### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE May 3, 2000 Sess

ion 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 benchtrial, they stipulated that each of them had grounds for divorce

but contested the classification, valuation, and division of thei r separate and m

arital property

. The trial court declared the parties divorcedand undertook to divide their marit

al estate equally. Both parties are dissatisfied with the division of the marital estate. T he husband ass erts 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 determinedthat the trial court properly determined that the parties should receive equal sha res of the net marital estate. Howeve

r, we also find that the trial court misclassified a number of items of the wife’s separate

property and erro neously calculat ed the amo

unt to be a warded to the wife t o equalize the division of the marital estate. Accordingly, we have corre cted the errors and affirm

the judgment as modified herein. Tenn. R. App. P. 3 Appe al as of Right; Judgme

nt of the Circuit Cour

t Modified and Affirmed
W ILLI AM C. K OCH , J R ., J., delivered the opinion of the court, in which B EN H. C ANTRELL , P.J., M.S., and P ATRICIA J. C OTTRELL , 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 marri ed on Apri l 20, 1982. Both had beenpreviously married, and no children were born of the marri

age. When they

first met, Ms. Dortch was worki

ng as a retail st

ore cashier, an

d Mr. Dortch was w

orkin g 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 printing1 The jewelry included a $12,000 diamond and emerald r ing, a $900 diamond cluster ring, a $500 gold and diamond watch, a $7 50 diam ond neck lace, and a $ 150 jew eled tennis b racelet. -2- company’sbookkeeping. 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 y

ears of marriag

e, Mr. Dortch file

d suit in the Circuit Courtfor DavidsonCounty seekin g a divorce on the grounds of inappropriate marital conduct and irreconcilable

differences. In January 1999, Ms. Dortch c ounterclaimed

for a divorceon the ground of cruel and inhuman treatment. During the July 1999 trial, the parties stipulated that each of them hadgrounds for a di

vorce and focus

ed their attention

on their disputes over the division of their marital property. I

n its August 19, 199

9 decree, the tr

ial court declar

ed the parties div

orced in accord ance with Ten n. Code Ann. § 36-4- 129(b) (Supp. 2000 ). The trial cour

t 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. Dortchto pay Ms. Dortch $1,000 in monthly spousal support until her death or rem arriage. Bot

h parties filed post-judgment motions which were denied by the trial court. Mr. Dortc

h perfected this appeal, and Ms. Dortch has raised issues of her own in accordance with Tenn. R. App. P. 13(a).
I. S TANDARDS FOR R EVIEWING THE D IVISI ON OF A M ARITAL E STATE 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 marita l estate is not necessarily a mechanical process but rather is guided by considering the fa ctors in Tenn. Code Ann. § 36-4-121(c) (Supp. 2000). Tria l 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. Moor e , 929 S.W.2d 367, 372 (T enn. Ct. App. 1996) ; E

dwa rds v. Edwards , 501 S.W.2d 283, 288 (T enn. Ct. App. 1973) . Thus, appellate courts will ordinarily defer to the trial judge'

s decision unless it i

s inc onsistent 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.

T HE C LASSIFICATION OF THE P ARTIES ’ P ROPERTY Ms. Dortch asserts that the trialcourt erred by including appro

ximately $14,7

00 worth of her separate property in the marita

l estate. This property included five pieces of jewelry 1 and a $400 Lowry organ that had been given to her as gifts or by inheritance during the marriage. Mr. Dortch-3-

acknowledged

at trial that these items wereMs. Dortch’s separate property and specifically laid no claim to them.
An integral part of the proc ess of dividing the prop erty intere

sts of divorcing p

arties is identification anddistribution 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 includedin the marital estate, and Tenn. Code Ann. § 36-4-121(b)(2)(D) prov ides tha t property acqu ired by a spou se d uri ng a m arri age b y “gif t, b equ est , de vis e or d esce nt” is s epar ate pro pert y. Thus, gifts by one spouse to another that might otherwise be considered mar ital property sh

ould be classif ied as the recipient spouse’s separate property. Hanover v. Hanover , 775 S.W.2d 612, 617 (Tenn. Ct. App. 198

