# FILED

December 12, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk 

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

WILLIAM B. DEMONTBREUN, ) ) Plaintiff /Appella nt, ) ) Sumner G eneral S essions VS. ) No. 2496-G ) ) Appeal N o. KATHY JO MITCHELL DEMONTBREUN, ) 01A01-9703- GS-00129 ) Defendant/Appellee. )

APPEAL FRO M THE GEN ERAL SESSIO NS COURT FOR SUMNER COUNTY AT GALLATIN, TENNESSEE THE HONORABLE BARRY BROWN, JUDGE

For the Plaintiff/

Appellant : For the Defendant/Appellee : Nicholas D. Hare Wayne D etring Nashville, Tennessee Hendersonville, Tennessee



## AFFIRMED IN PART; MODIFIED IN PART

AND REMANDED

WILLIAM C. KOCH, JR., JUD G E-2- 

## O P I N I O N

This appeal fo cuses on the financia l aspects o f the dissolution of a short-term marriage. After a

pproximate ly four yea

rs of mar riage, t he husband

filed for divorce in the Sum

ner C ounty General Sessions Court. Less than one week later, the wife filed for divor

ce in the C ha ncery Cour

t for Sumn er County. The par ties agre ed to consolidate

the cases in the general sessions court, and following a ben ch t rial, th e courtdeclared the parties divorced, divided the marital property and debts, awarded the wife $1, 500 in alimony, and dir ected the husband to pay the wife $2,500 for her legal expenses. Both parti es take iss ue with the judgment. The husband

asserts that the general s essions court’s c alculatio n of his debts to the wife is incorrect. The wife takes issue

with the resolution of marita

l fault, the division of marita l property , and the amount of t

he rehabi litative a

limony awa

rd. Whil e the cal culation of the husband’s debt to the w ife must be modi f ied, we affirm the rema

inder of th e judgment.

I.
Kathy Jo Mitchell f

irst met W

illiam B. Demontbr

eun prior t

o 1991 when s he retained him to prepare her federal income taxes. Ms. Mitchell had recently left her employment

with a sto c kbroker and had re ceived dist ributions of

her pensio n and profit-sh aring accounts. Mr. Demontbreun was a self-employed acco untant. Ms. Mitchell went to work for Mr. Demontbr eun in January 1991, and they were married on May 10, 1991. Ms. Mitchell was then thirty-six years old and had been married once. Mr. Demontbreun was fifty years old and had been married tw ice.

The marriag e was app arently tr oubled from

the beginnin g. The pa

rties had financial and religi ous disagre ements. Mr. Demontbreun b elieved th at Ms. Mi tchell
was controll ing, sexu ally dis tant, and int emperat e with mon ey. For her part, Ms. Mitchell b elieved th at Mr. D emontbreu n was ver bally and phy sically ab usive. Sh e also discovere d after t

he marri age th at Mr . Demontbreun wa s experie ncing seri ous financial problems. As a result, Ms. Mitchell made per i odic loans to Mr. Demontbr

eun from the funds that ha d been in her re tirement

and profit

sharing-3-

accounts prior to the

marriage. Mr. Demontbr eun agree d to repay t

hese loans as he obtained funds.

The parties se

parated i n August 1995 following a dispute ove r one of their automobile s. On Novem ber 16, 199 5, Mr. D emontbreu n file d suit in the Sumner County Genera

l Sessions C ourt seeki ng a divorce on th e gr ounds of irr

econcila ble differences and inappropriate ma rital cond uct. Six days la

ter, Ms. Mitchell f

iled a divorce action in th e Chance ry Court f

or Sumner

County seek

ing a divorc e on the
same grounds. Following a bench trial on July 29, 1996, the general sessions court filed its findings of fact a

nd conclusio ns of law and final decree on August 19, 1996. The court declared the parties divorced i n accorda nce with Tenn. Code

Ann. § 36- 4- 129(b) (1996). I

t also dire cted Mr. Demontbr eun to pay Ms . Mitche ll $6,200 for her loans during the marriage, as well as $1,500 for her educational expenses, and $2,500 for her l ega l expenses. In addition , the cour t awarde d each par

ty their se

parate property, divided the marital property, and allocated the marital debts. Both parties take issue with the j udgment

