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Smith v. Smith

Court of Appeals of Tennessee, Knoxville

December 18, 2017


          Session November 15, 2017

         Direct Appeal from the Circuit Court for Hamilton County No. 13-D-744 W. Neil Thomas, III, Judge

         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

          Jacqueline Strong Moss, Chattanooga, Tennessee, for the appellant, Tressie G. Smith.

          Curtis Lee Bowe, III, Chattanooga, Tennessee, for the appellee, Michael Lee Smith.

          Brandon O. Gibson, J., delivered the opinion of the court, in which D. Michael Swiney, C.J., and John W. McClarty, J., joined.



         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:

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 ...

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