                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                 September 8, 2000 Session

           MARY LOUISE GOODMAN CASE v. BILLY RAY CASE

                    An Appeal from the Circuit Court for Wilson County
                            No. 1826    Clara W. Byrd, Judge



                      No. M2000-00547-COA-R3-CV - Filed June 8, 2001


        This is a divorce case. The parties were married for twenty-five years and had no children.
The wife was employed full-time and had a pension, and the husband was unemployed and disabled.
The trial court granted a divorce to the wife on the grounds of inappropriate marital conduct by the
husband, classified and divided the marital property without determining the value of the wife’s
pension, and made no provision for spousal support for the husband. The husband appeals. We
affirm the grant of the divorce to the wife and affirm the decision not to award alimony to the
husband. We reverse in part and remand for the trial court to classify the wife’s pension plan as
marital property, determine its value, and equitably divide it between the parties.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed in Part;
                            Reversed in Part; and Remanded

HOLLY KIRBY LILLARD, J., delivered the opinion of the court, in which BEN H. CANTRELL , P.J., M.S.,
and WILLIAM B. CAIN , J., joined.

Mary Ann Reese, Nashville, Tennessee, for the appellant, Billy Ray Case.

Richard J. Brodhead, Lebanon, Tennessee, for the appellee, Mary Louise Goodman Case.

                                            OPINION

         In this divorce case, Mary Louise Goodman Case (“Wife”) and Billy Ray Case (“Husband”)
had been married for approximately 25 years, and had no children. On March 5, 1999, Wife filed
a petition for divorce, asserting that Husband was guilty of inappropriate marital conduct, an affair
with another woman. Wife’s petition requested that the trial court issue a temporary injunction
prohibiting Husband from harassing or calling Wife at home or at work; the trial court issued a
temporary injunction on March 9, 1999. In his response, Husband denied having an affair.
Subsequently, Wife admitted in discovery that she had an affair earlier in the marriage. Husband
claimed not to have known about Wife’s infidelity, and filed a counterclaim for legal separation,
alleging that Wife was guilty of inappropriate marital conduct.
        Husband also filed a motion for pendente lite support, alleging that he was physically unable
to work. Wife was employed full time. Husband requested that the court order Wife to continue
making mortgage payments on the marital residence. After a hearing, the trial court found that
Husband was “restricted in his job capabilities” and ordered Wife to continue paying the mortgage
for the marital residence and to continue Husband’s coverage under the medical insurance policy
provided by her employer, while the divorce was pending. Husband continued to live in the marital
residence, and Wife rented an apartment.

        The trial court set the matter for trial on November 9, 1999. On October 22, Husband filed
a motion to continue the trial. Husband alleged that, during discovery, Wife had failed to produce
any evidence of the value of her pension plan. In an affidavit, Husband’s counsel asserted that Wife
had stated in interrogatory responses that she had no pension plan. Husband’s counsel testified in
the affidavit that she contacted Wife’s employer for more information, and that eventually the
employer promised to forward information about Wife’s pension plan to her. Husband’s counsel had
not received the information. Husband’s counsel asserted that a continuance was necessary because
an actuary would be needed to determine the present value of Wife’s pension plan. The trial court
denied Husband’s motion, stating that “the present day value of the pension plan would not be
helpful to the Court and that the Court will divide pension plans unless one of the parties has
dissipated marital assets because of alcohol, drugs, or the like.”

        The matter was heard as scheduled on November 9, 1999. At trial, the parties stipulated to
the division of household furnishings, and stipulated that Husband would keep the marital residence
and pay the mortgage on it. Wife’s employer failed to appear pursuant to the court’s subpoena.
Consequently, the trial court allowed counsel to speak with the custodian of records for Wife’s
employer by telephone. The parties then stipulated that Wife had been employed with The Campbell
Group since July 27, 1984, and that she was vested in the company pension plan. The parties agreed
that, had the custodian had appeared to testify, she would have stated that she did not know the
present value of Wife’s pension plan. The parties stipulated that Wife’s 401(K) account with the
company was worth approximately $2,000.

