Nancy K. Wheeler Poyner v. Alden Dennis Poyner ( 1995 )

FILED
IN THE COURT OF APPEALS OF TENNESSEE November 9,
WESTERN SECTION AT NASHVILLE 1995
Cecil Crowson, Jr.
NANCY KAYE WHEELER POYNER, ) Appellate Court Clerk
)
Plaintiff/Appellant, ) Humphreys Chancery No. 22-148
)
VS. ) Appeal No. 01A01-9503-CH-00116
)
ALDEN DENNIS POYNER, )
)
Defendant/Appellee. )
APPEAL FROM THE CHANCERY COURT OF HUMPHREYS COUNTY
AT WAVERLY, TENNESSEE
THE HONORABLE LEONARD W. MARTIN, CHANCELLOR
Ronald S. Buchanan
Hendersonville, Tennessee
Attorney for Appellant
Jerry V. Smith
Dickson, Tennessee
Attorney for Appellee
AFFIRMED IN PART, REVERSED IN PART
AND REMANDED
ALAN E. HIGHERS, JUDGE
CONCUR:
W. FRANK CRAWFORD, P.J., W.S.
DAVID R. FARMER, JUDGE
This is a divorce case in which the Wife appeals the trial court's division of marital
property and the court's award of custody to the Husband.
I.
The pertinent facts are as follows. The parties divorced after twelve years of
marriage, during which time two sons were born of the marriage: Stephen A. Poyner, born
in 1983, and David E. Poyner, born in 1990. The Appellant, Nancy Kaye Wheeler Poyner
("Wife"), filed for divorce in December of 1993, alleging that she was entitled to an
absolute divorce based on the Husband's alleged physical abuse of both her and the
children. In his answer, Husband denied that he was the father of David Poyner, denied
that Wife was entitled to a divorce, and counterclaimed for a divorce on the basis of Wife's
inappropriate marital conduct and adultery. Both parties sought custody of the two children.
Prior to trial, the court ordered blood tests to determine the paternity of David
Poyner. The results definitively excluded the possibility that Husband was David's natural
father, although Wife repeatedly denied that she had committed adultery. Despite the fact
that the blood tests showed that he was not David's father, Husband continued to seek
custody of both David and Stephen. At the beginning of trial, the parties stipulated to
grounds for divorce. The Wife also withdrew her previous request for alimony.
The great bulk of testimony at trial was aimed at the custody issue. Most of the
evidence presented concerned Wife's longstanding problems with anorexia and
depression, which resulted in numerous hospitalizations and various side-effects from her
medications. In 1992, Wife's problem with anorexia became very serious and she was
hospitalized. At this time, Wife was not only depressed, but was also taking between 15
and 20 laxative pills a day to rid herself of food that she had consumed. In the span of
less than a year, Wife was hospitalized six times, and doctors prescribed over twenty
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different anti-depressant medications in an attempt to treat her condition. All of these
medications had various side effects, one of which caused Wife to suffer severe anxiety
attacks. Although alcohol was contraindicated with most of her medicine, Wife admitted
that she drank alcohol on at least one occasion while taking these medications. Her
hospital records enlarged upon this admission, reflecting that she had abused alcohol with
the medications several times.
Medical records compiled by various physicians and medical staff that treated Wife
contained documentation of statements made by Wife that she was planning to commit
suicide or otherwise to harm herself. Husband testified that Wife had attempted suicide
on three occasions either by overdosing on her medication or by drinking alcohol with her
medication. Wife, however, denied that she had ever contemplated suicide. When asked
by opposing counsel and the court about the discrepancy between her testimony and her
medical records regarding her suicidal tendencies, Wife replied that the doctors had just
"made it up." In March of 1993, Wife had a car wreck that occurred as a result of
overmedication. Wife also admitted to having smoked marijuana during the parties'
marriage.
Wife's last hospitalization was in March of 1993. Her treating physician, Dr. Ebert,
stated in his deposition that since that time, her eating disorder was improving. Dr. Ebert
thought that it was possible that the disorder would resolve completely.
Wife presented evidence that Husband had whipped the older son, Stephen, in an
excessive and abusive manner on several occasions. She specifically mentioned one
incident where Husband repeatedly whipped Stephen with a belt. When Wife tried to stop
him, he pushed her down. Husband did not deny that this incident occurred. The following
day, Wife had Husband arrested for child abuse. At the time of the trial, no formal charges
had been brought against Husband.
