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Rule 10 of the Rules of the Court of Appeals of Tennessee provides: 

This Court, with the concurrence of all judges participating in the case, may affirm, reverse

or modify the actions of the trial court by memorandum opinion when a formal opinion would have

no precedential value. When a case is decided by memorandum opinion it shall be designated

"MEMORANDUM OPINION", shall not be published, and shall not be cited or relied on for any

reason in any unrelated case.

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

November 19, 2003 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 December 23, 2003

This is an appeal from a divorce action. Husband contends the trial court abused its discretion by

granting Wife’s motion in limine, establishing Husband’s earning capacity based on 1998 and 1999

income tax returns, and by divesting Husband of his interest in the parties’ assets. We affirm.

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

Remanded

DAVID R. FARMER,J., delivered the opinion of the court, in which ALAN E. HIGHERS,J. and HOLLY

M. KIRBY, J., joined.

Kaye G. Burson, Memphis, Tennessee, for the appellant, James Alvin Smithson, Jr.

C. Suzanne Landers and Vicki J. Singh, Memphis, Tennessee, for the appellee, Terry Baker

Smithson.

MEMORANDUM OPINION1

Terry Baker Smithson (“Wife”) and James Alvin Smithson (“Husband”) were married in

1988 and separated in September 1999. They have one minor child, born November 1991. Wife

filed for divorce in April 2000 on grounds of irreconcilable differences and inappropriate marital
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conduct. Husband counter-complained seeking divorce on grounds of irreconcilable differences and

cruel and inhumane treatment. 

At the time of trial, Wife was forty-three years of age and was employed full-time as a

pharmacy assistant, earning $12.00 an hour. She completed one year of business school prior to

marriage. Throughout the marriage, Wife was employed only intermittently, never earning more

than approximately $25,000 a year. 

Husband was forty-six at the time of trial. From 1995-1999, Husband earned between

$132,611 and $733,435 per year, primarily from establishing and selling businesses. Husband’s

business interests include international interests in Thailand and Malaysia. 

This record generated by this lawsuit includes, inter alia, what Wife accurately terms an

“encyclopedic list of discovery pleadings,” a consent order of protection which followed a “physical

altercation” resulting in Husband’s arrest, several contempt petitions filed by Wife, and Wife’s

emergency petition for sale of marital property. It also includes Wife’s June 25, 2002, motion in

limine and June 26, 2002, amended motion in limine to limit the evidence, establish facts as true,

and dismiss Husband’s counter-complaint. In her motion and amended motion, Wife alleged

Husband violated the discovery process and sought relief under rule 37.02 of the Tennessee Rules

of Civil Procedure. Wife’s amended motion in limine moved the court to establish Husband’s

earning capacity at amounts reflected on his 1998 and 1999 income tax returns; to prohibit Husband

from introducing other evidence relating to his income; prohibit Husband from claiming an interest

in the parties remaining real or other assets, including five closely-held corporations owned by the

parties; to dismiss Husband’s counter-complaint; to find Husband in 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 court

granted the parties a divorce and further granted Wife’s motion in limine. By order of December

2002, the court awarded custody of the parties’ minor child to Wife, and established child support

at $4,464 per month. The court awarded Wife alimony in futuro of $2,000 per month and attorney’s

fees of $142,992. The court ordered 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 ordered Husband to pay child’s

private school tuition. It further awarded Wife tax dependency exemption; divided the parties’ debt;

and awarded Wife $1,605,104 ($1,530,481 to equalize division of marital assets, $49,740 in unpaid

pendente lite child support, $24,903 for dissipated marital assets). Husband now appeals to this

Court. 

Issues Presented 

Husband raises the following issues, as we perceive 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
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earning capacity, marital assets, marital debts, and 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 years 1998 and

1999, upon which the court established alimony and child support.

(3) Whether the trial court abused its discretion in divesting Husband of his

interest in all assets, including the parties’ closely held corporations and real

estate, in awarding these assets to Wife, and in awarding Wife an additional

$1,605,104.

