IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

July 15, 2010 Session

JANSON POPE v. SAYURI POPE

Appeal from the Circuit Court for Davidson County

No. 07 D 3642 Carol Soloman, Judge

No. M2010-00067-COA-R3-CV - Filed October 28, 2010

In this divorce action, Wife appeals the trial court’s division of property and award of

alimony and attorney’s fees to Husband and asserts that the manner and conduct of the

hearing violated her right to procedural due process. We reverse the judgment in part and

remand the case for the court to classify the parties’ property, to value and divide the property

it determines to be marital property, and to redetermine the amount of attorney’s fees to

Husband.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed in

Part, Reversed in Part and Remanded

RICHARD H. DINKINS, J., delivered the opinion of the court, in which FRANK G. CLEMENT,

JR. and ANDY D. BENNETT, JJ., joined.

Connie Reguli, Brentwood, Tennessee, for the appellant, Sayuri Pope.

Phillip Leon Davidson and Mary Francis Lyle, Nashville, Tennessee, for the appellee,Janson

Pope.

OPINION

I. FACTUAL AND PROCEDURAL HISTORY

Janson Pope (“Husband”) and Sayuri Pope (“Wife”) were married in May of 1995 in

California. At the time of marriage, Husband owned “The Trading Post,” a small retail shop

that sold and traded used merchandise. Wife began helping with the shop, and eventually the

parties began selling items on eBay.com—an online auction website—under the name “The

Log Cabin Trading Post.” Wife was primarily responsible for listing their products on eBay

and managing the online business. In 2002, the parties got the opportunity to sell used or
“old stock” wetsuits on eBay. In 2004, Husband believed that a business contact, Paul

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Lundgren, intended to make him a partner in his company that sold wetsuits, but an

agreement never materialized.

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In 2005, the parties sold their home in California and moved to North Carolina, where

they continued their eBay business. In September 2007, the parties sold their home in North

Carolina and moved to Tennessee. They realized a gain of $279,000.00 on the sale. Soon

thereafter, the parties separated, and Husband filed for divorce on December 13, 2007,

alleging irreconcilable differences and inappropriate marital conduct. He sought, inter alia,

an order restraining Wachovia Bank from releasing any funds from Wife’s bank accounts,

an equitable division of property, and attorney’s fees. Prior to the filing of the divorce, the

parties had agreed to divide the proceeds of sale of the home into three bank accounts:

$100,000.00 in an account in Husband’s name, $100,000.00 in an account in Wife’s name,

and $79,000.00 in a joint account. During the pendency of the divorce, Wife paid off about

$30,000.00 in credit card debt from the joint account and deposited half of the remaining

funds (about $25,000.00) in each of their separate accounts.

On December 17, the trial court issued an order, restraining and enjoining Wachovia

from releasing funds from any account bearing Wife’s name. On December 27, Wife filed

an answer and a counterclaim—also alleging irreconcilable differences and inappropriate

marital conduct—and sought an equitable division of property and attorney’sfees. Wife filed

a Motion to Dissolve Restraining Order and to Order the Release of Personal Property,

alleging that Husband confiscated various items of personal property. On February 25, 2008,

the trial court entered an agreed order allowing each party to withdraw $10,000.00 from that

party’s separate account and ordered Wife to give total control of The Trading Post to

Husband.

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On November 14, 2008, Husband filed a motion for sanctions, asserting that Wife had

failed to adequately respond to discovery requests. Wife filed a Motion for Summary

Judgment, seeking a declaration that the business was jointly owned and was part of the

“Old stock” refers to wetsuits that were outdated, and the rubber can no longer be warrantied

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because of its age.

Husband asserted in his pleadings, and continues to assert on appeal, that Wife entered into a secret

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agreement with Mr. Lundgren and a man named Stefan Larson to sell wetsuits and to cut Husband out of the

business.

Wife’s employer at the time, Fit2Race, Inc., filed a motion to intervene alleging that Husband had 3

confiscated computers and hard drives owned by Fit2Race. The disposition of that motion is not evident

from the record.

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marital estate. On December 18, the trial court entered an order requiring Wife to provide

a complete and accurate response to Husband’s discovery requests or an acceptable

explanation as to why she had not complied. At a hearing on January 9, 2009, the court heard

Wife’s motion for summary judgment and Husband’s motion for sanctions. The trial court

denied Wife’s motion because there were several disputed material facts and ordered her to

comply with Husband’s discovery requests by January 13. Failure to provide the

information, the court wrote, “would result in Wife being barred from taking any position in

opposition to Husband’s position concerning any issue that was or reasonably could be

believed to be contained in that lacking information.”