9); Batson v. Batson , 769 S.W.2d at 859. Based on the undisputed evidence that the fivepieces of jewelr y and the or

gan were gif

ts to Ms. Dortch, the evide

nce prepondera

tes against the t

rial 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. T HE E QUALIZATION OF THE P ARTIES ’ S HARES OF THE M ARITAL E STATE 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 doe

s not take issue with

the trial court’s

decision to award each party

an equal share to

the marit al es tate, 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 ord ered him to make. As a result of this oversight, Mr. Dortch received appr oximately

43% of the marital property, while Ms. Dortch received approximately 57%. M s . Dortchdoes 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 he

ard, the court de

termined that the p

arties should rec

eive equal share

s of t he marital estate

they had accumulated during their seventeen y ears of marriage. Because the trial court believed that the prop erty awar ded to Mr. Dortch w

as worth substantia

lly more than

the property awarded to Ms. Dortch, the tr

ial court eventua

lly 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 par t ies should receive equ al shares of the marital estate. Ownership of marital property should be pre sumed to be equal unt il proven otherwise. Kelly v. Kelly , 679 S.W.2d 458, 462 (T enn. Ct. App. 1984) ; Salisbury v

. Salisbury , 657 S.W.2d 761, 770 (Tenn. Ct. App. 1983). On the other hand, a division is not rendered2 The court neglected to value Mr. and Ms. Dortch’s reti rement accounts.

These were marital

property. The court heard t

estimony concerning the m at trial

and allocated posse ssion of th em in the court ’s final

divorce decree. However, the trial court did not expli citly value them. Makingan explicit valuation f inding provides helpful insight into the trial court’s rea

soning, mater

ially en hances the parties ’ understandi ng of the tr

ial court’s decision, and helps focus the issues on app eal. Murray Ohio Mfg. Co. v. Vines , 4 98 S.W.2d 8 97, 901-02 (Tenn. 1973 ). After reviewing Ms. Dortch’s testi mony at t

rial, we value Mr. Dortch’s IRA at $1,000 an

d Ms. Dortch’ s IRA at $2, 000. 3 The court recognized $10, 000 of marital cons umer debt and stated in its final decr ee of divor ce that it would “divide” this debt. However , there is no si gn of this promised division anywhere else i n the record. We assume the court intended this $10,000 marital debt to be split evenly between Mr. and Ms. Dortch. -4- 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. 198 8), or because each party did not receive a share of every piece of

marital property. Brown v. Brown , 913 S.W.2d at 168. Af ter 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 t

he miscl assification of Ms. Dortch’s separate property and the trial court’s failure to include the parties’ i nd ividual retireme nt accounts and ma

rital consumer de

bt in its calculations, we

conclude that the

parties’ gross

marita l estate i s 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 di

vided the marital p

roperty an

d debts in the follow

ing manner:
Marital Assets
Husband: Value: Wife: Value: Personalty $ 2,650 Personalty $ 12,349 Commercia

l Property 350,000 Marita l Home 200,000 Business of P D Printing, I nc. 38,000 IRA 2 1,000 IRA 2,000

_______ _______ $391,650 $214,349
Marital Debts Commercial Prop erty Mortgage $116,943 Marital Home M ortgage $ 59,500 Marital Consumer Debt 3 5,000 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 thi s, the trial court should have required Mr.-5-

Dortchto pay Ms. Dortch

$59,929. Accordingly, the trial court’s September 30, 1999 order direc ting Mr. Dortch to pay

Ms. Dortc h $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 M

r. 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 notinconsistent with th

is opinion is affirm

ed. We tax one-half

of the costs to Mr. D

ortch and his surety and one-half of the costs to Ms. Dortch for which execution, if necessar y, may issue.

_____________________________ WILLIA M C. KOCH, JR., JUDGE