# FILED
November 9, 1998 Cecil W. Crowson Appellate Cou rt Clerk CATHY P. McMANAMAY, ) ) Montgomery Chancery Plaintiff/Appellee, ) No. 97-01-0151 ) VS. ) ) CHARLES T. McMANAMAY, ) Appeal No. ) 01A01-9802-CH-00081 Defendant/Appellant. )

IN THE COURT OF AP PEALS OF TENNESSEE AT NASHVILLE APPEAL FROM

THE CHANCERY COURT OF MONTGOMERY COUN TY AT CLARKSVILLE, TENN ESSEE HONORABLE CAROL A. CA TALANO, CHANCELLOR
Gregory D. Smith One Public Square, Suite 321 Clarksville, Tennessee 37040 ATTORNEY FOR PLAINTIF F/APPELLEE
Mark A. Rassas Julia P. North RASSAS & RASSAS P.O. Box 361 Suite 104, Glenn Building Clarksville, Tennessee 37040 ATTORNEYS FOR DEFENDANT/APPELLANT



### AFFIRMED IN PART; VAC ATED IN PART; AND REMANDED.

HENRY F. TODD PRESIDING JUDGE, MIDDL E SECTION

CONCUR IN SEPARATE OPINION: WILLIA M C. KOCH, JR., JUDGE WILLIA M B. CAIN, JUDGE-2-

CATHY P. McMANAMAY, ) ) Montgomery Chancery Plaintiff/Appellee, ) No. 97-01-0151 ) VS. ) ) CHARLES T. McMANAMAY, ) Appeal No. ) 01A01-9802-CH-00081 Defendant/Appellant. )



## O P I N I O N

In this divorce case, the defendant husband has appealed from a decree a warding the plaintiff a divorceon grounds of irreconcilable differences and dividing the marital estate. The husband has prese

nted the issues in th

e following for

m:
1. The Trial Court rushed the trial, making

it difficult for the defendant/appellant to fully present his case. 2. The Tri al C our t er red b y a ward ing the plaintiff/appel l ee an interest in the defendant/appellant’s sep arat e pro pert y. 3. The Trial Court

erred in refusi

ng tomake any division in marital property that was held solely in the plaintiff/appellee’s name. 4. The Trial Court erred in awarding the

divorce to the pl ai ntiff/appellee d espite overwhel

ming grounds in favor of the def

endant/appellan

t.
First Issue : Rushed Trial

The trial began a t 2:3 0 p.m. , Dece mber 1 0, 199 7. It was concluded at 6:15 p.m. During the direct examination of the wife, the Trial Judge stated:

Now we need to move along. I have an eng agement at 5:30. At the conclusion of the direct testimony of the wife, the Trial Judge stated:

It’s a quarter to 5:00.-3-

Later, during the testimony of the husband, his attorney stated:
Her honor did say she needed to leave at 5:30.
The Trial Judge responded:

I said I had an enga gement, which I do, but I can’t leave because

we are in this lawsuit. Shortly thereafter, the Trial Judge stated:

All right, you don’t

have to put this in the record. I do have another engag

ement at 6:30, a dif

ference --- t

his o ne I intend to make, because that’s supper.
Thereafter

counsel presented their arguments, the Trial Judge announced her decision andthe trial was concluded without any request for further opportunity to present evidence on the sam e day o r a s ubs equ ent day.
On January 13, 1998, the Trial Court entered a Final Decree of D ivorce.

On February 12, 1998 , the husband filed a “Memorandum in Support of Defendant’s Motion for Specific Fin

dings and to

Alter or Amend.” Neither the motion nor the memorandum containedany refer

ence to a hurrie

d tri al or request for additional opportunity to present evidence.

The Trial Judge has broad discretion in the conduct of trial pro ceedings. Justice v. Sovran Bank , Tenn. App. 1995, 918 S.W.2d 428. If there was any indication that the parties had not been f

ully heard, at the time of adjournment, the trial should have been recessed to a l ate r date. Where there is nothing to show that a party made application to the trial cour t fo r additional time to adduce evidence, error in not extending the time cannot be urg

ed on appeal. Sewell v. Draughhon , Tenn. Ch. App. 1897, 44 S.W. 210.-4- No merit is found in appellant’s first issue.

