Kirk v. Kirk

• Decision Date: 06 September 2013
• Docket Number: No. W2012–00451–COA–R3–CV.,W2012–00451–COA–R3–CV.
• Citation: 447 S.W.3d 861
• Parties: James Glen KIRK v. Gloria Taylor KIRK.
• Court: Tennessee Court of Appeals

447 S.W.3d 861

James Glen KIRK

v.Gloria Taylor KIRK.

No. W2012–00451–COA–R3–CV.

Court of Appeals of Tennessee, Western Section, at Jackson.

April 16, 2013 Session.

Sept. 6, 2013.

March 5, 2014.

Rachael E. Putnam and Austin T. Rainey, Memphis, Tennessee, for the appellant, James Glen Kirk.

Lara E. Butler, Memphis, Tennessee, for the appellee, Gloria Taylor Kirk.

OPINION

DAVID R. FARMER, J., delivered the opinion of the Court, in which ALAN E. HIGHERS, P.J., W.S., and J. STEVEN STAFFORD, J., joined.

DAVID R. FARMER, J.

This appeal involves the trial court's disposition of Wife's post-judgment motions and re-division of marital property. Following the trial court's entry of the final decree of divorce, Wife filed several post-judgment motions seeking relief from the final decree based on Husband's misrepresentation and concealment of assets prior to the trial court's division of the marital estate. After an extensive period of discovery, the trial court agreed with Wife and concluded that she was entitled to a new division of marital property and relief from the final decree under either Rule 59 or Rule 60 of the Tennessee Rules of Civil Procedure. The trial court further ordered Husband to pay Wife's attorney's fees and expert fees. Husband appeals. We affirm.

I. Background and Procedural History

In 1987, James Glen Kirk (“Husband”) and Gloria Taylor Kirk (“Wife”) were married. During the marriage, Husband ran a farming operation focused primarily on the production and sale of various row crop commodities, and Wife worked as a mortgage broker. No minor children were born of the marriage. Subsequently, in January 2008, Husband filed a complaint for divorce in the Circuit Court of Shelby County. The parties stipulated as to grounds for divorce and all other issues were heard by the trial court beginning on February 23, 2009, and ending on March 2, 2009. Thereafter, on March 26, 2009, the trial court entered its final decree of divorce.

On April 22, 2009, Wife filed a motion to alter or amend the final decree pursuant to Rule 59.04 of the Tennessee Rules of Civil Procedure. In her motion, Wife raised issues regarding items of personal property, the trial court's valuation and division of Husband's Tipton County Co-op pension, and further asked the trial court to designate which specific items of farm equipment it intended to award to her pursuant to the final decree. On August 4, 2009, while her Rule 59.04 motion was still pending, Wife filed a petition for contempt in which she asserted that Husband refused to pay certain sums awarded to her by the trial court. After conducting a hearing, the trial court dismissed Wife's contempt petition because the final decree had not yet become a final order in light of Wife's pending Rule 59.04 motion.

Shortly thereafter, on August 20, 2009, Wife filed a motion for relief from judgment pursuant to Rule 60.02 of the Tennessee Rules of Civil Procedure. In her motion, Wife alleged that Husband had misrepresented his assets and committed fraud upon the court based on information she discovered in connection with her contempt petition. Specifically, Wife pointed to a bank statement produced by Husband which reflected that his farm operating account balance on the date of trial was $61,022.04, as opposed to the $4,406.71 amount Husband provided in his Rule 14(D) memorandum that he submitted to Wife and the trial court in accordance with the Shelby County Local Rules. Wife also pointed to the testimony of Husband's banker which was elicited during the hearing on Wife's contempt petition. Husband's banker testified that Husband obtained a line of credit shortly after the entry of the final decree based on his stated net worth of $1,600,751.00. This amount was $388,164.06 more than the value Husband placed on the entire marital estate in his Rule 14(D), and $705,734.00 more than Husband was awarded in the trial court's division of marital property three months earlier. In response, on November 19, 2009, Husband filed a motion for summary judgment in which he addressed the deposits made to his farm operating account during the trial, argued that Wife's allegations of fraud were not plead with specificity, and urged the trial court to conduct a hearing on his motion. An extensive and prolonged period of discovery followed.

As the trial court thoroughly explained in its findings, the following information emerged in post-judgment discovery that was not originally considered by the trial court in its division of marital property:

Extensive discovery has been conducted since the original trial. Wife's expert J. Kenneth Marston, Jr., was originally hired to “assist in determining Glen Kirk's income for the purposes of the divorce, the decree of which was entered on March 26, 2009.” Subsequent to the original trial, Mr. Marston was requested to determine if there were assets subject to the division between the parties, but which were not considered at the time of the original divorce proceeding. In his report, Mr. Marston states, “as our Conclusion of Findings section of this report indicates, there appear to be numerous assets which were subject to division between the parties, but which were not considered at the time of the original divorce proceedings.”