II. T HE A WARD OF THE D IVORCE TO B OTH P ARTIES

Ms. Mitchell

takes issue

with the trial court’s decision to declare both parties divorced in accord ance wit h Tenn. C ode Ann. § 36-4-129(b) rather t han to grant

her the divorce. She clai ms in a ra ther perfu nctory wa

y that she pr

oved more s erious marital f ault than did Mr. Demontbr eun and, t herefor e, that s he was en

titled to the divorce. We find l ittle mer it in this ar

gument. Appellat e courts review decisions awarding a divorce to eitheror both parties using the famil iar Tenn. R. A pp. P. 13(d) standard. Accordi ngly, we pres ume that th e trial court’s findings are correct , and we will not ove

rturn them

unless they are not supported by a preponderance o f the evidence or are in consistent w ith the appl icable divorce statutes. See Hazard v. Hazar d , 833 S.W .2d 911, 91 3 (Tenn. Ct. App. 1991). WhileMs. Mitchell presented evidence of at lea st two inci dents of phys ical abuse by Mr. Demontbreun and of their disputes over religious and financi al matter s, Mr. Demontbr

eun presented evidence of Ms. Mitchell’s controlling conduct , her
re luctance to associ ate with his family, and the coupl e’s sexual dysfunct ion. Th e-4-

evidence presente d by both partie s supports the general s essions cour

t’s decisi on to declare the partie s divorced.

III.

T HE D IVISION OFTHE M ARITAL E STATE

Ms. Mitchell a

lso assert s that the general se ssions court err ed by faili ng to awardher one ha

lf of the $ 14,000 Mr. Demontbr eun allege dl y had i n a lock box at home at the time of the se paration. While the

court did no t mention these funds in its findings of fact, the o mission i s not neces sarily er ror in light

of the conf

licting proof conc erning thes e funds.

Mr. Demontbreun testified thatthe partie s customar ily kept bet

ween tw o and three thousand doll ars in ca sh in a lock b ox in their a partment and that Ms. Mitchell frequent ly took funds f

rom the box for spendin g money. H e stated he removed t

he money from the box prior to the separa tion . Contrary to Mr. Demontbreun’s testimonyconcerning the amount of money in the box, Ms. Mitchell testified that there was $14, 000 in thelock box when the parti es separa ted. There i s no clear

proof about what Mr. Demontbr

eun did wit

h this money o r

whether any of it was still in his possession a

t the time of the divor

ce heari ng.
Trial courts hav e wide dis cretion when deter mining how t

o di vide a ma rital estatein an equi table mann er. S ee Fi sher v. Fisher , 648 S.W .2d 244, 24 6 (Tenn. 1983); Brown v. Brown , 913 S.W .2d 163, 16 8 (Ten n. Ct. A pp. 1994). Their discretio n is guided by t

he factor s lis ted in Te nn. Code A nn. § 36-4- 121(c) (S upp. 1997) and by other

factors made rel evant by the facts of the particular

case. See Ellis v. Ellis , 748 S.W .2d 424, 42 7 (Tenn. 1988); Denton v. Den ton , 902 S.W .2d 930, 93 2 (Tenn. Ct. App. 1995 ). Reviewi ng courts g ive great weight to a trial court’s distribution

of marit al proper

ty and will

not disturb its decision unle ss it is contrary to the preponderance of t he eviden ce. See Wilso n v. Moor e , 929 S.W .2d 367, 37 2 (Tenn. Ct. App. 1996); Wade v. Wade , 897 S.W .2d 702, 71 5 (Tenn. Ct. App. 1994).

Marital property s ho uld be divided in a just and equi table manner. T he divisionneed not

be mathemat ically equ al to be equ itable, see Cohen v. Cohen , 937 S.W.2 d 823, 832 (Tenn. 1996), and each party need not receive a share of everyitem-5-

of marital pro perty. See Brown v. Brown , 913 S.W.2d at 168. When a marriage has been short, the trial court may distribute the marital propertyin a way t hat, as ne arly
as possible, resto r es the part ies to the ir pre-div orce econo mic circums tances. See Batson v. Batson , 769 S.W.2d 849, 859 (Tenn. Ct. App. 1988).

