Court of Appeals Opinions

Format: 12/22/2014
Format: 12/22/2014
Bonnie Ellen Pierre v. Edward Joseph Pierre
E2013-01864-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Richard R. Vance

In this post-divorce case, Edward Joseph Pierre (“Husband”) appeals the trial court’s decision refusing to grant him relief under Tenn. R. Civ. P. 60.02. Husband argues that the trial court’s divorce judgment based upon irreconcilable differences should be set aside and the case reopened because the parties’ marital dissolution agreement (“MDA”), which was duly approved by the trial court and incorporated into the judgment, allegedly fails to equitably divide the marital estate. Husband voluntarily signed the MDA before a notary public but declined to read it before he signed it. Finding no grounds for Rule 60.02 relief, we affirm the judgment of the trial court.

Sevier County Court of Appeals 10/30/14
Walter Allen Gault v. Jano Janoyan et al.
E2014-00218-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor Michael W. Moyers

This case concerns a boundary line dispute. Walter Allen Gault (“Plaintiff”) sued Jano Janoyan and Pinnacle Bank (“Defendants”) seeking a declaratory judgment 1 that, by way of adverse possession, he is the rightful owner of a triangle-shaped piece of land, 41.59 feet at its base and approximately 302 feet on each of its two sides. The disputed area is within the deed boundaries of the property owned by Janoyan, the Plaintiff’s next door neighbor. (See attached exhibit.) The parties’ properties are in Forest View, a residential subdivision in Knoxville. Defendants filed an answer and a counterclaim for ejectment and quiet title to the property. Both parties moved for summary judgment. After a hearing, the trial court granted summary judgment to the Defendants. Plaintiff appeals. We affirm.

Knox County Court of Appeals 10/30/14
Carol Payne McKinnis v. Sandra Kim Hammons
E2013-02733-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor John C. Rambo

Carol Payne McKinnis (“Seller”) brought suit against Sandra Kim Hammons (“Purchaser”) to enforce an oral contract for the sale of real property. Seller sought a judgment for the amount allegedly due under the parties’ agreement. Purchaser moved for summary judgment based on her contention that the action was barred by the Statute of Frauds as codified at Tenn. Code Ann. § 29-2-101(2012). The trial court granted the motion. We vacate the judgment and remand for further proceedings.

Johnson County Court of Appeals 10/30/14
Sherry Harper v. Bradley County, Tennessee
E2014-00107-COA-R9-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Lawrence H. Puckett

The issue presented on this appeal is whether a plaintiff who brings a health care liability action against a governmental entity under the Governmental Tort Liability Act (“the GTLA”) is entitled to the 120-day extension of the statute of limitations provided by Tenn. Code Ann. § 29-26-121(c)(Supp. 2014) under the current version of the Health Care Liability Act (“the HCLA”). This inquiry focuses on the effect of the 2011 amendment to the HCLA that expressly includes “claims against the state or a political subdivision thereof” within the definition of “health care liability action.” Applying the principles set forth by the Supreme Court in Cunningham v. Williamson Cnty. Hosp. Dist., 405 S.W.3d 41 (Tenn. 2013), we hold that the 2011 amendment demonstrates a clear intent on the part of the General Assembly to allow the GTLA’s one-year statute of limitations to be extended by 120 days in cases where a plaintiff satisfies the requirements of the HCLA. We affirm the judgment of the trial court denying defendant Bradley County’s motion to dismiss.

Bradley County Court of Appeals 10/30/14
Kimberly Modena Ray v. Roger Lee Ray
M2013-01828-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Larry B. Stanley, Jr.

This is an appeal from a divorce proceeding. The parties were married thirteen years and started a successful business during that time. The husband became disabled during the marriage and was no longer able to work. Following a two-day bench trial, the trial court valued the parties’ marital assets, including the business, and attempted to divide the marital property equally. The court ordered the wife to pay the husband $2,100 per month in alimony in solido for five years. It declined to award attorney’s fees to either party. On appeal, the wife raises several issues regarding the trial court’s valuation and division of marital property, and both parties challenge the alimony award.  The husband also seeks an award of attorney’s fees. For the following reasons, we affirm in part, vacate in part, and remand for further proceedings. Specifically, we affirm the trial court’s division of marital property, and we vacate and remand for additional findings on the issues of alimony and attorney’s fees. We deny the request for attorney’s fees on appeal.

