Roy Gray v. Nancy Gray ( 2002 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
May 14, 2002 Session
ROY WILLIAM GRAY v. NANCY JANE GRAY
Appeal from the Circuit Court for Knox County
No. 82504 Bill Swann, Judge
FILED SEPTEMBER 19, 2002
No. E2001-02470-COA-R3-CV
In this divorce case from the Circuit Court for Knox County the Appellant, Roy William Gray,
contends that the Trial Court erred in failing to disqualify counsel for the Appellee, Nancy Jane Gray.
Mr. Gray further contends that the Court erred in dividing the marital assets, in granting both parties
a divorce, and in awarding Ms. Gray post trial attorney's fees. Ms. Gray asserts that she should be
reimbursed for attorney's fees incurred by her in responding to this appeal upon the grounds that the
appeal is frivolous and devoid of merit. The judgment of the Trial Court is affirmed in part and
reversed in part.
Tenn.R.App.P. 3; Judgment of the Circuit Court Affirmed in Part and Reversed in Part;
Cause Remanded
HOUSTON M. GODDARD , P.J., delivered the opinion of the court, in which HERSCHEL P. FRANKS and
D.MICHAEL SWINEY, JJ., joined.
Ricky A.W. Curtis, Knoxville, Tennessee, for the Appellant, Roy William Gray
Sarah Y. Sheppeard, Knoxville, Tennessee, for the Appellee, Nancy Jane Gray
OPINION
In this appeal from a judgment for divorce entered by the Circuit Court for Knox County five
issues are presented for our review which we restate as follows:
1. Did the Trial Court err in failing to disqualify the attorney for Nancy Jane Gray, the
Appellee, when it was shown that such attorney had prepared the will of the Appellant, Roy William
Gray, approximately ten years prior to the present divorce action?
2. Did the Trial Court err in its division of the marital estate?
3. Did the Trial Court err in granting a divorce to both parties?
4. Did the Trial Court err in awarding attorney's fees to Ms. Gray?
5. Should Ms. Gray be reimbursed for attorney's fees incurred by her in defending this
appeal?
This is a non-jury case and, accordingly, our review is de novo upon the record of the Trial
Court. A trial court's findings of fact are entitled to a presumption of correctness and, absent
evidence preponderating to the contrary, we must affirm those findings pursuant to T.R.A.P. 13(d).
Kincaid v. Kincaid, 912 S.W.2d 140 (Tenn. Ct. App. 1995). There is no presumption of correctness
as to the correctness of a trial court's conclusions of law. Campbell v. Florida Steel Corp., 919
S.W.2d 26 (Tenn. 1996).
This case began in May of 1999 when Mr. Gray filed a complaint for divorce in the Knox
County Circuit Court to which Ms. Gray responded by answer and counter-complaint. By motion
filed on May 1, 2000, and subsequent amendment thereto on May 2, 2000, Mr. Gray requested that
the Trial Court discharge Ms. Gray's attorney, Sara Sheppeard, on the grounds that Ms. Sheppeard
had previously prepared Mr. Gray's will. This motion was denied and trial began on May 2, 2000.
On September 13, 2000, the Court entered its final judgment granting both parties a divorce on the
grounds of inappropriate marital conduct and ordering that the marital assets be divided equally
between the parties. Thereafter, Mr. Gray filed a motion for new trial and Ms. Gray filed a motion
seeking payment of funds due her pursuant to the judgment for divorce. The Court granted Ms.
Gray's motion by order entered February 2, 2001, nunc pro tunc as of January 19, 2001.
On February 2, 2001, Ms. Gray filed an additional motion averring that the funds which the
Court had ordered Mr. Gray to pay in its order of January 19, 2001, had still not been paid, that Mr.
Gray was, accordingly, in contempt of court and that he should be taxed with attorney fees, court
costs and discretionary costs in consequence. At a hearing on February 16, 2001, the Court denied
Mr. Gray's motion for new trial. At this time, Mr. Gray paid Ms. Gray the monies requested in her
motion and Ms. Gray voluntarily dismissed that portion of her motion seeking an adjudication of
contempt.
On June 8, 2001, Ms. Gray filed an additional motion seeking remaining assets due her under
the divorce decree which she averred that Mr. Gray had not yet turned over to her despite the Court's
orders that he do so. In this motion Ms. Gray also averred that Mr. Gray should be responsible for
attorney fees incurred by her since the Court entered its final judgment on September 13, 2000. This
motion was heard by the Court on June 15, 2001, at which time the Court ordered that Mr. Gray
transfer assets to Ms. Gray as required by the final judgment. The Court further ordered that Mr.
