# FILED November 9 , 1995 Cecil Crowson, Jr . Appellate Court Clerk IN THE COU RT OF A PPEA LS OF TENN ESSEE WESTERN SECTION AT NA SHVILLE
NANCY KAY E WHEELER POYNER, ) ) Plaintiff/Appellant, ) Humph reys C hancery No. 22-148 ) VS. ) A ppeal No. 01A 01-9503-CH- 00116 ) ALDEN DENNIS POYN ER, ) ) Defendant/Appellee. )
APPEAL FROM THE CH ANCERY COU RT OF H UMPH REYS COUN TY

AT WAVERLY, TENNESSEE THE HONORABLE LEONARD W. MARTIN, CH ANCELLOR

Ronald S. B uchanan Hendersonvi lle, Tennessee Attorney for Appellant Jerry V. Smith Dickson, Tennes see Attorney for Appellee

AFFIRMED IN PART, REVERSED IN PA RT AN D REMA NDED

ALAN E. HIGHERS , JUDGE
CONCUR: W. FRA NK CRA

WFORD, P.J., W.S. DAVID R. FA RMER, JUD GE2

This is a divorce case in which the Wif e appeals the trial court's div ision of marita l property a nd the court's award of custody to the H usband.

I.

The pertinent facts are as f ollows. The parties divorced after t welve years of marriage, durin g which time two sons were born of the marri age: Stephen A. Poyner, born in 1983, and Dav id E. Poyner , born in 1990. TheAppellant, Nancy Kaye Wheeler Poyner ("W ife"), filed for divorce in December of 1 993, alleging that she was e ntitled t o an absolute divorce based on the Husband's alleged physical ab use of both her and the children. In his answer, Hus band denied that he was the father of David P oyner, deni ed that Wife was entit led to a divorce, and counter claimed for

a divorce on the basis of W ife's inappropriatemarital conduc t and adultery. Both parties soughtcustody of the two chil dren.

Prior to trial, the court order ed bloo d tests to determine the pate rnity of David Poyner. The results defini tively excluded th e possibili ty that Hus band wasDavid's natural father, althou gh Wife repeatedly denied that she had committed ad ultery. Despite the fact that the blood tests

showed that he was not D avid's father , Husband conti nued to seek
cus todyof bo th David a nd Stephen. At the be ginning of trial, the par ties stipul ated to grounds for di vorce. The Wife also withdrew her previous

request for a limony.
The great bulk

of testimony

at trial was aimed at the custody issue . Most of the
e vidence presented concer ned Wife's longstanding pr oblems wit h anorex ia an d depression, which resulted in numerous hospi talizati ons and vari ous side-effects from her medications. In 1992 , Wife's prob lem w ith ano rexi a becamevery seri ous and she was hospitaliz ed. At this ti me, W ife was not only depressed, but w as also taki ng between 15 and 20 laxati ve pills a day to rid hers elf of food that she had consumed. In the span o f less than a year, W ife was hospitalized six times, and doctors p rescri bed over twenty3

different anti-depress ant medications i n an att empt to tre at her condition. All of these medications had v

arious side effects, one of w hich caused Wife to suffersevere anx iety attacks. Although al cohol was contraindicat ed with most of her medicine, Wife admitted that she drank alcohol on at least one occasion w hi le t aking these medications. H er hospital records enl arged upon thi s admission, r eflecting that she had abused alcohol with the medications several times.

Medical records compi led by various physicians and medi cal staff thattreated Wife contained docu men tati on of stat eme nts m ade by W ife that she was planning to comm it suicide or otherw ise to harm her self. Husband testified that Wife had attempted suicide
on three occasi ons either by overdosi ng on her medication or by drink ing alcohol with her medication. Wife, however, denied that she had ever

contemplated sui cide. When asked byopposing coun sel and the court about the discrepanc y betwee n her

testimony an d her medical recor

ds regardi ng her suic idal tendencies , Wife replied that the doctors had just "made it up." In M arch of 1993 , Wife had a car wr eck that occur red as a resul t of overmedicati on. Wife also admitted to having smoked marijuana during the parties' marriage.

