Janice Evans v. Thomas Evans ( 2002 )

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
November 19, 2002 Session
JANICE LEE EVANS v. THOMAS JEFFERSON EVANS, JR.
A Direct Appeal from the Chancery Court for Henderson County
No. 12472 The Honorable Joe C. Morris, Chancellor
No. W2001-03037-COA-R3-CV - Filed January 14, 2003
This is an appeal of a final decree of divorce involving issues of division of marital property,
rehabilitative alimony, child support, and admission of evidence. Wife appeals. We affirm in part,
reverse in part, and remand.
Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Chancery Court Affirmed in Part,
Reversed in Part and Remanded
W. FRANK CRAWFORD , P.J., W.S., delivered the opinion of the court, in which ALAN E. HIGHERS,
J. and DAVID R. FARMER , J., joined.
Harold F. Johnson, Jackson, For Appellant, Janice Lee Evans
Carthel L. Smith, Jr., Lexington, For Appellee, Thomas Jefferson Evans, Jr.
OPINION
Janice Lee Evans (“Ms. Evans,” “Plaintiff,” or “Appellant”) and Thomas Jefferson Evans,
Jr. (“Mr. Evans,” “Defendant,” or “Appellee”) were married on March 12, 1983. This was the
second marriage for both parties. Two children were born to the marriage, Brandley Jay Evans and
Jeffrey Lee Evans.
Ms. Evans filed a Complaint for Divorce on September 25, 1998. At that time, Ms. Evans
was 40 years old and Mr. Evans was 52. Ms. Evans’ Motion for Leave to Amend Complaint was
granted and an Amended Complaint for Divorce was filed on December 13, 1998. The Amended
Complaint for Divorce cited irreconcilable differences and inappropriate marital conduct as the
grounds. Mr. Evans answered the Complaint on January 12, 2000 and admitted all averments set
forth in the Complaint except the inappropriate marital conduct.
This case was heard in the Chancery Court of Henderson County on August 31, 2000. On
March 26, 2001, the Chancellor entered the following Findings of the Court (the “Original
Findings”):
1. The Defendant owns as his own separate property two (2) tracts of
land consisting of 169 acres. This property was inherited by the
Defendant from his mother and has a value of $124,500.00. The
Plaintiff’s name was mistakenly placed on the deed, but this Court
finds that she has no marital interest therein.
2. The parties have accumulated as marital property one-half (½)
interest in 220 acres purchased by the parties from the Defendant’s
former wife. The Plaintiff is awarded one-half (½) of the equity of
$17,925.00, in the amount of $8,962.50.1
3. The parties own 8.6 acres of pasture land in Decatur County,
Tennessee, with a value of $4,300 and no indebtedness. Therefore,
the Plaintiff is awarded one-half (½) interest in the amount of
$2,150.00.
4. At the time of the parties’ marriage, the Defendant owned a one-
half (½) interest in two (2) tracts or parcels of land consisting of 56.5
acres and 27 acres, respectively, purchased from the Defendant’s
former wife . The Wife is awarded one-half (½) of the equity of
$20,925.00, or the sum of $10,462.50.2
5. There is $25,000 in the Defendant’s 401(k) plan, and the Plaintiff
is awarded her marital interest in the amount of $12,500.
6. The Defendant owns a retirement account with the State of
Tennessee in the amount of $34,000.00, and the Plaintiff is awarded
her marital interest in the amount of $17,000.
7. The parties own certain farm equipment in the approximate
amount of $23,400.00, and the Plaintiff is awarded her marital
interest in the amount of $11,700.00.
1
This paragraph was subsequently amended in the Amendment and Additional Findings of the Court, which
was filed on October 30, 2001.
2
Paragrap h 4 was amended on April 5, 2001 in the Amended Findings of the Court. The amended version is
used herein. On October 30, 2001, paragraph 4 was completely deleted in the Amendment and Additional Findings of
the Co urt.
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8. In 1999, the parties had total sales in the amount of $111,072.39
for timber, livestock and grain sales. Out of the above receipts, the
parties spent $107,727.78 in expenses.
