author: WILLIAM C. KOCH, JR., P.J., M.S.,

text:
    Lisa R. ALTMAN v. Alan ALTMAN.
    Court of Appeals of Tennessee, at Nashville.
    Feb. 8, 2005 Session.
    April 7, 2005.
    Permission to Appeal Denied by Supreme Court Oct. 31, 2005.

      Gregory D. Smith, Clarksville, Tennessee, for the appellant, Alan Altman.
    Michael K. Williamson, Clarksville, Tennessee, for the appellee, Lisa R. Altman.
   OPINION

WILLIAM C. KOCH, JR., P.J., M.S.,

delivered the opinion of the court,

in which WILLIAM B. CAIN and PATRICIA J. COTTRELL, JJ., joined.

This appeal involves the division of marital property. Following almost fifteen years of marriage, both the husband and the wife sought a divorce in the Chancery Court for Montgomery County. The trial court, disregarding the marital dissolution agreement and quitclaim deed that the husband induced the wife to sign following their separation, awarded 58.5% of the marital estate to the husband and the remainder to the wife. The husband asserts on this appeal that the trial court erred by declining to follow the marital dissolution agreement and by overvaluing the marital property. We find that the trial court properly ignored the marital dissolution agreement and the quitclaim deed and that its valuation of the marital property is supported by the evidence. We have also determined that the manner in which the trial court divided the marital property was equitable.

I.

Alan Altman and Lisa Altman were married in September 1986 in Nashville. They separated in March 2001, and Ms. Altman filed for divorce in the Chancery Court for Montgomery County in December 2001. In June 2003, after Ms. Altman’s original lawyer withdrew from the case, Mr. Altman convinced Ms. Altman to sign a marital dissolution agreement and quitclaim deed conveying substantially all of the parties’ assets to him. He recorded the quitclaim deed immediately but waited until the day of trial, October 6, 2003, to file the marital dissolution agreement, along with his answer and counterclaim for divorce.

Ms. Altman’s new lawyer, who was unfamiliar with the marital dissolution agreement and the quitclaim deed, informed the trial court that his client no longer agreed to the marital dissolution agreement. The trial court decided that the marital dissolution agreement was not binding on the parties until accepted by the trial court and declined to give it any effect because Ms. Altman no longer agreed to it. Since both parties desired a divorce, the remainder of the trial focused on the parties’ disputes regarding the classification and valuation of the marital property. Their most significant disagreement related to the value of the marital residence, which had been destroyed by a tornado. The court valued the total marital estate at $126,622.95, which included the proceeds of the insurance settlement and the value of the real property minus the two mortgages on the property, totaling $68,383.95.

The trial court determined that the marital estate should be divided in an “approximately 50/50 split” between the parties after taking into consideration (1) that Mr. Altman had been paying the mortgage on the marital home, (2) that Ms. Altman had owned and operated a money losing consignment business for eight years, (3) that Mr. Altman had used marital funds to pay tax obligations and other debts of Ms. Altman’s business, and (4) that Ms. Altman had contributed separate assets to the marriage, including a $67,900 inheritance. Accordingly, the trial court awarded Mr. Altman 58.5% of the net marital estate and awarded Ms. Altman the remaining 41.5%.

Mr. Altman has appealed despite receiving more than one-half of the marital estate. He insists that the trial court erred by declining to divide the marital estate in accordance with the marital dissolution agreement and that the trial court erred in its valuation of the marital residence. Ms. Altman asserts that she should have been awarded a larger portion of the marital estate and that Mr. Altman should be required to pay her legal expenses for this appeal.

II.

The Efficacy Of The Marital Dissolution Agreement

Mr. Altman first takes the trial court to task for failing to use the marital dissolution agreement to guide its division of the marital estate. This argument overlooks the fact that Ms. Altman unequivocally repudiated the marital dissolution agreement before the trial started. The effect of Ms. Altman’s action was to undermine the enforceability of the marital dissolution agreement and to free the trial court to make its own equitable division of the marital estate.

Martial dissolution agreements are contracts. Johnson v. Johnson, 37 S.W.3d 892, 896 (Tenn.2001); , Wade v. Wade, 115 S.W.3d 917, 924 (Tenn.Ct.App.2002). They provide a vehicle for divorcing parties to, among other things, provide “for the equitable settlement of any property rights between the parties.” See Tenn.Code Ann. § 36-4-103(b) (2001). While these contracts become absolutely binding and enforceable after approval by the trial court, this court has recognized that parties may be permitted to withdraw from these agreements before they have been approved by the court, as long as one or both parties have not relied on the agreement to their detriment. Denbow v. Denbow, No. 02A01-9410-CH-00238, 1996 WL 243894, at ⅞1-2 (Tenn.Ct.App. May 9, 1996) (No Tenn. R.App. P. 11 application filed); Sutton v. Sutton, No. 03A01-9309-CH-00315, 1994 WL 108927, at *1 (Tenn. Ct.App. Mar.31,1994) (No Tenn. R.App. P. 11 application filed).

This record contains no evidence of detrimental reliance on the marital dissolution agreement by either of the Altmans. Accordingly, the trial court did not err by refusing to enforce the property settlement provisions in the agreement after Ms. Altman unequivocally repudiated it. While Mr. Altman remained free to argue that the marital dissolution agreement’s disposition of the marital property was fair and equitable, the trial court had' the prerogative to come up with its own equitable division of the marital estate based on the facts.

III.

The Significance Of The Quitclaim Deed

Mr. Altman also insists that the trial court erred by awarding Ms. Altman an interest in the real property where the marital home had been located and in the insurance proceeds resulting from the destruction of the home. He argues that Ms. Altman quitclaimed her interest in this property to him and, therefore, that the property should not have been included in the marital estate. This argument overlooks the important principle that the classification of property does not depend on the state of its record title but on the conduct of the parties. Mondelli v. Howard, 780 S.W.2d 769, 774 (Tenn.Ct.App.1989). Thus, the courts will consider all the parties’ legal and equitable interests in property when they are called upon to divide the marital estate. Jones v. Jones, 597 S.W.2d 886 (Tenn.1979).

Both the marital dissolution agreement and the quitclaim deed are transparent attempts by Mr. Altman to keep the parties’ marital home out of their marital estate. Neither accomplished their desired effect because no matter where the current legal title to the property lies, the property remains marital property because it was the parties’ home. Accordingly, the trial court properly classified both the real property where the house once stood and the insurance proceeds from the destruction of the house as marital property.

IY.

The Valuation Of The Marital Residence

Finally, Mr. Altman asserts that the trial court erred in its valuation of the marital residence by refusing to base its calculation on the cost of replacing the home. Relying on some creative mathematics, he insists that the value of the marital residence is $54,500 — the difference between the combined value of the insurance proceeds and the real property and cost he will incur to rebuild the home. We disagree with this approach to valuation for two reasons. First, the value of the marital residence is determined at the time of the divorce, and the future costs associated with rebuilding the home are simply not part of the equation. See Tenn. Code Ann. § 36-4-121(b)(l)(A) (Supp. 2004) (“[a]ll marital property shall be valued as of a date as near as possible to the date of entry of the order finally dividing the marital property”). Second, Mr. Altman’s suggested calculation fails to take the outstanding mortgages on the marital residence into consideration.

Y.

The Equitable Division of the Marital Estate

Ms. Altman complains that she should have received a larger share of the marital estate. She insists that the trial court unfairly awarded her only 41.5% of the marital estate because the court improperly viewed her failed consignment business as dissipation of marital assets. While we have determined that the evidence does not support the trial court’s conclusion that Ms. Altman dissipated marital funds in the operation of her consignment business, we find that the manner in which the trial court divided the marital estate was equitable based on the factors in Tenn. Code Ann. § 86-4-121(c).

A.

