### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE DECE MBER 05, 2001 Session FLORA MAE M ELTON v. GLEN HOU STON MELTON Appeal from the Chancery Court for Lewis County No. 3767, Russ Heldman, Chancellor

No. M-2001-00128-COA-R3-CV - Filed February 22, 2002

This appeal from

the Chancer

y Court of L

ewis Count

y question s whethe

r the Tri al Court e

rred in dividing the marit

al estate , thereb y award

ing Ms . Melton a disproportionate share. Mr. Melton further appeals the Trial Court’s award of alimony in futuro , alimony in solido , discreti onary co sts and an a ward fo r person al injurie s to Ms. Melt on. Ms. Mel

ton appea ls the Tria

l Court’s f

ailure to award punitive d amages f

or her pe rsonal in jury. We affirm t he decis ion of the

Trial Cour

t in part, vacate in part and remand for fur ther proceedings consistent with this opinion. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed In Part, Vacated in Part; Cause Remanded
H OUSTON M. G ODDARD , P.J., delivered the opinion of the court, in which H ERSCHEL P. F RANKS and D. M ICHAEL S WINEY , JJ., joined. Randy Hillhouse, Lawrenceburg, TN, for the Appe llant, Glen Houston Melton. Ricky L. Wood, Parsons, TN, for the Appellee, Flora Mae Melton. OPINION This is an appeal from a divorce decree between Flora Mae Melton, the Appellee, and Glen Houston Melton, the Appellant. Mr. M elton appeal s the decision of the Lewis County Chancery Court and presents for our review two issues which we re state: I. Whether

the Trial Court failed to equitably divide the ma rital ass ets, awarding Ms. Melton a substantially disproportionate share.
II. Whether

the Tria l Court er red in aw ardin g Ms. Melton alimony in futuro , attorney fees in the form of alimony in so lido , discretionary costs, and an award f or perso nal injuri es.-2-

In addition to the issues raised by Mr. Melton, F lora M ae Melton raises one issue for our review, which we

restate : III. Whether

the Tria l Court er

red in fa iling to aw ard Ms. Me

lto n puni tive damages , in addition

to the $25,000.00 compensatory damages award for her persona l injuries

. We affirm the decision of the Trial Courtin part, vacate in part and remand for suc h further proceedings, as may be necessary, c onsistent with this opinion. The parties were married on May 31, 1977, and sepa rated on February 14, 1998. There were no minor children involved in this divorce action. Ms. Melton filed a divorce Complaint on March 12, 1998, wherein she alleged that on February 14, 1998, Mr. Melton became intoxicated and struck her on the head with a lead pipe knocking her unconscious and causing s erious bo dily injury. Ms

. Melton further alleged that Mr. Melton then forced her int o his vehic le, which was eve ntually stopped by the Tennessee Highway Patrol. Mr. Melton was arre sted and Ms. Melton was take n to the emergency room where she rec eived60-70 stitches to close the wound on her head. Mr. Melton was charged with attempted first degree murder a nd kidnapping. Ac cording to the record, Mr. Melton plead guilty to attempted second degree murder and driving under the influence and was sentenced to 10 years in prison. Following a hearing on August 21, 2000, the Trial Court granted Ms. Melton a divorce on the grounds of inapprop ria te marital conduct. The Trial Court ordered a prope rty division and additionally, Ms. Melton w as awarded a limony in futuroin an amou nt of $1,25 0.00 per

month retroactiveto January, 2000, a judgment of $15,000.00 for alimony arrearage for the ye ar 2000. Ms. Mel ton was awarded $25,000.00 for personal injuries sustained by he r on February 14, 1998

. Finally, the Trial Court awarded Ms. Melton $5,075.35 alimon y in s olido as a portion of her attorney’s fees, and ordered Mr. Me lton to pay discretionary costs of $2,395.75 and court costs.
We re view the T

rial Cour t’s findings of fact de novo upon the record of the p roceeding s below, with a presumption of correctness “unless the prepondera nce of the evidence is otherwise.” Tenn. R. App. P. 13 (d); see also Hass v. Knigh ton , 676 S.W.2d 5 54 (Tenn. 1984). There is no presumption of correctness with regard to the trial cou rt’s conclusion of

law, and those conclusions are reviewed de novo

. Jahn v. Jahn , 932 S.W.2d 939 (Tenn. Ct. App. 1996).
I.
Mr. Melton’s first issue on appeal questions whether the Trial Court erred in dividing the marital assets; th

er eby granting Ms. Melton a disproportionate share. Mr. Melton argues that the parties acquired a significant amount of real estate during their marriageand that the Trial Court’s distribution of this property was inequitable. Additionally, Mr. Melton argues that the Trial Court failedto first

divide the property into separate and marital property ca tegories, and that the factors set forth in T.C.A. 36-4-121 were not taken into consideration.-3-