On April 12, 2001, the Final Judgment was entered. The Judgment granted the divorce, incorporated
the Findings of the Court, and reads in pertinent part as follows:
...Plaintiff has no marital interest in the two tracts or parcels of land
consisting of 169 acres that was [sic] conveyed to the parties by the
Defendant’s mother, and the same is awarded to the Defendant, and
the Plaintiff will execute a Quit-Claim Deed accordingly.
IT IS FURTHER ORDERED BY THE COURT that the Defendant
is awarded the two (2) tracts of land consisting of 215.9 acres and 3/4
of an acre purchased by the parties from the Defendant’s former wife,
Linda Evans, and the Defendant will pay to Plaintiff the sum of
$8,962.50 for her one-half of the equity in the same, and the Plaintiff
will execute a Quit-Claim Deed accordingly.
IT IS FURTHER ORDERED BY THE COURT that the Defendant
is awarded the Plaintiff’s marital interest in the 8.6 acres of real estate
located in Decatur County, Tennessee, and the Defendant will pay to
Plaintiff the sum of $2,150.00 for her one-half of the equity in the
same, and the Plaintiff will execute a Quit-Claim Deed accordingly.
IT IS FURTHER ORDERED BY THE COURT that the Defendant
is awarded the Plaintiff’s marital interest in the two (2) tracts of land
consisting of 56.5 acres and 27 acres respectively which the parties
purchased from the Defendant’s former wife, Linda Evans, and the
Defendant will pay to Plaintiff the sum of $10,462.50 for her one-half
of the equity therein, and Plaintiff will execute a Quit-Claim Deed
accordingly.
IV.
IT IS FURTHER ORDERED BY THE COURT that the Defendant
will pay to Plaintiff the sum of $29,500.00 representing her one-half
interest in the Defendant’s retirement and 401(k) accounts with the
State of Tennessee.
V.
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IT IS FURTHER ORDERED BY THE COURT that the Defendant
will pay to Plaintiff the sum of $11,700.00 for her one-half interest in
the marital farm equipment.
VI.
It appearing to the Court that the parties’ younger child, Jeff Evans,
will be eighteen (18) years of age on April 17, 2001, and the custody
of said child is not an issue in this case, but the parties are liable for
the support of said child until the child graduates from High School
in the class he is presently in.
IT IS ORDERED BY THE COURT that the parties provide support
for Jeff Evans until the child graduates from High School in the class
he is presently in.
VII.
IT IS FURTHER ORDERED BY THE COURT that the Defendant
assume the indebtednesses owing to the Co-op, the three (3) loans
owing to Farmers Bank, and the debt owing on the combine in which
he owns a one-half interest, and hold the Plaintiff harmless on said
indebtednesses.
VIII.
IT IS FURTHER ORDERED BY THE COURT that the Plaintiff is
not awarded alimony, rehabilitative or otherwise, because the Plaintiff
is capable of making her own living without an alimony award.
On April 19, 2001, Ms. Evans filed a Motion for Clarification, for Additional Findings of
Fact and Conclusions of Law, or in the Alternative, for a New Trial (the “Motion”). The Motion
reads in pertinent part as follows:
Plaintiff, JANICE LEE EVANS, respectfully moves the Court for
...the factual basis and conclusions of law for the granting of the
divorce to the parties;... for the factual basis and conclusions of law
for the failure of the Court to decree child support for the younger
child of the parties until the younger child of the parties, Jeffrey Lee
Evans, graduates from high school; for the factual basis and
conclusions of law for the failure of the Court to address the
retroactivity of child support for the period of time that the younger
child resided with the Plaintiff after emancipation of the older child
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of the parties; for the factual basis and conclusions of law to award
alimony or the failure of the award thereof; for specific findings of
fact and conclusions of law for the failure of the Court to determine
the responsibility of medical insurance coverage for the minor child
of the parties; for specific findings of fact and conclusions of law that
the Plaintiff’s name was mistakenly placed on a deed of conveyance
of real property from Defendant’s mother to the Plaintiff and
Defendant; for specific findings of fact and conclusions of law as to
the source of the value of the real property referred to in numerical
paragraph 2 of the Findings of the Court; for specific findings of fact
and conclusions of law as to the value of the real property referred to
in numerical paragraph 3 of the Findings of the Court; for the factual
basis and conclusions of law for the failure of the Court to address the
depletion of jointly owned assets since the separation of the parties;
for the factual basis and conclusions of law for the failure of the
Court to address the division of personal property belonging to the
parties; for specific findings of fact and conclusions of law to indicate
the basis for the Court’s decision as to the value of the farm
equipment; for the specific findings of fact and conclusions of law as
to the Court’s Findings that the parties spent $107,727.78 in
expenses, or in the alternative, that the Court grant a new trial in this
matter on all issues...
