Carrol Preston Flannary v. Joyce Ann Flannary ( 2002 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs November 13, 2002
CARROL PRESTON FLANNARY v. JOYCE ANN FLANNARY
Appeal from the Circuit Court for Hawkins County
No. 10161
FILED JANUARY 16, 2003
No. E2002-00869-COA-R3-CV
CHARLES D. SUSANO, JR., J., concurring in part and dissenting in part.
I concur in the majority’s holding that the entire value of the property deeded to Wife by her
mother is Wife’s separate property. I also agree with the majority’s conclusion that the parties’
residence at the time of their divorce constituted marital property. I write separately to express my
disagreement with so much of the majority opinion as concludes that the trial court erred in awarding
Wife a judgment for $24,000 against Husband.
Trial courts have wide discretion in arriving at an equitable division of marital property.
Fisher v. Fisher, 648 S.W.2d 244, 246 (Tenn. 1983); Brown v. Brown, 913 S.W.2d 163, 168 (Tenn.
Ct. App. 1994). Because a division of marital property is a discretionary function of the trial court,
appellate courts accord great weight to a trial court’s judgment in this area. Wilson v. Moore, 929
S.W.2d 367, 372 (Tenn. Ct. App. 1996). It is only when the lower court abuses that discretion that
an appellate court is justified in tampering with the trial court’s judgment. In another context, the
Supreme Court has stated that “[a]n abuse of discretion can be found only when the trial court’s
ruling falls outside the spectrum of rulings that might reasonably result from an application of the
correct legal standards to the evidence found in the record.” Eldridge v. Eldridge, 42 S.W.3d 82,
88 (Tenn. 2001).
The trial court made extensive remarks regarding the “missing” $48,000:
THE COURT: Okay. Let’s talk about the issue of the $48,000.00 that
was withdrawn out of his retirement. No, she didn’t go to the police
with it, because he’s the one that – the only one that – if she didn’t get
it, he’s the only one that knew it was gone. He’s the only one that
knew it was in there, apparently. I don’t know why in the world he
took this money out for over a period of three or four months in
hundred dollar bills and put it in a drawer. The house could have
burned. A lot of things could have happened to it. It’s – it’s just – he
says he put it in there. She says she don’t [sic] know anything about
it. I can’t see why he did it. It was in his control and possession
when it went in the drawer. What took it out – there’s been no
evidence here to me that you could convict anybody for taking this
money out. It’s apparently gone, or at least he says it’s gone. And
he’s the man that was in full control of this money after it left the
bank until it got in that drawer. It was his decision to put it in the
drawer. There are a lot of other safer places to put it. To put it in a
fruit jar and buried [sic] it in the back yard would have been better
than putting it in that drawer, because a lot of things could have
happened to it, or one of these children could have found it and got
it. Anything could have happened to it. He could have gotten it and
taken it out. She could have gotten it and taken it out. Somebody
else could have gotten it and taken it out. I don’t know what
happened to it. If I did, I’d tell you, but I don’t – from what I heard,
neither one of them knows what happened to it. So that money’s just
where it is. It’s retirement money and she’s due half of it.
* * *
MR. PARKER: Judge, when that air-conditioner came on, I missed
the – on the $48,000.00, I missed what you – the last thing you said.
What was your ruling on that?
MR. BEELER: He said, basically...
THE COURT: That it is marital property. He was in full control of
it at all times by getting it out, putting it in that drawer. It was marital
property when it come [sic] out of the – in the bank. It was marital
property when he took it out. It was marital property when he put it
in the drawer. And I don’t know where it went. He was the last
person in control of it that I know about.
MR. PARKER: Does he owe her $24,000.00? Is that what...
THE COURT: He owes her marital – that has to be divided like
marital property, yes.
MR. PARKER: So he owes her $24,000.00? Very well.
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THE COURT: It’s to be divided like any other marital property.
MR. PARKER: Very well.
MR. BEELER: Your Honor, is the Court directing that he pay her
$24,000.00 of money that was not there at the time of the divorce?
I mean, the law is clear that unless the Court can find that he has it or
that she has it, that it’s a marital asset...
THE COURT: I’m finding that he was the last person that this Court
knows that was in full control of that money.
MR. PARKER Can she have a judgment for that amount against him,
Judge?
THE COURT: That’s part of your division of the marital assets.
When these remarks are viewed in toto, several things seem clear. The trial court found that
the $48,000 withdrawn by Husband from the bank represented property of the marriage. The
evidence does not preponderate against this finding. The court clearly did not find that Wife had
taken this money from Husband’s bedroom. What the court did find – and what I believe is
particularly significant on this issue – was that Husband was in control of the money and that his
careless handling of these funds was the efficient cause of their disappearance. As the majority
opinion points out, Husband’s only explanation for not putting the money in a safe deposit box was
that such action had never occurred to him.
I disagree with the majority’s conclusion that the trial court “made no finding that the
$48,000 had been dissipated.” On the contrary, I believe the trial court’s remarks – without utilizing
the word “dissipate” or a derivative of that word – clearly show that the court reached that
conclusion. One of the definitions of the word “dissipate” is “[t]o waste or squander.” Webster’s
II New Riverside University Dictionary 389 (Anne H. Soukhanov ed., 1994).
The issue of the missing $48,000 was raised on this appeal. Husband urged us to find that
the trial court erred in awarding Wife $24,000. This issue necessarily brings into play the factors set
forth in Tenn. Code Ann. § 36-4-121(c) (Supp. 2002), including subsection (c)(5) which mentions
“dissipation.”
In my judgment, the quote in the majority opinion from Brock v. Brock, 941 S.W.2d 896,
900 (Tenn. Ct. App. 1996) is not implicated by the facts of the instant case. In Brock, we were
addressing property owned by Mr. Brock at the time of the marriage that had been “merged into the
‘wealth’ of the marriage.” Id. at 901. As the majority recognizes, the quote from Brock does not
mean that a court should ignore a parties’ dissipation that has resulted in property being gone. Under
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such circumstances, the property does not fall within the rubric of Brock’s language of “not there.”
Id. at 900.
I find no abuse of discretion by the trial court in its judgment awarding Wife a judgment
against Husband for $24,000. I would affirm the trial court’s judgment in its entirety.
Accordingly, I concur in part and dissent in part.
_______________________________
CHARLES D. SUSANO, JR., JUDGE
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