                    IN THE COURT OF APPEALS OF TENNESSEE
                                 AT MEMPHIS
                                           MAY 20, 2003 Session

                         GLORIA J. GUINN v. LUCIOUS T. GUINN

                      Direct Appeal from the Circuit Court for Shelby County
                          No. 157712 R.D.    George H. Brown, Jr., Judge



                     No. W2002-02225-COA-R3-CV - Filed November 13, 2003


This is an appeal from a final divorce decree awarding Wife an absolute divorce on the ground of
inappropriate marital conduct. This appeal comes to this Court without a record and only a statement
of the evidence. For the following reasons, we affirm in part and remand for further findings
consistent with this opinion.


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

ALAN E. HIGHERS, J., delivered the opinion of the court, in which W. Frank Crawford, P.J., W.S.,
and Holly M. Kirby, J., joined.

Lucious T. Guinn, Jr., Germantown, TN, pro se

James V. Ball, Memphis, TN, for Appellee

                                        MEMORANDUM OPINION1

                                        Facts and Procedural History

        Plaintiff Gloria Guinn ("Plaintiff") had been married to Lucious Guinn, Jr. ("Defendant") for
seventeen years at the time of the November 2001 hearing for their divorce. Plaintiff worked as a
teacher's aide. Though Defendant alleged inappropriate marital conduct by Plaintiff for increasing
the couple's debt to credit card companies, Plaintiff testified that she only used them to pay for her


         1
                   Rule 10 (C ourt of App eals). Memorandum Opinion. – (b) The Court, with the concurrence of all
judges participating in the case, my affirm, reverse or modify the actions of the trial court by memorandum opinion when
a formal opinion would have no precedential value. When a case is decided by memorandum opinion it shall be
designated “MEM OR AN DU M OP INION ,” shall not be published, and shall not be cited o r relied on for any reason in
a subsequent unrelated case.
living expenses, as Defendant would not give Plaintiff any money. The Plaintiff also testified that
Defendant, during the course of the marriage, was violent and had been arrested for domestic
violence. The parties further disputed whether Plaintiff had a gambling problem, though Defendant
apparently presented no evidence of this other than his own testimony. The marital home of the
parties held a value of $203,000, but there was a $55,000 mortgage taken out on the property to pay
off the marital credit card debt. Plaintiff testified that her retirement account held a value of $17,000
while Defendant’s retirement account was $45,273.73. The parties have no children with each other.

        Plaintiff filed for divorce from Defendant on December 12, 1997, alleging irreconcilable
differences and inappropriate marital conduct. Defendant counterclaimed alleging the same grounds
for divorce. A final decree of divorce was issued by the trial court granting an absolute divorce to
Plaintiff on the ground of irreconcilable differences.2 Defendant appealed to this Court, and we
vacated that judgment because no agreement for the equitable settlement of property rights had been
reached, and, therefore, a grant of divorce for irreconcilable differences was inappropriate. Guinn
v. Guinn, 2001 Tenn. App. LEXIS 248, at *8-15 (Tenn. Ct. App. 2001). After a second hearing on
November 8, 2001, the trial court rendered another final divorce decree awarding Plaintiff an
absolute divorce on the grounds of inappropriate marital conduct and equitably divided the property
of the marriage. The division awarded Plaintiff half of the equity in the marital home, a portion of
Defendant's retirement and investment accounts, and a portion of the personal property of the
marriage. After this decision, Defendant moved for a new trial, which was denied by the trial court,
and then appealed3 to this Court, pro se, presenting the following issues4 for our review:

         I.        Whether the trial court erred in awarding Plaintiff an absolute divorce rather than
                   awarding Defendant an absolute divorce; and
         II.       Whether the trial court erred in equitably dividing the property of the marriage,
                   including the retirement accounts of both parties, the credit card debt of the parties,
                   and the marital home.




         2
                  That initial decree was later amended to grant Plaintiff a divorce on the ground of inappropriate marital
conduct of Defendant. However, this Court ruled that the original order was void and the trial court should have granted
Defenda nt's motio n for relief from the final decree o f divorce. Guinn, 2001 T enn. App. LEX IS 248, at *11-15 (Tenn.
Ct. App. 2001 ).

         3
                   No transcript was made at the November 2001 hearing, but the Defendant had a Statement of the
Evidence approved by the trial court in No vember 2 002 and filed this statement with the technical reco rd. Plaintiff
subsequently filed a motion to strike Defendant's Statement of the Evidence which originally was denied but granted upon
reconsideration. On February 4, 2003, following this Court’s order striking Defendant's Statement of the Evidence,
Plaintiff filed a motion objecting to and correcting the Sta tement of the Evidence. This motion was granted and the
Plaintiff's Corrected Stateme nt of the E vidence was filed with this C ourt.

