12/18/2017
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
November 15, 2017 Session
TRESSIE G. SMITH v. MICHAEL LEE SMITH
Direct Appeal from the Circuit Court for Hamilton County
No. 13-D-744 W. Neil Thomas, III, Judge
No. E2017-00515-COA-R3-CV
This appeal involves an unnecessarily lengthy and convoluted divorce proceeding. The
appellant-wife argues that the trial court failed to properly classify and divide the parties’
marital property. Due to the lack of factual findings regarding the basis for the trial
court’s marital property distribution, we vacate that portion of the judgment and remand
the issue to the trial court for entry of appropriate findings of fact and conclusions of law.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Vacated in
part, and Remanded
BRANDON O. GIBSON, J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and JOHN W. MCCLARTY, J., joined.
Jacqueline Strong Moss, Chattanooga, Tennessee, for the appellant, Tressie G. Smith.
Curtis Lee Bowe, III, Chattanooga, Tennessee, for the appellee, Michael Lee Smith.
OPINION
I. FACTS & PROCEDURAL HISTORY
Michael Smith (“Husband”) and Tressie Smith (“Wife”) married when Husband
was 42 and Wife was 28. This was the second marriage for both parties. Wife was a
stay-at-home mother throughout the marriage, while Husband worked outside the home.
After twenty years of marriage, Husband moved out of the parties’ marital home, and
Wife remained in the home with the parties’ adult son. Wife filed a complaint for
divorce in April 2013, and Husband filed a counter-complaint for divorce. Both parties
sought a division of their marital property, and Wife sought alimony. Despite the fact
that the parties had relatively few assets to be divided, the litigation continued for
approximately four years, with Wife having five different attorneys during that time and
Husband having two different attorneys.
Beginning in May 2013, Husband was ordered to pay Wife $1,000 per month in
temporary alimony. In March 2014, Husband retired from his employment with the
Hamilton County Sheriff’s Department, where he had worked as a jailer. He began
receiving social security retirement benefits, and the trial court entered a wage
assignment order requiring that the previously ordered temporary alimony payment of
$1,000 per month be withheld from Husband’s social security check. According to the
testimony at trial, the applicable social security regulations would only allow one-half of
Husband’s social security payment to be deducted through a wage assignment, so Wife
was permitted to receive half of Husband’s monthly check, with each party receiving
$759 from each monthly social security payment. Husband paid the remaining $241 of
the $1,000 alimony obligation by personal check.
The divorce trial was held on March 4, 2016. At the outset, the trial judge stated,
“Somebody tell me what the remaining issues are.” Wife’s attorney stated that the
remaining issues were permanent alimony, the division of outstanding marital debts, and
the award of the marital home. Wife testified that she had been prequalified to refinance
the marital home and asked that it be awarded to her. Wife testified that she was still
living in the marital home with the parties’ adult son and that she was unemployed other
than working at a few “odd jobs.” Husband conceded that Wife could have the marital
home if she was able to refinance it. Both parties testified to owing a few debts such as
medical bills and personal loans.
A great deal of the testimony pertained to the temporary alimony that was paid
during the proceedings and whether Husband fulfilled all of his payment obligations.
Regarding Husband’s income, Wife testified that Husband received monthly (and annual)
income from four sources – social security retirement income; part-time employment
work; a TVA pension; and a pension from the Hamilton County Sheriff’s Department.
However, aside from mentioning these pensions and the amounts received by Husband as
a component of his income, Wife presented no evidence regarding a valuation of these
pensions, how they were structured, or the extent to which any of the benefits may have
been derived from employment that occurred during the period of the marriage. Neither
Wife nor her attorney ever asked the trial court to value or divide these pensions as
marital property. In fact, at the conclusion of the testimony, the trial judge stated:
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Now, let me get to the issue of division of marital property, the only
property that I’ve heard of testified to are two cars, a house, and a
fluctuating bank account.
Husband’s attorney replied, “Yes, sir.” Wife’s attorney did not mention the pensions or
even respond to the court’s statement. The trial judge added, “I’m not accustomed to
asking for proof, but in this case I think I need it to make a rational decision.”
Specifically, the trial judge directed Wife’s attorney to provide the court with
documentation regarding the specific refinancing conditions underlying Wife’s
prequalification so that the judge would know with certainty how its alimony award and
property division would impact Wife’s efforts at refinancing. The trial judge suggested
that upon receipt of the information, he could inform the parties’ attorneys of his decision
in chambers. On March 31, 2016, the trial court entered a divorce decree awarding Wife
a divorce but reserving all remaining matters for further determination and directing Wife
to provide the information regarding her prequalification for refinancing.
