### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE July 9, 2002 S ession DEBRADENEC E BOLIN v. CAR L DEAN BOLIN Direct Appeal from the Chancery Court for Montgomery County No. 99-08-0035 Carol Catalano, Chancellor

No. M2001-02168-COA-R3-CV - Filed August 13, 2002

Wife filed for divorce soon after Husband was se ntenced to four

ye ars in prison fo r causin g the de ath of Son. The trial court

granted Wifethe divor

ce on the ground s of inapp

ropriate marital c onduct. The court also determined that section 31-1-106 of the Tennessee Code pr ohibited Husband from collecting his portion of Son’s life insurance policy . We affirm the decision of the trial court. Tenn. R. App.P. 3 Appeal as of Right ; Judgment

of the Cha

ncery Court Affi rmed; and Remanded D AVID R. F ARMER , J., delivered the opinion of the court, in which W. F RANK C RAWFORD , P.J., W.S., and H OLLY K. L ILLARD , J., joined. Carrie Kersh-Gasaway, Clarksville, Tenne ssee, for the appellant, Carl Dean Bolin. Gregory D. Smith, Clarksville, Tennessee, for the appellee, De bra Denece Bolin. OPINION Carl and Debra Bolin were married on October 20, 1973. Ms. Bolin worked throughout the marriage. Mr. Bolin

worked i rregularly until 1989, when he b egan to draw disa bility . Mr. Bolin also suppleme nted his income by

gamblin g on pool

tourname

nts. During

the cour se of the

ir marriage, the coupl e had two children, Chad and Cameron. At the time of the parties’ sepa ration, Cameron was twenty-two y

ears old, Chad was deceased. This divorce, a nd the corresponding issues, stem from Chad’s death. In January 1998, Mr. Bolin and Chad returned home after play ing in a p ool tourna

ment at a local bar. Chad had recently been discharged from the military and lived with Mr. and Ms. Bolin. Chad’s girlfriend, Heather, and he r two children also lived with the Bolins.-2-

Soon after Mr. Bolin and Chad arrived at their house , Chad attacked Mr. Bolin. The reasons behind this attack are unc lear. M s. Bolin a nd Heath er attem pted to sto

p the fig ht. Due in

part to their intervention, Chad ended his assault of Mr. Bolin. Wh e n Mr. Bolin

got off the floor , he retr

eated in to the cou

ple’s be droom. Mr . Bolin retrieved a loaded double barrel shotgun that he stored a bove the bed. Mr. Bolin

testifie d that he t

old Ms. Bolin that he “was going [to] wrap it around [Chad’s] he ad to kee

p him off of me . . . .” Mr. Bolin knew the gun wasloaded, but maintained that h e could not unload it b ecause of an injury

he sustained during the fight with Chad. Mr. Bolin then followed Chad out of the house and into the back yard. The

father and son had a brief discussion, and Mr. Bolin fired a shot into the ground. Mr. Bolin testified that he thought he emptied the gun by

firing it. Chad then walked around the house to the front y ard. While still in

possession of the shotgun, Mr. Bolin went back through the house and out the front door. When

Mr. Bolin

arrived on the front porch, he witnessed Chad exiting a truck. T he truck belong ed to Mr. B olin, and M r. Bolin u sually

kept a small gun in the vehicle. Chad walked to the street. Mr. Bolin

followed on th e sidewalk , beside a block wa ll adjace nt to the dr

iveway . At this point, Mr. Bolin testified that he told Chad to “do whatever y ou got to do” and “I’ m going to put the gun [down].” Then, according to Mr. Bolin, “[i]n the processof putting [the gun] o n the wall

it discharged.” The shotgun blast killed Chad. In July o f 1999, a

jury found Mr. Bolin guilty

of reckless homicide. The court sentenced Mr. B olinto four y

ears in th e Depar tment of Co

rrectio n. This ca se is rep orted as State v. Bolin , No

. M1999-00849-CCA-R3-CD, 2002 Tenn. Crim. App. LEXI S 58 (Tenn . Crim. App. January 28, 2002). Shortly

after Mr. Bolin’s conv ict ion, Ms. Bolin filed for divorce. Ms. Bolin’s complaint alleged that Mr. Bolin was guilty

