1 Ms. Selby testified that the value of the one-bedroom duplexes was $34,900 and that the value of the two-bedroom duplexes was $37,300.

2 Mr. Selby’s appraiser testified that thevalue of the one-bedroom duplexes was $45,000 and that the value of the two-bedroom duplexes was $47,000. 

# FILED

December 6, 1996 Cecil W. Crowson Ap pellate Cou rt Clerk 

## IN THE COURT OF APPEALS OF TENNESSEE MIDDLE SECTION AT NASHVILLE

DIXIE MILLBURN SELBY, ) ) Plaintiff/Appellee, ) ) Rutherford Chancery ) No. 94D R-775 VS. ) ) Appeal N o. ) 01A01-9604- CH-00159 LANDON SELBY, ) ) Defenda nt/Appella

nt. )


## DISSEN TING OPIN ION
I concur with the court’s conclusion that the incre ase during the marr iage of the equity i n Ms. Sel by’s six Gl aze Cour

t duplexes i s marital

property. However, I have preparedthis separate opinion t o address a

n issue conc erning the valuation of this marital proper

ty that is not

addresse d in the main opinion. Since the trial court undervalued this intere st, I would remand the case for further proceedin gs.

I.

DixieSelby owned six duplexes on Glaze Court before she marriedLandon Selby. According to Ms. Selby, the market value of th ese duplexe s at thetime of the marriage was $208,200. They we re encum bered by a

$140,000 mor

tgage, a nd according ly, their net value atthe time of the marriage was $68,200. At the time of the divorc e, the

fair market value of the duplexes was between $216,600 1 and $276,000. 2 The par

ties ref inanced the

debt duri ng the mar

riage, a nd the debt applicable

to the duple xes was $2 9,36 5.91 at t he time of

the divorc e. Thus, the netvalue of th e duplexe s at the tim e of the div orce wa s betwee n $187,234 and $246,634.3 Mr. Selby cosigned the note when Ms. Selby refinanced the mortgage on the duplexes in September 1992. He also worked on a full-time basis from 1990 to 1994 to improve an d maintain t

he duplexes.

4 The local rules of court for th e Sixteen th Judicia l Dis trict re quire parties in contested divorce p roceedi ngs to file a statement identifying the disputed issues and the witnesses they expect to call. I t also req uires the parties t o identify and value all separate and marital property. The form pro vided in th

e local r ules gre atly assists the

trial cou rt invaluing and distributing the parties’ marital estate. -2- The tr ial court found that t he duplexes are Ms. Selby’s se parate pr operty because she owned them prior to the marriage. It also found t

hat the inc rease in the value of th ese duplexe s during the marriag e was ma rital prop erty beca

use Mr. Selby had subst anti ally contr ibuted to the

duplexes’ preserva

tion and apprecia tion. 3 See Tenn. C ode Ann. § 36-4-121(b)(1)(B) (1996). The trial court then determin ed that the

equity in the

duplexes ha

d increas ed by $50,000

during the marriag e.

II.

The tr ial court d

id not conside

r the red uction in the

debt on the d

up lexe s when it calcul ated the

increase in their equi ty during the

marriage. Thi s oversight appears to have been caused by a n ambiguity i n the “Joint Stipulatio n and Stateme ntin Complia

nc e with Rule 12. 02" 4 filed pri or to the he aring. T his statement requires the partie s to list debt s sepa rately from prop erty and a lso requires the partie s to state t he “value ” of prope

rty withou t stating w hether the value should be market value, net value including associated debts, or some other value. It does not r equire the

parties to indicate

the existe nce of a c orrelati on between a partic ular piec e of prope rty and a de

bt.

The courts should apportion marital debts in much the same way that they divide marital pro perty. Cutsinger v. Cutsinger, 917 S.W. 2d 238, 243 (Tenn. Ct. App. 1995); Mahaffey v. Mahaffey, 775 S.W.2d 618, 623-24 (Ten n. Ct. App. 1989). They shoul d also, w hen the fa cts requir e, conside

r the mar ital debts i n
con junction with assoc iated marit al propert y. Houghland v. Houghland, 84 4 S.W.2 d 619, 624 (T enn. Ct. App. 1992) ; Mondelli v. H oward, 780 S.W. 2d 769, 773 (Tenn. Ct . App. 1989).-3- The trial cour

t should have considered both

the incre ase in mar

ket value a

nd the decreas e in the ass ociated de bt when it c alculate d the incre ase inthe equityof the six Glaze Court duplexes during the marriage. Mr. Sel by brought thi s oversight to the trial court’s attention in a timely post-trial motion. A ccordingly , I would remand the case with directions that the trial court re calculat

e the incr ease in the equit y of the si x Gl aze Cour t duplexes and then determine whether ad justments should be made in its original distribution of the marital estate. Placing a higher value on this increase in eq uity does n ot necessarily require a differe ntdistribution of marital property since Tenn. Code Ann. § 36-4-121( a)(1) (1996) requires an equitab le division, not necessarily an equal one

. Ellis v. Ellis, 748 S.W.2 d 424, 427 (T enn. 1988) ; Batson v. Batson, 769 S.W. 2d 849, 859 (Tenn

. Ct. App. 1988).

_________________ ___________ WILLIAM C. KOCH, JR., JUDGE