                    IN THE COURT OF APPEALS OF TENNESSEE
                               AT KNOXVILLE
                                     December 9, 2013 Session

                   DAVID RAY HOGGATT v. LORI ANN HOGGATT

                       Appeal from the Circuit Court for Bradley County
                           No. V11954     J. Michael Sharp, Judge



                     No. E2013-00508-COA-R3-CV-FILED-MAY 12, 2014



The divorce in this case brought to an end the thirteen-year marriage of David Ray Hoggatt
(“Husband”) and Lori Ann Hoggatt (“Wife”). The trial court classified, valued, and
distributed the parties’ property. On this appeal, Husband challenges aspects of the division
of marital property. We modify the amount that the trial court ordered Wife to pay Husband
in the property division. In all other respects, the trial court’s judgment is affirmed.

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

C HARLES D. S USANO, JR., C.J., delivered the opinion of the Court, in which T HOMAS R.
F RIERSON, II, J., joined. D. M ICHAEL S WINEY, J., filed a separate dissenting opinion.

Philip M. Jacobs, Cleveland, Tennessee, for the appellant, David Ray Hoggatt.

Jerry Hoffer, Cleveland, Tennessee, for the appellee, Lori Ann Hoggatt.

                                                OPINION

                                                     I.

      There is no transcript in the record of the one-day divorce hearing. Husband filed a
Statement of the Evidence.1 In relevant part, it recites as follows:

                  The parties were married on May 21, 1999.

                                                 *   *    *

       1
           Incorrectly labeled a “Statement of Facts.” (Emphasis added.)
The divorce was filed by the Husband on December 21, 2011.

                            *   *   *

The Husband was employed at Whirlpool at the time of the
parties’ marriage and he worked at Whirlpool until he was laid
off based on a disability in 2007 (his full term of employment
with Whirlpool was from 1995 until 2007).

The Wife was employed at Blue Cross Blue Shield when the
parties married. After leaving Blue Cross Blue Shield, the Wife
worked for a Home Health Agency and then took a job at
Bradley Memorial Hospital where she remained until 2004. The
Wife quit working during 2004 – 2006 to take care of her
elderly parent[s] who were residing with the parties. The Wife
did not work after the death of her parents. The wife enrolled in
cosmetology school and in 2008 she obtained her cosmetologist
license. The Wife thereafter became self-employed as a
cosmetologist but due to unsteady income, the Wife, in 2011,
obtained employment at Wal-Mart [as] a third shift stocker.

The Husband owned a mobile home at the time of the parties’
marriage and he owed approximately $3,000.00.

The Wife owned a home with a significant mortgage at the time
of the parties’ marriage.

Within a year after the parties’ marriage, the Wife sold her home
and paid her pre-marital debt with any proceeds from the sale of
her residence.

The parties lived primarily in the Husband’s mobile home.

The parties purchased a home in 2000 for $99,000.00 with very
little money down.

The money that was used for the down payment on the house
was [from] the proceeds from the sale of the Husband’s mobile
home, approximately $6,000.



                                2
                 The parties refinance[d] the residence to $94,500.00 in 2003.

                 The Wife’s father died in 2005, followed by the Wife’s
                 Mother’s death in 2006.

                 The Wife was the sole beneficiary of an annuity with an
                 approximate value of $200,000.00. The Wife began receiving
                 proceeds from the annuity in 2006 and received quarterly
                 payments for a period of 5 years concluding in the year 2010.
                 The Wife received approximately $8,000 after taxes each
                 quarter and she spilt the money equally with her sister. The
                 Wife was under no obligation to split the money with her sister.

                 All of the money, including the money that was paid to the
                 sister, was first paid into the parties’ joint checking account at
                 Tennessee Valley Federal Credit Union (TVFCU).

                 In addition to the annuity, the Wife inherited one-half of her
                 parents’ home which was paid for. Her sister owned the other
                 half and together the parties rented the residence for $650.00 per
                 month and all the money was deposited into the Husband and
                 Wife’s joint savings account with Tennessee Valley Federal
                 Credit Union.2

                 The Wife’s sister died in 2010 and the parties continued to
                 manage the rental property of the Wife.

