MIDDLE SECTION
CONCUR IN SEPARATE OPINION:
WILLIAM C. KOCH, JR., JUDGE
WILLIAM B. CAIN, JUDGE
CATHY P. McMANAMAY, )
) Montgomery Chancery
Plaintiff/Appellee, ) No. 97-01-0151
)
VS. )
)
CHARLES T. McMANAMAY, ) Appeal No.
) 01A01-9802-CH-00081
Defendant/Appellant. )
OPINION
In this divorce case, the defendant husband has appealed from a decree awarding the
plaintiff a divorce on grounds of irreconcilable differences and dividing the marital estate. The
husband has presented the issues in the following form:
1. The Trial Court rushed the trial, making it
difficult for the defendant/appellant to fully present his case.
2. The Trial Court erred by awarding the
plaintiff/appellee an interest in the defendant/appellant’s
separate property.
3. The Trial Court erred in refusing to make any
division in marital property that was held solely in the
plaintiff/appellee’s name.
4. The Trial Court erred in awarding the divorce
to the plaintiff/appellee despite overwhelming grounds in
favor of the defendant/appellant.
First Issue: Rushed Trial
The trial began at 2:30 p.m., December 10, 1997. It was concluded at 6:15 p.m. During
the direct examination of the wife, the Trial Judge stated:
Now we need to move along. I have an engagement
at 5:30.
At the conclusion of the direct testimony of the wife, the Trial Judge stated:
It’s a quarter to 5:00.
-2-
Later, during the testimony of the husband, his attorney stated:
Her honor did say she needed to leave at 5:30.
The Trial Judge responded:
I said I had an engagement, which I do, but I can’t
leave because we are in this lawsuit.
Shortly thereafter, the Trial Judge stated:
All right, you don’t have to put this in the record. I do
have another engagement at 6:30, a difference --- this one I
intend to make, because that’s supper.
Thereafter counsel presented their arguments, the Trial Judge announced her decision
and the trial was concluded without any request for further opportunity to present evidence on
the same day or a subsequent day.
On January 13, 1998, the Trial Court entered a Final Decree of Divorce.
On February 12, 1998, the husband filed a “Memorandum in Support of Defendant’s
Motion for Specific Findings and to Alter or Amend.” Neither the motion nor the memorandum
contained any reference to a hurried trial or request for additional opportunity to present
evidence.
The Trial Judge has broad discretion in the conduct of trial proceedings. Justice v.
Sovran Bank, Tenn. App. 1995, 918 S.W.2d 428. If there was any indication that the parties had
not been fully heard, at the time of adjournment, the trial should have been recessed to a later
date. Where there is nothing to show that a party made application to the trial court for
additional time to adduce evidence, error in not extending the time cannot be urged on appeal.
Sewell v. Draughhon, Tenn. Ch. App. 1897, 44 S.W. 210.
-3-
No merit is found in appellant’s first issue.
Second and Third Issues: Division of Property
Prior to the trial, on April 14, 1997, the wife’s attorney wrote the following letter to the
husband:
RE: PROPOSED SETTLEMENT, Case # 97-01-0151
Dear Mr. McManamay:
After speaking with your wife, we are in the position
to make the following offer of settlement. If you are willing
to give Ms. McManamay the following items, we can settle
this case without the time, expense and ill-feelings of a full-
blown trial. Said items are:
1. Half (½) the equity of property owned on Gallant
Road, Eddyville, KY.
2. Half (½) the equity of property owned on Stratford
Way, Clarksville, TN.
3. Yamaha Jet Ski with Trailer
4. Payment for patio furniture
5. Payment for or return of Vacuum Sweeper
6. Payment for or return of camera
7. Moving expenses of $1,376.70 for moving four times
at your request (to and from).
8. Legal fees and court costs
At the trial, counsel for both parties presented opening statements in which they presented
the position of their clients regarding the division of the marital estate. The husband presented
a Proposal Pursuant to Rule 18.02 which included the following:
A. Defendant entered the marriage with the following:
-4-
1. Home in Virginia - $142,000.00 equity
2. Wingate property in Clarksville, Tennessee -
$56,000.00 equity
3. Barkley Lake property - $48,270.00 equity
4. Bank accounts, including IRA - $31,150.01
5. Loan owed by Cathy to purchase her car -
$8,345.00
Total assets immediately prior to marriage - $285,765.01.
All of the properties were held singly in the Defendant’s name
alone.
B. Defendant’s assets as of current date:
1. Bank accounts, including IRA and money
market account - $75,0000 (up date this prior
to trial).