W ife's last hospitalization was in March of 1993. Her treating physician, Dr. Ebert, stated in his deposition that since that ti me, her eating disorder was improving. Dr. Ebert thought that i t was poss ible that the di sorder would resolve completely

.

Wife presented ev idence that Hus band had whipped the older son, Steph en, in an
exces sive and abusive m ann er on sever al occasions . She specifical ly mentioned one incidentwhere Hu sband repeatedly whipped Step hen with a b elt. When W ife tried to st op him, he pushed her

down. Husband did not deny that this incident occ urred. The follow ing day, W ife had Husband arreste d for child abuse. At the time of the trial, no formal charg es had been brought against Hus band.

The trial court held that based upo n the evidence of Wife's problems, H usband was4

entitled to custod y of both children. The judge cauti oned Husband about w hipping the children and recommended that he read some books o n discipli ning chil dren. The court also awarded Husband the marital residence and the majority of the partie s' persona l prop erty. In retur n, Wife was awarded $25,000 cash, along with cer tain items of pers onal property contained on a li st that she had pr epared.

II.

Wife argues that

the court's divisi on of marital prop erty was not equitab le for sever al
reasons. First, s he contends that the court err

ed in electingnot to awar d to her any of the increase in value of the marital re sidence. Second, she takes issue with court's failure to award to her any of Husband's pens ion. Final ly, she contends that the cou rt considered fault in its div ision of the mari tal property , which i s impermissi ble under Tennesseelaw. There are sever

al fundamental princ iples of law to gui de us thro ugh issues of divisi on of martial proper ty. Of primary importance is the fact thattrial cour ts have bro ad discretion in div iding the martial estate , and their dec isions are afforded great weight on appeal. Fisher v . Fisher , 648 S.W .2d 244, 246 (1983). Moreover, fin dings of the trial court
are accompanied by a presumptio n of correct nes s, unless the evidence preponderates otherwis e. Barnh ill v. Barnhill , 826 S.W .2d 443, 459 (Tenn . App. 1991). A trial court's divisi on of property n eed not be equal tobe equitable, Batson v. Bat son , 769 S.W.2d 849, 859 (Tenn. App. 1988), and as a gener al matter, cour

ts wil l evaluate the fa irn ess of a property divisi on by its final results. Thompson v. Thompson , 797 S.W.2d 599, 604 (Tenn. App. 1990).

W e will firs t add ress t he is sue o f whe ther W ife shou ld ha ve been awarded any of the increase i n value of the mar ital resi dence.

Tennessee is a "dual pr operty" jur isdiction, which requires tr ial courtsto fi rst cla ssi fy the parties ' property a s either separ ate or marital property before proceeding to an equitable divisi on of the martial estate. Batson , 769 S.W.2d at 856; Wade v. W ade , 8975

S.W .2d 702, 713 (Tenn . App. 1994). According ly, our i nitial inq uiry must be whether t he trial cour t classified t he residence correctly

.
T.C.A. § 36-4-121 provides, as herein relevant, that separate proper

ty is "[a] ll real
a n d personal prop erty ow ned by a spous e before marriag e" and "[i]ncome from and appreciation of

property owned by

a spouse before marr iage exc ept when char acterized as martial property...." Conversely, marital property is defined as:

all real and pers onal pr opert y, both tang ible and intangible, ac quir ed by either or both spouses

during the cou rse of the marriag e up to the date of the final divorce hearing and owned by either or bot h spouses as of the d ate o f filing of a complai nt for divorce, exceptin the case of fraud ule nt conveyance in antici pat ion of filing, and i ncluding any property to which a right w

as acquired up to the date of the final divorce hearing, and valued as of a d ate as ne ar as reasonably possible to th e final divor ce hearing date. (B) "Ma rit al p rope rty " inc lude s in comefr om, and any increase in value du ring the mar riage, of prop erty determined to be separate property in accordance wi th subdivision (b)(2) if each party substantially contributed to it s pres ervation an d appreciation and the value of vested pensi on, r etirem ent or ot her frin ge benefit rights a ccrued durin g th e pe riod of the marriage. (C) As used in th is subsecti on, "subs t antial contribution" may

i nclude, but not be limited to, the direct or ind irect contr ibution of a spouse as homemaker, wage ea rn er, parent or family financi al manager, together

with suc h other

factors as the court having j urisdicti on thereof may deter mine. T.C.A. § 36-4-12 1(b)(1). Thus, according to the definition of mar tial prop erty, the i ncrease in v alue of separate property will o nly be cl assified as marital property when each party substantially contributes t o its preser vation and appreciati on. Wade , 897 S. W .2d at 7 14. Alth ough a "substa ntial con tribution" must be real and significant, it need not be mo netarily commensurate of appreciation. Mahaffey v. M ahaffey , 775 S.W.2d 618, 623 (Tenn. App. 1989).