The fact tha

t the general sessions court did not mention t

he money in the parties’ lock box supports one of three possible con clusions. First, t he court c ould have determined that the funds had long since been spent. Seco n d, the cou rt could have conclude d that it wo uld be equ itable to award Mr. D e montbreun t hese funds. Third, the court c ou ld hav e overlooke d the existence of the se funds. We do not choose to adopt the third possibilitybecause o f the lac k of proof c orroborat ing Ms. Mitchell’s statemen

t that t he lock box contained $14,000. We choose ins tead to presume that the trial co urt performed its duty in a responsible manner. In light of the proof of Mr. Demontbreun’s economic difficult ies, we have concluded that the weight of the cir

cumstantia

l evidence

is that Mr . Demontbreun spen t these fun d s between the separation and the divor ce heari ng and, thus , that they w ere not av ailable for distri bution as part of th e marital est ate.

IV. T HE A WARD FOR R EHABILITATIVE S POUSAL S UPPORT

Ms. Mitchell c ontends that she should ha

ve recei ved more s pousal suppor t. The general sessions court awarded her $1,500 to enable her to become a certified office manager . Ms. Mi tchell now insists that

the trial court should

have also awardedher $138 per

month for t

wo years to enable

her to pay her medical insurance premiums.

Tenn essee’s spousal suppor t statute e xpresses a

strong pre ference

for rehabilit ative spousal support
. See Tenn. Code Ann. § 36-5-101(d)(1) (Supp. 1997). The purpose of this support is to enable the rec ipient sp ouse to acqu ire job skil ls, educa tion, or t raining t hat will ena ble him or h er to be more s elf-supp orting. See Smith v. Smith , 912 S.W.2 d 155, 160 (T enn. Ct. App. 1995) ; Cranford v. Cranford , 772 S.W.2 d 48, 51 (T enn. Ct. App. 1989) . The ne eds of the r ecipient s pouse and the obligor spouse’s ability to pay are generally the most important considerations when setting spousal support , see Crain v . Crain , 925 S .W.2d 23 2, 234 (T enn. Ct. App.-6-

1996); B arnh ill v. B arnhill , 826 S.W.2d 443, 455 (Tenn. Ct. App. 1991); however, rehab i litative

support issues fo cus more on the need of the recipie nt spou se. See Wade v. Wade , 897 S.W .2d at 719.

Trial courts hav e widediscretio n to fashion support aw ards, an d thus appell ate courts give greatweight

to their d ecisions

. See Wilso n v. Moor e , 929 S.W .2d at 375. Whilethe courts may weig h fault intothe equati o n, see Ten n. Code Ann. § 36-5- 101(d)(1)(K), spousal support aw ards should not be pu nitive. See Brown v. Brown , 913 S.W. 2d at 169.

Ms. Mitchell is currently forty-three years old and is in good health. She was economica

lly self-su fficient

before t he marri age. At the time of the divor ce she worked part-tim

e at a depa

rtment sto re; howe ver, she is capable

of more gainfu l employment

in light of he

r premar ital wor k history and

her pl ans to r ehabilita

te herself by improvingher job skil ls. On th e other ha nd, Mr. Demontbr

eun is n o w sixty-sixyears old. He has suf fered a number of financia l reversa ls, and it is unlikely thathis ability t

o earn inc ome or to a

ccumulate

capital a ssets will

improve dur

ing the remainingyears tha

t he will b e able to w ork. In l ight of the p a rties’ personal circumst ances, the durati o n of their marriage, and the division of their marital property, we find that

the evidence does not preponderate against the court’s denial of Ms. Mitc hell’s re quest

that Mr. Demontbreun pay her medical insurance premiums for two years

.
V. T HE U NPAID L OANS

Mr. Demontbr

eun asser ts that the general s essions cour t erred b y ordering him to pay Ms. M itchell $6, 200 repre senting re payment of