of inappropriate marital conduct and that irreconcilable difference s existed between the parties. The trial court gr anted Ms. Bolin the divorce. In a ddition to awarding the divorce to Ms. Bolin, the court ruled that Mr. Bolin could not benefit from Chad’s life insurance policy. Mr. Bolin appeals the court’s decision. The issue s, as stated by Mr. Bolin , are asfollows: I. The trial court erre d b y g ranting the plaintiff a divorce based upon inapprop riate ma rital conduct. II. The trial court erred in finding that the defendant is precluded from receiving life insurance proceeds from the dea th of the parties’ adult son. III. Th e t ri al co ur t e rr ed by d iv id in g t he ma ri ta l p ro pe rt y in eq ui ta bl y. IV. The tria

l court e rred by deny ing the d efenda nt’s req uest for attorne y’ s fees.-3-

To the extent these issues involve questions of fact, our review of the trial court’s ruling i s de novo with a p resumptio n of corr ectness . Tenn. R. App. P. 13( d); e.g., Berryhill v. Rhodes , 21S.W.3d 188, 190 ( Tenn. 200 0). We may not reve rse the trial court’s factual findings unless they are contrary

to the preponderance of the evidence. Id. With respect to the court’s legal conclusi ons, our review i s de novo with no presumption of correctness. Bowden v. W ard , 27 S.W.3d 913, 916 (Tenn. 2000). Mr. Bolin’s f

irst issue concer ns the cou

rt’s dec is ion to award Ms. Bolin the divorce. Mr. Bolin contends that the eviden ce failed t o establish that he was guilty of inappropriate marital conduct. Mr. Bolin

argue s that beh avior tow ard the p arties’ adult child fa ils to justify a divorce on the ground s of inapp

ropriate marital c onduct. Mr. Bolin maintainsthat a div orce on t hosestatutory grounds must involve treatment toward the spouse. Grounds for divorce are gover ned by statute in Tenne ssee . Chastain v. Cha stain , 559 S.W.2d 933, 934 (Tenn. 1977). One particular gr ound for divorce is where “[t]he husband or wife is guilty of such cruel and inhuman treatment or conduct towards the spouse as rende rs cohabitation unsafe and improper whic h may also be re ferred to in [the] pleadings as inappropriate marital conduct

. . . .” Tenn. Code Ann. § 36-4-101(11) (2001). Essentially , inappropriate marital conduct is where “either

or both of the parties [have] engaged in a c ourse of conduct which (1) caused pain, anguish or distress to the other part y and (2) r endered continued cohabitation ‘improper,’ ‘unendurable,’ ‘intolerable,’ or ‘unacceptable.’ ” Earls v. Ear ls , 42 S.W.3d 877, 892 (Tenn. Ct. App. 2000) (Cottrell, J., concurring) (citations omitted). In this case, the record supports the trial court’s decision

to gran t the divor

ce to Ms. B olin on the gro

unds of ina

ppropria te ma rital con duct. Mr. Bolin’s actions in pursuing Chad with a firearm that ultimately

caused C had’s de ath cer

tainly caused M s. Bolin p ain, ang uish, and d

istress. The court wa s also justi fied in concluding that Mr. Bolin’s actions rendered cohabitation unsafe a nd improper. Although Mr. Bolin’s actions were directed primarily at Chad, the trial court did not err in determining that his actions constituted cruel and inhuman treatment toward Ms. Bolin. One of the most cruel acts toward a parent would be thekilling of his or her child. Accordingly , this issue is without merit. In Mr. Bolin’s next issue, he contends that the court erred when it det ermined that section 31-1-106 of the Tennessee Code prohibited him from receiving any portion of Chad’s life insurance benefit s. In arriving at its ruling, the court found that Mr. Bolin ’s action s were n ot consiste nt with one who acts in self-defense. The court also found that Chad’s death was not an accident. The court concluded

that Mr. Bolin “intentionally shot and killed Chad Bolin andis barred from receiving any life insurance funds or proceeds pursuant to Tenn. Code Ann. sec. 31-1-106.” Section 31 -1-106 of

the Tennessee Co de state s: Any person w ho shallkill, or conspire with another to kill, or procure to be killed, any other person from which

the first named person would inherit theproperty, e ither-4-

real or personal, or any

part thereof, belonging to such deceased person at the time of the deceased person’s death, or who would take the property, or any part ther

eof, by will, deed or otherwise, at the death of the deceased, shall forf eit all right therein, and the same shall go as it would have gone unde r the provisions of § 31-2-104, or by will, deed or

