                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                               DECEMBER 05, 2001 Session

             FLORA MAE MELTON v. GLEN HOUSTON MELTON

                      Appeal from the Chancery Court for Lewis County
                           No. 3767, Russ Heldman, Chancellor



                  No. M-2001-00128-COA-R3-CV - Filed February 22, 2002


This appeal from the Chancery Court of Lewis County questions whether the Trial Court erred in
dividing the marital estate, thereby awarding Ms. Melton a disproportionate share. Mr. Melton
further appeals the Trial Court’s award of alimony in futuro, alimony in solido, discretionary costs
and an award for personal injuries to Ms. Melton. Ms. Melton appeals the Trial Court’s failure to
award punitive damages for her personal injury. We affirm the decision of the Trial Court in part,
vacate in part and remand for further proceedings consistent with this opinion.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed In Part,
                           Vacated in Part; Cause Remanded

HOUSTON M. GODDARD , P.J., delivered the opinion of the court, in which HERSCHEL P. FRANKS and
D. MICHAEL SWINEY , JJ., joined.

Randy Hillhouse, Lawrenceburg, TN, for the Appellant, Glen Houston Melton.

Ricky L. Wood, Parsons, TN, for the Appellee, Flora Mae Melton.

                                            OPINION

       This is an appeal from a divorce decree between Flora Mae Melton, the Appellee, and Glen
Houston Melton, the Appellant. Mr. Melton appeals the decision of the Lewis County Chancery
Court and presents for our review two issues which we restate:

       I.      Whether the Trial Court failed to equitably divide the marital assets,
               awarding Ms. Melton a substantially disproportionate share.

       II.     Whether the Trial Court erred in awarding Ms. Melton alimony in futuro,
               attorney fees in the form of alimony in solido, discretionary costs, and an
               award for personal injuries.
       In addition to the issues raised by Mr. Melton, Flora Mae Melton raises one issue for our
review, which we restate:

       III.    Whether the Trial Court erred in failing to award Ms. Melton punitive
               damages, in addition to the $25,000.00 compensatory damages award for her
               personal injuries.

       We affirm the decision of the Trial Court in part, vacate in part and remand for such further
proceedings, as may be necessary, consistent with this opinion.

        The parties were married on May 31, 1977, and separated on February 14, 1998. There were
no minor children involved in this divorce action. Ms. Melton filed a divorce Complaint on March
12, 1998, wherein she alleged that on February 14, 1998, Mr. Melton became intoxicated and struck
her on the head with a lead pipe knocking her unconscious and causing serious bodily injury. Ms.
Melton further alleged that Mr. Melton then forced her into his vehicle, which was eventually
stopped by the Tennessee Highway Patrol. Mr. Melton was arrested and Ms. Melton was taken to
the emergency room where she received 60-70 stitches to close the wound on her head. Mr. Melton
was charged with attempted first degree murder and kidnapping. According to the record, Mr.
Melton plead guilty to attempted second degree murder and driving under the influence and was
sentenced to 10 years in prison.

        Following a hearing on August 21, 2000, the Trial Court granted Ms. Melton a divorce on
the grounds of inappropriate marital conduct. The Trial Court ordered a property division and
additionally, Ms. Melton was awarded alimony in futuro in an amount of $1,250.00 per month
retroactive to January, 2000, a judgment of $15,000.00 for alimony arrearage for the year 2000. Ms.
Melton was awarded $25,000.00 for personal injuries sustained by her on February 14, 1998.
Finally, the Trial Court awarded Ms. Melton $5,075.35 alimony in solido as a portion of her
attorney’s fees, and ordered Mr. Melton to pay discretionary costs of $2,395.75 and court costs.

        We review the Trial Court’s findings of fact de novo upon the record of the proceedings
below, with a presumption of correctness “unless the preponderance of the evidence is otherwise.”
Tenn. R. App. P. 13(d); see also Hass v. Knighton, 676 S.W.2d 554 (Tenn. 1984). There is no
presumption of correctness with regard to the trial court’s conclusion of law, and those conclusions
are reviewed de novo. Jahn v. Jahn, 932 S.W.2d 939 (Tenn. Ct. App. 1996).

                                                  I.