                 In 2009, the parties paid $50,000.00 towards the mortgage on
                 their residence from their joint checking account with TVFCU.

                 The Husband became disabled in 2007 and received $1,500 per
                 month from his long term disability through his employer.




        2
          The Statement of the Evidence does not state whether Wife shared the monthly rental income with
her sister. Since Wife gratuitously gave her sister half of the annuity – being a gift of $80,000 – it is logical
to infer from the language of the Statement that Wife retained all of the monthly rental income. If she had
shared that income with her sister, we believe the Statement would have so stated as it did with respect to the
annuity. On the contrary, the Statement says that “. . . all the money was deposited into the Husband and
Wife’s joint savings account . . . .” (Emphasis added.)

                                                       3
              On September 1, 2009, the Husband received Social Security
              Disability and back pay of $22,716.00 for unpaid benefits while
              his case was pending.

              The parties paid $21,331.00 towards the remaining balance on
              the mortgage which paid the house indebtedness in full on
              September 14, 2009. (The same month, Husband received his
              Social Security back pay).

              The Court valued the marital residence at $125,000.00.

              Shortly thereafter the Husband received notice from his long
              term disability provider that he had been overpaid benefits in the
              amount of $19,000.00 based on what he received in back pay
              from Social Security. Husband owed the money directly to the
              long term disability provider.

              The parties paid from their joint checking account $19,000 that
              was owed to the long term disability carrier.

              Between 2005 and the filing of the divorce the Wife did not
              work.

              During the same period of time the Husband worked for
              Whirlpool earning $2,000 per month and when he began
              receiving disability, Husband contributed $1,500 per month
              from his long term disability.

(Footnote added.)

       The Statement of the Evidence is woefully inadequate in many respects. It fails to
include (1) precise dates of various events, e.g., periods of employment; (2) income earned
by the parties at their respective places of employment; and (3) other pertinent information.
Because of these deficiencies, we are unable to ascertain with any degree of certainty the
parties’ respective incomes at various times during the marriage.

                                               II.

       The focus at trial was on the division of the marital property. After classifying the
parties’ property, the court valued and divided the marital estate. There is no dispute that,
in fashioning its division, the trial court sought, as Wife puts it, “to balance out the equities

                                               4
and achieve an equal division” of the non-real estate portion of their marital property. To
this end, after distributing the marital property, the trial court ordered Wife to pay Husband
$41,818.

        Although it is not before us, the record indicates that Wife subsequently filed a motion
to alter or amend the judgment. The court granted the motion in part by adjusting its
calculation of the amount Wife was obligated to pay Husband in order to effectuate an equal
division of the non-real estate property. The trial court thereby reduced the amount due
Husband from $41,818 to $36,218. In all other respects, the original decree was not
disturbed. Husband filed a timely notice of appeal.

                                              III.

       Husband presents the following issues for our review:

              1. Did the trial court err in awarding Wife a “repayment” of
              $50,000 of her separate property prior to creating an equitable
              division of the marital assets?

              2. Did the trial court make a mathematical error in dividing the
              remaining marital property 50/50?

              3. Did the trial court err in failing to include the $9,000 from
              the parties’ joint savings account in the equitable division?

                                              IV.

        A trial court’s factual findings are presumed to be correct, and will not be overturned
unless the evidence preponderates against them. Tenn. R. App. P. 13(d) (2006); Bogan v.
Bogan, 60 S.W.3d 721, 727 (Tenn. 2001). We review a trial court’s conclusions of law under
a de novo standard with no presumption of correctness. King v. Pope, 91 S.W.3d 314, 318
(Tenn. 2002); Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993). A trial
court has broad discretion in fashioning a division of marital property. Fisher v. Fisher, 648
S.W.2d 244, 246 (Tenn. 1983); Barnhill v. Barnhill, 826 S.W.2d 443, 449-50 (Tenn. Ct.
App. 1991). A finding of an abuse of discretion is usually predicated upon the court=s
application of an incorrect legal standard, unsound reasoning, or reliance upon erroneous
facts. Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001).




                                               5
                                                       V.

                                                      A.

