                    IN THE COURT OF APPEALS OF TENNESSEE
                         WESTERN SECTION AT JACKSON
                                                                            FILED
                                                                              Feb. 13, 1997
                 ______________________________________________
                                                                            Cecil Crowson, Jr.
SHERRY DENISE THEARP ERVIN,                                                   Appellate Court Clerk

       Plaintiff-Appellant,
                                                   Hardeman Chancery No. 10386
Vs.                                                C.A. No. 02A01-9605-CH-00097

DALE EDWARD ERVIN,

      Defendant-Appellee.
____________________________________________________________________________

               FROM THE HARDEMAN COUNTY CHANCERY COURT
             THE HONORABLE DEWEY C. WHITENTON, CHANCELLOR




                      Lloyd R. Tatum, Tatum and Tatum of Henderson
                                      For Appellant

                       Charles M. Cary, Denton and Cary of Bolivar
                                      For Appellee




            VACATED IN PART, AFFIRMED IN PART AND REMANDED
                               Opinion filed:




                                                          W. FRANK CRAWFORD,
                                                          PRESIDING JUDGE, W.S.



CONCUR:

DAVID R. FARMER, JUDGE

HOLLY KIRBY LILLARD, JUDGE




       This is an appeal from a Final Decree of Divorce entered January 5, 1996. Plaintiff,

Sherry Denise Thearp Ervin (Wife), appeals from the order of the trial court granting her an
absolute divorce from the defendant, Dale Edward Ervin (Husband). Wife appeals the trial

court’s decision concerning the division of the marital property, the amount of child support, and

the denial of an award of attorneys’ fees.

        The parties were married on May 16, 1992. At the time of the trial, Wife was 37 years

old, and Husband was 35 years old. The parties had two children during the course of the

marriage: Clayton Palmer Ervin, born November 25, 1992; and Sherridan McKaela Ervin, born

December 30, 1993.

        Wife completed high school and attended one quarter of college. She is a district

manager for IT’S Fashions, a subdivision of the Cato Corporation. She has been employed by

Cato for 15 years, and Wife earns approximately $39,000.00 per year. Husband has a 11th grade

education, and he works for T.R. Mills Contractors. At the time Wife filed her complaint,

Husband was earning $685 per week; however, at the time of the trial, he was earning $560 per

week.

        The parties separated January 8, 1995. Wife filed her complaint for divorce on January

17, 1995 on the grounds of irreconcilable differences and inappropriate marital conduct. In his

answer, Husband admitted that the parties had irreconcilable differences but denied that he was

guilty of inappropriate marital conduct. He filed a counter-complaint for divorce against Wife

alleging that she was guilty of inappropriate marital conduct. In Wife’s answer to the counter-

complaint, she denied that she was guilty of inappropriate marital conduct and raised the defense

of recrimination. After a non-jury trial, the trial court awarded Wife an absolute divorce from

Husband on the grounds of inappropriate marital conduct, granted permanent custody of the

parties’ minor children to Wife with reasonable and liberal visitation for Husband, ordered

Husband to pay child support in the amount of $614 per month plus $91 per month for insurance,

and divided the marital property. Wife has appealed and presents four issues for review.

        Wife’s first issue is whether the evidence preponderates against the trial court’s award

of one-half of the increase in value of Wife’s 401k account and $6,152.16 of Wife’s Employee

Stock Ownership Plan (ESOP) to Husband.1 Since this case was tried by the trial court sitting

without a jury, we review the case de novo upon the record with a presumption of correctness


        1
          In her first issue, Wife argues that the trial court should have awarded her the
parties’ ski boat. We will consider this assertion with the second issue.

                                                2
of the findings of fact by the trial court. Unless the evidence preponderates against the findings,

we must affirm, absent error of law. T.R.A.P. 13(d). Trial courts have broad discretion in

dividing the marital estate upon divorce. Kincaid v. Kincaid, 912 S.W.2d 140, 142 (Tenn. App.

1995).

         Wife owns a 401k pension plan through her employer, Cato. She started the account in

1990. At the time of the marriage, the account was worth $5,089.00. When the divorce

complaint was filed, the account balance was $29,138.00, an increase in value during the

marriage of approximately $24,048.00. The trial court divided the amount of the increase

equally and awarded $12,024.15 to Husband.

         Wife asserts that Husband did not make any substantial contribution to the appreciation

of the 401k account, and, therefore, is not entitled to share in its appreciation. We disagree.

Distribution of marital property is governed by T.C.A. § 36-4-121 (1991). T.C.A. § 36-4-

121(b)(1)(B) provides:

                “Marital property” includes income from, and any increase in
                value during the marriage, of property determined to be separate
                property in accordance with subdivision (b)(2) if each party
                substantially contributed to its preservation and appreciation and
                the value of vested pension, retirement or other fringe benefit
                rights accrued during the period of the marriage.

The statute provides that pension benefits accrued during the marriage become marital property.

The pension provision is not modified by the “substantial contribution” requirement preceding

it. Therefore, pension benefits earned by a spouse during the marriage are marital property even

though the other spouse did not contribute directly to their preservation or appreciation. Batson

v. Batson, 769 S.W.2d 849, 857 (Tenn. App. 1988).

         Wife argues that even if the 401k plan is marital property, an equitable division would

not include an award to Husband. The evidence does not preponderate against the trial court’s

findings in this regard, and the trial court made a proper division.

