May v. May
| Decision Date | 29 November 2011 |
| Docket Number | No. E2010-01026-COA-R3-CV,E2010-01026-COA-R3-CV |
| Parties | MARCELLA E. MAY v. DONALD B. MAY, ET AL. |
| Court | Tennessee Court of Appeals |
Appeal from the Domestic Relations Court for Meigs County
No. D-760 Jayne Johnston Crowley, Judge
After twenty-five years of marriage, Marcella E. May ("Wife") sued Donald B. May ("Husband") for divorce. Husband's adult son Donald P. May ("Son") was added later to the suit as a defendant concerning a real property transfer. After a trial, the Trial Court entered its Final Decree of Divorce, inter alia, awarding Wife a divorce, dividing the marital property, awarding Wife transitional alimony, and awarding Wife judgment for attorney's fees against Husband. After further hearing, the Trial Court entered subsequent orders awarding Wife $63,474.34 in attorney's fees and $2,965.77 in costs against Husband, and $4,083.50 in attorney's fees against Son. Husband and Son appeal to this Court raising issues regarding the classification and distribution of specific property, and the awards of alimony and attorney's fees. We affirm with regard to the classification and distribution of property, the award of alimony, and the award of attorney's fees against Husband. We find and hold that no contractual or statutory basis allowed for an award of attorney's fees against Son, and we, therefore, vacate the award to Wife of a judgment for attorney's fees against Son.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Domestic Relations Court
Affirmed, in part; Vacated, in part; Case Remanded
D. MICHAEL SWINEY, J., delivered the opinion of the Court, in which HERSCHEL P. FRANKS, P.J., and CHARLES D. SUSANO, JR., J., joined.
D. Mitchell Bryant, Athens, Tennessee, for the appellants, Donald B. May and Donald P. May.
Harold L. North, Jr., Chattanooga, Tennessee, for the appellee, Marcella E. May.
Background
Husband and Wife married in 1983. No children were born of the marriage. Wife sued Husband for divorce in 2008. Wife later alleged that certain marital real property had been erroneously or fraudulently conveyed to Son, and Wife was granted leave to amend her complaint to add Son as a defendant to the suit concerning this real property. The case proceeded to trial without a jury.
At the time of trial, Husband was 75 years old and had no health issues. Husband holds a degree in poultry science and agriculture from the University of Georgia with a minor in business law and a minor in economics. He was employed for fifteen years at Mayo Chemical as a director of sales and as a manager. Husband retired from Mayo and began employment as a consultant for Dycho in 2002. Husband earns $1,250 per month in his position with Dycho and works whatever hours he chooses. He also receives reimbursement for his expenses.
Husband and Wife own a farm in Decatur, Tennessee ("the Farm"), which was the parties' marital home. The Farm consists of approximately one hundred and fifty acres. Husband admitted that during a meeting with an attorney in December of 2005 for estate planning purposes, Husband told the attorney that the Farm had a value of close to $1 million. Wife testified that Husband told her the Farm was worth over a million dollars. She stated that during the estate planning meetings with the attorney, Husband told the attorney that the Farm was worth "anywhere from a million and a half to two." Husband remained in the marital home on the Farm during the pendency of the divorce.
Husband and Wife also own a cabin and lot in Gatlinburg. The Gatlinburg cabin was purchased by Husband approximately two years before the parties were married. After the marriage, Husband conveyed a one-half undivided interest in the Gatlinburg property to Wife. At trial, the parties stipulated that the Gatlinburg property was worth $185,000 for both the cabin and the lot.
During the pendency of the divorce, the Trial Court ordered that the Farm be listed for sale. When asked, Husband admitted that he was at the hearing where the Trial Court ordered that the Farm be listed for sale, but that he had not listed the Farm for sale. When asked why he had not complied with the Trial Court's order, Husband stated: "I just didn't do it." Husband admitted that he did not want to list the Farm for sale. Husband admitted that the Trial Court also had ordered that the Gatlinburg property be listed for saleand that he had not done that either. When asked why he had not listed the Gatlinburg property for sale, Husband stated:
During the marriage, Husband's and Wife's regular household expenses were paid from their joint First Tennessee Bank account ("First Tennessee Account"). After Wife filed for divorce, Husband took Wife's name off the First Tennessee Account and put Son's name on it.