      As can be seen, all of the issues raised by Husband concern aspects of the division of
the marital property. As to this matter, we set out relevant portions of the final decree:

                 The property is divided pursuant to the attached [Master Asset
                 List].

                 The Court awards the marital residence . . . to [Wife] at a value
                 of $125,000.00. The Court reduces the value of the marital
                 residence by $50,000 based on . . . Wife’s contribution of her
                 separate property to the mortgage of the residence.

                                                  *    *     *

                 The total marital estate is $151,220.503 pursuant to the . . .
                 Master Asset List. The total marital debt is $9,500.00.4

                 The net marital estate is $138,720.50. The net marital estate is
                 reduce by $50,000.00 based on . . . Wife=s separate property
                 contribution, [Wife] is required to pay [Husband] $41,818.00.

                 [Wife] shall refinance the residence and pay to [Husband]
                 $41,818.00 within sixty (60) days from the hearing.

                                                  *    *     *




        3
          The Master Asset List reflects a total marital estate of $151,920.50. It appears that one item, a “Zero
Turn Lawn Mower,” which appears on the page listing Husband’s separate property, was classified as marital
property, but its $800 value was not included in the calculation of the total marital estate. We will add it as
a part of the marital estate.

        4
          The undisputed total marital debt is $12,500. By the court’s calculation of the net marital estate, it
appears that the court intended to subtract from the gross marital estate the full amount of the marital debt
but that it erroneously used the figure of “$9,500” rather than the correct amount of “$12,500.” We have
adjusted the figures accordingly.
                                                       6
                [Wife] is entitled to one-half (1/2) of 2/3 of [Husband’s] pension
                by Qualified Domestic Relations order or $56.00 per month
                when [Husband] begins receiving his pension.5

                Each party shall be solely responsible for the payment of their
                own [a]ttorney fees.

                                                *    *    *

                Each party shall be responsible for one-half (1/2) of the court
                costs in this cause.

(Emphasis and footnotes added.)

      On February 8, 2013, the trial court entered an order on Wife’s motion to alter or
amend. Therein, the court stated:

                Upon review, [Wife’s] motion . . . does accurately reflect[] the
                correct order of the court, and more specifically, the correct
                mathematical calculation that the court intended.

                Therefore, the [final decree] is altered to accurately reflect that
                [Wife] shall pay to [Husband] $36,218.25. All other aspects of
                the [decree] are reaffirmed. . . .

We have determined that the calculated debt due Husband is not correct. More about this
later.

                                                    B.

       Husband asserts that the trial court erred when it deducted $50,000 from the home
value and awarded the $50,000 to Wife as her separate property before dividing the
remainder of the home’s value equally between the parties. Husband’s assertion is based
upon his interpretation of the trial court’s words, i.e., “[t]he net marital estate is reduced by
$50,000 based on . . . Wife’s separate property contribution . . . .” He submits that, with
respect to the $50,000 in question, “any monies of Wife that could have been deemed her
separate property were clearly transmuted into marital assets.” In this manner, Husband
essentially argues that property which once was Wife’s separate property – the annuity her
parents left her and certain rental income – became marital property when Wife deposited

        5
        The trial court did not attempt to quantify the parties’ respective shares of Husband’s pension; nor
can we because of the inadequate Statement of the Evidence.
                                                     7
those monies into the parties’ joint accounts and the parties later used $50,000 from their
joint checking account to reduce the debt on the marital home.

       The evidence before us does not support Husband’s assertion that the trial court
awarded the $50,000 to Wife as separate property. The trial court never expressly said it
was awarding Wife $50,000 as her separate property. At one point in its decree, the court
said that it was giving Wife $50,000 off the top of the value of the home “based on . . .
Wife’s separate property contribution” and, in another place, the court said the award was
“based on . . . Wife’s contribution of her separate property to the mortgage,. . . .” The
evidence preponderates that the distribution of $50,000 to Wife was an “off the top” division
of the marital estate to Wife because of her contributions of her separate property to the
marriage.