On January 22, 2009, Husband filed a motion in limine for sanctions, contending that

Wife resisted orders requiring her to provide relevant documents. He requested that her

“pleadings be struck and that she be barred from taking a position contrary to Husband’s

position that she and a man named Paul Lundgren conspired together to deprive [Husband]

of his business, ‘The Trading Post.’”

In January 2009, Husband filed a motion to amend his complaint to add a request for

alimony and filed a motion for alimony pendente lite, asserting that Wife was earning

$90,000.00 per year and that he was only earning a few hundred dollars per month. Wife

filed a response to Husband’s motion for alimony pendente lite, contending that she only

earned $2,846.20 per month and had expenses of $2,776.00 per month. At a hearing on

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February 13, the court heard Husband’s motion to amend his complaint, motion in limine for

sanctions, and motion for pendente lite alimony. The court entered an order that granted the

motion to amend and granted the motion for sanctions, stating that “Husband’s claims

regarding any matters covered by discovery that should have been and has not been provided

by Wife by February 20, 2009 shall be taken to be established in accordance with Husband’s

claims, and Wife is forbidden to pursue or oppose any claims and defenses covered by such

material.” The court denied the motion for pendente lite alimony but allowed Husband to

withdraw $5,000.00 from his frozen account, reserving for trial the issue of whether those

funds should be classified as marital funds to be taken into account in the property division.

On April 14, the trial court held a telephonic conference with the parties’ attorneys

to discuss Wife’s attorney’s request for a continuance because he was having health

problems. During the discussion, Husband’s attorney requested financial assistance for

Husband pending the new trial date. On April 27, the court entered an order continuing the

trial date and ordering Wife to pay Husband alimony pendente lite in the sum of $1,000.00

 Wife’s response actually said that she earned $2,846.20 per week, but this was most likely meant

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to be per month. Wife asserted in later pleadings that this was a typographical error, and her brief on appeal

states that it should have read, “per month.”

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on April 15 and $1,000.00 on May 15. The order stated that the payments were conditioned

upon proof at trial of Wife’s ability to pay and that, if the condition was not met, the property

division would be adjusted to reimburse Wife. On May 22, Wife filed a motion to alter or

amend the order for pendente lite support, asserting that it was not properly before the court

and that no competent evidence was taken on the issue to support the court’s conclusion.

On May 28, Husband filed a petition for civil and criminal contempt of court,

asserting that Wife had failed to make the May 15 pendente lite alimony payment. He also

filed a motion in limine contending that Wife failed to comply with discovery requests and

asked the court to enforce its February 25 order. On June 11, Wife filed a petition for

contempt, alleging that Husband was in willful violation of the statutory restraining order set

forth at Tenn. Code Ann. § 36-4-106(d) because he moved marital funds from a joint account

to a separate account.

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In an order entered on June 22, 2009, the court granted Husband’s motion in limine

and prohibited Wife from opposing Husband’s claim that she “subverted and destroyed

Husband’s business, The Trading Post.” On July 2, the court entered an order which

authorized Wachovia to release $2,000.00 to Husband from hisseparate account and reserved

for trial the issue of whether the money would be classified as alimony or as part of the

property division.

The trial was held on June 1, June 2, June 22, June 23, and July 14, 2009. In an order

entered on December 3, the court found that: 1) despite her testimony that she earned

$48,000.00 per year, Wife’s annual salary was approximately $90,000.00; 2) Wife was not

a credible witness; 3) Wife “secretly dealt” with Paul Lundgren and Stefan Larson to sell

wetsuits, while cutting Husband out of The Trading Post; and 4) Husband earned

approximately $14,400.00 per year. The court then: 1) granted Husband a divorce on the

grounds of inappropriate marital conduct; 2) ordered Wife to pay Husband transitional

alimony of $1,500.00 per month for 3 years; 3) awarded Husband $150,000.00 from two