The Court finds that the items listed in Mr. Marston's report which are affected by “newly discovered evidence” are as follows:

(1) First Citizens Bank account # [XXXXXXX]-Account balance discrepancy

(2) Discrepancies between information disclosed to First Citizens Bank by Husband in connection with loan approval and information disclosed on Husband's 14(D)

(3) 2008 crop proceeds received in 2009

(4) 2008 crop proceeds received in 2008 but not deposited in farm account

(5) Open contract for 2009 crop proceeds

(6) Crop insurance proceeds of $64,137.00 received on 1–1–09 but not deposited into the farm bank account.

(1) First Citizens Bank account # [XXXXXXX]—Account balance discrepancy

The actual balance in this account on the trial date of February 23, 2009 was $61,022.04 which includes $45,523.16 paid by Bunge for corn for 2008. Husband's 14(D) stated that the balance of the account was $4,406.71. As noted in the report of J. Kenneth Marston, Jr., “... the balance reported by Mr. Kirk in his Rule 14(D) information and subsequently used at trial did not provide a fair representation of the typical balance for this particular bank account.”

(2) Discrepancies between information disclosed to First Citizens Bank by Husband in connection with loan approval and information disclosed on Husband's 14(D)

Husband signed a financial statement dated January 8, 2009, claiming assets valued at $1,611,000.00. On February 23, 2009, Husband filed his 14(D) claiming assets valued at $l,212,586.94. Husband's 14(D) was incorrectly calculated. The correct calculation should have been $1,441,186.18 which is $169,138.20 less than the financial statement. Husband did not include on his 14(D) the Patronage Dividend valued at $125,000.00 or the cash on hand of $50,000.00.

(3) 2008 crop proceeds received in 2009

During the December 12, 2008 hearing, Husband testified that he had received all of his 2008 crop proceeds and had no money to carry over to the next year. The record reflects payments by Bunge as follows:

(1) $45,523.16 for corn from 2008 deposited in the farm account in December of 2008

(2) $29,346.70 for winter wheat from 2008[.] Bunge settlement date 5–04–09

(3) $23,612.50 for cancellation of a 2008 contract for winter wheat[.] Bunge contract cancellation 6–02–09/deposited into Brighton Bank

Husband testified under oath on December 12, 2008, that he had harvested his 2008 crop, sold it to the individuals he normally sold it to, and paid off debts. He further stated that he was not going to be able to carry over any money into the next farm year of 2009. The question and answer on page 72 of the transcript of the hearing of December 12, 2008 are as follows:

Q. Are you going to be able to carry over any money into the next farm year 2009?

A. No, not at this time. I can't see it.

The answer is clearly false. Proof taken subsequent to the trial conducted in February and March of 2009 established that Bunge made the following payments to Husband in 2009 for the 2008 crop year:

(1) $29,346.70 for winter wheat from 2008

(2) $23,612.50 for cancellation of a 2008 contract for winter wheat

Husband testified in his deposition taken in November of 2010 that he was aware of the first deposit for the remaining 2008 corn crop, but denied knowing the source of the second deposit of $29,346.70 for the winter wheat from 2008. The court does not find Husband's testimony credible.

(4) 2008 crop proceeds received in 2008 but not deposited in the farm account at First Citizen's National Bank # [XXXXXXX]

J. Kenneth Marston, Jr. reviewed Bunge Corporation records finally provided. The records from Bunge showed payments by Bunge of $110,804.60. $110,804.60 in 2008 crop proceeds was not accounted for or disclosed by Husband's 14(D).

A review of Husband's bank records does show a payment of $72,407.26 which was in connection with a payment by Staple Cotton, not Bunge.

(5) Open contract for 2009 crop proceeds at time of trial

J. Kenneth Marston, Jr. reviewed the Bunge Corporation records finally provided. The records from Bunge showed payments by Bunge of $135,815.35 which were not accounted for or disclosed by Husband's 14(D).

(6) Crop insurance proceeds of $64,137.00 received on 1–1–09 but not deposited into the farm account

On January 1, 2009, crop insurance proceeds were received from Rural Community Insurance Services in the amount of $64,137.00. The original check received on January 1, 2009, was not deposited into any bank account. Husband held the check and subsequently, on April 2, 2009, exchanged the original check for another cashier's check from First Citizens Bank in the same amount, $64,137.00. Husband could not explain why he did not deposit and use the $64,137.00 when he received it on January 1,

...