      IN THE COURT OF APPEALS OF TENNESSEE
           MIDDLE SECTION AT NASHVILLE

JIMMY E. SMITH,                            )
                                           )
       Plaintiff/Appellee,                 )
                                           )      Warren General Sessions
                                           )      No. 6212
VS.                                        )
                                           )      Appeal No.
                                           )      01A01-9602-GS-00074
CONNIE SUE ARGO SMITH,                     )
                                           )
       Defendant/Appellant.                )
                                                                         FILED
                            OPINION                                       October 4, 1996
                     CONCURRING IN PART AND                             Cecil W. Crowson
                       DISSENTING IN PART                              Appellate Court Clerk


       I concur with the majority’s conclusion that the criteria for determining the
validity of antenuptial agreements announced in Randolph v. Randolph, ___
S.W.2d ___, ___ (Tenn. 1996)1 should be applied to reconciliation agreements.
I also agree with the majority’s determination that the reconciliation agreement
involved in this case is not enforceable because Mr. Smith has not demonstrated
by a preponderance of the evidence that he disclosed the value of his interest in
National Sheet Metal Company to Ms. Smith or that Ms. Smith had independent
knowledge of the nature, extent and value of this interest. Accordingly, I agree
that the trial court erred by enforcing the reconciliation agreement.


           I cannot agree, however, with the majority’s conclusion that the trial
court’s decision to enforce the reconciliation agreement was harmless. There is
evidence in the record indicating that the value of Mr. Smith’s interest in National
Sheet Metal Company could be worth as much as $1,000,000. Mr. Smith rebuffed
Ms. Smith’s attempts to ascertain the value of his interest in the business during
discovery and was, as the majority points out, unresponsive to similar questions




       1
        Randolph v. Randolph, App. No. 03S01-9510-CV-00119, slip op. at 14-15 (Tenn. Sept.
9, 1996) (Opinion designated “For Publication”).
during the trial. The majority’s harmless error finding rewards Mr. Smith for the
very type of conduct that the courts should not tolerate or condone.


      The parties’ marital estate, not including the increase in the value of Mr.
Smith’s interest in his business during the marriage, is relatively modest. Treating
this interest as marital property could affect the division of the marital estate and
the award of spousal support. Even if the increase in the value of Mr. Smith’s
interest in his business during the marriage is treated as marital property, the
essential purpose of the reconciliation agreement can be fulfilled by awarding the
interest in the business to Mr. Smith and by making an off-setting cash award to
Ms. Smith.


      Accordingly, I would remand the case to the trial court with directions to
treat the increase in the value of Mr. Smith’s interest in National Sheet Metal
Company as marital property, to place a value on this interest, and then to
reconsider the division of marital property and Ms. Smith’s request for spousal
support.




                                        ____________________________
                                        WILLIAM C. KOCH, JR., JUDGE




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