In the present cas e, Husband's father owned the l and upon whic h the house wa s built long before the parties were married an d such land h as never been conveyed from6

the father

to Husband. Before the parties were married, Husband built the house himself with very little outside help. The house was valued at $70,000 prior to the parties' marriage. After the marri age, Husband added on to the house a second story t hat contained a den, a bedroom, a closet , and a bathroom. H is other addi tions includ ed a garage, a greenhouse, an d a patio. Husband's additions increase d the value of the house by $48,000.

At the conclus ion of the trial , the judge stated: Now the n, with regard to his house. After hearing the test imon y, the historyof it and how i t came aboutand so forth, I'm persuaded that she's not enti tled to any part of the house. It's sort

of a rare thing , but this man built this house virtual ly by himself, wi th s ome hel p from s ome friends and a little bit of labor and maybe a contr act to put the heating and air in or something, which isn't very much. I'm sure she likes i t, it was her home. But it's his hard wor k and sweat. He's buil t it on his father's property, and I can't see that she's entitled to any part of it. She is entitled to som e monetary compensation because of ot her asse ts th ey've accumulated during their marri age, and I've taken a look at that, and I or

der that he pay

her the sum of $25,000.
It appears from thejudge's statements that he did not find either the residence or the increase i n value of the residence to be mar ital propert y.

We agree that t he house was separate proper ty of Husband because he owned and built the house befo re the parties marr ied. It follow s that Wife would only be entitled to part of the increase in val ue upon a showi ng of substantial contribution to its preservat ion and appreciati on. As the trial court noted, this is an unusual case be cause Husband built the house by himself wit h virtually no outside help. However, there is evidence in the record that W ife was a homemaker during most of the marriag e, and that she performed the ma jority of the household chores, such as cooking and cleaning. These acts are sufficient under existin g law toconstitute a "s ubstantial cont ribution." T.C .A. §36- 4-12 1 (b )(1 )(c). Wife is thus enti tled to an equitable di vision of the appreciated value of this property. Accordingl y, we must remand this issue to the tr ial court t o make an equitable distribution pursuant to the factors delineate d in T.C.A. §36-4-121(c).1 Preci se val ue of househol d goods and fu rni shings cannot be d eterm ined from the record. The above

fi gure const it utes an ap proxi mation based upo n the f igur es avai labl e in the r ecord.

2 T he pre se nt v alu e o f H us ba nd 's p en sio n p lan wa s n ot in tro du ce d a t tria l. 7 W e now t urn t o the cour t's d istri buti on of the re main ing ma rtial prop erty. The following table illustrates our understa nding from the record of the court's di stribution of assets: DISTRI BUTION OF MA RITAL P ROPER TY ASSETS HUSBAND W IFE Increase in Value of Reside nce 48,000 -0- Automobiles/Vehic les : 1992 Ford Crown Victoria 19,900 -0- 1987 GMC Truck 6,950 -0- Honda 4-Wheeler -0- 3,000 Household Goods 1 3,000 4,000 Tools/Farm Eq uipment 13,292 50 Checking/S avings Accounts 2,688 Garden/Farm Cr

ops 1,500 Job-Related As sets : (a) DuPont Sav ings Plan 36,626.49 -0- (b) Stock Pl an 3, 895.00 -0- (c) Pension/Retirement Pl an 2 851.00/month -0- DEBTS Car loan 11,011 -0- Castner Knott bill 500 -0- Dental/Medical bills 2,088 -0- CASH SETTLEMENT T O W IFE 25,000 TOTAL 122,252.49 32,000

Wife asserts that

the trial court erred in failing to award her any share of Husband's pension.

