                  IN THE COURT OF APPEALS OF TENNESSEE

                                    AT KNOXVILLE
                                                                             FILED
                                                                             February 4, 2000
                            E1999-01098-COA-R3-CV
RICH ARD PAL LME R JAH N, JR.,                                Cecil Crowson, Jr.
                                      ) C/A NO. 03A01-9903-CH-00097Court Clerk
                                                             Appellate
                                      )
      Plaintiff-A ppellant,           ) HAMILTON CHANCERY
                                      )
vs.                                   ) HON. DOUGLAS A. MEYER,
                                      ) SITTING BY INTERCHANGE
SHERYL JUNE JAHN,                     )
                                      ) AFFIRMED AND
      Defendant-Appellee.             ) REMANDED


J. W. DIE TZEN , DIETZ EN & ATC HLEY , Chattano oga, for P laintiff-Ap pellant.

E. BLAKE M OORE, SPEAR S, MOORE, REB MAN & WILLIAMS, Chattanooga,
for Defendant-Appellee.




                                       O P I N IO N


                                                            Franks, J.


               This is a third appeal in this divorce action which was filed more than

six years a go betw een pla intiff (“h usban d”) and defen dant (“w ife”).

               The pertinent facts from the previous appeals are that from the first

appeal, this Court mandated that the Trial Court identify the marital assets of the

parties, establish the value of those assets, and equitably divide the same. The Trial

Court w as further d irected to valu e the husb and’s law practice at $1 80,065.00 , and to

catego rize the la w prac tice as a m arital asse t. Jahn v. Jahn, 932 S.W.2d 939 (Tenn.

Ct. App. 1996).
              An Order was subsequently entered by the Trial Court on July 29, 1997,

which did identify and value the parties’ marital assets, and divided the same. The

Order expressly recites that the Court’s intent was to divide the marital property 55%

to the husband and 45% to the wife. However, if the stated values are added and

percentag es figured based up on wha t each party w as award ed, husban d actually

receive d 62% of the m arital esta te and th e wife receive d 38% .

               The wife’s attorney attempted to file an appeal from the July 1997

Order, but the Notice of Appeal was not timely filed, and the appeal was dismissed.

               On August 27, 1998, the wife’s attorney filed a Motion for Relief from

Judgment of Order in the trial court, pursuant to Tenn. R. Civ. P. 60.02 due to the

“mistake, inadvertence, and/or excusable neglect by the trial court in the calculation of

assets which the Court awarded to the Defendant in this action.” Subsequently, the

Trial Court hearing the matter, acknowledged that he had made an error in his addition

of the asse ts awarde d to husba nd, such th at an addition al payment fro m the hus band to

the wife was necessary in order to effectuate the court’s intended 55/45 split. The

Trial Judge thus vacated the prior Order, and entered an Order on March 1, 1999,

which corrected the mathematical error contained in the previous order by awarding

an additional $31,646 .19 to the wife. This app eal resulted from the Trial C ourt’s

action.

               The wife’s motion sought correction of the July 29, 1997 Order pursuant

to Tenn. R. Civ. P. 60.02. The Trial Court, however, stated at the motion hearing that

pursuant to Tenn. R. Civ. P. 60.01, he could, at any time and on his own initiative

correct a mathematical error such as the one under consideration. The Order entered

                                              2
to vacate the July Order does not specifically cite Rule 60.01 as the basis for relief, but

it is clear from the transcript of the hearing that this subsection of the rule was relied

upon b y the judg e to justif y changi ng his p revious order.

               The hus band con tends that the wife’s R ule 60 mo tion was im properly

granted, but Rule 60.01 plainly provides that “clerical mistakes in judgments” or

“errors therein arising from ov ersight” can be corrected a t any time and on the court’s

own initiative. The July Order showed on its face that it contained a mathematical

error, and as such, the Trial Court did not err in correcting the same.

               The husband further argues that the Trial Court’s error was not clerical

error, but it is apparent from the transcript that the Court was referring to clerical error

as in an error m ade by th e clerk, a s oppo sed to a n error m ade by th e Judg e himse lf.

The C ourt qu oted fro m Ru le 60.01 and ass erted tha t this wa s the ba sis for h is ruling .

The cases interpreting Tenn. R. Civ. P. 60.01 instruct that the term “clerical mistake”

does not just apply to the actions of a court clerk. In the case of Zeitlin v. Zeitlin, 544

S.W.2d 103, 108 (Tenn. Ct. App. 1976), this Court interpreted the term “clerical

mistake” contained in Rule 60.01 as “mechanical errors of computation or copying by

any person, Clerk or otherwise.” The Trial Court’s correction falls within the stated

definitio n. Accord, Pennington v. Pennington, 592 S.W.2d 576 (Tenn. Ct. App.

1979).