         Wife also owned an ESOP plan that was worth $22,543.00 at the time of the marriage,

but had declined in value to $17,663.39 by the time of the divorce. The trial court awarded

Husband $6,152.16 of Wife’s ESOP plan. Wife argues that Husband was not entitled to this

award because the ESOP plan went down in value. Although it is not entirely clear from the

record, it appears that the plan is a stock purchase plan and the shares are purchased by payroll



                                                3
deduction. Thus, the plan is nothing more than a monthly acquisition of property. “‘Marital

property’ means all real and personal property, both tangible and intangible, acquired by either

or both spouses during the course of the marriage up to the date of the final divorce hearing and

owned by either or both spouses as of the date of filing of a complaint for divorce . . . .” T.C.A.

§ 36-4-121 (b)(1)(A).

       The shares of stock actually acquired during the term of the marriage constitute marital

property subject to division. The record does not reflect that the trial court made a determination

of the number of shares acquired during the marriage nor the value thereof at the time of the trial.

Accordingly, the award made by the trial court should be vacated and the case remanded for

proceedings to determine a proper division of ESOP stock.

       Wife’s second issue is whether the trial court failed to equitably divide the marital

property. The trial court held that the camcorder, the tanning bed, the Torino automobile, and

the ski boat were marital property, and ordered that the “tangible personal property is jointly

owned marital property and if the parties cannot agree on a division within thirty (30) days from

the entry of the Final Decree of Divorce, this personal property will be sold by the Clerk and

Master as Special Commissioner and the proceeds divided equally between the parties.”

        Wife asserts that the parties’ ski boat was purchased solely by her before the marriage

and should have been separate property awarded to her. However, the record shows that

Husband signed the original purchase agreement for the boat and was a cosigner with Wife on

the loan documents for the boat. Wife also admits that Husband gave her money calling it his

“boat payment.”      The evidence does not preponderate against the trial court’s findings

concerning the ski boat.

        Wife also claims that the trial court erred in ordering the sale of the camcorder, the

tanning bed and the Torino automobile and awarding one-half of the proceeds to Husband

because the property was solely acquired by her efforts. She claims that the trial court’s order

was inequitable, and that she should be awarded the property in accordance with T.C.A. § 36-4-

121(c) (1991).

        It is undisputed that this property was acquired during the course of the parties’ marriage.

Therefore, it is marital property. T.C.A. § 36-4-121 (b)(1)(A). It is irrelevant that the property

was acquired mostly by wife’s efforts because the statute provides that property acquired by


                                                 4
either spouse is marital property. Property acquired during the marriage does not have to be

purchased by both parties for it to be marital property.

        T.C.A. § 36-4-121(c) provides the factors that the trial court must consider in making an

equitable division of the marital property. Wife claims that Husband did little or nothing to

contribute to the acquisition or preservation of the property. The contribution to the acquisition

or preservation of property is only one of the factors for the court to consider. There is no

evidence in the record that the trial court unfairly applied the factors, nor that the award was

inequitable. The trial court properly classified the property and was correct in ordering a sale

of the marital property.

        Wife’s third issue is whether the trial court erred in reducing Husband’s child support

from $719 per month to $614 per month. The trial court entered a pendente lite order that

established Husband’s child support obligation at $719 per month. At the time the pendente lite

order was entered, Husband was earning $685 per week. During the trial, Husband testified that

his income had decreased to $560 per week. Therefore, in the Final Decree of Divorce, the trial

court ordered Husband to pay $614 per month in child support.

        Wife argues that the evidence in the record does not support the trial court’s

determination that Husband’s earning capacity had diminished pending trial. She asserts on

appeal that Husband is willfully and voluntarily underemployed, but she did not raise this

argument at trial. A party is not entitled to relief on an issue that is raised for the first time on

appeal. Southland Express, Inc. v. Scrap Metal Buyers of Tampa, 895 S.W.2d 335, 341

(Tenn. App. 1994).

        Although the reason for the decrease is not entirely clear, it is undisputed in the record

that Husband’s gross income at the time of the trial was $560 per week. The record, however,

does not indicate Husband’s net income, but Wife has not raised an issue about the calculation

of the amount of child support. The evidence does not preponderate against the trial court’s

determination that Husband’s earning capacity had diminished pending trial, and the evidence

does not preponderate against the trial court’s finding regarding child support.

        Wife’s fourth issue is whether the trial court erred in failing to award her attorneys’ fees.

The trial court ordered that “each party will pay their own attorney.” The award of attorneys’

fees is within the sound discretion of the trial court, and unless the evidence preponderates


                                                 5
against the award, it will not be disturbed on appeal. Kincaid v. Kincaid, 912 S.W.2d 140, 144

(Tenn. App. 1995). Where the wife demonstrates that she is financially unable to afford counsel,

and where the husband has the ability to pay, the court may properly order the husband to pay

the wife’s attorneys’ fees. Id. In this case, Wife has not shown that she is financially unable to

pay her attorney. The findings by the trial court are supported by the record.

       The decree of the trial court dividing the ESOP is vacated. The case is remanded for

reconsideration of this division consistent with this Opinion. The decree is in all other respects

affirmed. Costs of this appeal are assessed one-half against appellant and one-half against

appellee.

                                                      _________________________________
                                                      W. FRANK CRAWFORD,
                                                      PRESIDING JUDGE, W.S.

CONCUR:


____________________________________
DAVID R. FARMER, JUDGE


____________________________________
HOLLY KIRBY LILLARD, JUDGE




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