1 Rule 10 (Court of Appeals). Memorandum Opinion . -- (b) The Court, with the

concurrence of all judges participating in the case, may affirm, reverse or modify the ac tions 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 When a case is decided by memorandum opinion it shall be designated "MEMORANDUM OPINION," shall not be published, and shall not be cited or relied on for any reason in a subsequent unrelated case. 

# FILED January 14, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF APPEALS OF TENNESSEE WESTERN SECTION AT JACKSON

______________________________________________ EMMA WHITE SMITH, FROM THE CIRCUIT COU RT OF SHELBY COUNTY, THE Plaintiff-Appellee, HONORABLE JAMES E. SWEARENGEN, JUDGE Shelby Law No. 14878 R.D. Vs. C.A. No. 02A01-9709-CV-00223 AFFIRMED IN PART, REVERSED IN PART, AND REMANDED HUBERT SMITH, Sam F. Cole, Jr., of Me mphis Defendant-Appellant For Appellant Emma White Smith, Pro

Se

___________________________________________________________ _________________ MEMORANDUM OPINION 1

___________________________________________________________________________ CRAWFORD, J. This is a divorce case. Plaintiff, Emma Wh ite Smith (Wife) a

nd defendant, Hu

bert Smith (Husband), were divorced by decree entered May 16, 1997. Husband has appealed

and presents four issues for review which, as stated in his brief, are:

1. The error of the

trial court

in completely divesting Appellant of the real estate that had

been willed to him prior to the marriage and totally granting it to the Appellee. 2. The error of the

trial court in

refusing or failing to require the Appellee to disclo

se her property,

or property inter

ests. 3. The error of the trial court in refusing or fa iling to direct completion of the arbitration that it had ordered. 4. The error

of the trial court in ordering or requiring Appellant to pay alimony. We will first consider Husband’s second issuedealing with a request for production of documents. On Decemb er 21, 1995, Husband served a Rule 34 Request for Production of Doc um ents and upon Wife’s failure to comply filed a motion to compel production on March 4, 1996. On March 25, 1996, the trial court entered an order compelling Wife to prod uce the2

documents

requested, but W

ife failed to

comply with the order. On January 28, 1997, Husband filed a motion to dismiss because of Wi fe’s failure to comply with the trial court’s order. On February 12, 1997, the tr ial court entered its order denying the motion to dismiss and further found that the documents and records previously ordered produced were not releva

nt to the case and ordered that plaintiff “need not produce them.” The request for prod

uctio n s ought information f rom Wife concer

ning her earnings, financial resources, and separate property, all of which are relevant factors to be considered by the court in s etting spousal suppo rt T.C.A. § 36-5-10 1 (d)(1)(A)&(G ) (Supp. 1997) and

in making an equitable distribution of marital property. T.C.A. § 36-4-121(c) (1996). W if e’s complaint seeks a division of marital property and spousal support. In the instant case,

the trial court sho

uldhave entertained Husband’s motion pursuant to the provisions of Tenn.R.Civ.P. 37 and some appropriate sanctionwithin the discretion of the court should have been granted. The trial court erred in its determination that the material sought was not relevant. The first and fourth issues concerning the division of marital property and the award of alimony respectively shall be considered together. As to the division of marital property, the trial court must d etermine what is marital property and

what is separate

property in order to divide the marital estate. Batson v. Batson , 769 S.W.2d 849 (Tenn. App. 1988). The trial court is requiredto consider all pertinent factors in making the division o

f marital proper

ty including those factors set out in T.C.A. § 36-4-121(c) (1996). It appears from the record before us that these factors were not considered in the division of the marital prope

rty made by the trial court. As to the ali mony award made b

y the trial court, it appears equally clear that the factors to be considered pursuant to T.C.A. § 36-5-10 1(d)( 1)

were not considered by the trial court. The case must be remanded for further consideration of the division of mari

tal property and t

he award of spou

sal support. The last issue to be considered is the action of the court in ordering “binding arbitration” and then disregarding the order. We find no authority for the order of bindingarbitration. Purs uant to Rule

31, Section 3, Rules of the Suprem

e Court, the trial c

ourt, with the cons

ent of all the par

ties, ma y o rder,3

among other

things, nonbinding arbitration. Therefore, the order entered for binding arbitration was a nullity, and th

e trial court prop

erly disregarde

d it. The final decree of the trial court awarding divorce is affirmed. The decree in a ll other respects is reversed, and the case is remanded fo r fu rther proceedi

ngs to make an equi

table distributi on of m arital property a nd for a consider

ation of an awar

d of spousal suppor

t, if justified. The costs of this appeal are assessed against the appellee.

_________________________________ W. FRANK CRAWFORD, PRESIDING JUDGE, W.S. CONCUR:

____________________________________ ALAN E. HIGHERS, JUDGE

____________________________________ DAVID R. FARMER,

JUDGE