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Agee Swafford v. Swafford

Court of Appeals of Tennessee, Knoxville

March 21, 2018

CATHY GWEN AGEE SWAFFORD
v.
DANNY EARL SWAFFORD, SR.

          Session October 17, 2017

          Appeal from the Circuit Court for Bledsoe County No. 4381 Jeffrey F. Stewart, Chancellor

         This is a divorce action involving the classification of the parties' separate and marital property and equitable division of the marital assets. Because we are unable to discern whether the trial court classified the wife's retirement accounts as marital or separate property prior to its division of the marital estate and because the trial court failed to make sufficient findings of fact regarding several items of property prior to the distribution, we hereby vacate the trial court's distribution of marital property. We remand this matter to the trial court for entry of sufficient findings of fact and conclusions of law regarding the classification, valuation, and ultimate distribution of the parties' marital property.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Vacated; Case Remanded

          Cindy Morgan, Sparta, Tennessee, for the appellant, Danny Earl Swafford, Sr.

          Randal R. Boston, Crossville, Tennessee, for the appellee, Cathy Gwen Agee Swafford.

          Thomas R. Frierson, II, J., delivered the opinion of the court, in which D. Michael Swiney, C.J., and John W. McClarty, J., joined.

          OPINION

          THOMAS R. FRIERSON, II, JUDGE

         I. Factual and Procedural Background

         Cathy Gwen Agee Swafford ("Wife") and Danny Earl Swafford, Sr. ("Husband") were married in 2003. The parties initially separated in 2007. Wife filed a complaint for divorce on August 8, 2007, asserting that the parties owned certain real and personal property, which she requested that the trial court equitably divide. Wife also sought an equitable division and allocation of the parties' substantial debt. Husband filed an answer on May 2, 2008, averring that the parties had reconciled and had been living together until mid-April 2008. Husband thereby requested that the complaint be dismissed. On appeal, the parties agree that they had reconciled for a period of time and eventually separated in April 2008. Following the final separation, Wife pursued the previously filed divorce proceedings.

         On August 9, 2007, Wife filed a motion seeking a pendente lite order directing that Husband be solely responsible for the payment of certain marital debts. This motion was not addressed by the trial court until Wife filed a subsequent motion requesting similar relief on June 8, 2008. The trial court entered an order dated July 11, 2008, concerning a June 23, 2008 hearing conducted regarding Wife's motions. The court noted that Husband had failed to appear after receiving proper notice regarding the hearing. The court's order reflects that Husband had advised his attorney that he was "'in the hay field'" and could not be present. In its July 11, 2008 order, the court awarded to Wife certain personalty that she had owned prior to the marriage. The court also determined that Husband would be solely responsible for the debts related to the "farming, logging and sawmill businesses, " including debts owed to Ag Credit, First National Bank, New Holland Credit/CNH Capital Operations, Discover, and Mastercard. The trial court reserved all remaining issues for trial.

         On October 14, 2008, Husband filed a motion seeking to set aside the trial court's previous order, stating that he had not been provided advance notice of the hearing date. Husband subsequently filed a motion seeking disbursement of certain funds held by Wife's employer, Mountain Farm Equipment, which had sold farm equipment for the parties on consignment.

         The trial court conducted a trial on August 1, 2012, and entered a "Decree of Divorce" on October 15, 2012. The court awarded a divorce to Wife based upon Husband's stipulation that grounds existed. The remaining issues were reserved for a later hearing. On August 19, 2013, the trial court entered an "Order Amending Decree of Divorce, " which restored Wife's prior surname of "Agee."

         On May 4, 2015, Husband filed a motion seeking the recusal of Judge Justin Angel from presiding in the matter. Husband asserted that Judge Angel had recently practiced with Wife's former attorney during the pendency of the action. Judge Angel entered an order of recusal on July 22, 2015. On July 28, 2015, Chancellor Jeffrey Stewart was appointed to hear the case by interchange. On August 3, 2015, Wife filed a motion alleging that Husband was in contempt of court for failing to pay the debts previously allocated to him by the trial court's pendente lite order. On November 4, 2015, Wife filed an additional motion, requesting that Husband be held in contempt for failing to appear at mediation.

         The trial court conducted a hearing on October 24, 2016, and subsequently entered an order on December 19, 2016, wherein the court distributed the parties' assets and debts. The court determined that by the time of trial, most of the parties' assets "were gone" because the marital residence had been foreclosed upon and many other assets had been sold after Husband failed to pay the debts he was previously ordered to pay. In its equitable division of the marital assets, the trial court referred to Trial Exhibit 17, which was a list of assets and debts prepared for trial. The court ordered that all marital property marked as "hers" on Exhibit 17 would be awarded to Wife and that the remaining marital property listed on Exhibit 17 would be sold with the proceeds divided equally between the parties.

         Additionally, the court awarded to Wife as her "sole and separate property" the entire amount of her retirement accounts and her personal checking account. The court ordered Husband to repay Wife $25, 000.00, representing approximately half of the equity in the marital home that had been lost by reason of foreclosure. The court also ordered Husband to repay Wife $14, 945.00, representing proceeds from the sale of Wife's separate real property that had been used to pay a debt allocated to Husband. Husband was further ordered to reimburse Wife $6, 000.00, which represented Husband's ...


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