Wife submitted a notice of filing with a letter from a bank regarding items that
Wife would need to show in order to be considered for a mortgage. On June 27, 2016,
the trial court entered a “Memorandum and Order” purportedly addressing the remaining
issues previously taken under advisement in the divorce decree. Referencing the bank
letter, the trial court found that Wife was preapproved for a loan pending receipt of a
divorce decree awarding her the marital home, a quitclaim deed, an alimony obligation of
$1,000 per month for six months, and evidence of a pension amount of at least $560 per
month. The trial court added, “With respect to the latter, the evidence shows that [Wife]
receives $749 per month in pension as a result of [Husband’s] receipt of his social
security benefits in the same amount, and that condition is satisfied.” (Up until this time,
Wife had been receiving $749 per month from Husband’s social security retirement
benefit through wage assignment for temporary alimony. Unfortunately, the trial court
did not specify on what basis Wife would continue to receive the monthly payment or
how long it would continue.) The only specific mention of “marital property” was the
trial court’s statement that “[t]he division of marital property will result in [Wife’s]
receipt of the marital home upon refinancing; if it is not refinanced, it will be listed for
sale and the net proceeds divided equally.” However, the trial court did not value the
marital home or the equity in it.
Regarding alimony, the trial court noted that Husband had already paid to Wife
$23,746.51 in temporary alimony and other support during the pendency of the three-year
divorce proceeding. Considering Husband’s concession of the marital home to Wife, the
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court deemed it appropriate to order Husband to pay only six more months of
rehabilitative alimony in the sum of $1,000 per month.
Within thirty days, Wife filed a motion to set aside the court’s “Memorandum and
Order.” She noted that the order contained no ruling regarding marital assets or debts
aside from the marital home and its mortgage. Wife argued that the trial court should
have also addressed the parties’ vehicles, the personal property in their possession, other
marital debts, and Husband’s pensions from TVA and the Hamilton County Sheriff’s
Department. Wife also noted that the $749 monthly “pension” that the order said she
“receives” (in its discussion of refinancing) was actually temporary alimony subject to
wage assignment. Wife argued that the Memorandum and Order did not constitute a final
judgment. Husband filed a response, asserting that the Memorandum and Order
represented an equitable distribution of the marital estate and a final judgment of the
court. He argued that Wife failed to present sufficient proof at trial regarding the
pensions and that she should not be permitted to present such evidence through post-trial
motions. Wife filed a reply insisting that she had proven the value of the pensions by
establishing the amounts Husband received from them in monthly income. She also
attached to her reply information related to the pensions. Husband filed another response
objecting to Wife’s attempt to supplement the record with additional proof not presented
at trial. Simply put, he claimed that Wife “missed her bite at the apple.”
The trial court held an additional hearing on October 21, 2016, but no proof was
presented. Husband maintained that the trial court did not and could not divide the
pensions due to the lack of proof presented by Wife at trial. He argued that it was Wife’s
burden to present some type of valuation evidence to support a division of the pensions if
she was seeking such a division. Wife insisted that she sufficiently established the value
of the pensions by proving the amount Husband receives as monthly income. She also
referenced additional information she had recently obtained about the nature of
Husband’s pensions. Based on the representations by Wife’s counsel about the nature of
the pensions, the trial judge stated that “[t]here is nothing to divide as a marital asset”
because the particular type of pensions at issue had no corpus to value. As such, the trial
judge explained that he only considered Husband’s pension income as an income stream
for the purposes of setting alimony. As for the social security income, the trial judge
stated that he “didn’t have to deal with” Wife’s portion of the social security payment
because it “was her dependency income from his social security” and “she gets that
automatically.”
Despite their disagreement regarding the pensions, Husband’s counsel agreed with
Wife’s counsel that the Memorandum and Order failed to mention the parties’ vehicles.
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On February 10, 2017, the trial court entered a final order resolving Wife’s motion to set
aside. The trial court expressly awarded each party his or her vehicle and its related
indebtedness. It found that “there are no marital debts other than those identified herein
requiring a designated payor.” With regard to the letter about refinancing, the court again
stated that “[Wife] received $749 in social security benefits from [Husband], thus
satisfying [the bank’s] last condition.” Again, however, the trial court failed to clarify on
what legal basis Wife would receive such benefits. Its order stated, “this division of
marital property will result in [Wife’s] receipt of the marital home upon refinancing,
previous receipt of $24,629.35 in alimony, social security benefits, all of which satisfy
[the bank’s] loan letter.” As for the pensions, the order states,
After additional motions, and holding open proof for an additional one (1)
week period, with no additional proof or documentation qualified for entry
pursuant to the Tennessee Rules of Evidence as to the value of any
additional pensions or retirement funds, the Court is unable to make any
additional findings of awards or distribution.