Warren County Court of Appeals 10/28/14
In Re: Jacob H.
M2013-01027-COA-R3-JV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Barry R. Brown

Mother of the parties’ only child filed this action to establish an arrearage judgment for child support owed by Father. At issue is the amount of unpaid child support for the period from April 1998 to September 2012. Mother claims she was entitled to an arrearage judgment in excess of $35,000; Father insists he paid the child support in full, although it is undisputed that he did not pay his support obligation as directed in the 1998 order to the juvenile court clerk. Father initially tendered payments to the clerk; however, at Mother’s request, which is undisputed, subsequent payments were mailed directly to Mother, some of which were remitted by Father’s mother during periods of financial hardship, and most of which were remitted by Father’s wife on a joint checking account with Father. The trial court gave Father credit for all payments remitted directly to Mother, whether remitted by his mother or his wife, for which there was documentary evidence, which totaled $23,742.91, but declined to give him credit for other claimed credits and awarded Mother an arrearage judgment in the amount of $17,337. The trial court, however, did not award prejudgment interest on the arrearage. The court also awarded Mother a portion of the attorney’s fees she had requested. On appeal, Mother contends, inter alia, the trial court erred by giving Father credit for payments that were not remitted through the clerk’s office and for payments remitted by his mother and his wife, for not awarding prejudgment interest on the arrearage, and for not awarding her all of her attorney’s fees. For his part, Father contends the trial court erred in not awarding him additional credit for child support payments made via one substantial money order and two income tax intercepts. We affirm the trial court in all respects with the exception of prejudgment interest, finding that awarding interest on a child support arrearage is not discretionary under Tenn. Code Ann. § 36-5-101(f)(1). On remand, the trial court is instructed to award prejudgment interest on the child support arrearage judgment as mandated by Tenn. Code Ann. § 36-5-101(f)(1).

Sumner County Court of Appeals 10/28/14
In Re: Andrew O.
M2014-00114-COA-R3-PT
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge J. B. Cox

Grandparents filed this petition to terminate Mother and Father’s parental rights and to adopt the child. Mother surrendered her parental rights, and the trial court found that Father abandoned the child by willful failure to visit and failure to support. The trial court also found termination of Father’s parental rights was in the child’s best interest. The evidence supports the trial court’s finding that Father abandoned the child by willful failure to visit, but the record does not clearly and convincingly establish that Father’s failure to support the child was willful. We also find that termination is in the child’s best interests; therefore, we affirm the termination of Father’s parental rights.

Lincoln County Court of Appeals 10/28/14
Rebecca A. Dixon Tatum v. Don Baron Tatum
E2013-02462-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Lawrence H. Puckett

This appeal arises from a divorce action. Following a hearing, the trial court awarded a divorce to both parties on the ground of inappropriate marital conduct. The court also awarded transitional alimony to Wife. Wife appeals the court’s finding that she engaged in inappropriate marital conduct, while Husband appeals the court’s award of alimony to Wife. We affirm the decision of the trial court.

Bradley County Court of Appeals 10/28/14
Romelio R. Ruiz v. Sheila Lea Ruiz
E2013-02142-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: JudgeW. Neil Thomas, III

In this divorce case, the appellant Sheila Lea Ruiz (Wife) argues (1) that the trial court erred in its calculation of the net marital estate, and (2) that the award of alimony to her should have been in futuro rather than for a fixed five-year period. We hold that, although the trial court unintentionally charged Husband twice with an indebtedness arising out of a loan he took out against his 401(k) retirement account, the overall division of the net marital estate is equitable when the true total value of the net marital estate is considered. Regarding alimony, we hold that, considering the relevant statutory factors, particularly the some 30- year duration of the marriage, the state of Wife’s health, the huge disparity in the parties’ earning capacities, Wife’s need for support, and Romelio R. Ruiz’s (Husband) ability to pay, the alimony award should be modified to make it an award in futuro. Accordingly, we modify the alimony award by changing it from $1,300 per month for five years to $1,000 per month in futuro until Wife dies or remarries. We remand this case to the trial court for a determination of Wife’s reasonable attorney’s fees at trial and on appeal, said awards to be in the nature of alimony in solido.

