# FILED
May 14, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk JULIA ANN

GENTRY, ) ) Plaintiff/Appellee, ) Appeal No. ) 01-A-01-9611-CH-00512 v. ) ) Montgomery

Chancery JA MES WA LTER GEN TR Y, III, ) No. 94-75-573 ) Defend ant/Appe

llant. )

COURT OF APPEALS OF TENNESSEE MIDD LE S EC TION AT N AS HVILLE

APPEAL FROM THE CHANCERY COURT FOR MONTGOMERY COUNTY

AT CLARKSVI

LL E, TENNESSEE

THE HONORABLE A

LEX DARNEL

L, CHANCEL

LOR

MARK A. RASSAS JULIA P. NORTH Rassas & Rassas Suite 104, Glenn Building P. O. Box 361 Clarksville, Tennessee 37041-0361

ATTORNEYS FOR PLAI NTIFF/APPEL

LEE

FRANK J. RUNYON MAR KLEY RUN YON GILL P. O. Box 1023 Clarksville, Tennessee 37041

ATTORNEYS FOR DEFENDANT/APPEL LANT

AFFIRMED AS MODI

FIED, AND REMANDED

SAMUEL L . LEWIS, JUDGE1 Court of Appeals Rule 10(b): The Court , wi th t

he conc urre nce of

alljudge s par ti cipat

ing in t he cas e, mayaff

irm, reve rse or modify the acti ons of the tri al court by memorandum op inion when a formal opinion would have no precedenti al val ue. When a case i s decided by memorandum opinion, it shall be designa ted "M EM ORA ND UM OPIN ION ," shall not be published, and shall not be ci ted or relied on for any reaso n in a sub sequ ent unre lated c ase. -2-



## MEMORANDUM OPINION 1
This is an appeal by the defe nd ant , Ja me s Wa lt er G ent ry, I II, fro m a decision of the Montgom

ery C ounty C hancery

Court. Defenda

nt takes iss ue with the court ’s decision whi ch a warded t he plaintif

f, Julia Ann Gent

ry, a portion of Defend ant’s stock, or

dered De fendant to pay $550 .00 per m onth in child s upport, an d awardedPlaintiff $8,000.00 as her share of the equ ity i n th e mari tal pro per ty. Plaintiff also raise s the issue o f whethe r thecourt erred when it awar ded Defendant controlof the assets of the par

ties’ m inor child, Willia

m To dd Gentry . The f

acts out of which t

his ma tter aro se are a s follows.

The parties w ere married on 9 January

1982. Pri or to the marr

iage, bot h parties wer e co mmiss io ned office rs i n t he U ni ted Sta tes Army and were stationed at FortKnox, Kentucky. Plaintiff has a master’s degre e in human services and human
resource s, and Defendant has a master’ s degree in education. Plaintiff b eca me pregnant after the p art ies m arried a nd resigned

her com missio n. Wil liam Todd Gentry was born o n 3 May 1983. Dur

ing the mar

riage, P laintiff was acti ve in vario us military and community volun teer activi ties. At s ome point, she began working as
apart-time substitute teacher. The A rmy released Defendant from act ive dut y i n 1990. He recei ved appro ximately $30,000 .00 in sev erance pay.
After Defenda nt l eft the Army, the family moved to Chattanooga, Tennessee to live with Defenda

nt’s par ents. T he parti es wer e not getting along at this time. Defenda nttestifie d that he put

out hundreds of resum

es, but could not fi nd work for approximately

six months. Thereafte r, he took a part-t ime po sition with

the Tennessee Nat ional Guard

.
Plaintiff and Wil liam moved from Defenda

nt ’s parent’s house

to Clarksville, Tennesse e because Plaintif f found a full-time job at

Fort Campbell. Af

ter the parties ha

d been sepa

rated thr ee months, De fendant st ated he w anted to get the-3-

fami ly back toget

her and j oined Plai ntiff and his son in Cla rksville. Defenda

nt promised to get counseling and to get a job as partof the re conciliat ion. Alth ough he failed to g et counseli ng, Def endant continued his work with the National Guard on a pa rt- ti me basis and obt ained a fu ll-tim e position with the Video Cart Company as acon su lt ant . Un for tu nat ely, th e fu ll -ti me job did not w ork out beca use thecompa

ny went out of business in 1993. Despite Def endant ’s conti nuous unem ploym ent history , the par

ties wer e able to pu

rchase a home i n Clarksvi lle in June 1 992.

