Brenda Dianne Cook Rayfield v. Tony Dale Rayfield ( 2014 )

0IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
February 4, 2014 Session
BRENDA DIANNE COOK RAYFIELD v. TONY DALE RAYFIELD
Appeal from the General Sessions Court for Blount County
No.5-17409 Robert L. Headrick, Judge
No. E2013-00745-COA-R3-CV-FILED-MAY 6, 2014
This appeal arises from a divorce action. The husband appeals the trial court’s division of
marital property and debt and the award of compensatory and punitive damages to the wife
for injuries she allegedly sustained at the hands of the husband. We affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the General Sessions Court
Affirmed; Case Remanded
J OHN W. M CC LARTY, J., delivered the opinion of the Court, in which D. M ICHAEL S WINEY
and T HOMAS R. F RIERSON, II, JJ., joined.
Kevin W. Shepherd, Maryville, Tennessee, for the appellant, Tony Dale Rayfield.
Craig L. Garrett, Maryville, Tennessee, for the appellee, Brenda Dianne Cook Rayfield.
OPINION
I. BACKGROUND
Brenda Dianne Cook Rayfield (“Wife”) and Tony Dale Rayfield (“Husband”) married
in December 1994. It was the third marriage for both. The couple remained married for 16
years. Wife filed her complaint for divorce on August 30, 2010. At the time the marriage
ended, Wife was 60 and Husband was 52.
Property
Each party came into the marriage with items of separate property. Wife owned a
home located at 1203 Scenic Hill Drive in Louisville, Tennessee. She had resided there since
1982. The home had been owned by Wife and her prior husband, and she received it in a
1991 divorce.
Wife also owned an apartment complex consisting of four buildings, known as “Little
River Heights” in Rockford, Tennessee. The complex totaled 22 units, but apparently one
building had suffered some water damage and the six units in it were not rentable.
According to Wife, no major improvements had been made to the apartments during the
marriage except a new roof. She claimed the apartments were not in good shape as of the
date of the divorce hearing. Wife indicated that the apartments came into the marriage with
debt but always generated cash flow – the debt owed on them was paid out of the rental
income they produced. She stressed that no money from the marital estate had ever been
spent on the apartments. Wife testified that in 2011, approximately 16 units per month were
rented at the rate of $425 per month. At the time of trial, Wife only had 8 units rented.
Husband came into the marriage with a business he held as a sole proprietorship,
known as East Tennessee SuperVac. This business primarily provided maintenance, parking
lot sweeping, landscaping, and snow removal services for Tanger Outlet Mall (“Tanger”) in
Pigeon Forge, Tennessee, on a year-to-year contract. The couple worked together at the
business during the marriage, grossing over $400,000 on an annual basis.
Husband and Wife lived a comfortable lifestyle. Wife had several cosmetic surgery
procedures, including a tummy tuck, leg lift, and face lift with brow lift. Husband had
liposuction performed. They borrowed $150,000 to remodel and upgrade the Scenic Hill
Drive house. In February 2007, they purchased a home at 1216 Crest Hill Drive in
Louisville, adjacent to the home Wife already owned.
IRS Debt
Despite having significant cash flow, Husband and Wife – each blaming the other –
failed to pay their taxes to the Internal Revenue Service (“IRS”) for tax years 2000-2007.
In November 2009, they were notified that a tax obligation was due in the amount of
$422,000. Wife subsequently began satisfying the IRS obligation. From February 5, 2010,
through March 16, 2012, she paid the IRS $441,232.87. Husband does not dispute that Wife
made all of these payments.1
1
Wife attempted to obtain an agreement with the IRS whereby she could pay in installments, but
Husband would not fill out the required Form 433.
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In order to secure the funds to repay the IRS, Wife refinanced the Scenic Hill Drive
home through Citibank and obtained $190,000. Due to the high interest rate on the Citibank
loan, Wife refinanced again with First Tennessee Bank to obtain a lower interest rate.
During the refinancing process, it appears that Husband’s name was placed on the deed to
Wife’s house without her knowledge. She related at trial that she did not know how that
happened and never had any intention of putting Husband’s name on the deed to her home.