the loans sh e made to him during the marr

iage. H e claims t

hat th e trial c ou rt should hav e taken int o considera tion one payment he made before the mar riage, t he money Ms . Mitche ll received between

t he s eparatio n and the divorce tria l, the par ties’ hone ymoon expenses, and a

calculat ion error by Ms. Mitchell. Not surprisingly, the total of Mr. Demontbreun’s clai m ed adjustments more th an off-sets the amou nt of money he owed to Ms. Mitc hell when the partie s separat

ed. We have deter

mined that the $6,200 aw ard should be

modified.-7- Ms. Mitchell i nsists at th e outset tha t Mr. D emontbreu n should not be permitted to take issu e with the general s essions cour

t’s calc ulation of his indebtedne ss because he testified at trial that she had given him credit for a ll th e payment s h e had made . While Mr. De montbreun d id make thi s concessio n at one point during his cross-ex amination , he took is sue with se veral asp ects of Ms

. Mitchell’s evidence at other point s. Since we are reviewi ng the evide nce in
ac cordance w ith Tenn. R. App. P. 13(d) , Mr. D emontbreu n’s statem ents are not conclusive

if the record contains credible evidence of other fa ct s contrar y to his concession s. See Osbor

ne v. H artford Acciden t & Indemn . Co. , 63 Tenn . App. 5 18, 530-31, 476 S.W. 2d 2 56, 261 (19 71); see also Jo hnson v. Ste ele , 541 S.W .2d 795, 799 (Tenn. Ct. App. 1976); Harvey v. Wheeler , 57 Tenn . App. 6 42, 648, 423 S.W. 2d 283, 285 -86 (1967 ).

Both parties a

greed t hat Ms. Mitchell r

outinely loa

ned Mr. D emontbreu n money during the m arriage with the expectation

that Mr. Demontbr

eun would

repay her when he w as able. The par ties’ re cord keepi ng concerning these lo ans and repaymen ts was extr

emely haphaz ard. At trial, Ms. Mitchell’s testimony that Mr. Demontbr

eun still ow ed her $ 6,775 was based sole ly on her ba nk statements and canceled c hecks durin g the marr iage. Mr . Demontbreun like wise kept no running tabulation o f these loa

ns andcontradic ted Ms. Mitc hell’s cal culation s with his own canceled checks. With the e vidence in such a conf using conditi on, it wou ld be difficult for any f inder-of -fact toavoid calc ulation er rors.

Part of the loan s claimed

by Ms. Mit

chell included $2, 000 loaned to Mr. Demontbr

eun in January

1991 to help him p ay some le gal expense s relate d to his bankruptcy proceedi ng. Ms. M itchell sub stantiate d this loan by producing a

$2,000 check dated January 30, 1991 made pa yable to Mr. D emontbreu n. Mr. Demontbr eun asserted that he repaid this loan one week later and produced a $ 2,000 check dated February 5, 1991 made payable to Ms. Mit

chell. M s. Mitche ll did not contradict Mr. Demontbr

eun on this point. Accordi ngly, we findthat Mr. Demontbr

eun should hav e received credit f

or this paym

ent and t hat the amount of hi s debt to Ms. Mitchell should be re duced by $2, 000.

Mr. Demontbr

eun also asserts t

hat thegeneral s essions cour t did not appor

tion all the parties’ wedding and honeymoon expenses and that he should have received-8-

a$1,200.96 credit r ather tha n a $500 cre dit against

his debt to M s. Mitche ll. Although the proof shows that

the parties’ wedding a

nd honeymoon c ost $2,276. 96, Ms. Mitche ll t estified w ithout contradiction tha t the wedd

ing cost appr

oximately $1,000 and that the

remaind er of the expenses wer e for the honeymoon. She also tes tified that Mr. Demontbr eun had agr

eed to pay f

or the we dding and hon eymoo n and, therefor

e, that the tr ial court e rred by re quiring the parties tobe jointly respon sible for these

expenses. Since Mr . Demontbreun does not contradict Ms. Mitchell’s assertion that he agreed to pay for the weddi ng and honeymoon, it appears thatMs. Mitchell loaned him the money for both events and that she

was entit led to be repaid f

or these e xpenses. Accordi ngly, he w as not entitled toa credit

for any of the expense s relate d to the we dding and honeymoon.