        Husband testified that both he and Wife had worked during the marriage, and that he worked
as a bricklayer earning approximately $18,000 per year. However, in February 1995, he fell from
a scaffold and broke his neck, leaving him disabled and unable to work. The parties used his
worker’s compensation settlement to pay down debts, put a down payment on a trailer, and buy
personal items. Husband’s attempts to return to work failed, and his doctor told him to quit work.
He stated that his toes had since begun to curl and he was having difficulty walking. Husband also
suffered from a birth defect that made him unable to control his bowels, and he needed constant
access to a restroom.

        Husband proffered the testimony of Alicia Haile Flood, a paralegal who assisted him with
his disability claim. Flood said that Husband’s claim was initially denied but had been appealed.
The basis of Husband’s claim for disability benefits was that he was functionally illiterate, and had
a number of physical limitations, including a limited short and long term memory, a need for


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constant restroom access, a decreased range of motion in his neck, limited reaching in all directions,
limited handling and fingering, postural limitations as to climbing, bending, twisting, stooping,
kneeling, crouching, and crawling, exertional limitations as to lifting, sitting, standing, and walking,
communication limitations due to a hearing loss in his left ear, and environmental limitations
because of respiratory ailments. Flood testified that Husband had a first grade reading and writing
ability and a third grade arithmetic ability. She opined that Husband’s claim for disability would
probably succeed on appeal, but that it would probably be a year before he would receive any
benefits.

         Wife testified that Husband had a romantic affair with a neighbor, Judy Agee. Wife stated
that often, when she came home from work, she would see Husband’s car in Agee’s driveway.
When confronted, Husband explained that his car was at a friend’s garage next door to Agee’s house.
At trial, Husband acknowledged that he had spent a lot of time with Agee, fixing her car, and going
out to eat with her. Wife admitted having an affair with another man earlier in the marriage, but said
that she and Husband had resolved those issues long ago.

        Wife asserted that Husband was abusive. Wife testified that, on one occasion, Husband
grabbed her neck and tried to choke her while she was driving them to a lawyer’s office to sign a
property settlement agreement. Husband admitted to placing his hands on Wife’s neck, but he said
that he did so only after Wife had cursed at him, elbowed him, and hit him.

       Wife testified that her compensation in 1998 was over $45,000. She acknowledged that she
had a 401(K) account with her employer worth approximately $2,000.

        At the conclusion of the testimony, the trial judge ruled from the bench. The trial court
awarded the divorce to Wife on the grounds of Husband’s inappropriate marital conduct, and
admonished Husband that going to another woman’s house on a regular basis without his wife, for
whatever reason, was inappropriate. The trial court awarded the marital residence to Husband, and
ordered him to pay the mortgage. Since Wife’s name was still on the mortgage, if Husband became
thirty days delinquent, the property would be sold. The trial court stated that if Husband received
a lump sum settlement from Social Security for retroactive disability payments, he was required to
refinance the property in his own name. Wife’s 401(K) account was divided equally, but Husband’s
share was awarded to Wife to compensate for her moving expenses. The trial judge stated that “[t]he
Court finds that Mr. Case is disabled and entitled to benefits so that no alimony is awarded.” A
written order was entered to this effect. Husband later filed a motion to alter or amend. The trial
court did not alter its order, but explained that the value of Wife’s pension plan was dependent on
her living long enough to receive the benefits, and therefore, “Wife’s pension plan and Husband’s
claim for [disability] are both speculative and divided equally.” From this order, Husband now
appeals.

       On appeal, Husband argues that the trial court should have granted him a legal separation
based on Wife’s previous adulterous affair. Husband also argues that the trial court erred in the



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classification and division of the parties’ assets, and in its failure to award Husband any spousal
support.