The trial court held that based upon the evidence of Wife's problems, Husband was
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entitled to custody of both children. The judge cautioned Husband about whipping the
children and recommended that he read some books on disciplining children. The court
also awarded Husband the marital residence and the majority of the parties' personal
property. In return, Wife was awarded $25,000 cash, along with certain items of personal
property contained on a list that she had prepared.
II.
Wife argues that the court's division of marital property was not equitable for several
reasons. First, she contends that the court erred in electing not to award to her any of the
increase in value of the marital residence. Second, she takes issue with court's failure to
award to her any of Husband's pension. Finally, she contends that the court considered
fault in its division of the marital property, which is impermissible under Tennessee law.
There are several fundamental principles of law to guide us through issues of
division of martial property. Of primary importance is the fact that trial courts have broad
discretion in dividing the martial estate, and their decisions are afforded great weight on
appeal. Fisher v. Fisher, 648 S.W.2d 244, 246 (1983). Moreover, findings of the trial court
are accompanied by a presumption of correctness, unless the evidence preponderates
otherwise. Barnhill v. Barnhill, 826 S.W.2d 443, 459 (Tenn. App. 1991). A trial court's
division of property need not be equal to be equitable, Batson v. Batson, 769 S.W.2d 849,
859 (Tenn. App. 1988), and as a general matter, courts will evaluate the fairness of a
property division by its final results. Thompson v. Thompson, 797 S.W.2d 599, 604 (Tenn.
App. 1990).
We will first address the issue of whether Wife should have been awarded any of
the increase in value of the marital residence.
Tennessee is a "dual property" jurisdiction, which requires trial courts to first classify
the parties' property as either separate or marital property before proceeding to an
equitable division of the martial estate. Batson, 769 S.W.2d at 856; Wade v. Wade, 897
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S.W.2d 702, 713 (Tenn. App. 1994). Accordingly, our initial inquiry must be whether the
trial court classified the residence correctly.
T.C.A. § 36-4-121 provides, as herein relevant, that separate property is "[a]ll real
and personal property owned by a spouse before marriage" and "[i]ncome from and
appreciation of property owned by a spouse before marriage except when characterized
as martial property...." Conversely, marital property is defined as:
all real and personal property, both tangible and
intangible, acquired by either or both spouses during
the course of the marriage up to the date of the final
divorce hearing and owned by either or both spouses
as of the date of filing of a complaint for divorce,
except in the case of fraudulent conveyance in
anticipation of filing, and including any property to
which a right was acquired up to the date of the final
divorce hearing, and valued as of a date as near as
reasonably possible to the final divorce hearing date.
(B) "Marital property" includes income from, and any
increase in value during the marriage, of property
determined to be separate property in accordance
with subdivision (b)(2) if each party substantially
contributed to its preservation and appreciation and the
value of vested pension, retirement or other fringe
benefit rights accrued during the period of the
marriage.
(C) As used in this subsection, "substantial
contribution" may include, but not be limited to, the
direct or indirect contribution of a spouse as
homemaker, wage earner, parent or family financial
manager, together with such other factors as the court
having jurisdiction thereof may determine.
T.C.A. § 36-4-121(b)(1).
Thus, according to the definition of martial property, the increase in value of
separate property will only be classified as marital property when each party substantially
contributes to its preservation and appreciation. Wade, 897 S.W.2d at 714. Although a
"substantial contribution" must be real and significant, it need not be monetarily
commensurate of appreciation. Mahaffey v. Mahaffey, 775 S.W.2d 618, 623 (Tenn. App.
1989).
In the present case, Husband's father owned the land upon which the house was
built long before the parties were married and such land has never been conveyed from
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the father to Husband. Before the parties were married, Husband built the house himself
with very little outside help. The house was valued at $70,000 prior to the parties'
marriage. After the marriage, Husband added onto the house a second story that
contained a den, a bedroom, a closet, and a bathroom. His other additions included a
garage, a greenhouse, and a patio. Husband's additions increased the value of the house
by $48,000.
At the conclusion of the trial, the judge stated:
Now then, with regard to his house. After hearing the
testimony, the history of it and how it came about and so
forth, I'm persuaded that she's not entitled to any part of
the house. It's sort of a rare thing, but this man built this
house virtually by himself, with some help from some
friends and a little bit of labor and maybe a contract to
put the heating and air in or something, which isn't very
much. I'm sure she likes it, it was her home.
