                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                      March 2000 Session

      JOSEPH BLOUNT TURNER v. GLORIA JEAN WEISS TURNER

                      Appeal from the Circuit Court for Davidson County
                        No. 97D-2292     Marietta M. Shipley, Judge



                  No. M1999-00482-COA-R3-CV - Filed September 28, 2000


This is a divorce case. Following a bench trial, the court below (1) granted a divorce to wife; (2)
divided the marital property; (3) awarded wife alimony in the form of a $1,640.55 monthly payment
out of husband’s retirement account; and (4) declared that the alimony award was to be secured by
the husband’s retirement account. Husband appeals the alimony award, the use of the retirement
account as security for the payment of alimony, and the trial court’s division of the marital property.
Wife takes issue with the division of the parties’ marital property. We affirm.

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

CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which HOUSTON M. GODDARD ,
P.J., joined. D. MICHAEL SWINEY , J., filed a dissenting opinion.

Joseph L. Lackey, Jr., Nashville, Tennessee, for the appellant, Joseph Blount Turner.

Pamela A. Taylor, Nashville, Tennessee, for the appellee, Gloria Jean Weiss Turner.

                                             OPINION

                                               I. Facts

       In this divorce action, the trial court dissolved the marriage of Gloria Jean Weiss Turner
(“Wife”) and Joseph Blount Turner (“Husband”). The parties had been married for 26 years. At the
time of the hearing, Wife was 54 and Husband was 56. Wife has an adult daughter from a prior
marriage, and Husband has two adult sons from an earlier marriage.

       The marriage began to falter in the early 1990’s. According to the divorce complaint,
Husband assaulted Wife with a gun on February 22, 1996. Subsequent to this incident, Wife sought
an order of protection in General Sessions Court. In that proceeding, the court entered an agreed
order whereby the parties agreed not to dissipate marital assets and to “continue to handle their
household finances and pay their bills exactly as they [had] done in the past.”
        Husband subsequently filed for divorce on May 24, 1996. Another agreed order was entered
on January 16, 1997. This order required Husband to pay Wife $2,250.00 per month as pendente
lite support. Approximately five months later, Husband filed a voluntary non-suit of the divorce
action and ceased making the monthly payments to Wife. Wife filed this divorce action on August
1, 1997.

        Upon the institution of this action, various restraining orders issued, and Wife began to
receive monthly payments in the amount of $1,640.55 from Husband’s retirement account with J.C.
Bradford, a stock brokerage firm. Meanwhile, Husband had applied for and received Social Security
disability benefits, based upon a diagnosis of chronic depression, agoraphobia, panic attacks, and
anxiety. He received one lump sum from Social Security for $13,000 “or so” and was drawing
$1,170 monthly at the time of trial.

        A divorce hearing was held on June 23 and 24, 1998, and October 27, 1998. Testimony at
the hearing focused on the following areas: (1) the overall financial condition of the parties; (2) the
J.C. Bradford retirement account; (3) the “Sugartree” residence; (4) a life insurance policy against
which Husband had borrowed funds; (5) a lake front cabin located in Center Hill; (6) $80,000
allegedly stored in a safe on the parties’ property; and (7) Husband’s car business.

        Husband testified that he developed, beginning in 1994, severe mental health problems, i.e.,
chronic depression, agoraphobia, panic attacks, and anxiety. It was for this reason that he had been
collecting monthly Social Security benefits. Wife testified that these conditions were due to
Husband’s heavy drinking and that he did not experience those symptoms when he did not drink.

       Though Husband does not have a college degree, he enjoyed success in various facets of the
automobile industry. He testified that he began to liquidate his car business in 1997 and that he was
not employed at the time of trial. Wife testified that Husband’s expenses as they related to the car
business indicated he was still operating the business at the time of trial.

       Husband stated that his only income at the time of trial was his monthly $1,170 disability
check and the monthly $1,640.55 check he should have been receiving from his J.C. Bradford
retirement account, but which was at that time going directly to Wife. He also testified that he had
been receiving approximately $1,200 per month in the form of accounts receivable monies from
various car lots, but that he would cease to receive that money in June, 1998. Three exhibits in the
record relating to Husband’s monthly living expenses show those expenses to be $2,050.60,
$1,501.90, or $1,022.02.

