Terri Dunn v. William M. Dunn, Jr.

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
October 30, 2014 Session

TERRI DUNN v. WILLIAM M. DUNN, JR.

Appeal from the Circuit Court for Hamilton County
No. 11D1758 L. Marie Williams, Judge

No. E2014-00706-COA-R3-CV-FILED-DECEMBER 22, 2014

This is a divorce action involving issues of marital property valuation and distribution. The
parties were married in 1975. The wife, Terri Dunn (“Wife”), filed for divorce from the
husband, William M. Dunn, Jr. (“Husband”), on September 12, 2011. Following a somewhat
protracted pre-trial history, the trial was conducted over four non-consecutive days in June
and July 2013. Thereafter, the trial court issued a memorandum opinion valuing the assets
in the marital estate and awarding Wife approximately 60% and Husband approximately 40%
of the estate. The trial court also charged against Husband’s share of the marital estate
$200,000.00 in dissipated assets. Wife has appealed. Discerning no error, we affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Affirmed; Case Remanded

T HOMAS R. F RIERSON, II, J., delivered the opinion of the Court, in which C HARLES D.
S USANO, J R., C.J., and D. M ICHAEL S WINEY, J., joined.

John P. Konvalinka and Jillyn M. O’Shaughnessy, Chattanooga, Tennessee, for the appellant,
Terri Dunn.

Glenna M. Ramer, Chattanooga, Tennessee, for the appellee, William M. Dunn, Jr.

OPINION

I. Factual and Procedural Background

These parties were married for thirty-eight years. At the time of trial, Wife was fifty-
seven and Husband was sixty years old. During their lengthy marriage, both parties were
employed and contributed earnings. Husband is a college graduate with a varied work
history. He worked as a sales manager for Johnson & Johnson at the time of the parties’
marriage, and Wife was employed as a nursing assistant while attending college. Wife
completed two college degrees during the marriage. According to Wife, her family gave the
parties $5,000.00 “seed” money to purchase their first home and helped the parties renovate
that residence. While the home was being renovated and also during later periods, the parties
lived with Wife’s family rent-free. In the late 1980s, the parties built a home on Woodhill
Drive (“Woodhill Home”), which is located on Lookout Mountain. The parties resided in
the Woodhill Home throughout the remainder of the marriage. Wife asserts that other than
landscaping and the roof, Husband made no contributions to the Woodhill Home after 1987.

One child, Alex, was born of the marriage in June 1994. He had attained the age of
majority by the time of trial. The parties stipulated that Husband was the legal but not
biological father of Alex. Following his departure from Johnson & Johnson, Husband began
and worked in various businesses. At some point in the early 1990s, Husband started
conducting export businesses outside the United States. By Wife’s testimony, Husband was
gone for long periods of time, returning home infrequently. Husband reported that he would
remain in the United States for periods of two months followed by his travel to Europe for
one month during those years. Wife claimed at trial that she alone maintained the marital
residence, paying all the bills with little or no financial help from Husband. Husband, by
contrast, testified that he contributed money to the household and to the family during those
years. In 2009, Husband sold a business, Core Roofing. He has not worked since that time.
According to Husband, the business sale proceeds were used to pay living expenses.

Following the trial, a memorandum opinion was entered on November 4, 2013,
wherein the trial court valued the parties’ assets and awarded to Husband approximately 40%
and Wife approximately 60% of the net marital estate. Both parties filed motions seeking
to alter or amend the court’s judgment. The court entered an order on March 27, 2014,
granting the motions regarding certain minor adjustments; however, no modification was
made to the overall percentage distribution. Wife timely appealed.

II. Issues Presented

Wife presents the following issues for our review, which we have restated slightly:

1. Whether the trial court erred in the overall division of assets and
liabilities, considering the relative contribution of each party to the
acquisition, preservation, appreciation, depreciation, or dissipation of
the marital property.

2. Whether the trial court erred in the valuation date of certain marital

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 assets.