Second and Third Issues : Division of Proper ty

Prior to the trial, on April 14, 1997, the wife’s attorney wrote the following letter to the husband:
RE: PROPOSED SETTLEMENT, Case # 97-01-0151

Dear Mr. McM anam ay: After speaking with your wife,we arein the position to make the following offer of settlement. If y ou are willing to give Ms. McMana

may the follo

wing items,we cansettle this case without the time, expense and ill-feelings ofa fullblown trial. Said items are: 1. Half

(1⁄2) the equity of prope r ty owned on Gallant Road, Eddyville, KY. 2. Half

(1⁄2) the equ ity of property owned on Stratford Way, Clarksville, TN. 3. Yamaha Jet Ski with Trailer 4. Payment for patio furniture 5. Payment for or return of Vacuum Sweeper 6. Payment for or return of camera 7. Moving expense s of $1,3 76.70 for moving four times at your request (to and from). 8. Legal fee

s and court costs
At the trial, counsel for both parti es presente d opening statements in whic h they presented the position of their clients regarding the division of the marital estate. The husband presented a Proposal Pursuant t o Rule 18.0 2 which inc luded the fo llowing:

A. Defendant en tered the ma rriage with t he followi ng:-5- 1. Home in Virginia

- $142,000.00 equi

ty 2. Wi ng ateproperty in Clarksville, Tennessee - $56,000.00 equity 3. Barkley L

ake property

- $48,270.00 equity 4. Bank accounts, including IRA - $31,150.01 5. Loanowed by Cathy to purchase her c ar - $8,345.00 Total assets immediately prior to marriage - $285,765.01. All of the propertie

s were held sing

ly in the Defendant’ s name alone. B. Defendant’s assets as of current date: 1. Bank

accounts, including IRA and money market account - $75,0000 (up date this prior to trial). 2. Barkley

Lake proper

ty - $170,000.00 (by current appraisal $155,0

00.00 by cou

nty assessment). Current assets at this time - $245,000.00. (Does not include furnishings, vehicles, etc.) C. Plaintif f entered th e marriage wit h the follo wing: 1. Apartment

six-plex in Elizabeth town, Ken tuc ky - $ 21, 550 .00 equ ity. 2. House in Hudson, Kentucky - $25,000.00 3. Thrift Savings Plan - $2,601.00 4. Civil Service Retirement annuity - $31,318.32 per year. 5. Savings and other cash - $5,000.00 app rox ima tel y. 6. Putnum Securities - $3,331.55 Total Assets immediately prior to marriage - $88,800.87 D. Plaintiff’s assets as of current date: 1. House

in Hudson, Kentucky - $35,00 0.0 0 county asse

ssment. 2. Thrift

Savings Plan - $22,933.62 as of 9/30/97-6- 3. House

in Sharpsburg, Georgia - $121,000.00 ($6,500.00 equity). 4. Civil Service Retirement annuity - $44,578.18 per year. 5. Savings and other cash, including certificates of dep osit - $32,000.00 (Note: There is a deposit and withdrawal of $10,000.00 a n d $10,344,08, shown on Plainti f f’s statement from Federal

Employees Credit Union on July 2, 1997, which is not included. ) 6. PutnamSecurities - $12,783.00 as of 6/30/97 Current assets at this time - $153,795.00 The Defendant submits

that he has had a n

et decrease i n the items in his name from the marriage of $33,988.00, while the plaintiff has had a

net increase of $60,199.00. An equitable division would be fifty percent (50%) of the appreciationin the assets, mea ning th at the Plaintiff sho uld pay to the defendant the sum of $30,100.00. III. Other Items A. Items in posses sion of Defendan t: Date of Item Purchase Cost Value 1989 Pontoon Boat 02/97 $3,000.00 $3,090.00 As ses se d 1995 Suzu

ki A TV 08/95 $4,875.00 $3,550.00 Avg reta i l 1995 Jet Ski w/Tri 06/95 $6,650.00 $3,200.00 Av g ret ai l Patio Furniture 09/93 $1,100.00 $ 500.00 1975 Aluminum Boat 09/94 $ 500.00 $0-non re pairable Total valu e ...................................... ...................... $10,340.00 B. Items in possession of Plaintiff:

Date of Item Purchase Cost Value 1995 Pontoon M tr, Tri 06/96 $8,000.00 $9, 500.00 Living Room Furniture 03/94 $3,622.00 $3, 622.00 Living Room La

mps 03/94 $1,200.00 $1, 200.00 Living Room Tables 03/94 $1,150.00 $1, 150.00 Porch Rockers 12/94 $ 150.00 $ 200.00 Boos R adio 05/96 $ 400.00 $ 400.00 Vacuum Sweeper 10/95 $ 380.00 $ 300.00 King Mattress & Springs 03/94 $1,100.00 $1, 100.00 Tread mill 07/96 $1,000.00 $1, 000.00 Small Kitchen Appli

ances 03/94 $ 300.00 $ 300.00 Dishes --/95 $ 300.00 $ 300.00 Bed & Bath Linens 03/94 $1,000.00 $ 500. 00 Total Value .
.... .... .... .... .... .... .... .... .... .... .... .... .... .. $19,572. 00 The defendant prays that he be gi ven an amount of cash by the Plainti

ff to e qual the discrepancy in the value of-7- the items that he has received , that being an additional $4,616.00.

The testim ony of the wife i ncludes th e followin g:

A. We had -- actually, we have a l ong history together, about eight

or nine years. But we actually moved in together in -- August of 1991. I moved out then in

July of 1992. We began dating against in the last of October of 1992. And, probably, from January 199 3 until the time we married, while

we kept separate ho

useholds, we esse

ntially stayed together and then in 1993, married. We separated the first time in September o f 1995, m oved ba ck and forth a number of times, but no real -- we weretrying to w

ork things out with

the marriage, and

finally separated permanently November of 1996.

- - - - I mov ed out of the house on Landon Road into 551 Str atf ord Way. Q. And that was his residence? A. Yes, it was.

- - - - Q. Was your name on the deed on that house? A. No, it was not. Q. Now, w hen did you put your name on the mortgage for the Stratford Way house? A. Just

shortly after we married in 1 993. Tom wantedto refinance the

home , and he asked me to go sign the mortgage to have it refinanced.

- - - - Q. Af

ter you were married and y ou start e d actively taking part in th

e upkee p of this house, whe n did you file torefinance the h

ouse and put it in

your name or put the mortgage partially in y our name? A. It was sometime before 15 of September, 1993.

- - - - Q. Andyou continue d to upkeep and mai

n tai n that -- the house was sold in, you said, February of ‘97? A. Yes. Q. How much equity came from

the sale of this house?-8- A. I believe that there was about $60,000 after the Realtor fees
. Q. Did

you have to sign paperwork for that sale to be made possible? A. Yes. Q. How much of the $60,000 equ ity did you get from the sale of the Stratford Way house? A. None. Q. Now, there was the house in Virginia. Did you make any sort of -- Did you g o in on any sort of loans on that after you got married?

- - - - A. I assu med a somewhat larger portion of the bills during thetime that that was on the market to assist withthat, and then also went up for a week or so and helped Tom prepare the house for sale. Q. Andabout how l ong was the house in Virginia up for sale that you were having to pay extra bi lls just so that that didn’t go into a foreclosure? A. I believe it was about September, October of 1994. And it sold, I think, in May or June of 1995. It was on the market for an extended period. Q. Approximately

how much equity

came out of the sale of that house? A. None.

- - - - Q. Now, the one I want to focus on is

the house in Eddyville, Kentu cky. You were referring to it as Lake Bark ley.

- - - - A. In April of 1993, we met, I gave them a

down payment of $2,500 on the property , and we bought th e lot, andthen proceeded

to make arrang

ements to have a home built there. Q. Now, was the deed put in your name, Colonel McManamay’s name or both? A. In Mr. McManamey’s name.

- - - - Andthen we actually borrowed the mo ney and signed the final note for the loanon the house, I believe, in January of 1994. Q. How much was the note for? A. $125,000.-9- - - - - Q. And your name is on the mortgage? A. Yes, it was. Q. Did

you ever put your name on the de ed to the land itself? A. No.

