1 Rule 10 (C ourt o f App eals). Memorandum Opin ion . – (b) The Co urt, with the c onc urren ce of a ll

judges part

icipat in g i n t he c ase , my aff irm, reve rse or modif

y t he act ions of t he tria l cou rt bymemorandum opinion wh en
a for mal opi nion woul d have n o precede nti al v alue . When a ca se i s deci ded by memor andum opi nion it shal l be designat ed “M EM OR AN DU M OP INI ON ,” shal l not be publ ish ed, an d shal l not be cited o r relied on for any rea son in a subsequent

unrel ated case

. 

### IN THE COURT OF APPEALS OF TENNESSEE

AT MEM PHIS MAY 20, 2003 Session
GLORIA J. GUINN v. LUCIOUS T . GUINN
Direct Appeal from the Circuit Court for Shelby County No. 157712 R.D. George H. Brown, Jr., Judge

No. W2002-02225-COA-R3-CV - Filed Novem ber 13, 2003

This is an appe al from a

final divo

rce dec ree aw arding

Wife an a

bsolute divorce on the ground of inapprop riate marital c onduct. T

his appea l comes to t

his Court witho

ut a rec ord and o nly

a statement of t he evidence. For th e foll owing r eason s, we af firm i n part and rem and fo r furt her fi ndin gs consistent with this opinion.

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

A LAN E. H IGHERS , J., delivered the opinion of the court, in which W. Frank Crawford, P.J., W.S., and Holly M. Kirby , J., joined.
Lucious T. Guinn, Jr., Germantown, TN, pro se James V. Ball, Memphis, TN, for Appellee
MEMORAN

DUM OP

INION 1 Facts and Procedural History

Plaintiff Gloria Guinn ("Plaintiff") had been mar riedto Lucious Guinn, Jr. ("Defenda nt") for sevente en y ears at

the time of

the Nove mber 2001 hearing

for their divorce. Plaintiff

worked a s a teache r's aide. Though Defendant alleged inappropriate marital conduct by Plaintiff for increasing the couple's debt to credit card companies, Plaintiff testified tha tshe only used them

to pay for he

r2 That ini tial decree was later amended to grant Plaint iff a divorce on the ground of i nappropriat e marit al conduct of D efend ant. However, this Court ruled t hat t he origi nal order was voi d and the t rial court s hould have g ranted D ef en da nt 's motio n for re lief from th e final de cree o f divor ce. Guinn , 2001 T enn. App. LEX IS 248, at *11-15 (Tenn. Ct. App. 2001 ).

3 No tra nscr ipt

was ma de atthe November 2001 h eari ng, but t he Defe ndant

had a St ateme nt of

th e Evidence app rove d by the trial cou rt in No vem ber 2 002 and filed this statem ent with the technic al reco rd. P laintiff subse que ntly fil ed a motion to strike Defendant' s Statement of the Eviden ce whi ch ori gin all y was deni ed butgran ted u pon
recon si deration. On February 4, 2003, foll owing t his Court ’s order

str iki ng Defendant 's State ment of t he Evidence, Plain tiff fil ed a motion objecting to and correcting the Sta tement of the Evidence. This motion was grant ed and the Plain tiff's Correc ted S tateme nt of the E viden ce wa s filed with this C ourt.

4 Though Defenda nt di d not follo w the T enne ssee R ules of A ppe llate Pr oce dure in writing his b rief, th ese are th e i ss ues he h as p res ent ed t hi s Cou rtas w e un ders tan d th em. -2- living expenses, as Defe

ndant would no t g iv e P la in ti ff an y mo ne y. The Plaintiff also testified that Defend ant, during the course of th e marria ge, wa s violent a

nd had be en arre sted for domestic violence. The parties further disputed whether Plaintiff had a gambling problem, though Defe ndant appare ntly presented no evidence of thi s other than his own testimony. The marital home of the parties held a

value of $203,000, but therewas a $55,000 mortgage take n out on the property to pay off the marital credit card debt. Plaintiff testified that her retirement account held a value of $17,000 while Defendant’s retirement account wa s $45,273.73. The parties haveno children with each other.

