                      IN THE COURT OF APPEALS OF TENNESSEE
                                 AT KNOXVILLE
                                    Assigned on Briefs May 13, 2005

                KENNETH EDWARD WINN v. HALLIE JONES WINN

                     An Appeal from the Circuit Court for Cumberland County
                           No. CV 003905     John A. Turnbull, Judge



                      No. E2004-01057-COA-R3-CV - FILED AUGUST 8, 2005


This is a divorce case. The husband filed a petition for divorce after five years of marriage.
Following a trial, the trial court entered a final decree detailing the equitable distribution of the
parties’ property. The wife filed a motion to alter or amend the decree, arguing, among other things,
that some of the property awarded to the husband was not marital property. The trial court denied that
motion. The wife now appeals. We affirm, noting that, in the absence of a transcript or a statement
of the evidence, we must presume that the evidence supported the trial court’s rulings related to the
equitable distribution of the parties’ property.

     Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Affirmed

HOLLY M. KIRBY , J., delivered the opinion of the Court, in which W. FRANK CRAWFORD , P.J., W.S.,
and ALAN E. HIGHERS, J., joined.

Brandy Boyd Slaybaugh and Norbert J. Slovis, Knoxville, Tennessee, for the appellant, Hallie Jones
Winn.

Melaney G. Madewell, Cookeville, Tennessee, for the appellee, Kenneth Edward Winn.

                                        MEMORANDUM OPINION1

       Plaintiff/Appellee Kenneth Edward Winn (“Husband”) and Defendant/Appellant Hallie Jones
Winn (“Wife”) were married on June 12, 1998. At that time, Husband was forty-eight years old and
Wife was sixty years old. No children were born of the marriage.

        1
            Rule 10 of the Rules of the Court of Appeals of Tennessee states:

        This Court, with the concurrence of all judges participating in the case, may affirm, reverse or modify
        the actions of the trial court by memorandum opinion when a formal opinion would have no
        precedential value. W hen a case is decided by memorandum opinion it shall be designated
        “MEMORANDUM OPINION”, shall not be published, and shall not be cited or relied on for any
        reason in any unrelated case.
        On May 7, 2003, Husband filed a petition for divorce in the trial court below, alleging as
grounds irreconcilable differences and cruel and inhuman treatment by Wife. On May 16, 2003, Wife
filed an answer and a counterclaim for divorce. Wife admitted that the parties had irreconcilable
differences, but denied that she was guilty of cruel and inhuman treatment. She asserted that Husband
had been guilty of inappropriate marital conduct, which Husband later denied.

        The bench trial was held on December 9, 2003. The appellate record includes neither a
transcript of the testimony nor a certified statement of the evidence under Rule 24(c) of the Tennessee
Rules of Appellate Procedure. The record includes only the technical record and the exhibits
introduced into evidence at trial.

        On January 14, 2004, the trial court entered a final decree of divorce. The decree set out the
equitable distribution of the parties’ property, based on the “statements of counsel, testimony of the
parties and witnesses, [and] a review of the record as a whole.” In the decree, however, the trial court
reserved an issue on the ownership of three life insurance policies insuring the life of Wife.

        On February 13, 2004, Wife filed a motion to alter or amend the final decree, challenging the
trial court’s characterization of certain property as marital property and submitting supplemental
documentation to support her arguments. On March 17, 2004, Husband filed a motion seeking an
order holding Wife in contempt of court, claiming that Wife refused to give him certain property and
destroyed or damaged other property that was awarded to him in the final decree. After a hearing, on
May 6, 2004, the trial court entered an order denying Wife’s motion to alter or amend, but reserving
for a later hearing Husband’s petition for contempt. Wife appealed that order to this court. The
appeal was dismissed as premature, however, because the trial court had not yet ruled on the
ownership of the insurance policies. On December 20, 2004, the trial court entered an “Amended
Final Decree,” resolving the issues regarding the insurance policies and reconfirming the original final
decree. Wife now appeals the trial court’s decision.

        On appeal, Wife challenges several of the trial court’s rulings relating to the equitable
distribution of the parties’ property, as set out in the final decree. She argues that the trial court erred
in (1) determining Husband’s portion of the equity in the marital home; (2) determining that a 1984
Chevy truck was marital property; (3) determining that a 1987 Chevy truck was marital property; (4)
determining that certain real property on Lake Tanzi was marital property; (5) determining that certain
tracts of undeveloped real property on Turkey Blind Road constituted marital property and that Wife
had dissipated the parties’ assets by giving away this property to members of her family; and (6)
denying Wife’s motion to alter or amend the divorce decree or grant a new trial.

        The trial court’s findings of fact are reviewed de novo on the record, with a presumption that
those findings are correct unless the evidence preponderates otherwise. Tenn. R. App. P. 13(d).
However, in the absence of a transcript of the proceedings below or a statement of the evidence, we
are unable to review the evidence to determine where the preponderance lies. “Since any issues as
to the equitable division of marital property are factually driven, we conclusively presume that
evidence supports the Trial Court’s division of marital property, since no evidentiary record has been


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presented to this Court.” Greene v. Greene, No. E2002-02611-COA-R3-CV, 2003 WL 22409454,
at *1 (Tenn. Ct. App. Oct. 22, 2003); see also Vaccarella v. Vaccarella, 49 S.W.3d 307, 315 (Tenn.
Ct. App. 2001); Sherrod v. Wix, 849 S.W.2d 780, 783 (Tenn. Ct. App. 1992); Irvin v. City of
Clarksville, 767 S.W.2d 649, 653 (Tenn. Ct. App. 1988). In this case, all issues raised in this appeal
relate to the trial court’s decisions regarding the equitable division of the parties’ property, and all of
Wife’s arguments are based on the premise that the trial court’s conclusions are contrary to the
preponderance of the evidence. Without a transcript of the proceedings or a statement of the
evidence, we have no choice but to presume that the trial court’s determinations were supported by
the testimony and the other evidence at trial. Accordingly, the trial court’s Amended Final Decree
must be affirmed in its entirety.

       The decision of the trial court is affirmed. Costs on appeal are to be taxed to Appellant Hallie
Jones Winn, and her surety, for which execution may issue, if necessary.




                                                         ___________________________________
                                                         HOLLY M. KIRBY, JUDGE




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