3. Whether the trial court erred in the valuation of certain marital assets.

4. Whether the trial court erred in the inclusion of certain debts claimed
by Husband in the marital distribution.

5. Whether the trial court erred in the manner by which it distributed
certain assets.

Husband raises the following additional issue:

6. Whether Husband is entitled to an award of attorney’s fees on appeal.

III. Standard of Review

In a case involving the proper classification and distribution of assets incident to a
divorce, our Supreme Court has elucidated the applicable standard of review as follows:

This Court gives great weight to the decisions of the trial court in dividing
marital assets and “we are disinclined to disturb the trial court’s decision
unless the distribution lacks proper evidentiary support or results in some error
of law or misapplication of statutory requirements and procedures.” Herrera
v. Herrera, 944 S.W.2d 379, 389 (Tenn. Ct. App. 1996). As such, when
dealing with the trial court’s findings of fact, we review the record de novo
with a presumption of correctness, and we must honor those findings unless
there is evidence which preponderates to the contrary. Tenn R. App. P. 13(d);
Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993).
Because trial courts are in a far better position than this Court to observe the
demeanor of the witnesses, the weight, faith, and credit to be given witnesses’
testimony lies in the first instance with the trial court. Roberts v. Roberts, 827
S.W.2d 788, 795 (Tenn. Ct. App. 1991). Consequently, where issues of
credibility and weight of testimony are involved, this Court will accord
considerable deference to the trial court’s factual findings. In re M.L.P., 228
S.W.3d 139, 143 (Tenn. Ct. App. 2007) (citing Seals v. England/Corsair
Upholstery Mfg. Co., 984 S.W.2d 912, 915 (Tenn. 1999)). The trial court’s
conclusions of law, however, are accorded no presumption of correctness.
Langschmidt v. Langschmidt, 81 S.W.3d 741, 744-45 (Tenn. 2002).

Keyt v. Keyt, 244 S.W.3d 321, 327 (Tenn. 2007).

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 Further, as this Court has previously held:

Because Tennessee is a “dual property” state, a trial court must identify all of
the assets possessed by the divorcing parties as either separate property or
marital property before equitably dividing the marital estate. Separate
property is not subject to division. In contrast, Tenn. Code Ann. §36-4-121(c)
outlines the relevant factors that a court must consider when equitably dividing
the marital property without regard to fault on the part of either party. An
equitable division of marital property is not necessarily an equal division, and
§36-4-121(a)(1) only requires an equitable division.

McHugh v. McHugh, No. E2009-01391-COA-R3-CV, 2010 WL 1526140 at *3-4 (Tenn. Ct.
App. Apr. 16, 2010) (internal citations omitted). See also Manis v. Manis, 49 S.W.3d 295,
306 (Tenn. Ct. App. 2001) (holding that appellate courts reviewing a distribution of marital
property “ordinarily defer to the trial judge’s decision unless it is inconsistent with the factors
in Tenn. Code Ann. § 36-4-121(c) or is not supported by a preponderance of the evidence.”).

IV. Overall Division of Marital Estate

Wife asserts that she should have been granted a greater share of the net marital estate,
based upon a proper consideration of the statutory factors. Wife posits that, in this case, the
two most important factors to be considered are (1) each party’s contributions to the estate
and (2) Husband’s dissipation of marital assets. Husband contends that the trial court’s
distribution is fair and equitable, considering the statutory factors. We agree with Husband.

Tennessee Code Annotated § 36-4-121 (2014) provides in pertinent part:

(a)(1) In all actions for divorce or legal separation, 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.

***

(c) In making equitable division of marital property, the court shall consider
all relevant factors including:

(1) The duration of the marriage;

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(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 (1) party to
the education, training or increased earning power of the other
party;

(4) The relative ability of each party for future acquisitions of
capital assets and income;

(5)(A) The contribution of each party to the acquisition,
preservation, appreciation, depreciation 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;

(B) For purposes of this subdivision (c)(5), dissipation of assets
means wasteful expenditures which reduce the marital property
available for equitable distributions and which are made for a
purpose contrary to the marriage either before or after a
complaint for divorce or legal separation has been filed.

(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, costs associated with the
reasonably foreseeable sale of the asset, and other reasonably
foreseeable expenses associated with the asset;

(10) The amount of social security benefits available to each
spouse; and

(11) Such other factors as are necessary to consider the equities
between the parties.

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 In this action, the trial court’s order contains extensive factual findings, including the
following specific findings related to the statutory factors:

As noted previously, the parties have been married for 38 years and there is
one child who was born during the marriage. The parties are of similar age
and while Mr. Dunn has been diagnosed with prostate cancer, that cancer is
well managed and both parties are in good physical and mental health.
Although Mrs. Dunn obtained additional degrees during the marriage, the
financial ability to do so resulted from the efforts of both parties. Both parties
have the ability to earn future income and to accumulate assets. Both parties
have contributed to the acquisition, preservation, and appreciation of the
marital property. The Atlanta property has not prospered but this is for reasons
outside of the control of Mr. Dunn and is a result of the general economic
downturn. The Court does not find there has been dissipation of assets within
the meaning of the statute other than a portion of the proceeds of the sale of
Core Roofing. Neither party has significant separate property and neither had
an estate at the time of the marriage. All property the Court is asked to divide
is marital. Since 2009, Mrs. Dunn has reported approximately $150,000.00 a
year in earned income while Mr. Dunn has reported none. This is not because
of any inability to earn on his part. Mrs. Dunn has had the benefit of
retirement plans through her work and the parties have discussed various
investments and the IRA pension and retirement plan of Mrs. Dunn which
were accumulated during the marriage.