other conve yance , as the case may be, provided, that this section shall not apply to any

such killing as may be

done by ac cident or in self-defense. Tenn. Code Ann. § 31-1-106 (2001). The Tennessee Supreme Court interpre ted thi s statute in Moore v. State Farm Life Insurance Co. , 87 8 S .W .2d 946 (Te nn. 199 4). In Moore , Mr. Jordan was the driver of a vehicle in which Ms. Jordan was a passenger. Id. Mr. Jordan lost control of the vehicle, causing the death of Ms. Jordan. Id. Mr. Jordan was the primary be neficiary of her insurance policy ; her two children by a prior marriage were

the secondary

beneficiaries. Id. State Farm paid the proceeds of the policies to Mr. Jordan. Id. at 946-47. Mr. Jordan pled guilty to vehicular homicide

. Id. at 947. Subsequently, the gua rdian of the minor children sued

State Farm and Mr. Jordan. Id. The guardian argued that Mr. Jordan forfeited his right to the insurance proceeds pursuant to section 31-1-106 of the Tennessee Code and that the children, as secondary

beneficiaries, were entitled to the proceeds instead. Id. After analyzing the

statute and several cases, the court de termined that “a b enefic iary

must have intended to kill the insured before the beneficiary is barred f

rom taking the proceeds of the policy.” Id. at 947-48. The court stated that this interpretation supported the purpose of the statute, which is to

eliminate the tempta

tion to kill

for financial gain. Id. at 948. The court also provided an example of the proof necessary to accomplish a forfeiture in the automobile context. Id. at 948- 49. T he court stated that “one who drives a speeding car directly

against a pedestrian or onto a crowded sidewalk will be found to have intended to kill if death in fact re sults.” Id. In this case , the evid

ence do es not pre

pondera te aga inst the tr ial cour t’s findingth at Mr. Bolin intentionally killed

Chad. The court found

that M r. Bol in li ked to portr ay a “tough- guy image that showed he was not bey ond acts of violence.” The court also found that although Chad instigated the fight, Mr. Bolin was the f irst to get a weapon. Further, the c ourt found it important that Mr. Bolin pursued C had with

the gun, and the record establishes that Mr. B olin was in possession of the gun when it discharged. Finally , the court found that Mr. Bolin was aware of the dang er of fir

earms. This finding is also supported by the r ecord. The court de

termined that Chad’ s death

was not accidental, due

in part to Mr. Bolin’s actions after he shot Cha

d. Mr. Bo lin did not se

ek help or

try to rende r first a id to Chad. The court concluded

that “[n]ormally, any

person who accidentally injured another w ould try to help that injured person, e specially their own child.” Finally , the court determined that Mr. Bolin’s story was notcredib le, an d stat ed tha t Mr. B olin knew t hat he was car rying a loaded shotgun when he pursued Chad to the front of the house.1 Mr. Bolin does not argue t hat t he procee ds fr om Chad’s l ife ins urance pol icy a re mari tal propert y. Accord ingly, we have n ot addressed that matter. -5- The evidence also fails to preponderate ag ainst the trial court’s finding that Mr. Bolin did not act in self-defense. Chad was unarmed at the time

of his dea th and wa s standing

at least t wenty feet from Mr. Bolin . Althoug

h Chad bro

ke into Mr. Bolin’s truck and stated “I ’m going to make it even,” there is no evidence that Chad knew Mr. Bolin car ried a gun in the truck. Finally, the cour t found that Chad was leaving the Bolin’s property , and the evidence supports this conclusion. Fi na ll y, Mr. Bolin made several statements that support the trial court’s conc lusion. When he shot Chad, Mr. Bolin told Ms. Bolin, “now you can c all the law. I’ve shot him.” Also, after the 911 operator called the

Bolin’s home, Mr. Bolin answered the phone. The ope rator asked

if Chad was dead, and Mr. Bolin replied, “I don’t know. I left him lay ing in the street.” The evidenc e support s th e t ri al co ur t’ s f in di ng of in te nt as re qu ir ed by Moore