Wife also paid two payments of $20,000 and $55,000 to the IRS in May and June of 2011
from money she had inherited during the marriage. Wife inherited $60,000 from her mother
and $189,000 from her cousin. She related that a series of $2000 payments she made to the
IRS were paid by monies she earned during 2011 and 2012, after the parties separated.
During the time period that Wife was addressing the tax obligations, the Scenic Hill
Drive home suffered fire damage. On April 27, 2011, at approximately 4:00 a.m. while Wife
was asleep, a fire started in the basement of the home. Wife used the insurance proceeds
from her fire claim to pay $90,000 to the IRS in January 2012.
Several hours later, on the same day, Wife’s house also was severely damaged during
a wind and hail storm. Damage to the home included broken windows in the front of the
house and considerable damage to the exterior deck and roof. Wife paid the IRS $50,000 in
insurance proceeds from the storm damage claim in March 2012.
As Wife used the insurance proceeds to pay the IRS, the repairs to the Scenic Hill
Drive home were incomplete at the time of trial. Wife had made repairs to the home as she
was able, using her own income and credit cards. The repairs included having Servpro gut
the entire basement, her bedroom, and a bathroom down to the studs. At the time of the trial,
Wife reported that the sheetrock had been replaced but had not been finished and painted.
She had also replaced the windows and the back deck. According to Wife, the house still had
a damaged roof.
To make what Wife believed to be the final payment to the IRS, she borrowed
$20,000 from her best friend, Judy Moss, shortly before the trial. Wife testified that she had
not been notified that the debt was satisfied, and she acknowledged that an amount might be
left owing. The total amount paid to the IRS by Wife was $441,223.87.
Affair
Wife related that it was during Summer 2010 when she became suspicious that
Husband was having an affair. According to Wife, Husband was often absent from work at
Tanger without explanation. She stated she found unexplained receipts from cabin rentals
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and noticed that Husband would hide in the shower or closet to use his phone. Wife also
observed that Husband would sit out in his vehicle texting for long periods after he came
home from work. She began reviewing her spouse’s e-mails and text messages, at which
time her suspicions were confirmed when she discovered e-mails containing professions of
love between Husband and Jessica Valentine. Wife asserted that she confronted Husband
when she learned that he was planning to divorce her. Later that summer, when Husband
was away on a trip, Wife moved his possessions out of the marital home into the Crest Hill
Drive house. The separation occurred on July 28, 2010. During the pendency of the divorce,
Wife continued paying the Crest Hill Drive mortgage payments, despite Husband moving
Ms. Valentine into the home.
Assault
Prior to her filing of the divorce complaint, Wife claims that on August 23, 2010,
Husband assaulted her. Wife alleged that she was in her Scenic Hill Drive home around 3
p.m. when Husband arrived, rang the doorbell, and asked to pick up some tools and a guitar.
Wife stated that she told him she would not let him in and “to let the court settle” such issues.
According to Wife, Husband became enraged, shoved his way into her home, grabbed her
by her hair, threw her down some stairs, slammed her head against the steps, threatened her,
swung a decorative statue at her, and told her that he was going to “bash her brains in.” She
related that Husband had his hands over her face, and she was finally able to get free from
him when she bit his finger. She called 911, along with her best friend Ms. Moss. Wife
claimed that while the police were at her house, she received a text message from Husband
that stated, “I’m so sorry . . . forgive me and my wrongs.” However, she could establish no
proof of the text. Ms. Moss testified that she was unaware of the text message.
Dr. Roger Gaddis, an emergency clinic physician, evaluated Wife on August 23, 2010,
at 4:35 p.m. She advised him that she had been involved in an altercation with Husband and
was pushed down the stairs and hit with a statue. He found swelling in her right jaw and a
loose lower right bridge in her mouth. While her injuries required no treatment by him, he
acknowledged that the knots on the back of her head and the bruising on her right jaw were
recent in origin and had occurred, in his opinion, within the previous 1-2 days. He diagnosed
Wife with a clinical impression of assault.