***

The Court finds that while both parties contributed monetarily to the
marriage and to the day-to-day activities of the family, the Court finds Mrs.
Dunn did so to a substantially greater extent than did Mr. Dunn. Her
contributions have substantially increased the marital estate. Mr. Dunn’s have
not. She has been primarily responsible for the raising of the child. The Court
also finds it advisable for Mrs. Dunn to remain in the marital residence for the
benefit of Alex as well as because of Mr. Dunn’s less settled lifestyle. Mrs.
Dunn’s Social Security benefits are greater than those of Mr. Dunn as are her
retirement accounts.

The Court finds the Core Roofing sale has been consummated and the
monies were utilized for family purposes but Mr. Dunn is living off of some
of those proceeds and has dissipated a portion of those funds.

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The trial court proceeded to distribute the net marital estate at approximately 60 percent to
Wife and 40 percent to Husband. As part of its distribution, the court found that Husband
had dissipated assets in the amount of $200,000.00 and included this amount within
Husband’s equitable share of the marital estate.

As this Court has explained:

The approach to dividing a marital estate should not be mechanical, but rather
should entail carefully weighing the relevant factors in Tenn. Code Ann. § 36-
4-121(c) in light of the evidence that the parties have presented. Flannary v.
Flannary, 121 S.W.3d at 650-51; Tate v. Tate, 138 S.W.3d 872, 875 (Tenn. Ct.
App. 2003); Kinard v. Kinard, 986 S.W.2d at 230. Trial courts have broad
discretion in fashioning an equitable division of marital property, Jolly v. Jolly,
130 S.W.3d 783, 785 (Tenn. 2004); Fisher v. Fisher, 648 S.W.2d 244, 246
(Tenn. 1983), and appellate courts must accord great weight to a trial court’s
division of marital property. Wilson v. Moore, 929 S.W.2d 367, 372 (Tenn. Ct.
App. 1996); Batson v. Batson, 769 S.W.2d 849, 859. Accordingly, it is not our
role to tweak the manner in which a trial court has divided the marital
property. Morton v. Morton, 182 S.W.3d at 834. Rather, our role is to
determine whether the trial court applied the correct legal standards, whether
the manner in which the trial court weighed the factors in Tenn. Code Ann. §
36-4-121(c) is consistent with logic and reason, and whether the trial court’s
division of the marital property is equitable. Jolly v. Jolly, 130 S.W.3d at 785-
86; Gratton v. Gratton, No. M2004-01964-COA-R3-CV, 2006 WL 794883,
at *7 (Tenn. Ct. App. Mar. 28, 2006) (No Tenn. R. App. P. 11 application
filed); Kinard v. Kinard, 986 S.W.2d at 231.

Owens v. Owens, 241 S.W.3d 478, 490 (Tenn. Ct. App. 2007).

Following a thorough review of the record, we determine that the trial court’s overall
property distribution is equitable and follows a proper consideration of the statutory factors.
Further, the evidence preponderates in favor of the trial court’s factual findings regarding
those factors. Despite Wife’s characterization that the parties were financially and physically
separated after 1991, the evidence at trial was to the contrary. Husband continued to frequent
the Woodhill Home; the parties maintained joint assets and continued to incur joint liabilities;
they took trips together as a family, and they contributed to one another’s lives financially.
We note that “where issues of credibility and weight of testimony are involved, this Court
will accord considerable deference to the trial court’s factual findings.” Keyt, 244 S.W.3d

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at 327.1 The record establishes that the trial court’s factual findings in this case were well
supported by the evidence presented.

Wife asserts that the trial court should have given greater consideration to her
substantial contributions to the marital estate and Husband’s dissipation of assets.2 As
previously stated, the trial court determined that Wife’s contributions had “substantially
increased the marital estate” and that Husband’s had not. Further, the court charged Husband
with $200,000.00 in monies that he dissipated from the marital estate. We determine that the
trial court gave appropriate weight and credence to the statutory factors listed in Tennessee
Code Annotated § 36-4-121(c). See Powell v. Powell, 124 S.W.3d 100, 108 n.8 (Tenn. Ct.
App. 2003) (“The factors are not listed in order of importance, and each is to be considered
in relation to the specific facts of each case.”). As such, we affirm the trial court’s overall
distribution of the parties’ marital estate.