Wachovia bank accounts, which the court held to be marital funds; 4) awarded Husband his

attorney’s fees of $49,000.00 as alimony in solido; 5) ordered Wife to pay court costs and

discretionary fees; 6) characterized the $2,000 pendente lite alimony and the $7,000.00 the

court allowed Husband to withdraw from the marital funds as alimony in solido; 7) awarded

each party the remaining bank accounts that were in each party’s sole name; 8) awarded

husband a 1999 Dodge Ram Camper Van and a 1999 Ford F-800; 9) awarded wife a 1999

GMC Safari Van and a 2008 Subaru Legacy; 10) awarded each party the business and

personal property then in their possession; 11) awarded Wife jewelry, which was to remain

in Husband’s possession until her alimony obligations were paid in full; 12) awarded

 The disposition of the petitions for contempt is not evident in the record. 5

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Husband the business names of “Say’s Boutique,” “Sales Boutique,” and “The Trading

Post”; 13) ordered each party to pay all debts in that party’s sole name; and 14) ordered Wife

to pay any debt owed on a Chase Capital account opened by Wife in Husband’s name.

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On December 30, Wife filed a Notice of Appeal and a motion to stay judgment under

Tenn. R. Civ. P. 62. Various other post-trial motions were filed, including a motion filed by

Wife on February 2, 2010, seeking to supplement the record with “the Court’s judicial

comments regarding the Husband.”

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On February 23, the court entered an order 1) granting Husband’s motion to withdraw

funds in the amount of $15,000.00; 2) granting Husband’s attorney’s motion to secure

attorney’s fees “which the Court f[ound] be to in the amount of $67,402.53”; 3) granting

Wife’s motion to stay the judgment, except for the $15,000.00 Husband was permitted to

withdraw and with regard to Wife’s obligation to pay transitional alimony; and 4) denying

Wife’s motion to supplement the record.

II. DISCUSSION

On appeal, Wife contends that the trial court erred in failing to classify, value, or

equitably divide the parties’ property; in awarding alimony and attorney’s fees to Husband;

and in the manner and conduct of the hearing, including the finding that she “subverted and

destroyed” Husband’s business. Wife further assertsthat the trial court committed plain error

and violated her right to procedural due process. We will consider each issue separately.

A. Distribution of Marital Property

1. Classification of Marital Property

The court held that the two Wachovia bank accounts and the business name of The

Trading Post were marital property. The court did not classify the business names “Say’s

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 Wife does not specifically challenge the court’s division of the debts. 

6

 Wife’s attorney attached an affidavit to this motion stating that, during a meeting in chambers on 7

the final day of the hearing, the trial court stated that “she though[t] the Husband was just ‘dumb’ or very

‘naive’ and the Judge didn’t think [Wife’s attorney] would get any answers from him.”

The court made no determination of value of the business name but found that the business had 8

no value. 

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Boutique,” “Sales Boutique,” other bank accounts, four vehicles, and the personal property

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and business inventory awarded to each party. The provision in the decree relative to Wife’s

separate property stated that Wife was “awarded her separate property including, but not

limited to jewelry consisting of two wedding rings and a one karat diamond pendant.” The

court, however, did not state what property, other than the jewelry, was considered separate.

The division of the marital estate begins with the classification of property as separate

or marital. Miller v. Miller, 81 S.W.3d 771, 775 (Tenn. Ct. App. 2001). Questions

concerning the classification of property as either marital or separate are inherently factual.

Owens v. Owens, 241 S.W.3d 478, 485 (Tenn. Ct. App. 2007). We review the trial court’s

findings of fact de novo, presuming that the trial court’s factual determinations are correct

unless the preponderance of evidence is otherwise. Tenn. R. App. P. 13(d); see also

Rawlings v. John Hancock Mut. Life Ins. Co., 78 S.W.3d 291, 296 (Tenn. Ct. App. 2001).

If the evidence does not preponderate against the court’s findings, we must affirm, absent an

error of law. Tenn. R. App. P. 13(d).

The trial court determined the funds in the Wachovia accounts were marital property.

The proof was that the funds were proceeds from the sale of the parties’ North Carolina

home. Inasmuch as the accounts were proceeds from the sale of the marital residence, the

court did not err by classifying the bank accounts as marital property. See Tenn. Code Ann.

§ 36-4-121(b)(1)(a).

Similarly, the preponderance of the evidence supports the classification of “The

Trading Post” as marital property. Husband owned the business at the beginning of the

marriage and, in 1998, he sold the business. Over the course of their marriage Husband and

Wife operated a similar business, through eBay.com, first known as “The Log Cabin Trading

Post” and later known as “The Trading Post.” The proof was that both parties contributed

significantly to its success. The classification of the business name as marital property was

not error.