Dr. David Rudder, Wife’s dentist, saw her approximately eight days after the incident.
Dr. Rudder opined that tooth 28 in Wife’s right lower jaw had a definite fracture and that her
bridge required replacement. He admitted that he could not tell the court how long the
fracture in tooth 28 had been there or what caused it. Wife’s treatment lasted several months
and required a root canal and the placement of implants.
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At trial, Husband claimed the assault never happened. He asserted that within a few
weeks of the alleged incident, he had been required to call the police twice. Husband stated
that someone had broken into his truck and stolen his phone. According to Husband, Wife
later admitted that she had committed the break in. Shortly thereafter, Husband contended
that he called the police again because Wife was kicking the back door and throwing bottles
against his house. Husband asserted that after kicking the door several times, Wife had fallen
backward down the deck steps. He claimed this incident occurred approximately four days
before the alleged assault.
Husband and his co-worker, John Bernard, related similar stories of the events of
August 23, 2010. They claimed it was 2:30 p.m. when they clocked out at Tanger. Traveling
in two vehicles, they first went to O’Reilly’s Auto Parts in Seymour to get a belt for a
compressor they had removed from work and were taking to Husband’s home. They drove
to Crest Hill Drive to unload the compressor and “fiddle” with it for a few minutes. Husband
also retrieved a payroll check out of his mailbox that Wife had placed there earlier. Bernard
subsequently left, and Husband drove to a bank about seven miles away to cash the check.
The back of the check revealed that it was processed by the bank at 3:29 p.m.
Husband denied ever going to Wife’s home during the relevant time frame. He
testified that he called her after leaving the bank to thank her for the payroll check, at which
time a police officer answered. Husband stated he drove straight home to wait for the police.
The officer, upon arrival, commented on Husband’s bandaged finger as proof of the assault.
Husband informed the officer that his finger was injured three or four days earlier at work
and that Wife was aware of that fact. Nevertheless, he was arrested and thereafter served
with an order of protection.
Due to the order of protection, Husband was unable to return to work at East
Tennessee SuperVac. Bernard, however, continued to work there. During that time, Bernard
asserted that Wife threatened him and other staff that they would be fired if they talked to
Husband. Bernard claimed that Wife subsequently approached him and offered him $25,000
to cut Husband’s brake lines. According to Bernard, when he came to court with Husband
on one occasion and was seen by Wife, she fired him.
Jessica Valentine
Husband observed at trial that the couple’s marriage had been nothing more than a
“business relationship” for approximately five years prior to the separation, with each
sleeping in separate bedrooms. He admitted to the romantic relationship with Ms. Valentine,
but he claimed their first sexual encounter was after he moved out of the marital residence.
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Husband conceded that the parties separated on July 28, 2010, and that the e-mails introduced
at trial were dated June 5 and 6, 2010, but he claimed the e-mails wherein he and Ms.
Valentine professed their love for one another and their plans to divorce their spouses
occurred before he and Ms. Valentine ever had sex. He further admitted that he bought
jewelry for Ms. Valentine, including a ring, two necklaces, and earrings, but he could not
relate the exact prices for the items. Husband acknowledged that he opened an account at
a jewelry store in October 2010, and ran up the account balance to $4,374. He stated that not
all of that total was spent on Ms. Valentine, suggesting that some of the jewelry purchases
were for his mother. At the time of the divorce hearing, Ms. Valentine was living with him
at Crest Hill Drive. He acknowledged that she was not paying any rent or utilities and that
he was buying their groceries.
Wife called Ms. Valentine as a witness. The 25-year-old admitted that she had been
living with Husband at Crest Hill Drive. She testified that she and Husband had been dating
since August 2010. She claimed that she and Husband first became sexually involved around
that same time, despite the romantic e-mails dated June 5 and 6, 2010. Ms. Valentine stated
that when she began the relationship with Husband, she was under the impression that he was
ready to start divorce proceedings against Wife. Ms. Valentine, who also was married at the
time, left her husband and obtained a divorce in December 2010. She admitted that she and
Husband had discussed marriage and that Husband had bought several items of jewelry for
her, including two necklaces, a silver ring, and a tennis bracelet, and had taken her on trips.