The law is

well- established that

the v alueof aspouse's pensi on that accrues during
a marriage is marital prop erty, re gardless of whether thenon-employee spouse made any8

contribution to the pension's value. Batson , 769 S.W.2d at 856; Kendrick v. Kendrick , No. 01-A -01- 930 5-CH- 002 07, 1 994 W L 642 775 (Ten n. Ap p. No v. 16, 1994 ). Acc ordi ngly, T.C.A. § 36-4-121(b)(1) provides that "ma rital proper ty" inclu des income from, and any increase in value during the marriag e of ... the val ue of vested pensi on, retirement or other fringe benefit r ights accr ued during th e period of the marr iage."

Furthermore , recent case law holds that nonveste d retirement benefits are also marital property that is subject to divis ion in a divo rce action, even though n onvested b enefit s are not mentioned i n the statute. See , T.C.A. § 36-4- 121(b)(1)( B); Town er v. Towner , 858 S.W.2d 8 88, 891 (Tenn. 1993); Cohen v. C ohen , No. 01A01-9402- CV00464, 1995 WL 273656 (Tenn. App. May 10, 1995), perm. to a pp. granted 10/16/95.

There are two met hods that have been recognized and approved by this Court for valuing and distributi ng pensions. The choice is discretionar y depending upon the facts of each case. Cohen , 1995 WL at *5. The first is the present valuemethod, wherethe court places a present cash value on the interest that has been acqui red in the pensi on during the t ime that the parti es were mar ried. Kendrick , 1994 WL 111027, at *5. After the court calc ulates the present cash v alue, it shoul d award the pension to the employe e spouse and award marital prope rty of equal value to th e other spouse Id. ; Maha ff y v. Mahaffy , 1989 WL 128 923, at *3 (Tenn. App. 1989).

The second method is the retained jurisdic tion method, w hich requi res the court to maintain jurisdiction over the case and to divide the interest in the p ension when it matures. Kendrick , 1994 WL 1 11027 at *5. This Court f urther elaborated upon this method in Kendrick , statin g:

In some jurisdi ctions, the co urts use this method to determine the nonemployee spouse's share in advance and then enter an order identifying the portion that the spo use will rece ive if and whe n the employee spouse begins drawing his or h e r retirement

benefits. The no nemployee spouse's share is commonly expressed as a fraction or per cent of the employee spouse's monthly

pension benefit. ( citations omi tted)9

In the case at bar , the only ev idence presented to the lower court establ ishing the value of Husband's pension was that at the date of the divorc e tr ial, Husband w ould be eligible to receive $851.0 0 a mon th upon reachin g age 65. Neither par ty attempted to place a present value on this pension, nor di d the court re quest it. Also, the cour t did not mention Husband's pension interest in its discussion of the division of marit al prop erty. We therefore remand this case to the trial court with instructions to value and consider Husband's pension as martial property and to award some po rtion there of to Wife in a manner consisten t with theforegoing di scussion.

Wife next contends

that the trial court impermi ssibl y consi dered fault in it s dist ribu tion of p rope rty.

At trial, after the Husband and Wife had testified, the j udge stated that before other witnesses

testified, he w anted to get dow n to the "meat of the coco nut" and divi de the prop erty. Wife prepared a list of all of the items of personal property that she want ed and Husband agreed that she could have ever ything o n the list. Husband took the remainde r of all propert

y that was not listed by

Wife. The Court then spok e to t he pa rties ' att orne ys in an attemptto arrive at a dollar figure to award to Wife that was adequate to offset the large dis parity i n the divi sion of the proper ty in favo r of Husband. The C ourt stated: I'm not saying that it's an equal dollar value thing, I'm s aying that given all the factual situation in this case , whathe br ough t in, what s he br ough t in, what t hey've done, where it

came from, the whol e nine yard s, the length and duration of thei r marriag e, their rel ativ e degrees of fault

as the case may be, what is an amount of money that in this case is appr opriate for