Gray pay Ms. Gray post-trial attorney fees in the amount of $2,500.00. This appeal followed.
The first issue we address is whether the Trial Court erred when it failed to disqualify Ms.
Sheppeard as Ms. Gray's attorney.
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Our standard of review of the Court's ruling with respect to attorney disqualification is
whether the Trial Court abused its discretion and, absent a finding that the Trial Court abused its
discretion, its ruling will be affirmed by this Court. Clinard v. Blackwood, 46 S.W.3d 177 (Tenn.
2001). Abuse of discretion occurs when a trial court "applie[s] an incorrect legal standard, or
reache[s] a decision which is against logic or reasoning that cause[s] an injustice to the party
complaining." Clinard, ibid. citing State v. Shirley, 6 S.W.3d 243 (Tenn. 1999). Applying this
standard to the Trial Court's ruling in the present case we are compelled to find that the Court did
not abuse its discretion.
The record shows that at some point in 1989 Mr. and Ms. Gray met with Ms. Sheppeard in
her office to discuss the preparation of their wills and to advise her as to how they wanted their
property to be distributed in the event of their death. Thereafter, the Grays returned to Ms.
Sheppeard's office and signed wills prepared by her in compliance with their instructions.
Mr. Gray asserts that, in consequence of Ms. Sheppeard having prepared his and his wife's
wills in 1989, at the time the instant divorce proceedings were commenced either 1)Ms. Sheppeard
was engaged in his ongoing representation or 2) he was Ms. Sheppeard's former client. In either
event, Mr. Gray argues, Ms. Sheppeard should not be allowed to represent Ms. Gray in this case
over his objection.
With respect to his contention that Ms. Sheppeard should be disqualified from representing
Ms. Gray in this case, Mr. Gray cites Disciplinary Rule 5-105 of Rule 8 of the Rules of the Supreme
Court of the State of Tennessee which states:
(A) A lawyer shall decline proffered employment if the exercise of independent
professional judgment in behalf of a client will be or is likely to be adversely
affected by the acceptance of the proffered employment, or if it would be likely
to involve the lawyer in representing differing interests, except to the extent
permitted under DR 5-105(C).
(B) A lawyer shall not continue multiple employment if the exercise of
independent professional judgment in behalf of a client will be or is likely to be
adversely affected by the lawyer's representation of another client, or if it would
be likely to involve the lawyer in representing differing interests, except to the
extent permitted under DR 5-105(C).
(C) In the situations covered by DR 5-105(A) and (B), a lawyer may represent
multiple clients if it is obvious that the lawyer can adequately represent the
interest of each and if each consents to the representation after full disclosure of
the possible effect of such representation on the exercise of the lawyer's
independent professional judgment on behalf of each.
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Mr. Gray asserts that, because he and Ms. Gray have differing interests in this divorce case,
Ms. Sheppeard's ongoing representation of himself and simultaneous representation of Ms. Gray
without his consent violates parts (A) and (B) of the above rule. Mr. Gray further asserts that Ms.
Sheppeard's representation of Ms. Gray under the circumstances in this case violates Tennessee case
law, citing in support the case of Clinard v. Blackwood, ibid. which provides that an attorney is
prohibited from simultaneously representing two persons having adverse interests in the same subject
matter.
Mr. Gray's assertion of a continuing attorney client relationship between himself and Ms.
Sheppeard appears to be based on his averments that no letter terminating Ms. Sheppeard's
employment relationship with Mr. Gray is in evidence, that the two wills prepared by Ms. Sheppeard
named each spouse as personal representative of the other's estate, and that Ms. Sheppeard retained
his original will for probate in the event of either party's death. Mr. Gray maintains that, "[u]nder
such circumstances [he] would certainly have contacted Ms. Sheppeard in the event of his Wife's
death to assist with the administration of his Wife's estate. Accordingly, Ms. Sheppeard remained
in an attorney-client relationship with [him] at the commencement of the proceedings."
The record before us shows no evidence of contact between Mr. Gray and Ms. Sheppeard
from the time she prepared his and Ms. Gray's wills until the commencement of the divorce
proceedings approximately ten years thereafter. Mr. Gray's testimony confirms that he and his wife
consulted Ms. Sheppeard for the purpose of having their wills drafted, that Ms. Sheppeard drafted
the wills and that they signed the wills after reviewing them. The fact that there is no letter
terminating the employment relationship between Mr. Gray and Ms. Sheppeard does not compel us
to the conclusion that that relationship continued ten years later. On the contrary, the record
indicates that the limited task for which Ms. Sheppard was employed by the Grays in 1989 was the
drafting of their wills commensurate with their instructions and that that task was satisfactorily
completed ten years ago. Mr. Gray's testimony at trial does not compel a conclusion to the contrary.
