## Facts

- James O. Ward (husband) and Susan Ampferer Ward (wife) married in 1966.
- Throughout their increasingly strained marriage, the parties divided responsibilities: husband earned income and handled investments; wife maintained the household and paid monthly bills.
- An investment produced an approximately $107,000 windfall.
- Husband did not disclose the windfall to wife. Instead, he gave the money to Leigh, a person with whom he was having an extramarital relationship.
- Leigh deposited the funds into a bank account and managed that account on husband’s behalf.
- Husband and Leigh used a ledger to track deposits and withdrawals from the secret account.
- Husband’s relationship with Leigh ended, and the parties later proceeded through chancery court divorce and marital-property division.
- During the property-division proceedings, the secret account came to light, and wife alleged husband dissipated roughly $107,000 in marital assets.
- By the time of trial, the ledger had disappeared. Husband offered written notes summarizing his recollection of the ledger’s contents.
- The chancellor admitted the notes, citing Tenn. R. Evid. 1006 (summaries) and 612 (writings used to refresh memory).
- Relying on a fraud-centered approach, the chancellor found husband’s use of the windfall was not fraudulent and therefore not dissipation, and the court denied wife’s request for attorney’s fees and expenses.
- Wife appealed.

## Issues

1. Whether the trial court applied the correct legal standard for “dissipation” of marital assets when it treated the absence of fraud as dispositive.
2. Whether the trial court properly admitted and relied on husband’s notes summarizing a missing ledger under Tenn. R. Evid. 1006 and/or 612.
3. Whether the denial of wife’s attorney’s fees and litigation expenses should stand in light of the dissipation and property-division errors.

## Decision

- The Court of Appeals held, as a threshold matter, that the chancellor used an incorrect, fraud-based dissipation analysis.
- The court reversed the no-dissipation ruling to the extent it rested on the mistaken legal standard and remanded for the trial court to apply the proper dissipation test to the windfall funds and related proof.
- The court remanded for reconsideration of the marital-property division to account for any dissipation finding under the correct standard.
- The court directed that attorney’s fees and expenses should be reconsidered on remand as part of the revised equities following the corrected dissipation and property-division analysis.
- The court affirmed other portions of the decree not affected by the dissipation error, and remanded for further proceedings consistent with its opinion.

## Legal Principles

- “Dissipation” in equitable distribution is not limited to common-law fraud; it addresses wasteful or improper use of marital assets.
- A dissipation inquiry focuses on whether a spouse used marital property:
  - for that spouse’s sole benefit and for a purpose unrelated to the marriage, and
  - at a time when the marriage was in serious trouble or in anticipation of divorce or separation.
- Concealment and unilateral control over marital funds (including routing funds through undisclosed accounts managed by third parties) may be considered when deciding whether challenged spending was unrelated to the marriage and for one spouse’s benefit.
- Dissipation determinations affect the equitable division of the marital estate; if dissipation occurred, the trial court may adjust the distribution to account for the wasted assets.
- Tenn. R. Evid. 1006 permits summaries of voluminous writings when the underlying materials are otherwise admissible and are made available for examination; it is not a mechanism to substitute a reconstruction from memory for missing source records.
- Tenn. R. Evid. 612 allows a writing to refresh a witness’s memory, but it does not automatically make the writing substantive proof of the events described, especially where original records are unavailable.
- Attorney’s fees in divorce cases are discretionary and may be reevaluated when remand alters the property division or other financial equities between the parties.

## Conclusion

The Court of Appeals reversed the trial court’s dissipation ruling because the chancellor improperly treated the absence of fraud as ending the dissipation inquiry, and it remanded for application of the correct dissipation standard to the husband’s secret $107,000 windfall account, with corresponding reconsideration of the marital-property division and the wife’s request for attorney’s fees and expenses.


Ward v. Ward, No. W2001-01078-COA-R3-CV (2002)