# FILED Feb. 4, 1997 Cecil Crowson, Jr . Appellate Court Clerk IN THE COURT

OF APPEA LS OF TEN NESSEE WESTER N SECTION AT J ACKSON

______________________________________________________________________________ DOROTHY H. LONG, Shelby Chancery No. 18739-3 C.A. No. 02A0

1-9506-CH-001 35 Plaintiff, Hon. D. J. Aliss andratos v. DAVID G. LONG and RELEASE COATIN GS OF TENNES SEE, I NC., Defendan ts. DAVID E. CAYWOOD, Memphis, At torney fo r Plaintiff. HAL GERBE R and KAREN R . CICALA, Memphis, At torn eys for

Defenda nts. MODIFIED AND AFFIRMED Opinion filed:

______________________________________________________________________________ TOMLIN, Sr. J. In this divorce case Dorothy H. Long (“Wife”) f iled suit for divorce in the Chancery Court o f Shelby County from David G. Long (“Husband”) alleging inappropriate m arital cond uct. Husband fil ed an answ er and a cross -compl aint. The parties stipul ated that Husband was gu ilty of inappropri ate marital con duct. The chancel lor entered an order awa rding Wife a divorc e on these grounds

. The chancellor at the same time appoint ed a Special Master and assigned him the responsibility of

ascertaining if eit

her party had dissipat ed or secreted marital
ass ets d uri ng the marriag e, de term ini ng the val ue of cer tain m arita l p rope rty and the current o wnership of same and recommending to the court an appropriate divisio n of marital assets, along with a limony, if any, as well as the assessment of costs and fees. After several hearings, t he Special Master filed his final report to the chancellor covering the scope of his assignment . The chancell or affirmed the findings of t he Special Master and included the Master’s findings i n his final decree.

Bot h part ies have appealed. Husband ha s present ed thr ee issues f

or our consider

ation. Did the trial court err in : (1) considering testimon y as to acts of2

inappropriate marit

al conduct and adultery? (2) making t he distribution o f the marital property and ( 3) awarding Wife her atto rney fees and expenses?

Wife has submitt

ed five issues for our consideratio n: Did the t rial court err: (1) in awarding her

rehabil itative alimon y as opposed to ali mony in futuro ; (2) in fai ling to fin d t

hat th e waivin g of

Hus ban d’s i nt

ere st in h is mo th er’ s ho me constitut

ed a dissipation of marit al assets; (3) in using replacement value as opposed to fa ir market value in evaluating the ho usehold furnishings; (4) in awarding certain certificat es of deposits t

o Wife which were no longer were in existence; ( 5) in ordering W ife to pay 50% of t

he Special Master’s fees and expenses

? For the reasons here inafter stated, we mod ify and affirm

. The parties were married in 1953 and separa ted in 1990. Four children were born of the marriage, all of whom have reached adul thood. The record is uncontradicted t

hat during t

his marriage of long duration W ife performed all the basic homemaking activities and was also the dominant caregiver of t

he chi ldren , in addi ti on t o pe rfo rmin g all t

he g ene ral ma int

ena nce on t

he h ome and yard. Husb and is pres ident and sol e stockhold er of Rel ease Coatings, I nc., a business

he began som e twenty-five years ago that provides a var iety of services to t

he baking industry in t he southeast

. The record reflects tha t Wif e worked part-t

ime as a bookkeeper at Release Coatings from 1974 t o 1990. As p revi ously noted , Wife ’s s uit fo r di vorc e wa s bas ed u pon i napp ropriate
mar ital cond uct, w hic h wa s l ater s tipul ated to by Hu sba nd. Whil e not r el ated to the issues before us, it might be not

ed that t

he chancellor appointed a Special Master prior t

o the ent

ry of the decree fo r divorce to invest igate cert

ain financial matters relative t

o Husband and Release Coatings. Aft er the divorce decree was entered the chancellor once again appoint ed a Special Master, the order specify ing his dut

ies, st ated i n part

as follows:3 . . .as is necessary t

o identify and value any addit ional marital and separate asset

s of the part

ies, if any, on o r before 2 Jan 92, dete rmi ne i f eith er pa rty ha s di ssi pated or se cre ted m arita l a sse ts during the term of t

he marriage, and determine the income and exp ens es of the re spe ctive parti es; th is m atter i s fu rther refe rre d to the Special Master for t he purpose of recommending to t his court an appropriat

e division of marital propert y, including any adj ust men t f or dis sip at ed a sse ts