        Wife has worked as a co-manager of her family’s liquor store, as an assistant manager at a
car dealership in which Husband was involved, and as an assistant in Husband’s own car business.
She also assists, as a volunteer, in the operation of a sorority house. Wife received a bachelor’s
degree in political science in 1967; she minored in Spanish. An expert witness testified that under
the circumstances, Wife could only expect to earn between $15,000 and $18,000 per year, a salary
which would not enable her to approximate the standard of living she enjoyed during the marriage.
The only income Wife was receiving at the time of the hearing was the monthly $1,640.55 check

                                                 -2-
from Husband’s J.C. Bradford retirement account and $400 per month from a roommate who was
to move out in December of 1997. Wife’s monthly expenses are $3,328.88.

        During the marriage, Husband entered into an agreement with his employer, Frank Davis
Buick, to buy a certain amount of stock in the dealership. The deal went sour, however, and the
parties settled. A portion of the settlement proceeds, approximately $176,000, went into Husband’s
J.C. Bradford retirement account. Wife was originally designated as the sole beneficiary. At some
point Husband changed the beneficiary designation to his girlfriend, and he was subsequently forced
by court order to change it back to Wife. With respect to the funds paid out of the account monthly,
the court ordered J.C. Bradford to make the monthly payments of $1,640.55 directly to Wife. The
value of the account at the time of trial was over $273,750.

         Another $275,000 Husband received from Frank Davis Buick as part of the settlement
agreement was used to pay off the balance of the parties’ Sugartree residence. The property was
originally titled jointly. On October 16, 1990, the property was placed in Wife’s name only. Wife
testified that this was done because Husband wanted to make sure that Wife was taken care of in case
of his death. Husband testified that the reason for titling the property in Wife’s name alone was to
shield the asset from the threat of a lawsuit against a limited partnership in which he held an interest.
In January or February, 1996, Husband attempted to persuade Wife to re-title the property into his
name alone. Wife testified that she initially signed the document Husband proffered to her, under
the belief that it was being re-titled back into both of their names jointly. When she discovered that
the document she had signed placed the property into Husband’s name alone, she voided the
document, removed it from the house, and refused to give it back to Husband.

        The testimony concerning the life insurance policy and the use of funds borrowed against the
policy is vexing. At some point, Husband borrowed approximately $74,000 against this life
insurance policy.1 Husband spent approximately $19,000 of the loan proceeds on various bills,
including attorney’s fees, living expenses, and support payments to Wife. Husband also loaned
approximately $24,000 of the loan proceeds to Nashville Motors.2 Husband sent another $32,000
to his son, to be used for the lake front cabin.3 At trial, the loan balance against the life insurance
policy was approximately $80,000.

       The lake front cabin was originally titled in the names of Husband and Wife jointly. On
April 14, 1983, they quitclaimed the property to Husband’s business. Husband then quitclaimed the
property to his son on September 23, 1988. In addition to the $32,000 of the life insurance loan


        1
       At about the same time, Husband sold some firearms, bringing in additional cash with which
to complete subsequent transactions.
        2
       Approximately $17,000 of this amount was collected at a rate of approximately $1,200 per
month. Husband testified that the remainder could not be collected.
        3
            This $32,000 has not been paid back.

                                                   -3-
proceeds Husband sent to his son, Husband sent another approximately $24,000 earned by his
business to his son to be used toward the lake front cabin property. Husband testified that, in total,
he has invested between $75,000 and $80,000 in the lake front cabin. This property was assessed
for tax purposes at $103,800 and appraised at a value of $120,000.

         Wife testified that there was between $80,000 and $90,000 in cash in the safe located in the
residence as of November, 1995. Wife’s daughter also testified that she had seen bundles of $100
bills in the safe. Husband denied that there was $80,000 in the safe. He also testified that, because
the safe’s lock mechanism sometimes malfunctioned, they kept the safe unlocked but in such a state
that it appeared to be locked. In January, 1996, he found the safe actually locked. Because he
could not get it open, he transported it to a locksmith and had it drilled open. He and the locksmith
both testified that there was no large amount of cash in the safe when it was opened.

       With respect to the car business, Wife assisted Husband, to some degree, in developing the
business. At some point, the business paid off a $75,000 loan, and Husband told Wife that he would
pay her an average of what he had been paying the bank in interest. Wife testified that she did not
receive any such payment.

        Husband testified that he operated his car business until the end of January, 1997, at which
point he began to liquidate his inventory. He stated that he was not operating the car business at the
time of trial, but that he was still incurring expenses in his attempts to liquidate his remaining
inventory. According to his testimony, his inventory was never worth more than $75,000, and, at
the time of trial, his business had no value at all. He stated that his remaining inventory was $6,000.
Wife testified that Husband had told her in 1990 that the business’ inventory was worth
approximately $300,000. Based on this figure and the fact that Husband was still incurring
expenses, Wife stated that she believed Husband was still operating the business, and she valued the
business at $250,000.