In June 1994, Defendant went on a National Guard tr aining ex ercise. He told Plaintif

f he would

be gone for

two or three wee ks with the

Guard an d then for anothertw o we eks wher e he would

be unable t

o tell her his where abouts. W hile Defenda ntwas away, Plaintiff gave notice and left her em ploym ent. She and William
mo ved back to her hom

etown of Rogersville , Tenne ssee. S he left a messa ge for Defenda ntthat she w as at her

mothe r’s house and had pai d all the

bills. Plaintiff was employed as a cour t service s counselor

at the tim e of tria l. Def endant continued hi s part-tim e em ploym ent with th e Guard a

nd also cla

imed t o be self- emplo yed.

Plaintiff file d a complaint for absolute divorce on 19 July 1994. Plaintiff allege d irr econcilable differences, inappropriate mar ital conduct, and adultery as grounds for the di vorce. D efendant admit ted th ere wer e irreconcilable differences between the parties, but denied he was guilty of inappropriate m arital co nduct or adu lte ry. In addition

to his answ er, De fendant filed a c ounter-c ompla int. He too alleged irreconc ilable dif ference s, but alsoalleged Plaintiff was g uil ty of cruel and inhuma n treatm ent.
The court hea

rd the cas e on 26 Septem

ber 1995. During the

trial, e ach party accused th e other o f inappropr iate and od d behavior. Plaintif f claim ed Defe ndant bec ame very depressed after the Ar my r eleased him from

ac tiv e duty. She alleged Defenda ntlost intere stin persona l hygie ne and in

his ma rriage a nd child. S he also alleged Defend anthad been involved in extra-marital affairs and Plaintiff had contracted chl amydia , a se xua lly t ra nsmitt ed di sease , as a re sult of Defe ndan t’s activitie s. Plaintiff recounted stories in which she feared Defendant would harm her
or William. Plaintiff

stated tha

t on one occas ion she saw Defenda nt standing in

the backyard nude looking upatthe trees. Finally, Pla intiff testified she found hardcore-4-

pornography

in De fendant’ s footlocke r. Def endant ques tioned the ve racity of Plaintiff andt hought she fa

bricated information. D efendant also expre ssed his
concerns as to Plai nt iff ’s me ntal state . He sta ted she “ goes through a series of elations and depre ssions.” H e also stat ed he was concerne d about his son because o f certain superstitious beliefs held by Plaintiff.

On 23 Octobe

r 1995, the

court ente

red an interim order. The court determined

the issues regarding the value of the Clarksville home and Defe ndant’ s i nco me were unan swered a nd ordere d counsel to conduct an a ppropriate

investigat

ion and to report back to the court. The court then awar ded custody

of Will iam to Plaintiff and awar ded Defendant unsuper

vised visita

tion. Finally, the court

made the following findings as to the stock and Wil liam’ s assets: The Court find s that JULIA GENT RY is entitled toOne Thousand Two Hun dred Eigh

teen (1218) shares of

the Bank of McMinnville

stock which is held in trust and there shall be a qualified domestic relati on order d rawn whereby the bank w ould sequesterthe share s denoted to her and pla ce them in aseparate account and distrib ute them

to her upon her

request, but not

more than (20%) per y ear for

the next fi ve (5) y ears. Regardingthe Twe n ty Six Thousand D ollar ($26 ,000.00) account for the child, JULIA GEN TRY has no clai m at a

ll on it, no interes t in it. Plaintiff made a m otion to place some control or accountingrestric tions on Will iam’s money on 26 Octobe

r 1995.