In response to Ms. Evans’ Motion, the trial court entered an Amendment and Additional Findings
of the Court on October 20, 2001 (the “Amended Findings”). The Amended Findings deleted
paragraph four (4) of the Original Findings of the Court and amended paragraph 2 of the Original
Findings to read as follows:
2. The parties have accumulated as marital property one-half (½)
interest in four (4) tracts of land, 215.9 acres, 3/4 acre, 56.5 acres, and
27 acres, respectively, said one-half (½) interest purchased by the
parties from the Defendant’s former wife. The Defendant is awarded
the Plaintiff’s interest in said four (4) tracts of land, and the Plaintiff
is awarded one-half (½) of the $38,850.00 equity, or the sum of
$19,425.00.
The Amended Findings also supplied the following additional findings:
1. That the youngest child of the parties was 18 years of age on April
17, 2001, and the custody and support of that child was not an issue
and nothing was produced into evidence on that matter. The parties
were ordered to provide support for Jeff Evans until he graduates
from High School, including, but not limited to, medical insurance to
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be provided by Mr. Evans, and the parties to be responsible for one-
half (½) of medical, dental and optical expenses not provided by
insurance.
2. That Defendant is to assume a total indebtedness of $320,915.33
owed by the parties. This figure include the $62,775.00 the
Defendant is to pay to the Plaintiff.
With the exception of the above clarifications and additions found in the Amended Findings, the
Court overruled Ms. Evans’ Motion by Order filed November 27, 2001.
Ms. Evans appeals, raising twenty-nine (29) issues for review. We perceive that there are,
in fact, four (4) issues for our review. These issues are as follows:
I. Whether the trial court erred in failing to set a definitive amount of
child support for the care and maintenance of the youngest child,
Jeffrey Lee Evans?
II. Whether the trial court erred in failing to award alimony to Ms.
Evans?
III. Whether the trial court erred in awarding certain real estate and
farm equipment to Mr. Evans as separate property, and in failing to
make a complete division of marital property?
IV. Whether the trial court erred in admitting real estate appraisals
performed by Clark Blankenship?
Whether the trial court erred in failing to set
a definitive amount of child support for the
care and maintenance of the youngest child,
Jeffrey Lee Evans?
Ms. Evans asserts that the trial court erred in failing to order child support for Jeffery Lee
Evans in a definite amount pursuant to the guidelines promulgated by the State of Tennessee
Department of Human Services. We agree with Ms. Evans’ position on this issue. In this case, the
court chose to deviate from the child support guidelines because “the youngest child of the parties
was 18 years of age on April 17, 2001 and the custody and support of that child was not an issue and
nothing was produced into evidence on the matter.” At the outset, we note that the issue of child
support was properly before the court by virtue of Jeff Evans’ age. T.C.A. § 36-5-101(e)(1)(A) states
that:
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In making its determination concerning the amount of support of any
minor child or children of the parties, the court shall apply as a
rebuttable presumption the child support guidelines as provided in
this subsection. If the court finds that evidence is sufficient to rebut
this presumption, the court shall make a written finding that the
application of the child support guidelines would be unjust or
inappropriate in that particular case...
(Emphasis added)
It appears that the trial court did not comply with the quoted statute in departing from the
mandatory guidelines. It is necessary that the cause be remanded for any necessary proceedings
leading to an award of child support in conformity with the guidelines or an adequate explanation
for not doing so with finding of specific facts in support of the explanation.