       Following a bench trial, the trial court:

               (1) granted a divorce to Wife as the party less at fault;

               (2) awarded the J.C. Bradford retirement account to Husband;

               (3) found that the Sugartree residence was “clearly marital property”,
               determined its value to be $425,000, and awarded it to Wife;

               (4) found that the cash value of the life insurance policy and the
               amount of the loan against the policy were approximately equal, and
               awarded the policy to Husband with him being responsible for the
               debt against the policy;

               (5) found the lake front cabin to be marital property and awarded it
               to Husband;

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                (6) found that Husband had taken $80,000 from the safe and counted
                it towards his share of the marital assets; and

                (7) found that the inventory of Husband’s car business was $6,000,
                declared that it believed that Husband would still continue in the
                operation of the business, and awarded the value of the inventory to
                Husband.

        Thus, the trial court divided the marital property as follows:

             Assets                          Total              Wife               Husband

        Sugartree residence          $    425,000          $ 425,000

        Lakefront cabin                   114,000                                   $114,000

        Car inventory                        6,000                                      6,000

        Cash in safe                       80,000                                      80,000

        Life insurance policy                 -0-                                         -0-

        J.C. Bradford account             273,758                                    273,758

        Other personal property           146,673             99,478                   47,195

        Total                          $1,045,431          $ 524,478               $ 520,953


        In addition, the trial court stated that “[i]f there is any inequity in the distribution of marital
funds, it will be awarded to [Wife] as alimony in solido.”

        Finally, the court awarded alimony to Wife, stating that:

                [f]or [Wife] to even begin to approach her previous lifestyle, she will
                need some “closing in money.” Therefore, the Court will award her
                periodic alimony in the amount of Sixteen Hundred Forty and 55/100
                ($1,640.55) Dollars, however [Wife] shall be responsible for the taxes
                on said periodic alimony. This amount of money is secured by the
                $273,000 (previous amount of fund in 1996) retirement fund
                presently at J.C. Bradford. J.C. Bradford will send a check directly
                to [Wife] in that amount. After the year 2001, if the fund has grown
                enough to allow a payment greater than [$1,640.55], [Husband] may
                have additional monthly funds, so long as the fund will support

                                                     -5-
               [$1,640.55] per month payable to [Wife]. [Husband] may designate
               the beneficiaries as he wishes, as he is the owner of the retirement
               fund.

       Husband now appeals, raising as issues the following: (1) the trial court’s award of periodic
alimony to Wife and the use of the J.C. Bradford retirement account to secure payment of the
alimony award; and (2) the trial court’s division of the marital property, more specifically, its
treatment of the loan on the life insurance policy and its treatment of the J.C. Bradford retirement
account. Wife takes issue (1) with the trial court’s finding that the Sugartree residence is marital
property; and (2) with the trial court’s valuation of the car business.

                                       II. Standard of Review

        Because this is a non-jury case, our review is de novo upon the record of the proceedings
below. That record comes to us with a presumption of correctness as to the trial court’s factual
findings, a presumption that we must honor unless the evidence preponderates against those findings.
Tenn. R. App. P. 13(d). We review the trial court’s conclusions of law de novo with no presumption
of correctness. Adams v. Dean Roofing Co., 715 S.W.2d 341, 343 (Tenn. Ct. App. 1986).

        Our de novo review is also subject to the well-established principle that the trial court is in
the best position to assess the credibility of the witnesses; accordingly, such determinations are
entitled to great weight on appeal. Massengale v. Massengale, 915 S.W.2d 818, 819 (Tenn. Ct.
App. 1995); Bowman v. Bowman, 836 S.W.2d 563, 566 (Tenn. Ct. App. 1991).

                                            III. Analysis

                                       A. Division of Property

        Both Husband and Wife quibble with the trial court’s division of property. Husband argues
that the division was inequitable because (1) he was credited with receiving the J.C. Bradford
retirement account but not given any control over it; and (2) because he was made responsible for
the debt against the life insurance policy. Wife argues that the trial court erred (1) in finding the
Sugartree residence to be marital property; and (2) in its valuation of the car business.