         4
                   Though Defendant did not follow the T ennessee R ules of A ppe llate Procedure in writing his b rief,
these are the issues he has presented this Court as we understand them.

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Plaintiff also raises one additional issue5 for this Court to consider:

         III.  Appellant did not set out any issues presented for review in his briefs to the Court in
               accordance with the Tennessee Rules of Appellate Procedure.
For the following reasons, we affirm the trial court in part and remand for further findings.

                                                Standard of Review

        In a non-jury trial, this Court utilizes a de novo standard of review with a presumption of
correctness for the trial court's factual findings. Tenn. R. App. Proc. 13(d). This Court may not
reverse a finding of fact by the trial court unless a preponderance of the evidence is otherwise. Tenn.
R. App. Proc. 13(d); Hobbs v. Hobbs, 987 S.W.2d 844, 846 (Tenn. Ct. App. 1998); Hansel v.
Hansel, 939 S.W.2d 110, 111 (Tenn. Ct. App. 1996); Batson v. Batson, 769 S.W.2d 849, 859 (Tenn.
Ct. App. 1988). Additionally, in this case, no transcript of the November 2001 hearing was filed by
Defendant upon his appeal, and this Court has only a brief statement of the evidence and the
pleadings to review this decision.
                                      Proper Appeal of Defendant

        We first address Plaintiff's argument that Defendant has not properly presented any issues
for our review. This Court reiterates what we stated in our order denying Plaintiff's motion to
dismiss. While we agree that Defendant's brief does not conform with the Tennessee Rules of
Appellate Procedure or the Rules of the Court of Appeals, we recognize that Defendant is now
proceeding pro se on this appeal and that this Court has relaxed the strict formalities of the rules in
the past. See, e.g., Paehler v. Union Planters Nat’l Bank, 971 S.W.2d 393 (Tenn. Ct. App. 1997).
Though Defendant has not formally listed issues in his brief for our review, the issues he presents
for appeal are discernable from his argument. This Court has the discretion to relax the formal
requirements of the rules for good cause, and we do so in this instance.

                                         Inappropriate Marital Conduct

        Tenn. Code Ann. § 36-4-101(11) (2001) states that a ground for divorce exists where "[t]he
husband or wife is guilty of such cruel and inhuman treatment or conduct towards the spouse as
renders cohabitation unsafe and improper which may also be referred to in pleadings as inappropriate
marital conduct. . . ." Unless the evidence preponderates against the trial court's findings, this Court
must affirm the decision of the trial court awarding an absolute divorce to Plaintiff on the ground
of inappropriate marital conduct. Tenn. R. App. Proc. 13(d); Hobbs, 987 S.W.2d at 846.

         Our review of the record does not indicate that the evidence preponderates against the trial
court's finding that Plaintiff carried the burden of proving her entitlement to a divorce on the ground


         5
                   Plaintiff argues in her brief that Defendant is requesting this C ourt to review materials that were never
introduced into evid ence at the hearing. We shall address this issue when we review the trial court's division of the
marital prop erty.

                                                            -3-
of inappropriate marital conduct. In the statement of the evidence articulated by the Plaintiff and
approved by the trial court, there are statements that Defendant was violent during the marriage and
was, at one point, arrested by the Germantown Police Department for domestic violence. Though
Defendant denied he committed such offenses against Plaintiff in his answer, "[t]he findings of the
trier of fact dependent upon the credibility of the witnesses should be accorded great weight by the
appellate court." Hobbs, 987 S.W.2d at 847 (citing Town of Alamo v. Forcum-James Co., 327
S.W.2d 47 (Tenn. 1959); Sisk v. Valley Forge Ins. Co., 640 S.W.2d 844 (Tenn. Ct. App. 1982)).
Given the state of the record presented for our review, there is no evidence to contradict the finding
of the trial court other than Defendant’s denial. Therefore, this Court affirms the trial court's
decision awarding Plaintiff an absolute divorce from Defendant.