It is undisputed that each party was named in the other's will as the personal representative
of the other's estate. However, we fail to see how this fact would warrant the conclusion that there
was a continuing attorney client relationship between Mr. Gray and Ms. Sheppeard. Ms. Sheppeard's
continuing participation as the Grays' attorney would have been absolutely unnecessary to the
implementation of such a provision in the wills.
Finally, Mr. Gray asserts in his brief that Ms. Sheppeard retained his original will for probate
in the event of the death of either Ms. Gray or himself. The apparent implication of this assertion
is, of course, that Ms. Sheppeard intended that she would continue to represent the Grays in matters
relevant to the disposition of their estates. However, Ms. Sheppeard denies that she retained Mr.
Gray's original will and our review of the record shows that his present assertion to the contrary is
unsubstantiated by either his own testimony or by any other competent evidence. The only allusion
in the record to the alleged retention of the original will by Ms. Sheppeard lies in statements made
by Mr. Gray's attorney.
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Mr. Gray argues that, even if Ms. Sheppeard's representation of him was not ongoing at the
time the present divorce proceedings began, she should still be disqualified based on her former
representation. Mr. Gray contends that, in the context of the former representation regarding his
will, he divulged information to Ms.Sheppeard as to the nature and extent of his property. Mr. Gray
maintains that the decisive issue in this divorce is the classification and division of the parties'
property and, therefore, the subject matter involved in the former representation and the subject
matter involved in the current divorce case are identical. Mr. Gray further asserts that the Trial Court
specifically found that the subject matter of the wills preparation and the subject matter of the present
case are substantially related. Mr. Gray argues that case law requires that Ms. Sheppeard be removed
as counsel for Ms. Gray. In support Mr. Gray cites Clinard, ibid, and Buchanan v. Morton, 25 B.R.
162 (Bankr. E. D. Tenn. 1982) for the proposition that a lawyer may not represent interests adverse
to those of a former client if the subject matter of the new representation is substantially related to
the subject matter of the previous representation.
In addressing the question of whether there is a substantial relationship between the subject
matter of the present divorce and that of the previous estate matter we are, first of all, compelled to
disagree that the Trial Court specifically found such a relationship. In support of this assertion Mr.
Gray appears to rely upon a comment of the Trial Court made in response to the statements of Mr.
Gray's attorney at the hearing on February 16, 2001:
MR. CURTIS: Also, when you look at the substantially related matters,
the case there, in Re Buchanan, gives us some assistance as to whether or not it's
substantially related. Here common sense tells it is. We're dealing with exactly
the same subject matter. It's the nature, extent, and value of the property. It was--
that's all that was discussed in Ms. Sheppeard's office, and it was the primary issue
at the trial of this divorce--
THE COURT: I think you can take that as established.
It is apparent to us that the import of the Court's comment is, not that it is established that
there is a substantial relationship between the subject matter of the wills drafting and the divorce,
but rather that it is established that the nature, extent and value of the parties' property was the
primary issue at the trial of the divorce. The Court's assessment in this regard is undisputed by the
record it being evident that this case is largely concerned with the division of marital property.
We do not find a substantial relationship between the subject matter of the current divorce
case and the preparation of his will ten years ago. If 'subject matter' in this case is held to mean 'the
nature of the proceeding involved' then there is not a substantial relationship because the present
matter is a divorce matter and the previous matter was solely an estate matter and, according to Mr.
Gray's own testimony, occurred at a time when divorce was not contemplated. Mr. Gray's argument
appears to be that the parties' property is the subject matter involved in both the drafting of the wills
and the divorce. Obviously, by a loose, non-specific definition of 'property' the parties property was
involved in the estate matter and the parties' property is involved in the divorce matter. However,
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we do not believe such a general definition of property is sufficient in making a conflict of interest
determination. We believe that 'property' must be viewed to mean those specific, identifiable things
owned by the Grays at the time their wills were drafted and at the time of their divorce. Upon our
review of the record we do not find evidence showing that the items of property owned by the Grays
when Ms. Sheppeard drafted their wills are substantially related to the items of property which are
the focus of this divorce. In fact, there is proof that much of the parties' property, such as their
residence, was acquired years after Ms. Sheppeard drafted the Grays' wills.
In any event, it is our determination that the basic reason for prohibiting an attorney from
representing interests adverse to those of a former client where there is a substantial relationship in
subject matter is that the attorney will use confidences or secrets divulged to him by the former client
to that client's disadvantage. That this is so is evident from the case of Mills v. Crane, an unreported
opinion of this Court filed in Knoxville on April 10, 1987.