Ms. Valentine acknowledged that while living with Husband, she paid no rent or utilities and
that he bought the groceries.
Ms. Valentine testified in support of Husband’s claim that Wife came to the Crest Hill
Drive house a few days before the purported assault and started kicking the doors. She
related that Wife was yelling, calling her names such as “Fat Bitch,” and saying that she
wanted to kill Ms. Valentine. According to Ms. Valentine, she did not observe whether or
not Wife fell, but she heard broken glass hitting the house during the incident.
On June 11, 2012, Wife was awarded a divorce on the grounds of inappropriate
marital conduct. The court found that the apartments were the separate property of Wife.
As to 1203 Scenic Hill Drive, the trial court held:
[T]hat said property may have both qualities as separate and marital property,
but the court finds specifically that said property currently has no equity and
in the event that it did, said equity would have been more than offset by the
Internal Revenue Service debt which has been paid by the Wife and therefore,
[Wife] is hereby awarded all of the parties’ rights, titles and interest to said
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property and the Husband is hereby divested of all interest to said property
located at 1203 Scenic Hill Drive . . . .
The court further provided:
[T]he obligation which was owed and is possibly still owing to the Internal
Revenue Service for income tax for the years 2000-2009 is a marital debt and
. . . the Wife has paid in excess of $440,000.00 on said debt. In the event that
there are additional monies owing to the Internal Revenue Service for the
parties’ taxes up until and through the tax year of 2009, the Wife shall be
responsible for said debt.
***
The Wife shall be awarded all of the parties’ rights, titles and interest to the
following: 2000 Ford Expedition automobile, 2004 Ford Ranger truck, 2002
Kawasaki motorcycle, 2001 leased sweeper, both pressure washers in her
possession, 16 ft. trailer, 12 ft. mowing trailer, outside metal furniture at her
house, all household furniture and furnishings at 1203 Scenic Hill Drive, 1995
GMC sweeper, zero turn Grasshopper mower and all of the Wife’s bank
accounts. The Wife is further awarded her additional separate property which
includes the hot tub and all of the furniture located at 1203 Scenic Hill Drive,
which she brought into the marriage.
The Wife shall pay the Discover card in her name, the Lowe’s account in her
name, the Chase Mastercard in her name, the Home Depot account in her
name, the indebtedness owed to Judy Moss, any balance owing to the Internal
Revenue Service, the balance owed on the 2001 leased sweeper, as well as any
other debts in her name.
The Husband shall be awarded all of the parties’ rights, titles and interest to
the 2004 F150 Ford truck, the Craftsman tool box, the household furniture and
furnishings located at 1210 Crest [H]ill Drive, the 1995 sweeper in the
Husband’s possession, zero turn Grasshopper mower in the Husband’s
possession, the battery charger, trimmer, chain-saw and air compressor in the
Husband’s possession and the Husband’s bank accounts. The Husband shall
also be awarded as his separate property the red tool box.
The Husband shall be responsible for his credit card debts and any other debts
solely in his name.
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The Court finds that the residence located at 1216 Crest [H]ill Drive,
Louisville, Tennessee, is marital property and Orders that the same shall be
sold and that any equity received as a result of said sale shall go to the Wife
based on the fact that she has paid the entire IRS indebtedness and this
indebtedness to the IRS more than offsets any equity available from the sale
of this property. The Wife shall have the exclusive right to prepare this
property for sale and to market the same. The Husband shall vacate said
residence by May 1, 2012, and the Wife shall have exclusive right to the
possession of said residence pending its sale. Upon the Husband vacating said
residence, he shall bring all keys and garage door openers to his attorney who
shall furnish said keys and garage door openers to the Wife’s attorney for
delivery to her.
As to Wife’s tort action, the court further ruled:
The Wife has raised a tort claim against the Husband seeking judgment as a
result of an assault and battery and the Court hereby finds that the Husband did
commit assault and battery against the Wife and awards to her compensatory
damages in the amount of [$13,284.10]. The Wife shall have judgment in the
amount of [$13,284.10] against the Husband . . . for which execution may
issue if necessary.