Wife timely filed a notice of appeal. 1
II. ISSUES PRESENTED
Wife lists the following issues for review on appeal:
1. Whether the trial court erred in failing to fully enumerate and define the
parties’ rights with regard to the classification and division of marital
property?
2. Whether the trial court erred in failing to set aside its Memorandum and
Order entered on June 27, 2016.
1
The trial court’s order on the motion to set aside references a two-day trial beginning on December 16,
2015, and ending on March 4, 2016. However, the original divorce decree and the Memorandum and
Order only referenced proceedings from March 4, 2016. Likewise, the only trial transcript in the record
before us is from March 4, 2016. On appeal, Wife only cites testimony from March 4 and claims that she
proved the value of Husband’s pensions by establishing the monthly sum he received. Due to our
ultimate conclusion that a remand is necessary, this apparent conflict about a second day of trial does not
impact the resolution of this appeal. However, nothing in this opinion should be construed as limiting
consideration of proof presented at a December 16, 2015 hearing if one did in fact occur as part of a two-
day trial.
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Within the argument section of Wife’s brief, she lists somewhat different issues:
1. The Court’s failure to adequately characterize marital debts and assets
as separate or marital property.
2. The Court’s failure to equitably divide Husband’s marital debts and
assets including vested pension benefits that accrued during the
marriage through employment.
For the following reasons, we vacate the trial court’s order as it pertains to marital
property division and remand for further proceedings.
III. DISCUSSION
Property classification issues are issues of fact. Luplow v. Luplow, 450 S.W.3d
105, 109 (Tenn. Ct. App. 2014). “Once property has been classified as marital property,
the court should place a reasonable value on property that is subject to division.” Id.
(citing Edmisten v. Edmisten, No. M2001-00081-COA-R3-CV, 2003 WL 21077990, at
*11 (Tenn. Ct. App. May 13, 2003)). After this valuation, the trial court is to divide the
marital property in an equitable manner considering the statutory factors listed in
Tennessee Code Annotated section 36-4-121(c). Id. at 109-110. “The equitable division
of marital property is a fact-intensive inquiry involving the careful weighing of the
relevant statutory factors.” Brainerd v. Brainerd, No. M2015-00362-COA-R3-CV, 2016
WL 6996365, at *5 (Tenn. Ct. App. Nov. 30, 2016) (no perm. app. filed). The trial court
has broad discretion in fashioning an equitable distribution of marital property, and an
appellate court will defer to the trial court’s distribution unless it is inconsistent with the
statutory factors or lacks proper evidentiary support. Baggett v. Baggett, 422 S.W.3d
537, 543 (Tenn. Ct. App. 2013).
On appeal, Wife argues that the trial court’s orders were ambiguous, confusing,
and incomplete. She claims that the trial court committed reversible error by failing to
classify, value, or divide Husband’s pension benefits, as they had “a known value.”
Curiously, Husband’s brief on appeal insists that “the Circuit Court held that [Wife]
would receive one-half (1/2) of [Husband’s] pension from TVA and one-half (1/2) of
[his] pension from [the sheriff’s department].” At oral argument, however, Wife’s
counsel insisted that Wife did not receive one-half of any pension benefit and that she
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only received a six-month alimony award to be garnished from Husband’s social security
benefit.
From our review of the record, the trial court’s orders clearly awarded Wife the
marital home and each party his or her own vehicle, and the orders appear to assign each
party the debts in his or her name. Beyond that, however, the trial court failed to make
clear findings to support or explain its marital property distribution. The trial court’s
final order simply stated that Wife “received $749 in social security benefits” without
clarifying the dispute as to whether such benefits would be received as marital property
or alimony. Although the trial judge orally stated at the hearing that he was not required
to divide this benefit because Wife would receive it automatically, he made no finding to
that effect in his written order, and the record before us contains no proof regarding this
issue. A trial court “speaks through its order, not through the transcript.” In re Adoption
of E.N.R., 42 S.W.3d 26, 31 (Tenn. 2001). As for the two pensions, the trial court only
specifically mentioned them in the final order on the motion to set aside, which states,
“with no additional proof or documentation qualified for entry pursuant to the Tennessee
Rules of Evidence as to the value of any additional pensions or retirement funds, the
Court is unable to make any additional findings of awards or distribution.” This finding
is ambiguous. It could be construed to mean that Wife failed to present sufficient
evidence at trial regarding the pensions. Or, this finding could be construed to mean that
the trial judge declined to value or divide the pensions based on the nature of the pension
plans, as the trial judge stated during the last hearing. Aside from these ambiguities and
gaps in the trial court’s reasoning, none of the orders reference the statutory factors for
consideration when dividing marital property or include factual findings that would
substantively align with such factors. Furthermore, the trial court failed to place a value
on any of the marital property or marital debt.
