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Property Misplaced Previous to Divorce No Longer Exists and Can’t Be Marital Property

Flannary v. Flannary, 121 S.W.3d 647 (Tenn. 2003)

Property Misplaced Previous to Divorce No Longer Exists and Can’t Be Thought-about Marital Property

Within the run-up to Y2K, Mr. Flannary determined that the couple’s cash wasn’t protected within the financial institution.  Due to this fact, beginning in September 1999, he began making withdrawals, both $8000 or $10,000 at a time, in hundred-dollar payments.  He positioned the cash, totaling $48,000, in his bed room drawer, with a plan to place the cash again within the financial institution in January 2000.  However when the brand new yr handed with out chaos, he went to get the cash, solely to find that it was gone.  He later admitted that the thought was “silly,” and that he by no means considered placing the cash in a protected deposit field.  He accused his spouse of taking the cash.  Not solely did she deny it, however she contended that she didn’t even learn about it till the accusations.

Quickly thereafter, they had been in divorce court docket, and the disposition of the $48,000 was one of many key points.  The trial court docket agreed that placing the cash within the drawer was a foul thought, noting that even placing it in a fruit jar and burying it within the again yard would have been safer.  The trial court docket held that the $48,000 was marital property, and needed to be “divided like some other marital property.”  Accordingly, the spouse was granted a judgment in opposition to the husband within the quantity of $24,000.

The Court docket of Appeals, with one decide dissenting, reversed.  It held that because the cash had disappeared previous to the divorce, it was error to divide property that wasn’t there.

The Supreme Court docket handled the problem considerably in a different way.  It famous that each events testified that the cash was not of their possession, and the trial court docket had even conceded that neither social gathering knew what occurred to it.  Due to this fact, the cash wasn’t owned by both social gathering on the time the criticism was filed.  Since neither social gathering owned the cash, it didn’t match throughout the definition of marital property.  For that purpose, the trial court docket had erred in together with it within the marital property.

It needs to be famous that the court docket didn’t go fairly as far as to declare it separate property.  Nonetheless, it cited Brock v. Brock, 941 S.W.2nd 896 (Tenn. Ct. App. 1996) for the proposition that the property was not marital property.

Despite the fact that the excessive court docket reversed the trial court docket’s principle of the case, the husband was not out of the woods.  The court docket famous that in making the distribution, the court docket is to think about all related components, together with the actions of the events all through the wedding.  It identified that it was the husband’s careless actions that resulted within the disappearance of the cash, and that this was a related issue.  It remanded the case to the trial court docket to think about the relevance of the husband’s conduct with respect to the lacking cash.

This submit is a part of a sequence, Appreciation of Separate Property: The Forensic Accountant’s Full Employment Act.

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