The Wife further raised in her tort claim a claim for punitive damages and the
Court hereby reserves the issue of whether or not to award punitive damages
and the amount thereof, conditioned upon the Husband’s full compliance with
the Court’s Order and the Court’s further consideration of the evidence
previously received. The parties shall schedule a time to come back before the
Court for the Court’s ruling on this issue.
A motion to alter or amend judgment was filed by Wife raising two issues. The first
issue dealt with the Crest Hill Drive house. In the motion, Wife asked the trial court to award
her the home and not force it to be sold due to the state of the housing market at that time.
The second issue raised by Wife addressed the trial court’s award of compensatory damages
in the tort claim. The amount of $13,284.10 originally ordered equaled the cost of Wife’s
out-of-pocket medical bills incurred and did not include any award for pain and suffering,
loss of enjoyment of life, and permanent impairment. Wife requested the trial court
reconsider and award her additional compensatory damages based on those factors.
After a hearing, Husband agreed with Wife’s request that she be awarded the Crest
Hill Drive house, rather than ordering it be sold. As to the issue of compensatory damages,
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the trial court increased the amount awarded to Wife to $38,284.10. On the punitive
damages issue, the court awarded Wife $10,000. Husband filed a timely appeal, but no
transcript of the hearing on the motion to alter or amend was included in the record.
II. ISSUES
Husband raises the following issues on appeal, which we restate as follows:
a. Did the trial court make an inequitable division of property;
b. Did the trial court correctly award compensatory and punitive damages for
Wife’s alleged personal injury.
III. STANDARD OF REVIEW
We review a trial court’s factual findings de novo on the record, affording the trial
court’s findings a presumption of correctness, and we will not reverse the trial court’s
findings unless the evidence preponderates against them. Tenn. R. App. P. 13(d); Berryhill
v. Rhodes, 21 S.W.3d 188, 190 (Tenn. 2000). Questions of law are reviewed de novo
without the presumption of correctness. See Langschmidt v. Langschmidt, 81 S.W.3d 741,
745 (Tenn. 2002).
We give great weight to the factual findings of the trial court which rest on
determinations of witness credibility. Randolph v. Randolph, 937 S.W.2d 815, 819 (Tenn.
1996). Accordingly, we will not reevaluate a trial judge’s assessment of witness credibility
absent clear and convincing evidence to the contrary. Wells v. Tenn. Bd. of Regents, 9
S.W.3d 779, 783 (Tenn. 1999).
The trial courts are vested with a great deal of discretion when classifying and
dividing a marital estate. Typically, the trial court’s decision will not be disturbed on appeal
unless the decision is contrary to the preponderance of the evidence or is based on an error
of law. Sullivan v. Sullivan, 107 S.W.3d 507, 512 (Tenn. Ct. App. 2002).
IV. DISCUSSION
“Tennessee is a ‘dual property’ state because its domestic relations law recognizes
both ‘marital property’ and ‘separate property.’” Larsen-Ball v. Ball, 301 S.W.3d 228, 231
(Tenn. 2010) (citing Snodgrass v. Snodgrass, 295 S.W.3d 240, 246 (Tenn. 2009); Tenn. Code
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Ann. § 36-4-121). The division of the parties’ marital estate begins with the classification
of the property as separate or marital; separate property is not part of the marital estate and,
therefore, is not subject to division. Id . “The classification of property as separate or marital
presents a question of fact which must be determined in light of all the relevant
circumstances.” Welch v. Welch, No. M2013-01025-COA-R3-CV, 2014 WL 107982 (Tenn.
Ct. App. Jan.10, 2014).
Once property has been classified as marital property, the court is to place a
reasonable value on the items subject to division. Edmisten v. Edmisten, No. M2001-00081-
COA-R3-CV, 2003 WL 21077990, at *11 (Tenn. Ct. App. May 13, 2003). The parties have
the burden to provide competent valuation evidence. Kinard v. Kinard, 986 S.W.2d 220, 231
(Tenn. Ct. App.1998). When evidence is conflicting, the court may place a value on the
property that is within the range of the values presented. Watters v. Watters, 959 S.W.2d
585, 589 (Tenn. Ct. App.1997). Decisions regarding the value of marital property are
questions of fact. Kinard, 986 S.W.2d at 231.