        Mr. Melton’s first issue on appeal questions whether the Trial Court erred in dividing the
marital assets; thereby granting Ms. Melton a disproportionate share. Mr. Melton argues that the
parties acquired a significant amount of real estate during their marriage and that the Trial Court’s
distribution of this property was inequitable. Additionally, Mr. Melton argues that the Trial Court
failed to first divide the property into separate and marital property categories, and that the factors
set forth in T.C.A. 36-4-121 were not taken into consideration.


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        Before addressing the property division of the Trial Court, we must first address the general
principles regarding classification and division of property in Tennessee in a divorce case. Dividing
a marital estate begins with classifying the property as either separate or marital property. McClellan
v. McClellan, 873 S.W.2d 350 (Tenn. Ct. App. 1993). The Trial Court in the case sub judice did not
make that determination with respect to most of the property involved in this proceeding including
real property, personal property, retirement accounts, or other finances as to whether they were
separate property or marital property.

       The only two pieces of property classified by the Trial Court were the two homes previously
owned by each party prior to the marriage. The Trial Court determined that the house owned by Ms.
Melton, prior to the marriage, 524 West 5th Avenue, was her separate property and that the house
owned by Mr. Melton prior to the marriage, 240 Garrison Road, was marital property and awarded
it to Ms. Melton. The record does not support the inconsistent treatment of these two pieces of
property. Further, there was no determination as to the classification or division of the 1984 Lincoln,
Mr. Melton’s retirement, the $51,000.00 cash bond, the 300 acre tract of land in Wayne County, the
approximately $32,000.00 paid in legal fees in Mr. Melton’s criminal action.

        Because Tennessee is a “dual property” jurisdiction, it is essential that the first order of
business is for the Trial Court to classify all the property, give each party their separate property and
then divide the marital property. Batson v. Batson, 769 S.W.2d 849 (Tenn.Ct. App. 1988). The
distinction between the two categories of property is important because only marital property is
divided between the parties. T.C.A. 36-4-121(a)(1). A party’s separate property is not to be divided.
Brock v. Brock, 941 S.W.2d 896 (Tenn. Ct. App. 1996).

       Marital property is defined in T.C.A. 36-4-121(b)(1)(A) which reads in pertinent part as
follows:

                “Marital Property” means all real and personal property, both tangible
                and intangible, acquired by either or both spouses during the course
                of the marriage up to the date of the final divorce hearing and owned
                by either or both spouses as of the date of filing of a complaint for
                divorce, except in the case of fraudulent conveyance in anticipation
                of filing, and including any property to which a right was acquired up
                to the date of the final divorce hearing, and valued as of a date as near
                as reasonably possible to the final divorce hearing date.
                ...

Marital property is further defined at T.C.A. 36-4-121(b)(1)(B) as follows:

                “Marital Property” includes income from, and any increase in value
                during the marriage of, property determined to be separate property
                in accordance with subdivision (b)(2) if each party substantially
                contributed to its preservation and appreciation, and the value of
                vested and unvested pension, vested and unvested stock option rights,

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                retirement or other fringe benefit rights relating to employment that
                accrued during the period of the marriage.

        Separate property is defined at T.C.A. 36-4-121(b)(2) in pertinent part as follows:

                (A) All real and personal property owned by a spouse before
                marriage; (B) Property acquired in exchange for property acquired
                before the marriage; (C) Income from and appreciation of property
                owned by a spouse before marriage except when characterized as
                marital property under subdivision (b)(1); (D) Property acquired by
                a spouse at any time by gift, bequest, devise, or descent;
                ...

        The equitable nature of the property division by the Trial Court cannot not be determined by
this Court without the Trial Court first properly classifying the property. Once property is classified
as marital, it is to be equitably divided and distributed between the parties. T.C.A. 36-4-121(b)(1).
“Trial Courts have wide latitude in fashioning an equitable division of marital property.” Brown v.
Brown, 913 S.W.2d 163 (Tenn. Ct. App. 1994). The standard factors set forth in T.C.A. 36-4-121(c)
must be considered. This Court has further stated in Batson v. Batson, 769 S.W.2d 849 (Tenn. Ct.
App. 1988) the following:

                an equitable property division is not necessarily an equal one. It is
                not achieved by a mechanical application of the statutory factors, but
                rather by considering and weighing the most relevant factors in light
                of the unique facts of the case.