Mr. Altman’s Dissipation Claim

Among the factors that courts may consider when fashioning an equitable division of a marital estate is a party’s dissipation of the marital or separate property. Tenn.Code Ann. § 36 — 4—121(c)(5). Even though no statutory definition of “dissipation” exists, the term has a common meaning in the context of divorce. The concept of dissipation is based on waste. Ward v. Ward, No. W2001-01078-COA-R3-CV, 2002 WL 31845229, at *3 (Tenn.Ct.App. Dec.19, 2002) (No Tenn. R.App. P. 11 application filed). Dissipation of marital property occurs when one spouse uses marital property, frivolously and without justification, for a ■ purpose unrelated to the marriage and at a time when the marriage is breaking down. See, e.g., In re Marriage of Cerven, 317 Ill.App.3d 895, 252 Ill.Dec. 93, 742 N.E.2d 343, 348 (2000); Goodman v. Goodman, 754 N.E.2d 595, 598 (Ind.Ct.App.2001); Allison v. Allison, 160 Md.App. 331, 864 A.2d 191, 195 (2004); Kittredge v. Kittredge, 441 Mass. 28, 803 N.E.2d 306, 317 (2004); Budnick v. Budnick, 42 Va.App. 823, 595 S.E.2d 50, 58 (2004). Dissipation involves intentional or purposeful conduct, Stock v. Stock, 693 So.2d 1080, 1084 (Fla.Dist.Ct.App.1997); K v. B., 13 A.D.3d 12, 784 N.Y.S.2d 76, 90 (2004), that has the effect of reducing the funds available for equitable distribution. See In re Marriage of Miller, 342 Ill.App.3d 988, 277 Ill.Dec. 420, 796 N.E.2d 135, 141 (2003); Goodman v. Goodman, 754 N.E.2d at 598; Jeffcoat v. Jeffcoat, 102 Md.App. 301, 649 A.2d 1137, 1142 (1994).

Whether a particular course of conduct constitutes a dissipation depends on the particular facts of the case. In re Marriage of Cerven, 252 Ill.Dec. 93, 742 N.E.2d at 348; Solomon v. Solomon, 383 Md. 176, 857 A.2d 1109, 1112 (2004); Kittredge v. Kittredge, 803 N.E.2d at 316. The party claiming that dissipation has occurred, has the burden of persuasion and the initial burden of production. After the party alleging dissipation establishes a pri-ma facie case that marital funds have been dissipated, the burden shifts to the party who spent the money to present evidence sufficient to show that the challenged expenditures were appropriate. Wiltse v. Wiltse, No. W2002-03132-COA-R3-CV, 2004 WL 1908803, at *4 (Tenn.Ct.App. Aug.24, 2004) (No Tenn. R.App. P. 11 application filed); see also Bratcher v. Bratcher, 26 S.W.3d 797, 799 (Ky.Ct.App.2000); Turner v. Turner, 147 Md.App. 350, 809 A.2d 18, 52 (2002); Anderson v. Anderson, 29 Va.App. 673, 514 S.E.2d 369, 380 (1999).

An equitable division of marital property requires a thoughtful consideration of all the relevant factors listed in Tenn.Code Ann. § 36-4-121(c). Flannary v. Flannary, 121 S.W.3d 647, 650-51 (Tenn.2003); Kinard v. Kinard, 986 S.W.2d 220, 230-31 (Tenn.Ct.App.1998). Dissipation is not a separate factor. To the contrary, the allegedly improper or wasteful expenditure or transaction must be considered in the context of the marriage as a whole, and it must be weighed along with all the other relevant factors in the case. Kittredge v. Kittredge, 803 N.E.2d at 316. The factors that courts most frequently consider when determining whether a particular expenditure or transaction amounts to dissipation include: (1) whether the expenditure benefitted the marriage or was made for a purpose entirely unrelated to the marriage; (2) whether the expenditure or transaction occurred when the parties were experiencing marital difficulties or were contemplating divorce; (3) whether the expenditure was excessive or de minimis; and (4) whether the dissipating party intended to hide, deplete, or divert a marital asset. Halkiades v. Halkiades, No. W2004-00226-COA-R3-CV, 2004 WL 3021092, at *4 (Tenn.Ct.App. Dec.29, 2004); Wiltse v. Wiltse, 2004 WL 1908803, at *4; Ward v. Ward, 2002 WL 31845229, at *3; see also Thompson v. Thompson, 811 N.E.2d 888, 914 (Ind.Ct.App.2004).

Mr. Altman’s dissipation claim focuses on the unsuccessful consignment business that Ms. Altman operated for eight years during the marriage. Before the business finally closed down, the parties were required to use marital funds to pay business taxes and other operating expenses. Simple mismanagement of family finances is not dissipation, Cornell v. Smith, 616 So.2d 629, 630 n. 3 (Fla.Dist.Ct.App.1993), nor is using marital funds to prop up a failing business. McDavid v. McDavid, 333 S.C. 490, 511 S.E.2d 365, 368 (1999). As far as this record shows, Ms. Altman started this business long before the parties began experiencing marital problems. Mi'. Altman was aware of the business and was directly involved in the decision to use marital funds to pay its taxes and to defray its operating expenses. Because Mr. Altman failed to present any evidence that Ms. Altman started or operated her business for the purpose of depleting the marital estate, the trial court erred by characterizing Ms. Altman’s management of the business as “dissipation” for the purpose of TenmCode Ann. § 36-4 — 121(c)(5).

B.

The Division of the Marital Estate

Our decision that the evidence does not support the trial court’s conclusion that Ms. Altman dissipated marital assets by continuing to operate her consignment business does not necessarily undermine the validity of the manner in which the trial court divided the parties’ marital estate. In the final analysis, the appropriateness of the trial court’s division depends on its results. Bolin v. Bolin, 99 S.W.3d 102, 107 (Tenn.Ct.App.2002); Watters v. Watters, 959 S.W.2d 585, 591 (Tenn.Ct.App.1997). Based on our analysis of the evidence in light of the factors in Tenn. Code Ann. § 36-4-121(c), we have determined that awarding Ms. Altman 41.5% of the marital estate was equitable.

Trial courts have wide latitude in fashioning an equitable division of marital property, Fisher v. Fisher, 648 S.W.2d 244, 246 (Tenn.1983); Manis v. Manis, 49 S.W.3d 295, 306 (Tenn.Ct.App.2001), and appellate courts accord great weight to a trial court’s division of marital property. Wilson v. Moore, 929 S.W.2d 367, 372 (Tenn.Ct.App.1996); Edwards v. Edwards, 501 S.W.2d 283, 288 (Tenn.Ct.App.1973). Thus, we will ordinarily defer to the trial court’s division of the parties’ marital estate unless it is inconsistent with the factors in TenmCode Ann. § 36-4-121(c) or is not supported by a preponderance of the evidence. Brown v. Brown, 913 S.W.2d 163, 168 (Tenn.Ct.App.1994); Mahaffey v. Mahaffey, 775 S.W.2d 618, 622 (Tenn.Ct.App.1989); Hardin v. Hardin, 689 S.W.2d 152, 154 (Tenn.Ct.App.1983).

A division of marital property is not rendered inequitable simply because it is not precisely equal. Robertson v. Robertson, 76 S.W.3d 337, 341 (Tenn.2002); Cohen v. Cohen, 937 S.W.2d 823, 832 (Tenn.1996). It is essentially undisputed that Mr. Altman’s income provided most of the parties’ cash flow during the marriage and that he continued to pay the mortgages on the parties’ real property during the two years between the parties’ separation and the final divorce hearing. These mortgage payments enabled the parties to maintain and preserve the most valuable asset in the marital estate. The evidence regarding Mr. Altman’s financial contributions to the marriage provide a sufficient basis for awarding Mr. Altman a larger share of the marital estate.

YI.

We affirm the October 27, 2003 final decree of divorce and remand the case to the trial court for whatever further proceedings may be required. We also decline to award Ms. Altman her attorney’s fees for this appeal and tax the costs, in equal proportions, to Alan Altman and his surety and to Lisa R. Altman for execution, if necessary, may issue.