But it's his hard work and sweat. He's built it on
his father's property, and I can't see that she's entitled to
any part of it. She is entitled to some monetary
compensation because of other assets they've
accumulated during their marriage, and I've taken a look
at that, and I order that he pay her the sum of $25,000.
It appears from the judge's statements that he did not find either the residence or
the increase in value of the residence to be marital property.
We agree that the house was separate property of Husband because he owned
and built the house before the parties married. It follows that Wife would only be entitled
to part of the increase in value upon a showing of substantial contribution to its
preservation and appreciation. As the trial court noted, this is an unusual case because
Husband built the house by himself with virtually no outside help. However, there is
evidence in the record that Wife was a homemaker during most of the marriage, and that
she performed the majority of the household chores, such as cooking and cleaning. These
acts are sufficient under existing law to constitute a "substantial contribution." T.C.A. §36-
4-121 (b)(1)(c). Wife is thus entitled to an equitable division of the appreciated value of
this property. Accordingly, we must remand this issue to the trial court to make an
equitable distribution pursuant to the factors delineated in T.C.A. §36-4-121(c).
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We now turn to the court's distribution of the remaining martial property.
The following table illustrates our understanding from the record of the court's distribution
of assets:
DISTRIBUTION OF MARITAL PROPERTY
ASSETS HUSBAND WIFE
Increase in Value of Residence 48,000 -0-
Automobiles/Vehicles:
1992 Ford Crown Victoria 19,900 -0-
1987 GMC Truck 6,950 -0-
Honda 4-Wheeler -0- 3,000
Household Goods1 3,000 4,000
Tools/Farm Equipment 13,292 50
Checking/Savings Accounts 2,688
Garden/Farm Crops 1,500
Job-Related Assets:
(a) DuPont Savings Plan 36,626.49 -0-
(b) Stock Plan 3,895.00 -0-
(c) Pension/Retirement Plan2 851.00/month -0-
DEBTS
Car loan 11,011 -0-
Castner Knott bill 500 -0-
Dental/Medical bills 2,088 -0-
CASH SETTLEMENT TO WIFE 25,000
TOTAL 122,252.49 32,000
Wife asserts that the trial court erred in failing to award her any share of Husband's
pension.
The law is well-established that the value of a spouse's pension that accrues during
a marriage is marital property, regardless of whether the non-employee spouse made any
1
Precise value of household goods and furnishings cannot be determ ined from the record. The above
figure constitutes an approximation based upon the figures available in the record.
2
The pre sent value of Husband's pension plan was not introduced at trial.
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contribution to the pension's value. Batson, 769 S.W.2d at 856; Kendrick v. Kendrick,
No. 01-A-01-9305-CH-00207, 1994 WL 642775 (Tenn. App. Nov. 16, 1994). Accordingly,
T.C.A. § 36-4-121(b)(1) provides that "marital property" includes income from, and any
increase in value during the marriage of ... the value of vested pension, retirement or other
fringe benefit rights accrued during the period of the marriage."
Furthermore, recent case law holds that nonvested retirement benefits are also
marital property that is subject to division in a divorce action, even though nonvested
benefits are not mentioned in the statute. See, T.C.A. § 36-4-121(b)(1)(B); Towner v.
Towner, 858 S.W.2d 888, 891 (Tenn. 1993); Cohen v. Cohen, No. 01A01-9402-CV-
00464, 1995 WL 273656 (Tenn. App. May 10, 1995), perm. to app. granted 10/16/95.
There are two methods that have been recognized and approved by this Court for
valuing and distributing pensions. The choice is discretionary depending upon the facts
of each case. Cohen, 1995 WL at *5. The first is the present value method, where the
court places a present cash value on the interest that has been acquired in the pension
during the time that the parties were married. Kendrick, 1994 WL 111027, at *5. After
the court calculates the present cash value, it should award the pension to the employee
spouse and award marital property of equal value to the other spouse Id.; Mahaffy v.
Mahaffy, 1989 WL 128 923, at *3 (Tenn. App. 1989).
The second method is the retained jurisdiction method, which requires the court to
maintain jurisdiction over the case and to divide the interest in the pension when it
matures. Kendrick, 1994 WL 111027 at *5. This Court further elaborated upon this
method in Kendrick, stating:
In some jurisdictions, the courts use this method to determine
the nonemployee spouse's share in advance and then enter
an order identifying the portion that the spouse will receive if
and when the employee spouse begins drawing his or her
retirement benefits. The nonemployee spouse's share is
commonly expressed as a fraction or percent of the employee
spouse's monthly pension benefit. (citations omitted)
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In the case at bar, the only evidence presented to the lower court establishing the
value of Husband's pension was that at the date of the divorce trial, Husband would be
eligible to receive $851.00 a month upon reaching age 65. Neither party attempted to
place a present value on this pension, nor did the court request it. Also, the court did not
mention Husband's pension interest in its discussion of the division of marital property.