Hamilton County Court of Appeals 10/27/14
Chris Tavino v. Victoria Ashley Spear Tavino
E2013-02587-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor Michael W. Moyers

This case involves a post-divorce petition to modify the parties’ permanent parenting plan as to their minor child and to terminate the child support obligation owed by the father. The parties were divorced in 2002. The original permanent parenting plan designated the mother as the primary residential parent, awarded co-parenting time to the father, and set the father’s child support obligation in the amount of $1,158.00 monthly. In April 2011, the father petitioned for a modification of the parenting plan and child support, averring that the oldest child had reached the age of majority and that the youngest child had been residing exclusively with the father since October 2009. In February 2012, the trial court entered an agreed permanent parenting plan designating the father as the primary residential parent and an agreed order terminating the father’s wage assignment but reserving the issue of child support. In July 2012, following a settlement conference and a subsequent hearing, the trial court entered another agreed order providing, inter alia, that the mother begin paying the father $409.00 monthly in child support. Additionally, the mother was ordered to pay $500.00 monthly toward a total award of $20,057.00 owed to the father, including a child support arrearage of $6,135.00, reimbursement for child support overpayments in the amount of $10,422.00, and $3,500.00 toward the father’s attorney’s fees. The mother’s counsel withdrew representation pursuant to the agreed order. Acting without benefit of counsel, the mother subsequently filed a petition in October 2012, averring that her income had been
misrepresented for purposes of calculating her child support obligation. Following a bench hearing, the trial court entered an order in March 2013, finding that the mother had failed to allege a change in circumstances warranting a modification of her ongoing child support obligation. Approximately four months later, the mother, acting through her current counsel, filed a Tennessee Rule of Civil Procedure 60.02 motion to alter or amend the judgment. In addition to requesting that the trial court set aside the July 2012 agreed order, the mother averred that the father was not parenting the minor child properly.

Knox County Court of Appeals 10/27/14
Gary Guseinov v. Synergy Ventures, Inc, et al
M2014-00213-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor Timothy L. Easter

This case involves the enrollment of a foreign judgment in Tennessee. The trial court granted summary judgment in favor of plaintiff, effectively enrolling the foreign judgment pursuant to the Full Faith and Credit Clause of the United States Constitution and Tennessee’s Uniform Foreign Judgment Enforcement Act. On appeal, the defendant argues that the grant of summary judgment was improper because he allegedly satisfied the foreign judgment.  He further argues that the trial court denied him due process when it declined to conduct an evidentiary hearing. We hold that satisfaction is not a defense to the enrollment of a foreign judgment pursuant to the Full Faith and Credit Clause of the United States Constitution or Tennessee’s Uniform Foreign Judgment Enforcement Act. Further, we discern no due process violation from the trial court’s decision not to conduct an evidentiary hearing. The judgment of the trial court is affirmed.

Williamson County Court of Appeals 10/21/14
In Re: Carrington H., et al
M2014-00453-COA-R3-PT
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge George L. Lovell

This appeal arises from the termination of Mother’s parental rights. After a five-year cycle of removal and failed reunification attempts, the juvenile court awarded temporary custody of the child to the State in 2009, and shortly thereafter, ordered that Mother have no visitation or contact with her child. The court later ratified a permanency plan, but nearly two years later, the Tennessee Department of Children’s Services petitioned to terminate Mother’s parental rights. Following a trial, the juvenile court entered an order terminating Mother’s parental rights on the grounds of: (1) substantial noncompliance with the permanency plan; (2) persistence of the conditions that led to the child’s removal; and (3) incompetency to adequately provide for the further care and supervision of the child. Mother appeals two of the three grounds for termination and the court’s determination that termination was in the best interest of the child. We affirm.

