Larsen-Ball v. Ball

• Decision Date: 14 January 2010
• Docket Number: No. E2007-02220-SC-R11-CV.,E2007-02220-SC-R11-CV.
• Citation: 301 S.W.3d 228
• Parties: Marn Suzanne LARSEN-BALL v. William Gordon BALL.
• Court: Tennessee Supreme Court

301 S.W.3d 228

Marn Suzanne LARSEN-BALL v. William Gordon BALL.

No. E2007-02220-SC-R11-CV.

Supreme Court of Tennessee, at Knoxville.

September 4, 2009 Session.

January 14, 2010.

Thomas C. Jessee, Johnson City, Tennessee, and Thomas S. Scott, Jr. and William Gordon Ball, Knoxville, Tennessee, for the appellant, William Gordon Ball.

Valerie T. Corder, Memphis, Tennessee, for the appellee, Marn Suzanne Larsen-Ball.

OPINION

JANICE M. HOLDER, C.J., delivered the opinion of the Court, in which CORNELIA A. CLARK and WILLIAM C. KOCH, JR., JJ., and DONALD P. HARRIS, SP.J., joined.

This case requires us to construe Tennessee Code Annotated section 36-4-121(b)(1)(A) to determine whether a $17 million attorney fee acquired by Husband after Wife filed a complaint for divorce but before the final divorce hearing is "marital property" and therefore subject to equitable division. The trial court classified the attorney fee as marital property and awarded approximately sixty percent of the marital estate to Husband and forty percent to Wife. The Court of Appeals affirmed the trial court's classification of the attorney fee and its division of the marital estate. We hold that the attorney fee is marital property and that the evidence does not preponderate against the trial court's division of the marital estate. We therefore affirm the judgment of the Court of Appeals.

Facts and Procedural History

Marn Suzanne Larsen-Ball and William Gordon Ball were married on August 12, 1989, in Knox County, Tennessee. Prior to the marriage, Ms. Ball worked in retail management. After the parties were married, she became a stay-at-home mother to the parties' two children, born April 22, 1990, and April 26, 1991. At the time of the marriage, Mr. Ball, a former Assistant United States Attorney, had been practicing law for fifteen years and was handling criminal defense and personal injury cases. Mr. Ball began to specialize in class action lawsuits as the marriage progressed. As a result of Mr. Ball's class action practice, the parties amassed a sizable estate, including large bank accounts, vehicles, vacation properties, and a private plane.

On January 31, 2006, Ms. Ball filed a complaint for divorce against Mr. Ball in the Chancery Court for Knox County. Seven months later, on August 31, 2006, Mr. Ball received a $17 million attorney fee from a class action lawsuit in South Carolina that was the culmination of several years' work. Ms. Ball filed a motion for partial summary judgment requesting that the trial court classify the attorney fee as marital property subject to equitable division under Tennessee Code Annotated section 36-4-121(b)(1)(A) (2005).

The trial court granted Ms. Ball's motion for partial summary judgment and ruled that the $17 million attorney fee is marital property. At a hearing on August 28 and 29, 2007, the parties stipulated that Ms. Ball was entitled to a divorce from Mr. Ball on the grounds of inappropriate marital conduct and presented proof concerning the division of the marital estate. In an order dated September 3, 2007, the trial court valued the marital property at $29,650,000, which included the $17 million attorney fee, and awarded approximately sixty percent of the marital estate to Mr. Ball and forty percent to Ms. Ball. The trial court entered a final judgment on September 26, 2007.

Both parties filed timely notices of appeal. Mr. Ball appealed the trial court's classification of the attorney fee as marital property, and both parties appealed the trial court's division of the marital estate. The Court of Appeals held that the attorney fee was marital property and affirmed the trial court's division of the marital estate.

We granted Mr. Ball's and Ms. Ball's applications for permission to appeal.

Analysis

"Tennessee is a `dual property' state because its domestic relations law recognizes both `marital property' and `separate property.'" Snodgrass v. Snodgrass, 295 S.W.3d 240, 246 (Tenn.2009); see generally Tenn.Code Ann. § 36-4-121. Thus, before equitably dividing the marital estate, the trial court must identify all of the assets possessed by the divorcing parties as either separate or marital. Snodgrass, 295 S.W.3d at 246. Separate property is not part of the marital estate and is therefore not subject to division. See Cutsinger v. Cutsinger, 917 S.W.2d 238, 241 (Tenn.Ct.App.1995). In contrast, marital property must be divided equitably between the parties based on the relevant factors enumerated in Tennessee Code Annotated section 36-4-121(c) without regard to fault on the part of either party. Tenn. Code Ann. § 36-4-121(a)(1). Section 36-4-121(a)(1) requires an equitable division of marital property, not an equal division. Robertson v. Robertson, 76 S.W.3d 337, 341 (Tenn.2002).