. Ad di ti on al ly, the evidence supports the trial court’s finding that the shooting wa s not in self-defense and was not an accident. Accordingly , we affirm the decision of the trial court. Mr. Bolin is not entitled to any portion of the insurance proceeds that resulted fr om Chad’s death. Mr. Boli n’s n ext

issue concerns th

e trial c ourt’s div

ision of the

parties’ mar it al p rop ert y. In dividing the Bolin’s marital property , the court awarde d Mr. Bolin nine ve hicles, two motorcyc les, and a trailer. The court also awarded Mr . Bolin a living room suite, the parties’ bedroom suite, a pool table, a riding lawn mower, and an air c ompressor. The court awarded Ms. Bolin three vehicles, a motorcy cle, a camper and a

trailer . Ms. Bolin also received theremaining household items. The court awarded the house to Ms. Bolin, in addition to the $4,000 of equity there in. The court further determined that Ms. Bolin was responsible f or the remaining mortga

ge on the house. Finally , the cour t held Ms. B olin responsible for the credit card debts and for Chad’s funeral expenses. Mr. Bolin ar

gues tha t the tria l court e rred in refusing to order Ms. Bolin to sell the marital home. In the alternative, Mr. B olin argues that the cour t should ha

ve order ed Ms. Bolin to pa

y him one half of th

e equity in the residence. Further, Mr. Bolin contends tha t Ms. Bolin should have been re qu ir ed to re fi na nc e t he ho us e i n h er na me on ly. 1
Tennessee statutes only

allow for the division of marital property upon the dissolution of a marriage; therefore, it is of primary importance

for the trial court to classify property a s separate or marital. Tenn. Code Ann. § 36-4-12 1(a)(2 001); Brock v. Brock , 941 S.W.2d 896, 900 ( Tenn. Ct. App. 1996). After the court determines the extent of the parties’ mar ital pro pe rty , the cour

t must divide the marital property equitably. Manis v. Manis , 49 S.W.3d 295, 306 (Tenn. Ct. App. 2001). The trial court’s division of the marital estate need not be equal to be equitable. Watters v. Watter s , 959 S.W.2d 585, 591 (Tenn. Ct. App. 1997). Generally, the fairness of the pro perty

divisio n is judged upon its final results. Id.-6-

The trial court’s equitable division of the parties’ marital property is g uided by the statutory factors set out in section 36-4-121(c) of the Tennessee Code. Manis , 49 S.W.3d at 306. The trial court’s eq uitable d ivision of the marital property c arries great weig ht before this Court. Id. Ac co rd in gl y, we will typically de fer to the t rial court’s decision unless it is contrary to the preponderance of the evidence or is inconsistent with the statutory factors. Id. After a thor ough review of the record in light of the statutory fa

ctors listed in section 36-4- 121(c) of the Tennessee Code, we do not find that the evidence preponderates against the trial court’s distribution of the pa

rties’ marital property. I

n reviewing Ms. Bolin’s listing of the part ies’ asse ts, it is eviden

t that the p arti es did not hav e a gre at deal o f marita l proper ty. Howeve

r, Mr. B olin received a sizeable portion of

the parties’ property . Further, the court ordered Ms. Bolin to pay the parties’ debt, as well as Chad’s funeral expenses. Accordingly , we affirm thetrial cou rt’s equitable distribution of the parties’ marital property

. In Mr. Bolin’s final issue, he contends that the trial court er red by deny

ing his request for attorney’sfees. A ltho ugh Mr. Bolin asked for attorney ’s fees in his counterclaim, his testimony doe s notsupport his request. Mr. Bolin’s testimony on direct examination provides the following exchange: Q. And are

you asking t hat y our wife

pay you r attorne y’ s fees? A. Well, no.

. . . . Q. If your wife ha s the funds to pa y you r a tt or ne y’s fe es , yo u don’t want her to pay them?

. . . . A. Where would she ha ve the fu nds? Q. I’m j ust say

ing if she did have

the funds

. A. Would I

want her to pay for it? Q. Right. A. No, I

t’s my debt. From this testimony, it is evident that Mr. Bolin did not want Ms. Bolin to pay his attorney ’s fees. Accordin gly , the tria l court did

not err w hen it fa iled to award M

r. Bolin h is attorne y’ s fees.-7-

We affirm the decision of thetrial cou rt. The c osts of thisappeal a re taxed to

the appe llant, Mr . C ar l B ol in , f or wh ic h e xe cu ti on ma y is su e i f n ec es sa ry.

___________________________________ DAVID R. FARMER, JUDGE