        In divorce cases, Tennessee recognizes two distinct classes of property: (1) “marital
property,” as defined in T.C.A. § 36-4-121(b)(1) (1996); and (2) “separate property,” as defined in
T.C.A. § 36-4-121(b)(2) (1996). The distinction is important because, in an action for divorce, only
marital property is divided, distributed, or assigned between the parties. See T.C.A. § 36-4-121(a)(1)
(1996). Implicit in the statute is the understanding that separate property is not divided between the
parties. Brock v. Brock, 941 S.W.2d 896, 900 (Tenn. Ct. App. 1996).

        Generally, property that is acquired during the marriage by either or both spouses and still
owned by either or both spouses when the divorce complaint is filed is classified as marital property
and is thus subject to equitable division. T.C.A. § 36-4-121(b)(1). However, property acquired by

                                                 -6-
a spouse by gift, bequest, devise or descent, even if acquired during the marriage, is separate property
and not subject to division. See T.C.A. § 36-4-121(b)(2)(D).

       A court’s division of marital property must be done in accordance with the statutory factors
found in T.C.A. § 36-4-121(c). Marital fault cannot be considered. T.C.A. § 36-4-121(a)(1).

       “[A]n equitable property division is not necessarily an equal one. It is not achieved by a
mechanical application of the statutory factors, but rather by considering and weighing the most
relevant factors in light of the unique facts of the case.” Batson v. Batson, 769 S.W.2d 849, 859
(Tenn. Ct. App. 1988). It is not necessary that both parties receive a share of each piece of property.
Thompson v. Thompson, 797 S.W.2d 599, 604 (Tenn. Ct. App. 1990).

        Marital debt is to be treated similarly to marital property. It

                should be divided equitably in accordance with the factors in Tenn.
                Code. Ann. § 36-4-121(c) and in light of (1) which party incurred the
                debt, (2) the purpose of the debt, (3) which party benefitted from
                incurring the debt, and (4) which party is better able to repay the debt.
                Marital debts need not be divided in precisely the same manner as the
                marital assets, although they frequently follow their related assets.

Kinard v. Kinard, 986 S.W.2d 220, 233 (Tenn. Ct. App. 1998) (citations omitted).

        Appellate courts are to defer to a trial court’s division of marital property unless the trial
court’s decision is inconsistent with the statutory factors or is unsupported by the preponderance of
the evidence. Brown v. Brown, 913 S.W.2d 163, 168 (Tenn. Ct. App. 1994).

       The trial court’s division of marital property gave $524,478 to Wife and $520,953 to
Husband. Husband argues, however, that because the trial court ordered that the J.C. Bradford
retirement account be utilized as security for the payment of alimony, Husband effectively has no
control over the account, and thus, so the argument goes, the trial court effectively awarded the
account to Wife, resulting in a split of $798,236 to Wife and $247,195 to Husband.

        We find this argument to be without merit. Husband’s own behavior compelled the trial
court to utilize the retirement account as security for Husband’s payment of alimony to Wife.
Though it secures the payment of alimony, the account itself still belongs to Husband. Upon the
death or remarriage of Wife, Husband will have complete control over the entire value of the
account. Moreover, T.C.A. § 36-5-101(a)(1) specifically allows a court to award support out of a
spouse’s property. Therefore, we find this issue adverse to Husband.

         Husband next argues that it was error to make him solely responsible for the debt against the
life insurance policy. More specifically, he argues that (1) because $32,000 of the funds borrowed



                                                  -7-
against the insurance policy was used to build the lake front cabin; and (2) because he was awarded
the full value of the cabin, the trial court has effectively assessed the $32,000 against him twice.

         We disagree. Husband’s argument ignores the fact that the cash value of the life insurance
policy at the time of trial was “approximately equal” to the debt against the policy. Thus, the trial
court awarded the life insurance policy to Husband and assigned it a value of zero. The debt against
the life insurance policy is set off by the cash value of the policy. Therefore, we find that the trial
court did not err in its treatment of the life insurance policy.

       Wife argues that the trial court erred in classifying the Sugartree residence as marital
property. More specifically, she asserts that while shielding the residence from a potential lawsuit
may have been a factor in transferring the residence to Wife, Husband’s primary motivation was to
provide for Wife in the event of his death.