Whether the trial court erred in failing to
award alimony to Ms. Evans?
Ms. Evans asserts that the trial court erred in failing to award rehabilitative alimony in this
case. Specifically, Ms. Evans claims that the trial court ignored the factors outlined in T.C.A. § 36-
5-101(d)(1) by basing its decision on the sole finding that Ms. Evans was capable of making her own
living without the aid of alimony. Guidelines for the determination of alimony are set forth in
T.C.A. § 36-5-101 (d). The trial court is afforded wide discretion concerning the award of alimony,
and an appellate court should reverse the trial court’s findings only in instances in which this
discretion “has manifestly been abused.” Hanover v. Hanover, 775 S.W.2d 612, 617 (Tenn. Ct.
App. 1989); Ford v. Ford, 952 S.W.2d 824, 827 (Tenn. Ct. App. 1997). T.C.A. § 36-5-101(d) reads
as follows:
(d)(1) It is the intent of the general assembly that a spouse who is
economically disadvantaged, relative to the other spouse, be
rehabilitated whenever possible by the granting of an order for the
payment of rehabilitative, temporary support and maintenance.
Where there is such relative economic disadvantage and rehabilitation
is not feasible in consideration of all relevant factors, including those
set out in this subsection, then the court may grant an order for
payment of support and maintenance on a long-term basis or until the
death or remarriage of the recipient except as otherwise provided in
subdivision (a)(3). Rehabilitative support and maintenance is a
separate class of spousal support as distinguished from alimony in
solido and periodic alimony. In determining whether the granting of
an order for payment of support and maintenance to a party is
appropriate, and in determining the nature, amount, length of term,
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and manner of payment, the court shall consider all relevant factors,
including:
(A) The relative earning capacity, obligations, needs, and financial
resources of each party, including income from pension, profit
sharing or retirement plans and all other sources;
(B) The relative education and training of each party, the ability and
opportunity of each party to secure such education and training, and
the necessity of a party to secure further education and training to
improve such party’s earning capacity to a reasonable level;
(C)The duration of the marriage;
(D) The age and mental condition of each party;
(E) The physical condition of each party, including, but not limited to,
physical disability or incapacity due to a chronic debilitating disease;
(F) The extent to which it would be undesirable for a party to seek
employment outside the home because such party will be custodian
of a minor child of the marriage;
(G) The separate assets of each party, both real and personal, tangible
and intangible;
(H) The provisions made with regard to the marital property as
defined in § 36-4-121;
(I) The standard of living of the parties established during the
marriage;
(J) The extent to which each party has made such tangible and
intangible contributions to the marriage as monetary and homemaker
contributions, and tangible and intangible contributions by a party to
the education, training or increased earning power of the other party;
(K) The relative fault of the parties in cases where the court, in its
discretion, deems it appropriate to do so; and
(L) Such other factors, including tax consequences to each party, as
are necessary to consider the equities between the parties.
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Separate assets and division of marital property are factors that must be considered in
deciding whether to award alimony and what amount is sufficient. Because we must remand this
case to the trial court for further proceedings concerning classification and distribution of property,
we must also remand for further proceedings concerning whether alimony is warranted in light of
the trial court’s ultimate distribution of the property. 3 Therefore, we reverse the Order of the trial
court, which granted Ms. Evans no alimony. We remand the case for further proceedings as may be
necessary to determine whether Ms. Evans is entitled to alimony and, if so, what type and amount
is sufficient.
Whether the trial court erred in awarding certain real estate
and farm equipment to Mr. Evans as separate property,
and in failing to make a complete division of marital property?
Ms. Evans first asserts that the trial court erred in its finding that Ms. Evans’ “name was
mistakenly placed on the deed from Bernice Evans, mother of [Mr. Evans], to Tommy Evans and
wife, Janice Evan.” In addressing this issue, we first note that, in classifying the parties’ property
as either marital or separate, the trial court is vested with wide discretion, and its decision is entitled
to great weight on appeal. Fisher v. Fisher, 648 S.W.2d 244, 246 (Tenn.1983); Edwards v.