       In Brock v. Brock, 941 S.W.2d 896, 900 (Tenn. App. 1996), this Court discussed
several principles pertaining to a division of marital property that are relevant to the subject
under discussion:

              In divorce cases, Tennessee recognizes two distinct types or
              classes of property, i.e., “marital property” as defined at T.C.A.
              § 36-4-121(b) (1) and “separate property” as addressed at
              T.C.A. § 36-4-121(b) (2) . The distinction is important because
              the relevant statutory provision, T.C.A. § 36-4-121(a), “provides
              only for the division of marital property.” Batson v. Batson, 769
              S.W.2d 849, 856 (Tenn. App. 1988). Implicit in the statute’s
              mandate is the concept that assets properly classified as
              “separate property” are not divided between the parties, but
              rather are set aside to the spouse to whom the property is
              “separate” in nature. Id.

              Also implicit in the statutory scheme for the division and/or
              distribution of marital and separate property is the concept that
              the property upon which the trial court acts is, generally
              speaking, the property owned by the parties, individually or
              jointly, at the time of the divorce.

                                           *   *   *

              As a corollary to this principle, and again speaking in general
              terms, property once owned by a spouse, either as separate
              property or marital property, but not owned by either spouse at
              the time of divorce, is not subject to classification and division
              or distribution when the divorce is pronounced. This is because,
                                               8
                  generally speaking, a court cannot divide and/or distribute what
                  is “not there” -- property no longer owned by the parties,
                  individually or jointly, at the time of the divorce.

        In the present case, our facts are different from those in Brock, in that the assets with
which we are concerned – Wife’s annuity and rental income from her parents’ house – were
not owned by her at the time of the marriage but rather were acquired during the marriage
following her parents’ deaths. For our purposes, however, the distinction is not important
because these assets were simply another type of separate property when received by Wife.
See Tenn. Code Ann. § 36-4-121(b)(2)(D)(“[p]roperty acquired by a spouse at any time by
gift, bequest, devise or descent” within the definition of “separate property”). It is equally
clear, however, that the annuity and the rental income from Wife’s separate real estate
formerly owned by her late parents were ultimately transmuted into marital property when
they were put into the parties’ joint checking and savings accounts and a portion of them
applied to reduce the mortgage on the marital home.6 In short, at the time of the divorce,
Wife’s once-separate assets were no longer present “in the marriage” in the same form as
when Wife received them. By then, as we explained in Brock, the “property interest[]
represented by these assets [was] merged into the ‘wealth’ of the marriage.” Brock, at 901.
As a result, there was no annuity or rental income subject to being classified by the trial court
as Wife’s “separate property.” The parties’ home, clearly a marital asset, remained subject
to distribution. In Brock, we expressly rejected the proposition “that assets of a spouse at the
time of marriage, but not owned by him or her at the time of the divorce, are to be carved out
of the marital estate as separate property for the benefit of that spouse . . . .” Id. In any
event, as we have previously noted, we do not believe the trial court made the award of
$50,000 to Wife as separate property.

       Even if the trial court erroneously attempted to award Wife $50,000 as separate
property, this does not necessarily mean that the trial court abused its discretion in its overall
division of the marital estate. As we concluded in Brock,

                  [t]he [Husband] is not entitled to an automatic dollar-for-dollar
                  credit against the marital estate for the value of property owned
                  by him at the time of the marriage, but no longer owned by him
                  at the time of the divorce. However, to the extent these interests
                  were contributed by Husband to the wealth of the marriage, they
                  are a proper matter to be considered in determining how the
                  marital estate should be equitably divided. See T.C.A. § 36-4-
                  121(c) (5). Cf. Jahn v. Jahn, 932 S.W.2d 939 [(Tenn. App.
                  1996)].

Id. We hold that the $50,000 awarded to Wife does not, ipso facto, render the division of the
marital estate inequitable. The record reflects that Wife’s contributions of separate property


       6
           Obviously, as the mortgage went down, the equity went up.
                                                     9
to the marriage far exceeded those of Husband. Approximately, $80,000 of the $200,000
annuity – without question the separate property of Wife – went into the marriage.7 In
addition, rental income from property originally owned by Wife’s parents – 50% of which
was later gifted by them to her – went into the marriage. While the Statement of the
Evidence does not quantify the total amount of the rental income that went into the parties’
savings account, it is clear that the rental income was being deposited into the account for
at least five years, i.e., from 2007 to 2011, inclusive. Assuming all of the rent was collected,
the total for this period would be approximately $39,000. Unlike the reference to the
annuity, the Statement of the Evidence does not state that the rental income was being split
with Wife’s sister. Therefore, we assume it was not.

