                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
                                    August 15, 2005 Session

   SONYA RENEE VADEN AUSLEY v. DEMPSEY RENEA AUSLEY, JR.

                 Direct Appeal from the Chancery Court for Sumner County
                         No. 2002D-546    C. L. Rogers, Chancellor



                   No. M2004-01360-COA-R3-CV - Filed September 8, 2005


This appeal involves an alimony award granted by the trial court to Plaintiff Sonya Ausley. While
the divorce in this case was pending, the trial court ordered Defendant to pay $17,000 to the Clerk
and Master of the court after Defendant willfully refused to pay temporary support and further
disposed of a $34,000 social security disability settlement in violation of court order. The trial court
later granted Plaintiff $5775 from the funds as temporary support. In the final divorce decree, the
trial court awarded Plaintiff the remaining $11,225 balance as lump sum transitional alimony.
Defendant appeals, arguing that 1) the trial court erred in failing to classify Defendant’s social
security benefits as marital or separate prior to ordering its division, 2) the trial court’s order that
Defendant pay half of his social security benefits into the Clerk and Master constituted in improper
presumption that such benefits were marital property, and 3) that Defendant’s social security benefits
were exempt from garnishment under Tenn. Code Ann. § 26-2-111. We affirm.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed; and
                                        Remanded

DAVID R. FARMER , J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., W.S.,
and ALAN E. HIGHERS, J., joined.

Marc A. Walwyn, Madison, Tennessee, for the appellant, Dempsey Renea Ausley, Jr.

Louis W. Oliver, III, Hendersonville, Tennessee, for the appellee, Sonya Renee Vaden Ausley.

                                              OPINION

                          Factual Background and Procedural History

       Plaintiff Sonya Ausley (“Plaintiff”) filed for divorce from Defendant Dempsey Ausley
(“Defendant”) on December 27, 2002, in the Chancery Court (“trial court”) for Sumner County,
Tennessee. On May 21, 2003, Plaintiff filed a motion requesting alimony and a one-half division
of a $34,000 lump sum social security disability settlement (“disability settlement”) paid to
Defendant, arguing that the disability settlement constituted compensation for “past social
security benefits which accrued during the marriage of the parties, and in which [Plaintiff had] a
marital interest.” Defendant filed no response to the motion. The trial court issued an order
granting Plaintiff temporary support and also barring Defendant from disposing of assets,
including the disability settlement, until the court could hold a final hearing. However,
Defendant violated this order by transferring the disability settlement to his children and refusing
to pay Plaintiff any temporary support. As a result, the trial court found Defendant in contempt
and placed him in jail for thirty days, conditioning release upon the payment of alimony
arrearages as well as Defendant placing $17,000 in escrow with Plaintiff’s attorney.1 The court
later released Defendant from jail on condition that he place $17,000 in escrow with the Clerk
and Master of the court.

       On November 26, 2003, Plaintiff filed a motion requesting the trial court to allow her to
execute against the funds held by the Clerk and Master in order to satisfy an alimony arrearage
owed by Defendant and to also pay pendente lite attorney fees. The court granted Plaintiff’s
motion and ordered that Plaintiff receive $5775 “as alimony and support.” The trial court later
entered a final divorce decree dividing marital property, whereby it held that

        [a]s equitable division of marital property and debts, the Court finds that
        [Plaintiff] shall receive as her division of marital property her 1993 Lincoln, the
        wall arrangement, the white rocking chair, the bread and potato bin and the brown
        chest. [Defendant] shall receive all the remainder of household items, furniture
        and vehicles currently in his possession.

The trial court also awarded Plaintiff the remaining $11,225 balance held by the Clerk and
Master as transitional alimony. Defendant now appeals.

                                               Issues Presented

        Defendant presents the following issues for our review:


        I.       The trial court erred as a matter of law in not classifying [Defendant’s]
                 social security benefits as either separate or marital property prior to
                 ordering its division.