Before addressing the property division of the Trial Court, we must first address the general principles regarding classification and division of property in Tennessee in a divorce case

. Dividing a marital estate begins with classifying the property as either separ ate or marital property. McClellan v. McClellan , 873 S.W.2d 350 (Tenn. Ct. App. 1993). The Trial Court in the case sub judice did not make that dete

rmination with resp ect to most

of the pr operty in volved in t

his proceeding including real property, personal property, retirement ac counts, o r otherfinances as to whether they were separate property or marital property. The only two pieces of property classified by the Trial Court were the two ho mes previously ownedby each

party pr ior to the marriag e. The Tr ial Court d

etermined that the

house owned by Ms. Melton, pr

ior to the marriag e, 524 We st 5th Aven ue, was h er sepa rate pr operty a nd that the

house ownedby Mr. Melton prior to the marriage, 240 Garrison Road, was marital prope rty andawarded it to Ms. M elton . The record does not support the inconsistent treatment of these two piece s of property. Further, there was no determination as to the classification or division of the 1984 Lincoln, Mr. Melton’s r

etireme nt, the $51 ,000.00 c ashbond, the 300 acre tract of land in Wayne County, the approximately $32,000.00 paid in legal fees in Mr. Melton’s criminal action.
Because Tennessee is a “dual property” jurisdiction, it is essen tial tha t the first order of business is for the T

rial Cour t to classi fy all

the property, give each party their separ ate property and then divide the marital property. Batson v. Batson , 769 S.W.2 d 849 (Te nn.Ct. A pp. 1988). The distinction betwee

n the two c ategori es of pro perty is im

portant b ecause

only marit

a l proper ty is divided between the parties. T.C.A. 36-4-121(a)(1). A party’s sepa rate property is not to be divided. Brock v. Brock , 941 S.W.2d 896 (Tenn. Ct. App. 1996). Marital property is defined in T.C.A. 36-4-121(b)(1)(A) whi ch reads in pertinent part as follows: “Marital Property” means all real and person al propert y , both tang ible and intangible, acquired by either or both spouse s during th

e course of the marr iage up to the date of the final divorce hearing and owned by either or both spous es as of the date of filing of a complaint for divorce, except in the case of fraudulent conveyance in anticipation of filing, and including any property to which a right was acquired

up to the date of the final divorce hearing, and va lued as of a date as near as reasonably possible to the final divorce hearing date.

. . . Marital p roperty is furthe r define d at T.C.A . 36-4-12 1(b)(1) (B) as fo llows: “Marital Property ” include s income f rom, and any in

crease in value during the marriage of, property determined to be sepa

rate pr operty in accord ance with subdivis ion (b)( 2) if ea ch party substantia

ll y contributed to its preservation and appreciation, and the value of vestedand unvested pension, vested and unvested

stock opti on rights,-4- retirem ent or other fring e benef

it rights relating to employment that accrued during the period of the marria ge. Separat e proper ty is defined at T.C. A. 36-4- 121(b)( 2) in per tinent pa rt as foll ows: (A ) All real and personal property owned by a spous e befor e marri age; (B) Property acquired in exchange for pr operty acqui re d before the marr

iage; (C) Income f

rom and a

pprecia tion o f proper

ty ownedby a spous e befor e marria ge exce pt when c haracterized as marital propert

y under subdivision (b)(1); (D) Property acquired by a spouse a

t any time b y gift, be quest, de vise, or d escent;

. . . The equitable nature of the property division by the Trial Court cannot not be determined by this Court without the Trial Court first properly classifying the property. Once property is classified as marital, it is to be equitably divided anddistributed between the parties. T.C.A. 36-4-121(b)(1). “Trial Courts have wide latitude in fashioning an equitable division of marital property.” Brown v. Brown , 913 S.W.2d 163 (Tenn. Ct. App. 1994). The standard factors set forth in T.C.A. 36-4-121( c) must be consider

ed. This Court has f

urther s tated in Batson v. Batson , 769 S.W.2 d 849 (Te nn. Ct. App. 1988) the following:

an equitable property division is not nece ssarily an equal one . It is notachieved by a mecha

nical ap plication of the sta tutory fa ctors, but rather by consider

ing and we

ighing the most relevant factors in light of the unique facts of the case. Appellat e Courts are to defer to a Trial Court’s division of marital p roperty unless tha

t division is unsupported by a

prepond erance of the evidence o

r inconsi stent with

the statutory factors. Brown v. Brown , 913 S.W.2 d 163 (Te nn. Ct. App . 1994). M arital f ault cannot be considered. T.C.A. 36-4- 121(a)(1).
For the foregoing reason, we vaca te the property division of the Trial Court and remand for the classification of the entire marital estate and for an equita ble divisio n of that p

roperty determined to be marital property.