      . Mr. Altman asserts in his brief that the insurance proceeds totaled $103,000. However, the insurance proceeds actually totaled $109,500, which included $103,000 for the parties’ house, $4,500 for their kennel, and $2,000 for their barn. The trial court used this amount in all of its calculations.

      . $109,500.00 [insurance proceeds] + $90,000.00 [value of real property]-$131,116.05 [balance of outstanding mortgages] = $68,383.95.

      . Some commentators have argued that parties who sign a marital dissolution agreement should be estopped to repudiate it even in the absence of part performance or receipt of benefits! See Janet Leach Richards, Richards on Tennessee Family Law § 13-7(c) (2d ed.2004).

      . $199,500 [the insurance proceeds + the value of the real property]-? 145,000 [the cost of rebuilding the house] = $54,500.

      . The timing of the expenditure or transaction is extremely relevant. It is unlikely that expenditures that were typical or commonplace during the marriage will constitute dissipation, especially when the other spouse acquiesced in them. Askinazi v. Askinazi, 34 Conn.App. 328, 641 A.2d 413, 416 (Conn.Ct.App.1994); Rosenfeld v. Rosenfeld, 597 So.2d 835, 836-37 (Fla.Dist.Ct.App.1992); Bojrab v. Bojrab, 786 N.E.2d 713, 728 (Ind.Ct.App.2003).


source: Caselaw Access Project

author: CHARLES D. SUSANO, JR., J.,

license: Public Domain

text:
    Frankie Robin SLIGER v. Darrell Dwayne SLIGER.
    Court of Appeals of Tennessee, at Knoxville.
    April 4, 2005 Session.
    June 16, 2005.
    Permission to Appeal Denied by Supreme Court Nov. 21, 2005.

      James H. Hickman, III, Knoxville, Tennessee, for the appellant, Darrell Dwayne Sliger.
    John A. Hoag, Knoxville, Tennessee, for the appellee, Frankie Robin Sliger.
   OPINION

CHARLES D. SUSANO, JR., J.,

delivered the opinion of the court,

in which HERSCHEL P. FRANKS, P.J., and D. MICHAEL SWINEY, J., joined.

Frankie Robin Sliger obtained her first order of protection against the defendant — her then-husband, Darrell Dwayne Sliger — on September 23, 1997. Six years later, and following the entry and extension of a series of such orders, the defendant was convicted in the instant case of 21 violations of the present order of protection. The trial court sentenced him to serve 10 days in jail for each violation; it also reinstated an additional 310 days of incarceration for 31 earlier violations. Enforcement of the additional 310 days of incarceration had been stayed so long as the defendant continued “good behavior.” The defendant appeals, arguing that the trial court (1) abused its discretion in denying his request for a continuance; (2) erred in failing to grant him a jury trial; and (3) erred in failing to hold that his conduct resulted in only two rather than 21 violations. We affirm.

I.

This case has a lengthy procedural history, dating back to the initial order of protection secured by Ms. Sliger in 1997. That order was based upon her petition, in which she alleged that the defendant had threatened to kill her and had injured her. Numerous orders of protection and extensions of such orders followed over the next few years. In March, 2000, Ms. Sliger and the defendant were divorced.

On August 15, 2002, the trial court entered an order of protection without social contact, prohibiting the defendant from having any contact with Ms. Sliger. The order stated that if the defendant were to be found in violation of the order, he could be held in contempt and “punished by incarceration in the Knox County Jail for [a] maximum of ten days (10) ..., for each violation.” On the day the order was entered, Ms. Sliger filed a motion asking that the defendant be directed to show cause why he should not be held in contempt for violating the order of protection. On November 7, 2002, the trial court conducted a hearing on Ms. Sliger’s motion. At the hearing, the defendant acknowledged that “while he was incarcerated, he mailed 31 sets of correspondence addressed to the parties’ son ... knowing that ‘[Ms. Sliger] would read them first.’ ” The trial court found that the defendant was guilty of criminal contempt in that he had committed 31 separate violations of the order of protection. The court sentenced the defendant to 310 days in the county jail, but stayed the execution of the sentence “pending continued good behavior and obedience by [the defendant] to the non-contact order with [Ms. Sliger] or [the parties’ son].”

On July 10, 2003, Ms. Sliger filed another motion for an order to show cause, alleging that the defendant had again committed numerous violations of the order of protection. The court scheduled a hearing on the motion for October 16, 2003. According to the statement of the evidence, the defendant terminated the services of his attorney “prior to the hearing,” though it is unclear as to exactly when this occurred. New counsel was appointed to represent the defendant at the hearing “upon a few minutes notice.” The defendant’s new attorney requested a continuance, which request was denied by the trial court.

In its order finding the defendant to be in contempt of court, the trial court made the following findings:

That the [defendant] received actual notice of the proceeding; that the [defendant] had an opportunity to participate in the proceeding, and did, being represented by counsel. The court examined — and Mr. Brown (present counsel) also examined prior counsel as to trial preparation by defendant and his prior counsel. The court is well satisfied that defendant has received able assistance of counsel.
Today’s case began with allegations that the Order of Protection had been violated. The court finds today that the [defendant] called on 6/15/03 repeatedly, and once on 6/16/03, threatening graphic bodily mutilation to [Ms. Sliger], to her mother, to his son, to all members of the family. He has placed them all in fear, including [Ms. Sliger’s new] husband. [The defendant] will “cut legs off’, will “cut heads off.” His son is unable to sleep due to anxiety.
Additionally, the 310 days [of] incarceration suspended by the order of 11-7-2002 are now imposed and shall be served in their entirety.
The court finds one additional violation on 6/16/03 in the phone call, and one additional on 6/16/03, to wit, the placing-in-fear.
The court finds, as to 6/15/03, “repeated” phone calls on that day, 18 times at ten-minute intervals, with enough intervening time to allow reflection. Hence each instance constitutes a separately matured offense. As to the 18 instances the court aggregates them all into one instance of placing-in-fear. The 19 instances lead to 190 additional days [of] incarceration, for a total of 520 days to be served in their entirety.

The defendant subsequently filed a motion for reconsideration and rehearing, which motion was denied. From this order, the defendant appeals.

II.

Our review of this non-jury case is de novo upon the record of the proceedings below with a presumption of correctness as to the trial court’s factual findings, “unless the preponderance of the evidence is otherwise.” Tenn. R.App. P. 13(d). The trial court’s conclusions of law are not accorded the same deference. Brumit v. Brumit, 948 S.W.2d 739, 740 (Tenn.Ct.App.1997).

III.

A.

The defendant raises three issues on appeal:

(1) Did the trial court abuse its discretion when it denied the defendant’s request for a continuance prior to the October 16, 2003, hearing?
(2) Did the trial court err in failing to grant the defendant a jury trial?
(3) Did the trial court err in failing to find only two violations as a result of the defendants’ conduct on June 15 and 16, 2003?

B.

The defendant first contends that the trial court abused its discretion in denying his request for a continuance just prior to the October 16, 2003, hearing. We disagree.

With respect to the denial of a motion for continuance, “[a]n appellate court cannot interfere with the trial court’s decision unless such decision constitutes an abuse of discretion and causes prejudice to the party seeking the stay or continuance.” Sanjines v. Ortwein & Assocs., P.C., 984 S.W.2d 907, 909 (Tenn.1998) (citation omitted). The record in the instant case reflects that, just before the start of the October 16, 2003, hearing, the defendant requested a continuance based upon the appointment of new counsel who was unfamiliar with the case. While the statement of the evidence reflects that the defendant had terminated the services of his former attorney “prior to the hearing,” there is no indication anywhere in the record as to when this termination occurred, be it minutes, hours, days, or weeks prior to the hearing.

The trial court, in its order finding the defendant in contempt, noted that the defendant had notice of the contempt proceeding; that he participated in the proceeding; and that he was represented by counsel. The court noted that the court, as well as the defendant’s new counsel, examined the defendant’s prior counsel “as to trial preparation by defendant and his prior counsel.” Thereupon, the court concluded that it was “well satisfied that defendant ha[d] received able assistance of counsel.”