- - - - Q. Andwhen was it paid of f in full; do yo u remember? A. It was paid off in full in April of 1997.

- - - - The Lake Barkl

ey proper ty, in additio

nal to the down payment on the lot, I made the house payments on t h at for the time period that I live there -- until Sept ember of 1995. And I paid the utili

ties, the -- boug

ht appliances, ve

rtic a l blinds, l inens, deco rating, lan dscaping.

- - - - I think the house in Eddyville is worth $200,000. Q. How much are you asking the Court for of tha t $2 00, 000 in e qui ty? A. I’m

asking the Court for half of the equity in that home at the time that it was paid off. Q. And, as I sa

y, the house is paid off com ple tel y? A. Yes, it is.

- - - - Q. Can you tell us ab out the to tal amount of sav ings tha t you hav e is tod ay? A. I can tell you that the two -- the $20,000 CDS that we’ve talked about were given to me by my mother for holding.

- - - - Q. Based

on the assessment v

alu eyou’ve gotten, your house in Hudson, Kentucky has gone up too, hasn ’t it? It’s gone up $10,000 during the marriage? Ms. McM anam ay, that was realestate that y ou held in your name

, correct? A. Yes. That is my mother’s property, and she takes care of the maintenance and so forth. Q. Now, you sold that six-plex in Elizab ethtown, Ken tuc ky?-10- A. Yes. Q. How much did y

ou get for that? A. I gave you a closing statement on that. I think my -- I think my

amount with the -- f

rom the proceeds

came out to about $21,000.

- - - - Q. No w, the Hudson, Kentuc ky house, is th

a t your mama’ s? A. That’s my mot

her’s. Q. The six-plex in

Elizabethtown, whe

n did you sell that? A. I sold that right at the time wemarried within days of the time we married in August of 1993. Q. Andyour husband never put any money towards that? A. No, he did not. Q. He nev e r put any money towards Hudson, Ken tuc ky? A. No.
The testim ony of the husb and includ es the foll owing:

Q. Now, during the time of the marriage, did she ever make any mo

rtgage payments on t

he Wingate prope

rty at all? A. No, she did not. Q. Did

she make any of

the payment

s on the lake hou se p rop ert y? A. She made some pay ments on that. I believe she indicated 18, and

I think that’s a

bout right,from March of ‘94 through September of ‘95.

- - - - Q. How did you

have $48,270 in equity when you bought the lake property before y ou married? A. The land was paid for clear and free. And the house was bought under construction. And tha t’s the costs that I had paid out

at that point in time on the construction of the house.

- - - --11- Q. So you walked into this marriage, byyour figures,with $285,000-plus in total assets, not counting your fu rnishings, personal belongings, sporting goods and so forth? A. That is correct, sir. Q. Andif I flip down to Sub B of th at, as of the current date, y

ou have -- and I

said, update

this prior to trial, butyour total ban

k a ccounts, IRAs, and other information now is approximately $75,000? A. That’s correct

, Mr. Rassas. Q. Now, your opinion of the value of the Barkley lake property is how much?

- - - - A. I believe it’ s closer to $170,00 0, Mr. Rassas. Q. So, if we take your value of yo ur assets now, it’s $245,000? A. That’s correct

.
The Rule 15 Schedul

e of the wife is as

follows: Marital Cathy’s Appellan t’s Court’s Awarded Prope rty Value Value Value To Lake Barkley

$200,000 $170,000 $170,000 Equity Split ($50,000 equity) or $0 eq uity ($28,000 equit y) 50/50 [R. 18:18.02] [R.21:18.02] [R. 46:Jud gment] H ouse to Appellant [and Tr. 31-33] Hudson, KY Not a mari tal ass et $10,000 Not a marital as set Not a marit al [Tr. 112, lines 5-9] [R. 21: 18.02] [R.47:Ju dgment] asset [off-sets a loan] Virginia $125,000 $142,000 $142,000 Appellant House [R. 18:18. 02] [R. 21:18.02] [R. 46:Ju dgment] Sharpsburg , $6,500 $6,500 $6,500 Cathy GA Ho use (Dow n Paymen t) (Down P ayment) (Down P ayment)