Maury County Court of Appeals 10/21/14
In Re Glory A.W.
E2013-02303-COA-R3-PT
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Dennis Humphrey

William L.W. (“Father”) appeals the termination of his parental rights to the minor child Glory A.W. (“the Child”). We find and hold that the evidence does not preponderate against the Juvenile Court for Roane County’s (“the Juvenile Court”) finding by clear and convincing evidence that grounds were proven to terminate Father’s parental rights for
abandonment by failure to provide a suitable home pursuant to Tenn. Code Ann. § 36-1- 113(g)(1) and § 36-1-102(1)(A)(ii); for substantial noncompliance with the permanency plan pursuant to Tenn. Code Ann. § 36-1-113(g)(2); and for persistent conditions pursuant to Tenn. Code Ann. § 36-1-113(g)(3). We further find and hold that the evidence does not preponderate against the Juvenile Court’s finding by clear and convincing evidence that it was in the Child’s best interest for Father’s parental rights to be terminated. We affirm the Juvenile Court’s February 19, 2014 order terminating Father’s parental rights to the Child.

Roane County Court of Appeals 10/21/14
Mike Cradic v. McCoy Motors, Inc., et al.
E2013-02857-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Chancellor E.G. Moody

This appeal arises from a dispute over payment on a note (“the Note”). McCoy Motors, Inc. borrowed $90,000.00 from A. D. Kinkead (“Kinkead”). The Note provided, among other things, that the loan could be renewed at the end of twelve month periods and that, if Kinkead died before the Note was fully paid, the principal of the unpaid balance would be paid to William L. McCoy, Jr. and Sue McCoy. Kinkead’s attorney-1 in-fact, Mike Cradic (“Cradic”), informed McCoy that Kinkead was demanding that the Note be paid in full. McCoy refused to pay in full but instead continued to make payments on the Note. Kinkead, through Cradic, sued the McCoys in the Law Court for Sullivan County (Kingsport) (“the Trial Court”) to compel full payment on the Note. Kinkead died and Cradic pursued the suit.
The Trial Court found that demand had been made on the Note, and that at the end of the twelve month period during which demand was made, the Note came due and payable. The Trial Court entered judgment against McCoy Motors, Inc., and the McCoys, individually. McCoy Motors, Inc. and the McCoys appeal. We affirm the Trial Court.

Sullivan County Court of Appeals 10/20/14
Herman Roland, Jr. , et al. v. Kelli Bridwell, et al.
E2014-00435-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor John C. Rambo

This case involves a dispute as to whether the defendants’ predecessors in title abandoned an easement to a shared driveway either through an express intention to abandon the easement or by inference. The defendants deny that there was an intention to abandon the right-of-way. After a bench trial, the trial court found that the plaintiffs failed to present evidence to support their claim that the predecessors in title abandoned the driveway easement. Accordingly, the trial court entered a judgment that the easement has not been abandoned by the defendants or their predecessors in title. The court further concluded that the easement was to be used for ingress and egress only, and prohibited the parties from parking on or obstructing the easement in any way. The parties were found equally responsible for the upkeep and maintenance of the shared driveway. The trial court also determined that the garage maintenance agreement had been terminated. Plaintiffs appeal. We affirm.

Carter County Court of Appeals 10/20/14
Shemeka Metin Ibrahim v. Murfreesboro Medical Clinic Surgi Center, et al.
M2013-00631-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Royce Taylor

The trial court dismissed sua sponte Plaintiff’s healthcare liability and fraud claims for failure to state a claim for which relief can be granted. It accordingly dismissed her motions to continue for the purpose of retaining counsel as moot, and denied her motion to recuse. We reverse denial of Plaintiff’s motions for continuance, vacate dismissal of her action for failure to state a claim, affirm denial of her motion to recuse, and remand for further proceedings consistent with this Opinion.