, i f a ny , wh at

ali mon y, if

an y, sho uld be awarde d to Plaintiff, wha t att orneys fees and suit expenses of Plaintiff’s, should be paid by defendant, if any, the a llocation of the Special Master fee and make any further recommendations t o the court tha t may be appropria te. The Special Master held a total of four hearings. The Master filed his initial “Final Report,” which was objected t o by bot

h parties. He subsequent ly filed his “Amend ed and Su pplem ental Final Report” which w as objected to by Wife. The chancellor then entered a final decree affirming the Special Master’s Supplementa l Final Report . This appeal followed.

I. Conside ratio n of S pec ific Acts of Fau lt b y the C ourt
Husband in itiall y contends that the Special Master erred in taking proof from Wife concerning specific act s of inappropriat

e marital conduct, which he contends should have been prohibited as a r esult of his stipulating t hat he was at f ault in t he break up of t

he marriag e. Beca use of t his st ipulatio n he cont

ends that the Special Master should not have heard t estimony from Mrs. Long concerning his physical abuse of her, his public emotional abuse of her, his involvement in what clearly appeared to be an on go ing adulterous relationship and la stly, but by no means least, an ongoing process of sec reting and/or dissipating m arital asse ts.
This con tent

ion must fail for a t least

two re asons. First

of all, as t

o thi s issue Hus band has

fail ed to c omp ly with 27(a)(7) T.R.A .P., w hic h re qui res al l a rgu me nts in an appe ll ant’s

brie f to con tain “ citati ons to the au thori ties

and appr

opri ate reference to t

he record (which may be quoted verb atim) relied on.” Furt hermore, Rule 6, Rules of the C ourt of App eals, prov ides as fo llows:4 (a ) W rit te n a rg ume nt

in re ga rd t

o e ach iss

ue o n a pp ea l sha ll contain: 1. A stat ement by the Ap pellant of the alleged erroneo us act

ion of the T

rial Court

which raise s the i ssue and a statement

by the Appellee of any actio n of the Tria l Court which is relied upon to correct t he alleged error, with citation t o the Record where t he erron eous or c orrect ive act ion is re corded. 2. A stat

ement showing how such alleged error was sea son abl y cal le d to the attenti on of the Trial Jud ge w ith c itatio n to that part of t

he Record where Appell ant’s challenge of the alleged error is recorded. 3. A stat

ement reciting wherein Appellant was prejudiced by such alleged error, with citations t o the Record showing wher

e the resultant

prejudice is recorde d. 4. A statement of each determi native fact relied upon with citat

ion to t he Record where evidence of each such fact may be found. (b) No complaint of

or reliance upon action by t he Trial Court will be considered on Appeal unless the argument thereon cont ains a specific reference to t he page or pages of t he Record where such action is r

ecorded . No assertion of fact wil l be con sidered on Appeal unless t

he argument

upon such assert

ion cont ains a reference to the page or pages of the Record w here evide nce of such fact

is recorde d.
This court has hel d on several occasions that wher e a party in its brief on appeal has advanced certain arguments or has set forth what

he or she alleged to be fa cts w ithou t any c itatio n to the rec ord , this cou rt is n ot und er a d uty to minutel y search the record to verify these unsupported al legations. Schoen v. J.C. Bradford and Co. , 6 42 S. W. 2d 4

20 , 426 (T enn . A pp . 1 98

2) . W e a cco rdi ng ly hol d that i ssu e is

with out m eri t.