[Tr.39, l

ines 17- 24] [R.21:18.02] [R.47:Ju dgment] Elizabet h- $8,000 $21,550 $8,000 Cathy town, KY [Tr. 122, line s 15-20] [R. 21:18.02] [R.47:Ju dgment] Six-plex The Rule 15 Schedul

e of the husband is

as follows: Marital Plaintiff/ Defenda nt/ Value Found Property Awarded Prope rty Appellee’s Value Appellant’s Value by Trial Court by Court t o Appreciati

on $200,0 00 Purcha sed with $45,000 Defendant in valu e of pre-marital assetsDefendant’s No Appreciat ion lake house-12- Marital Plaintiff/ Defenda nt/ Value Found Pr op erty Awarded Prope rty Appellee’s Value Appellant’s Value by Trial Court by Court t o Appreciati

on $60,000 $56,000 $31,000 Defendant in valu e of Defenda nt’s Stratford Way house Appreciati

on $10,000 $10,000 Not Considered Plaintiff in valu e of ($25, 000 at t ime Plaintiff’s of marr iage-$35, 000 Hudso n, KY currently)

- - - - Appreciati

on $6,500 $6,500 Not Considered Plaintiff in value in Plaintiff’s Sharpsburg, GA house Equity in $21,000 $21,550 Not Considered Plaintiff’s Eli zabetht

own,KY Prope rty

- - - - Increase $20,332.62 $20, 332.62 Not Considered Plaintiff in value in Plaintiff’s Thrift Savings Plan Increase Unknown $13,259- 83 Not Considered Plaintiff in valu e of Per year increase Plaintiff’s Civil Servi

ce Retirement Increase $6,000 $26,000 Not Considered Plaintiff in valu e of (Disputed whet her Plaintif f’s Misc. $20,000 in CD’s was Savings Accts. Plaintiff’s or her mother’s)

- - - - Increase $9,451.45 $9,451.45 Not Considered Plaintiff in valu e of Plaintiff’s Putnum Securiti

es Court awarded $22,500 additional cash to Plaintiff for equity in Lake H ouse a nd $15,000 cash for equity in Stratford Way house.

- - - - PERSONAL BELONGI NGS 1995 J et Ski w/Trailer $5,000 $3,200 Defendant 1995 Suzuki ATV $3,500 $3,550 Defendant 1975 Aluminum Boat $700 $-0- ( cannot be r

epaired - Defendant scrap value on ly) Patio Furniture $1,000 $500 Defendant 1989 Pontoon Boat Not Given $3,090 Defendant-13- Marital Plaintiff/ Defenda nt/ Value Found Property Awarded Prope rty Appellee’s Value Appellant’s Value by Trial Court by Court t o 1994 Truck $15,000 $8,500 (traded in tr uck Defendant owned prior t

o marriage

for $6,500) TOTALS $25,200 $18,840 (Defendant’s

Property) Plaintiff’s/ Appellant’s Car No Value $6,400 Plaintiff 1995 Claims So ld $9,500 Plaintiff Pontoon for $6,500 Boat, Motor, to Brother Trailer Living r oom furniture $1,200 $3,622 Plaintiff Livin g room lamps $375 $1,200 Plaintiff Living r oom tables $400 $1,150 Plaintiff Porch rockers $100 $200 Plaintiff Bose ra dio $ -0- $400 Plaintiff Vacuum sweeper $170 $300 Plaintiff King mattress $300 $1100 Plaintff and springs Tread mill $200 $1000 Plaintiff Small kitche

n appliances $10-$15 $300 Plaintiff Dishes $ -0- $300 Plaintiff Bed & bath linens $300 $500 Plaintiff TOTALS $9,560 $25,972 (Plainti ff’s Propert

y) Court awarded $7,500 additional cash to Plaintiff t o equalize value of truck
. The husband is a retired colonelof the U.S. Army . The amount of his r

etirement pay

is notstated. The wife is 18 years young er than the husband and earns $60,000 per year. They
weremarried four years. T.C.A. § 36-4-121(c ) s tates factor s for consideration in division of marital estates. Fisher v. Fisher , Tenn. 1983, 648 S.W.2d 244.