“In bench trials, trial courts must make findings of fact and conclusions of law to
support their rulings.” Hardin v. Hardin, No. W2012-00273-COA-R3-CV, 2012 WL
6727533, at *3 (Tenn. Ct. App. Dec. 27, 2012). Tennessee Rule of Civil Procedure 52.01
states, in pertinent part:
In all actions tried upon the facts without a jury, the court shall find the
facts specially and shall state separately its conclusions of law and direct
the entry of the appropriate judgment.
“Simply stating the trial court’s decision, without more, does not fulfill this mandate.”
Barnes v. Barnes, No. M2011-01824-COA-R3-CV, 2012 WL 5266382, at *8 (Tenn. Ct.
App. Oct. 24, 2012).
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“[T]he General Assembly’s decision to require findings of fact and conclusions of
law is ‘not a mere technicality.’” Hardin, 2012 WL 6727533, at *3 (quoting In re K.H.,
No. W2008-01144-COA-R3-PT, 2009 WL 1362314, at *8 (Tenn. Ct. App. May 15,
2009)). Such findings and conclusions “facilitate appellate review by affording a
reviewing court a clear understanding of the basis of a trial court’s decision.” Lovlace v.
Copley, 418 S.W.3d 1, 34 (Tenn. 2013). In the absence of sufficient findings and
conclusions, “‘this court is left to wonder on what basis the court reached its ultimate
decision.’” In re K.H., 2009 WL 1362314, at *8 (quoting In re M.E.W., No. M2003-
01739-COA-R3-PT, 2004 WL 865840, at *19 (Tenn. Ct. App. Apr. 21, 2004)).
There is no bright-line test by which to assess the sufficiency of factual
findings, but “the findings of fact must include as much of the subsidiary
facts as is necessary to disclose to the reviewing court the steps by which
the trial court reached its ultimate conclusion on each factual issue.”
Lovlace, 418 S.W.3d at 35 (quoting 9C Federal Practice & Procedure § 2579, at 328).
Unfortunately, in this case, we cannot determine whether the trial court applied an
incorrect legal standard or relied on reasoning that caused an injustice because we do not
know what legal standard the court applied or what reasoning it employed. See Halliday
v. Halliday, No. M2011-01892-COA-R3-CV, 2012 WL 7170479, at *12 (Tenn. Ct. App.
Dec. 6, 2012), perm. app. denied (Tenn. Apr. 11, 2013) (explaining that “this Court
cannot determine whether the trial court abused its discretion” in the absence of factual
findings by the trial court). This Court and the parties were “left to wonder” about the
basis of the trial court’s decision, In re K.H., 2009 WL 1362314, at *8, and consequently,
we are unable to conduct meaningful appellate review. In re Estate of Bostic, No. E2016-
00553-COA-R3-CV, 2016 WL 7105213, at *5 (Tenn. Ct. App. Dec. 6, 2016) (no perm.
app. filed). “One remedy appellate courts typically apply when a trial court’s factual
findings fail to satisfy the Rule 52.01 requirement is to remand the case to the trial court
with directions to issue sufficient findings and conclusions.” Lovlace, 418 S.W.3d at 36.
We deem that remedy appropriate here. Even if the trial court’s findings regarding the
retirement benefits were clarified, we still could not determine whether the distribution of
the marital estate was equitable due to the lack of any findings to review regarding the
valuation of the assets and debts or the statutory factors. We accordingly vacate the trial
court’s orders as they pertain to marital property issues and remand for entry of an order
that contains sufficient findings of fact and conclusions of law. See, e.g., Brainerd, 2016
WL 6996365, at *5 (remanding for sufficient findings to explain and support the trial
court’s division of the marital estate in compliance with Rule 52.01); Kirby v. Kirby, No.
M2015-01408-COA-R3-CV, 2016 WL 4045035, at *6-7 (Tenn. Ct. App. July 25, 2016)
(no perm. app. filed) (remanding due to the lack of findings valuing marital assets and
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debts or the statutory factors for equitably dividing the marital estate); Irvin v. Irvin, No.
