FILED

May 14, 1997

Cecil W. Crowson

Appellate Court Clerk

JULIA ANN GENTRY, )

)

Plaintiff/Appellee, ) Appeal No.

) 01-A-01-9611-CH-00512

v. )

) Montgomery Chancery

JAMES WALTER GENTRY, III, ) No. 94-75-573

)

Defendant/Appellant. )

COURT OF APPEALS OF TENNESSEE

MIDDLE SECTION AT NASHVILLE

APPEAL FROM THE CHANCERY COURT FOR MONTGOMERY COUNTY

AT CLARKSVILLE, TENNESSEE

THE HONORABLE ALEX DARNELL, CHANCELLOR

MARK A. RASSAS

JULIA P. NORTH

Rassas & Rassas

Suite 104, Glenn Building

P. O. Box 361

Clarksville, Tennessee 37041-0361

ATTORNEYS FOR PLAINTIFF/APPELLEE

FRANK J. RUNYON

MARKLEY RUNYON GILL

P. O. Box 1023

Clarksville, Tennessee 37041

ATTORNEYS FOR DEFENDANT/APPELLANT

AFFIRMED AS MODIFIED,

 AND REMANDED

SAMUEL L. LEWIS, JUDGE
1

Court of Appeals Rule 10(b):

The Court, with the concurrence of all judges participating in the case, may affirm, reverse or

modify the actions of the trial court by memorandum opinion when a formal opinion would have

no precedential value. When a case is decided by memorandum opinion, it shall be designated

"MEMORANDUM OPINION," shall not be published, and shall not be cited or relied on for any

reason in a subsequent unrelated case. 

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MEMORANDUM OPINION1

This is an appeal by the defendant, James Walter Gentry, III, from a

decision of the Montgomery County Chancery Court. Defendant takes issue with the

court’s decision which awarded the plaintiff, Julia Ann Gentry, a portion of

Defendant’s stock, ordered Defendant to pay $550.00 per month in child support, and

awarded Plaintiff $8,000.00 as her share of the equity in the marital property.

Plaintiff also raises the issue of whether the court erred when it awarded Defendant

control of the assets of the parties’ minor child, William Todd Gentry. The facts out

of which this matter arose are as follows.

The parties were married on 9 January 1982. Prior to the marriage, both

parties were commissioned officers in the United States Army and were stationed at

Fort Knox, Kentucky. Plaintiff has a master’s degree in human services and human

resources, and Defendant has a master’s degree in education. Plaintiff became

pregnant after the parties married and resigned her commission. William Todd

Gentry was born on 3 May 1983. During the marriage, Plaintiff was active in various

military and community volunteer activities. At some point, she began working as

a part-time substitute teacher. The Army released Defendant from active duty in

1990. He received approximately $30,000.00 in severance pay. 

After Defendant lefttheArmy, the familymoved to Chattanooga, Tennessee

to live with Defendant’s parents. The parties were not getting along at this time.

Defendant testified that he put out hundreds of resumes, but could not find work for

approximately six months. Thereafter, he took a part-time position with the

Tennessee National Guard. 

Plaintiff and William moved from Defendant’s parent’s house to

Clarksville, Tennessee because Plaintiff found a full-time job at Fort Campbell. After

the parties had been separated three months, Defendant stated he wanted to get the
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family back together and joined Plaintiff and his son in Clarksville. Defendant

promised to get counseling and to get a job as part of the reconciliation. Although he

failed to get counseling, Defendant continued his work with the National Guard on

a part-time basis and obtained a full-time position with the Video Cart Company as

a consultant. Unfortunately, the full-time job did not work out because the company

went out of business in 1993. Despite Defendant’s continuous unemployment

history, the parties were able to purchase a home in Clarksville in June 1992.

In June 1994, Defendant went on a National Guard training exercise. He

told Plaintiff he would be gone for two or three weeks with the Guard and then for

another two weeks where he would be unable to tell her his whereabouts. While

Defendant was away, Plaintiff gave notice and left her employment. She and William

moved back to her hometown of Rogersville, Tennessee. She left a message for

Defendant that she was at her mother’s house and had paid all the bills. Plaintiff was

employed as a court services counselor at the time of trial. Defendant continued his

part-time employment with the Guard and also claimed to be self-employed.