Marital property, once valued, must be divided equitably between the parties without
regard to fault. Tenn. Code Ann. § 36-4-121(a)(1); Miller v. Miller, 81 S.W.3d 771, 775
(Tenn. Ct. App. 2001). A division of marital property in an equitable manner does not
require that the property be divided equally. Robertson v. Robertson, 76 S.W.3d 337, 341
(Tenn. 2002). An equitable division of property must reflect consideration of the factors in
Tennessee Code Annotated section 36-4-121(c). Kinard, 986 S.W.2d at 230.
IRS Debt
Husband asserts that a major determinative factor considered by the trial court was the
parties’ debt to the IRS. He contends that the debt should not have been considered because
it had been paid in full prior to the trial in this case.
Marital debt is subject to equitable division in the same manner as marital assets.
Alford v. Alford, 120 S.W.3d 810, 813 (Tenn. 2003). In Alford, the Tennessee Supreme
Court defined marital debt consistent with the definition of marital property, which is defined
by statute as property acquired by either spouse during the course of the marriage up to the
date of final hearing and owned by either or both spouses as of the date of the filing of the
complaint for divorce. Tenn. Code Ann. § 36-4-121(b)(1)(A). Debts incurred by either or
both spouses during the course of a marriage are properly classified as marital. Id., 120
S.W.3d at 811. They include debts incurred up to the date of the final divorce hearing. Id.
at 813.
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The IRS debt was clearly marital. Three payments totaling $198,232.87 were paid on
the debt by Wife prior to the date of the filing of divorce in August 2010. Wife paid
$243,000 in additional payments after the divorce complaint was filed but before the date of
the final hearing. Significantly, despite Husband’s position regarding the extinguishment of
the debt, the record does not reflect that the IRS ever made a determination that it had been
satisfied.
Upon review of the record and in consideration of the relevant statutory provisions,
we are satisfied that the court did not abuse its discretion in its ruling regarding the debt.
Separate Versus Marital Property
Husband contends the trial court did not clearly classify the parties’ separate property
from the marital property. There were two significant assets owned by Wife prior to the
marriage – the apartment complex and 1203 Scenic Hill Drive. Husband argues that a
relevant issue was whether either of these assets increased in value during the marriage and,
if so, whether any equity should be considered as marital property.
Assets owned by a spouse prior to marriage are to be considered the separate property
of that spouse. Tenn. Code Ann. § 36-4-121(b)(2)(A). However, Tennessee Code Annotated
section 36-4-121(b)(1)(B) includes as marital property any income from and any increase in
value during the marriage of property determined to be separate property if each party
substantially contributed to its preservation and appreciation. In order to prove an increase
in the value of separate property, a non-owner must present evidence that proves the value
of the separate asset prior to marriage. Cutsinger v. Cutsinger, 917 S.W.2d 238, 241 (Tenn.
Ct. App. 1995). If there is no proof of the value of a separate asset before the parties
married, a court has no legitimate basis to determine that an asset has appreciated. Id.
Wife observed that throughout the marriage, Husband did very little work on the
apartments other than occasionally mowing. However, Husband contended that he had
painted, cleaned, mowed, and put carpet down, thereby evidencing that he had preserved and
maintained the value of the apartments. He offered no witnesses and gave no testimony as
to the value of any investment he put into the apartments or the actual value of the complex
at the time of the parties’ marriage or at the time of the divorce hearing. Husband’s name
was never placed on the apartments. He did not file a statement of marital assets and
liabilities with values and only testified as to limited values dealing with the two houses. In
light of the lack of proof before it, the trial court was under no obligation to do anything
further after ruling that the apartments were Wife’s separate property.