Taking all of this evidence together, particularly the failure of the record to state exactly when the defendant’s previous counsel was terminated and why he was terminated, we cannot say that the trial court abused its discretion when it denied the defendant’s request for a continuance. Furthermore, the sparse record before us fails to show affirmatively that the defendant was prejudiced, in terms of his ability to defend, by the denial of the continuance. Accordingly, we find this issue adverse to the defendant.

C.

Next, the defendant argues that the trial court erred in fading to grant him a jury trial on these criminal contempt charges. The defendant seems to premise his argument on the theory that, because he was, prior to the hearing, potentially subject to an aggregate sentence of more than six months, he was entitled to a jury trial.

While the defendant did not request a jury trial, he contends that the trial court did not advise him he was entitled to a jury. He states that he never waived his right to trial by jury. We will proceed immediately to the issue of whether the defendant was entitled to a jury trial with respect to the charges pending against him.

In support of his argument, the defendant relies upon the United States Supreme Court case of Codispoti v. Pennsylvania, 418 U.S. 506, 94 S.Ct. 2687, 41 L.Ed.2d 912 (1974). In Codispoti, the defendants, whose request for a jury trial was denied, were each sentenced to serve a term of six months in jail for each of several criminal contempt charges, with the sentences to run consecutively. Id. at 507-10, 94 S.Ct. 2687. All of the criminal contempt convictions arose out of the defendants’ contemptuous conduct during their trial, which included direct threats and insults to the trial judge. Id. The trial court held that the defendants were not entitled to a jury trial because, inter alia, “no term of imprisonment in excess of six months was imposed for any one offense” and “[t]he offenses for which sentences were imposed occurred at different times and on different dates.” Id. at 510, 94 S.Ct. 2687. The defendants appealed their convictions, asserting that the trial court erred in denying their request for a jury. Id. at 511, 94 S.Ct. 2687. The Pennsylvania Supreme Court affirmed the trial court’s decision, id., but the United States Supreme Court reversed, holding that, because each defendant was sentenced to “several times more” than six months in jail, each defendant “was tried for what was equivalent to a serious offense and was entitled to a jury trial.” Id. at 517, 94 S.Ct. 2687.

Over twenty years later, the United States Supreme Court distinguished the Codispoti case in Lewis v. United States, 518 U.S. 322, 116 S.Ct. 2163, 135 L.Ed.2d 590 (1996). The defendant in Lewis, an employee of the United States Postal Service, was charged with two counts of mail obstruction, with each count carrying a maximum prison sentence of six months. Id. at 324, 116 S.Ct. 2163. The trial court denied the defendant’s request for a jury trial, essentially promising the defendant that the court would not sentence him to more than a total of six months’ imprisonment and that, as a consequence of the court’s self-imposed limitation, he was not entitled to a jury trial. Id. The defendant appealed the trial court’s denial of his jury demand, and the Supreme Court granted certiorari, prior to a trial on the charges, to determine whether, inter alia, “a defendant prosecuted in a single proceeding for multiple petty offenses has a constitutional right to a jury trial, where the aggregate sentence authorized for the offenses exceeds six months’ imprisonment.” Id. at 324-25, 116 S.Ct. 2163.

The Court began by noting that the Sixth Amendment guarantee to trial by jury extends to “serious offenses, and that ‘there is a category of petty crimes or offenses which is not subject to the Sixth Amendment jury trial provision.’ ” Id. at 325, 116 S.Ct. 2163 (quoting Duncan v. Louisiana, 391 U.S. 145, 159, 88 S.Ct. 1444, 1453, 20 L.Ed.2d 491 (1968)). The Court then stated that “[a]n offense carrying a maximum prison term of six months or less is presumed petty, unless the legislature has authorized additional statutory penalties so severe as to indicate that the legislature considered the offense serious.” Id. at 326, 116 S.Ct. 2163 (citing Blanton v. N. Las Vegas, 489 U.S. 538, 543, 109 S.Ct. 1289, 1293, 103 L.Ed.2d 550 (1989); Codispoti 418 U.S. at 512, 94 S.Ct. 2687). While the six-month penalty for obstruction of mail clearly made it a petty offense, the Court was still faced with the question of whether the defendant was entitled to a jury trial since the potential aggregated penalty for the two counts was twelve months. Id. In deciding this issue, the Court focused upon the maximum penalty authorized for one offense, rather than the aggregate of the sentences faced by the defendant. “Here, the penalty authorized by Congress manifests its judgment that the offense is petty, and the term of imprisonment faced by petitioner by virtue of the second count does not alter that fact.” Id. at 328, 116 S.Ct. 2163.

In addressing the defendant’s argument that Codispoti stands for the proposition that convictions for multiple petty offenses can cause the offenses to be considered serious for the purpose of the jury trial issue, the Court distinguished Codispoti as follows:

Codispoti is inapposite. There, defendants were each convicted at a single, nonjury trial for several charges of criminal contempt. The Court was unable to determine the legislature’s judgment of the character of that offense, however, because the legislature had not set a specific penalty for criminal contempt. In such a situation, where the legislature has not specified a maximum penalty, courts use the severity of the penalty actually imposed as the measure of the character of the particular offense. Codispoti supra, at 511, 94 S.Ct. at 2690; Frank [v. United States], supra, [395 U.S. 147,] 149, 89 S.Ct. [1503,] 1505[, 23 L.Ed.2d 162 (1969)]. Here, in contrast, we need not look to the punishment actually imposed, because we are able to discern Congress’ judgment of the character of the offense.
Furthermore, Codispoti emphasized the special concerns raised by the criminal contempt context. Contempt “often strikes at the most vulnerable and human qualities of a judge’s temperament. Even where the contempt is not a direct insult to the court ... it frequently represents a rejection of judicial authority, or an interference with the judicial process .... ” Codispoti 418 U.S. at 516, 94 S.Ct. at 2693 (internal quotation marks omitted); see also Mayberry v. Pennsylvania, 400 U.S. 455, 465-466, 91 S.Ct. 499, 504-505, 27 L.Ed.2d 532 (1971). In the face of courtroom disruption, a judge may have difficulty maintaining the detachment necessary for fair adjudication; at the same time, it is a judge who “determines which and how many acts of contempt the citation will cover,” “determine[s] guilt or innocence absent a jury,” and “imposefe] the sentence.” Codispoti 418 U.S. at 515, 94 S.Ct. at 2693. Therefore, Codispoti concluded that the concentration of power in the judge in the often heated contempt context presented the “very likelihood of arbitrary action that the requirement of jury trial was intended to avoid or alleviate.” Ibid. The benefit of a jury trial, “ ‘as a protection against the arbitrary exercise of official power,’ ” was deemed particularly important in that context. Id., at 516, 94 S.Ct. at 2693 (quoting Bloom v. Illinois, 391 U.S. 194, 202, 88 S.Ct. 1477, 1482, 20 L.Ed.2d 522 (1968)).
The absence of a legislative judgment about the offense’s seriousness, coupled ■with the unique concerns presented in a criminal contempt case, persuaded us in Codispoti that, in those circumstances, the jury trial right should be determined by the aggregate penalties actually imposed. Codispoti was held to be entitled to a jury trial, because the sentence actually imposed on him for criminal contempt exceeded six months. By comparison, in Taylor v. Hayes, 418 U.S. 488, 94 S.Ct. 2697, 41 L.Ed.2d 897 (1974), which similarly involved a defendant convicted of criminal contempt in a jurisdiction where the legislature had not specified a penalty, we determined that the defendant was not entitled to a jury trial, because the sentence actually imposed for criminal contempt did not exceed six months. Contrary to Justice KENNEDY’S argument, ..., Codispoti and Taylor do not stand for the sweeping proposition that, outside their narrow context, the jury trial right is determined by the aggregate penalties faced by a defendant.
Certainly the aggregate potential penalty faced by petitioner is of serious importance to him. But to determine whether an offense is serious for Sixth Amendment purposes, we look to the legislature’s judgment, as evidenced by the maximum penalty authorized. Where the offenses charged are petty, and the deprivation of liberty exceeds six months only as a result of the aggregation of charges, the jury trial right does not apply....
The Constitution’s guarantee of the right to a jury trial extends only to serious offenses, and petitioner was not charged with a serious offense. That he was tried for two counts of a petty offense, and therefore faced an aggregate potential term of imprisonment of more than six months, does not change the fact that the Legislature deemed this offense petty. Petitioner is not entitled to a jury trial.