Wife also posits that the trial court erred in awarding her only 50% of her Johnson &
Johnson pension. We note that the trial court’s decision regarding proper division of marital
property “is not rendered inequitable because it is not precisely equal or because both parties
did not receive a share of each piece of property.” See Brown v. Brown, 913 S.W.2d 163,
168 (Tenn. Ct. App. 1994) (internal citations omitted). Having determined that the trial court
properly considered all evidence in light of the statutory factors in its distribution of marital
property, we further determine that this distribution was not rendered inequitable by the
division of Wife’s Johnson & Johnson pension.

V. Valuation of Marital Assets

A. Date of Valuation of Accounts

Wife asserts that the trial court erred in its date of valuation of certain accounts.

1
Regarding another issue involving credibility, Wife asserts that the trial court erred in accepting the
testimony and exhibits of M.M., Husband’s paramour, regarding his payment of property taxes on the
Woodhill Home and school tuition for the parties’ child. The trial court made no finding that this evidence
was credible, and our thorough review of the record demonstrates that this evidence did not factor into the
trial court’s division of marital property.
2
“Dissipation of marital property occurs when one spouse wastes marital property and thereby
reduces the marital property available for equitable distribution.” Larsen-Ball v. Ball, 301 S.W.3d 228, 235
(Tenn. 2010) (quoting Altman v. Altman, 181 S.W.3d 676, 681–82 (Tenn. Ct. App. 2005)).

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According to Wife, the trial court accepted the value of Husband’s retirement accounts from
a statement issued in May 2013. Wife’s 401(k) and pension, by contrast, were valued as of
November 2013. Wife thus contends that any appreciation in Husband’s accounts from May
to November 2013 was not included in the marital estate. According to Wife, the award to
Husband of these accounts in the overall distribution resulted in an unjust windfall to
Husband of any such appreciation in value.

As this Court has previously explained:

The value of marital property is a fact question. Thus, a trial court’s decision
with regard to the value of a marital asset will be given great weight on appeal.
In accordance with Tenn. R. App. P. 13(d), the trial court’s decisions with
regard to the valuation and distribution of marital property will be presumed
to be correct unless the evidence preponderates otherwise.

The value of a marital asset is determined by considering all relevant evidence
regarding value. The burden is on the parties to produce competent evidence
of value, and the parties are bound by the evidence they present. Thus the trial
court, in its discretion, is free to place a value on a marital asset that is within
the range of the evidence submitted.

Wallace v. Wallace, 733 S.W.2d 102, 107 (Tenn. Ct. App. 1987) (internal citations omitted).

In the instant action, the parties presented detailed asset and liability statements
demonstrating the values of their respective accounts. When questioned regarding the value
of his NPC accounts as shown on his asset and liability statement, Husband testified that he
had obtained the most recent balances. Wife presented no contradictory information
regarding the balances on Husband’s NPC accounts until after the trial in her motion to alter
or amend the judgment. In ruling on this motion, the trial court declined to adjust the
balances of Husband’s NPC accounts, finding that the statements attached to the motion were
“documents not admitted into evidence.” As such, the trial court properly assigned a value
to these accounts based upon the evidence submitted at trial. Wife’s 401(k) and pension
were divided equally between the parties according to their values as of November 4, 2013,
the date of the trial court’s memorandum opinion. We discern no error in the trial court’s
valuation of these assets.

Wife also argues that the trial court erred by setting the value of her Suntrust account
by selecting a certain date when there was a substantial sum of money in the account being
“held” to pay bills, rather than considering the historical balance of the account. However,
pursuant to Wife’s motion to alter or amend, the trial court adjusted the value assigned to this

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account, finding that it should be reduced from the highest balance shown ($27,001.00) to
the median balance ($13,500.50). Wife’s testimony at trial established that the balance of
this account fluctuated from zero to $27,001.00. Therefore, the trial court properly assigned
a value that was within the range of evidence submitted. See Wallace, 733 S.W.2d at 107.
This issue is without merit.

B. Value Assigned to Personalty

Wife contends that the trial court erroneously accepted Husband’s expert’s valuation
of the personal property located in the marital residence at $142,215.00, which was awarded
to her in the overall distribution. Wife asserts that this property is old, worn, in disrepair, and
only worth $20,000.00. Wife states that if the trial court’s value is accepted, she would like
for this personalty to be awarded to Husband at that value. Husband contends that the expert
adopted a correct valuation, finding that the oriental rugs alone were worth $35,640.00. In
support, Husband asserts that photographs in the record substantiate the value of the
“exquisite” furnishings in the marital residence.