The court ente

red the f inal decr ee of divor

ce on 29 May

1996. The

cou r t awardedDefendant the marital residence and ordered Defendant to pay Plaintiff $8,000.00 for he r interest in the rea l estate. The cour

t also dete

rmine d Defend ant shouldpay $55 0.00 per m onth in child s upport base d on his 1995 incom e and the childsupport guidelines. The cour t restate d the portio n of

the interi m orde

r regar ding the stock and concl uded William’s accou nt was William’s prop erty.
Defenda ntfiled a m

otion to alte

r or am end on 20 June 1996 . The court addressed the motion i n an order da ted 10 Sept

embe r 1996. T he court a

ffirm ed its holdings as to the child support and the stock. The court clarified its holding as to the marital residence

by expl aining the $8 ,000.00figure “ equaled not only he r share of the equity in the house , but also h er inter est in the MFS Fund a

nd the rem

aining funds-5-

at the Pion eer Bank .” Def endant fil ed his notic e of appea l on 23 September

1996.

Defend ant’s first issue is whether the trial court erred in awarding Plaintiff a portion of the McMin nville Ban k stock. The court foun d Plaintif f was entitled to 1,218 shares of the Bank of McMinnville stock. Defendant insists Plaintiff was not ent itl ed t o an y por tio n of the sto ck b ecau se i t was his sep arat e pro per ty.

Tennesse e Code Annotated sec tion 36-4-12 1(b) provides: (1)(A) “Mar

ital prope rty” mean s all rea

l and perso nal p roper ty, both tangible a

nd in tangi ble, acquired by either or both spouses during the course of the marriage up to the date of the final divorce hearing a

nd owned by

either o r both spouse s as of the date of filing of a complaint for divorce, exce p t in the ca se of fraudule ntconvey ance in an ticipation of filing, and includin g any property to which a

right was acquired

up to the dat

e of the final divorce hearing, and v al ued as of a date as ne ar as re asonably possible to the final divorce hearing date. (B) “Maritalproperty ” includes income from , and any increase in value during the marriage, of proper ty dete rmine d to be separa

te property . . . if each part y s ubs tantially contribute d to its preserva tion and appre cia tion a nd the value of vested p ension, retirem ent or other f ringe bene fit rights accrued during the p eriod of the marriage. Tenn. Code Ann. § 36-4-121(b)(1)(A)&(B) (1996). The phrase “an y incr ease in value during the marriage” in section 36-4-121(b)(1)(B) m eans the reas o n for the apprecia tion is irrele vant. Ellis v. Ellis , 748 S.W .2d 424, 42 6-27(Te nn. 1988); see also Harrison v. Harrison, 912 S.W .2d 124, 12 7 (Tenn. 1995) (expl aining Elli s )

. “The word ‘any’ is all inclusive and does not allow exception.” Ellis , 748 S.W.2d at 426.

A substantial

contributi on can include “t he direct or indirec t contrib ution of aspouse as homemaker, wage earner, parent or family financial manager, together withsuch other

factors that thecourt havi ng jurisdi ction m ay det ermi ne.” T enn. Code Ann. § 36-4-121(b)(1)(C). “Substantial contributions are ones which are rea l and significa nt. They need not be

monet arily

comm ensurate with the a

ppreciat ion in the prop erty’s value duri ng the marriage.” Mahaffey v. Mahaffey , 755 S.W .2d 618, 62 3 (Tenn. App. 1989) . “[ C]ontr ibutions nee d not be dire ctly r elated to t

he specif ic property involved. They are

substan tial if they enab led the spous e who own s the-6-

property to retain it during the marria ge.” Id. at 623.
Here, the Bank of

McMinnvill e stock wa s h eld by Defenda nt prior to t

he
marr iage and was tit led in hi s n ame alone. N everthel ess, the value o f its appre ciation during the marriage is m

arital property

subject to division

under the f

oregoing co de sections and case l aw. Pl aintiff m ade a direct

effort t hat substant

ially contribute d to the apprecia

tion and value of th e stock. D efendant did not wor

k for appr

oxima tely si x months after he resigned. There after, he worked as a part-tim e mem ber o f th e Tennessee National Guardand ful l-t ime for less than two years. Plaintiff shouldered the burden of s upporting the fam ily dur ing this time. Without P laintiff’ s effort s Defenda ntmay have been forced tosell the stock in orderto p rov ide for t he fa mily. Instead, the partie s enjoy ed a com fortable standard o f

living and Defendant was able to keep th e stock.