Testimony by both Husband and Wife was that the rings and diamond pendant were

given to Wife as gifts during the course of the parties’ engagement and marriage; these were

awarded to Wife as separate property. Because separate property includes “[p]roperty

acquired by a spouse at any time by gift,” the court did not err in classifying the jewelry as

separate property. Tenn. Code Ann. § 36-4-121(b)(2)(D); see also Batson v. Batson, 769

S.W.2d 849 (Tenn. Ct. App. 1988).

Wife testified that Say’s Boutique and Sales Boutique were internet businesses which were

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properties of The Trading Post and operated using The Trading Post website and PayPal account.

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The court did not classify the remaining property, consisting of four vehicles, business

inventory and personal property, bank accounts, and the business names of Say’s Boutique

and Sales Boutique. As noted, it is the court’s responsibility to classify all property as part

of the equitable division; the failure to do so is error.

2. Valuation of Marital Property

Once the court has classified the property, the court must place a reasonable value on

marital property that is subject to division. Edmisten v. Edmisten, No. M2001-00081-COAR3-CV, 2003 WL 21077990, at *11 (Tenn. Ct. App. May 13, 2003). The value of marital

property is a fact question, and a trial court’s decision with regard to the value of a marital

asset will be given great weight on appeal. Edwards v. Edwards, 501 S.W.2d 283, 288

(Tenn. Ct. App. 1973). In accordance with Tenn. R. App. P. 13(d), the trial court’s decisions

with regard to the valuation and distribution of marital property will be presumed to be

correct unless the evidence preponderates otherwise. Wallace v. Wallace, 733 S.W.2d 102,

107 (Tenn. Ct. App. 1998); see also Hardin v. Hardin, 689 S.W.2d 152, 154 (Tenn. Ct. App.

1983).

The only value assigned to marital property was $150,000.00 for the Wachovia

accounts; the court found that The Trading Post business had no value. No value was placed

on the parties’ vehicles, business inventory, personal property, various debts owed by the

parties, other bank accounts, or the business names of Say’s Boutique, The Trading Post and

Sales Boutique.

The parties testified that the value of The Trading Post derived almost entirely from

its sales inventory, and that the business name itself was of little or no value. Husband

testified that he did not know how to use eBay and was unable to run the online business

until he learned to do so. There was also testimony that The Trading Post business suffered

a loss in value after the parties’ separation. Although there was business inventory as of the

date of trial, the court’s valuation of the Trading Post was, apparently, based on the name

only. Because the inventory was not considered in the valuation of the business, there is no

evidence to support the court’s finding that the business had no value and the case must be

remanded for the court to set a value on the inventory and any other property owned by the

business, e.g., computers.

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The Court awarded each party the “business inventory” in their possession. While Wife does not 10

contest this award, it is necessary for the court to classify the inventory as marital property and assign a value

to the inventory in order to equitably divide the marital assets. 

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Tenn. Code Ann. § 36-4-121(b)(1)(A) requires that “[a]ll marital property . . . be

valued as of a date as near as possible to the date of entry of the order finally dividing the

marital property.” Wife testified that the total amount held by the parties in all Wachovia

accounts at the date of separation was $260,328.72; the bank statements introduced at trial

were consistent with Wife’s testimony. However, the Wachovia bank statements in the

record end at July 2008 and there is no evidence of the value of the accounts as of the date

of the final hearing of the divorce in July 2009. The record does not show upon what basis

the court awarded Husband $150,000.00 from the Wachovia accounts and the balance in the

accounts after the award. As with the businesses and business inventory, the correct

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valuation of these accounts is a matter which must be addressed by the court on remand.

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3. Division of Marital Property

Tenn. Code Ann. § 36-4-121(c)(1) requires a court to equitably divide marital

property, but an equitable division does not require that the property be divided equally.

Robertson v. Robertson, 76 S.W.3d 337, 341 (Tenn. 2002). As with classification and

valuation, trial courts have “wide latitude in fashioning an equitable division of marital

property,” and their decisions will be given great weight by the court of appeals. Wilson v.