Standard of Review 

To the extent these issues involve questions of fact, our review of the trial court's ruling is

de novo with a presumption of correctness. Tenn. R. App. P. 13(d); Sullivan v. Sullivan, 107 S.W.3d

507, 509 (Tenn. Ct. App. 2002). We may not reverse the trial court's factual findings unless they are

contrary to the preponderance of the evidence. Id. at 510. With respect to the court's legal

conclusions, however, our review is de novo with no presumption of correctness. Id. Insofar as the

trial court’s determinations rest upon an assessment of credibility, they will not be overturned absent

clear and convincing evidence to the contrary. Wells v. Tennessee Bd. of Regents, 9 S.W.3d 779, 783

(Tenn.1999). 

Analysis 

Husband contends the trial court abused its discretion in granting Wife’s motion in limine

to prohibit Husband from introducing evidence of his income, earningcapacity, and financial matters

at trial. Husband contends that he did not fail to obey an order of the court. He accordingly argues

that the sanctions imposed by the court were unwarranted under rule 37. 

We begin our analysis of this issue by noting that we review a trial court’s decision to admit

or exclude evidence under an abuse of discretion standard. In this case, the trial court specifically

found that Husband abused the discovery process. The court found that Husband failed to provide

banking records; failed to provide appropriate business records; failed to file tax returns for 1999,

2000, and 2001; and failed to make himself available for deposition. Upon review of the record, we

agree with the trial court that, throughout the course of this matter, Husband attempted to frustrate

and short circuit the discovery process. We decline to address Husband’s argument 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 before this matter was

heard, and granted by the court after repeated discovery attempts by Wife. The court provided

Husband every opportunity to provide evidence of his income and earning capacity before trial, and

it acted well within its discretion to exclude surprise evidence by Husband. Husband may not abuse

the discovery process and then assert abuse of discretion by the court when the court excludes
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evidence that could 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. 

Husband further asserts the trial court erred by setting child support and alimony based on

Husband’s income as reflected in Wife’s affidavit. Wife’s affidavit provides Husband’s earnings

based on Husband’s income tax returns. The trial court established Husband’s earning capacity as

being that income reflected by Husband’s tax returns for the years 1998 and 1999. Husband’s child

support obligation of $4,464 per month was based upon an average net monthly income of $21,257

as reflected by Wife’s affidavit concerning Husband’s tax returns for the years 1995 through 2000.

We find no abuse of discretion in this determination. 

Husband also contends the trial court abused its discretion in divesting Husband of his

interest in the parties’ marital assets, including five closely-held corporations and real estate, in

awarding these assets to Wife, and in awarding Wife an additional $1,605,104. Courts are required

to divide marital property equitably, not equally, penny for penny. See Ellis v. Ellis, 748 S.W.2d

424, 427 (Tenn.1988). One of the factors to be considered by the court in dividing the parties’

property is one party’s dissipation of the martial assets. Tenn. Code Ann. § 36-4-121(c)(5)(2001).

In this case, the court divested Husband of his interest in the parties’ assets in conjunction

with the grant of Wife’s motion in limine and upon a finding of “tremendous dissipation of the

marital estate” by Husband. 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 physical

possession of Husband until such time as he could be brought before the court to answer charges

pending, and a writ of attachment against Husband’s property. Husband’s counsel does not dispute

that Husband currently is in Thailand, or that Husband has not paid child or spousal support since

before trial. 

Upon review of the record, and in light of the continual difficulty Wife and the trial court

have had in obtaining a full accounting from Husband, the evidence does not preponderate against

the determinations of the trial court. We affirm the division of property.

Conclusion 

Husband in this case has abused not only the discovery process, but the integrity of the court.

The judgment of the trial court is affirmed in all respects. Costs of this appeal are taxed to

Appellant, James Alvin Smithson, Jr., and his surety, for which execution may issue if necessary.

___________________________________ 

DAVID R. FARMER, JUDGE