2. Barkley Lake property - $170,000.00 (by
current appraisal $155,000.00 by county
assessment).
Current assets at this time - $245,000.00.
(Does not include furnishings, vehicles, etc.)
C. Plaintiff entered the marriage with the following:
1. Apartment six-plex in Elizabeth town,
Kentucky - $21,550.00 equity.
2. House in Hudson, Kentucky - $25,000.00
3. Thrift Savings Plan - $2,601.00
4. Civil Service Retirement annuity - $31,318.32
per year.
5. Savings and other cash - $5,000.00
approximately.
6. Putnum Securities - $3,331.55
Total Assets immediately prior to marriage - $88,800.87
D. Plaintiff’s assets as of current date:
1. House in Hudson, Kentucky - $35,000.00
county assessment.
2. Thrift Savings Plan - $22,933.62 as of 9/30/97
-5-
3. House in Sharpsburg, Georgia - $121,000.00
($6,500.00 equity).
4. Civil Service Retirement annuity - $44,578.18
per year.
5. Savings and other cash, including certificates
of deposit - $32,000.00 (Note: There is a
deposit and withdrawal of $10,000.00 and
$10,344,08, shown on Plaintiff’s statement
from Federal Employees Credit Union on July
2, 1997, which is not included.)
6. Putnam Securities - $12,783.00 as of 6/30/97
Current assets at this time - $153,795.00
The Defendant submits that he has had a net decrease
in the items in his name from the marriage of $33,988.00,
while the plaintiff has had a net increase of $60,199.00. An
equitable division would be fifty percent (50%) of the
appreciation in the assets, meaning that the Plaintiff should
pay to the defendant the sum of $30,100.00.
III. Other Items
A. Items in possession of Defendant:
Date of
Item Purchase Cost Value
1989 Pontoon Boat 02/97 $3,000.00 $3,090.00 Assessed
1995 Suzuki ATV 08/95 $4,875.00 $3,550.00 Avg retail
1995 Jet Ski w/Tri 06/95 $6,650.00 $3,200.00 Avg retail
Patio Furniture 09/93 $1,100.00 $ 500.00
1975 Aluminum Boat 09/94 $ 500.00 $0-non re pairable
Total valu e ............................................................ $10,340.00
B. Items in possession of Plaintiff:
Date of
Item Purchase Cost Value
1995 Pontoon M tr, Tri 06/96 $8,000.00 $9,500.00
Living Room Furniture 03/94 $3,622.00 $3,622.00
Living Room Lamps 03/94 $1,200.00 $1,200.00
Living Room Tables 03/94 $1,150.00 $1,150.00
Porch Rockers 12/94 $ 150.00 $ 200.00
Boos R adio 05/96 $ 400.00 $ 400.00
Vacuum Sweeper 10/95 $ 380.00 $ 300.00
King Mattress & Springs 03/94 $1,100.00 $1,100.00
Tread mill 07/96 $1,000.00 $1,000.00
Small Kitchen Appliances 03/94 $ 300.00 $ 300.00
Dishes --/95 $ 300.00 $ 300.00
Bed & Bath Linens 03/94 $1,000.00 $ 500.00
Total Value ....................................................... $19,572.00
The defendant prays that he be given an amount of
cash by the Plaintiff to equal the discrepancy in the value of
-6-
the items that he has received, that being an additional
$4,616.00.
The testimony of the wife includes the following:
A. We had -- actually, we have a long history
together, about eight or nine years. But we actually moved
in together in -- August of 1991. I moved out then in July of
1992. We began dating against in the last of October of
1992. And, probably, from January 1993 until the time we
married, while we kept separate households, we essentially
stayed together and then in 1993, married.
We separated the first time in September of 1995,
moved back and forth a number of times, but no real -- we
were trying to work things out with the marriage, and finally
separated permanently November of 1996.
----
I moved out of the house on Landon Road into 551
Stratford Way.
Q. And that was his residence?
A. Yes, it was.
----
Q. Was your name on the deed on that house?
A. No, it was not.
Q. Now, when did you put your name on the
mortgage for the Stratford Way house?
A. Just shortly after we married in 1993. Tom
wanted to refinance the home, and he asked me to go sign
the mortgage to have it refinanced.
----
Q. After you were married and you started
actively taking part in the upkeep of this house, when did
you file to refinance the house and put it in your name or put
the mortgage partially in your name?
A. It was sometime before 15 of September,
1993.
----
Q. And you continued to upkeep and maintain
that -- the house was sold in, you said, February of ‘97?
