                   IN THE COURT OF APPEALS OF TENNESSEE
                                AT JACKSON


MARY EMMA MERRIWEATHER                   )
FULLER,                                  )
                                         )
                                                                             FILED
             Plaintiff/Appellee,         ) Madison Chancery No. 51350
                                         )                                May 13, 1998
VS.                                      ) Appeal No. 02A01-9708-CH-00175
                                         )                             Cecil Crowson, Jr.
                                                                       Appellate C ourt Clerk
ELIGO FULLER,                            )
                                         )
             Defendant/Appellant.        )


          APPEAL FROM THE CHANCERY COURT OF MADISON COUNTY
                        AT JACKSON, TENNESSEE
               THE HONORABLE JOE C. MORRIS, CHANCELLOR




MARCUS M. REAVES
Jackson, Tennessee
Attorney for Appellant



MARY JO MIDDLEBROOKS
MIDDLEBROOKS & GRAY, P.A.
Jackson, Tennessee
Attorney for Appellee




AFFIRMED




                                                              ALAN E. HIGHERS, J.



CONCUR:

W. FRANK CRAWFORD, P.J., W.S.

HOLLY KIRBY LILLARD, J.
    Defendant/Appellant, Eligo Fuller (“husband”), appeals the judgment of the trial court
awarding plaintiff/appellee, Mary Emma Merriweather Fuller (“wife”), approximately 89%

of the marital property. For reasons stated hereinafter, we affirm the judgment of the trial

court.



         Husband and wife were married on May 23, 1958. At the time of trial, the parties

had been married thirty-seven years. The parties have five grown children. Wife testified

that she is disabled and receives a disability check from social security in the amount of

$606 per month. In addition to this check, wife’s only other source of income is the $240

per month she receives from sitting with an elderly woman.



         Husband works for Miller and Company a manufacturer of plain and quarter sawn

hardwoods. In 1996, he earned $13,175.68. Thereafter, from January 1, 1997 until May

1, 1997, he earned $6,243.87.



         Wife testified that on June 23, 1995, while she was inside the house, husband took

his gun into the his yard and fired off several rounds. Wife contends that when husband

returned to the house, he threatened to “knock her brains out.” W ife states that instead

of hitting her in the head, husband missed and hit her in the shoulder. Husband ran out

of the house whereupon wife called the police. Officers Jerry Elston and Mickey Sadler

were dispatched to the scene at approximately 10:15 p.m. to 10:30 p.m. that same

evening. When they arrived at the scene, Officer Elston found husband sitting on the front

porch at his neighbor’s house. As husband stood up and walked toward the police car,

Officer Elston noticed that husband had a pistol protruding from the front pocket of his

jeans. Officer Elston instructed defendant to “put his hands up.” Husband proceeded to

raise his hand up and down. Officer Elston testified that this continued for twenty to thirty

seconds at which time husband withdrew the pistol from his jeans’ pocket. As the gun was

coming up toward Officer Elston, Officer Elston drew his pistol and shot husband.



         Wife contends that prior to this time, husband had been physically abusive to her.

Specifically, she testified that the abuse stretched back as far as 1980. Wife further



                                             2
contends that husband complained about her housekeeping, but insists that he never

assisted her.   A particular problem that wife testified about was husband’s drinking

problem. She states that his drinking problem had progressively worsened over the years

of the deteriorating marriage. She further contends that he has made no payments on the

parties’ marital debts, including the mortgage and upkeep on the marital home.



       On the other hand, husband contends not only that he never abused wife but also

that wife and he have not had an argument in ten years. Husband states that he does not

know how this whole situation came up.



       Wife filed a complaint for divorce on December 28, 1995. The trial court issued a

restraining order and an ex parte order of protection that same day. On January 5, 1996,

after a hearing on these matters, the trial court issued an order of protection and a

temporary injunction. Thereafter on January 17, 1996, husband filed an answer to wife’s

complaint including a counterclaim for divorce and a restraining order prohibiting her from

disposing of the parties’ assets. The trial on this matter was heard on May 5, 1997,

whereupon the trial court took the matter under advisement and issued its findings on May

12, 1997. On July 11, 1997, an order was entered which granted wife a divorce from

husband on the grounds of inappropriate marital conduct. The trial court divided the

marital property as follows:

       WIFE:         House and lot on Rochelle Road
                     $12,362.17
                                                          (equity)
                     Two non-working riding lawn mowers   $350
                     One push mower                       $10
                     1990 Pontiac Grand Am                $2,000
                     Household furnishings and appliances $1185

       HUSBAND: 1985 Nissan Pick-up truck                     $700
                Garden tiller                                 $150
                Two Snapper riding lawn mowers                $650
                One other riding lawn mower                   $200
                Chain saw                                     $250

This appeal followed.