Plaintiff filed for divorce from Defen dant on Decemb er 12, 19 97, alleg ing irr econcil able diff erenc es and inappropriate marital conduct. Defenda nt counterclaimed alleging the same grounds for divorce. A final decree of divorce wa s issued by the trial court g ranting an absolu

te divorc e to Plaintiff on the g round of i

rreconcilable d

iffere nces. 2 Defendant app e aled to this Court, and we vacated that judgment bec ause no a greem ent for th e equita ble settleme

nt of prop erty

rights had been reached, and, therefore, a gra ntof divorce for

irreconcilable differences w as inappropriate. Guinn
v. Guinn , 20 01 T enn . Ap p. LE XIS 248, at *8-15 (Tenn. Ct. App. 2001). After a second hearing on November

8, 2001, the trial c ourt rendered a nother f inal divor

ce decr ee awa rding Pla inti ff a n absolute divorce on the ground s of inapp ropriate marital c onduct and equitab ly divided th

e proper ty of the marriage. The division awarded Plaintiff half of the equity in the mar ital home, a portion of Defend ant's retirement and investment accounts, and a portion of the p ersonal property of the marriage. After this decision, Defendant moved for

a new tri al, which

was deni ed by

the trial court, and then appealed 3 to this Court, pro se , presenting the following issues 4 for our r eview:

I. Whether

the trial court erred in awarding Plaintiff a n absolute divorce rather tha n awarding Defendant an a

bsolute divorce; and II. Whether

the trial court erred in equitably dividing the property

of the marriage, including the retir

ement ac counts of

bothparties, the cre dit

card de bt of the p arties, and the marital home.5 Plain tiff argues in her bri ef that Defendant is requ esting this C ourt to review mater ials that were never introduced into evid ence at t he hearing. We shall address thi s issue when we revi ew the tri al court' s divisi on of the marita l prop erty. -3- Plaintiff also raises one additional issue 5 for this Court to consider:

III. Appellant

did not set

out any issues pr esented for review in

his briefs to the Cour

t in accordance with the Tennessee Rules of Appellate Procedure. For the f ollowing reasons , we aff

irm the tr ial cour t in part a nd remand for fur

ther find ings.
Standard of Review

In a non-jury trial, this Court utilizes a de novo sta ndard of review with a presumption of
correctness for the trial court's factual finding s. Tenn. R. App. Proc. 13(d). Thi s Court may not
revers e a finding of fact by the trial court

unless a preponderance of the evidenc e is otherwise. Tenn. R. App. Pro c. 13(d) ; Hobb s v. Hobbs , 987 S.W.2d 8 44, 846 (Tenn. Ct. Ap p. 1998); Hansel v. Hansel , 939 S.W.2d 11 0, 111 (Te nn. Ct. App. 1996); Batson v. Batson , 769 S.W.2d 849, 859 (Tenn. Ct. Ap p. 19 88 ). Ad di ti on al ly, in this case, no transcript of the November 2001 hea ring was filed by De fendantup on his appeal, and this Court has only a br ief statement of the evidence and the pleadings to review this decision. Proper Appeal of De

fendant

We fi rst addr

ess Plainti ff's a

rgumen t that Def endant ha s not prope

rly present ed any issu e s for our revi ew. This Co

urt reite rates wh at we sta

ted in our order de nying Plain

tiff's motio n to dismiss. While we a

gree t hat Defe ndant' s brief does not conform w ith t he Tennessee Rules of Appel lateProcedure or the Rules of the Court of Appeals, we recognize that Defendant is now proceeding pro se on this appeal and that this Court has relaxedthe strict formalities of the rules in the past. See, e.g., Paehler v. Union Planters Nat’l Bank , 971 S.W.2d 393 (Tenn. Ct. App. 1997). Though Defendant has not formally listed issues in his brief for our review, the issues he prese nts for appeal are disce

rnab le from his argument. This Court has the discretion to relax the formal requirements of the rules for good ca use, and we do so in this instance. Inappropriate Marital Conduct