A. Yes.
Q. How much equity came from the sale of this
house?
-7-
A. I believe that there was about $60,000 after
the Realtor fees.
Q. Did you have to sign paperwork for that sale
to be made possible?
A. Yes.
Q. How much of the $60,000 equity did you get
from the sale of the Stratford Way house?
A. None.
Q. Now, there was the house in Virginia. Did
you make any sort of -- Did you go in on any sort of loans on
that after you got married?
----
A. I assumed a somewhat larger portion of the
bills during the time that that was on the market to assist
with that, and then also went up for a week or so and helped
Tom prepare the house for sale.
Q. And about how long was the house in
Virginia up for sale that you were having to pay extra bills
just so that that didn’t go into a foreclosure?
A. I believe it was about September, October of
1994. And it sold, I think, in May or June of 1995. It was on
the market for an extended period.
Q. Approximately how much equity came out of
the sale of that house?
A. None.
----
Q. Now, the one I want to focus on is the house
in Eddyville, Kentucky. You were referring to it as Lake
Barkley.
----
A. In April of 1993, we met, I gave them a down
payment of $2,500 on the property, and we bought the lot,
and then proceeded to make arrangements to have a home
built there.
Q. Now, was the deed put in your name, Colonel
McManamay’s name or both?
A. In Mr. McManamey’s name.
----
And then we actually borrowed the money and signed
the final note for the loan on the house, I believe, in January
of 1994.
Q. How much was the note for?
A. $125,000.
-8-
----
Q. And your name is on the mortgage?
A. Yes, it was.
Q. Did you ever put your name on the deed to the
land itself?
A. No.
----
Q. And when was it paid off in full; do you
remember?
A. It was paid off in full in April of 1997.
----
The Lake Barkley property, in additional to the down
payment on the lot, I made the house payments on that for
the time period that I live there -- until September of 1995.
And I paid the utilities, the -- bought appliances, vertical
blinds, linens, decorating, landscaping.
----
I think the house in Eddyville is worth $200,000.
Q. How much are you asking the Court for of
that $200,000 in equity?
A. I’m asking the Court for half of the equity in
that home at the time that it was paid off.
Q. And, as I say, the house is paid off
completely?
A. Yes, it is.
----
Q. Can you tell us about the total amount of
savings that you have is today?
A. I can tell you that the two -- the $20,000 CDS
that we’ve talked about were given to me by my mother for
holding.
----
Q. Based on the assessment value you’ve gotten,
your house in Hudson, Kentucky has gone up too, hasn’t it?
It’s gone up $10,000 during the marriage?
Ms. McManamay, that was real estate that you held
in your name, correct?
A. Yes.
That is my mother’s property, and she takes care of
the maintenance and so forth.
Q. Now, you sold that six-plex in Elizabethtown,
Kentucky?
-9-
A. Yes.
Q. How much did you get for that?
A. I gave you a closing statement on that. I think
my -- I think my amount with the -- from the proceeds came
out to about $21,000.
----
Q. Now, the Hudson, Kentucky house, is that
your mama’s?
A. That’s my mother’s.
Q. The six-plex in Elizabethtown, when did you
sell that?
A. I sold that right at the time we married within
days of the time we married in August of 1993.
Q. And your husband never put any money
towards that?
A. No, he did not.
Q. He never put any money towards Hudson,
Kentucky?
A. No.
The testimony of the husband includes the following:
Q. Now, during the time of the marriage, did she
ever make any mortgage payments on the Wingate property
at all?
A. No, she did not.
Q. Did she make any of the payments on the lake
house property?
A. She made some payments on that. I believe
she indicated 18, and I think that’s about right, from March of
‘94 through September of ‘95.
----
Q. How did you have $48,270 in equity when you
bought the lake property before you married?
A. The land was paid for clear and free. And the
house was bought under construction. And that’s the costs
that I had paid out at that point in time on the construction of
the house.
----
-10-
Q. So you walked into this marriage, by your
figures, with $285,000-plus in total assets, not counting your
furnishings, personal belongings, sporting goods and so forth?
A. That is correct, sir.
Q. And if I flip down to Sub B of that, as of the
current date, you have -- and I said, update this prior to trial,
but your total bank accounts, IRAs, and other information
now is approximately $75,000?
A. That’s correct, Mr. Rassas.
Q. Now, your opinion of the value of the Barkley
lake property is how much?
----
A. I believe it’s closer to $170,000, Mr. Rassas.
Q. So, if we take your value of your assets now,
it’s $245,000?