II . The Distribution of Marital Property
In his brief Husband frames this issue as follows: “Did the court err in making distribution o f marital property?” Reacting t o this broad-based statement

, the answer would be “no.” It is the co urt’s responsibility t o make a “distribution o f marital property. ” However, in at tempting t

o analyze Husband’s argument in support of this issue, it appears that

he contest

s the following: (1) t

he5

finding by the Special Master t hat he dissipated marit al assets; (2) the appraisal of t he Holmes Road p ropert y, owned 25% by

Husband a nd 75% b y Release Coatings; (3) the manner of divisio n of the part ies’ corporate int

erests; and ( 4) the a mount o f wages ea rned by W ife. In addit ion, t here app ears t

o be an i ssue in a f ootnote by Hu sba nd c onc ern ing the ev al uatio n of H usb and ’s c orpo rate stock in Release Coatings. This is a non issue, inasmuch as the part ies agreed that the Special Master would be the one who personally valued the stock in accordance with the rules. In addition, Husband offers no proof as t o what he contends the val ue of the stock shoul d be.
The four above-mentio ned sub-issues presented by Husband are findings of fact that were made by the Spec ial M aster and confirm ed by the trial cou rt. Our court has freq uently hel d that where findi ngs of fact have been m ade by a Special Master and con curred in by the trial judge they are c onclu sive on appeal unless this court should find there is no material evidence to suppo rt them. See In Re: Estate of Tipp s , 907 S.W.2d 400 (Tenn. 1995).

As for the secret

ion and/or dissipation of marital property, t he Special Master found and the chancellor concurred, that Husband had dissipated $147,697. 87 of the parties’ asset s. The Special Master’s final and supplemental reports out

line in detail the method and manner in which Husband accomplished this. From reviewing this record, we are of t he opinion that

there is more than “any m aterial evid ence” to support the Special Master’s find ings. The record is replete with examples of Husband’s effort s to at tempt t o avoid any responsibility for t

he dissipation of t

hese marital assets. As a result of all this the Special Master concluded and the chancell or concurred, that Husband’s credibility was found to be woefully wanting. The record reflects repeat ed ins tance s of c ontra dic tory tes timo ny by Hus

band , as w el l a s re peate d in cid ents of a lack of c ooperation with the Special Master.1 The record re flect s tha t Husb and was t he sole st

ockholder o f Release Coatings

and th at he ran t

he busines

s a s a sole proprietorship. T he master considered tha t finan cially Husband and Rel ease Coatings were one and t he same. 6 Regarding the evaluation o f the Holmes Road Property. The record reflects that

Release Coatings owns 75% int erest in the property, while Husband personally owned the remaining 25%. As early as January 1992, in his first report the Special Master noted t hat t he property ha d been professionally appraised at $367,000.00. Follow ing the decree of d ivorce the chanc ell or again cal led on the Special Master to f urther evaluate t

he parties’ asset

s. In his final report the Special Master again val ued the property at the same figur e as stated above. Husband filed objections to t he Special Master’s final report, but did not make any o bjec tion to th e app rais ed v al uatio n of th e Hol me s Ro ad p rope rty. At a subsequent hearing in December 1993, Husband again failed to present any data r egar din g the v al ue of

the Ho lm es R oad prop erty. Hus band ’s e ffor

t to have the Sp eci al Mas ter co nsi der

a su bse que nt app rais al fil ed b y him at a much later date, aft

er several hearings, was too late. This court in Hopkin s v. Fi rst Tennessee Bank , 560 S.W .2d 916, 918 (Tenn. App. 1977), st ated that

“as a general rule a M aster’s Report unexc epted to below m ay not be compl ained of on appeal.” Thi s issue is

also w ithout merit.
B. The Issue of Release C oat ings’ St ock
Husband co ntends

that the t rial court

erred in t

he dist ribut ion of Release Coat ings’ cor

porat e sto ck bet

ween th e two p arti es. Thi s is a non -issue, b ecause of Husband’s misconstruction o f the order of the Special Master. The Special Master’s report r

eflects that Wife was awarded Release Coatings’ 75% o wnership in the Holmes Road property, valued at $275,250 .00. 1 Wife was in no way
awa rde d an y c or

po ra te st

oc k i n Re lea se C oa ti ng s, lea vi ng Hu sba nd a s t he so le stockhold er.7 C. Wife’s W

ages at Release Coating s
Wife cont

ended that she was due wages from Release Coatings fo r the period April 2nd thru July 26, 1990. At the hearing Husband took the posit ion that she had been paid in full. Wife stat ed that she ha d not been paid. T he Special Mast er an d th e cha ncellor t herea ft er ac cept

ed W ife’ s ver

sion . He re ag ain we have concurrent findings of the Special Master and the chancellor with material evidence supporting t he finding. This issue is resolved in favor of W ife.