In Mills the plaintiffs argued that the trial court erred in not disqualifying counsel for the
defendants because of his prior representation of the plaintiffs. In affirming the ruling of the trial
court this Court was guided by Tennessee case law as well as by case law from other states. The
following language cited from National Texture Corp. v. Hymes, 282 N.W.2d 890, 894 (1979) makes
it clear that the essential problem to be addressed in matters such as the one now before us is whether
current representation of interests adverse to a former client will result in the disclosure of
confidences and secrets previously disclosed to the attorney by that client:
An attorney should not use information he received in the course of representing
a client to the disadvantage of that client. In this regard, the attorney should
exercise care to prevent disclosure of confidences and secrets of one client to
another and decline employment that would require such disclosure. ABA Code
of Professional Responsibility EC 4-5. See also, id. DR 4-101. This obligation
to preserve the secrets and confidences imparted by a client continues even after
the termination of employment. ABA Code of Professional Responsibility EC
4-6. An attorney should similarly refrain from representing a party in an action
against the former client where [t]here is an appearance of a conflict of interest or
a possible violation of confidence, even if such may not be true in fact. 2
American Bar Association Committee on Ethics and Professional Responsibility,
Informal Ethics Opinions 23 (1975). The purpose for disqualification in such
situations is to ensure the attorney's absolute fidelity and to guard against
inadvertent use of confidential information. Ceramco, Inc. v. Lee
Pharmaceuticals, 510 F.2d 268, 271 (2 Cir. 1975).
The test generally applied to determine the existence of a conflict of
interest is whether there is a substantial relationship between the subject matter
of a pending action and those matters in which the attorney is alleged to have
previously represented the client. Redd v. Shell Oil Co., 518 F.2d 311 (10 Cir.
1975); T.C. Theatre Corp. v. Warner Bros. Pictures, 113 F. Supp. 265 (S.D.N.Y.
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1953). On[c]e the substantial relationship test is met, it will be assumed that
confidences bearing on the subject matter of the current representation were
disclosed. Richardson v. Hamilton International Corp. , 469 F.2d 1382, 1385 (3
Cir. 1972), certiorari denied, 411 U.S. 986, S.Ct. 2271, 36 L. Ed. 2d 964 (1973);
T.C. Theatre [C]orp. v. Warner Bros. Pictures, 113 F. Supp. 265, 268 (S.D.N.Y.
1953).
Even had Mr. Gray shown a substantial relationship between the subject matter of the two
representations in the case before us giving rise to the assumption of a disclosure of confidence
noted in the above language cited from the National Texture Corp. case we find that such an
assumption cannot survive given the following testimony elicited from Mr. Gray by Ms. Sheppeard
at trial:
Q. Did you and your wife come to meet with me sometime in 1989 about
having wills drafted?
A. Sometime around that period, yes.
Q. Anything you disclosed to me about your financial situation was in the
presence of your wife?
A. Yes.
Q. Did you ever call me and say I've got some secret things, don't tell my
wife this, but you need to know them to prepare the wills?
A. No
...
Q. Tell the Court what we talked about in that first meeting.
A. How I wanted my property taken care of in the case of my death.
Q. All right. And Mrs. Gray was present?
A. Yes.
Q. And she also talked about how she wanted her property taken care of,
didn't she?
A. Yes.
Q. And then sometimes later I drafted a will. Probably, did I send copies
to you and Mrs. Gray before you came back in?
A. Yes.
Q. Did you read those copies?
A. Yes.
Q. Did they say what you wanted them to say?
A. To the best of my knowledge. There was only a minor change or two.
Q. Did you and Mrs. Gray come back into my office?
A. Yes.
Q. Did you sign those wills?
A. Yes.
...
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Q. Were there any secrets? I'm not asking you what they were. Were there
any deep dark secrets that you told me when you came in to have that will done?
A. Well, the way I structured it, the way I wanted it structured covered
what I wanted done. I may not have told you the total thing I wanted conveyed,
but I gave you enough information to get it done.
Q. You didn't tell me about any hidden offshore accounts, did you?
A. No. I don't have any.
Q. All right. You didn't tell me you had any mistresses, did you?
A. I didn't have any.
Q. Okay. You didn't have any deep dark secrets to tell me, or that you did
tell me, and everything you said to me you said in the presence of Nancy Gray;
correct?
A. Yes.
Q. You haven't had any conversations with me since those wills were
executed until this lawsuit started; isn't that correct?