       The parties have raised the following issues on appeal:



                                            3
              1. Whether the trial court erred in the division of marital
              property.

              2.   Whether the final order for absolute divorce has
              contradictory provisions regarding the award of the real
              property.

              3. Whether the court erred in denying the husband’s request
              to reimburse appellant for assets disposed of prior to trial.


       Inasmuch as this case was tried by the trial court sitting without a jury, this Court’s

review on appeal is governed by Tennessee Rule of Appellate Procedure 13(d), which

directs us to review the case de novo. Roberts v. Robertson County Bd. of Educ., 692

S.W.2d 863, 865 (Tenn. Ct. App. 1985); Haverlah v. Memphis Aviation, Inc., 674 S.W.2d

297, 300 (Tenn. Ct. App. 1984); Tenn. R. App. P. 13(d). In conducting a de novo review

of the record below, however, this Court must presume that the trial court’s findings of fact

are correct. Under this standard of review, we must affirm the trial court’s decision unless

the trial court committed an error of law affecting the result or unless the evidence

preponderates against the trial court’s findings. Roberts, 692 S.W.2d at 865.



          Whether the trial court erred in the division of marital property.

       It is well settled in this state that there is a presumption that marital property is

owned equally. See Salisbury v. Salisbury, 657 S.W.2d 761 (Tenn. Ct. App. 1983). In this

case all property is marital property and is presumed to be equally owned. Under such

circumstances it is the duty of the courts to make such adjustments as may be necessary

to reach an equitable division of the property, taking into consideration the factors

established in Tenn. Code Ann. § 36-4-121(c), which our General Assembly has provided

for guidance. Tenn. Code Ann. § 36-4-121(c) provides:

       (c) In making equitable division of marital property, the court shall consider
       all relevant factors including:

              (1) The duration of the marriage;

              (2) The age, physical and mental health, vocational skills,
              employability, earning capacity, estate, financial liabilities and
              financial needs of each of the parties;

              (3) The tangible or intangible contribution by one (1) party to
              the education, training or increased earning power of the other
              party;



                                              4
             (4) The relative ability of each party for future acquisitions of
             capital assets and income;

             (5) The contribution of each party to the acquisition,
             preservation, appreciation or dissipation of the marital or
             separate property, including the contribution of a party to the
             marriage as homemaker, wage earner or parent, with the
             contribution of a party as homemaker or wage earner to be
             given the same weight if each party has fulfilled its role;

             (6) The value of the separate property of each party;

             (7) The estate of each party at the time of the marriage;

             (8) The economic circumstances of each party at the time the
             division of property is to become effective;

             (9) The tax consequences to each party; and

             (10) Such other factors as are necessary to consider the
             equities between the parties.



      All the factors enumerated above do not apply in each case. For instance, in this

case, the existence of separate property is minimal, and neither party at the time of the

marriage had an estate.



      Trial courts have wide latitude in fashioning an equitable division of marital property.

Fisher v. Fisher, 648 S.W.2d 244, 246 (Tenn. 1983). Their decisions must be guided by

the factors in Tenn. Code Ann. § 36-4-121(c), Ellis v. Ellis, 748 S.W.2d 424, 427 (Tenn.

1988), and must be made without regard to marital fault.               Tenn. Code Ann. §

36-4-121(a)(1); Bowman v. Bowman, 836 S.W.2d 563, 567-68 (Tenn. Ct. App. 1991).

The decision is not a mechanical one and is not rendered inequitable because it is not

precisely equal, Batson v. Batson, 769 S.W.2d at 859, or because both parties did not

receive a share of each piece of property. Thompson v. Thompson, 797 S.W.2d 599, 604

(Tenn. Ct. App. 1990). Appellate courts defer to the trial courts in these matters unless

their decisions are inconsistent with the factors in Tenn. Code Ann. § 36-4-121(c) or are

not supported by the preponderance of the evidence. Barnhill v. Barnhill, 826 S.W.2d 443,

449-50 (Tenn. Ct. App. 1991).