Id. at 828-30, 116 S.Ct. 2163 (emphasis added).

In discussing criminal contempt, the United States Supreme Court emphasized that a judge might have difficulty remaining impartial “[i]n the face of courtroom disruption” and in the “often heated contempt context.” Id. at 329, 116 S.Ct. 2163 (emphasis added). In addition, the Court stated that Codispoti and Taylor, “outside their narrow context,” do not stand for the “sweeping proposition that ... the jury trial right is determined by the aggregate penalties faced by a defendant.” Id. (emphasis added). We find nothing in Codispoti — either expressly or by implication — which states that all criminal contempt cases involving potential aggregate sentences in excess of six months are so unique as to give rise to the right to a jury trial in all such cases. Lewis rather than Codispoti controls the facts of the case at bar. It is clear beyond any doubt that our legislature has deemed criminal contempt to be a petty offense, as it is punishable by only ten days in jail and a $50 fine. See Tenn.Code Ann. § 29-9-103 (2000). Moreover, the criminal contempt charges involved in the instant case all relate to the defendant’s violations of an order of protection, whereas in Codispoti, the charges all pertained to direct insults or threats to the court Our reading of Codispoti and Lewis convinces us that the latter conduct in Codispoti is what distinguishes that case from Lewis and the facts of the instant case. Accordingly, following Lewis, we hold that the defendant in the instant case was not entitled to a jury trial. See also Perkerson v. Perkerson, No. 01A01-9602-CV-00059, 1996 WL 426807, at *3 (Tenn.Ct.App. M.S., filed July 31, 1996) (holding that “the violation of a court order, punishable by a fifty dollar fine and/or ten days in jail under Tenn.Code Ann. § 29-9-103,” does not entitle the accused to a jury trial).

D.

Finally, the defendant asserts that the trial court erred in failing to hold that the defendant’s conduct on June 15 and 16, 2003, resulted in only two violations of the order of protection. Specifically, the defendant contends that the 18 telephone calls at ten-minute intervals on June 15, 2003, along with the placing-in-fear charge on that same date, and the one phone call on June 16, 2003, along with the additional placing-in-fear charge on the 16th, should have been counted as only two violations instead of 21 separate violations. The defendant argues that his multiple telephone calls “clearly indicate[] that [his] intent was a singular intent and involved a singular contempt of the previous order of protection.” We disagree.

The seminal case on this subject is Cable v. Clemmons, 36 S.W.3d 39 (Tenn.2001). In Cable, the defendant was convicted of six counts of criminal contempt for threatening and abusing his girlfriend in violation of an order of protection. Id. at 40-41. The Tennessee Supreme Court found that the evidence supported only three contempt convictions, but, in so finding, the Court discussed the analysis to be utilized in deciding whether multiple convictions constitute punishment for the same offense:

The courts must consider 1) the statutory elements of the offenses, ...; 2) the evidence used to establish the offenses, ...; 3) whether the defendant’s conduct involved multiple victims or discrete acts; and 4) whether the purpose of the respective statutes at issue is the same or different.

Id. at 42 (citing State v. Denton, 938 S.W.2d 373, 381 (Tenn.1996)). The Court went on to note that no single factor is controlling and that each must be “weighed and considered in relation to the others.” Id. (citation omitted).

Applying these factors to the instant case, we begin by noting that there is only one statute involved, i.e., Tenn.Code Ann. § 29-9-103, as each conviction is for criminal contempt. With respect to the evidence used to establish the offenses, the trial court found that the defendant, in his multiple telephone calls, threatened “graphic bodily mutilation” to Ms. Sliger, to the parties’ son, and to all members of Ms. Sliger’s family. The court also found that the defendant had placed the entire family in fear with his threats to “cut legs off’ and “cut heads off.” Finally, the trial court found that the parties’ son “is unable to sleep due to anxiety.” As to whether the defendant’s conduct involved discrete acts, there is no question that the trial court found each telephone call to be a separate and distinct act, as the calls on the 15th were made at ten-minute intervals “with enough intervening time to allow reflection” and that each call thus constituted “a separately matured offense.”

We find no error in the trial court’s holdings. The time that elapsed between telephone calls on the 15th is clearly enough to constitute 18 separate acts, and thus, 18 separate violations; there is no way these telephone calls can be construed as one continuing course of conduct. On each occasion, a call was completed and terminated; there was a period of time for reflection; and a new call was then initiated.

The defendant relies on the case of State v. Wood, 91 S.W.3d 769, 776 (Tenn.Ct.App.2002), for the proposition that “the sentence [should] be the least severe measure necessary to achieve the purpose for which the sentence is imposed.” The defendant advances the theory that, like the defendant in Wood, incarceration for well over a year is not the least severe measure necessary to punish him for his conduct. However, in Wood, the court pointed out that there were no allegations of the defendant engaging in violent or threatening behavior. Id. at 777. In the instant case, the evidence is quite to the contrary: the defendant repeatedly — and graphically— threatened violence against Ms. Sliger and her family. Moreover, the defendant was given the opportunity to avoid the stayed sentence of 310 days. This sentence was stayed “pending continued good behavior and obedience” to the order of protection. Ihstead, the defendant, less than eight months later, continued his pattern of disregarding the order of protection and made multiple threatening telephone calls to Ms. Sliger. In light of his continued and utter disregard for the order of protection, we find that the defendant’s sentence is necessary “to achieve the purpose for which the sentence [was] imposed.” Id. at 776.

IV.

The judgment of the trial court is affirmed. This case is remanded to the court below for thé collection of costs assessed there and for the enforcement of that court’s judgment. Costs on appeal are taxed to the appellant, Darrell Dwayne Sliger.

      . The defendant does not specifically raise as an issue the propriety of treating a telephone call or calls on a specific day as both a violation of the "no contact” provision of the order of protection and "the placing in fear” provision of the same order. Since this issue was not raised, we do not address it.


author: SHARON G. LEE, J., CHARLES D. SUSANO, JR.,

text:
    Lendel L. CONLEY v. Jo Ann CONLEY.
    Court of Appeals of Tennessee, Eastern Section, at Knoxville.
    April 5, 2005 Session.
    May 9, 2005.
    Permission to Appeal Denied by Supreme Court Dec. 5, 2005.

      Mitchell A. Byrd, Chattanooga, Tennessee, for the Appellant, Jo Ann Conley.
    Stephen T. Greer, Dunlap, Tennessee, for the Appellee, Lendel L. Conley.
   OPINION

SHARON G. LEE, J.,

delivered the opinion of the court,

in which HERSCHEL P. FRANKS, P.J., joined. CHARLES D. SUSANO, JR., J., filed a separate concurring opinion.

In this divorce case, the wife raises the issues of whether the trial court erred in ruling it had jurisdiction based on the husband’s domicile in Bledsoe County, Tennessee; whether the trial judge erred in refusing to recuse himself from the trial of the case; and whether the court erred by failing to equitably divide the marital estate. The husband argues on appeal that the trial court should have classified certain assets that it held to be marital property as his separate property. We modify the division of marital property to increase the amount awarded to the wife, and affirm the court’s judgment in all other respects.

I. Procedural and Factual Background

Lendel L. Conley (“Husband”) and Jo Ann Conley (“Wife”) were married on February 14, 1986. At the time of the marriage, Husband was 65 years old and Wife was 38 years old. No children were born of the marriage. On January 2, 2001, Husband filed this action for divorce. At the time Husband filed for divorce, he was living at his home in Bledsoe County, Tennessee, and Wife was living in Florida.