Plaintiff filed a complaint for absolute divorce on 19 July 1994. Plaintiff

alleged irreconcilable differences, inappropriate marital conduct, and adultery as

grounds for the divorce. Defendant admitted there were irreconcilable differences

between the parties, but denied he was guilty of inappropriate marital conduct or

adultery. In addition to his answer, Defendant filed a counter-complaint. He too

alleged irreconcilable differences, but also alleged Plaintiff was guilty of cruel and

inhuman treatment.

The court heard the case on 26 September 1995. During the trial, each party

accused the other of inappropriate and odd behavior. Plaintiff claimed Defendant

became very depressed after the Army released him from active duty. She alleged

Defendant lost interest in personal hygiene and in his marriage and child. She also

alleged Defendant had been involved in extra-marital affairs and Plaintiff had

contracted chlamydia, a sexually transmitted disease, as a result of Defendant’s

activities. Plaintiff recounted stories in which she feared Defendant would harm her

or William. Plaintiff stated that on one occasion she saw Defendant standing in the

backyard nude looking up at the trees. Finally, Plaintiff testified she found hardcore
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pornography in Defendant’s footlocker. Defendant questioned the veracity of

Plaintiff and thought she fabricated information. Defendant also expressed his

concerns as to Plaintiff’s mental state. He stated she “goes through a series of

elations and depressions.” He also stated he was concerned about his son because of

certain superstitious beliefs held by Plaintiff.

On 23 October 1995, the court entered an interim order. The court

determined the issues regarding the value of the Clarksville home and Defendant’s

incomewere unanswered and ordered counsel to conduct an appropriate investigation

and to report back to the court. The court then awarded custody of William to

Plaintiff and awarded Defendant unsupervised visitation. Finally, the court made the

following findings as to the stock and William’s assets:

The Court finds that JULIA GENTRY is entitled to One

Thousand Two Hundred Eighteen (1218) shares of the Bank of

McMinnville stock which is held in trust and there shall be a

qualified domestic relation order drawn whereby the bank would

sequester the shares denoted to her and place them in a separate

account and distribute them to her upon her request, but not more

than (20%) per year for the next five (5) years.

Regarding the Twenty Six Thousand Dollar ($26,000.00)

account for the child, JULIA GENTRY has no claim at all on it,

no interest in it.

Plaintiff made a motion to place some control or accounting restrictions on William’s

money on 26 October 1995.

The court entered the final decree of divorce on 29 May 1996. The court

awarded Defendant the marital residence and ordered Defendant to pay Plaintiff

$8,000.00 for her interest in the real estate. The court also determined Defendant

should pay $550.00 per month in child support based on his 1995 income and the

child support guidelines. The court restated the portion of the interim order regarding

the stock and concluded William’s account was William’s property. 

Defendant filed a motion to alter or amend on 20 June 1996. The court

addressed the motion in an order dated 10 September 1996. The court affirmed its

holdings as to the child support and the stock. The court clarified its holding as to the

marital residence by explaining the $8,000.00 figure “equaled not only her share of

the equity in the house, but also her interest in the MFS Fund and the remaining funds
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at the Pioneer Bank.” Defendant filed his notice of appeal on 23 September 1996.

Defendant’s first issue is whether the trial court erred in awarding Plaintiff

a portion of the McMinnville Bank stock. The court found Plaintiff was entitled to

1,218 shares of the Bank of McMinnville stock. Defendant insists Plaintiff was not

entitled to any portion of the stock because it was his separate property.

Tennessee Code Annotated section 36-4-121(b) provides:

(1)(A) “Marital property” means 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.

(B) “Marital property” includes income from, and any increase in

value during the marriage, of property determined to be separate

property . . . if each party substantially contributed to its

preservation and appreciation and the value of vested pension,

retirement or other fringe benefit rights accrued during the period

of the marriage.

Tenn. Code Ann. § 36-4-121(b)(1)(A)&(B) (1996). The phrase “any increase in

value during the marriage” in section 36-4-121(b)(1)(B) means the reason for the

appreciation is irrelevant. Ellis v. Ellis, 748 S.W.2d 424, 426-27(Tenn. 1988); see

also Harrison v. Harrison, 912 S.W.2d 124, 127 (Tenn. 1995) (explaining Ellis).

“The word ‘any’ is all inclusive and does not allow exception.” Ellis, 748 S.W.2d at

426. 