Mr. Demontbreun c laims that he should

also rec eive cre dit for

the $5,870. 64 Ms. Mitchell re ceived afte r the partie s’ separati on. As best as this rec ord revea ls, these funds were used for car payments, insurance prem iums, and other expenses related to Ms. Mit

che ll’s support. Thus, they were in the nature of voluntary pendente lite suppor

t rather than loan r

epayments
. Since Mr. Demontbreun was obliged to support Ms. Mitchell prior to the divorce, the general ses si ons court did not err by re fusing to give

him credi t for the

these payments a

gainst his de

bt to Ms. Mitchell.

Mr. Demontbreun’ s final cl aimed adj ustment stems from a miscalc ulationof the loans Ms. Mitchell m ade to Mr. Demon tbreun in 1993. Ms. Mitchell asserted that she loaned him $16,271 in 199 3; however , the bank statemen ts and chec ks she produced at trial showed wi thdrawa ls and payment s amo unting to only $ 15,300. Because Ms. Mitc hell could

not substanti ate the f

ull amount

of the 1993 loans, Mr. Demon tbreunshould have received a $971 deduction from the amount clai med b y Ms. Mitc hell.

In summary, we have determined that the general sessions court’s award reflect ing Mr. Demontbreun’ s indebtedne ss to Ms. Mitchell must be modified. Mr. Demontbr

eun is entitled to credit for his $2,000 payment to Ms. Mitchell in February 1991 and to a $971 credit ba sed on Ms. Mitchell’ s miscalc ulation of t he total of loans
m ad e in 1993. H owever, he is not ent itled to a $5 00 offset f

or a portio n of the wedding expenses . Theref ore, based on Ms. Mitchell’s testimony that Mr.-9-

Demontbr

eun owed her

$6, 775, we h ave deter mined that the recor

d supports awardin g her $4,304. Accordingly, we reduce the gen eral sess ions court’ s $6,200 award to$4,304.

VI.

M S . M ITCHELL ’ S L EGAL E XPENSES ON A PPEAL

The general s essions cour t awarde d Ms. Mitc hell $2,500 to defray herlegal expenses at trial. Now she asserts that Mr. Demontbreun s hould be req uired to pay her legal expenses for this appeal. Award s of this sor t are trea ted as additional support, see Smith

v. Smit h , 912 S.W .2dat 161; Gilliam v. Gill iam , 776 S.W .2d 81, 86 (Tenn. Ct. App. 1988), to b e awar ded when t

he spou se seeking them lack s sufficie ntfunds to pay his or her legal expenses or w ould be requir ed to deplete
resources in order to do so. See Bro wn v . Brown , 913 S.W .2d at 170; Kincaid v. Kincaid , 912 S.W.2d 14 0, 144 (Tenn . Ct. App. 1995 ).

There is nothing in the record showing that Ms. Mitchell is unable to pay her legal expen ses. She

is curre ntly employe d and testif ied that she

will be a

ble to increase her earnings once she receives her office management certificate. When Mr. Demontbr

eun repays his debt to her

in full, h er assets will be restor ed to their amount prior to the mar

riage. We find no economic d isparity j ustifyi ng the imposi tion of attorney’ s fees on a

ppeal.

VII.

We affirm

the judgmen

tas modifie d herein

and remand the case to the general sessions court for

further proceedin gs consisten t with this opinion. W e tax the costs in equal proportions to William B. Demontbreun an d his sur ety and to Kathy Jo Mitchell for which execution, if necessary, may issue.

_________________

____________ WILLIAM C. KOCH, JR., JUDGE-10-

CONCUR:

_________________

________________ BEN H. CANTRELL, JUDGE

_________________

________________ WALTER W. BUSSART, JUDGE