Moore, 929 S.W.2d 367, 372 (Tenn. Ct. App. 1996). The court of appeals will not overturn

a trial court’s division of marital property in absence of evidence that the distribution “lacks

proper evidentiary support or results from some error of law or misapplication of statutory

requirements and procedures.” Herrera v. Herrera, 944 S.W.2d 379, 389 (Tenn. Ct. App.

1996) (citing Wade v. Wade, 897 S.W.2d 702, 715 (Tenn. Ct. App. 1994)).

In light of the court’s failure to classify and assign values to all marital property, there

is insufficient evidence to support the division of marital property.

B. Alimony and Attorneys Fees

The court awarded Husband transitional alimony of $1,500 per month for three years.

It also awarded, as alimony in solido, the $2,000 pendente lite alimony, the $7,000 Husband

was allowed to withdraw during the pendency of the proceedings, and Husband’s attorney’s

While Wife contends that the court “failed to award $44,000 in the property division,” she fails

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to identify the source of these funds. 

Wife complains that the trial court failed to address her contention that Husband dissipated 12

$45,000 from his account between December 2007 and January 2008. On remand, the court should

determine if Husband or Wife dissipated any of the funds between the date of separation and the final divorce

hearing before allocating the funds between the parties. See generally Ward v. Ward, No.

W2001-01078-COA-R3-CV, 2002 WL 31845229, at *2–3 (Tenn. Ct. App. Dec. 19, 2002). 

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fees. Wife contends that the court erred in finding that she had the ability to pay and that

Husband was economically disadvantaged. Wife contends that the $7,000 should have been

deemed marital property rather than alimony in solido. Lastly, Wife argues that the court

abused its discretion by awarding Husband his attorney’s fees as alimony in solido.

1. Wife’s Ability to Pay & Husband’s Need

When setting alimony, a court must look to the factors set forth in Tenn. Code Ann.

§ 36-5-121(i). A trial court should consider all the relevant factors under the circumstances,

but the two most important factors are 1) the need of the economically disadvantaged spouse

and 2) the obligor spouse’s ability to pay. Riggs v. Riggs, 250 S.W.3d 453, 457 (Tenn. Ct.

App. 2007) (citing Robertson v. Robertson, 76 S.W.3d 337, 342 (Tenn. 2002)); see also

Bogan v. Bogan, 60 S.W.3d 721, 730 (Tenn. 2001); Oakes v. Oakes, 235 S.W.3d 152, 160

(Tenn. Ct. App. 2007). When considering these two factors, the primary consideration is the

disadvantaged spouse’s need. Riggs, 250 S.W.3d at 457 (citing Aaron v. Aaron, 909 S.W.2d

408, 410 (Tenn. 1995); Watters v. Watters, 22 S.W.3d 817, 821 (Tenn. Ct. App. 1999)).

At the time of trial , Wife was employed as Director of Operations for Fit2Race, Inc.

She testified that her only source of income was from this employment and that her gross

yearly salary was $48,000. She submitted a paycheck from April 2009 that showed her twoweek gross earnings were $1,846.15; by extrapolation, her gross income from Fit2Race for

the year would have been $47,999.90. Her employer, Mr. Lundgren, testified that Wife’s

salary was $48,000 per year.

The record, however, includes a signed credit application from 2008 in which Wife

stated her monthly income as $7,500. Further, Wife admitted that her tax returns for both

2007 and 2008 did not accurately state her full income. When asked about her 2007 return,

which showed an adjusted gross income of $2,743, Wife testified that she had reported no

income while claiming expenses from The Trading Post; she testified further that she was

planning to amend the return. Her 2008 tax return indicated that Fit2Race was her only

employer and that her totalsalary was $44,861.44. She testified, however, thatshe also made

money through her eBay business, Say’s Boutique, that she did not report on her return.

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In holding that Wife made over $90,000 a year in 2009, the court stated that Wife’s

credibility issues and inconsistentstatements made it impossible to believe that Fit2Race was

her only source of income. The court held that her spending habits and bank account total

were more in line with an income of $90,000 per year.

Wife’s bank statements for 2008 confirm numerous and substantial deposits other than from 13

Fit2Race. 

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With regard to Husband’s financial need, the record is fairly straightforward. Before

trial, he filed a statement of income and expenses, in which he stated his gross monthly

income to be as $1022 and monthly expenses of $3,221.75. He testified that he operated

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an antique booth at Green Hills Antique Mall and worked two days a week through a temp

agency at $7.59 an hour. Wife did not present proof demonstrating the inaccuracy of these

figures, and on appeal she merely asserts that Husband “had done little to nothing to support

himself.”

