IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

May 3, 2000 Session

JAMES PATRICK DORTCH, SR. v. EVONNE P. DORTCH

 Appeal from the Circuit Court for Davidson County

No. 98D-3460 Muriel Robinson, Judge

No. M1999-02053-COA-R3-CV - Filed July 17, 2001

This appeal involves a dispute over the division of a marital estate following a seventeen-year

marriage. Both parties sought a divorce in the Circuit Court for Davidson County. During a short

bench trial, they stipulated that each of them had grounds for divorce but contested the classification,

valuation, and division of their separate and marital property. The trial court declared the parties

divorced and undertook to divide their marital estate equally. Both parties are dissatisfied with the

division of the marital estate. The husband asserts that the trial court made a significant

mathematical error in calculating the amount required to equalize the division. For her part, the wife

asserts that the trial court misclassified items of separate property as marital property. We have

determined that the trial court properly determined that the parties should receive equal shares of the

net marital estate. However, we also find that the trial court misclassified a number of items of the

wife’s separate property and erroneously calculated the amount to be awarded to the wife to equalize

the division of the marital estate. Accordingly, we have corrected the errors and affirm the judgment

as modified herein. 

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Modified and

Affirmed

WILLIAM C.KOCH,JR., J., delivered the opinion of the court, in which BEN H.CANTRELL,P.J.,M.S.,

and PATRICIA J. COTTRELL, J., joined.

D. Scott Parsley, Nashville, Tennessee, for the appellant, James Patrick Dortch, Sr.

Amanda McClendon, Nashville, Tennessee, for the appellee, Evonne P. Dortch.

OPINION

James Patrick Dortch, Sr. and Evonne Papineau Dortch were married on April 20, 1982.

Both had been previously married, and no children were born of the marriage. When they first met,

Ms. Dortch was working as a retail store cashier, and Mr. Dortch was working to establish a

commercial printing business that he had started in 1978. The parties began cohabiting prior to their

marriage, and Ms. Dortch spent a significant amount of time helping Mr. Dortch with his printing
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The jewelry included a $12,000 diamond and emerald ring, a $900 diamond cluster ring, a $500 gold and

diamond watch, a $7 50 diamond neck lace, and a $ 150 jew eled tennis b racelet.

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company’s bookkeeping. During the marriage, Ms. Dortch participated in every part of Mr. Dortch’s

business except operating the printing press itself.

On November 10, 1998, after seventeen years of marriage, Mr. Dortch filed suit in the Circuit

Court for Davidson County seeking a divorce on the grounds of inappropriate marital conduct and

irreconcilable differences. In January 1999, Ms. Dortch counterclaimed for a divorce on the ground

of cruel and inhuman treatment. During the July 1999 trial, the parties stipulated that each of them

had grounds for a divorce and focused their attention on their disputes over the division of their

marital property. In its August 19, 1999 decree, the trial court declared the parties divorced in

accordance with Tenn. Code Ann. § 36-4-129(b) (Supp. 2000). The trial court also undertook to

award the parties equal shares of their net marital estate, and in doing so, directed Mr. Dortch to pay

Ms. Dortch $91,532.50 “to equalize the division of the property.” The trial court also ordered Mr.

Dortch to pay Ms. Dortch $1,000 in monthly spousal support until her death or remarriage. Both

parties filed post-judgment motions which were denied by the trial court. Mr. Dortch perfected this

appeal, and Ms. Dortch has raised issues of her own in accordance with Tenn. R. App. P. 13(a).

I.

STANDARDS FOR REVIEWING THE DIVISION OF A MARITAL ESTATE

The issues presented by this appeal involve the manner in which the trial court divided the

parties’ net marital estate. The standards by which appellate courts review decisions involving the

division of marital property and debts are well-known. Dividing a marital estate is not necessarily

a mechanical process but rather is guided by considering the factors in Tenn. Code Ann. §

36-4-121(c) (Supp. 2000). Trial judges have wide latitude in fashioning an equitable division of

marital property, Fisher v. Fisher, 648 S.W.2d 244, 246 (Tenn. 1983); Brown v. Brown, 913 S.W.2d

163, 168 (Tenn. Ct. App. 1994), and appellate courts accord great weight to a trial judge's division

of marital property. Wilson v. Moore, 929 S.W.2d 367, 372 (Tenn. Ct. App. 1996); Edwards v.

Edwards, 501 S.W.2d 283, 288 (Tenn. Ct. App. 1973). Thus, appellate courts will ordinarily defer

to the trial judge's decision unless it is inconsistent with the factors in Tenn. Code Ann. §

36-4-121(c) or is not supported by a preponderance of the evidence. Brown v. Brown, 913 S.W.2d

at 168; Mahaffey v. Mahaffey, 775 S.W.2d 618, 622 (Tenn. Ct. App. 1989); Hardin v. Hardin, 689

S.W.2d 152, 154 (Tenn. Ct. App. 1983).

II.

THE CLASSIFICATION OF THE PARTIES’ PROPERTY

Ms. Dortch asserts that the trial court erred by including approximately $14,700 worth of her

separate property in the marital estate. This property included five pieces of jewelry1

 and a $400

Lowry organ that had been given to her as gifts or by inheritance during the marriage. Mr. Dortch
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acknowledged at trial that these items were Ms. Dortch’s separate property and specifically laid no

claim to them.

An integral part of the process of dividing the property interests of divorcing parties is

identification and distribution of the parties’ separate property. Batson v. Batson, 769 S.W.2d 849,

856 (Tenn. Ct. App. 1988). Property should not be included in the marital estate unless a party can

prove that it is marital property as defined in Tenn. Code Ann. § 36-4-121(b)(1)(A). Cutsinger v.