On June 1, 2001, Wife filed a motion to dismiss, alleging that the trial court lacked jurisdiction pursuant to TenmCode Ann. § 36-4-104. Wife filed an affidavit supporting her motion, the essence of which was an argument that Husband neither resided in nor was he domiciled in Tennessee. On April 2, 2002, the trial court, after considering various competing affidavits, held that Husband had established that his domicile and residence was in Tennessee. The court overruled Wife’s motion to dismiss.

Subsequent to this adverse ruling, and nearly sixteen months after Husband’s initial complaint for divorce, Wife filed a motion requesting the trial judge to recuse himself. This motion stated in its entirety as follows:

The Defendant [Wife] would show that there have been various communications between herself and Judge Up-church concerning the situation with the Plaintiff [Husband]. The Defendant would further show that as a result of these conversations she communicated with Judge Upchurch by telephone and mail and was also renting space from Judge Upchurch for a period of several months.
WHEREFORE, Defendant moves the Court for recusal in this case.

Judge Upchurch declined to recuse himself, finding no grounds to do so. Wife subsequently filed a pro se motion for change of venue, arguing that “she has a reasonable fear that she would not receive a fair trial in this venue.” On August 13, 2002, Wife filed a pro se “motion to disqualify judge,” alleging that “the Judge is biased and prejudiced against” her. The court overruled these motions.

The trial court heard the case on September 17 and 18, 2003. The contested issues primarily involved the classification, valuation and division of the parties’ assets. The court held the vast majority of the estate to be marital property, and divided the marital estate so that Husband received assets valued at $1,877,644.48 (70.59% of the estate) and Wife received assets valued at $782,237.75 (29.41%).

II.Issues Presented

Wife appeals, raising the following issues for our review:

1. Whether the trial court erred in ruling it had jurisdiction over the case due to the husband’s domicile and residence in Bledsoe County, Tennessee.
2. Whether the trial judge erred in refusing to recuse himself from the trial of the case.
3. Whether the court erred by failing to equitably divide the marital estate.

In addition, Husband raises the issue of whether the trial court erred in classifying certain assets as marital rather than his separate property.

III.Standard of Review

In this non-jury ease, our review is de novo upon the record of the proceedings below; but the record comes to us with a presumption of correctness as to the trial court’s factual determinations that we must honor unless the evidence preponderates against those findings. Tenn. R.App. P. 13(d); Wright v. City of Knoxville, 898 S.W.2d 177, 181 (Tenn.1995); Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn.1993). The trial court’s conclusions of law, however, are accorded no such presumption. Campbell v. Florida Steel Corp., 919 S.W.2d 26, 35 (Tenn.1996); Presley v. Bennett, 860 S.W.2d 857, 859 (Tenn.1993).

IV.Jurisdiction to Grant Divorce

As the parties recognize, the issue of whether the court had jurisdiction to hear and grant a divorce is governed by TenmCode Ann. § 36-4-104, which provides in relevant part as follows:

(a) A divorce may be granted for any of the aforementioned causes if the acts complained of were committed while the plaintiff was a bona fide resident of this state or if the acts complained of were committed out of this state and the plaintiff resided out of the state at the time, if the plaintiff or the defendant has resided in this state six (6) months next preceding the filing of the complaint.

This statute makes Tennessee residency by at least one of the parties a condition precedent to a court having jurisdiction to grant a divorce. The residency requirement in Tenn.Code Ann. § 36-4-104(a) “is intended to assure that Tennessee has a sufficient relationship with the parties and their marriage to make it reasonable for the courts of this state to affect the parties’ marital status.” Barnett v. Barnett, No. 01A01-9605-CH-00228, 1998 WL 787043 at *3, 1998 Tenn.App. LEXIS 765 at *8 (Tenn. Ct.App. M.S., filed Nov. 13, 1998).

Our courts have interpreted the term “residence” as used in Tenn.Code Ann. § 36-4-104(a) to be synonymous with “domicile.” Brawn v. Brown, 150 Tenn. 89, 261 S.W. 959 (1924); Wiseman v. Wiseman, 216 Tenn. 702, 393 S.W.2d 892, 895 (1965); Barnett, 1998 WL 787043 at ⅞3. The Tennessee Supreme Court has defined “domicile” as follows:

Domicile is defined as the place where a person has his principal home and place of enjoyment of his fortunes; which he does not expect to leave, except for a purpose; from which when absent, he seems to himself a wayfarer; to which when he returns, he ceases to travel. [Internal quotations omitted].

Wiseman, 393 S.W.2d at p. 894. As this court stated in the Barnett case,

To create domicile in Tennessee, a person ordinarily must not only intend to establish a personal home in this state but must also act consistently with this intention. See Greene v. Greene, 43 Tenn.App. 411, 429, 309 S.W.2d 403, 411 (1957). To acquire domicile here, the person must also have no present intention or expectation of changing his or her residence to some other state. See Tate v. Collins, 622 F.Supp. 1409, 1412 (W.D.Tenn.1985).
In reviewing such questions [regarding domicile], we consider not only a person’s declarations and conduct but also all other relevant facts and circumstances. See Wiseman v. Wiseman, 216 Tenn. at 708, 393 S.W.2d at 895.

Barnett, 1998 WL 787043 at *3-4.

Wife filed an affidavit in support of her motion to dismiss for lack of jurisdiction, alleging the following in relevant part:

At all times, both myself and Dr. Conley have claimed Florida as our permanent residence. Up to this point, there was never a question concerning the fact that Florida was our residence:
1. We have always filed Federal Income Taxes listing Florida as our residence. We have always, including the taxable year 1999, filed Florida Intangible Taxes listing Florida as our residence.
2. Both my husband and I are registered voters in the State of Florida and we participated and voted in the Bre-vard County, Florida 2000 elections ...
3. My husband drives a white Chrysler automobile registered with Florida tags. My husband has a Florida drivers license listing Florida as his residence.
4. My husband maintains numerous professional memberships listing his residence in the State of Florida.
5. My husband’s medical insurance is with the Florida Dental Association listing his residence as Florida.
6. My husband has never filed a State of Tennessee “Hall Income Tax return” always claiming Florida as his residence ...
7. All Brokerage accounts owned by either myself, or my husband, list Florida as our residence.
8. My husband, Dr. Conley, has always maintained that there were substantial tax advantages to maintaining our residence in the State of Florida and by doing so, we could avoid the Income Taxes assessed against persons having interest and dividend income by the State of Tennessee.

Husband responded with his own affidavit, stating in pertinent part as follows:

1... .At the time of the filing of the above-described Complaint for Divorce, I had been a resident of Bledsoe County, Tennessee, for more than six months immediately prior thereto. I also maintain a place of abode at 930 South Cour-tenay, Merritt Island, Florida, but that place of abode is not my residence and was not my residence at the time of the filing of the Divorce Complaint in this cause.
2. The home in which I now reside in Bledsoe County, Tennessee, was constructed and finished in 1993. I have lived in that residence since that time up to the present. Before July of 1993, I lived in a smaller house located on the same real estate located in Bledsoe County, Tennessee, from December of 1990 up until July 1993.
3. It is my intent, and has been for more than six months immediately preceding the filing of the divorce in this cause, that the residence in which I live in Bledsoe County be my permanent and primary residence. I maintained a place of abode in the State of Florida for the purpose of visiting from time to time which I have done over the years. Since moving to Bledsoe County, I have been physically present and lived in Bledsoe County at least 80% of the time.
4. For at least six months immediately preceding the filing of the Divorce Complaint in this cause, I owned and operated two pick-up trucks with Tennessee Registration ...
5. My wife, Jo Ann Conley, has on previous occasions advised me that there was a tax advantage to listing the State of Florida as our permanent residence on tax returns. I did not question her assertion and did not question her effort to have our residence shown as the State of Florida.
6. At the time of filing of the divorce in this cause, I continued to maintain and use a Florida drivers license ...
7. Any listing of my address as the State of Florida was at my wife’s insistence and instructions.
8. I currently maintain a post office box in Pikeville, Tennessee, Bledsoe County, where I receive mail and have so for the last six years. Prior to that time, I received my mail at a rural route address in Bledsoe County, Tennessee
9. Since 1990 I have maintained telephone number and listing for Bledsoe County, Tennessee ... Since approximately 1990, I have also maintained one or more bank accounts in Bledsoe County, Tennessee, where I have engaged in my principal banking activities.