We therefore remand this case to the trial court with instructions to value and consider
Husband's pension as martial property and to award some portion thereof to Wife in a
manner consistent with the foregoing discussion.
Wife next contends that the trial court impermissibly considered fault in its
distribution of property.
At trial, after the Husband and Wife had testified, the judge stated that before other
witnesses testified, he wanted to get down to the "meat of the coconut" and divide the
property. Wife prepared a list of all of the items of personal property that she wanted and
Husband agreed that she could have everything on the list. Husband took the remainder
of all property that was not listed by Wife. The Court then spoke to the parties' attorneys
in an attempt to arrive at a dollar figure to award to Wife that was adequate to offset the
large disparity in the division of the property in favor of Husband. The Court stated:
I'm not saying that it's an equal dollar value thing, I'm
saying that given all the factual situation in this case,
what he brought in, what she brought in, what they've
done, where it came from, the whole nine yards, the
length and duration of their marriage, their relative
degrees of fault as the case may be, what is an
amount of money that in this case is appropriate for him
to pay her to balance it off?
The meat of this coconut is to decide how much money
is this man going to have to pay this woman going out
of the marriage. Obviously taking into consideration all
of the factors that apply in any divorce case with regard
to the division of a couple's assets, the length of the
marriage, their durations, fault and all those things that
normally go into that decision.
I'm simply telling you that she wants certain things, he
says she can have them, she's got them. He's got
everything else and we've got to decide how much
money she's entitled to get...I'm saying she's got very
little. Look at how long they've been married, who's at
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fault, so forth, the source of what they've got and all.
It is evident from the record that the judge considered fault in making his distribution
of marital property. Tennessee law unequivocally holds that marital fault may not be
considered as a factor in the division of marital property. Kelly v. Kelly, 679 S.W.2d 458,
462 (Tenn. App. 1984); T.C.A. § 36-4-121(a) (providing that martial property should be
equitably divided without regard to fault).
T.C.A. § 36-4-121(c) sets forth the factors a court should consider when making an
equitable division of marital property:
(c) In making equitable division of marital property, the court
shall consider all relevant factors including:
(1) The duration of the marriage;
(2) The age, physical and mental health, vocational skills,
employability, earning capacity, estate, financial liabilities and
financial needs of each of the parties;
(3) The tangible or intangible contributions by one (1) party to
the education, training or increased earning power of the other
party;
(4) The relative ability of each party for future acquisition of
capital assets and income;
(5) The contribution of each party to the acquisition,
preservation, appreciation or dissipation of the marital or
separate property, including the contribution of a party to the
marriage as homemaker, wage earner or parent, with the
contribution of a party as homemaker or wage earner to be given
the same weight if each party has fulfilled his or her role;
(6) The value of the separate property of each party;
(7) The estate of each party at the time of the marriage;
(8) The economic circumstances of each party at the time the
division of property is to become effective;
(9) The tax consequences to each party; and
(10) Such other factors as are necessary to consider the
equities between the parties.
T.C.A. § 36-4-121(c).
Under the terms of the governing statute, the lower court may properly consider the
following items of evidence in making a distribution of the property:
(1) The parties were married twelve years;
(2) Wife is in poor physical and mental health, has a high school education, and had a much
smaller estate prior to the marriage;
(3) Wife does not appear to be capable of securing employment at substantially above
10
minimum wage; Husband makes $40,000 a year;
(4) Wife was the primary spouse that cooked, cleaned, and cared for the children during
their marriage;
(5) The tax consequences to each party regarding Husband's job-related assets.
This case is remanded with instructions to the lower court to divide and distribute the
martial property without regard to fault, and to consider the above factors in making its
determination.
III
Wife argues that the lower court erred in granting custody of both children to
Husband. Wife contends that because Husband was not the natural father of David, the
court should have awarded custody to Wife in the absence of a showing that she is unfit.
Assuming that Husband is not the natural father of David, Wife is correct that a
custody analysis should not proceed under the usual "best interest of the child" analysis.
The proper standard to be applied in a custody dispute between a natural parent and one
who is not a natural parent was espoused by the Tennessee Supreme Court in three recent
decisions.
