                    IN THE COURT OF APPEALS OF TENNESSEE
                                AT NASHVILLE
                               July 8, 2002 Session

                 TERRY B. HARDIN v. TERESA DIANE HARDIN

                   Direct Appeal from the Circuit Court for Sumner County
                            No. 21177-C Hon. C.L. Rogers, Judge



                  No. M2001-01845-COA-R3-CV - Filed September 12, 2002



In this divorce action, the Trial Court classified monthly benefits paid to husband as marital property.
On appeal, husband contends payments are disability benefits. We affirm.


Tenn. R. App. P.3 Appeal as of Right; Judgment of the Circuit Court Affirmed.


HERSCHEL PICKENS FRANKS , J., delivered the opinion of the court, in which HOUSTON M. GODDARD ,
P.J., and D. MICHAEL SWINEY, J., joined.


Jack Davis and Luther Ernest Cantrell, Nashville, Tennessee, for Appellant.

C. Ronald Blanton and Joseph Y. Longmire, Hendersonville, Tennessee, for Appellee.




                                              OPINION



               In this divorce action, the Trial Court determined that the monthly payments received
by the husband from the Ford Retirement Plan was a marital asset and declared the wife to have a
50% interest in the same and awarded her one-half of a lump sum payment already received by the
husband in the amount of $6,000.00. The husband has appealed.

                The parties stipulated to a divorce pursuant to Tenn. Code Ann. §36-4-129.
                The husband testified that he applied to Ford Company for disability benefits on May
25, 1999, and that he was disabled in May 1998. He further testified that he was terminated, and
then put on medical leave, and was told that his only option was to take disability retirement. He
further testified that he received $831.11 per month, and a lump sum payment of $12,026.28 in
November 2000.

                The wife testified that she contributed to the marital estate as a homemaker and
parent. She testified that she had health problems, including Hepatitis C, and was unable to work,
and she filed an exhibit consisting of documentation provided to her attorney via a subpoena to the
Ford Motor Company.

                The Trial Judge determined the Ford Retirement Plan was a retirement/pension plan
and a marital asset. If the Trial Court is correct in its characterization of the monthly payment, then
the payment constitutes marital property, subject to equitable division. Tenn. Code Ann. §36-4-
121(b)(1)(B), Cohen v. Cohen, 937 S.W.2d 823 (Tenn. 1996). (C.f., Gragg v. Gragg, 12 S.W.3d 412
(Tenn. 2000) (holding that true disability payments replace lost income and are not marital property.)

                Our review of the Trial Court’s decision is de novo with a presumption of correctness
of the Trial Court’s findings of fact, unless the preponderance of the evidence is otherwise. Tenn.
R. App. P. 13(d); McCarty v. McCarty, 863 S.W.2d 716 (Tenn. Ct. App. 1992). No presumption
of correctness attaches to the trial court’s legal conclusions. Union Carbide Corp. v. Huddleston,
854 S.W.2d 87 (Tenn. 1993). The issue thus becomes the correctness of the Trial Court’s factual
finding that the plan at issue under which the husband was receiving benefits was a retirement plan.
The only proof on this issue is the husband’s testimony and the documentary evidence. The Ford
Motor Company wrote the husband regarding his “Application for Disability Retirement” from its
division of “Retirement Relations”. The letter states that the company was in receipt of the
husband’s application “necessary to support your retirement under the Ford-UAW Retirement Plan,
commencing 6/1/99.” The letter then explains that the husband would be subjected to a medical
evaluation to determine his eligibility for a disability retirement. The letter repeatedly refers to the
benefits and plan as “retirement”. The husband’s application was on a form entitled, “Ford-UAW
Retirement Plan - Application for Retirement Benefits”. The husband, from six choices for
retirement type, checked “disability”.

                The information subpoenaed from Ford Motor Company and filed in evidence,
consists of a cover letter to the attorney, a memo on Ford Motor Company letterhead regarding
benefits information on husband, and attachment which is entitled, “Alternate Payee’s Ford-UAW
Pension Benefits”. The memo regarding husband’s benefits addresses three categories - health care,
savings plans, and pension plans. Under the Pension Plans heading, the memo states “In response
to your request for Pension data, please be advised that Mr. Hardin commenced a monthly retirement
benefit from the Ford Motor Company-UAW Retirement Plan on June 1, 1999. The monthly benefit
is currently $831.11.” The memo continues that if a benefit from the pension plan is required for
the alternate payee, then a QDRO is required. The attachment regarding alternate payee benefits sets
forth the requirements for such a QDRO.


                                                  -2-
                 We conclude the evidence does not preponderate against the findings of th Trial
Court. The documentation from the Ford Motor Company clearly indicates that the husband is
receiving benefits under a retirement plan provided by his employer. There is no evidence of a
separate disability policy. The memo from Ford Motor Company expressly states the husband is
receiving a “monthly retirement benefit” pursuant to a pension plan, and further describes how the
pension plan may be divided pursuant to a QDRO. The husband admitted that the only plan he had
was his retirement plan through Ford/UAW. The application which the husband filled out states that
it is an application for retirement. The husband maintains the monthly payments are for disability
to replace lost income, but this is not borne out by the documentary evidence. The statutory
definition of marital property is “virtually all inclusive”, and specifically includes retirement benefits.
See Cohen.

               Accordingly, we affirm the Judgment of the Trial Court and remand. The cost of the
appeal is assessed to Terry B. Hardin.




                                                         _________________________
                                                         HERSCHEL PICKENS FRANKS , J.




                                                   -3-