         We first address Husband’s argument that the trial court should have granted him a legal
separation instead of granting a divorce to Wife. The parties offered conflicting testimony regarding
their extramarital relationships and Husband’s abusive behavior. Wife testified that Husband had
a relationship with Agee, which Husband denied. Wife admitted having an affair, but asserted that
it was early in the marriage and that the parties had resolved the issues surrounding her affair. Wife
testified about Husband’s abusive behavior, and Husband testified that he did not abuse Wife. The
trial court was in the best position to determine the credibility of the witnesses, and the trial court’s
determinations of credibility are entitled to great weight on appeal. See Gaskill v. Gaskill, 936
S.W.2d 626, 633 (Tenn. Ct. App. 1996). The trial court’s award of the divorce to Wife was based
on its determination of the parties’ credibility. Giving appropriate deference to the trial court’s
assessment of credibility, the evidence does not preponderate against the trial court’s decision. The
trial court is affirmed on this issue.

        Next, Husband argues that the trial court erred in the classification and division of assets.
Where the division of property is at issue, the trial court should first classify the property as either
marital or separate, and then make an equitable division of the marital property. See Batson v.
Batson, 769 S.W.2d 849, 856 (Tenn. Ct. App. 1988). The trial court’s classification and division
of property is reviewed de novo with a presumption that the trial court’s factual findings are correct.
See Watters v. Watters, 959 S.W.2d 585, 588 (Tenn. Ct. App. 1997). An appellate court may alter
the trial court’s division of property only if the trial court misapplies the law of if the evidence
preponderates against the trial court’s factual findings. See Wade v. Wade, 897 S.W.2d 702, 715
(Tenn. Ct. App. 1994).

      The classification of property as either marital or separate is governed by Tennessee Code
Annotated § 36-4-121(b). Section 36-4-121(b)(1)(B) states:

        “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.1

Tenn. Code Ann. § 36-4-121(b)(1)(B) (1996).


       In this case, there was no evidence presented to the trial court regarding the value of Wife’s
pension plan. The trial court simply stated that the value of Wife’s interest in her pension plan was


        1
         Section 36-4-121(b)(1)(B) was amended while this appeal was pend ing. See 2000 Tenn. Pub. Acts 713 . The
language above is the statutory language in effect at the time of divorce.

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“speculative.” Under Tennessee Code Annotated § 36-4-121(b)(1)(B), marital property includes “the
value of vested pension, retirement or other fringe benefit rights accrued during the period of the
marriage.” It is undisputed that Wife was vested in her employer’s pension plan, and that the value
of the pension plan accrued during the parties’ marriage. Husband sought a continuance of the trial
to present evidence on the value of the plan. Under these circumstances, the trial court’s decision
must be reversed, and the cause remanded to determine the value of Wife’s pension. Once
determined, the property should be equitably divided between the parties without regard to fault.
See Tenn. Code Ann. § 36-4-121(a)(1); King v. King, 986 S.W.2d 216, 218 (Tenn. Ct. App. 1998).
Other than Wife’s pension plan, the trial court’s classification and division of the parties’ remaining
assets and debts is affirmed.

        Finally, Husband argues that the trial court erred by failing to award him alimony. The trial
court has broad discretion in deciding whether to award alimony. See Watters, 959 S.W.2d at 593.
In deciding whether to award alimony, the trial court can consider the parties’ relative fault. See
Tenn. Code Ann. § 36-5-101(d)(1)(K) (Supp. 2000); Watters, 959 S.W.2d at 593. In this case, the
trial court considered Husband’s fault, as well as the likelihood that Husband would receive
disability benefits. Under all of these circumstances, we find no abuse of discretion in the trial
court’s decision that Husband was not entitled to alimony. The decision of the trial court is affirmed
on this issue.

        In sum, we affirm the decision of the trial court granting the divorce to Wife, as well as the
decision not to award Husband alimony. We reverse in part because the trial court failed to classify
Wife’s pension plan as marital property, and remand for a determination of the value of Wife’s
pension plan and for equitable division of the plan. The remainder of the division of property and
debts is affirmed.

       The decision of the trial court is affirmed in part, reversed in part, and remanded as set forth
above. Costs of this appeal are taxed equally to the appellant, Billy Ray Case, and his surety, and
the appellee, Mary Louise Goodman Case, and her surety, for which execution may issue if
necessary.



                                                       ___________________________________
                                                       HOLLY KIRBY LILLARD, JUDGE




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