II I Wife’s Atto rney Fees

Hus ba nd c on te nds

th at th e Sp eci al Ma st

er an d t he cha nce llor

sep ar at ely and concurrently erred in awarding Wife’s at torney fees. Husband was required to pay a tto rney fees and other litig ation expenses t o Wife in an a mount slightly in excess of $31,000. 00. Included in this figure is $3,134.00 t o cover the cost

of a private invest

igator hired by W ife in preparatio n for trial concerning Husband’s alleged adulterou s relatio nship wit h his curre nt gi rlfriend. The award of attorney fees by the trial court is consid ered an aw ard of alim ony. Cranford v. Cranfo rd , 772 S.W .2d 48 (T enn. App. 1989) . On appeal this court will not interfere with t he trial court’s decision awarding at torney fees except where there is a clear showing t hat t he trial court reached t he wrong conclusion, with a result that manifest justice would be done if the award is all owed to stand. See Hanover v. Hano ver , 775 S.W.2d 612 (Tenn. App. 1989).

From revi ewing t

his recor

d this c ourt

finds suff

icient evidence t

o convi nce us that t he trial court did not

abuse its discretion in this regard. Considering t he relative earning capacity of the part

ies, Husband has continuing ability to earn through his solely-owned business, but Wife has very little opport unity for fut

ure employment. Their past earning hist ories reflect this as well. Not only did the Special Mast

er so fi nd, but

the r ecord also sup port

s the f act t hat mo st of

these8

hea rin gs w ere brou ght ab out as a resul t of the a ction s of H usb and in s eek ing to secret a large portio n of the marit al assets, along with his dilatory t actics in try ing to prevent

their discovery. U nder the circumstances we are of t he opinion that the Special Master and the chancellor were correct in ordering t hat t hese fees to be bo rne by

Hu sba nd a nd t

ha t i t w as no t a n a bus

e o f di scr

et io n. Acc or

din gly we f ind that this

iss ue i s wi thout m eri t.

Wife ’s Issues. Having disposed o f the issues of Husband, we now begi n our considera tion of t

he issues p resent

ed on app eal by W ife. F irst, Wife cont ends that the court erred in awardi ng her rehabil itative alimon y rather than alim ony in futuro

. In cases deal ing with issues such as the one present ly before us, where the matters under considerat ion were submitted first to a Special Master and t hen passed up on by the chancel lor, we observe that whil e concurre nt findings of fact are binding on t

his court as a reviewing court if they are suppo rted by any material evidence, such a rule does not apply to quest ions of law or to mixed questions of l aw and fact. Bubis v. Blackman , 435 S.W .2d 492, 498 (Tenn. App. 1968). The trial court awa rded Wife rehabi litative ali mony in the amou nt of $1,835.00

per month, plus Wife’s mont hly health insurance premiums, until she reaches the age of si xty-five, dies or rem arries, wh ichever com es first. In this state, there is a rec ognized prefe rence for reh abilitative al imony. However, when the court finds that

rehabilitation is not

feasible, we may grant alim ony in futuro

. Self v. Self , 86 S.W .2d 360, 361 (Tenn. 19 93). W hile the concurrent findings of t he Special Master and the chancellor below as to the amount of rehabilitat ive alimony are binding upon this court if we find there is any material evidence to support it, on the other hand there is no presum ption of correctness attaching to the categorizing this al imony as reh abilitative.9 Although there is

no absolu te formul a for determini ng the amount of alimony to be paid, t he need of the spouse seeking suppo rt is one of t he more im porta nt fac tors. Furth erm ore, the ab il ity to pa y by the other spou se i s al so to be conside red. Cranford v. Cranfo rd , 7 72 S. W .2 d 48, 50 ( Te nn . A pp . 1 98