A. That's correct.
Q. You haven't conveyed any secrets to me in any fashion during those
intervening years, have you?
A. No.
It is apparent from Mr. Gray's testimony that he provided no information to Ms. Sheppeard
regarding the preparation of the wills outside of the presence of Ms. Gray. Thus, whatever
information he may have disclosed to Ms. Sheppeard in relation to that matter cannot be deemed
confidential in any relevant or meaningful sense. Based upon this finding and our review of the
entire record in this case we are compelled to conclude that the Trial Court did not abuse its
discretion in ruling that Ms. Sheppeard should not be disqualified as counsel for Ms. Gray by reason
of her former representation of Mr. Gray.
The next issue addressed is whether the Trial Court erred in dividing the marital property
equally between the parties.
T.C.A. 36-4-121(c) provides that the court shall consider the following factors in making an
equitable distribution of marital property:
(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 contribution 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 acquisitions of capital assets and
income;
(5) The contribution of each party to the acquisition, preservation, appreciation,
depreciation or dissipation of the marital or separate property, including the
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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 its 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, costs associated with the reasonably
foreseeable sale of the asset, and other reasonably foreseeable expenses associated
with the asset;
(10) The amount of social security benefits available to each spouse; and
(11) Such other factors as are necessary to consider the equities between the
parties.
A trial court is allowed wide latitude in determining an equitable division of marital property
and we will defer to the trial court's determination unless its decision is inconsistent with those
factors set forth at T.C.A. 36-4-121(c) or the preponderance of evidence is contrary. Barnhill v.
Barnhill, 826 S.W.2d 443 (Tenn. Ct. App. 1991).
Mr. Gray asserts that proper consideration of several of the factors set forth under T.C.A. 36-
4-121(c) prohibits an equal division of the marital property in this case and entitles him to receive
a larger portion of the marital estate than Ms. Gray.
First, Mr. Gray argues that, with respect to T.C.A. 36-4-121(c)(2), he is financially
disadvantaged in that his age, physical and mental health, vocational skills, and employability
prevent him from working whereas Ms. Gray is gainfully employed and her ability to earn an income
is not impaired by disability.
The record shows that at the time of trial Mr. Gray was fifty eight years of age while Ms.
Gray was fifty four and that the age discrepancy between the parties was approximately three years
and four months. We do not find this discrepancy to be significant enough to warrant a finding that
Mr. Gray was relatively disadvantaged as a consequence of his age.
Although Mr. Gray asserts that he doesn't think he can hold down a job because he has
trouble sleeping and can't get adequate rest, he presents no medical evidence that this or any other
physical problem is sufficiently debilitating to justify his receipt of a larger portion of the marital
estate. Although it is undisputed that Mr. Gray has suffered from some degree of depression there
is no expert evidence in the record as to the severity of his condition or as to whether it might be
controlled or eliminated through therapy and/or medication. The record does show that, although
Mr. Gray was in counseling for a period of six months after he filed his complaint for divorce, he
chose to discontinue such counseling and there is no indication that he has otherwise sought help for
this problem. Although we are sympathetic to Mr. Gray, at the same time we believe that he bears
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some responsibility to avail himself of treatment resources which could alleviate his depression.
Other than the six months of treatment noted, there is no proof that he has done so.
Furthermore, there is nothing in the record that convinces us that a relative disparity between
the parties as to vocational skills and employability warrants that Mr. Gray receive a larger portion
of the marital estate than Ms. Gray. Ms. Gray's highest level of education is high school. She has
job experience as a cashier, payroll clerk, and phlebotomist. While working as a phlebotomist she
received on the job training as a histologist and she is currently employed in that capacity with the
Knoxville Dermatopathology Laboratory and where she earns $15.50 per hour. After graduating
from high school, Mr. Gray received a year of training in drafting and was subsequently employed
as a draftsman at T.V.A. from 1966 until his retirement in 1994. While employed at T.V.A. Mr.
Gray obtained a two year associate of science degree in mechanical engineering technology and for
a period of time shortly after his retirement he was licensed as an affiliate real estate broker. Mr.
Gray is currently unemployed and indicates that his training in drafting is obsolete because drafting
is now computer aided and he is a manual drafter. However, we agree with the Trial Court's
observation that Mr. Gray has a computer and, if he wishes to remain a draftsman, he can learn.
Mr. Gray also argues that T.C.A. 36-4-121(c)(4) supports his receiving a greater share of the
marital estate because Ms. Gray has a relatively greater ability to acquire capital assets and income.