M2010-01962-COA-R3-CV, 2011 WL 2436507, at *1 (Tenn. Ct. App. June 15, 2011)
(remanding for findings compliant with Rule 52.01 where the order was ambiguous and
failed to value the marital property).
Additionally, as we have said before, “We would be remiss if we did not also
address the shortcomings in the parties’ briefs with regard to Rule 7 of the Rules of the
Court of Appeals of Tennessee.” Kirby, 2016 WL 4045035, at *7. Although the issues
in this appeal involved classification, valuation, and division of marital property, neither
party included in the briefs the table required by Rule 7 of the Rules of the Court of
Appeals, which provides:
(a) In any domestic relations appeal in which either party takes issue
with the classification of property or debt or with the manner in which the
trial court divided or allocated the marital property or debt, the brief of the
party raising the issue shall contain, in the statement of facts or in an
appendix, a table in a form substantially similar to the form attached hereto.
This table shall list all property and debts considered by the trial court,
including: (1) all separate property, (2) all marital property, and (3) all
separate and marital debts.
(b) Each entry in the table must include a citation to the record
where each party’s evidence regarding the classification or valuation of the
property or debt can be found and a citation to the record where the trial
court’s decision regarding the classification, valuation, division, or
allocation of the property or debt can be found.
(c) If counsel disagrees with any entry in the opposing counsel’s
table, counsel must include in his or her brief, or in a reply brief if the issue
was raised by opposing counsel after counsel filed his or her initial brief, a
similar table containing counsel’s version of the facts.
This Court has repeatedly held that failure to comply with the requirements of Rule 7
waives issues relating to the division of property in a divorce case. See, e.g., Pack v.
Rothchild, No. E2016-00873-COA-R3-CV, 2017 WL 3106885, at *7 (Tenn. Ct. App.
July 21, 2017) (no perm. app. filed); Akard v. Akard, No. E2013-00818-COA-R3-CV,
2014 WL 6640294, at *4-5 (Tenn. Ct. App. Nov. 25, 2014); Forbess v. Forbess, 370
S.W.3d 347, 356 (Tenn. Ct. App. 2011); Townsend v. Townsend, No. W2004-02034-
COA-R3-CV, 2005 WL 3416310, at *6 (Tenn. Ct. App. Dec. 14, 2005); Durant v.
Durant, No. M2001-00691-COA-R3-CV, 2002 WL 772923, at *3 (Tenn. Ct. App. Apr.
30, 2002). It is “well settled” that where an appellant fails to comply with Rule 7, he or
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she waives all issues relating to the rule’s requirements. Rountree v. Rountree, 369
S.W.3d 122, 133 n.7 (Tenn. Ct. App. 2012). Moreover, a “trial court’s failure to assign
values to all items of property ‘does not prohibit [the parties] from providing this Court
with the value [they] contend[ ] ought to be assigned and a citation to the record to
support such an assertion.’” Kirby, 2016 WL 4045035, at *7 (quoting Harden v. Harden,
No. M2009-01302-COA-R3-CV, 2010 WL 2612688 at *8 (Tenn. Ct. App. June 30,
2010)).
This Court may “suspend the requirements of Rule 7 for ‘good cause.’” Hopwood
v. Hopwood, No. M2015-01010-COA-R3-CV, 2016 WL 3537467, at *7 (Tenn. Ct. App.
June 23, 2016) (quoting Tenn. R. Ct. App. 1(b)). Given the unique circumstances of this
case, we have elected to remand for sufficient findings pursuant to Rule 52.01 rather than
deeming the marital property issues waived for failure to comply with Rule 7. However,
we may not elect to proceed in this manner in all cases. “Our holding on this issue
should not be construed as setting forth a general rule that a party may be routinely
excused from including a Rule 7 table.” Green v. Green, No. M2011-00840-COA-R3-
CV, 2012 WL 2389607, at *3 (Tenn. Ct. App. June 25, 2012). “‘While in this case we
chose to proceed with our review despite the fact that the parties chose not to abide by the
rules of this Court, we cannot say we will be so accommodating and choose to do the
same in the future.’” Id. at n.4 (quoting Wells v. Wells, W2009-01600-COA-R3-CV,
2010 WL 891885, at *4 (Tenn. Ct. App. Mar. 15, 2010)).
IV. CONCLUSION
For the aforementioned reasons, the decision of the circuit court is hereby vacated
in part and remanded for entry of an order that complies with Rule 52.01. Any remaining
issues are pretermitted. Costs of this appeal are taxed equally to the appellant, Tressie
Smith, and her surety, and to the appellee, Michael Lee Smith, for which execution may
issue if necessary.
_________________________________
BRANDON O. GIBSON, JUDGE
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