         To be valid, a gift requires (1) the intent of the donor to make a gift; and (2) delivery,
whereby the donor surrenders complete dominion and control over the property. Hansel v. Hansel,
939 S.W.2d 110, 112 (Tenn. Ct. App. 1996). Although a conveyance of property between spouses
creates a rebuttable presumption of a gift, it is not conclusive evidence on the issue. See Robbins
v. Robbins, C/A No. 01A01-9201-CV-00031, 1992 WL 187637, at *3 (Tenn. Ct. App. M.S., filed
August 7, 1992); see also Abney v. Abney, C/A No. 181, 1991 WL 16255, at *3 (Tenn. Ct. App.
E.S., filed February 12, 1991).

        The trial court found, without elaboration, that the real estate in question was the marital
property of the parties. It did so despite the fact that Husband executed a quitclaim deed to Wife
ostensibly conveying his interest in the property to Wife. Implicit in the trial court’s decision to
classify the property as marital property is the court’s finding that the deed, for whatever reason, did
not have the effect of conveying the property to Wife as her separate property. Apparently, the trial
court accredited the testimony of Husband to the effect that the purpose of the deed to Wife was to
shield the residence from the threat of a lawsuit. Since the trial court apparently believed Husband’s
testimony, this credibility determination effectively precludes us from finding that the evidence
preponderates against the trial court’s classification of the subject property as marital property.

       Wife next argues that “the trial court erred in failing to give [Husband’s] car business a value
to be divided equitably between the parties given that it found that [Husband] was still in the
business of selling cars.”

        The value to be given a marital asset is a question of fact. Kinard v. Kinard, 986 S.W.2d
220, 231 (Tenn. Ct. App. 1998). In making this determination, the trial court is to consider all
relevant evidence, and, if the evidence is conflicting, the court “may assign a value that is within the
range of values supported by the evidence.” Id. An appellate court is to presume a trial court’s
factual determinations are correct unless the evidence preponderates against them. Id.




                                                  -8-
         Wife testified that Husband had told her in 1990 that the business’ inventory had an
approximate value of $300,000. She also opined that the fact that Husband was still incurring
expenses at the time of trial indicates that he was still operating the business, and she therefore
concluded that the value of the business was $250,000. Husband, on the other hand, testified that
he began to liquidate his inventory in 1997 and that he was not operating the car business at the time
of trial. He stated that he was still incurring expenses in his attempt to liquidate the remaining
inventory which he valued at $6,000.

        Based upon this evidence, the trial court stated the following:

                The Court has real difficulty determining if [Husband] has an ongoing
                business or not. For the purposes of this divorce, the court will accept
                that he has $6,000 in inventory left, but it is highly suspect if that is
                the actual number or if he is totally out of business. The court
                believes that [Husband] will still continue in the car business.

        We find no error in the trial court’s treatment of the car business. The trial court’s findings
with respect to this issue are again based on the trial court’s factual findings and its assessment of
the credibility of the witnesses. These determinations are entitled to great weight on appeal. See
Massengale v. Massengale, 915 S.W.2d 818, 819 (Tenn. Ct. App. 1995). After careful review of
the record, we find and hold that the evidence does not preponderate against the trial court’s
valuation of the car business and its award of the business to Husband.

                                              B. Alimony

        Husband first argues that the trial court erred in its award of periodic alimony to Wife in light
of the legislative preference for rehabilitative alimony, Husband’s inability to pay alimony, and
Wife’s ability to support herself.

        The amount and duration of alimony are issues with respect to which the trial court exercises
wide discretion. Garfinkel v. Garfinkel, 945 S.W.2d 744, 748 (Tenn. Ct. App. 1996). In making
an alimony determination, a court should be guided by the factors set forth in T.C.A. § 36-5-
101(d)(1)(A) – (L) (Supp. 1999). The “real need” of the requesting spouse “is the single most
important factor.” Cranford v. Cranford, 772 S.W.2d 48, 50 (Tenn. Ct. App. 1989). “In addition
to the need of the disadvantaged spouse, the courts most often consider the ability of the obligor
spouse to provide support.” Id. The fault of the obligor spouse is also a common factor. Bull v.
Bull, 729 S.W.2d 673, 675 (Tenn. Ct. App. 1987). The amount of alimony should be determined
so “that the party obtaining the divorce [is not] left in a worse financial situation than he or she had
before the opposite party’s misconduct brought about the divorce.” Shackleford v. Shackleford, 611
S.W.2d 598, 601 (Tenn. Ct. App. 1980) (citations omitted).

