Griffith-Ball v. Ball
| Decision Date | 13 May 2022 |
| Docket Number | M2020-00509-COA-R3-CV |
| Parties | DEBRA JEAN GRIFFITH-BALL v. STANLEY LAUREN BALL |
| Court | Tennessee Court of Appeals |
Session May 5, 2021
Appeal from the Circuit Court for Montgomery County No CC-19-CV-0029 Kathryn Wall Olita, Judge
A husband and wife divorced after a long marriage. They disputed whether certain assets were marital or separate property and whether the wife was entitled to alimony. The trial court found that the disputed assets were the husband's separate property. And it awarded the wife alimony in futuro, as well as attorney's fees as alimony in solido. Upon our review, we find the evidence preponderates against the finding that the assets are separate property. So, with those assets included in the marital estate, we remand for a new property division. And because the division of marital property is a factor in awarding alimony, we vacate the alimony awards. On remand the court should consider whether alimony is still appropriate under its new property division and, if so, the type, amount, and duration of the award.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed in Part; Vacated in Part; and Remanded
Daniel P. Bryant, Clarksville, Tennessee, for the appellant, Stanley Lauren Ball.
Steven C. Girsky, Clarksville, Tennessee, for the appellee, Debra Jean Griffith-Ball.
W. Neal McBrayer, J., delivered the opinion of the court, in which Frank G. Clement, Jr., P.J., M.S., and Kenny W. Armstrong, J., joined.
In January 2020, the Circuit Court for Montgomery County granted Stanley Ball ("Husband") and Debra Griffith-Ball ("Wife") a divorce. They had been married for 34 years and were both 65 years old. At the start of the parties' marriage, Husband was a car salesman and in the Army Reserves. Wife owned her own business as a hairdresser.
A couple of years into the marriage, the parties had two daughters, prompting Husband to return to active duty in the Army. His career required the parties to move many times, which made it difficult for Wife to continue her hairdressing career. So she became a homemaker and stay-at-home parent to the parties' children.
Around 2006 or 2007, Wife began working for the Clarksville Montgomery County School System in the special education department. And, in 2011, Husband retired from the Army after serving for over thirty years. He retired with a VA disability rating of 80%-which later changed to 100%-because of post-traumatic stress disorder, depression, migraines, back and knee problems, and sleep apnea.
Husband received monthly VA disability benefits that he deposited in a Fortera Credit Union account solely in his name. With this account, Husband purchased a property on Granny White Road to lease to one of the parties' now-adult daughters under a lease-purchase agreement. He also purchased a Dodge pickup for himself with the account. The account was funded only with Husband's VA disability benefits and the monthly rent from the daughter.
At the time of divorce, in addition to VA disability benefits, Husband received military retirement pay and Social Security benefits each month. His gross monthly income was $10, 354. He claimed monthly expenses of $3, 803.
Meanwhile, Wife still worked for the school system as a teacher's aide for a special education pre-kindergarten class. She also received Social Security. Her gross monthly income from these sources was $2, 090.18. But Wife's job was physically demanding, and she suffered from arthritis and sciatica. So she was unsure how much longer she could continue working. Wife claimed monthly expenses of $3, 926.
At trial, the parties agreed to much of the property division. Among other things, they agreed that Wife should receive half of Husband's retirement pay for the portion of his career that occurred during the marriage. So the trial court awarded Wife approximately $2, 050 per month from Husband's retirement pay.
The parties disputed whether the Fortera account and the purchases made from the account were marital or separate property. Husband argued that federal law prevents classifying VA disability benefits as marital property. So he claimed that the account was his separate property. Because the Granny White property and Dodge pickup were easily traced to the account, he also claimed that those items were his separate property. Wife acknowledged that the court could not divide Husband's VA disability benefits going forward. But she argued that the Fortera account was "an asset accumulated during the marriage that should be equitably divided." And, in addition to VA benefits, the Fortera account consisted of monthly rent from the parties' daughter. So Wife also contended that the account became marital property under the doctrines of commingling and transmutation.