A. That’s correct.
The Rule 15 Schedule of the wife is as follows:
Marital Cathy’s Appellan t’s Court’s Awarded
Prope rty Value Value Value To
Lake Barkley $200,000 $170,000 $170,000 Equity Split
($50,000 equity) or $0 eq uity ($28,000 equity) 50/50
[R. 18:18.02] [R.21:18.02] [R. 46:Jud gment] H ouse to Appellant
[and Tr. 31-33]
Hudson, KY Not a marital asset $10,000 Not a marital asset Not a marital
[Tr. 112, lines 5-9] [R. 21:18.02] [R.47:Ju dgment] asset
[off-sets a loan]
Virginia $125,000 $142,000 $142,000 Appellant
House [R. 18:18.02] [R. 21:18.02] [R. 46:Ju dgment]
Sharpsburg, $6,500 $6,500 $6,500 Cathy
GA Ho use (Dow n Paymen t) (Down P ayment) (Down P ayment)
[Tr.39, lines 17-24] [R.21:18.02] [R.47:Ju dgment]
Elizabeth- $8,000 $21,550 $8,000 Cathy
town, KY [Tr.122, lines 15-20] [R.21:18.02] [R.47:Ju dgment]
Six-plex
The Rule 15 Schedule of the husband is as follows:
Marital Plaintiff/ Defenda nt/ Value Found Property Awarded
Prope rty Appellee’s Value Appellant’s Value by Trial Court by Court to
Appreciation $200,0 00 Purcha sed with $45,000 Defendant
in value of pre-marital assets-
Defendant’s No Appreciation
lake house
-11-
Marital Plaintiff/ Defenda nt/ Value Found Property Awarded
Prope rty Appellee’s Value Appellant’s Value by Trial Court by C ourt to
Appreciation $60,000 $56,000 $31,000 Defendant
in value of
Defenda nt’s
Stratford Way
house
Appreciation $10,000 $10,000 Not Considered Plaintiff
in value of ($25,000 at time
Plaintiff’s of marriage-$35,000
Hudson, KY currently)
----
Appreciation $6,500 $6,500 Not Considered Plaintiff
in value in
Plaintiff’s
Sharpsburg,
GA house
Equity in $21,000 $21,550 Not Considered
Plaintiff’s
Elizabethtown, KY
Prope rty
----
Increase $20,332.62 $20,332.62 Not Considered Plaintiff
in value in
Plaintiff’s Thrift
Savings Plan
Increase Unknown $13,259-83 Not Considered Plaintiff
in value of Per year increase
Plaintiff’s
Civil Service
Retirement
Increase $6,000 $26,000 Not Considered Plaintiff
in value of (Disputed whether
Plaintiff’s Misc. $20,000 in CD’s was
Savings Accts. Plaintiff’s or her mother’s)
----
Increase $9,451.45 $9,451.45 Not Considered Plaintiff
in value of
Plaintiff’s
Putnum Securities
Court awarded $22,500 additional cash to Plaintiff for equity in Lake House and
$15,000 cash for equity in Stratford Way house.
----
PERSONAL BELONGINGS
1995 J et Ski
w/Trailer $5,000 $3,200 Defendant
1995 Suzuki
ATV $3,500 $3,550 Defendant
1975 Aluminum
Boat $700 $-0- (cannot be repaired - Defendant
scrap value on ly)
Patio Furniture $1,000 $500 Defendant
1989 Pontoon
Boat Not Given $3,090 Defendant
-12-
Marital Plaintiff/ Defenda nt/ Value Found Property Awarded
Prope rty Appellee’s Value Appellant’s Value by Trial Court by Court to
1994 Truck $15,000 $8,500 (traded in truck Defendant
owned prior to marriage for
$6,500)
TOTALS $25,200 $18,840
(Defendant’s Property)
Plaintiff’s/
Appellant’s Car No Value $6,400 Plaintiff
1995 Claims So ld $9,500 Plaintiff
Pontoon for $6,500
Boat, Motor, to Brother
Trailer
Living room
furniture $1,200 $3,622 Plaintiff
Living room
lamps $375 $1,200 Plaintiff
Living room
tables $400 $1,150 Plaintiff
Porch rockers $100 $200 Plaintiff
Bose ra dio $ -0- $400 Plaintiff
Vacuum sweeper $170 $300 Plaintiff
King mattress $300 $1100 Plaintff
and springs
Tread mill $200 $1000 Plaintiff
Small kitchen
appliances $10-$15 $300 Plaintiff
Dishes $ -0- $300 Plaintiff
Bed & bath
linens $300 $500 Plaintiff
TOTALS $9,560 $25,972
(Plaintiff’s Property)
Court awarded $7,500 additional cash to Plaintiff to equalize value of truck.