               The wife argues that it was improper for the Trial Court to allow the

parties to appea l the July O rder “as modif ied by the Order entered Marc h 1, 199 9".

The M arch Ord er recites, how ever, is that “[t]h e final orde r entered Ju ly 29, 1997 is

hereby vacated, and this order shall constitute a modification and re-entry of said final

                                                3
order. The parties are allowed thirty (30) days from the date of the entry of this order

to file an appropriate notice of appeal.” Accordingly, the March Order, as with any

other order , entitled the pa rties to appea l the substan ce of the M arch Ord er timely

perfec ted.

               The issue thus becomes whether the division of marital property was

equitable. T.C.A. § 36-4-121(c) provides that certain factors must be considered when

distributing the marital estate, p ursuant to d ivorce, and the law is w ell settled that a

proper ty distributio n does not hav e to be m athem atically equ al to be e quitable . Ellis v.

Ellis, 748 S.W.2d 42 4 (Tenn. 1988.)

               Our review of a trial court’s property valuation/distribution is de novo

with a pres umption o f correctne ss, unless the p reponde rance of th e evidenc e is

otherw ise. Tenn. R. App. P. 13(d); Mondelli v. Howard, 780 S.W .2d 769 (T enn. Ct.

App. 1 989).

               This Court has already addressed certain property valuation and

distribution issues in Jahn v. Jahn, 932 S.W .2d 939 (T enn. Ct. A pp. 1996 ). This

Court specifically found in that appeal that the husband’s law practice is a marital

asset and was properly valued at $180,065.00, which holding is the law of the case on

this issue on this appeal. In that appeal, this Court also stated that the wife had made

substantial contributions as a wage-earner, wife and mother, and that the husband had

made a contribution o f separate property to the marital estate and tha t these factors

should be con sidered by the Tr ial Cou rt in equ itably divid ing the p roperty. Id. at 944-

945. This C ourt specific ally ruled, how ever, that the h usband w ould not b e able to

offset the value of his interest in the law firm assets at the time of the marriage against

                                               4
the valu e of the same a t the time of the d ivorce. Id. at 944.

               The husband argues that wife should have an additional 5% deducted

from her share of th e marital estate due to her u nclean ha nds, becau se she attem pted to

hide marital funds by placing them into a bank account which she held jointly with her

boyfriend, and then tried to cover up this fact in court. We have been cited to no

reported cases where the unclean hands of a party affected the ultimate division of

marital property. The statute which deals with property division pursuant to divorce

expres sly provid es that f ault is no t to be co nsidere d whe n divid ing ma rital asset s. See

Tenn. Code Ann. §36-4-12 1(a)(1).

               The Trial Court did consider the wife’s actions as far as weighing her

credibility, by assessing her with the value of that account as well as other cash which

she did not account for. The total attributed to this account and other monies not

accounted for was some $35,000.00 which was awarded to the wife as a part of her

equitable sh are of the m arital estate. Alth ough ther e was no proof that s he actually

had these funds at the time of the divorce, the Trial Court felt that she had control of

the funds and shou ld be assess ed with the ir value. W e hold that n o action by this

Court is warranted regarding these assets, and that the Trial Court made a proper

allocation.

               Next, the husband argues that the Trial Court erred in not considering

the tax consequences applicable to the Court’s award to the husband of his law

practice. The husband asserts that, because $165,000.00 of the value of the practice

was for accounts receivable, and because the husband is in the 28% tax bracket for

incom e tax, a re duction of $46 ,000.00 in the va lue of th e law p ractice w as war ranted.

                                                5
He relies on Tenn. Code Ann. §36-4-121(c)(9) which mandates that tax consequences

must be considered in a property division.

               Husband raised this issue before the Trial Judge, but the Trial Judge

held that he was constrained by this Court’s ruling in Jahn v. Jahn, 932 S.W.2d 939,

that he must consider the full value of the law practice at $180,065.00. The husband

also argued to the Trial Court that after tax values should be used not only for the law

practice , but also for hu sband ’s IRA , wife’s IRA, a nd the w ife’s bu siness in terest.

The Judge ruled that the tax issue was a wash, because both parties were in the same

tax bracket, and the Judge elected to use all pre-tax values in dividing the marital

assets.

               While tax consequ ences are to be consid ered as a rele vant facto r in

making an equ itable division of marital property, we con clude that the Trial Court

took this into account. (By concluding that the taxes would equal out, he simply used

pre-tax values on all assets.) There is no proof that the parties were in different tax

brackets, or that either party was significantly disadvantag ed by the Trial Court’s

ruling. The evidence does not p reponde rate against th e Trial Judg e’s ruling on this

issue. T.R.A.P. Rule 1 3(d).