Edwards, 501 S.W.2d 283, 288 (Tenn. Ct. App.1973). In accordance with Rule 13(d) of the
Tennessee Rules of Appellate Procedure, the trial court’s classification and division of marital
property enjoys a presumption of correctness and will be reversed or modified only if the evidence
preponderates against the court’s decision. Lancaster v. Lancaster, 671 S.W.2d 501, 502 (Tenn.
Ct. App.1984); Hardin v. Hardin, 689 S.W.2d 152, 154 (Tenn. Ct. App.1983).
As noted infra, T.C.A. § 36-4-121(b)(1)(A) defines marital property as “all real and personal
property, both tangible and intangible, acquired by either or both spouses during the course of the
marriage.” Under this definition, the approximately 169 acre farm conveyed by Bernice Evans to
“Tommy Evans and Wife, Janice Evan” is marital property. However, Mr. Evans contends that this
property was his inheritance from his father and, as such should be considered separate property.
Despite the fact that certain property may have been acquired during the marriage, a party may rebut
any presumption that the property is marital by demonstrating that the property actually was a gift
to that spouse alone. A spouse’s separate property includes property acquired “at any time by gift,
bequest, devise or descent.” T.C.A. § 36-4-121(b)(2)(D). Accordingly, if the spouse can show that
the property was a gift, the gift is his or her separate property, regardless of when it was acquired.
In a divorce case, as in other cases, the burden of proving that a gift was made is upon the donee or
the party asserting the gift. Hansel v. Hansel, 939 S.W.2d 110, 112 (Tenn. Ct. App.1996).
After carefully reviewing the testimony of Mr. Evans, Ms. Evans, and Ms. Ivy, and after
reviewing the Warranty Deed conveying the property to both parties, we do not find that Mr. Evans
has met his burden in proving that this tract of land was a gift or bequest made solely to him. Rather,
the plain language of the Warranty Deed, which we note was prepared by Mr. Evans’ own sister,
3
W e discu ss the issue of divisio n of marital pro perty infra under Issue 3.
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shows a clear intent to creates an interest in both parties. We, therefore, conclude that the evidence
preponderates against the trial court’s finding that the inclusion of Ms. Evans’ name on the deed was
a mistake and that the property was a gift or bequest to Mr. Evans alone. Therefore, we hold that the
property conveyed by Warranty Deed dated January 31, 1990 is marital property. As such, Ms.
Evans is entitled to an equitable division thereof. Therefore, we reverse the Order of the trial court
to the extent that it awards Mr. Evans this land as separate property. We remand for an equitable
division of marital property to include this land and note that any encumbrances upon this tract of
land should also be subject to equitable division between the parties.
Ms. Evans next asserts that the trial court otherwise failed to make an equitable division of
marital property in this case. Specifically, Ms. Evans claims that the trial court failed to consider the
material contributions she made to the marital estate as housewife, mother, wage earner, and
caretaker, that the court failed to properly divided Mr. Evans’ 401K plan and retirement account with
the State of Tennessee, that the trial court failed to consider Mr. Evans’ accumulated sick leave, that
the court erred in failing to consider ownership of five (5) horses, a horse trailer, a fishing boat, and
any debts accumulated during the marriage. T.C.A. § 36-4-121 addresses the distribution of marital
property. The statute reads, in pertinent part, as follows:
(a)(1) In all actions for divorce or legal separation, the court having
jurisdiction thereof may, upon request of either party, and prior to any
determination as to whether it is appropriate to order the support and
maintenance of one (1) party by the other, equitably divide, distribute
or assign the marital property between the parties without regard to
marital fault in proportions as the court deems just.
* * *
(b) For purposes of this chapter:
(1)(A) “Marital property” means 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 the filing of a
complaint for divorce...
* * *
(2) “Separate property” means:
(A) All real and personal property owned by a spouse before
marriage;...
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(D) Property acquired by a spouse at any time by gift, bequest, devise
or descent...