        II.      The [trial] court’s order that Mr. Ausley pay half of his social security
                 benefits ($17,000) to his wife’s attorney to be held in escrow was an
                 improper presumption of Mr. Ausley’s benefits as marital property.


        1
          Based on the record, the trial court only required that Defendant pay $17,00 0 to the Clerk and Master. The
court never specified from where such funds were to come. However, Defendant asserts in his brief to this Court that
the mo ney co nstituted half of his disa bility settlement.

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       III.    [Defendant’s] social security benefits [are] exempt from garnishment as a
               matter of law [under] Tenn Code Ann. § 26-2-111.

       For the reasons set forth below, we affirm the trial court on all issues.

                                        Standard of Review

        In matters heard by a trial judge sitting without a jury, our review of the trial court’s
findings of fact is de novo upon the record, accompanied by a presumption of correctness. Tenn.
R. App. P. 13(d) (2005). We will not reverse the trial court’s factual findings unless the evidence
in the record preponderates against those findings. Jahn v. Jahn, 932 S.W.2d 939, 941 (Tenn. Ct.
App. 1996). A trial court’s conclusions on questions of law are reviewed de novo, but without
any presumption of correctness. Id. (citing Union Carbide Corp. v. Huddleston, 854 S.W.2d 87,
91 (Tenn. 1993)).

                       Classification of Defendant’s Disability Settlement

         We will address Defendant’s issues I and II together, since both ultimately deal with the
trial court’s classification and treatment of Defendant’s disability settlement. As stated earlier,
Defendant argues that the trial court erred in failing to formally classify the disability settlement
as either marital or separate property before ordering its division. Defendant further asserts that
the trial court’s order that he place $17,000, approximately half of the total disability amount,
into escrow evidences that the trial court improperly treated the settlement as marital property.
We disagree.

        Tennessee is a “dual property” state and thus draws a distinction between separate and
marital property. Batson v. Batson, 769 S.W.2d 849, 856 (Tenn. Ct. App. 1988). As a result, it
is of primary importance for trial courts to classify property as either separate or marital because
Tennessee statutes only allow for a division of marital property upon the dissolution of a
marriage. Tenn. Code Ann. § 36-4-121(a)(2001); Brock v. Brock, 941 S.W.2d 896, 900 (Tenn.
Ct. App. 1996). Although courts should expressly classify property before a final division, such
classification may be inferred in certain instances. In Thomas v. Thomas, No. W1999-00284-
COA-R3-CV, 2000 WL 33191358 (Tenn. Ct. App. 2000) (no perm. app. filed), a trial court in a
divorce action failed to classify property which was eventually awarded to the wife as alimony.
Id. at *8. In rejecting the defendant’s argument that the case should be remanded, this Court
concluded that the trial court’s act of awarding the disputed property to the wife as alimony
indicated an implicit classification of such property as being the husband’s separate property. Id.

        The scenario in the case at bar is almost identical to that in Thomas. Here, although
Plaintiff argued throughout the divorce proceedings that Defendant’s disability settlement
constituted marital property, the trial court obviously disagreed and did not grant Plaintiff a share
of the settlement in the final division of marital property. Rather, the trial court granted Plaintiff
the $17,000 at issue, approximately half the value of the disability settlement, as alimony. As a


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result, even if these funds did constitute a portion of Defendant’s disability settlement, we find
that the trial court implicitly classified and treated such funds as Defendant’s separate property.
Furthermore, we find that the trial court did not abuse its discretion in considering these separate
funds in calculating the amount of alimony to award Plaintiff under § 36-5-101 of the Tennessee
Code, which states that trial courts may consider the separate property of the advantaged spouse
in calculating alimony support. See also Gragg v. Gragg, 12 S.W.3d 412, 419 (Tenn. 2000)
(holding that courts may consider separate property of a spouse, including disability benefits, in
calculating alimony and child support obligations). We find these issues to be without merit.