I. Classification of the $17 Million Attorney Fee

We granted appeal to address whether the $17 million attorney fee acquired after Ms. Ball filed the complaint for divorce but before the final divorce hearing is marital property under Tennessee Code Annotated section 36-4-121(b)(1)(A) and therefore subject to equitable division. The construction of a statute and its application to the facts of a case are questions of law, which we review de novo with no presumption of correctness afforded to the lower court's conclusions. Lavin v. Jordon, 16 S.W.3d 362, 364 (Tenn.2000).

Our role in construing a statute "is to ascertain and give effect to the legislative intent without unduly restricting or expanding the statute's coverage beyond its intended scope." Owens v. State, 908 S.W.2d 923, 926 (Tenn.1995). In fulfilling this role, we presume that every word in the statute has meaning and purpose and should be given full effect if the obvious intent of the General Assembly is not violated by so doing. In re C.K.G., 173 S.W.3d 714, 722 (Tenn.2005).

Tennessee Code Annotated section 36-4-121(b)(1)(A) provides the following definition of marital property, in pertinent part:

all real and personal property, both tangible and intangible, acquired by either or both spouses during the course of the marriage up to the date of the final divorce hearing and owned by either or both spouses as of the date of filing of a complaint for divorce, except in the case of fraudulent conveyance in anticipation of filing, and including any property to which a right was acquired up to the date of the final divorce hearing, and valued as of a date as near as reasonably possible to the final divorce hearing date.

(emphasis added).

We presume that the General Assembly used each word in the statute deliberately. Bryant v. Genco Stamping & Mfg. Co., 33 S.W.3d 761, 765 (Tenn.2000). Consistent with this presumption, the inclusion of the word "and" would impose two distinct requirements for an asset to constitute marital property: the asset must have been owned "as of the date of filing of a complaint for divorce" and acquired "up to the date of the final divorce hearing." Applying this interpretation, the $17 million attorney fee would not be marital property because Mr. Ball did not own the fee when the complaint for divorce was filed even though he acquired the fee prior to the final divorce hearing.

We observe that interpreting this section to require that an asset be both owned "as of the date of filing of a complaint for divorce" and acquired "up to the date of the final divorce hearing" renders the latter-quoted phrase superfluous. Property that is owned on the date of filing was necessarily acquired before the date of the final divorce hearing because the date of filing will always precede the date of the final divorce hearing.

Although statutory phrases separated by "and" are usually interpreted in the conjunctive we have recognized that "and" can be construed in the disjunctive when such a construction is necessary to further the intent of the legislature. Stewart v. State, 33 S.W.3d 785, 792 (Tenn.2000) (citing City of Knoxville v. Gervin, 169 Tenn. 532, 89 S.W.2d 348, 352 (1936) ("The word `and' is frequently construed as meaning `or.'")). When we apply the disjunctive in this case, the definition of marital property will be read to include all property owned as of the date of filing of the complaint for divorce or acquired up to the date of the final divorce hearing.

At first blush, this construction would appear to render inoperative the language requiring that property be "owned ... as of the date of filing of a complaint for divorce." In Flannary v. Flannary we clarified, however, that the purpose of the date of filing in the definition of marital property is to exclude property that was once owned by the parties but is owned by neither party at the time the complaint for divorce is filed.¹ See 121 S.W.3d 647, 650 (Tenn.2003). Such property is not subject to classification or distribution because a court cannot classify or distribute what is "not there." See id. at 649-50. Prior to filing the complaint for divorce, Mr. Flannary withdrew cash from a savings account and placed the cash in his bedroom drawer. At trial, he testified that when he went to redeposit the cash, it was gone. Neither party knew what happened to the cash. Significantly, neither party disputed that the cash was missing before Mr. Flannary filed for divorce. Accordingly, we held that the cash was not marital property under section 36-4-121(b)(1)(A).

Furthermore, applying the disjunctive permits us to construe section 36-4-121(b)(1)(A) "so that its component parts are consistent and reasonable." State v. Odom, 928 S.W.2d 18, 30 (Tenn.1996). The plain meaning of "during the course of the marriage," for example, is the time period between marriage and divorce. See Alford v. Alford, 120 S.W.3d 810, 813-14 (Tenn.2003). The inclusion of this language and the multiple references to the "final divorce hearing" suggest that the General Assembly intended to permit parties to acquire marital property as late as the date of the final divorce hearing. We observe, moreover,...