In support of this argument Mr. Gray cites page 64 of the trial record; however, our review of this
portion of the record shows that it presents evidence of the circumstances of Ms. Gray's employment
as a histologist including the fact that she earns $15.50 per hour. We do not find this to be sufficient
evidence to support Mr. Gray's argument for disparate treatment nor do find evidence elsewhere in
the record preponderating in favor of his argument in this regard.
Mr. Gray next contends that under T.C.A. 36-4-121(c)(5) he should receive a larger share of
the marital estate asserting that he acquired almost all of the marital property with minimal
contribution from Ms. Gray. We disagree. The record shows that Ms. Gray took on the role of
homemaker in this marriage and, commensurate with that role, she assumed responsibilities in the
marriage which allowed her husband to concentrate his time and energy upon his employment
outside the home. Ms. Gray testifies that she stayed at home and took care of the parties' son1 from
the time of his birth until he began kindergarten and that, throughout the thirty three year marriage
she cooked and did laundry and cleaning for the family without assistance from Mr. Gray. Ms. Gray
also testifies that during the marriage she made clothes for herself and her son, did yard work and
canned food from the family's garden. Ms. Gray further testifies that she performed various
necessary tasks with respect to rental properties owned by the parties such as cleaning, answering
the phone and showing the properties and that she also assisted in the properties' painting and
upkeep.
Mr. Gray asserts that, although Ms. Gray worked during the marriage she did not contribute
financially to the marriage and that she spent her income on "incidentals"and thereby dissipated
1
The parties’ son is their only child and was an adult at the time of their divorce.
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marital assets. Mr. Gray does not refer us to any specific evidence in the record to support this
assertion; however, we do note evidence to the contrary in the following testimony from Ms. Gray
when asked about how she disposed of the income from her job:
Q. What did you do with the money that you earned ?
A. I bought groceries. I paid for anything that I needed, anything that my
child or our child needed.
Q. Clothing?
A. Clothing.
Q. School supplies?
A. School supplies.
Q. Hair cuts?
A. Yes. When we ate out, I always paid for that, you know. When Roy
was home on the weekends or any time, usually if we took -- his brother-in-law
was good to help me do anything that I couldn't do anything when he was out of
town. We would take them out. I would give Roy the money before we got to the
destination. Any leisure things that we did, I paid for those. A lot of times I paid
for vacations, maybe not all of it, but maybe the majority of it, that sort of thing.
Next Mr. Gray refers us to T.C.A. 36-4-121(c)(8) and argues that the Court failed to properly
consider the economic circumstances of the parties at the time the division of the marital property
was to become effective. Had the Court done so, Mr. Gray contends that he would have been
awarded a greater portion of the marital estate, his economic circumstances being worse than those
of Ms. Gray. In support of this contention Mr. Gray asserts that Ms. Gray is gainfully employed
while his sole source of income consists of his monthly pension.
We disagree that the Mr. Gray's economic circumstances warrant that he be rewarded a larger
share of the marital estate. As Ms. Gray has pointed out in her brief, the record confirms that, in
addition to his monthly pension of $2,607.63, Mr. Gray realizes income in the gross amount of
$1,300.00 from three separate rental properties which were retained by him after the divorce. The
total of these two figures, $3, 907.63, exceeds Ms. Gray's monthly gross income which is calculated
to be $2,686.67 based upon her working forty hours a week at her current earnings of $15.50 per
hour. Mr. Gray's argument is without merit.
Next, Mr. Gray contends that T.C.A. 36-4-121(c)(9) supports his receiving a larger portion
of the marital estate because much of the property awarded him in the divorce consists of real estate.
Mr. Gray argues that the sale of this real property will involve the payment of capital gains taxes and
that he, therefore, bears a greater tax burden than does Ms. Gray. We do not agree that the record
supports a greater award to Mr. Gray on this basis. There is no proof in the record that a sale of the
real property awarded to Mr. Gray is anticipated nor has Mr. Gray offered proof as to the tax
consequences he asserts. A t the hearing on Mr. Gray's motion for new trial the Trial Court stated
as follows:
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The adverse tax consequences fall substantially on both sides. There are
adverse tax consequences on each side. We don't see anything there to disrupt the
equities here. It is hard to weigh one kind of asset against another, particularly as
we look at prospective growth of that asset.
We do not disagree with the Trial Court's statement regarding tax consequences in this case
and we find that Mr. Gray's argument is without merit.
Finally, with respect to the division of marital property, Mr. Gray refers us to T.C.A. 36-4-
121(c)(10) which requires that in dividing the marital estate the Trial Court consider the amount of
social security benefits available to each spouse. Mr. Gray asserts that there is no indication that the
Court valued the social security benefits available to Ms. Gray and that, while Mr. Gray's pension
was assigned a present day value and credited towards his portion of the marital estate, Ms. Gray's
social security earnings were not. Mr. Gray further contends that, although the record indicates that
a percentage of his pension was his separate property, when the Trial Court assigned a present value
to the pension it did not reduce the value by the appropriate percentage.