9) . In addition, fault of the paying spo use in the breakup of the marriage may also be consider

ed. Gilliam v. Gilliam , 776 S.W. 2d 81 ( Tenn. A pp. 19

88). Furt

hermore, our court s recogni ze th at t

he part y obt aining t he divor ce is not to b e left in a worse financia l situat

ion t han he/she was befo re th e oppos ite p arty ’s misconduct brought about

a terminatio n of the marriage. See Shackleford v. Shackleford , 611 S.W.2d 598, 601 (Tenn. App. 1980). In his most comprehensive Final Report and Amended Final Report, the Special Master set out t he various stat

utory fact

ors that he considered in reaching the conclusion that Wife was entit

led only to rehabilitative alimony rather than alim ony in futuro . The part ies were married for thirty- nine years. At th e t ime of th e p ro cee din gs be low, th e H usb an d wa s si xt y y ea rs o f a ge whi le Wi fe was

six ty -o ne. As

to th e p ar

ti es’ re lat

iv e e ar nin g c ap aci ty , e xp eri enc e, sk ills etc. , th e Master

’s repor t st ated: However, du e to the Husband’s l ong experien ce in his bu siness of Release Coat

ings of Tennesse e, Inc., hi s vocat ional skills, em pl oyab il ity an d ea rni ng c apac ity sti ll appe ar to be exc el le nt, despite his health condition. Her [Wife] physical and mental health appear to be good. Her voca tiona l skil ls

are a ppar

entl y l im ited to that of s eam stre ss o r par

ttime bookkeeper. Accordingly, her employability and earning capacity appear to be l ow. * * * * . . . The pro of shows that the W ife regularly worked in the Husband’s business as a bookkeeper while at the same time performing her duties as a homemaker and raising four children. The Special Mas te r t her ef or e f ind s t ha t t he Wi fe mad e su bst

an ti al a nd t

an gi ble contributio ns to t

he education, t

raining and increased earning power of

the H usband.10 The Special Master looked at the relativ e ability of each part y for future acq uis it io ns o f c ap it

al a sse ts an d in co me. Du e t

o W if e’s lac k o f v oc at

io na l sk ills and reduced opportunities f or employment, the Special Master believed that she had l ittle abili ty for future acquisitions of cap ital assets and income. Husband on the ot

her hand, due to his ownership of Release Coat ings, appears to at least have some opportunity for future acquisitions of capital assets and income. The Special Maste

r’s rep ort stated in part:

* * * * . . . The Special Master believes that the evidence is more the n sufficie nt to find that the Wif

e adequ ately fulfilled he

r role not only as a mother a nd homema

ker, but a lso as a c o-employ ee rend ering va luable services as a bookkeeper in the Husband’s business. Ac cordingly, the Special M aster finds that the contri butions of

the Husba

nd and the

Wife to the acqu isition, pr eserva tion or ap precia tion of the

marital p roperty should be given equal weight. As to the dissipation of marital property, the evidence is clear that the Husband’s conduct has been egregious, over $147,000.00 having been secreted or dissipated by him (excluding interest) and he should bear the burden acc ordingly. The Special Master made these findings in his consideration of T.C.A. § 36-5- 101(d)(1)(B), one of the relevant fa ctors to be considered in awarding rehabilitative alimony: (B) The relative education and training of eac h party, the ability and opportunity of each party to secure such educa tion and training, and the necessity of a party to secure further education and training to improve such par ty’s ear ning capa city to a r easonable level. Mr. Long h as a college education, a nd has a g oing busine ss. . . . Mrs

. Long in comparison, has had only a year of college, and some a ccounting training at technical and vocational institutions during the 1970's, but has no training on computers. Although she is a seamstress, it does not appear that she will be able to earn sufficie nt amounts of income from seamstre ss work. Due to her age, it a ppears t hat she ma

y not be able to receive further education and tra ining to improve her employability or earning capacity to a reasonable leve l prior to her reaching a normal retirement age of sixty-five. Concerning subsection (K), “Relative Fault,” the Special Master found as follows: “The Husband has stipulated to inappropriate marital conduct. . . .” Proof was also introduced regarding the Husband’s intimate rela tionship with one11