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As to 1203 Scenic Hill Drive, the trial court specifically stated as follows:
I do further find in these unique situations in light of the act of God, as well as
the tragedy that occurred as far as the residence is concerned on the fire, that
no equity exists in that residence . . . . Again, whatever equity there might
have been in the property no longer exists. Even if it did, it’s got to be offset
by the substantial IRS debt based on all of the proof that I have received. . . .”
At the time of the refinance in June 2010, 1203 Scenic Hill Drive appraised at
$335,000. In April 2011, however, both fire and storm damage occurred to the property.
Wife received insurance proceeds in the amounts of $90,000 for the fire damage and $50,000
for the storm damage. According to Wife’s testimony, very little repairs had been made, as
all of the insurance proceeds were used to make payments to the IRS. Based on the fact that
the home had not been repaired, Wife opined that it was only worth $250,000, while there
existed a mortgage indebtedness of $257,000. Husband testified that Wife had installed a
large stone patio, outdoor fireplace, new outbuilding, and a new privacy fence. He contended
that the home, despite the fire and hail damage, was worth $375,000, leaving equity in the
property of $118,000.2 This amount was $40,000 more than the house appraised for prior to
the damage.
The record supports the determination of the trial court that no equity existed in this
home. No other specific findings were required.
The last property at issue is 1216 Crest Hill Drive. Husband contends that the trial
court improperly used this marital asset to reimburse Wife for making the IRS payments. He
argues that such reimbursement is not an element found at Tennessee Code Annotated
section 36-4-121(c). According to Husband, he now grosses just $39,000 per year compared
to Wife’s annual net income that exceeds $150,000.
At the time of the divorce, Wife valued the Crest Hill Drive home at $175,000 with
a mortgage debt of $93,600. Husband opined that the home was worth around $155,000
because part of the property’s yard was re-platted and put with the Scenic Hill Drive home.
The trial court stated it was finding in accord with Wife’s proposed division of assets and
liabilities. In her proposal, Wife suggested that Husband be awarded his vehicle, certain
equipment, tools and household furnishings with a total value of $29,500. Husband was
allocated his credit card debt of $5,800, giving him a net marital equity award of $23,700.
The division to Wife included all of the equity in 1216 Crest Hill Drive, which was $84,000,
2
Husband stated that the same hail storm damaged the Crest Hill Drive house as well. Windows in
that home were broken and the roof was damaged. Husband did not file an insurance claim.
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and her vehicles and certain equipment, totaling $106,500. Wife, however, was to assume
all of the IRS liability and the following debts: Discover Card – $12,900; Lowe’s – $4,500;
Chase Mastercard – $4,600; Home Depot – $5,800; and the loan from Judy Moss – $20,000.
These debts, excluding the IRS debt, totaled $47,800, making the net marital equity awarded
to Wife $58,700.
As noted by Wife, Tennessee Code Annotated section 36-4-121(c)(5) provides that
one of the factors the court shall consider in making an equitable division is “[t]he
contribution of each party to the acquisition, preservation, appreciation, depreciation or
dissipation of the marital or separate property.” Husband engaged in actions that dissipated
the marital property available for equitable distribution during his involvement with Ms.
Valentine. It further is undisputed that the IRS was taking action to collect the debt which
put all of the assets at risk. The couple was denied an opportunity to resolve the debt with
collection alternatives being offered because Husband would not cooperate by filling out the
required Form 433A. But for the actions of Wife, there would be no marital property, as the
parties would have lost everything that they had. In our view, the trial court properly
determined that the award of $58,700 of the marital estate to Wife versus $23,700 awarded
to Husband was a fair and equitable division.
Damages Award
Husband complains that the trial court erred in awarding $38,284.10 in compensatory
damages and $10,000 in punitive damages. He complains that the trial court made no
findings to support its ruling.
Husband failed to include in the record a transcript of the hearing of September 17,
2012, wherein the court addressed and made findings relative to compensatory and punitive
damages. Accordingly, Husband failed to comply with Tennessee Rules of Appellate
Procedure Rule 24(b). When an appellant fails to produce a record of trial, it is presumed
that the evidence supports the ruling of the trial court. Bishop v. Bishop, 939 S.W.2d 109
(Tenn. Ct. App. 1996).