Tenn. Code Ann. § 36-4-101(11) (2001) states that a ground for divorce e xists where "[t]he husband or wife is guilty of such cruel and inhuman treatment or c onduct towards the spouse as renders cohabitation unsafe and improper which may also be referred to inpleading s as inapp ropriate marital conduct. . . ." Unless the evidence preponderates ag ainst the trial court's findings, this Court must affirm the decision of the trial court awarding an abs olute di vorce to Plaintiff on the ground of inappr opriate marital c onduct. Tenn. R. Ap p. Proc. 1 3(d); Hobbs , 987 S.W.2d at 846.

Our review of

the record

does not indicate that the evidence preponderate s against the trial court 's finding that

Plaintiff carried the burden of proving he r entitlement to a divorce on the ground-4-

of inappr opriate

marital c onduct. I

n the state

ment of the

evidenc e articu

lated by the Plaintiff an d approved by the trial court, ther

e are statements that Defendant was violent during the marriage and was, at one point, arrested by the Germa

ntown Poli ce Depa rtmen t for d omest ic vio lence. Though Defendant

denied he committed such offenses against Plaintiff in his answer, " [t]he findings of the trier of fact depende nt upon the

credibi lity

of the witnesses should be accorded grea t weight by the appel latecourt." Hobbs , 987 S .W.2 d at 84 7 (cit ing Town of Alam o v. Forc um-James Co

. , 32 7 S.W.2d 47 (Tenn . 1959); Sisk v. Va lley Forg e Ins. Co. , 640 S. W.2d 844 (Tenn. Ct. App. 1982)). Given the state

of the record pre sented f

or our re view, the re is no evidence to contradict the finding of the trial court oth

er than D efenda

nt’s deni al. Ther

efore, this Court a

ffirms t he t rial c ourt's decision awarding Plainti ff an ab solute div orce fr om Defendant.

In addition, there is a

lso insuff icient ev id ence to overturn the trial court's finding that Defendant

should not be awarded a divorce from Plaintiff on the g round of inappropriate marital conduct. The only

conduct D efenda

nt alleg es that c ould

be considered grounds for a divorc e would be Plaintiff's "secretive" use of cr edit car ds, which increased the parties' de bt. However, there is no evidencethat such

conduct c ause d pain, anguish or distress to Defendant or that it render ed cohabitation improper, unendurable, intolerable or unacce ptable. Bolin v. B olin , 99 S.W.3 d 102, 105 (Tenn. Ct. App. 2002) (quoting Earls v. Earls , 42 S.W.3d 87 7, 892 (Te nn. Ct. App . 2000) (C ottrell, J., concurr

ing)); see Flanagan v. Flanagan , 1997 Tenn. App. LEXIS 453, at *5-6 (Tenn. Ct. App. 1997). Therefore, this Court affirms the trial court's decision awarding an absolute divorce on the ground of inappropriate marital conduct to P laint iff and d eny ing awa rd of a divorce on

the same ground to Defendant. Property Division

Defendant

next arg ues that th

e proper ty d ivision by

the trial court w as inequitable and improper. In reviewing

a trial court's division of

marital a ssets, we are mindful that the lower court is ve st ed wi th br oa d d is cr et io n i n d iv id in g t he ma ri ta l p ro pe rt y. Batson v. Batson , 769 S.W.2d 849, 859 (Ten n. Ct. App. 1 988); Flanagan , 1997 Tenn. App. LEXIS 453, at *10. In this instance, Defendant

appeals the property

division of the marital home, the parties' retirement and investment accounts, and the credit card debt incurr ed by Plaintiff.