Leona Powers, both before and after the filing of the divorce complaint. Although the Husband and Mrs. Powers both testified that they had no intimate sexual relations prior to the divorce proceedings, the circumstances of their conduct, such as taking out-oftown tripstogether

overnigh t, and Mr. Long havi

ng spent th

e night at Ms. Power s’ residence prior

to the divo

rce, co upled with

the appa rent pro pensity of Mr. Long to attempt to concea l or secr et assetsduring the

marriag e, castsserious d oubt on his credibility. Husband’s conduct was certainly inappropriate ma rital conduct, whether or not adultery was committed. Even disregarding the affair with Ms. Powers, of perha ps greater concern to the Special M aster was proof th at the Husband sec reted su bstantial assets du ring their marriage, and his failure to disclose this until confronted with documents produced by the Special Master in connection with the preparation of his initial report. Acc ordingly, the Special Master has taken into account the Husband’s fa ult in determining the rehabilitative alimony award. In addition to the above, the record stands uncontradicted to the e ffect that Husband inflicted other emotional and physical abuse on Wife, in particula r, during the latter years of their marriage. The r ecord clearly reflects that these pa rties enjoyed a high standard of liv

ing in many

ways. The

parties t ook numer

ous fore ign trips to Australi a, the Far

East, and various c ountriesin Europe . As sole o wner of Release Coatings, H

usband, w

hile dra wing a re asonably

modest “s alary,”would pay himself substantia l bonuses a

t the end e ach yea

r to fund t heir life style. Bas ed upon the facts before us, we are of the opinion that the Special Master along with the trial court abused its discretion in classifying the alimony to be paid to Wife as rehabilitative, rather than in futuro . Therefore, we hold that the amount of alimony awar ded shall be paid to Wife as alimony in futuro , to be terminated upon her death or remarria ge. II.(W)Dissipation of Certa in Assets. Wife contends that the trial court erred in failing to find that Husband dissipated the parties’ marital assets when he waived his 11/18th interest in his mother’s home and12

(2) when he failed to demand and rec eive payment of a loan he had formally made to a family member. As to the first portion of this issue, we are dealing with the matter of Husband’s interest in real estate in North Carolina that had been purc hased for Husband’s mother. The history of this transaction, well documented by a paper trail of deeds and court orders, is as follo ws:
(1) Elizabeth Long conveyed the subject property to Husba nd and Wife by warranty deed dated 30 January 1969. (2) On July 11, 1975 , Husband and Wife reconve yed the pr

operty to Elizabe th Long. (3) On July 11, 1975 , Elizabe th Long conveyed a

life esta te to one o f her son s, Ben Lee Long at the same time retaining a remainder inter est. (4) On December

29, 1975, E

lizabeth Long conveyed an

undivided

one-half interest in fee to Husband (defenda

nt here)subject to

the life e state pre

viously conveyed to Ben Lee Long. (5) On August 10, 19 76, Ben Lee Long quit-claimed his life e state ba ck to Elizabeth Long. (6) On August 31, 1984, Leslie Long and Wife, a brother of de fendant, conveyed any interest that he would inherit from Elizabeth Long to Husband. (7) A partition suit was filed by Husband and Wife against all other heirs of Elizabeth, with the exception of Leslie, seeking a court orde r to sell the North Carolina property. This was done on June 2, 1987 in Jackson County, North Carolina. (8) On December 14, 1987, pursuant to a court orde r of the Superior Court of Jackson C ounty, Nor

th Carolin a, a comm

issioner’ s deed was execut ed to consummate an earlier public sale of the property to John E. Long, a br other of Husband, for13

$63,100.00. The commissioner ’s deed r eflected that the

grantee , John E. Long, paid into cour t $22,456. 59 and tha

t he also w aived pa

ying into the court h

is 1/18 inte

rest, amounting to $3,386.95. Defendant likewise waived being compensated for his 11/18 interest, amounting to $37,256.49. In essence, defendant gave up his right to have John E. Long pa y to the commissioner, for

defenda nt’s bene fit, the su m of $37,25 6.49, whic

h in turn wo

uld have been paid over to him. By waiving this payment he dissipated, secreted, or ga ve away these funds, putting them out of the reach of Wife. T here is no material evidence in this record to support a finding of the contrary. Upon remand we direct that the chancellor, following the procedure set forth by the Special Master in his amended final report, make the appropriate adjustment in the division of assets by ordering Husband to pay one-half of $37,256.49 to Wife, plus interest. As for the alleged failure of Husband to collect the outstanding ba lance of $4,400.00 of a $5,000.00 loan made to his brother, we think there is material evidenc e in the record to su

pport the concurr ent finding as to this i ssue. We resolve this issue in favor of Husband.