Each party submitted other affidavits of their respective acquaintances, with Husband’s witnesses attesting that he resided in Tennessee, and Wife’s witnesses attesting that he intended to maintain his residence in Florida.

Following a hearing on March 22, 2002, the trial court considered the evidence and filed a memorandum opinion stating in relevant part as follows:

[T]he parties stipulated to the following facts in addition to those set forth in the affidavits:
1. That the parties constructed one or more houses on jointly owned real property in Bledsoe County, Tennessee, in 1990 and 1993;
2. That the Defendant [Wife] resides in the State of Florida at 930 South Courtnay [sic], Merritt Island, Florida;
3. That prior to the construction of the homes in Bledsoe County, the Plaintiff [Husband] also resided in and about Merritt Island, Florida;
4. That the [Husband] has spent a majority of his time and been physically present or lived in Bledsoe County a majority of the time from and after 1990 or 1993;
5. That the parties are registered to vote in Brevard County, Florida;
6. That the [Husband] maintains a Florida drivers license and has not sought or maintained a Tennessee drivers license;
7. That the address on [Husband’s] federal income tax return is Merritt Island, Florida, rather than Tennessee;
8. That the [Husband] does not file a “Hall” income tax return as required for residents of the State of Tennessee;
9. That the [Husband] has a Chrysler New Yorker automobile, in his possession, registered in the State of Florida, and two trucks registered in Bledsoe County, Tennessee. One of these trucks is the [Husband’s] primary vehicle.
On the date the [Husband] filed his Complaint for Divorce, the Court finds that the [Husband] was living in Bledsoe County. The Court further finds that the [Husband] intended to establish his personal home in Bledsoe County as early as 1990 and that his actions were and have been consistent with his intentions. In addition to physically living in
Bledsoe County, the [Husband] has vehicles in this county (two of which are registered and titled in Bledsoe County) as well as other significant tangible personal properties. It is true that the [Husband] retained ties to the State of Florida, including the maintenance of his voting registration and the continuation of a Florida drivers license, but this does not, in the Court’s opinion, overcome the significant relationship created by the [Husband] with the State of Tennessee. The Court concludes, therefore, that the [Husband] was a bonafide resident of Tennessee when he filed his Complaint for Divorce in January of 2001, and that he met the residency requirement of T.C.A. § 36-4-104(a).

Wife’s motion to dismiss was effectively a motion for summary judgment, see Tenn. R. Civ. P. 12.03. However, because the trial court elected to hold an evidentiary hearing on the matter, at which no witnesses testified but the important stipulations listed above were made, our review is de novo on the record. Tenn. R.App. P. 13(d); Cho v. Jeong, No. 03A01-9806-CV-00257, 1997 WL 306017 at *4, 1997 Tenn. App. LEXIS 407 at *10 (Tenn. Ct.App. E.S., filed June 6,1997).

The evidence does not preponderate against the trial court’s ruling that it had jurisdiction under TenmCode Ann. § 36-4-104(a). While the evidence presented by Wife regarding Husband’s Florida voter registration, tax filing status and Florida driver’s license certainly has bearing and relevancy on the question, and was properly considered by the trial court as a factor, it does not outweigh the fact that Husband has lived and “hung his hat” in Tennessee since 1990. The Supreme Court stated long ago that “[i]t is well settled that a party may have two or more residences, in the sense that he may have different places of abode, but he can have but one domicile.” Brown v. Brown, 150 Tenn. 89, 261 S.W. 959 (1924). It may be that Husband has an additional “place of abode” in Florida at Wife’s house, but it is clear that he has intended his domicile to be in Bledsoe County. We affirm the trial court’s ruling that it had jurisdiction in this case.

V. Recusal

As noted above, after the court’s ruling adverse to Wife on the jurisdiction issue, she filed a motion for the trial judge to recuse himself. The grounds for the motion were: (1) in June of 1990, the judge had done some title insurance work as an attorney for the sellers of the Bled-soe County farm purchased by Husband; (2) in April of 1992, Wife apparently made inquiry regarding renting office space in a building owned by the judge’s father, and Wife paid rent on the office space to the trial judge for a number of months in 1992.

Judge Upchurch declined to recuse himself, stating:

I don’t have any independent recollection about any matters involving your client [Wife] or Mr. Conley other than what I’ve stated ... And it’s extremely problematic for part-time Sessions judges to practice law and to hear cases, but when there are true conflicts and when there is an appearance of a conflict and appearance of an impropriety, I will recuse myself, but I don’t find that to be the case here. And with all due respect, I’m going to deny the motion.

Regarding a motion to recuse, “whether recusal is warranted is left to the discretion of the trial judge, and such decision will not be reversed absent a clear abuse of discretion on the face of the record.” Board of Professional Resp. v. Slavin, 145 S.W.3d 538, 546 (Tenn.2004). The Supreme Court further stated in Slavin as follows:

Parties may lose the right to question a judge’s impartiality if they attempt to manipulate the impartiality issue to gain procedural advantage. Davis v. Tenn. Dep’t of Employment Sec., 23 S.W.3d 304, 313 (Tenn.Ct.App.1999). [T]he failure to seek recusal in a timely manner results in a waiver of a party’s right to question a judge’s impartiality. Id. [Internal quotations omitted].

Slavin, 145 S.W.3d at p. 547. Wife waited over fifteen months from the filing of the divorce complaint to raise the recusal issue, and did so only after the ruling in Husband’s favor on her motion to dismiss. There is ample evidence to support a finding that the recusal issue was waived for failure to timely raise it. Nevertheless, we have considered the merits of the issue, and hold that the evidence does not show an abuse of the court’s discretion. Wife presented no evidence that would objectively warrant the trial judge to recuse himself from this case.

IV. Division of Marital Estate

We next consider whether the trial court erred in classifying certain assets as marital rather than Husband’s separate property, as Husband contends, and whether the court equitably divided the marital property between the parties.

Tenn.Code Ann. § 36-4-121(c) provides that the court shall consider “all relevant factors” including the following factors in making an equitable distribution of marital property:

(1) The duration of the marriage;
(2) The age, physical and mental health, vocational skills, employability, earning capacity, estate, financial liabilities and financial needs of each of the parties;
(3) The tangible or intangible contribution by one (1) party to the education, training or increased earning power of the other party;
(4) The relative ability of each party for future acquisitions of capital assets and income;
(5) The contribution of each party to the acquisition, preservation, appreciation, depreciation or dissipation of the marital or separate property, including the contribution of a party to the marriage as homemaker, wage earner or parent, with the contribution of a party as homemaker or wage earner to be given the same weight if each party has fulfilled its role;
(6) The value of the separate property of each party;
(7) The estate of each party at the time of the marriage;
(8) The economic circumstances of each party at the time the division of property is to become effective.
(9) The tax consequences to each party, costs associated with the reasonably foreseeable sale of the asset, and other reasonably foreseeable expenses associated with the asset;
(10) The amount of social security benefits available to each spouse; and
(11) Such other factors as are necessary to consider the equities between the parties.

A trial court is allowed wide latitude in determining an equitable division of marital property and we will defer to the trial court’s determination unless it is inconsistent with the factors set forth above or there is a preponderance of evidence to the contrary. Barnhill v. Barnhill, 826 S.W.2d 443, 449-50 (Tenn.Ct.App.1991).