       Husband, by contrast, contributed little separate property, i.e., the proceeds from the
sale of the mobile home owned by him at the time of the marriage, being $6,000. His
contribution of separate property was relatively minor when compared to Wife’s.

      The evidence does not preponderate against the trial court’s division of the value of
the marital residence.

                                                     C.

      Husband’s next issue challenges the trial court’s order reducing the amount due him
from Wife from $41,818 to $36,218. We hold that the correct amount is $39,268, as will be
shown below.

        The trial court found the following values:
                  Total value of home                                      $125,000
                  Less: Amount to Wife based upon her
                        contributions to the marital estate                  50,000
                          Net value of home                                $ 75,000

                  Dodge Ram truck                                             3,957
                  Dodge van                                                   9,928
                  Boat                                                        1,500
                  Bank account                                                1,400
                  Bank account                                                1,200
                  Personal property                                           8,935 8
                                                                           $101,920
                  Less: Marital debt                                         12,500
                        Net assets to be equally divided                   $ 89,420


       7
        According to the Statement of the Evidence, the other approximately $80,000 went to Wife’s sister
even though, as previously noted, Wife had no legal obligation to pay any of the annuity to her sister.

       8
           This figure includes a “zero turn lawn mower” valued at $800.
                                                     10
Wife received half of the net value of the marital residence, i.e., $37,500. She also received
the Dodge van ($9,928) and personal property of $8,050. She was burdened with $9,000 of
the marital debt with Husband being charged with the balance of the debt. Excluding the
$50,000, Wife received a net of $46,478.

       Husband, on the other hand, received his half share of the remaining value of the
house ($37,500), the Dodge Ram truck ($3,957), his boat ($1,500), the two bank accounts
($2,600), and personal property of $885, for a gross value of $46,442 less his share of the
marital debt ($3,500). His net is $42,942. When Husband’s and Wife’s net awards are added
together, they total $89,420, the figure shown in the above schedule.

      The parties agree that, after deducting from the marital estate the $50,000 awarded to
Wife, it was the trial court’s intention to divide the remaining marital property evenly
between them. Setting aside the issue of the house for the time being, we now proceed to
schedule the distribution of the non-real estate assets:

                                                                Wife          Husband

               Non-real estate assets9                        $17,978         $ 8,942
               Less: Allocated debt                            <9,000>         <3,500>
                                                              $ 8,978         $ 5,442
               Less: Adjustment to Equalize Division           <1,768>         +1,768

                                                              $ 7,210         $ 7,210

Since possession of the house was awarded to Wife, she owes Husband the value of his share
of the marital residence, which is $37,500, plus the equalizing figure of $1,768 for a total
due from Wife to Husband of $39,268. When this amount is added to the non-real estate
assets less the debt allocated to Husband, he has received $44,710, which is exactly half of
the net value of $89,420 reflected above.

       This is not the end of the matter, however. As discussed in the preceding section,
Wife received an additional $50,000 in marital property from the equity in the marital home.
When the ledger is adjusted to include this distribution to Wife, the net marital estate totals
$139,420. The resulting overall property division is $94,710, or 67.93%, to Wife and
$44,710, or 32.07%, to Husband.

       Again, “[t]rial courts have wide discretion in dividing the marital estate.” Dilley v.
Dilley, M2009-02585-COA-R3-CV, 2011 WL 2015395 at *8 (Tenn. Ct. App. M.S., filed

       9
        For Wife, the Dodge Van and personal property; for Husband, the Dodge Ram truck, his boat, two
bank accounts and personal property.
                                                 11
May 23, 2011)(citing Larsen-Ball v. Ball, 301 S.W.3d 228, 234 (Tenn. 2010)). “[W]e are
reluctant to disturb a trial court’s division of marital property unless there is insufficient
evidence to support the trial court’s decision or the division somehow results in an error of
law or misapplication of statutory requirements.” Id. While the trial court may have used
– and we stress “may” because we do not believe it did – the wrong approach in identifying
the $50,000 award to Wife, it is clear to us that Wife’s contributions of the annuity money
and rental income from her parents’ home substantially increased the marital property. As
we further observed in Brock,