In 1991, the husband purchased a home on Stratford Way

in his own name

for $135,000. The wife made no contribution to the purchas e price but she was obligated on the loan and-14-

shared expenses of mainte

nance. The wife valued the equity in the house at $60,000. The husbandvalued it at $56,000. The court valued it at $31,000 and assi gned the property to the husband.
Also, prior to the marriage, the husband purchased unimproved land at Eddyvil

le, Ky. The wife furnished the earnest money for the pur chase , which husband repaid. A house was
erec ted t hereon during the marriage. The wife paid $7,900 on the construction loan and performed

landscaping. The wife valued the equity in the house at $200,000 . The hu sband insisted that the property did not appreciate during the marriag e. The Court

valued appreciation at $28,000 and awarded the house to the husband.

The husband owned property in Virginia of unstated value in which the wife claimed no interest.

Prior to the marriage, the wife owned three rental properties, designated as H udson, Sharpsburg and Elizabethtown. The parties agreed that the apprec iati on of these properties during the marriage was $10,0000, $6,500 and $21,0 00, respectively, a total of $37,500, but there is no evidence that the husband contributed to the preservation or enhancemen t of th ese properties. The

husband is not entitl

ed to any pa

rt of the apprec

iation of these pr

operties.

The Trial Court found that the appreciation in value of t he h usband’s Stratford and Eddyville homes, totaling $59,000 was part of the marital estate, one-half of which would be $29,500. He awarded the wife the $7,900 pa

id by the wife

on the Eddyvi

lle mortgage. $29,500 plus $7,900 is $37,400 which is $7600 less than the $45,000 awarded to the wife. Thus, the wife received approximately 60% of the appreciation.

Exactequality of division of the marital estate is not required. Bookout v. Bookout , Tenn. App. 1997, 954 S.W.1997. See also, T.C.A. § 36-4-121(c). Considering all r elevant factor

s, this-15-

Court i s unable to ascertain from the evidence in this record what an equitable division of th e martial estate should be. Pursuant to TCA §§ 27-3-128, 129, the cause is remanded to the Trial Court to hear further evidence and to adjudge an equitable division of the marital estate.

On r ema nd, jud gmen t wi ll b e ent ered acco rdi ngly.

Fourth Issue : Award of Divorce to Wife

The divorce decree conta ins the fol lowing:

7. Plaintiff

should be granted

a divorce on grounds of inappropriate marital conduct due to Defendant physically striking Plaintiff in the summer of 1996 leaving heavy bruising on Plaintiff’s body. The

Court also considered the fact that both parties committed adultery during marriage. Since both parties were guilty

of adultery, the Court did not consider these acts aga

inst either party and a

warded the wife

a divorce on gr

ounds of inappropr

ia te m arital conduct consisting of physical battery by the husband.

The husband insists that he is entitled to a divorce because of the wife’s admitted adu lte ry, citing T.C.A. § 36-4-101(3). The husband admits adultery after th e separation and before the divor

ce. T.C.A. § 36-4- 112 provides:
36-4-112 - Defense when ground is adultery
. If the cause

a ssigned for divo

rce is adultery

, it is a good defense and per

petu al bar to the same if the defendant alleges andproves that: (1) Thecomplainant has be en guilty of like act or crime.
The clear intent of the statute is that either spouse, plaintiff o r defendant, may
succ essfully

re sist a charge of adultery by proving like conduct on the part of the accusing spouse.-16- Therefore, it was not error for theTrial Judge to disregard the adultery of both parties and to grant the divorce to the wife on proven grou nds of extreme cru elty of the h

usband in committing a battery upon the body of the wife
. No merit is found in the fourth issue presented by the husband.

The judgment of the Trial Court as to divi sion of m arital property is vacated, and the cause is remanded to the Trial Court for further pro

ceedings in

conformity with the opinion of this Court. Costs of this appeal are taxed equally. That is, each party sha ll pay one-half.
AFFIRMED IN PART; VACATED IN PART; AND REMANDED.

_________________________________ HENRY F. TODD PRES IDIN G JUDGE, MIDDLE SECT IO N

CONCUR IN SEPARATE OPINION: WILLIA M C. KOCH, JR., JUDGE WILLIA M B. CAIN, JUDGE