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Dunn v. Dunn

Court of Appeals of Tennessee, Knoxville

December 22, 2014


Session October 30, 2014

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

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.

Thomas R. Frierson, II, J., delivered the opinion of the Court, in which Charles D. Susano, Jr., C.J., and D. Michael Swiney, J., joined.



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 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 ...

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