Wife testified that the assault was frightening and the injuries which she received were
painful. She suffered permanent injury from a fractured tooth below her gumline. Protracted
and long-term dental work was required, including extraction of the tooth, root canal, dental
implantation and the construction of a new bridge. Wife testified that for a period of time
she was unable to consume anything but liquids and that it was humiliating and difficult to
go through the lengthy dental procedures that were required. Wife further related a loss of
enjoyment of life in that she constantly was scared to the point that she obtained a
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surveillance system to monitor the outside of her home. The record before us reveals the
determination of the trial court was supported by a preponderance of the evidence.
In this matter, Wife filed a motion to consider post-judgment facts pursuant to Rule
14 of the Tennessee Rules of Appellate Procedure. The motion revealed that on April 14,
2013, Husband pled guilty in the Circuit Court for Blount County to the aggravated assault
against Wife. It is Wife’s “position that [Husband]’s plea of guilty wherein it was provided
that the restitution was to be paid as set out in the divorce action is certainly relevant to the
issues before this [c]ourt where [Husband] now attacks the award of compensatory and
punitive damages relating to the assault.” She further observed:
[T]he [Husband] has consistently taken the position at Trial Court and in his
Brief before this Honorable Court that this assault, in fact, did not happen.
The fact that [Husband] has now pled guilty to this charge and received three
(3) years of supervised probation [is] certainly relevant to the issues before this
Court dealing with the damages awarded in the assault.
The information presented consisted of undisputed facts that affected the position of the
parties. Inasmuch as Husband had taken the position that the assault did not happen and was
fabricated by Wife, and inasmuch as he stated in his guilty plea that restitution was to be paid
as set out in the divorce action, we grant Wife’s motion to consider the post-judgment facts.
The information further supports our finding that the compensatory and punitive damages
awards were justified.
Frivolous Appeal
Wife argues that the present appeal by Husband is frivolous. Tennessee Code
Annotated section 27-1-122 provides as follows:
When it appears to any reviewing court that the appeal from any court of
record was frivolous or taken solely for delay, the court may, either upon
motion of a party or of its own motion, award just damages against the
appellant, which may include, but need not be limited to, costs, interest on the
judgment, and expenses incurred by the appellee as a result of the appeal.
“An appeal is deemed frivolous if it is devoid of merit or if it has no reasonable chance of
success.” See Bursack v. Wilson, 982 S.W.2d 341, 345 (Tenn. Ct. App. 1998).
In this cause, where Husband questioned the trial court’s findings of fact as to the
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award of compensatory and punitive damages, he provided no appellate record to support his
argument. The party raising an issue on appeal is obligated to give the appellate court a
record that is sufficient for an appropriate review of the issues raised. Tenn. R. App. P. 24;
McDonald v. Onoh, 772 S.W.2d 913, 914 (Tenn. Ct. App. 1989). An appeal in which the
appellate court’s ability to address the issues raised is undermined by the appellant’s failure
to provide an adequate record may be deemed frivolous. Young v. Barrow, 130 S.W.3d 59,
67 (Tenn. Ct. App. 2003).
Husband likewise challenged the court’s ruling regarding property division but failed
at trial to put any evidence of the value of the apartments before the court and failed to
introduce any evidence of the value of his contributions to the apartments. As to the Scenic
Hill Drive property, the court specifically found that there was no equity in the property and
yet Husband challenged the court for not making a determination of whether the property was
marital or separate. We find that Husband’s appeal was devoid of merit. Accordingly, we
award Wife her reasonable damages incurred as a result of this appeal, including but not
limited to her attorney’s fees, costs, and expenses. The cause is remanded to the trial court
for a determination of Wife’s damages.
V. CONCLUSION
The judgment of the trial court is affirmed. This case is remanded for further
proceedings consistent with this opinion. Husband’s appeal is deemed frivolous under
Tennessee Code Annotated section 27-1-122. Costs on appeal are taxed to Tony Dale
Rayfield.
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JOHN W. McCLARTY, JUDGE
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