IN THE COURT OF APPEALS OF TENNESSEE
FILED
DIANA AYCOCKE FLANAGAN, ) C/A NO. 03A01-9612-GS-00404
) June 30, 1997
Plaintiff-Appellee, )
) Cecil Crowson, Jr.
) Appellate C ourt Clerk
) APPEAL AS OF RIGHT FROM THE BLOUNT
v. ) COUNTY GENERAL SESSIONS COURT
)
)
)
)
JAMES WILLIAM FLANAGAN, )
) HONORABLE WILLIAM R. BREWER, JR.,
Defendant-Appellant.) JUDGE
For Appellant For Appellee
KEVIN W. SHEPHERD PERRY P. PAINE, JR.
Maryville, Tennessee Paine, Garrett & Bray
Maryville, Tennessee
OPINION
VACATED IN PART
MODIFIED IN PART
AFFIRMED IN PART
REMANDED Susano, J.
1
This is a divorce case. The trial court granted the
plaintiff Diana Aycocke Flanagan (Wife) an absolute divorce from
the defendant James William Flanagan (Husband). Husband
appealed, arguing (1) that Wife did not prove she was entitled to
a divorce on the ground of inappropriate marital conduct; and (2)
that the trial court’s division of property was inequitable or
otherwise contrary to law.
When the parties married on July 24, 1992, Wife was 38
and Husband was 43. They separated in April, 1996. At the time
of trial, Wife was 42 and Husband was 47. Neither of the parties
had been previously married. Their union produced no children.
Wife had two children at the time of the parties’ marriage.
These children lived with the parties during their marriage.
Wife sought a divorce on the fault ground of
inappropriate marital conduct. In his answer, Husband denied
that Wife was entitled to a divorce. He did not file a
counterclaim.
T.C.A. § 36-4-102(a)(1) sets forth as a ground for
divorce the following “treatment or conduct”:
The husband or wife is guilty of such cruel
and inhuman treatment or conduct towards the
spouse as renders cohabitation unsafe and
improper which may also be referred to in
pleadings as inappropriate marital conduct; .
. .
This ground has been defined as
2
the willful, persistent causing of
unnecessary suffering, whether in realization
or apprehension, whether of body or mind, in
such a way as to render cohabitation
dangerous and unendurable.
Gardner v. Gardner, 104 Tenn. 410, 412, 58 S.W. 342, 343 (1900).
See also Stone v. Stone, 56 Tenn.App. 607, 611, 409 S.W.2d 388,
391 (1966); Schwalb v. Schwalb, 39 Tenn.App. 306, 328, 282 S.W.2d
661, 672 (1955).
It is clear that relatively subtle conduct can amount
to “cruel and inhuman treatment or conduct”:
Cruel and inhuman treatment is often times
not evidenced by public assaults and
beatings, but is accomplished in more subtle
and insidious ways. The whispered invective,
accusation by insinuation, stinging sarcasm
and heartless intimidation are the implements
frequently used by which love, the vital
principle which animates a marriage, is
tortured to death; with the result that the
once happy joinder becomes nothing less than
a “bridge of groans across a stream of
tears.”
Newberry v. Newberry, 493 S.W.2d 99, 101 (Tenn.App. 1973). The
quote from Newberry is followed by language stressing the
importance of a trial court’s assessment of credibility when a
party seeks a divorce on the T.C.A. § 36-4-102(a)(1)ground:
The existence of such continuous refined
cruelty can best be determined by the trier
of the facts who has seen the parties face to
face and who has observed their manner and
demeanor as well as that of their respective
witnesses. In such matters, the Trial
Judge’s judgment as to credibility of
3
witnesses should not be overturned unless the
clear preponderance of the evidence is to the
contrary.
Id.
While a court “cannot by judicial fiat add an
additional ground for divorce that is unknown to the statute,”
Perrin v. Perrin, 299 S.W.2d 19, 24 (Tenn. 1957), it is likewise
true that
. . . society is ill-served by a legally
commanded continuance of a marriage which
exists in name only. . . . Society is not
interested in perpetuating a status out of
which no good can come and from which harm
may result.
Farrar v. Farrar, 553 S.W.2d 741, 745 (Tenn. 1977) (quoting from
Lingner v. Lingner, 56 S.W.2d 749, 752 (Tenn. 1933) (emphasis in
Farrar).
Wife presented the following testimony as her basis for
seeking a divorce:
A. Well, there’s really just no marriage. I
mean there is no--nothing is ours, everything
is just his. He doesn’t include me in
anything. He doesn’t talk to me about
anything. Anything that he’s going to do or
wants to do or regarding the house or
anything. You know, I’m completely left in
the dark about anything. I know nothing.
I’m not suppose to know anything.
Q. Have you tried to inquire of him during
this marriage?
4
A. Yeah, everything is real secretive. To
me, I mean--
* * *
Q. But you say, he wouldn’t discuss things
with you about the house?
A. No, I mean if he was going to do anything
to the house, he was just going to do it. I
mean basically that was his house.1
Q. Do you have any say so about it?
A. No, I had no say so. None.
Q. As far as his financial affairs, how has
he handled his financial affairs since the
time you got married to him?
A. It’s just--it’s secretive too. I wasn’t
to know anything.
* * *
Q. Would he ever discuss his business
affairs with you?
A. No.
Q. Did he tell you why?
A. Never did. I think everything is just--I
think it’s just a lot of the way he is, I
guess. Everything is just his or his
business. No one else’s.
* * *
A. There’s just no marriage there. No
communication. There is just no marriage.
If it was different I wouldn’t have left.