Husband inherited $688,000 during the marriage. This money was deposited into Husband's and Wife's First Tennessee Account. Husband testified that he later moved the money into an account with the Hartford Fund ("Hartford Account") in Husband's name only. Husband stated:
I had to - - where the people mailed the check, I had to give them an account number and account bank number so they could deposit it at First Tennessee Bank. It was only in there just to say that the bank got it. I didn't write any checks, nothing off of it. It was immediately put in to investment.
Husband claimed that First Tennessee Bank moved the money into the Hartford Account "immediately," but when asked exactly when that was done, Husband stated: Husband admitted that the inheritance money was commingled with marital funds in the First Tennessee Account, and that he did not know how much money was in the First Tennessee Account at the time of the $688,000 deposit. Husband claimed there was no way to trace that to find out.
Husband testified that he used some of the money from his inheritance to purchase two trucks for himself and one for his daughter, a Jaguar for Wife, a camper, and various farm implements and stated: "I had to transfer some money from Hartford to my bank account." The camper cost approximately $32,000. When asked about moving the money from the First Tennessee Account to the Hartford Account and then back to the First Tennessee Account, Husband admitted that during his deposition he had stated: Husband did not know how much of the money he had held out, but Husband also stated that all of the inheritance money went into the Hartford Account.
Husband testified that the money was in the Hartford Account since 2003. During his deposition, Husband stated: "I turned that money over to First Tennessee and it took awhile to invest that money." Husband stated:
I don't know how quickly the money went out of the [First Tennessee]account. I cannot - - I don't remember. It was 2002, and I don't know how much money I had in there. I don't know how much money I took out and I don't know when Hartford took the money out or First Tennessee put it out into Hartford. They invested that money in stages.
Husband admitted that while the inheritance money was in the First Tennessee Account, he put his income into that account and paid marital expenses out of that account. Husband agreed that he thought that it would be financial chaos to try to recreate when the inheritance money came in to and went out of the First Tennessee Account.
Although he was asked for the First Tennessee Account and Hartford Account records during discovery, Husband failed to produce either. Husband admitted that he threw away the First Tennessee Account and Hartford Account records. He stated: "I didn't need them." When asked why he did not spend time trying to recreate the details about the money that went from the First Tennessee Account to the Hartford Account, Husband stated: Husband admitted that he worked with his attorney to prepare an exhibit documenting his 401(k) contributions going back to 1977. Husband admitted that he would only have had to go back to 2002 or 2003 to document the Hartford Account, and that he could have done the same for the Hartford Account as he did for his 401(k). Husband also admitted that he had been asked during discovery to produce the Hartford Account records.
Husband admitted that out of the money coming from the First Tennessee Account he purchased a John Deere Gator for $9,000, a Grasshopper lawnmower for $16,000, a hay rake for $850, a Grain-O-Vator, a New Holland feed mixer for $3,500, a 12-foot mower for $2,000, a new barn for $65,000, a new watering system, a gooseneck trailer for $32,000, a Filson head shoot for $2,400, a herd of cattle for $20,000, two bulls, a swimming pool for $26,000, and closed in a front porch for $2,600. Husband stated that he purchased these items over a period of several years.
Husband was unsure how much money was in the Hartford Account at the time of trial, but he approximated it at $130,000. When asked if there had been $300,000 in the Hartford Account at the time the divorce was filed, Husband stated: "I don't remember." Husband claimed that the money in the Hartford Account went toward alimony while the divorce was pending. When questioned further, Husband testified that he also paid some of Wife's bills from the Hartford Account.
Husband testified that there was $900 in the First Tennessee Account at the time of trial. During his deposition Husband had stated that there was $12,000 in the First Tennessee Account. When asked about the depletion of the First Tennessee Account,Husband stated: When questioned further about the $12,000, Husband stated: "That's...
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