II. Mr. Melton’s second issue on appeal questions whether the Trial Court erred in awarding Ms. Melton (1) alimony in futuro , (2) atto rney fe es in

the form of alimony in solido , (3) discretionary costs, and (4) an award for persona l injuries.1 The reco rd ind icates th at the lac eratio n req uired betw een sixty to eigh ty stitche s. There was no medical proof

as to th e exa ct nu mb er. -5- Because the fac tors that m

ust be tak en into co nsidera

tion in making a dec isio n to award alimony include, but

are not limited to the following provisions codified in pertinent part at T.C.A. 36-5-101(d): ( A) The relative earning capacity, obligations, needs, and f ina ncia l resou rces of each

party, including income fr om pension , profit sharing or retirement plans and all other sources; . . . (G) The separa te assets of each pa rty, both real and personal, tangible and intangible; (H) The provisions made with rega

rd to th e marita

l property as defined in § 36-4-121;
A decision with respect to alimony cannot be made until the marital estate is property classified and the marital property is di vide d. For the foregoing reasons, we vacate the or der of the Trial Court granting alimony in futuro , alimony in solido , and remand to the Trial Court for a determination of the aforementioned issues followi ng the classification of the marital estate and the division of the marital property. Regarding Ms. Melton’s award of compensatory damages in the amount of $25,000.00, Mr. Melton argues that the award was exce ssive. He asserts that Ms. Melton has no memory of th e attack, has suffered no side effects exc ept for headaches, and that her medic al expenses were much less than the compensatory award. The review by this Court of a non-j ury awa rd for da mages is governed by T.R.A.P. 13(d), w

hich is de novo upon the record with a presumption of correctness of the findings of

fact by the Tria

l Court. Un

less the e vidence prepond eratesotherwis e, we mus t affirm.
Ms. Me lto n suffered an injury to her right eye and a lac eration on her scalp requiring stitches. 1 Following two days in the hospital, Ms. Melton was discharged and able to return to her home. Ms. Melton testified that her recovery took 5 to 6 weeks, and that 3 of those weeks she was unable to get out of the bed. Ms. Melton’s sister, a LPN, cared for

Ms. Melton in her home for the 5 to 6 week recovery period and testified that Ms. Melton did not leave the residence during that tim e. Ms. M elton test

ified tha t she occ asionally

has head aches, b lurred vision and d izzines s as a resu lt of the injury. The record reflects that Ms. Melton’s medica l bills were approx imatel y $6,000.00. The Trial Court awarded Ms. Melton $25,000.00 in damages and based on he r medical expense s, Ms. Melton’s recovery time, the need for 24-hour nursing care , and the l ingering effec ts of the inju

ry, we a ffirm the decision of the Tr ial Court.

III.-6-

With respect to Ms. Melton’s issue regarding the failure of the Trial Court to awar d punitive damages , we first note that the complaint and p ray er for r elief do es seek p

unitive da

mages. However, there wa s no advoc acy during the cou rse of th e trial w ith respect to this issue. Indeed, the Tri al Court at the conclusion of the proof and in response to a question posed by counsel for Ms

. Melton regarding a

memorandum stated that he was not requiring one but if either counsel wanted to file a memorandum

he would receive it. He then granted both counsel seven days within which to submit memoranda. Apparently no memorandum was submitted on behalf Ms. Melton.
W e are re luctant to place a trial court in error for failing to do that which he w as not requested to do and for that reason cannot find the Trial Court in error with regard to the punitive damage issue.
For the foregoing reasons the judgment of the Trial Court is affirmed in part, vacated in part, and remanded to the Trial Court for proceedings not inconsistent with this opinion and for collection of costs below. Costs of ap

peal ar e adjudged equally

against Appellant, Glen Houston Melton, and his surety and Appellee, Flora Mae Melton.

_________________________________________ HOUSTON M. GODDARD, PRESIDING JUDGE