              Property owned by a spouse at the time of marriage, but not
              owned “in the marriage” at the time of the divorce, can also be
              significant in dividing marital property if that pre-marriage
              property is properly viewed as a contribution of a party “to the
              acquisition, preservation, [or] appreciation . . . of the marital . . .
              property.” See T.C.A. § 36-4-121(c) (5). This does not mean that
              the property to be divided is “separate property”, but rather that
              a spouse’s contribution of his or her pre-marriage property is a
              factor to be considered in reaching an equitable division of the
              marital property. In other words, the property owned at the time
              of the marriage does not come into play as a “classification”
              matter, but rather as a factor to be considered in dividing marital
              property.

        In dividing the marital estate, the trial court considered Wife’s contributions to the
“wealth of the marriage” and determined that she should be awarded a larger share of the
equity in the marital home. The remaining assets were divided equally. The overall division,
while not equal, was equitable. Obviously, Wife’s contributions of separate property to the
marriage – $80,000 and $39,000 – played a major role in the parties’ accumulation of a net
marital estate of $139,420. It was within the court’s discretion to do what it did. The
evidence does not preponderate against the trial court’s division of the marital estate.

        The dissent makes a number of calculations based upon a woefully inadequate
Statement of the Evidence. The approach of the dissent tends to blur the parties’ relative
contributions of separate property to the marriage. Husband’s attempt to show an imbalance
of income between the parties is questionable because of the lack of precise dates and income
figures in the Statement of the Evidence. But what is clear beyond any doubt is that there
came a time in this marriage when there was a balance in the parties’ checking account of
at least $50,000. This could not have come from the parties’ relatively meager incomes. It
had to have come from Wife’s separate property contributions. If Wife had not contributed
$119,000 of separate property to the marriage, it is highly unlikely that the parties would
have had much in the way of a net marital estate at the time of their divorce. They certainly

                                                12
would not have had anything approaching $89,420, which figure represents double what
Husband received ($44,710).

                                              D.

      Lastly, Husband submits that the trial court erred in failing to include a joint savings
account in the property division. Husband=s argument, in its entirety is as follows:

              Although the trial court referenced the master asset list, it did
              not place a value on the parties= joint savings account (referred
              to as “Rental Account”), but did indicate it was to be divided
              equally. Husband should be awarded half of the account
              ($9,000 at the time of hearing) . . ., which should be added to the
              amount owed by Wife to Husband.

       At trial, Husband submitted his “proposed distribution” of the marital property.
Among the marital assets, under “bank accounts,” Husband listed “Rental Account” with a
stated value of $9,000. It was further listed as being in Wife’s possession and Husband
proposed that it be divided between the parties. In the court’s Master Asset List, attached to
the final decree, the “Rental Account” is listed, but with no determination of value and no
distribution by the trial court. In her brief, Wife simply states that “the record, the Final
Decree, and the Master Asset List are devoid of any mention of a division or value placed
on the account.” Wife is correct.

        In short, Husband points to nothing to establish the value of any “joint savings” or
“rental account” or to show even that any such account remained in existence at the time of
trial. Given the sparse record, we are unable to conclude that the trial court erred when it
apparently declined to assign a value and distribute this alleged marital asset at trial.

                                             VI.

       The judgment of the trial court ordering Wife to pay to Husband $36,218.25 in the
division of the marital property is hereby modified to reflect a debt from Wife to Husband
of $39,268. Otherwise, the judgment is affirmed. This case is remanded to the trial court,
pursuant to applicable law, for enforcement of its judgment, as modified, and the collection
of costs assessed below. Costs on appeal are taxed 50% to Lori Ann Hoggatt and 50% to
David Ray Hoggatt.


                                           ______________________________________
                                           CHARLES D. SUSANO, JR., CHIEF JUDGE

                                              13