               The hus band fur ther argues that his incom e tax debt f or 1994 sh ould

have been divide d between the p arties instead of being assessed solely to him. It

appears the parties filed separately for that year, and each party made estimated

payments throughout the year. The wife ultimately overpaid her taxes by $5000.00,

and the overpa yment w as awa rded to her as p art of he r divisio n of the marital e state.

The husband had not paid enough in estimated taxes for 1994, so that he still owed

                                               6
$13,14 4.00 at th e time o f the ori ginal div orce he aring.

               Our case law instructs that trial courts should divide marital debts, and

defines marital debts as those incurred during the marriage for the joint benefit of the

parties, o r those d irectly trace able to th e acqu isition of marital p roperty. Mondelli v.

Howard, 780 S.W .2d 769 (T enn. Ct. A pp. 1989 ). Further, trial cou rts should

apportion debt equitably as they would marital assets, and when practicable, debt

should follow the asse t it is related to. Id.

               The Mond elli court further explained that courts should consider the

following factors when dividing marital debt: (1) which party incurred the debt and

the debt’s purpose, (2) which party benefitted from incurring the debt, and (3) which

party is be st able to assum e and re pay the d ebt. Id.

               In this case, the tax debt was a marital debt, just as the wife’ tax

overpayme nt was a m arital asset, beca use it related to f unds that w ere earned and paid

during the m arriage. Bo th parties ben efitted from the husba nd’s salary just as b oth

parties benefitted from the wife’s salary. Thus, the issue becomes which party is best

able to assume and repay the debt. In this case, as the Trial Court found, the husband

is, since he received a larger share of the marital estate than the wife. Since the parties

were paying their incom e taxes sepa rately, the Court’s ruling on this issue is

appropriate under the circumstances.

               Finally, the husband argues that the Trial Court erred in not weighing

the husband’s monetary contributions to the marriage more heavily, because, at the

time of the parties’ marriage, husband owned a law practice which he testified was

worth $218,000.00, and he had a house with an equity valued at $24,500.00. In Jahn

                                                 7
932 S.W.2d 945, f.n.4, it was observed:

               To the extent Husband contributed the proceeds from the
               liquidation of these assets to the marriage, his interest at the time
               of the ma rriage can b e considere d as a “con tribution” by him
               when the court makes an equitable division of the now-existing
               marital e state. See T.C.A. § 36-4-1 21(c)(5).

Clearly, this Court held that the husband was not entitled to a dollar-for-dollar offset

of the v alue of those a ssets ag ainst the marital e state. Id. at 944. Rather, it was

appropriate under the statute to consider the husband’s monetary contribution of these

assets as one of the many contributions a party can make, along with contributions as a

wage earner, h omem aker, pa rent, etc. See Tenn . Code Ann. § 36-4-1 21(c)(5 ).

               In this case, the Trial Court considered the contribution that the husband

had brought into the marriage, and awarded him 10% more of the marital assets than

he awarded wife, which amounted to approximately $58,000.00. The Court followed

the reasoning of Brock v. Brock, 941 S.W .2d 896 (T enn. Ct. A pp. 1996 ), where this

Court held that an unequal division was appropriate because the husband had

accumulated a substantial amount of property prior to the marriage which he

contributed to the marital estate, and which was “seed” wealth for the large marital

estate w hich ha d to be d ivided.

               Hus band ins ists th at a d iffe rent resu lt is m andated by Batson v. Batson,

769 S .W.2d 849 (T enn. C t. App. 1 988). Batson does not m andate a d ifferent resu lt,

contrar y to the hu sband ’s conte ntion. Batson dealt with a marriage of only five years

where the husband came into the marriage with more than ten times the property that

his wife had, and the wife did not w ork at all during the marriage, at hu sband’s

request. In Batson, this Court he ld:

                                               8
               When relatively short marriages a re involved, each spou se’s
               contribution s to the accu mulation o f assets durin g the marria ge is
               an important factor. When a marriage is short, the significance
               and value of a spou se’s non-m onetary contrib utions is
               diminished, and claims b y one spouse to another sp ouse’s
               separate pro perty are minim al at best.

Batson at 859.

               In this case, the marriage lasted for ten years, which is a relatively short

period, so it was proper for the court to consider each spouse’s contributions to the

accumulation of assets, as Batson instructs. Both parties made contributions as wage

earners, earning substantial wages during the marriage, as well as contributions as

homem aker and p arent. Hus band ma de a signific ant initial contrib ution of pro perty to

the marriage, and the Trial Court properly considered the same in awarding husband a

larger share of the marital estate. The evidence does not preponderate against the

Trial Court’s division of property, and we affirm.

               The judgment of the Trial Court is affirmed and the cause remanded

with the co st of the app eal assessed to the appe llant.




                                             __________________________
                                             Herschel P. Franks, J.


CONCUR:




___________________________
Houston M. Godd ard, P.J.


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___________________________
D. Michael Swiney, J.




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