        In addition, there is also insufficient evidence to overturn the trial court's finding that
Defendant should not be awarded a divorce from Plaintiff on the ground of inappropriate marital
conduct. The only conduct Defendant alleges that could be considered grounds for a divorce would
be Plaintiff's "secretive" use of credit cards, which increased the parties' debt. However, there is no
evidence that such conduct caused pain, anguish or distress to Defendant or that it rendered
cohabitation improper, unendurable, intolerable or unacceptable. Bolin v. Bolin, 99 S.W.3d 102, 105
(Tenn. Ct. App. 2002) (quoting Earls v. Earls, 42 S.W.3d 877, 892 (Tenn. Ct. App. 2000) (Cottrell,
J., concurring)); see Flanagan v. Flanagan, 1997 Tenn. App. LEXIS 453, at *5-6 (Tenn. Ct. App.
1997). Therefore, this Court affirms the trial court's decision awarding an absolute divorce on the
ground of inappropriate marital conduct to Plaintiff and denying award of a divorce on the same
ground to Defendant.

                                         Property Division

        Defendant next argues that the property division by the trial court was inequitable and
improper. In reviewing a trial court's division of marital assets, we are mindful that the lower court
is vested with broad discretion in dividing the marital property. Batson v. Batson, 769 S.W.2d 849,
859 (Tenn. Ct. App. 1988); Flanagan, 1997 Tenn. App. LEXIS 453, at *10. In this instance,
Defendant appeals the property division of the marital home, the parties' retirement and investment
accounts, and the credit card debt incurred by Plaintiff.

        Because a mortgage was taken out on the parties' marital home to pay off the credit card debt,
those two items may be addressed together. From the final divorce decree, it appears the trial court
awarded each party half the equity in the martial home, which, in effect, places the burden of the
credit card debt equally on both parties since the home's equity is reduced by the mortgage taken to
pay the debt. Defendant contends that, because Plaintiff was responsible for incurring the debt, she
should bear the entire burden of paying that debt. However, the statement of the evidence approved
by the trial court supports the conclusion that Plaintiff used a credit card to pay for her living
expenses because Defendant would not provide Plaintiff with any money. We find no error or abuse
of discretion with this property division.




                                                 -4-
        Next, Defendant argues that the trial court improperly handled the credit card debt and the
mortgage payments on the home given that the parties had signed an agreement with each other
deciding how such payments would be divided. However, it appears that such agreements were not
entered into the evidence at trial. The scope of this Court's review is restricted to "facts established
by the evidence in the trial court and set forth in the record and any additional facts that may be
judicially noticed or are considered pursuant to Rule 14." Tenn. R. App. Proc. 13(c). Rule 14 allows
this Court discretion to consider post-judgment facts. It would appear, from Defendant's brief, that
such agreements were entered into in March 1997, prior to any divorce decree from which he
appeals. Therefore, because these agreements cannot be judicially noticed and were never
introduced into evidence at the hearing, this Court may not consider them.

        Finally, Defendant argues that the trial court erred when it awarded $14,000 of his retirement
and investment account to Plaintiff, while awarding him nothing from Plaintiff's retirement account
which was valued at $17,000 according to the statement of the evidence. Tenn. Code Ann. § 36-4-
121(b)(1)(B) (2002) states that "marital property" includes "the value of vested and unvested
pension, vested and unvested stock option rights, retirement or other fringe benefit rights relating
to employment that accrued during the period of the marriage." In this instance, the trial court
awarded Plaintiff $14,000 from Defendant's retirement and investment accounts as "her fifty percent
share" without stating whether this was half the increase in value or whether this amount was offset
by the amount of Plaintiff's retirement account to which Defendant could have been entitled. It
would appear that the trial court was attempting to divide the aggregate amount of retirement
benefits equally between Plaintiff and Defendant. Plaintiff's retirement account was valued at
$17,000 and Defendant's retirement account was valued at approximately $45,000. By awarding
Plaintiff $14,000 from Defendant's retirement account, the result is each party receives $31,000 in
retirement benefits. While this may be the most equitable division, given the state of the record on
appeal, this Court is unaware of whether or not such retirement accounts accrued only during the
marriage or whether they held a value prior to the marriage. The answer to this question affects the
classification of the accounts as "separate" or "marital" property, and, therefore, could result in a
different distribution between the parties. For these reasons, we remand this portion of the trial
court's property division for further findings consistent with this opinion.




                                                  -5-
                                           Conclusion

        For the foregoing reasons, we affirm in part and remand this case to the Shelby County
Circuit Court for further findings on the issue of the division of the parties' retirement accounts.
Costs are taxed one-half to Appellant, Lucious T. Guinn, Jr., and his surety, and one-half to
Appellee, Gloria J. Guinn, for which execution may issue if necessary.



                                                      ___________________________________
                                                      ALAN E. HIGHERS, JUDGE




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