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Cox v. Cox

Court of Appeals of Tennessee, Knoxville

December 20, 2017

ROY D. COX
v.
CAROLYN ELLEN COX

          Session February 28, 2017

         Appeal from the Chancery Court for Sullivan County No. C0017446C E. G. Moody, Chancellor

         This appeal arises from a combined judgment of divorce and an award of damages in tort. After awarding the husband a divorce, the court classified, valued, and divided the marital property. The court also granted the husband a judgment for compensatory and punitive damages arising from an intentional tort committed by the wife. The wife raises numerous issues on appeal, including the classification of marital property, the equitable division of the marital estate, and the amount of the damages award. Because the court's order lacks sufficient findings of fact and conclusions of law to explain its division of the marital estate or the amount of punitive damages awarded, we vacate those portions of the court's judgment and remand for entry of an order in compliance with Rule 52.01 of the Tennessee Rules of Civil Procedure. In all other respects, we affirm.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Vacated in Part; Affirmed in Part; and Remanded

          R. Wayne Culbertson, Kingsport, Tennessee, for the appellant, Carolyn Ellen Cox.

          David W. Blankenship, Kingsport, Tennessee, for the appellee, Roy D. Cox.

          W. Neal McBrayer, J., delivered the opinion of the court, in which D. Michael Swiney, C.J., and John W. McClarty, J., joined.

          OPINION

          W. NEAL MCBRAYER, JUDGE

         I.

         After eleven years of marriage, Roy D. Cox ("Husband") filed a complaint in the Chancery Court for Sullivan County, Tennessee, for an absolute divorce from Carolyn E. Cox ("Wife"). This was the second marriage for both parties, and no minor children were involved. Wife filed both an answer and a counterclaim for divorce.

         Nine months later, Husband filed an amended complaint, which included his original allegations but also added a claim for damages in tort. Husband claimed that Wife had attacked him with a knife, causing injuries. In her answer, Wife admitted that she stabbed Husband but denied that he was injured or entitled to damages.

         A. Proof at the Hearing

         On May 13, 2015, the court held a combined hearing on both the divorce and Husband's tort claim. Wife stipulated that Husband was entitled to a divorce and did not request alimony. She also stipulated to the assault.

         1. Proof Relevant to the Divorce Complaint

         After cohabitating for ten years, Husband and Wife married in 1999 and separated in 2010. At the time of the hearing, Husband was 65 years old, and Wife was 51. The couple had accumulated a modest amount of assets during the marriage.

         Husband owned Roy's Body Works, an automobile collision repair shop. He had no employees and performed all of the repair work himself. Wife testified that, after she moved in with Husband, she also worked in the shop albeit without pay. Wife's role was mainly limited to paperwork and tax returns, but at times, she also made repair estimates.

         The parties agreed that their vehicles and other personal property were separate property. They also agreed to an even division of the proceeds from the sale of a camper. But they disputed the classification and valuation of their remaining assets, [1] including real property located in Sullivan and Hawkins Counties in Tennessee.

         Before the marriage, Husband relocated his business to property he had purchased in Sullivan County. He later acquired the neighboring property and built the home where the parties lived. After the parties married, Husband added Wife's name to the title to both tracts of the Sullivan County property.

         Also during the marriage, Wife and her sister each inherited a half-interest in real property in Hawkins County. Although the Hawkins County property is titled in Wife's name alone, the parties used marital funds to purchase the sister's interest and to make improvements on the property.

         Another area of disagreement at trial was the classification of five accounts at Eastman Credit Union. Wife testified that the accounts were jointly owned. Husband maintained that the accounts were his separate property. But, on cross-examination, Husband admitted that the credit union accounts were owned by "Roy or Carolyn."

         Two accounts were used solely for Husband's business, [2] and one checking account contained only Husband's social security benefits. The remaining two accounts, a primary share account and an investment certificate of deposit, were pledged as collateral for two loans made to Husband. The reasons for Husband's borrowing were not entirely clear from the record.

         According to the testimony, in 2009, a branch manager of Eastman Credit Union convinced Husband that he could earn money by investing in or loaning money to a company called Thomcrete Construction, Inc. To obtain the necessary funds, Husband borrowed from the credit union. Specifically, on July 20, 2010, shortly before filing for divorce, Husband borrowed approximately $43, 000, secured by the funds in the primary share account. And on September 9, 2010, he borrowed another approximately $107, 000, secured by the certificate of deposit.

         Whether it was an investment or loan, Husband's plan did not yield the anticipated gains. Thomcrete Construction failed to make any payments to Husband, and at the time of the hearing, the outstanding balance on Husband's loans was $134, 408.04. To prevent the credit union from exercising its rights in the pledged accounts, Husband was making payments on the loans, but only an amount sufficient to cover accrued interest.

         Husband admitted that he pledged the credit union accounts without consulting Wife. As of the hearing date, his attempts to restructure his loans with the credit union or to recover from Thomcrete Construction had proven unsuccessful. Husband agreed that, if he ever recouped any of his losses, he would share half of the recovery with Wife.

         At trial, Wife also asked the court to hold Husband accountable for failing to maintain her health and automobile insurance during the divorce proceedings in violation of the statutory injunction.[3] Husband agreed that he stopped payment after Wife stabbed him but disputed the amount of Wife's claimed expenses.

         For health insurance, Wife claimed that she paid both a $1, 209.12 reinstatement fee and $7, 949.61 in monthly premiums. She admitted, however, that after the separation, all her expenses, including the health insurance premiums and the reinstatement fee, were paid from her father's funds. Wife maintained that her father expected to be repaid. When asked for documentation of her father's payments, Wife could only show that he paid approximately $2, 087 for the reinstatement fee and monthly premiums.

         Similarly, Wife claimed that she paid $2, 300 in automobile insurance premiums, but later admitted her father actually paid her premiums. And Wife only presented documentary evidence of two payments, totaling $1, 146.

         2. Proof Relevant to the Tort Claim

         In March 2011, Wife entered the marital residence and stabbed Husband twice in the neck. She escaped while Husband was calling for assistance, but she was later arrested and convicted of simple assault. Paramedics treated Husband's injuries on site because he refused to go to a hospital.

         Since that time, Husband had suffered from a recurring infection that had limited his ability to work. The symptoms first appeared several days after the stabbing. He did not feel well, and his wound turned red and puffy. His doctor determined that he had a bacterial infection and prescribed antibiotics. After a few doctor visits, the infection apparently cleared. But, according to Husband, the infection reappeared several times over the ensuing months. Husband claimed that he was taking antibiotics to treat the infection at the time of trial. But he did not submit any medical bills or medical testimony as evidence at trial.

         Husband testified that, as a result of his injuries, he missed one month of work and lost approximately $20, 000 in income. But on cross-examination he admitted that he had never reported $20, 000 in business income in previous years. He also agreed that the lost income figure was an estimate based on anticipated walk-in business. Husband eventually conceded that he did not really know how much income he had lost when the ...


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