The husband is a retired colonel of the U.S. Army. The amount of his retirement pay is
not stated. The wife is 18 years younger than the husband and earns $60,000 per year. They
were married four years. T.C.A. § 36-4-121(c ) states factors for consideration in division of
marital estates. Fisher v. Fisher, Tenn. 1983, 648 S.W.2d 244.
In 1991, the husband purchased a home on Stratford Way in his own name for $135,000.
The wife made no contribution to the purchase price but she was obligated on the loan and
-13-
shared expenses of maintenance. The wife valued the equity in the house at $60,000. The
husband valued it at $56,000. The court valued it at $31,000 and assigned the property to the
husband.
Also, prior to the marriage, the husband purchased unimproved land at Eddyville, Ky.
The wife furnished the earnest money for the purchase, which husband repaid. A house was
erected thereon during the marriage. The wife paid $7,900 on the construction loan and
performed landscaping. The wife valued the equity in the house at $200,000. The husband
insisted that the property did not appreciate during the marriage. The Court valued appreciation
at $28,000 and awarded the house to the husband.
The husband owned property in Virginia of unstated value in which the wife claimed no
interest.
Prior to the marriage, the wife owned three rental properties, designated as Hudson,
Sharpsburg and Elizabethtown. The parties agreed that the appreciation of these properties
during the marriage was $10,0000, $6,500 and $21,000, respectively, a total of $37,500, but there
is no evidence that the husband contributed to the preservation or enhancement of these
properties. The husband is not entitled to any part of the appreciation of these properties.
The Trial Court found that the appreciation in value of the husband’s Stratford and
Eddyville homes, totaling $59,000 was part of the marital estate, one-half of which would be
$29,500. He awarded the wife the $7,900 paid by the wife on the Eddyville mortgage. $29,500
plus $7,900 is $37,400 which is $7600 less than the $45,000 awarded to the wife. Thus, the wife
received approximately 60% of the appreciation.
Exact equality of division of the marital estate is not required. Bookout v. Bookout, Tenn.
App. 1997, 954 S.W.1997. See also, T.C.A. § 36-4-121(c). Considering all relevant factors, this
-14-
Court is unable to ascertain from the evidence in this record what an equitable division of the
martial estate should be. Pursuant to TCA §§ 27-3-128, 129, the cause is remanded to the Trial
Court to hear further evidence and to adjudge an equitable division of the marital estate.
On remand, judgment will be entered accordingly.
Fourth Issue: Award of Divorce to Wife
The divorce decree contains the following:
7. Plaintiff should be granted a divorce on grounds of inappropriate marital conduct
due to Defendant physically striking Plaintiff in the summer of 1996 leaving heavy bruising on
Plaintiff’s body. The Court also considered the fact that both parties committed adultery during
marriage. Since both parties were guilty of adultery, the Court did not consider these acts against
either party and awarded the wife a divorce on grounds of inappropriate marital conduct
consisting of physical battery by the husband.
The husband insists that he is entitled to a divorce because of the wife’s admitted
adultery, citing T.C.A. § 36-4-101(3). The husband admits adultery after the separation and
before the divorce. T.C.A. § 36-4-112 provides:
36-4-112 - Defense when ground is adultery.
If the cause assigned for divorce is adultery, it is a
good defense and perpetual bar to the same if the defendant
alleges and proves that: (1) The complainant has been guilty
of like act or crime.
The clear intent of the statute is that either spouse, plaintiff or defendant, may
successfully resist a charge of adultery by proving like conduct on the part of the accusing
spouse.
-15-
Therefore, it was not error for the Trial Judge to disregard the adultery of both parties and
to grant the divorce to the wife on proven grounds of extreme cruelty of the husband in
committing a battery upon the body of the wife.
No merit is found in the fourth issue presented by the husband.
The judgment of the Trial Court as to division of marital property is vacated, and the
cause is remanded to the Trial Court for further proceedings in conformity with the opinion of
this Court. Costs of this appeal are taxed equally. That is, each party shall pay one-half.
AFFIRMED IN PART; VACATED IN PART; AND REMANDED.
_________________________________
HENRY F. TODD
PRESIDING JUDGE, MIDDLE SECTION
CONCUR IN SEPARATE OPINION:
WILLIAM C. KOCH, JR., JUDGE
WILLIAM B. CAIN, JUDGE
-16-