1 Rule 10 o f the Ru les of the C ourt o f App eals of T enne ssee p rovid es:
Th is Court, with the conc urrence o f all judges participating in the case, ma y affirm, reverse or modify the act

ions of the t rial court by memorandum opinion when a formal opinion would have no prece den tial valu e. When a case i s decided by memorandum opinion i t shal l be desi gnated "MEMORANDUM O PINIO N", shall not be published, and shall not be cited or relied on for any reason i n any un relat ed case. 

### IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON Novem ber 19, 200 3 Session TERRY BAKER SMITHSON v. JAMES ALVIN SMITHSON, JR.

Direct Appeal from the Circuit Court for Shelby County No. CT-001801-00 George H. Brown, Jr.

No. W2003-00204-COA-R3-CV - Filed Dec ember 23, 2003

This is an appeal from a divorce action. Husband c ontends th e trial c ourt abus ed its discretion by granting Wife’s motion in limine, establishing Husband’s earning ca pacity based on 1998 a

nd 1999 income tax return s, and by

div esting H

usb and of hisinterest

in the par

ties’ ass ets. We af

firm. Tenn. R. App.P. 3 Appeal as of Right ; Judgme nt of the Cir

cuit Cour

t Affirme d and Remanded
D AV ID R. F ARMER , J., delivered the opinion of the court, in which A LAN E. H IGHERS , J. and H OLLY M. K IRBY , J., joined. Kaye G . Burson, Memphis, Tennessee, for the appellant, James Alvin Smithson, Jr. C. Suzanne L

anders a nd Vicki J. Singh, Memp his, Tennessee, f

or the ap pelle e, Te rr y Baker Smithson. MEMORAN DUM OP

INION 1 Terry Baker Smithson (“Wife”) and James Alvin Smithson (“Husband”) we re marr ied in 198 8 and separated in September 1999. They have one minor child, born November 1991. Wif e filed fo r divorce in April 2000 on grounds of irreconcilable differ ences and inappropriate marital-2-

conduct. Husband counter-complained seeking divorc e on grounds of irreconcilable diffe rences and cruel and inhumane treatment. At the timeof trial, Wife was f orty -three ye ars of a

ge and was employe d full-time

as a pharmacy assistant, earning $12.00 an hour. She complet ed one year of business sc hool prior

to marriage. Throughout th e m arriage, Wife was employ ed only intermittently , never earning more than approximately $25,000 a y ear. Husbandwas forty- six at the time of trial. From 1995-1999, Husband earned between $132,611 and $733,435 per ye ar, primarily f rom establishing and selling bus inesses. H usband’s business interests include international interests in Thailand and Malay sia. This record

gener ated by this lawsu

it in clud es, inter alia , what Wife accurately terms an “ency clopedic list of discovery ple adings,” a consent order of protection which followed a “phy sical altercation” resulting

in Husband’s arr

est, seve ral cont empt petit

ions fi led by Wife, and Wife’s emergency

petition for sal e of mar

ita l proper

ty. It al so include s Wife’s June 25, 2002, m

otion in limine and June 26 , 2002, am ended mot

ion in li mi ne to limit the evidence, establish facts as true, and di sm is s Hu sba nd’ s co unt er- com pl ain t. In her motion and amended motion, Wife alleged Husband violated the discovery proc ess and sought relief under rule 37.02 of the Tennessee Rules of Civil Procedure. Wife’s amended motion in limine moved the court to establ ish Hus band’s earning capacity

at amounts reflected on his 1998 and 1999 income ta x returns; t

o prohibit Husband from introducing other

evidence relating to his income; prohibit Husband from claiming an interest in the parties remaining real or other a ssets, including five closely -held corporations owned by the parties; to dismiss Husband’s counter-complaint; to find Hus band i n contempt for his discovery failures; and to award Wife her attorney ’s fees and expenses. The matter was heard on June 26, June 27, and July 1, 2002. In October 2002, the trial cour t granted the parties a divorce and further g ranted Wife’s motion in limine. By orde r of December 2002, the court awarded custody of the parties’ minor

child to Wif

e, and e stablishe d child

support at $4,464 per month. The court awarded Wife alimo ny in futuro of $2,000 per month and attorney ’s fees of $142,992. The cour t ordere d Husband

to maintain life insurance of $400,000 for benefit of the minor child and $500,000 for so long as alimony is owed, and orde red Husband to pay

child’s private school tuition. It fu

rther a warded Wife tax dep endenc y e

xemption; div

ided the p arties’ debt; and awar ded Wi fe $1 ,605, 104 ( $1,53 0,481 to eq ualiz e division of marita

l assets, $ 49,740 in u

npaid pendente lite child support, $24,903 for dissipated marital assets). H usband no w appea ls to this Court. Issues Presented Husband raises the following issues, as we perc eive them, for our review: (1) Whether

the trial court abused its discretion by granting Wife ’s motion in limine prohibiting Husband from putting on proof relating to his income and-3- earning capacity , marital assets, marital de bts, a nd allegations of Wife’s dissipation of the marital estate. (2) Whether

the trial court abused its discretion and erred by establishing Husband’s earning capacity based on Wife’s affidavit for the y ears 1998 and 1999, upon

