Fisher v. Fisher
Citation | 648 S.W.2d 244 |
Parties | Dorothy Bennett FISHER, Plaintiff-Appellee, v. Thomas Wayne FISHER, Defendant-Appellant. 648 S.W.2d 244 |
Decision Date | 04 April 1983 |
Court | Supreme Court of Tennessee |
Joe M. Haynes, Goodlettsville, for defendant-appellant.
William Carter Conway, Franklin, for plaintiff-appellee.
The primary issue on appeal is whether the division of the parties' marital property was just and reasonable as prescribed by T.C.A. Sec. 36-825. In making this determination, we must first resolve an apparent conflict between members of the Court of Appeals and decide whether "fault" and "need" are proper factors to be considered by a court when adjusting the rights and interests of the parties in jointly owned property under T.C.A. Sec. 36-825.
The parties had been married over 24 years when this case was heard. Mr. Fisher was 60 years of age, and Mrs. Fisher was 47 years of age. They had no children. Both parties were employed and made approximately the same amount of money. During the course of the marriage, they used their earnings for their common good. They owned a house and lot, unimproved land, and a joint savings account containing $17,600.
The trial judge awarded Mr. Fisher an absolute divorce on the grounds of cruel and inhuman treatment. The marital estate was valued at approximately $95,000 and Mr. Fisher received approximately $60,000 in assets, which included the house and lot, and Mrs. Fisher was awarded approximately $35,000, which included the unimproved lot. Mrs. Fisher perfected an appeal to the Court of Appeals contesting the division of the marital estate. The Court of Appeals modified the decree of the trial court, awarding Mrs. Fisher a lien on the house and lot With this modification, each party would ultimately receive approximately $47,000.
In the Court of Appeals, Mrs. Fisher asserted that fault was not a consideration in the equitable division of jointly owned assets. Mr. Fisher contended that fault was a proper consideration in the distribution of the assets of the parties, and that, but for his wife's misconduct, there would have been no divorce and no necessity to divide the property. The trial judge made no findings of fact or conclusions of law, therefore, we do not know whether fault was, in fact, a factor which he considered. Mrs. Fisher argues that it was a factor.
In the Court of Appeals, two members found that fault and need were not factors to be considered in arriving at a just and reasonable disposition of jointly owned property pursuant to T.C.A. Sec. 36-825. Another member of that panel was of the opinion that fault and need were just factors, though not normally the major ones, to be considered in the application of the statute. All three members of the Court concurred in dividing the joint property approximately equally.
In his appeal to this Court, Mr. Fisher contends that his needs are greater than that of Mrs. Fisher, that he is thirteen years older than she, that his health is not as good as hers, and that he has a compelling need for the home since he conducts his business from the home. He avers that the "financial need of the parties should be a definite factor in the division, if not the critical factor."
Mrs. Fisher responds that the property was acquired through their joint efforts, that the earnings of the parties are equal, that Mr. Fisher is allowed to remain in the residence of the parties with an extremely low mortgage payment and the only way that possession can be disrupted is by a choice of his own. She concludes that the Court of Appeals did not err in modifying the trial court's award leaving the parties with roughly an equal distribution of assets.
The authority to divide the jointly owned property of married couples is given to the courts by T.C.A. Sec. 36-825:
Adjustment of interests in jointly owned property.--In all actions for divorce or separate support and maintenance, the court having jurisdiction thereof may, in its discretion, adjust and adjudicate the respective rights and interests of the parties in all jointly owned property, so as to preserve for each or either party, that portion of such jointly owned property as may be just and reasonable under the facts and circumstances of the case, regardless of how the court may grant or refuse to grant relief in such case; and to this end the court shall be empowered to effectuate its decree by divesting and reinvesting title to such property and, where deemed necessary, to order a sale of such property and to order the proceeds divided between the parties. [Acts 1953, ch. 90, Sec. 1 (Williams, Sec. 8446); 1959, ch. 192, Sec. 1.] (emphasis added).
This statute "gives the court wide discretion to adjust and adjudicate the respective rights and interests of the parties in all jointly owned property."...
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