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Akard v. Akard

Court of Appeals of Tennessee, Knoxville

November 25, 2014

ANN C. AKARD
v.
WAYNE F. AKARD

Session October 01, 2014

Appeal from the Chancery Court for Sullivan County No. B0023602C John S. McLellan, III, Judge, by Interchange

Wayne Franklin Akard, Knoxville, Tennessee, Pro se.

Charles L. Moffatt, IV, Bristol, Tennessee, for the appellee.

J. Steven Stafford, P.J., W.S., delivered the opinion of the Court, in which Thomas R. Frierson, II, J., and Kenny Armstrong, J. joined.

OPINION

J. STEVEN STAFFORD, JUDGE

Background[1]

Ann C. Akard ("Wife") and Wayne F. Akard ("Husband") entered into an Antenuptial Agreement on December 1, 2009. Neither party disputed the validity of their Antenuptial Agreement. The Antenuptial Agreement included a heading titled "Assets Acquired During Marriage." Under this heading, the agreement provides that any property acquired during the marriage would constitute marital property and would be divided equally upon divorce. Another heading, titled "Separate Ownership of Assets, " includes two sub-headings. The first sub-heading, "Assets Owned at Time of Marriage, " provided that each spouse would retain sole ownership over any property owned at the inception of the marriage. The second subheading is titled "Assets Acquired During Marriage" and states that Wife and Husband could also choose to acquire assets in their joint names and such property would be owned jointly with the right of survivorship. Shortly after entering the Antenuptial Agreement, the parties married on December 27, 2009. This was Wife's third marriage and Husband's fourth marriage. No children were born during the marriage.

Shortly after the parties were married, Husband suggested that he and Wife open joint bank accounts, which they did at Bank of America and Wachovia Bank. Husband deposited all of the funds in the accounts during their existence.[2] The parties do not dispute that Wife never deposited any money into the accounts. Both parties had check-writing abilities for the accounts. Wife used these accounts to pay taxes, make seven loan payments on her car, pay credit cards, and pay homeowner's insurance on her house.

Before she filed her complaint for divorce, Wife asked Husband to move out of their residence several times. Wife filed for divorce on January 17, 2012 in the Sullivan County Chancery Court.[3] The case was originally assigned to Chancellor E. G. Moody. At the time of the filing of the divorce complaint, both parties still lived together, and according to Wife, the parties got into an argument where Wife felt "physically intimidated." During one argument, Husband said he would not leave until Wife gave him permission to withdraw funds from the parties' joint bank accounts. Wife signed a handwritten note authorizing this. On January 18, 2013, Husband withdrew all of the funds from the accounts. He used the funds for improvements to his rental properties and for his condominium fees.

Several weeks later, on February 2, 2012, Husband filed his answer, denying any grounds for divorce. He also stated that he "would seek nothing other than an [e]quitable division of marital property." It is unclear for how long the parties resided together, but on February 3, 2012, the trial court held a hearing on Wife's motion for exclusive possession of the marital residence, which she owned solely in her name. By written order entered on the same day, Husband was ordered to immediately vacate the premises.

On March 5, 2012, Wife filed a Request for Production of Documents. Husband failed to appear at Wife's counsel's office with the documents on April 9, 2012, the date provided in Wife's motion. Wife's counsel filed a Motion to Compel Production of Documents on April 30, 2012. On May 10, 2012, Husband responded to Wife's motion in the form of a Motion for Rule 11 Sanctions against Wife's counsel. In his motion for sanctions, he accused Wife's counsel of improperly collecting fees from Wife, [4] intentionally and improperly classifying items of the parties as marital property, and adversely affecting Husband's health through prolonging the case.[5] At the hearing on these motions, Husband, in his appellate brief and reply brief, contends that he was not allowed to speak. He further called the hearing a "totally Fraudulent, less then 5 minute, Mockery of a Trial." By order entered on June 30, 2012, the trial court granted Wife's motion to compel and ordered Husband to produce the documents, including those relating to the joint bank accounts.

On December 5, 2012, Chancellor Moody transferred the pending matter to Judge John S. McClellan, III, "upon the court's own motion and for good cause shown."[6]

The divorce trial was held on January 30, 2013 before Judge McLellan. At the time of the divorce trial, Wife was 70 years old, and Husband was 71 years old. There were no marital debts. Neither party retained a court reporter at trial, so no transcript of the trial proceedings is included in the record on appeal. After Husband filed his notice of appeal, he filed his proposed Statement of the Evidence on May 20, 2014, which Wife objected to on June 13, 2013.[7] Wife filed her Statement of the Evidence on July 15, 2013. Husband likewise objected to Wife's Statement of the Evidence. By order of July 19, 2013, the trial court determined that Husband's Statement of the Evidence "[did] not convey a fair, accurate and complete account of what transpired with respect to relevant issues that are the basis of appeal." Further, the trial court said that Husband's Statement of the Evidence contains "eleven pages of [Husband]'s improperly concluded, misstated and unsubstantiated accusations." With a few additions, Wife's Statement of the Evidence was approved by the trial court.

According to the approved Statement of the Evidence, Wife owned separate property prior to the marriage, including her home, her Saturn vehicle, separate household furnishings, a BB&T Bank checking account, BB&T stock, a 401k plan, an individual retirement account, jewelry, and a lawnmower. Husband owned separate property prior to the marriage as well, including four homes and two condominiums that are rental properties, one home that is his residence, two vehicles, a Home Federal bank account, a First Tennessee Bank Account, and a Yamaha motorcycle. Although it does not appear in the approved Statement of the Evidence, Husband avers that, at the divorce trial, he was "muzzled and not allowed to argue [his] case." He further stated that the second trial judge twice denied him "a chance to speak and present some critical evidence on the division of Property he had just declared to be Marital Property."

The trial court entered the Judgment of Absolute Divorce on February 22, 2013. The court found that the joint bank accounts were marital property that was divided after the court deducted several of Husband's expenditures where he used funds from the accounts. In the Judgment of Absolute Divorce, Husband's Motion for Rule 11 Sanctions, originally filed May 10, 2013, was dismissed as "legally insufficient." The only remaining motion pending at the time of trial was Husband's "MOTION for the court's understanding and to seek Sanction for Plaintiff's Attorney for Violation of TRCP RULE 11 in his Rule 17 Filings, " originally filed January 30, 2013, which the trial court also dismissed in the Judgment of Absolute Divorce for failure to timely prosecute when it entered the final judgment of divorce. Finally, by written order entered March 25, 2013, the trial court awarded Wife's attorney's fees she incurred in connection with her ...


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