      While the courts must include all of the parties' marital property in the marital estate,



                                             5
they are not required to award both parties an interest in each piece of marital property.

Tenn. Code Ann. §§ 36-4-121(a) and 36-4-121(f)(1) permit trial courts to divest and

reinvest title to property and to make distributive awards in order to achieve equity. Thus,

unless the facts require otherwise, the courts generally judge the fairness of a property

division by its final results.



       When considering the relevant factors listed in Tenn. Code Ann. § 36-4-121(c), we

agree with the judgment of the trial court. As of the date the decree of divorce was issued

by the trial court, the duration of the marriage had been approximately 37 years.



       Presently, wife is disabled and, consequently, has a very limited means of support.

Specifically, wife draws $606 per month from her disability check and another $240 per

month from sitting with an elderly woman. Husband, on the other hand, is not disabled and

is, in fact, gainfully employed with a lumber company. He draws a wage of $5.25 per hour

and works full time. Together with bonuses and profit sharing, husband earned $6,243.87

in the first four months of 1997. This evinces defendant’s ability to acquire income and

capital assets in the future. Wife’s ability to do so is very limited.



       As noted above, Tenn. Code Ann. § 36-4-121(c)(1), (2), (4), and (8) are the factors

that should be given the most weight in making a division of property in this case. We

believe these subsections weigh more heavily in favor of the wife. Accordingly, we affirm

the trial court’s distribution of the parties’ marital property.



              Whether the court erred in denying the husband’s request
              to reimburse appellant for assets disposed of prior to trial.

       Husband contends that the trial court erred in failing to award him one-half of $1,500

received in October of 1995, for the sale of certain real property and a mobile home on

Reeves Road. This sale occurred after Husband had left the marital home and before the

filing of the Complaint on December 28, 1995. Husband contends that this is marital

property, and, as such, the monies collected from the sale of such property should be

divided equally between wife and himself. We disagree.


                                                6
       Tenn. Code Ann. § 36-4-121(b)(1)(A) defines “marital property” as follows:

              (1)(A) "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, except in the
              case of fraudulent conveyance in anticipation of filing, and
              including any property to which a right was acquired up to the
              date of the final divorce hearing, and valued as of a date as
              near as reasonably possible to the final divorce hearing date.



       After a careful review of the record, we find that the property and mobile home on

Reeves Road was not marital property and, therefore, not subject to distribution by the trial

court. The fact of the matter is that husband and wife conveyed this property to their three

daughters on July 19, 1979, by warranty deed. As such, husband and wife were no longer

owners of this property. Subsequently, on October 9, 1995, the three daughters sold the

land to Larry Robinson for $1,500. The fact that wife’s daughters decided to give the

money to their mother is of no consequence in this matter. The money collected from the

sale of the property was not marital property. Accordingly, we affirm the judgment of the

trial court refusing to distribute the said monies.



       Additionally, husband protests that wife disposed of the money in a joint checking

account without dividing with him. Wife testified that she took the money because she paid

all the bills. The trial court concluded that “any assets that the parties owned before their

separation have since been dissipated, except for the home and furnishings.” Since there

is evidence establishing all facts found by the trial court well beyond the "preponderance

standard," we concur with the findings of fact made by the trial court and find no abuse of

discretion.



       In considering the factors of Tenn. Code Ann. § 36-4-121(c), the trial court divided

the marital property between husband and wife awarding approximately 89% to wife and

11% to husband. Since there is evidence establishing all facts found by the trial court well

beyond the "preponderance standard," we concur with the findings of fact made by the trial

court. Based on the final results of this property division and the factors set forth in Tenn.



                                              7
Code Ann. § 36-4-121(c), we find the trial court's division of the marital estate to be

equitable.1



        In light of the foregoing, we affirm the judgment of the trial court. Costs of this

appeal are assessed against husband, for which execution may issue if necessary.




                                                                   HIGHERS, J.


CONCUR:




CRAWFORD, P.J., W.S.




LILLARD, J.




        1
          We note that husband raises the issue of whether the final order for absolute divorce had any
contradictory provisions regarding the award of the marital hom e located on Rochelle Road . After a
careful review of the final order of the trial court, we find no contradictions therein. Wife was awarded the
marital home located at 1341 Rochelle Road and was ordered to assume the mortgage. Husband is to be
held harm less on th e mo rtgage d ebt.

                                                     8