A substantial contribution can include “the direct or indirect contribution

of a spouse as homemaker, wage earner, parent or family financial manager, together

with such other factors that the court having jurisdiction may determine.” Tenn. Code

Ann. § 36-4-121(b)(1)(C). “Substantial contributions are ones which are real and

significant. They need not be monetarily commensurate with the appreciation in the

property’s value during the marriage.” Mahaffey v. Mahaffey, 755 S.W.2d 618, 623

(Tenn. App. 1989). “[C]ontributions need not be directly related to the specific

property involved. They are substantial if they enabled the spouse who owns the
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property to retain it during the marriage.” Id. at 623. 

Here, the Bank of McMinnville stock was held by Defendant prior to the

marriage and was titled in his name alone. Nevertheless, the value of its appreciation

during the marriage is marital property subject to division under the foregoing code

sections and case law. Plaintiff made a direct effort that substantially contributed to

the appreciation and value of the stock. Defendant did not work for approximately

six months after he resigned. Thereafter, he worked as a part-time member of the

Tennessee National Guard and full-time for less than two years. Plaintiff shouldered

the burden of supporting the family during this time. Without Plaintiff’s efforts

Defendant may have been forced to sell the stock in order to provide for the family.

Instead, the parties enjoyed a comfortable standard of living and Defendant was able

to keep the stock. 

The court determined the increase and value of the stock was marital

property and awarded Plaintiff her interest in it. This was a reasonable and proper

decision both under the statute and the case law of this state. Although we are of the

opinion the court’s decision was correct and affirm, we are also of the opinion the

court should have given Defendant the option of paying Plaintiff the value of the

McMinnville Bank stock and retaining the stock in his name. If Defendant elects this

option on remand, the court shall conduct a hearing to determine the value of

Plaintiff’s share of the stock and shall provide that Defendant may pay Plaintiff the

value of the stock over a period of three years with interest at the statutory rate as set

forth in Tennessee Code Annotated title 47, chapter 14.

Defendant’s second issue is whether the trial court erred in ordering child

support payable in the amount of $550.00 per month. Defendant contends this

amount is not in conformity with the guidelines and Defendant’s current income. 

The child support guidelines establish a method for calculating child

support based upon a percentage of net income. There is a rebuttable presumption

that the guidelines are applicable to cases involving child support. Tenn. Code Ann.

§ 36-5-101(e)(1) (1996). It is possible for a party to rebut the presumption. Section

36-5-101(e)(1) provides:
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If the court finds that evidence is sufficient to rebut this

presumption, the court shall make a written finding that the

application of the child support guidelines would be unjust or

inappropriate in that particular case, in order to provide for the

best interest of the child(ren) or the equity between the parties.

Findings that the application of the guidelines would be unjust or

inappropriate shall state the amount of support that would have

been ordered under the child support guidelines and a justification

for the variance from the guidelines. 

Id.

Defendant contends the child support award exceeded the appropriate

amount by approximately $100.00 per month. In response, Plaintiff argues the court

found Defendant was underemployed and determined the amount of support based

on Defendant’s potential income. Unfortunately, none of the orders in the record

include any findings regarding the amount of Defendant’s income or whether he was

underemployed. Thus, if the court concluded the evidence rebutted the presumption,

then its orders awarding child support failed to comply with Tennessee Code

Annotated section 36-5-101(e)(1). It is the opinion of this court that this issue should

be remanded to the trial court for a proper determination of the amount of child

support to be paid by Defendant each month. Moreover, the trial court shall consider

Defendant’s current income and any other funds includable as income under the

guidelines. Finally, the court shall enter an order which complies with Tennessee

Code Annotated section 36-5-101 and the child support guidelines.

We have further considered each of the remaining issues raised by the

parties. We are of the opinion the evidence does not preponderate against the findings

of the court and there is no error of law.

Therefore, it results that the judgment of the trial court is affirmed as

modified, and the cause is remanded for the entry of an order in conformity with this

opinion. Costs on appeal are taxed equally to plaintiff/appellee, Julia Ann Gentry,

and defendant/appellant, James Walter Gentry, III.

____________________________________

SAMUEL L. LEWIS, JUDGE
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CONCUR:

_____________________________________

HENRY F. TODD, P.J., M.S.

_____________________________________

WILLIAM C. KOCH, JR., JUDGE