Cutsinger, 917 S.W.2d 238, 241 (Tenn. Ct. App. 1995). Separate property cannot, by definition, be

included in the marital estate, and Tenn. Code Ann. § 36-4-121(b)(2)(D) provides that property

acquired by a spouse during a marriage by “gift, bequest, devise or descent” is separate property.

Thus, gifts by one spouse to another that might otherwise be considered marital property should be

classified as the recipient spouse’s separate property. Hanover v. Hanover, 775 S.W.2d 612, 617

(Tenn. Ct. App. 1989); Batson v. Batson, 769 S.W.2d at 859. 

Based on the undisputed evidence that the five pieces of jewelry and the organ were gifts to

Ms. Dortch, the evidence preponderates against the trial court’s conclusion that these items were

marital property. Accordingly, we modify the judgment to provide that Ms. Dortch receives the five

pieces of jewelry and the organ as her separate property. We also reduce the marital personalty from

$29,699 to $14,999 to reflect that these items are not part of the marital estate.

III.

THE EQUALIZATION OF THE PARTIES’ SHARES OF THE MARITAL ESTATE

Mr. Dortch asserts that the trial court erred by ordering him to pay $91,532.50 to Ms. Dortch

to “equalize” the property division. While he does not take issue with the trial court’s decision to

award each party an equal share to the marital estate, he points out that the trial court overlooked

reducing the value of his share of the marital property by $91,532.50 to reflect the “equalization

payment” the trial court ordered him to make. As a result of this oversight, Mr. Dortch received

approximately 43% of the marital property, while Ms. Dortch received approximately 57%. Ms.

Dortch does not take issue with these calculations but rather simply asserts that the trial court’s

division of the marital estate, even if it was not equal, is equitable.

The trial court was extremely explicit regarding its intentions for the marital property. Based

on the evidence it heard, the court determined that the parties should receive equal shares of the

marital estate they had accumulated during their seventeen years of marriage. Because the trial court

believed that the property awarded to Mr. Dortch was worth substantially more than the property

awarded to Ms. Dortch, the trial court eventually determined that Mr. Dortch should pay Ms. Dortch

$91,057 to “ equalize the marital estate.”

We have no basis to second-guess the trial court’s decision that the parties should receive

equal shares of the marital estate. Ownership of marital property should be presumed to be equal

until proven otherwise. Kelly v. Kelly, 679 S.W.2d 458, 462 (Tenn. Ct. App. 1984); Salisbury v.

Salisbury, 657 S.W.2d 761, 770 (Tenn. Ct. App. 1983). On the other hand, a division is not rendered
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The court neglected to value Mr. and Ms. Dortch’s retirement accounts. These were marital property. The

court heard testimony concerning them at trial and allocated possession of them in the court’s final divorce decree.

However, the trial court did not explicitly value them. Making an explicit valuation finding provides helpful insight into

the trial court’s reasoning, materially enhances the parties’ understanding of the trial court’s decision, and helps focus

the issues on app eal. Murray Ohio Mfg. Co. v. Vines, 498 S.W.2d 897, 901-02 (Tenn. 1973 ). After reviewing Ms.

Dortch’s testimony at trial, we value Mr. Dortch’s IRA at $1,000 and Ms. Dortch’s IRA at $2,000.

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The court recognized $10,000 of marital consumer debt and stated in its final decr ee of divor ce that it would

“divide” this debt. However, there is no sign of this promised division anywhere else in the record. We assume the court

intended this $10,000 marital debt to be split evenly between Mr. and Ms. Dortch.

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inequitable simply because it is not precisely equal, Cohen v. Cohen, 937 S.W.2d 823, 832 (Tenn.

1996); Ellis v. Ellis, 748 S.W.2d 424, 427 (Tenn. 1988), or because each party did not receive a

share of every piece of marital property. Brown v. Brown, 913 S.W.2d at 168. After reviewing this

record, we find no basis for concluding that it would be more equitable to award Ms. Dortch more

than one-half of the marital estate.

After correcting for the misclassification of Ms. Dortch’s separate property and the trial

court’s failure to include the parties’ individual retirement accounts and marital consumer debt in

its calculations, we conclude that the parties’ gross marital estate is worth $605,999 and that the

parties’ marital debts amounted to $186,443. Thus, their net marital estate is worth $419,556.

The trial court divided the marital property and debts in the following manner: 

Marital Assets

Husband: Value: Wife: Value:

Personalty $ 2,650 Personalty $ 12,349

Commercial Property 350,000 Marital Home 200,000

Business of P D Printing, Inc. 38,000

IRA21,000 IRA 2,000

_______ _______

$391,650 $214,349

Marital Debts

Commercial Property Mortgage $116,943 Marital Home Mortgage $ 59,500

Marital Consumer Debt35,000 Marital Consumer Debt 5,000

_______ _______

$121,943 $ 64,500

NET VALUE $269,707 $149,849

Based on this unadjusted division, Mr. Dortch received 64% of the net marital estate, while

Ms. Dortch received 36%. Each party would be entitled to $209,778 worth of property if their net

marital estate were divided equally. To accomplish this, the trial court should have required Mr.
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Dortch to pay Ms. Dortch $59,929. Accordingly, the trial court’s September 30, 1999 order directing

Mr. Dortch to pay Ms. Dortch $91,057 to “equalize” the division of the marital estate must be

reduced to $59,929.

IV.

We modify the judgment by reducing the amount Mr. Dortch must pay to Ms. Dortch to

equalize the division of the marital estate from $91,057 to $59,929. The remainder of the judgment

not inconsistent with this opinion is affirmed. We tax one-half of the costs to Mr. Dortch and his

surety and one-half of the costs to Ms. Dortch for which execution, if necessary, may issue.

_____________________________ 

WILLIAM C. KOCH, JR., JUDGE