The division of the marital estate begins with the classification of the parties’ property as either “marital” or “separate.” McClellan v. McClellan, 873 S.W.2d 350, 351 (Tenn.Ct.App.1993). Tenn. Code Ann. § 36-4-121 sets forth the definition of marital property. “Generally speaking property that is acquired during a marriage by either or both spouses and still owned by either or both spouses when the divorce is granted is classified as marital property and is thus subject to equitable division.” Humphries v. Humphries, No. E2000-02912-COA-R3-CV, 2001 WL 825986 at *3, 2001 Tenn.App. LEXIS 512 at*9 (Tenn. Ct.App. E.S., filed July 23, 2001).

Husband argues that the Bledsoe County farm, valued at $675,000 by the trial court, should have been classified as his separate property. This real estate, however, was acquired by Husband during the marriage, and the improvements were built on it during the marriage as well. Further, Husband executed a conveyance of title to the property in 1991 so that it was titled jointly in both parties’ names. Husband argues that this “was done upon the consideration that the Wife would relocate to Bledsoe County and live with the Husband there,” which never happened.

Husband makes a similar argument with respect to two tracts of real estate in Florida, the title to each of which Husband transferred, during the marriage, from himself to the parties jointly. When a spouse treats separate property in such a way as to give evidence of an intention that ⅛ become marital property, this action creates a rebuttable presumption of a gift to the marital estate. Langschmidt v. Langschmidt, 81 S.W.3d 741, 747 (Tenn.2002).

The trial court held that Husband did not rebut the presumption created by his action of jointly titling the ■ property at issue, thereby evidencing his intention that it become marital property. The evidence does not preponderate against the trial court’s classification of the disputed assets as marital. The.trial court did award the tracts of Florida real property to Husband, and Husband states in his brief, “[h]ad the court properly defined the separate assets of the Husband, the court would have been justified in dividing the estate in roughly the same manner that it did under the court’s marital property analysis. However, even under the marital property analysis, the court was justified in its division.” We find no error in the trial court’s decision classifying the property at issue as marital property.

As already noted, the trial court divided the marital estate so that Husband received assets valued at $1,877,644.48 (70.59% of the estate) and Wife received assets valued at $782,237.75 (29.41%). A review of the relevant statutory factors establishes the following. The parties had been married nearly fifteen years at the time of the complaint for divorce. Husband, however, argues in his brief that “[t]his marriage has essentially been over for more than 10 years, with the Husband having resided in Bledsoe County since 1990, while the Wife continued to reside in Merritt Island, Florida.”

Husband was 82 years old at the time of the hearing. Wife was 54 years old at the time of the hearing. The trial court found both parties to be in relatively good physical health. Husband retired from his orthodontic practice in December of 1987, shortly after the marriage. Wife has a Master’s Degree, is fluent in three languages, and worked full-time as a stockbroker throughout the course of the marriage. The trial court made the following findings of fact in its memorandum opinion, none of which have been challenged by either party on appeal:

[Wife’s] earnings as a stockbroker exceeded [Husband’s] orthodontic income, and, after the sale of his dental practice, [Husband’s] Social Security benefits, [his] interest and dividend income and his farm income. Her annual average earnings, during the marriage, were $51,518.00. [Wife’s] brokerage income in 2001 and 2002 (the years this divorce action was pending) was $27,856.00 and $32,849.00, respectively. [Husband’s] monthly Social Security income is $1,254.00; his average monthly interest and dividend income is $600.00; and he receives some income from the sale of hay (eclipsed, however, by farm expenses). '
That at the time of the marriage, the [Husband] had accumulated assets with an approximate equitable value of One Million Three Hundred Thousand ($1,300,000.00) Dollars ...
That at the time of the marriage, the [Wife] had accumulated assets with an approximate equitable value of One Hundred Thousand ($100,000.00) Dollars
That the [Husband] is not able to resume any type of meaningful gainful employment, given his age, education, and past relevant work history. His income, in the future, will be limited to Social Security benefits, interest and dividends, and, at best, a “break-even” position from the sale of hay in conjunction with the operation of his farm ...
That the [Wife] can earn an annual income in excess of her average marital earnings, and possesses an- earnings potential far in excess of that of [Husband]. The Court specifically finds that [Wife] possesses the credentials, intelligence, work ethic and personality necessary to advance her career as a stockbroker or as an educator or in the education/administration fields. [Numbering in original omitted].

Under the facts of the present ease, while it is clear that “[t]he division of the estate is not rendered inequitable simply because it is not mathematically equal,” King v. King, 986 S.W.2d 216, 219 (Tenn.Ct.App.1998), we are of the opinion that a division somewhat closer to equality more appropriately and equitably takes into consideration Wife’s significant contributions to the marriage, including the fact that she was the sole wage-earner for nearly the entire marriage.

The trial court found the total value of the Bledsoe County farm and equipment thereon to be $708,000. The court awarded Husband a life estate in the property, and ruled that upon Husband’s death, or upon sale of the property, Wife was entitled to 25% of the sale proceeds. We modify the court’s judgment to award the entire value of the Bledsoe County farm and equipment to Husband.

The parties owned an investment account held with Edward Jones that the court valued at $465,347 at the time of the hearing. The court awarded 75% of the value of the account to Husband, or $349,010.25. We modify the trial court’s judgment to award the entire value of this account, number 90808, to the Wife.

The preceding modifications result in a total award of assets valued at $1,705,634.23 to Husband, or 64% of the marital estate, and an award of assets valued at $954,248 to Wife, or 36% of the marital estate. We believe that this division of the marital estate is a more equitable one. This division further provides to both parties the benefit of having all assets divided in a “clean break,” and thereby avoids the potential problems associated with Husband and Wife each owning a proportion of an asset, particularly the real property in Bledsoe County. Given the discordant history of the parties, such a division seems likely to benefit both of them, and may avoid further litigation in the future.

For the aforementioned reasons, the judgment of the trial court is affirmed as modified, and the case remanded. Costs on appeal are assessed one-half to the Appellant, Jo Ann Conley, and one-half to the Appellee, Lendel L. Conley.

CHARLES D. SUSANO, JR., J., filed a separate concurring opinion.

CHARLES D. SUSANO, JR.,

concurring.

I write separately to further address the trial court’s judgment with respect to the jurisdictional issue raised by Wife.

I agree with the majority’s observation that, when the parties filed competing affidavits which were later considered by the trial court, Wife’s motion was converted into one for summary judgment. See Tenn. R. Civ. P. 12.03. It is arguable, as the majority found, that the trial court chose to hold an “evidentiary hearing on the matter.” The trial court appears to have accepted all of the affidavits as true, even though they contain competing facts and assertions as to where Husband was domiciled (1) when he filed his complaint for divorce, and (2) during the period of time preceding that filing. It should be noted that the parties entered into a stipulation, which the trial court also considered.

I agree with the majority that the evidence does not preponderate against the trial court’s decision to deny Wife’s motion to dismiss. However, I suppose the trial court’s disposition of Wife’s motion could be construed as a judgment made on the issue of whether Wife was entitled to summary judgment on her defense of lack of subject matter jurisdiction. Even if we view the trial court’s decision as one denying summary judgment on the jurisdictional defense because of the existence of genuine issues of material fact, such an interpretation is of no particular benefit to Wife. This is because the record does not reflect that Wife aggressively sought to pursue this defense by putting on evidence to support it at the divorce hearing. Thus, regardless of whether the trial court’s pre-divorce hearing was, as found by the majority, an evidentiary hearing, or simply a decision to deny summary judgment because of conflicting factual assertions, the record before us does not show that Wife is entitled to relief from us with respect to her lack of jurisdiction defense.

      . Husband has filed a motion with this court "for consideration of post judgment facts,” alleging that subsequent to the appeal of this case, he learned that a substantial amount of this account "had been withdrawn, transferred or dissipated by the Wife.” Our disposition of this asset on appeal renders the issues raised in Husband’s motion moot.