The evidence does not preponderate against the trial court’s findings of Wife’s and

Husband’s income, Wife’s ability to pay, and Husband’s need. The income disparity

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demonstrates Husband’s financial disadvantage, thereby justifying the award of transitional

alimony to Husband.

2. Award of Alimony In Solido

The amount and type of alimony to be awarded is within the sound discretion of the

trial court in light of the particular circumstances of each case. Riggs, 250 S.W.3d at 456–57

(citing Lindsey v. Lindsey, 976 S.W.2d 175, 180 (Tenn. Ct. App. 1997)). This Court will not

alter such awards absent an abuse of discretion. Id. Moreover, we are disinclined to secondguess a trial court’s decision regarding spousal support unless it is not supported by the

evidence or is contrary to public policy. Brown v. Brown, 913 S.W.2d 163, 169 (Tenn. Ct.

App. 1994).

Wife challenges the court’s classification of the $7,000 withdrawn by husband as

alimony in solido. Her brief states, “The Wife would show that this disbursements [sic]

should have been deemed property division,” but she cites to no authority and presents no

analysis to support her position. Our review of the record does not show that the court

abused its discretion in awarding Husband the $7,000 as alimony in solido.

3. Attorney’s Fees

The trial court awarded Husband $49,000 for his attorney’s fees as alimony in solido.

Relying on Inman v. Inman, 811 S.W.2d 870 (Tenn. 1991), Wife contends that an award of

The income and expense statement in the record was modified consistent with Husband’s trial

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testimony to show total monthly expenses of $2,861.75. 

At trial, Husband testified that, since the date of filing the income statement, hisincome increased

15

“a couple hundred dollars with the second-hand season heating up a little bit.” This likely accounted for the

trial court’s finding that he made $14,400 per year.

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attorney’s fees are inappropriate when the spouse seeking the award is able to pay his or her

own lawyer from earnings or assets received in the divorce and, consequently, she argues the

award should be reversed. Wife acknowledges that the question of whether to award

attorney's fees, and the amount thereof, are largely left to the discretion of the trial court. See

Aaron v. Aaron, 909 S.W.2d 408, 411 (Tenn. 1995). The trial court’s decision will not be

disturbed on appeal absent an abuse of discretion. Id.

Wife’s reliance on Inman is misplaced. The Supreme Court’s holding in that case was

based on the analysis of the particular facts at issue, with circumstances quite different from

the case at hand. In Inman, the wife was awarded more than $1 million dollars in marital

assets and was found to have a “substantial earning capacity.” Because of that, the Court

found the award of attorney’s fees and alimony were “neither necessary nor appropriate.”

Inman, 811 S.W.2d at 874. To the contrary, in making the award in this case, the court had

already determined Husband’s need for alimony. In addition, the court noted that Wife

refused to provide discovery “so many times” and escalated the fees incurred by Husband.

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The trial court did not abuse its discretion in determining to award attorney’s fees to

Husband.

We deem it appropriate, however, to vacate the amount of fees awarded. Provisions

with regard to marital property are among the factors to be considered in determining the

amount of alimony to be awarded. See Tenn. Code Ann. § 36-5-121(i). In light of our

remand of this case, the amount of the attorneys’ fees awarded should be reexamined

following the court’s division of the marital property.

C. The Manner and Conduct of the Hearing

Appellant raises as an issue whether the trial court erred “in its manner and conduct

of the hearing including the finding that Wife ‘subverted and destroyed his business’ and

allowing him to proceed on his request for alimony.” She mentions the court’s June 2009

order imposing a sanction and the court’s action in allowing Husband to proceed with a

request for alimony, and asserts that the court abused its discretion as to each.

The June 2009 order, in which the court forbade Wife from opposing Husband’s claim

that Wife subverted and destroyed The Trading Post business, was premised on an order

The court had ordered Wife to turn over documents related to The Trading Post business. When 16

Wife later admitted that she did not provide an electronic drive containing emailsrelated to The Trading Post

business, the court granted non-monetary sanctions against Wife for her failure to comply with discovery. 

The court found that Wife “deliberately held back on crucial discovery of accounts, of computer passwords,

of programs and the contents of a lock box . . . .” 