Becau se a mortg age wa s taken ou t on the pa rties'marital home to pay

off the c redit ca rd debt, those two items may

be addressed together. Fr om the final divorce decree, it appear s the trial court awarded each p arty half the

e quity in the martial home, which, in eff ect, places the burden of the credit card debt equally on both pa

rties sinc e the home 's equit y isreduce d by

the mortg age ta

ken to pay the debt. Defend ant conte nds that, b ecause

Plaintiff was responsible for incurring the debt, she should bear the entireburden of pay ing that debt. However, the statement of the evidence approved bythe t rial cou

rt suppor ts the conclusion th at Plaintif f used a c

redit ca rd to pay for her li vin g expenses because Defendant would not provide Plaintiff with any money. We find no error

or abuse of discretion with this property division.-5-

Next, Defendant argues that the trial court improperly handled the

credit card debt and the mortga ge payments on the home g iven that the parties had signed an ag reement with each other deciding how such p ayments woul d be divided. However, it appears that such ag reements were not entered into the evidence at trial. The scope of this Court' s review

is restri cted to " facts established by the evide nce in the trial cou rt and se t forth in t

he reco rd and an y a dditional f

ac ts that may be judiciall y noticed o r are c onsidered pursuan

t to Rule 14. " Tenn. R. App. Proc. 13(c). Rule 14 allows this Court disc

retion to consider post-judgment

facts. It would appear , from Defendant's brief, that such agreements were ente red into in March 1997, p rior to any divorce de

cree from which he appeals

. The refore, bec ause these agreements ca nnot be judicially noticed and we re never introduc ed into ev

idence a t the hea ring, th is Court ma

y not conside

r them.

Fi na ll y, Defendant arguesthat the trial court erred when it awarded $14,000 of his re tirement andinvestmentaccoun t to P laint iff, w hile a wardi ng him noth ing fro m Pla inti ff's retirement account which was valued at $17,000 according to the statement of the evidence. Tenn. Code Ann. § 36-4- 121(b)(1)(B) (2002) st

ates tha t "marit al prope rty " includ

es "th e value of

vested and unvested pension, vested and unvested stock option rights, retirement or other fr in ge benefit rights relating to employment that acc

rued during the period of the marriage." In this instan ce, the t ria l court awarded Plaintiff $14,000 from Defendant's retirement a nd investment accounts as "her fifty percent share" withoutstating whether this was half the increase in va lue or whether this amount was offset by the amount of Plaintiff's retirement account to which Def endant could have be en entitle d. It would appear that the trialcourtwas attempting to divide the aggregate amount of retirement benefit s equally

betwee n Plaintiff

and Def endant. P

laintiff 's reti rement a ccount was valued at $17,000 and Defendant's re tir ement account was valued at approximately $45,000. By aw arding Plaintiff $14,0 00 fro m Defen dant's retirement accoun t, the re sult is eac

h party receiv es $31,00 0 in retirement

benefits. While this may be the most equitable division, given the state of the record on appeal, this Court i s unaware of whether or not such retirement accounts ac crued only dur ing the marri age or whether they

held a value prior to the marriage. The answe r to this question affects the classification of the account s as "s eparate" or " marital" property , and, therefore, could result in a different distribution between the parties. Fo r these reasons, we remand this portion of the trial court's property

division for further findings consistent with this opinion.-6- Conclusion

For the foregoing

reasons , we aff

irm in par

t and remand this c ase tothe ShelbyCounty Circuit Court for further findings on the issue of the d ivision of t he parti es' re

tirement accoun ts. Costs are taxed one-half to Appellant, Lucious T. Guinn, Jr., and his surety , and one-half t o Appellee, Gloria J. Guinn, for which execution may issue if necessary

.

___________________________________ ALAN E. HI

GHERS, JUDGE