him to pay he r tobal anceit o ff? The meat of this coconut is to decide how much money is this man goin g to have to pay this woman goi ng ou t of the marriag e. Obviousl y taking into consideration all of the factors that apply in any div orce case w ith regard to the di v ision of a couple' s assets, the length of the marriage, their durations, fault and all those things that normally g o into that deci sion. I'm simply t elling you that she wants certain things, he says she can hav e them, she's g ot them. He's g ot everythin g els e and we've got to decide how much moneyshe's entitled to get...I'm saying she's got v ery little. Look at ho w long t hey've been married, who's at10 fault , so forth, the sou rce of what t hey've got and all.
It is evid ent from the recor d that the judge considered fault in making hi s distribut ion of marital pro perty. Tennes see law uneq uivocall y holds that marital fault may

not be considered as a factor in t he divisi on of marital prope rty. Kelly v . Ke lly , 679 S .W.2d 458, 462 (Tenn. App. 1984); T.C.A. § 36-4- 121(a) (prov iding that martial pr operty shoul d be equitably divided without regard to fault).

T.C.A. § 36-4-121(c) sets forth the factors a cour t should consi der when maki ng an equit able divisi on of mari tal p rope rty:

( c) In making eq uitable div ision of marital property, t he court shall con sider all re levant f actors in cluding: (1) The durati on of the marriag e; (2) The age, physical and mental hea lth, vocational skills, emp loyab ility, earning capacity, estate, fin a ncial liabi lities and financial needs of each of the parties; (3 ) The tangible or intangi ble contribut ions by one (1) part y t o the education, tra ining or increased ear ning power of the ot her part y; (4) The re lat ive abil ity of each par ty for future acquisitio n of capital asset s and income; (5) Th e cont ribution of each pa rty to the acquisiti on, preservat ion, app re ciation or di ssipation of the mar ital or separate property, i ncludi ng the contri bution of a party to the marr iage as homemaker, wage earner or parent, wi th the contribution of a party ashomemaker or wage earner t o be given the same weig ht if each party has fulfilled his

or her rol e; (6) Th e valu e of the s epa rate prop erty o f ea ch pa rty; (7) The estate of each party at the time of the marr iage; (8) The economic circumst ance s of e ach party at the time the divisi on of property is to become effective; (9) The tax

consequences to each party ; and (10) Such other factors as are necessa ry to co nsider the equities bet

ween the part ies. T.C.A. § 36-4-121(c).

Under the terms of the g overning statute, the lower court may properly consider the fol lowin g item s of evide nce i n ma king a distr ibut ion o f th e pro pert y: (1) The parties were married twelve years; (2) Wif e is in poor physical and mental health, ha s a high school education, and had a much smaller estat e prior to t he marriage; (3) Wif e does not appear to be capable of securing employmen t at subst antial ly abo ve11

minimum wage; Husband makes $ 40,000 a year; (4) Wif e was the primary spouse that co ok ed, cleaned, and cared for the chil dren during their marri age; (5) The tax consequences to each party regarding Husband's job-relate d assets.

This case is remanded wi th instructi ons to the low er court to di vide and distribute the martial prop erty witho ut regard t o fault, and to consi der the above factors in makin g its determination.

III

Wife argue s that the lower court erred i n granting custody of both children to Husband. Wife contends that because Husband w as not the natural father of Davi d, the court should ha

ve awar ded custody t o Wife in the absence of a showing that she is unfit

.
Assuming that Husband is not the n atural fathe r of David, Wife is correct that a custody analysis should not proceed under th e usua l "best interest of the child" analysis. The proper standar

d to be applied in a c ustody dis pute between a n atural parent and one who is nota natural parent was espo used by theTennessee Supreme Cou rt in three recent decisions.

The first of these decisions was Bond v. McKenzie , 896 S.W.2d 546 (Tenn. 1995), in which thecustody di spute was be tween an adopti ve couple and the natural mother . The Court relied upon i ts previ ous decisions in Hawk v. H awk , 855 S.W.2d 573 (Tenn. 1993), and Nale v. Rober

tson , 871 S.W.2d 674 (Tenn. 1994), in holdi ng thatthere exi sts a consti tutional privacy right in the parent-child relationshi p. Id. at 547. Because of this righ t to priva cy, the Court held, a state w ill lack a sufficiently

compelling justificati on to interfere w ith the parentchild relationshi p when no substantial harm thr eatens the chil d's welfare. Id. at 548 (citi ng Hawk , 855 S.W .2d at 577). The Court succinctly stated th e custody rule as follows:

[I]n a contest between a parent and a non-parent, a pare nt ca nno t be d epri ve d of th e custody of a12 child unless th ere has b een a f inding, after notice required by due process, of s ubstantial har m to the chil d. Only then may a court enga ge in a general 'best in terest of the child' evaluation in maki ng a de term inat ion o f cu stod y. Id. at 548.
The second decision was Petroskey v. Keene , 898 S.W .2d 726 (Tenn. 199 5), where the child's natural father and th e child's maternal grandmothe r b attled for cu stody. Id. at 727. The Cou rt s et out t he law from Bond and held that the n atural father was entitled to custody because there w

as no evidence that the child was in danger of substan tial harm in his custody. Id. at 869. Therefore, the Cour t held, a "best i nterest of the child" determi nation was not nece ssary. Id.

Fina lly, in Simmons v. Simmons , 900 S.W.2d 602 (Tenn. 1995), the Cour t held that in a visit ation dispute bet ween the natural mother and adoptive hus band and the parents of the natural father, a court must engage in the threshold i nquiry of whether ther

e exists the danger of substantial har m to the child be fore proceeding to a best interest analysis

. Id. at 684.

The effect of these decisions is to obligate a court first to determine whether a child would be exposed to a danger of substant ial harm in the custody of the natural parent. If the
answer to this ini tial inqui ry is n o, then a best interest of the child anal ysis w ill be prec luded and custody

wi ll remain w ith the natural parent. If, on the other hand, there is a finding of substantial harm to the child, a court may then engage in a bes t interest of the child evaluation t o determine cust ody. Bond , 896 S.W. 2d at 548.

The above decis ions had not been rendered at the time of the trial and thus, the tr ial court did not make an ex plicit findi ng that the child was in danger of substantial har m. The court did, however, fully explain its ration ale for itsawarding cus tody to Hu sband. The jud ge stated: [B]ased upon all the pr oof before the Court, I absolutely cannot in good cons cience award custody of these children to this woman. I'm aw are that her

family loves13 her , I'm aware she loves her children. But how in the world, in the choicebetween thi s man and her, can I give these children to this woman w ho has been in and out of varioushospitals, w ho h as all these medical problems, h as tak en 20 some odd different medi cations, w ho abuses laxatives, takes 15 to 20 laxat ives a day, one of these records shows 20 a day and so forth , who is anorexic, who lets her weig ht get way down and h a s to be a dmi tted. And she's out and she's readmitted, and takes all these drugs on depr ession. She's

on this drug; she had t his ca r wr eck; she says you can drink al cohol with it...I can't

turn these chi ldren over to s omebody like that. ..She doesn't k now when she's going to go off on one of these tangents . If she's got the children an d she's at herself, fine. B ut what if she goes in to one of these fits of depress ion? W hat if she start s taking a bunch of d rugs? W hat if she's on drugs and drinks? What if s he gets out and has a wreck and kills the ki d s or does somet hing else to them? She i s simply not stable enough..

. Where a trial judge has reached the correct result, it will not be reversed because he may have p redicated it on an erroneousreason. Pearson v. Garrett Financial Services, Inc. , 849 S.W.2d 776, 780 (Tenn. App. 1992). The judgment may simply be affirmed on the prop er basis. A llen v. National Bank of Newport , 839 S.W.2d 763, 765 (Tenn. App. 1992).

It is ap parent from the jud ge's statements that while he did not ma ke a specific finding of substantial harm to the children, heimplicitl y found the chil dren to be in dang er of substantial harm with the W ife. Regardless of which st andard the court applied, cust ody of the children belongs with the Husband. This result is substantiated by ample evidence in the record. W e therefore af firm the court's award of custod y of both ch ildr en to Husband.

For the foregoing re asons, the judg ment of the trial court is affirmed i n part and reversed in part, and t he cause remanded for fur ther proceedin gs consiste nt with this opinion. The costs of appeal are assessed equally against both parties.

HIGHERS, J.14

CONCUR:

CRAWFORD, P.J., W.S.

FARMER, J.