III.(W) The Met

hod of Eva

luating the

Household Furnishings. Wife contends that the Special Master erred as a matter of law in the method by which he valued the parties’ household furnishings. In his final report he va lued them at $15,00 0.00, sett

ing aside furnishings worth $ 14,000.00 to the Wif

e and $1, 000.00 to Husband. Both Husband and Wife testified as to the value of their furnishings. Wife testified that in her opinion the fair market value of those furnishings was $3,500.00. On the other hand Husband testified that these furnishings had a repla cement value of $15,000.00 and that Wife’s share was worth $14,000.00. Husband off ered no testimony as to the fair market value of these items. It is clear f rom the record that the Special Master adopted Husband’s testimony concerning value.

In Stephenson v. Stephenson, 1993 WL 2 98908 (Te nn. App. 1 993), a domestic14

relations case involving among other things the division of the parties’ marital property, Wife tes tified tha

t the house

hold goodsof the pa

rties wa s worth $7 ,075.00, w hile Husband testified that they were worth $20,000.00. The trial court ac cepted the Wife’s valuation. Husband contended that this was error, for the re ason that Wife’s valuation was based upon the

fair mar ket value of the hou sehold goo ds rathe r than the ir replacement costs. While the Stephensoncourt found that the household furnishings had a value more than that fixed by Wife and less than tha t fixed by Husband, the court stated that “we reject Husband’s contention that the par ties’ household goods be valued at replacement value.”

In Wallace v. Wallace , 733 S.W.2d 102, 107 (Tenn. App. 1987), this court stated that “the burden is on the parties to produce competent evidenc e of value, and the parties are bound by the evidence they pre sent.” The Husband failed to produce any evidence concerning the fair mar ket value of the parties’ furnishings, thereby leaving as the only competent proof before the Special Master the te stimony of wife concerning their fa ir marke t value. Accordingly, we r everse the chancellor a

nd find tha

t the fair market value of the furnishings of the parties should be fixed at $3,500.00. Exe rcising our inherent right to award these furnishings, we do so by awar ding the value of the household

furnishings involved to Wife . This figu re should be used by the cour

t in making an

y adjustme

nt in asse t values b etween

the part ies. IV.(W)Alleged I

mbalanc e in Payme

nt of Costs.
Wife contends that as a result of a series of or ders, one by the chancellor and one based up on a findi

ng of the Sp ecial Ma ster, she has been taxed wit h part of the costs that shoul d have been borne by Husband, by virtue of the u tilization of marita l assets subsequently awarded to her by the Special Master. The record reflects that the following circumstances created the problem with which we are now dealing. In the early stages of this litigation, Husband filed a petition for contempt against Wife, contending that she had removed from bank accounts that we re in the joint name of the parties the sum of $17,000.00, and attempted to hide these funds. A hearing was he ld,15

following which the chancellor entered an orde r in which he found that Wife had removed $15,000.00 from the personal assets of the parties. Wif e was directed to pay $15,000.00 “into the

registry of the court.” Thi s order w as enter ed in May 1 990, well before the protracted hearings be fore the Special Master began. In order to comply with this order, Wife deposited with the clerk and maste r of the Chancery Court of Shelby County three certificates of deposit issued by Lea der Federal Savings and Loan Association, having a total face value of $22,318.00. Subsequently, in June 1991, the chancellor entered a consent or der to allow payment of interim c ompensat

ion and ex

penses to the Speci al Master, totaling $ 14,821.36 . This order provided in part that “to the extent any certific ates of deposit or other funds on deposit with the clerk and Master of this Court, the foregoing fees and e xpenses shall be paid out of such funds. . . .” Accordingly, these expenses we re paid with funds derived from these three certificates of de posit placed with the clerk and Master by Wife pursuant to the earlier order of the chanc ellor.
The fina l report of the Special Maste r award ed these three c ertific ates of d

eposit to Wife in her sole and separate name as part of the division of marital property. Apparently, the fact that almost $15,000.00 in round figures had been paid out by the clerk and master as intermediate expense s and compensation in connection with the Special Master’s services was subsequently overlooked by the court when fees and costs of th