The first of these decisions was Bond v. McKenzie, 896 S.W.2d 546 (Tenn. 1995),
in which the custody dispute was between an adoptive couple and the natural mother. The
Court relied upon its previous decisions in Hawk v. Hawk, 855 S.W.2d 573 (Tenn. 1993), and
Nale v. Robertson, 871 S.W.2d 674 (Tenn. 1994), in holding that there exists a constitutional
privacy right in the parent-child relationship. Id. at 547. Because of this right to privacy, the
Court held, a state will lack a sufficiently compelling justification to interfere with the parent-
child relationship when no substantial harm threatens the child's welfare. Id. at 548 (citing
Hawk, 855 S.W.2d at 577). The Court succinctly stated the custody rule as follows:
[I]n a contest between a parent and a non-parent,
a parent cannot be deprived of the custody of a
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child unless there has been a finding, after notice
required by due process, of substantial harm to
the child. Only then may a court engage in a
general 'best interest of the child' evaluation in
making a determination of custody.
Id. at 548.
The second decision was Petroskey v. Keene, 898 S.W.2d 726 (Tenn. 1995), where
the child's natural father and the child's maternal grandmother battled for custody. Id. at
727. The Court set out the law from Bond and held that the natural father was entitled to
custody because there was no evidence that the child was in danger of substantial harm in
his custody. Id. at 869. Therefore, the Court held, a "best interest of the child" determination
was not necessary. Id.
Finally, in Simmons v. Simmons, 900 S.W.2d 602 (Tenn. 1995), the Court held that
in a visitation dispute between the natural mother and adoptive husband and the parents of
the natural father, a court must engage in the threshold inquiry of whether there exists the
danger of substantial harm to the child before proceeding to a best interest analysis. Id. at
684.
The effect of these decisions is to obligate a court first to determine whether a child
would be exposed to a danger of substantial harm in the custody of the natural parent. If the
answer to this initial inquiry is no, then a best interest of the child analysis will be precluded
and custody will remain with the natural parent. If, on the other hand, there is a finding of
substantial harm to the child, a court may then engage in a best interest of the child
evaluation to determine custody. Bond, 896 S.W. 2d at 548.
The above decisions had not been rendered at the time of the trial and thus, the trial
court did not make an explicit finding that the child was in danger of substantial harm. The
court did, however, fully explain its rationale for its awarding custody to Husband. The judge
stated:
[B]ased upon all the proof before the Court, I absolutely
cannot in good conscience award custody of these
children to this woman. I'm aware that her family loves
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her, I'm aware she loves her children. But how in the
world, in the choice between this man and her, can I give
these children to this woman who has been in and out of
various hospitals, who has all these medical problems,
has taken 20 some odd different medications, who
abuses laxatives, takes 15 to 20 laxatives a day, one of
these records shows 20 a day and so forth, who is
anorexic, who lets her weight get way down and has to
be admitted. And she's out and she's readmitted, and
takes all these drugs on depression. She's on this drug;
she had this car wreck; she says you can drink alcohol
with it...I can't turn these children over to somebody like
that. ..She doesn't know when she's going to go off on
one of these tangents. If she's got the children and
she's at herself, fine. But what if she goes into one of
these fits of depression? What if she starts taking a
bunch of drugs? What if she's on drugs and drinks?
What if she gets out and has a wreck and kills the kids
or does something else to them? She is simply not
stable enough...
Where a trial judge has reached the correct result, it will not be reversed because
he may have predicated it on an erroneous reason. Pearson v. Garrett Financial Services,
Inc., 849 S.W.2d 776, 780 (Tenn. App. 1992). The judgment may simply be affirmed on
the proper basis. Allen v. National Bank of Newport, 839 S.W.2d 763, 765 (Tenn. App.
1992).
It is apparent from the judge's statements that while he did not make a specific
finding of substantial harm to the children, he implicitly found the children to be in danger
of substantial harm with the Wife. Regardless of which standard the court applied, custody
of the children belongs with the Husband. This result is substantiated by ample evidence
in the record. We therefore affirm the court's award of custody of both children to
Husband.
For the foregoing reasons, the judgment of the trial court is affirmed in part and
reversed in part, and the cause remanded for further proceedings consistent with this
opinion. The costs of appeal are assessed equally against both parties.
HIGHERS, J.
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CONCUR:
CRAWFORD, P.J., W.S.
FARMER, J.
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