The parties also disputed whether Wife was entitled to alimony. Husband argued that Wife's income could cover her monthly expenses, especially when considering her share of Husband's retirement pay. And, in Husband's view, Wife had "substantial separate assets" and would "be taking a substantial sum of cash and other assets in the division of marital property." Wife countered that her age and physical limitations would keep her from working in the future. And Husband's "substantial income" left him "more than capable" of paying alimony in futuro. Wife also sought alimony in solido to cover attorney's fees.
The trial court found that the disputed assets were Husband's separate property. The court reasoned that the Fortera account was in Husband's separate name, and "Wife has had no access to it." Although the Granny White property was titled in both parties' names, Husband purchased it with his separate Fortera account. And he purchased it to lease to the parties' daughter, not for the parties to live there themselves. There was "no evidence" that Husband intended to gift the property to the marital estate. Husband also purchased the Dodge pickup with the Fortera account. So the pickup could likewise be "traced into" Husband's separate property.
As for alimony in futuro, the trial court awarded Wife $2, 000 per month. Wife had "limited earning capacity" because of her physical issues. And, earlier in the marriage, her support of Husband's career prevented her from developing her own. Wife was also "financially disadvantaged as compared with Husband." After considering Wife's portion of Husband's retirement pay, Husband still earned "nearly twice" what Wife did. Most importantly, Wife showed "a documented need of $2, 044.72 per month," and Husband had the ability to pay. Husband earned over $100, 000 per year and had a monthly surplus of $2, 800. He also left the marriage "with substantial separate assets."
The trial court also agreed with Wife that she was entitled to alimony in solido, awarding her $15, 000 "to go toward the attorney fees she incurred." Husband had argued that his VA disability benefits could not be considered as income "for any purpose." But the court found this argument "contrary to the existing law." And it contributed to the need for a trial and an increase in Wife's attorney's fees. The court also considered that Wife had not received her portion of Husband's retirement "for the nearly [twelve] months th[e] matter ha[d] been pending."
On appeal, Husband argues that the trial court erred in granting Wife alimony in futuro and alimony in solido. Alternatively, he argues that the awards were too high. For her part, Wife argues that the Fortera account, Granny White property, and Dodge pickup should have been classified as marital property. Both parties also request attorney's fees on appeal.
Because this was a bench trial, our review is de novo on the record with a presumption that the trial court's factual findings are correct, unless the evidence preponderates against those findings. Tenn. R. App. P. 13(d). Evidence preponderates against a finding of fact if the evidence "support[s] another finding of fact with greater convincing effect." Rawlings v. John Hancock Mut. Life Ins. Co., 78 S.W.3d 291, 296 (Tenn. Ct. App. 2001). We review the trial court's conclusions of law de novo with no presumption of correctness. Kaplan v. Bugalla, 188 S.W.3d 632, 635 (Tenn. 2006).
The division of marital property and each party's separate assets impact the question of alimony. See Tenn. Code Ann. § 36-5-121(i)(7)-(8) (2021). So we start with Wife's issues on appeal. Dividing a marital estate "must start with the classification of the parties' property." Flannary v. Flannary, 121 S.W.3d 647, 650 (Tenn. 2003); Owens v. Owens, 241 S.W.3d 478, 485 (Tenn. Ct. App. 2007). Property is classified "as either marital or separate." Keyt v. Keyt, 244 S.W.3d 321, 328 (Tenn. 2007); Brown v. Brown, 913 S.W.2d 163, 166 (Tenn. Ct. App. 1994). And "only marital property is equitably divided between the parties." Oakes v. Oakes, 235 S.W.3d 152, 158 (Tenn. Ct. App. 2007); see Tenn. Code Ann. § 36-4-121(a)(1) (2021). Separate property "is not part of the marital estate and is therefore not subject to division." Snodgrass v. Snodgrass, 295 S.W.3d 240, 246 (Tenn. 2009). The classification of property as marital or separate is a question of fact. Stratienko v. Stratienko, 529 S.W.3d 389, 398-99 (Tenn. Ct. App. 2017). All property "acquired by either or both spouses during the course of the marriage" is marital property. Tenn. Code Ann. § 36-4-121(b)(1)(A).
Here Husband funded the Fortera account with rent income from the parties' daughter and VA disability benefits that he received during the marriage. Rent income earned during marriage is marital property under Tennessee law.[1] See id.; see also Wade v. Wade, 897 S.W.2d 702, 716 (Tenn. Ct....
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