e Specia l Master w ere ass essed 50% to each of the par ties. Wha

t ultimatel

y became Wife’s s ole asse

ts were u sed in par

t to pay Hu sband’s p ortion of these intermediate fees and expenses. While this appears to have been an oversight on the par t of the court and the Special Master, we are of the opinion that Wife’s c omplaint is justified. It appears at first blush that Wife has been forced to pay $7,500.00 too much as a r esult of the payment from these escrow funds. However , as this court is of the opinion that 85% of the Speci al Master ’s feesand expe nses should be born

by Husband as a re sult of his conduct w

hich we h ave desc

ribed el sewher

e in this opinion, this m

eans tha t this16

transaction inured even more to the benefit of Husband. I n keeping with our holding, only $2,250.00 of these advanced interim payments should have been cha rged to Wife with the balance of $12,750.00 assessed to Husband. Without requiring another hearing, it is the opinion of this court that this matter can be rectified by requiring Husband to pay to Wife an additional sum of $12,750.00 as his portion of the costs and expenses paid. It is so ordered. V.(W) The Awarding of the Special Master ’s Fees Over the course of these proceedings there were at least four hearings he ld by the Special Master. In addition to the master’s fees, there we re fees and charges of other experts involved in this matter, including but not limited to real estate appraisers and auditors. The Special Master’s recommendation in this regard, a pproved by the chance llor, wasthat the Master’s f ees, along with the se and the other ex penses, should be alloc ated “equally am

ong the pa

rties,” o r 50% to Hu sband and 50% to Wife. His justification for doing so was as follows: “The services of the Special Master , inasmuch as they involve evaluation and division of the parties’ assets in the case of the parties own inability to do so, should be deemed to have inured to the benefit of each of the m equally.” The taxing of and assessing of costs by the trial court, along with fees for proceedings such as we had in this case, rests in the discre tion of the trial court. We consider it on appe al without

any presumption of

correctness, ex amining the manner in which it was done to ascertain as to whether or not in the opinion of this court, based upon this record, the trial court did or did not abuse its discretion. In our opinion there was an abuse of discretion.
First of all, as for

the Maste

r’s rea soning, ma

ny hearings in our c ourts inur e to the benefit of both

parties, but that do es not nec essarily dictate t hat we ta x the cost s equally. In this case, the divorce proceedings we re clearly brought about by Husband’s infidelit y, emotion al and phy sical abuse, and dissipation and/or s ecreting of the pa rties’17

marital assets. There are no findings in this record whatsoeve r that reflect upon any aspect of the life, conduct and financial dea lings of Wife. The Special Master in his uncontradicted report, char acterized the behavior of Husband in dissipating and/or secret ing the pa rties’ ma rital ass ets as “egregious ,” or in common English, outrageous. In his “Amended and Supplement to Final Report” filed in February 19, 1994, the Special Master stated that the hearings of Apr il 20 and June 17, 1993 “primarily involved the issue as to what assets were secre ted or dissipated by Mr. Long.” Thereafter, there w ere two supplements to the Special Master’s final report made by him, one in Fe

bruary 1 994 and one in Octob er 1994. To each of these supplemental reports Husband filed objections, necessitating a further he aring in each case. These two hearings genera ted $6,003.00 in fees of the total amount awarded. As to these two hearings the Special Master found that Husband had no basis for any of the positions taken in the objections as filed. Under these circumstances, we a re of the opinion that it was inappropriate to divide the fees and charges equa lly among the parties, considering that the divorce as well as the majority of these pr oceedings before the Special Master was brought about by the conduct and misconduct of def endant. Accordingly, we modify the decree of the c hancellor below in this regard and assess the fees and charges involving the Special Master’s proc eedings as follows: to Husband, 85%; to Wife 15%. Accordingly, the judgment of the trial court is affirmed as modified. Costs on appeal are taxed to Husband for which execution may issue if necessary. T his cause is remanded to the Chancery C ourt of Shelby Count y for furt her proceedings not inconsist ent with t

his opinion.

_________________________________________ TOMLIN, Sr. J.

_________________________________________ FARMER , J (C ONCURS)18

CRA WFORD , P.J. dis

sen ts (see separat

e opinion)