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entered February 25, 2009 on a motion filed by Husband seeking sanctions for Wife’s failure

to provide documents and materials sought in discovery. In his motion, Husband recounted

the history of his efforts to secure discovery from Wife, which began on January 25, 2008

and included the entry of an agreed order entered September 3, 2008, resolving a pending

motion to compel filed by Husband. Following a hearing on November 21 a further order

was entered on December 18, 2008, wherein the court ordered Wife to “provide a complete

and accurate response to all requests contained in Exhibit G to Husband’s Motion [for

Sanctions], or an acceptable explanation as to why any such request has not been complied

with fully, by this Court’s motion docket on December 19, 2008.” Wife does not dispute that

she failed to provide the information and instead takes issue with the fact that the second

order “granted relief not so identified in the first order,” which she argues “was of a general

nature.”

Tenn. R. Civ. P. 37.02(B) allows a court to impose “an order refusing to allow the

disobedient party to support or oppose designated claims or defenses” as a sanction for

failure to comply with prior orders. The February order stated specifically that Husband’s

claims regarding matters which were covered by discovery that could and should have been

provided would be taken as established, and Wife would be forbidden to oppose such claims

related to discovery that she failed to provide. In the event that Wife failed to comply with

discovery, the court’s authority and discretion to impose a sanction authorized by Rule 37

and appropriate for the particulars of the case was not limited simply because the court did

not lay out all possible sanctions in its February 25 order. Further, to the extent Wife

contends that the court’s February 25 order was in any way confusing or inadequate, the

record shows neither compliance on the part of Wife with any aspect of the order nor an

effort by Wife to clear up any confusion. The court did not abuse its discretion in

sanctioning Wife.

Wife also complainsthat Husband did not plead for alimony in his original complaint.

Wife claims that, after Husband was granted leave by the court to amend his complaint, he

did not refile or serve the amended complaint on her and, therefore, the trial court’s award

of alimony was an abuse of discretion. She cites no authority for this argument and, to the

extent it might be a factor to be considered, no prejudice by the allowance of the amendment.

Tenn. R. Civ. P. 15 allows for the amendment of pleadings upon leave of court; the

rule further provides that “leave shall be freely given when justice so requires.” In Branch

v., Warren, 527 S.W.2d 89, 91–92 (1975), the Tennessee Supreme Court stated: “That rule

needs no construction; it means precisely what it says, that ‘leave shall be freely given.’”

Wife has failed to show that the court abused its discretion.

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D. Wife’s Right to Procedural Due Process in the Conduct of the Hearing

Wife contends that she was deprived of a fair trial. At various times, the court

referred to Wife as “a bad woman” and “an alley cat.” The court also stated “I don’t think

[Wife is] dumb. I’m almost convinced of it,” and “[Wife] bores me.” Wife argues that the

court ‘s “impertinent and biased remarks” amounted to plain error and violated her right to

procedural due process. Wife, however, did not move the court to recuse itself, and there is

no order or record developed on such a motion for us to review.

We agree that the court’s remarks about Wife are impertinent and are concerned that

the remarks negatively affect the parties’ perceptions of the impartiality of the court. The

record does not show, however, that the court was biased against Wife. The court

determined that Wife was not credible and that determination is supported by the evidence.

17

The record does not show that Wife’s rights to a fair hearing or to due process of law were

violated. On remand, we anticipate that the court will conduct further proceedings and

resolve the remaining issues in a manner that will instill confidence in both parties that the

case has been determined in a fair and impartial manner.

III. CONCLUSION

For the aforementioned reasons, this Court AFFIRMS the court’s findings that the

Wachovia bank accounts were marital property; that “The Trading Post” business name was

marital property; that Wife’s wedding rings and diamond pendant were separate property;

the awards of transitional and in solido alimony; and the court’s decision to award attorney’s

fees to Husband. In all other respects the judgment is REVERSED and the case

REMANDED for the trial court: to classify the property of the parties; to value the property

it determines to be marital property, including The Trading Post business and the Wachovia

bank accounts; and to equitably divide the marital property. The court is further directed to

reconsider the amount of attorney’s fees to be awarded Husband in accordance with this

opinion.

___________________________________

RICHARD H. DINKINS, JUDGE

In addition to the mattersrelated to Wife’sfailure to comply with discovery orders, the court made 17

a finding that Wife had lied at her deposition and had failed to include all income on her income and expense

statement. Wife does not dispute these findings. 

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