The trial court accepted the value of this personalty as established by Jerry Clements,
an antiques dealer and appraiser of personal property with forty years’ experience. Mr.
Clements testified that many valuable rugs in the home were in excellent condition. He
further explained that the furniture in the home appeared clean and nice, despite showing
some wear and tear. Mr. Clements opined that the value of the personalty in the Woodhill
Home was $142,215.00, based on his itemized appraisal. According to Mr. Clements, the
items could be sold for the prices listed in his report. The trial court credited Mr. Clements’s
expert testimony on this matter, and we find no error in that determination. See Wallace, 733
S.W.2d at 107. Based upon our review, we conclude that the trial court properly assigned
a value within the range of evidence submitted.

VI. Marital Debt

Wife posits that the trial court erred in including certain liabilities that were claimed
by Husband without the supporting proof of those liabilities. Wife specifically complains
regarding medical bills, which she claims should not exist because she paid for Husband’s
health insurance. Wife also questions Husband’s alleged tax liability. Wife further asserts
that the trial court erroneously listed two Discover credit card accounts when only one
existed.

Husband contends that the trial court properly listed all of the parties’ liabilities.
According to Husband, Wife also did not provide supporting documentation for her claimed
liabilities. We agree. It is well settled that the trial court was free to establish the dollar

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amount of the parties’ debts based on the evidence submitted. See Eganey v. Eganey, No.
M2005-01755-COA-R3-CV, 2006 WL 3740792 at *4 (Tenn. Ct. App. Dec. 19, 2006). In
the instant cause, the trial court properly made such a determination based upon the parties’
statements detailing their liabilities. Similar arguments were raised by Wife in her motion
to alter or amend, and the court considered and rejected Wife’s contentions. We determine
no error in the trial court’s valuation of the parties’ marital debt.

VII. Division of Specific Assets

Finally, Wife asserts that the trial court erred in its method of dividing certain assets.
Wife posits that the trial court should have simply allowed accounts that were solely in
Husband’s name to remain his assets and offset other accounts that were solely in Wife’s
name, rather than dividing these accounts between the parties. Wife contends that the parties
will incur greater costs in the division of these accounts.

We note, once again, that “it is not our role to tweak the manner in which a trial court
has divided the marital property.” Owens, 241 S.W.3d at 490.3 Instead, “our role is to
determine whether the trial court applied the correct legal standards, whether the manner in
which the trial court weighed the factors in Tenn. Code Ann. § 36-4-121(c) is consistent with
logic and reason, and whether the trial court’s division of the marital property is equitable.”
Id. The trial court’s overall division in this matter is equitable and follows a proper
consideration of the statutory factors. We decline to “tweak” the trial court’s method
employed in its equitable division of marital assets.

VIII. Attorney’s Fees on Appeal

Husband contends that he should receive an award of fees incurred in defending this
appeal. Husband asserts that Wife was successful in obtaining a greater share of the marital
estate at trial and that there is no basis for her appeal of that award. As this Court has stated:

[I]t is in the sole discretion of this court whether to award attorney’s fees on
appeal. As such, when this Court considers whether to award attorney’s fees
on appeal, we must be mindful of “the ability of the requesting party to pay the
accrued fees, the requesting party’s success in the appeal, whether the
requesting party sought the appeal in good faith, and any other equitable factor
that need be considered.”

3
We also note that the trial court’s decision regarding proper division of marital property “is not
rendered inequitable . . . because both parties did not receive a share of each piece of property.” See Brown,
913 S.W.2d at 168.

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Parris v. Parris, No. M2006-02068-COA-R3-CV, 2007 WL 2713723 at *13 (Tenn. Ct. App.
Sept. 18, 2007) (quoting Dulin v. Dulin, No. W2001-02969-COA-R3-CV, 2003 WL
22071454 (Tenn. Ct. App. Sept. 3, 2003)) (other internal citations omitted). We determine
that both parties in this matter were awarded sufficient assets with which to pay their fees,
and the appeal does not appear to have been sought in bad faith. Therefore, we decline to
award attorney’s fees to Husband.

IX. Conclusion

For the reasons stated above, we affirm the judgment of the trial court. This case is
remanded to the trial court for enforcement of the judgment and collection of costs below.
Costs on appeal are taxed to the appellant, Terri Dunn.

_________________________________
THOMAS R. FRIERSON, II, JUDGE

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