There was no testimony of physical or emotional abuse; nor was
there any testimony that Wife was adversely affected, mentally,
emotionally, or physically, as a result of Husband’s “secretive”
conduct. There was no testimony that Husband cursed or
mistreated Wife. There was no testimony that Husband “caus[ed]
1
Husband owned the house prior to the marriage.
5
... unnecessary suffering.” See Gardner, 58 S.W. at 343.
The evidence preponderates against the trial court’s
determination that Wife is entitled to an absolute divorce on the
ground of inappropriate marital conduct/cruel and inhuman
treatment or conduct.2 In evaluating the evidence, we have
accredited the testimony of Wife where it conflicts with that of
Husband, who generally denied that he was other than a caring and
loving husband. We do this because the law is clear that in a
case like this, the question of credibility is for the trial
judge. Newberry, 493 S.W.2d at 101; Tennessee Valley Kaolin
Corp. v. Perry, 526 S.W.2d 488, 490 (Tenn.App. 1974). Taking her
testimony at face value, it simply does not make out the ground
set forth at T.C.A. § 36-4-102(a)(1). As the Supreme Court said
in the Perrin case, we “cannot by judicial fiat add an additional
ground for divorce.” 299 S.W.2d at 24. To approve an absolute
divorce based on this testimony would amount to judicial
legislation. That is not our role. If this state is to
recognize the type of conduct shown in this case as a ground for
divorce in a contested setting, it must be accomplished by
legislative enactment.
We vacate the trial court’s grant of an absolute
divorce. We recognize that Husband has testified that he does
not want Wife to return to him.3 It is likewise clear that Wife
2
Husband’s brief seems to suggest that inappropriate marital conduct may
be different from cruel and inhuman treatment. They are different names for
the same thing. See T.C.A. § 36-4-102(a)(1).
3
Husband testified, “I don’t think she should come back.”
6
has no intention of resuming a marital relationship with Husband.
Pursuant to our authority under Rule 36. T.R.A.P., we modify the
trial court’s judgment to provide that the parties will reside
separate and apart, i.e., separate maintenance. A trial court
“has the inherent power, independent of statute, to grant the
relief [of separate maintenance] in proper cases, where a divorce
is not sought or in which the complainant is not entitled to a
divorce.” Stephenson v. Stephenson, 298 S.W.2d 717, 719-20
(Tenn. 1957). At an appropriate time, Wife is at liberty to seek
an absolute divorce pursuant to applicable statutory authority.
Turning our attention to the division of property, we
note that the applicable statute permits a court to divide
marital property in a case of separate maintenance:
In all actions for divorce or separate
support and maintenance, the court having
jurisdiction thereof may, upon request of
either party, and prior to any determination
as to whether it is appropriate to order the
support and maintenance of one (1) party by
the other, equitably divide, distribute or
assign the marital property between the
parties without regard to marital fault in
proportions as the court deems just.
T.C.A. § 36-4-121(a)(1).
We find that the trial court’s division of property in
this case was equitable and otherwise appropriate. That division
was as follows:
To Wife
7
1992 Chrysler $ 7,000
Cash payment from Husband 7,500
Debts <3,650>
$10,850
=======
To Husband
Furniture and other
personal property $ 8,530
Savings account 18,719
Debts <2,600>
Payment to Wife <7,500>
$17,149
=======
The trial court found that the marital property in this case was
properly valued at approximately $28,000. Husband argues that
the 1992 Chrysler and the savings account should be considered as
his separate property. We recognize that the 1992 Chrysler was
purchased shortly before the marriage and that a substantial down
payment was made out of Husband’s separate funds; but to the
extent that any portion of the value remaining at the time of
divorce is properly considered as separate property, we believe
the award of that portion to Wife can be justified as alimony in
solido. See T.C.A. § 36-5-101(a)(1). In so holding, we are not
going beyond the pleadings because the complaint contains a
prayer for alimony, and the proof justifies such an award in view
of the great disparity in the parties’ incomes and the other
factors set forth at T.C.A. § 36-5-101(d)(1)(A)-(L). We find no
error in the award of the 1992 Chrysler to Wife. We are
permitted to affirm the trial court’s award if we find the result
correct, even if we don’t totally agree with the trial court’s
reasoning. Kelly v. Kelly, 679 S.W.2d 458, 460 (Tenn.App. 1984).
8
We believe the savings account is properly viewed as a
marital asset. It seems clear to us that the funds in that
account represent monies earned during the marriage. As such,
they are marital property, even though the account is in
Husband’s individual name. Title is not the critical factor in
the separate property/marital property dichotomy. Langford v.
Langford, 421 S.W.2d 632, 634 (Tenn. 1967).
A trial court is vested with broad discretion in
dividing the parties’ marital property and in decreeing alimony.
Batson v. Batson, 769 S.W.2d 849, 859 (Tenn.App. 1988); Aaron v.
Aaron, 909 S.W.2d 408, 410-11 (Tenn. 1995). We do not find that
the evidence preponderates against the trial court’s division and
distribution of property.
The trial court’s grant of an absolute divorce to Wife
is hereby vacated. The trial court’s judgment is modified to
provide that Wife will live separate and apart from Husband
pursuant to a decree of separate maintenance. In all other
respects, the trial court’s judgment is affirmed. Costs on
appeal are taxed against the appellant and his surety. This case
is remanded to the trial court for such further proceedings as
may be necessary, consistent with this opinion, and for
collection of costs assessed below, all pursuant to applicable
law.
__________________________
Charles D. Susano, Jr., J.
9
CONCUR:
________________________
Houston M. Goddard, P.J.
________________________
William H. Inman, Sr.J.
10
Flanagan v. Flanagan
Combined Opinion