Rutherford County Court of Appeals 10/17/14
Pamela A. Moritz v. Michael P. Tulay
E2013-01528-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor Michael W. Moyers

This is a post-divorce action involving issues of child custody, co-parenting time, and child support. The parties, Pamela Moritz (“Mother”) and Michael Tulay (“Father”), were divorced in Knox County in 2002. By agreement of the parties, custody of their children was vested in Mother, with Father being granted co-parenting time. Mother moved to Pennsylvania with the children in 2005 despite Father’s objection to such relocation. Father continued to enjoy co-parenting time with the children and pay child support to Mother. In 2007, Father filed a petition seeking to modify his child support obligation due to the oldest child’s reaching the age of majority. Thereafter, through a lengthy procedural history marked by Mother’s continuing failure to abide by the trial court’s orders, custody of the remaining minor child was granted to Father in 2009 while Mother was granted only supervised coparenting time. Mother did not appeal the 2009 order. Subsequently, in 2012, Mother filed petitions seeking to modify the custody award and invalidate the trial court’s prior orders. The trial court affirmed its earlier award of custody to Father as Mother presented no evidence of a material change of circumstance affecting the child’s best interest. The court also determined that Mother’s petitions to invalidate the earlier orders were untimely. Mother has appealed. Discerning no error, we affirm.

Knox County Court of Appeals 10/17/14
Gerald Freeburg ETC v. Phillip Turner
E2013-02688-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Chancellor Ronald Thurman

This appeal arises from a child support matter. Gerald Freeburg (“Freeburg”), continuing in place of his adult daughter who died during the pendency of these proceedings, pursued a child support claim of his daughter against Phillip Turner (“Turner”) in the Chancery Court for Cumberland County (“the Trial Court”). Freeburg submitted what purportedly was an order from an Oklahoma court reflecting Turner’s child support arrearage. The Trial Court held that the purported order from Oklahoma did not constitute a court order and dismissed the matter. Freeburg timely appealed. We affirm the judgment of the Trial Court.

Cumberland County Court of Appeals 10/17/14
In Re: Estate of Linda A. Farmer
M2013-02506-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge David Randall Kennedy

This appeal arises from a civil action against the decedent’s brother who allegedly used his confidential relationship as his sister’s attorney-in-fact to unduly influence her to amend her revocable trust and name him the sole trustee and the sole beneficiary of the trust. It was also alleged that he breached his fiduciary duties by converting her assets. The claims were tried before a jury which returned a verdict in favor of the defendant; the jury found that the plaintiffs had not proven that the amendments to the decedent’s revocable living trust were brought about by undue influence. The jury also found that the defendant had proven, by clear and convincing evidence, that under the totality of circumstances the trust amendments were not the result of undue influence by the defendant and were fair to the decedent. The jury’s specific findings rendered all other claims moot; thus, the defendant prevailed on all issues. On appeal, the plaintiffs contend the trial court erred by, inter alia, not granting a directed verdict on the issue of breach of fiduciary duty and by failing to instruct the jury on certain issues; the plaintiffs also contend the jury verdict should be set aside because there is no material evidence to support the finding that the mostrecent amendment to the trust was fair to the decedent. We have determined there is material evidence to support the jury’s findings; thus, the most recent trust amendment is valid and the defendant is the sole residuary beneficiary of the trust. Because there are sufficient funds in the trust to satisfy the modest cash bequests to the remaining beneficiaries, we find that plaintiffs have no standing to pursue their remaining claims on appeal due to their inability to show a “distinct and palpable injury.” City of Brentwood v. Metro. Bd. of Zoning Appeals, 149 S.W.3d 49, 55 (Tenn. Ct. App. 2004). Accordingly, we affirm.

Davidson County Court of Appeals 10/15/14
Phyllis Williams v. Larry Stovesand Lincoln Mercury, Inc., et al.
M2014-00004-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor Claudia C. Bonnyman

This is a dispute arising from the interpretation of a contract made during an asset sale of one automobile dealership to another. Seller filed a complaint seeking to collect payment pursuant to the contract on the ground that the contract was a promissory note upon which the buyer had defaulted. Buyer argued that the contract was actually for the payment of future rents to Seller, who remained the owner of the real estate upon which Buyer operated his automobile dealership. Seller filed a motion for summary judgment. The trial court determined that, because the contract was an unambiguous promissory note and Buyer admitted non-payment, Seller was entitled to judgment as a matter of law. Discerning no error, we affirm and remand.