We find no proof in the record that Ms. Gray is entitled to receive social security benefits at
the present time. Anticipated social security benefits are not part of the marital estate because they
are not vested as required by T.C.A. 36-4-121(b)(1)(B). Reymann v. Reymann, 919 S.W.2d 615(Tenn. Ct. App. 1995). Accordingly, the Trial Court did not err in failing to consider Ms. Gray's
social security benefits as part of the marital estate.
As noted, Mr. Gray also contends that, although a percentage of his pension was his separate
property, the Trial Court failed to take this into account when it assigned a present value to the
pension. In support of his contention that a portion of the pension was his separate property Mr.
Gray refers us to his testimony at page 260 of the trial record which includes the following:
Q. When you were retired, were you given any time credit with TVA for your
military service?
A. Yes, I was. It's included in my pension.
Q. And were you married before or after you got out of the service?
A. After. I didn't even meet her until after I was out of the service.
We do not find that the issue of whether the Trial Court properly considered Mr. Gray's
separate ownership of part of his pension is relevant to T.C.A. 36-4-121(c)(9) although raised on
appeal in that context. It is our determination that this issue was, in fact, never raised in the Trial
Court and it cannot be raised for the first time on appeal. Knoxville's Community Development v.
Wright, 600 S.W.2d 745 (Tenn. Ct. App. 1980). Accordingly, we decline to review this issue.
The next issue we address is whether the Trial Court erred in granting both parties a divorce
rather than granting a divorce to Mr. Gray alone.
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The Trial Court's final judgment of divorce in this case recites that "[a] divorce is hereby
granted to the parties on the grounds of the inappropriate marital conduct of each." Mr. Gray
contends that the record shows that Ms. Gray engaged in inappropriate marital conduct by meeting
with other men in Internet chat rooms and that she subsequently met with these men in person and
even spent the night with one of them before Mr. Gray filed his divorce complaint. Mr. Gray
maintains that, according to Ms. Gray's testimony, the only act of inappropriate conduct which he
committed during the marriage occurred years before the divorce was filed. Mr. Gray argues that,
even if he is found to have been partially at fault in the dissolution of the marriage, Ms. Gray is more
at fault and, therefore, he alone should have been granted the divorce.
Our review of the record reveals inappropriate conduct on the part of each of these parties
during the time they were married. Ms. Gray's attorney conceded in closing argument that Ms.
Gray's online conversations with another man were inappropriate marital conduct. However, we also
note evidence presented by the testimony of Ms. Gray with respect to instances of inappropriate
conduct by Mr. Gray. As stated, Mr. Gray asserts that Ms. Gray testified that he committed only one
act of inappropriate conduct, apparently referring to the occasion of his having contracted a venereal
disease as a result of his encounter with another woman. Although this particular incident took place
several years prior to the initial filing of a divorce complaint in this case, we find that the testimony
of Ms. Gray provides evidence of additional and more recent inappropriate conduct by Mr. Gray as
follows:
Q. After he filed for divorce, did you all have any discussions about divorce?
A. Well, he filed for divorce before I even realized that he had done that. We sat down and
we tried to discuss it. He had a gun that he put on his -- I just observed a gun laying on his
lap while we were talking. I was on one side of the den and he was on the other sofa. I
asked him, is that a gun that you have. He said, yes, it is. And I tried to stay as calm as I
could, but I was very frightened. He told me that I would never get any assets that he had,
that he had worked, he had earned the money and that therefore I could leave with my
clothes if I wanted to.
Q. What happened after that?
A. As I said, I tried to stay as calm as I could. I was very upset. I didn't stay downstairs
very long. I went upstairs. He stayed downstairs. But when we had our discussion, I told
him, I said, surely you wouldn't do anything crazy like that because of our son and both of
our mothers are still alive. He told me, well, if I tried to take anything that he had that he
didn't have any reason for living. And if he didn't live, I wasn't going to live either.
---
Probably a week after that confrontation, one Sunday afternoon he came in and sat down
and we tried to talk. I didn't see a gun that he had then. I don't know if he had a gun or not.
He told me that he just wished instead of contacting an attorney, that he had just blown my
head off and blown a friend's head off.
Ms. Gray further testified that when she informed Mr. Gray of her intent to obtain an order
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of protection he told her that it wouldn't do her any good and that if he wanted to do away with her
he would anyway.