Before dividing the marital estate in a divorce proceeding, the trial court must first classify
the parties’ property as either marital or separate property because only marital property is subject
to the trial court’s powers of equitable distribution. Cutsinger v. Cutsinger, 917 S.W.2d 238, 241
(Tenn. Ct. App.1995); Brown v. Brown, 913 S.W.2d 163, 166 (Tenn. Ct. App.1994). In the instant
case, it appears to us that the trial court has failed to classify the above mentioned property and
indebtedness as marital or separate property. We must, therefore, remand the case for further
proceedings as are necessary to classify any remaining property as marital or separate and, after
categorizing said property, to make an equitable division of the marital property.
Ms. Evans also disputes the trial court’s findings concerning certain farm equipment, profits,
and indebtedness. Specifically, Ms. Evans asserts that the trial court erred in failing to consider the
value of a combine in relation to the debt on that combine, in failing to consider the value of a 3288
tractor in relation to the debt on that tractor, in failing to consider the value of crops in the field and
the encumbrances on those crops, in failing to consider any profit realized from the sale of cattle,
livestock, and grain, and in failing to consider certain debts incurred in the farming operation. From
the record as a whole, we do not find that the trial court abused its discretion in awarding certain
pieces of farm equipment to Mr. Evans as separate property. We, therefore, affirm the trial court as
to the division of the farm equipment. However, we do find that the trial court did not fully address
the question of whether any profits realized from the sale of cattle, livestock, and grain were marital
assets subject to an equitable division between the parties, nor did the trial court fully address the
issue of division of farm debt among the parties. We, therefore, remand the case for such further
proceedings as may be necessary on the issue of farm profit and debt.
Whether the trial court erred in admitting real estate
appraisals performed by Clark Blankenship?
The trial court is afforded wide discretion in the admission or rejection of evidence, and the
trial court’s action will be reversed on appeal only when there is a showing of an abuse of discretion.
See Otis v. Cambridge Mut. Fire Ins. Co., 850 S.W.2d 439 (Tenn. 1992; Davis v. Hall, 920 S.W.2d
213, 217 (Tenn. Ct. App. 1995).
Mr. Evans offered the testimony of Clark Blankenship on the issue of valuation of land and
farm equipment. Counsel for Ms. Evans made a timely objection to this testimony, which was
subsequently overruled. From the record, we find that Mr. Blankenship was not a licensed real estate
appraiser; however, Mr. Blankenship had bought and sold land for many years and had personal
knowledge of the market in that area. Ms. Evans offered no rebuttal witness on the issue of
valuation of land and/or equipment but nonetheless objects to the trial court’s allowing Mr.
Blankenship to testify to the same. Again, we note that the admission or exclusion of evidence at
trial is within the sound discretion of the trial court and will not be overturned absent a finding of
abuse of such discretion. Otis v. Cambridge Mut. Fire Ins. Co. at 442. Additionally, “[a]ppellate
courts should permit a discretionary decision to stand if reasonable judicial minds can differ
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concerning its soundness.” White v. Vanderbilt Univ., 21 S.W.3d 215, 223 (Tenn. Ct.
App.1999)(citing Overstreet v. Shoney’s, Inc., 4 S.W.3d 694, 709 (Tenn. Ct. App.1999)). We
concede that reasonable judicial minds could differ concerning whether to admit or exclude the
testimony of Mr. Blankenship. Consequently, we hold that the trial court did not abuse its discretion
in admitting this testimony.
For the foregoing reasons, the judgment of the trial court concerning the division of marital
property is reversed and the case is remanded to the trial court for such further proceedings as are
necessary to make an equitable division of all of the marital property (including, but not limited to,
the 169 acre tract, farm profit and indebtedness, sick leave, retirement plans, horse trailer, horses,
boat, and debts incurred during the marriage). The judgment of the trial court declining to award
child support is reversed, and, since the case is remanded for further proceedings concerning the
division of marital property, the judgment of the trial court denying an award of alimony is reversed
to be reconsidered by the court in light of further proceedings necessary consistent with this Opinion.
The judgment of the trial court is affirmed in all other respects. Costs of this appeal are assessed
one-half against appellant, Janice Lee Evans, and her surety, and one-half to appellee, Thomas
Jefferson Evans, Jr.
__________________________________________
W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.
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