Davidson County Court of Appeals 10/15/14
Rickey G. Young v. Tennessee Department of Labor and Workforce Development, et al.
W2013-02575-COA-R3-CV
Authoring Judge: Judge W. Michael Maloan
Trial Court Judge: Judge George R. Ellis

This case involves Employee’s right to unemployment compensation benefits. The Tennessee Department of Labor and Workforce Development denied Employee’s claim for benefits after finding that he was discharged for workplace misconduct. Employee sought judicial review of the decision in the trial court, alleging that the Department did not provide him a fair and impartial hearing. Employee requested that the trial court reverse the decision or remand the matter for a new hearing. The Department agreed and filed a motion to remand. The trial court remanded the matter for a new hearing. Employee appealed and now contends that the trial court erred in remanding the matter. We affirm the judgment of the trial court.

Gibson County Court of Appeals 10/14/14
The Metropolitan Government Of Nashville & Davidson County, TN, et al. v. The Board of Zoning Appeals of Nashville & Davidson County, TN, et al.
M2013-00970-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancerllor Claudia Bonnyman

Advertising company applied to the Metropolitan Government Department of Codes and Building Safety for a permit to convert its standard billboard to a digital billboard. The zoning administrator denied the request; the company appealed to the Metropolitan Board of ZoningAppeals,which reversed the administrator’sdecision and granted the permit. Days later, the permit was revoked on the ground that the proposed digital billboard violated a provision in the zoning code. The company again appealed to the Board of Zoning Appeals, which held that the permit had been revoked in error and reinstated the permit. The Metropolitan Government then filed a petition for a writ of certiorari seeking review of the Board’s decision; the trial court reversed the decision granting the permit.  The advertising company appeals; finding no error, we affirm the judgment of the trial court.

Davidson County Court of Appeals 10/13/14
Connie Reguli, et al. v. Board of Professional Responsibility of The Supreme Court of Tennessee
M2014-00158-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor Ellen H. Lyle

This is a declaratory judgment action in which Petitioners, who were respondents in an ongoing disciplinary proceeding, requested the trial court answer 15 questions concerning the applicable rules of procedure and evidence and the process and organization of the Board. The trial court dismissed the action, finding that Petitioners merely sought an advisory opinion and that it lacked subject matter jurisdiction to afford the relief desired. Petitioners appeal. We affirm.

Davidson County Court of Appeals 10/13/14
Loretta M. Gaither v. Michael Deleon Gaither - separate concurring opinion
E2013-02681-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Jacqueline S. Bolton

I concur completely in the majority’s treatment of the piano issue. Under the proof before the trial court, I also concur in the majority’s decision to modify the trial court’s judgment as to the marital residence and the overall division of the marital estate. I write separately to express my view that it is sometimes appropriate to take into account the cost of selling an asset even though there is no present intent to sell. Since the proof in this case does not support the trial court’s “20%” decision, I agree that this particular part of the trial court’s judgment is not correct.

Hamilton County Court of Appeals 10/13/14
Loretta M. Gaither v. Michael Deleon Gaither
E2013-02681-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Jaqueline S. Bolton

This is a divorce action involving the proper classification and division of the parties’ assets. The trial court found one asset, a baby grand piano, to be the wife’s separate property as it had been a gift to her from the husband. All other assets were determined to be marital. The most valuable asset was the parties’ marital residence, which was appraised at a value of $475,000. Although the trial court awarded the marital residence to the wife rather than ordering it to be sold, the trial court deducted twenty percent from the home’s equity value for the associated costs had it been sold. The trial court subsequently fashioned a nearly equal percentage distribution of the marital assets and debts, which included an allocation of a portion of the equity in the home to the husband. The husband has appealed. We determine that the trial court correctly classified the piano as the wife’s separate property. We also determine that the trial court improperly deducted the costs associated with a hypothetical sale of the marital residence from its equity value. We therefore modify the trial court’s award of equity in the home to the husband to effectuate the trial court’s ostensible overall percentage distribution. We affirm that equitable distribution in all other respects. We decline to award the wife attorney’s fees on appeal.

Hamilton County Court of Appeals 10/13/14