Appellate Courts are to defer to a Trial Court’s division of marital property unless that division is
unsupported by a preponderance of the evidence or inconsistent with the statutory factors. Brown
v. Brown, 913 S.W.2d 163 (Tenn. Ct. App. 1994). Marital fault cannot be considered. T.C.A. 36-4-
121(a)(1).

        For the foregoing reason, we vacate the property division of the Trial Court and remand for
the classification of the entire marital estate and for an equitable division of that property determined
to be marital property.


                                                   II.

        Mr. Melton’s second issue on appeal questions whether the Trial Court erred in awarding
Ms. Melton (1) alimony in futuro, (2) attorney fees in the form of alimony in solido, (3) discretionary
costs, and (4) an award for personal injuries.




                                                  -4-
       Because the factors that must be taken into consideration in making a decision to award
alimony include, but are not limited to the following provisions codified in pertinent part at T.C.A.
36-5-101(d):

                   (A) The relative earning capacity, obligations, needs, and financial
                   resources of each party, including income from pension, profit
                   sharing or retirement plans and all other sources; . . . (G) The separate
                   assets of each party, both real and personal, tangible and intangible;
                   (H) The provisions made with regard to the marital property as
                   defined in § 36-4-121;

A decision with respect to alimony cannot be made until the marital estate is property classified and
the marital property is divided. For the foregoing reasons, we vacate the order of the Trial Court
granting alimony in futuro, alimony in solido, and remand to the Trial Court for a determination of
the aforementioned issues following the classification of the marital estate and the division of the
marital property.

        Regarding Ms. Melton’s award of compensatory damages in the amount of $25,000.00, Mr.
Melton argues that the award was excessive. He asserts that Ms. Melton has no memory of the
attack, has suffered no side effects except for headaches, and that her medical expenses were much
less than the compensatory award. The review by this Court of a non-jury award for damages is
governed by T.R.A.P. 13(d), which is de novo upon the record with a presumption of correctness of
the findings of fact by the Trial Court. Unless the evidence preponderates otherwise, we must
affirm.

        Ms. Melton suffered an injury to her right eye and a laceration on her scalp requiring
stitches.1 Following two days in the hospital, Ms. Melton was discharged and able to return to her
home. Ms. Melton testified that her recovery took 5 to 6 weeks, and that 3 of those weeks she was
unable to get out of the bed. Ms. Melton’s sister, a LPN, cared for Ms. Melton in her home for the
5 to 6 week recovery period and testified that Ms. Melton did not leave the residence during that
time. Ms. Melton testified that she occasionally has headaches, blurred vision and dizziness as a
result of the injury. The record reflects that Ms. Melton’s medical bills were approximately
$6,000.00. The Trial Court awarded Ms. Melton $25,000.00 in damages and based on her medical
expenses, Ms. Melton’s recovery time, the need for 24-hour nursing care, and the lingering effects
of the injury, we affirm the decision of the Trial Court.


                                                             III.




         1
           The record ind icates that the lac eration req uired betw een sixty to eighty stitche s. There was no medical proof
as to the exa ct numb er.

                                                             -5-
         With respect to Ms. Melton’s issue regarding the failure of the Trial Court to award punitive
damages, we first note that the complaint and prayer for relief does seek punitive damages.
However, there was no advocacy during the course of the trial with respect to this issue. Indeed, the
Trial Court at the conclusion of the proof and in response to a question posed by counsel for Ms.
Melton regarding a memorandum stated that he was not requiring one but if either counsel wanted
to file a memorandum he would receive it. He then granted both counsel seven days within which
to submit memoranda.

       Apparently no memorandum was submitted on behalf Ms. Melton.

       We are reluctant to place a trial court in error for failing to do that which he was not
requested to do and for that reason cannot find the Trial Court in error with regard to the punitive
damage issue.

        For the foregoing reasons the judgment of the Trial Court is affirmed in part, vacated in part,
and remanded to the Trial Court for proceedings not inconsistent with this opinion and for collection
of costs below. Costs of appeal are adjudged equally against Appellant, Glen Houston Melton, and
his surety and Appellee, Flora Mae Melton.



                                               _________________________________________
                                               HOUSTON M. GODDARD, PRESIDING JUDGE




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