                                           Garnishment

       In his final argument to this Court, Defendant asserts that the trial court erred in awarding
the $17,000 at issue to Plaintiff as alimony because his social security benefits were exempt from
garnishment under Tenn. Code Ann. § 26-2-111(1)(A), which states:

       the following shall be exempt from execution, seizure or attachment in the hands
       or possession of any person who is a bona fide citizen permanently residing in
       Tennessee:
               (1) The debtor’s right to receive:
               (A) A social security benefit, unemployment compensation, a Families
       First program benefit or a local public assistance benefit.

Tenn. Code Ann. § 26-2-111(1)(A)(2000). Defendant also relies on the decision in Coke v.
Coke, 560 S.W.2d 631 (Tenn. Ct. App. 1977), whereby this Court strictly construed former
Tennessee statute 26-206, now 26-2-105(a), as prohibiting attachment, execution, or garnishment
of any funds received by a Tennessee resident as a pension from the State of Tennessee. We do
not find Defendant’s argument persuasive in this case for two reasons.

         First, after reviewing the record in this case, we find no evidence of garnishment of
Defendant’s lump sum disability settlement. This Court has long defined a garnishment as “a
proceeding whereby the plaintiff seeks to subject to his claim property of the defendant in the
hands of a third person or money owed by such third person to defendant.” Stonecipher v.
Knoxville Sav. & Loan Assoc., 298 S.W.2d 785, 787 (Tenn. Ct. App. 1956). In the case at bar,
the trial court order did not specifically attach any funds owed to the Defendant by Social
Security. Rather, Defendant testified that he had already received and disposed of the disability
settlement before the trial court ordered payment of the $17,000 to the Clerk and Master.
Defendant further admitted to the trial court that the $17,000 paid to the Clerk and Master
actually came from a loan taken out on his behalf from his credit union. As a result, we find no
garnishment of Defendant’s disability settlement in this case and again affirm the trial court.

       The second reason we find Defendant’s garnishment argument unpersuasive is because,
even had a garnishment occurred, neither Tenn. Code Ann. § 26-2-111(1)(A) nor the decision in
Coke provide any protection to Defendant in this case. This Court has previously addressed the


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current effect of the Coke decision and § 26-2-111(1)(A) on garnishment proceedings involving
social security disability benefits in State v. Tolliver, No. 03A01-9701-JV-00041, 1997 WL
367200 (Tenn. Ct. App. 1997) (no perm. app. filed). In Tolliver, the defendant appealed after the
trial court approved the garnishment of his social security disability benefits in order to satisfy
child support obligations. Id. at *1. Incidentally, the Tolliver defendant asserted the exact same
arguments made in the case at bar–i.e.–that his social security disability benefits were protected
from garnishment under both Tenn. Code Ann. § 26-2-111(1)(A) and the decision of this Court
in Coke. Id. at *1-2. However, in ruling against the defendant, this Court found that

       [s]ince the Coke decision was rendered, the General Assembly has made
       numerous statutory amendments which have overturned the Coke ruling and given
       priority to the payment of alimony and child support obligations. This statutory
       scheme reflects a public policy approach taken by the majority of states, which
       have held that statutes exempting property from legal process in enforcement of a
       claim are not applicable to claims for alimony and child support. (Citations
       omitted.) These cases have reasoned that the purpose behind such exemptions is
       to preserve a means of support for the debtor’s family. (Citation omitted.) It
       “should not be a device to relieve the workman from his obligation to support his
       wife and family.”

Id. at *2 (quoting Meadows v. Meadows, 619 P.2d 598, 600 (Okla. 1980)). Based upon this
reasoning, this Court concluded in Tolliver that § 26-2-111(1)(A) “does not exempt . . . social
security disability benefits from garnishment for the purpose of paying child support.” Likewise
in this case, we also find that neither § 26-2-111(1)(A) nor the decision in Coke provides any
protection to Defendant against garnishment of his disability benefits for the purposes of paying
court ordered alimony. We find this issue to be without merit.

                                           Conclusion

       For the reasons stated above, we affirm the judgment of the trial court. Costs of this
appeal are taxed to the Appellant, Dempsey Ausley, and his surety.



                                                      ___________________________________
                                                      DAVID R. FARMER, JUDGE




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