       The relevant statute, T.C.A. § 36-5-101, clearly reflects a bias in favor of rehabilitative
alimony. See T.C.A. § 36-5-101(d)(1) (Supp. 1999). “The purpose of rehabilitative support is to
enable the disadvantaged spouse to acquire additional job skills, education, or training that will

                                                  -9-
enable him or her to be more self-sufficient.” Anderton v. Anderton, 988 S.W.2d 675, 682 (Tenn.
Ct. App. 1998). Where rehabilitation is not feasible, however, “courts may still award long-term
support and maintenance until remarriage or death of the recipient,” Isbell v. Isbell, 816 S.W.2d
735, 739 (Tenn. 1991), because long-term spousal support is designed “to provide support to a
disadvantaged spouse who is unable to achieve some degree of self-sufficiency.” Anderton, 988
S.W.2d at 682. Even where divorced couples lack sufficient resources to enable both of them to
enjoy their pre-divorce standard of living, courts may award alimony as ‘closing in money’ to enable
the recipient spouse to more closely approach his or her pre-divorce standard of living. See Aaron
v. Aaron, 909 S.W.2d 408, 411 (Tenn. 1995).

         We find that the evidence does not preponderate against the trial court’s award of periodic
alimony to Wife. Though Wife has a college degree and some degree of work experience, her
earning capacity is no greater than $18,000 per year, a salary insufficient to allow her to reach a
reasonable standard of living when measured in relation to the standard of living she and Husband
enjoyed during the marriage. Though Husband has no college degree and is receiving disability, the
trial court found it likely that Husband would continue in the car business. In any event, we find that
he has the resources out of which to pay Wife $1,640.55 in monthly periodic alimony.

        In arguing that the alimony award should have been rehabilitative rather than long-term,
Husband relies on Anderton v. Anderton, 988 S.W.2d 675 (Tenn. Ct. App. 1998). In that case, we
stated that

               [u]nder the facts of this case, we have determined that Ms. Anderton
               should receive rehabilitative spousal support. She is currently forty-
               five years old. She earned a college degree in May 1996 and for
               many years participated in running a financially successful Amway
               distributorship. Her health and emotional complaints simply do not
               rise to the level of seriousness that they prevent her from becoming
               gainfully employed. After hearing the evidence on remand, the trial
               court found that Ms. Anderton’s “physical limitations and disabilities
               do not preclude economic rehabilitation.” Accordingly, the trial
               court concluded that she “will probably become capable of financial
               self support, but there is a substantial possibility that she will not.”
               We find that the evidence preponderates in favor of the trial court’s
               conclusion that Ms. Anderton is capable of financial self support.

Id. at 683.

        We decline to find sufficient similarities between the facts in Anderton and the facts of the
instant case to warrant a reversal of the trial court’s award of periodic alimony. Wife in the instant
case is older, her college degree is stale, and the evidence is insufficient to conclude that her work
experience rises to the level of Anderton’s “financially successful Amway distributorship.” More
importantly, the trial court in the instant case has not specifically found that Wife is capable of


                                                 -10-
financial self-support; nor do we. Therefore, we find and hold that the trial court did not err in
awarding Wife periodic alimony in the amount of $1,640.55 per month.

                                C. Security for the Alimony Award

         Finally, Husband argues that the trial court erred in utilizing the J.C. Bradford account as
security for Husband’s payment of alimony. He relies again on Anderton, in which we found that
the trial court erred in leaving a temporary restraining order on a retirement account that had been
awarded to the husband in the division of marital property. Anderton, 988 S.W.2d at 683.

        We find that the trial court did not err in utilizing the J.C. Bradford retirement account to
secure Husband’s payment of alimony to Wife. It was Husband’s failure, on several occasions, to
make court-ordered payments to Wife that prompted the trial court’s decision to order that the
payments be made directly from the retirement account. The account still belongs to Husband. The
payments from the account are limited in duration until the death or remarriage of Wife, at which
time Husband will have complete control over both the fund and the payments. Anderton is
distinguishable on its facts in that there is no indication in that case that the husband demonstrated
that he could not be trusted to make the payments. In addition, we note that a court may award
“suitable support and maintenance of either spouse…out of [a] spouse’s property.” T.C.A. § 36-5-
101(a)(1) (Supp. 1999). Therefore, we find no error on this issue.

                                          IV. Conclusion

        The judgment of the trial court is affirmed. The case is remanded for enforcement of the
judgment and collection of costs assessed below, all pursuant to applicable law. Costs on appeal
are taxed to the appellant.




                                                       ___________________________________
                                                       CHARLES D. SUSANO, JR., JUDGE




                                                -11-