Tennessee case law supports a finding of cruelty (and, therefore, inappropriate marital
conduct) when there is "willful, persistent causing of unnecessary suffering, whether in realization
or apprehension, whether of body or mind, in such a way as to render cohabitation dangerous and
unendurable." Schwalb V. Schwalb, 282 S.W.2d 661 (Tn. Ct. App. 1955). In light of the testimony
cited above and the record as a whole we find that the Trial Court did not err in granting a divorce
to both parties in this case. Mr. Gray's contention that he was responsible for only one instance of
inappropriate marital conduct and that Ms. Gray was more at fault than he are without merit.
The final issue presented by Mr. Gray in this appeal is whether the Trial Court erred in
awarding attorney fees to Ms. Gray at the post trial hearing on June 15, 2001. Ms. Gray maintains
that the Trial Court's order of June 15, 2001, which requires that Mr. Gray pay Ms. Gray's attorney
fees to the extent of $2,500.00, was an award of alimony in solido as was requested by Ms. Gray
in her counterclaim filed on June 15, 1999. Ms. Gray asserts that this award was based upon the
Trial Court's finding of fault on behalf of Mr. Gray in delaying the entry of a final order in the case
and in failing to comply with the requirements of the Court's decision. Our review of the Court's
memorandum opinion and findings of fact dated June 15, 2001, confirms the accuracy of these
assertions. The Court states that the approach of Mr. Gray and his counsel in this case has been one
of "delay, delay and delay" and that "this husband has acted with malice in attempting to delay the
entry of that order, the divorce decree, every step of the way." Ms. Gray argues that, in considering
the appropriateness of awarding attorney fees, the Court is obligated to consider the relevant
statutory factors regarding alimony set forth at T.C.A. 36-5-101 and that one of these factors is the
relative fault of the parties.
A trial court is allowed discretion in awarding attorney fees and its decision to do so will be
affirmed absent unless there is a showing of abuse of discretion. Houghland v. Houghland, 844
S.W.2d 619 (Tenn. Ct. App.1992).
In support of her argument that she is entitled to attorney fees based upon a finding that
Mr.Gray was at fault in this case, Ms. Gray cites the case of Lindsey v. Lindsey, 976 S.W.2d 175(Tenn. Ct. App. 1997). It is correct that in Lindsey we noted that the trial court could properly
consider the relative fault of the parties in awarding the wife attorney fees. However, we also noted
in that case that "[a] spouse with adequate property and income is not entitled to an award of
additional alimony to compensate for attorney's fees and expenses."
In Wilder v. Wilder, 66 S.W.3d 892 (Tenn. Ct. App. 2001), we addressed the issue of whether
the trial court abused its discretion in ordering the wife to pay $18, 000.00 of the husband's attorney's
fees. Giving reasons for its ruling, the trial court in Wilder stated that the proceedings were created
by the wife's adultery, that, had the divorce been a no-fault divorce each party would have paid its
own attorney's fees and that the husband was entitled to having his attorney's fees paid because "this
was all being motivated because of his ex-wife's behavior in this case." This Court reversed the trial
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court's ruling, noting that the trial court focused singularly upon the fault and behavior of the wife
and that "the record [was] devoid of any indication that the Judge considered the husband's financial
need or the wife's ability to pay" Citing Gilliam v. Gilliam, 776 S.W.2d 81 (TennCt. App. 1988),
we further noted in Wilder that "while fault is a factor to be considered, it must not be applied in a
punitive manner against a guilty party in determining the award of alimony."
Based upon the record presented in the instant case it appears that Trial Court's award of
attorney fees to Ms. Gray was based solely up on its finding of fault on the part of Mr.Gray and there
was no inquiry made as to Ms. Gray's financial need. We do not address the validity of the Court's
findings regarding any fault on the part of Mr. Gray because even if such findings are valid they
constitute an inadequate basis for the award of attorney fees as such an award is inappropriate absent
a showing of need on the part of Ms. Gray. Inquiry was not made as to Ms. Gray's need and had such
inquiry been made it would have shown that Ms. Gray should not receive attorney fees given the
amount of property awarded her in this case.
Finally, Ms. Gray's request for attorney fees incurred by her in defense of this appeal is
denied upon our finding that such is not justified under the circumstances presented.
For the foregoing reasons the judgment of the Circuit Court is affirmed in part and reversed
in part and remanded for such further proceedings, if any, as may be necessary and for collection of
costs below. Costs of appeal are adjudged equally to Roy William Gray and Nancy Jane Gray.
_________________________________________
HOUSTON M. GODDARD, PRESIDING JUDGE
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