The court dete

rmine d the incre ase and v al ue of the stock was marital property and awarded Plai ntiff herinterest in it. This was a reasonable and proper decision both under t

he statute and the case law of this sta te. Alt hough we ar

e of the opinion the court’ s decision w as corre ct and aff irm, we are

also of the

opinion the courtshould have g iven Def endant the option of pay ing Plainti ff thevalue of th e McMinnville

Bank stock and retain ing the s tock in h is name. If Defenda nt elects t his option on rem and, the c ourt sh all con duct a hea ring to dete

rmine the value o f Plaintiff’s share of the stock and shall provide that Defendant may pay Plaintif

f the value of the stoc k over a pe riod of thr

ee ye ars with interest a

t the statutory rate as set forth in T ennessee Code Annot ated title 47, chapt er 14.

Defenda nt’s sec ond issueis whether the trial court erred in orderin g child support payab le in the a mount of $550.00 per m onth. De fendant c ontends this amount is not in conformity with t he guidel ines and Def endant’s cu rrent inco me.
The child suppor

t guideli n es establi sh a method for c alculatin g child support based upon a

pe r centage of

net incom

e. The re is a re buttable pr

esump tion thatthe guideli nes are a

pplicable to cases i nvolving child

support. T enn. Code Ann. § 36-5-101(e )(1) (1996). I t is possible

for a par ty to r ebut the presum

ption. Se ction 36-5-101(e )(1) prov ides:-7-

If the court f

inds that ev idence is s ufficien t to rebut

this presum ption, the court shall make a written finding that the applicati on of the chil d support guidelines woul d be unju st or i nappropria

te in that par

ticular c ase, in or

der to prov ide for th e be stinterest of the chil d(ren) or the equity

between the parti es . Findings that the a

pplication o f

the guideli nes would be

unjust or inap propriate

shall state

the am ount of suppor

t that woul d ha v e been ordered u nder the c hild support g uideli nes and a j ustificat ion for the vari ance from the gui delines. Id. D efend ant

contends the

child suppor

t award exceeded

the appropr

iate amount by approximately

$100.00 per month. In response, Plaintiff argues the court foundDefenda

nt was underemployed and determ ined the amount of support based
o n D efendant’s potential income. Unfortunately, none of the orders in the record includeany f

indings rega

rding the am

ount of De fendant’ s incom e or whet her hewas underem ployed. Thus, if the court concluded t

he evidence

rebutted t he presum

ption, then its ord ers a ward ing chi ld s upp ort fail ed t o co mply w ith Tennesse e Code Annotated section 3 6-5-101( e)(1). It is the opinion of this court t

hat this issu e should be remanded to the trial court fo r a proper determ ination of t

he amount of chil d support to be paid by

Defenda nt each m onth. More over, the

trial court shall consider Defend ant’s current income and any other fund s includable

as incom

e under th e guidelines. Finally, the court shall enter an or der which complies with Tennessee Code Annot ated sect

ion 36-5-101 and the chi ld support gui delines.

We have further considered eac h of the rema ining issues raised by

the parties. We ar

e of the opinion the e vidence doe s not prepond erate against the findings of the cour t and there is no error o f law.

There fore, it results that the judgment of the trial court is affirm ed as modif ied, and the ca

use is rem

anded for the entry of an order in conform

ity with this opi nion

. Cos ts o n ap pea l are tax ed e qua lly t o pl ain tif f/ap pel lee, Jul ia An n Gen try, and defendant/appellant, James Walter Gentry, III

.

____________________________________ SAMUEL L . LEWIS, JUDGE-8-

CONCUR:

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

_____________________________________ WILL IAM C. KOCH, JR., JUDGE