which the

court es tablished

alimony and child support. (3) Whe therth e trial c ourt abus ed its disc retion in d

ivesting Husband o f his interest in all asse

ts, including the parties’ closely held corporations and real estate, in award

ing thes e assetsto Wife, and in awarding Wife an additional $1,605,104. Standard of Review
To the extent these issues involve questions of fact, ou r review of the tr

ial cour t's ruling is de novo with a presumption of correctness. Tenn. R. A

pp. P. 13(d

); Sullivan v. Sullivan , 107 S.W.3d 507, 509 (Tenn. Ct . App. 200 2). We may not reve rsethe trial court's factual findings unless they are contrary to the prep onderance of the evidence. Id. at 510. With respect to the court's legal conclusi ons, however , our rev iew is de novo withno presumption of correctness. Id. Insofar as the trial court’s determinations rest upon an assessment of cr ed ib il it y, they will not be overturne d absent clear and convincing e

vidence to the contrary

. Well

s v. Tenne ssee Bd. of Regen ts , 9 S.W.3d 779, 783 (Tenn.1999). Analysis Husbandcontends the trial court abused its discretion in granting Wife’s motion in limine to prohibit Husband from introducing evidence of his incom e, earning ca

pacity, and fina

ncial matters at trial. Husband contends that he did not fail to obey an order of the court. He acc ordingl y argues that the sanctions imposed by the cour t were unwarranted under rule 37.
We begin our

analysis of this issue by

noting that

we revie w a trial court’sdecision

to admit or exclude evidence under an abuse of discretionstandar d. In this case , the tria

l court sp ecifica

lly found that Husband abused the discovery process. The court found that Husband failed to provide banking records; failed to provide appropr iate busin ess rec ords; fa

iled to file tax returns for 1999, 2000, and 2001; and failed to make himself available for deposition. Upon review of therecord, we agree with the tr

ial cour t that, throughout the course o f this matte r, Husba nd attemp ted to fru strate and short circuit the discovery process. We decline to address Husband’s arg ument that the court’s decision to limit the evidence to that which was discovered at the time of the hearing is not supported by strict application of rule 37 . Wife’s motion in limine was filed the day befor e this matter was heard, and granted by

the court after repeated discover y attempt s by Wife. T he court provided Husbandevery oppor

tunity to provide

evidenc e of his income and earning capac ity before tria l, and it acted w ell within its di scretion to exclude

surprise evidenc e by

Husband. Husband may

not abuse the discovery proc ess and then assert abus e of discretion by the cour t when the court excludes-4-

evidence that coul d and should have been discovered prior to the hearing of the matter. We affirm the trial court’s granting of Wife’s motion in limine. Husbandfurther asserts thetrial court erred by setting child support

and alimony based on Husband’s income as reflected in Wife’ s aff idavi t. Wi fe’s affidav it pro vides Husba nd’s e arnin gs basedon Husband’s incom e tax retur

ns. The trial court established Husband’s earning ca pacity as being that inco me reflected by Husband’ s tax retur

ns for the ye ars 1998 a

nd 1999. H

usband’schild support obligation of $4,464 per month was based upon an avera ge net monthly inc ome of $21,257 as reflected by

Wife’s affidavit concerning Husband’s tax returns for the y ears 1995 through 2000. We find no abuse of discretion in this determination. Husbandalso cont

ends the t

rial cou rt abuse d its discr

etion in div esting Husb and of his interest in the parties’ marital assets, including five closely-held corporations an d real e sta te, in awarding these assets to Wife, and in awarding Wife an additional $1,605,104. Courts are required to divide marital property e quitably, not equally , penny for pe nny. See El lis v. Ell is , 748 S.W.2d 4 24, 427 (Tenn.1988). One of the factors to be consider ed by the cour

t in dividing the parties ’ propert y is one party’s dissipation of the martial assets. Tenn. CodeAnn. § 36-4-121(c)(5)(2001).

In this case , the cour

t divested Husband o f his interest in the parties’ assets in conjunction withthe gra

nt of Wife’ s motion in limine and u pon a find

ing of “tremendous dissip ati on of the marital estate” by H

usband. The court

awarded Husband assets totaling $2,567,168. On December 6, 2002, the court issued a writ of capias ad respondem , directing lawful authorities to take phy sical possession of Husb and until such time as he could be brought before the c ourt to answer charges pendi ng, and a writ of attachment against Husband’sproperty. Husba nd’s counsel d

oes not dis pute that Husba

nd curre ntly is in Thailand, or that Husband has not paid child or spousal support since before trial. Upon re view of the record, and in light of the continual diffic ulty Wife and the trial cou r t have had in obtai ning a full accounting from Husband, the evidence does not prepond erate a gainst th e d et er mi na ti on s o f t he tr ia l c ou rt . W e a ff ir m t he di vi si on of

pr op er ty. Conclusion Husbandin this case has abused not only the discovery

process , but the in

tegrity of the court. The jud gment of the tri al court is affir med in all r

espects . Costs of th

is appea l are taxe d to Appellan t, Ja me s A lv in Sm it hs on , J r. , a nd hi s s ur et y, 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