             IN THE COURT OF APPEALS OF TENNESSEE
                  AT JACKSON MAY 1999 SESSION


                                                     FILED
                                                       July 12, 1999

WANDA FAY WILSON            )    OBION CHANCERY  Cecil Crowson, Jr.
BARKER,                     )    (No. 20,207)   Appellate Court Clerk
                            )
      Plaintiff/Appellant        )
                            )
v.                          )    APPEAL NO. 02A01-9808-CH-00222
                            )
JAMES ROYCE BARKER,         )
                            )
      Defendant/Appellee    )




      APPEAL FROM THE CHANCERY COURT OF OBION COUNTY
                  AT UNION CITY, TENNESSEE
     THE HONORABLE WILLIAM MICHAEL MALOAN, CHANCELLOR



For the Appellant:
Marianna Williams
Ashley, Ashley & Arnold
322 Church Avenue
P. O. Box H
Dyersburg, TN 38025-2008

For the Appellee:
Damon E. Campbell
Conley, Campbell, Moss & Smith
317 South Third Street
P. O. Box 427
Union City, TN 38281



AFFIRMED                         WILLIAM H. INMAN, Senior Judge


CONCUR:

HEWITT P. TOMLIN, JR., SPECIAL JUDGE
ALAN E. HIGHERS, JUDGE

                                  OPINION

      Following thirty-five years of marriage, these parties separated, retired, and

divorced. Certain accumulated assets of an agreed value of four million dollars

were, by stipulation, divided equally, with each receiving rental properties,

promissory notes, certificates of deposit, retirement accounts, and a host of other

items of real and personal property, of the aggregated value of two million dollars.

      But there were five specific assets, according to the appellant [Wife], which

the parties did not divide, and with which this litigation is concerned:

      (1)     $75,000.00 in payments from the Bank of Troy, owing on a
             promissory note;

      (2)    $26,000.00 paid from Equitable account;

      (3)    $45,000.00 paid from Edward Jones account;

      (4)    $17,500.00 - 1996 tax overpayment;

      (5)    Cash in home safe.

(1) The Chancellor found that the payments on the Bank of Troy note were made

to Husband, who deposited them into his checking accounts. His bank records

were extensively discovered by Wife, who argues that during their separation

Husband spent more money than she did, including the payments from the Bank

of Troy. After much testimony on the point, the Chancellor concluded that these

funds were taken into account and consideration in the agreed decision.



(2) Husband received $26,000.00 from the Equitable account in two equal

distributions. The first distribution was received before the parties separated.




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Husband testified that these funds were expended for living costs,1 but the

Chancellor found that only $5,000.00 was properly accounted for, leaving

$21,000.00 subject to division.



(3) In February, 1998, after the parties separated, Husband received $45,900.00

from the Edward Jones brokerage. Wife argues that these funds were not included

in the marital estate, and were not properly expended by Husband. The Chancellor

found, similarly to the Bank of Troy note, that these funds were the subject of

discovery and were taken into account and consideration by the parties in their

settlement. The evidence revealed that these funds were deposited into Husband’s

checking accounts, which were analyzed by Wife.



(4) In 1996, the parties overpaid their income tax liability by $17,500.00, which

they elected to apply to their 1997 obligation. But in 1997, each filed a separate

return, with Husband receiving full credit for the $17,500.00 overpayment. Wife’s

income tax for 1997 was $4,000.00. For this reason the Chancellor found that

Wife was entitled to an equitable division of the $17,500.00 overpayment.



(5) The parties kept a home safe. Wife believed it contained $17,000.00 when the

parties separated.     Husband testified that he took between $10,000.00 and

$12,000.00 and left an unknown amount for Wife. The Chancellor found that Wife

had an equitable interest in the safe cash.




       1
        The parties enjoyed an affluent life style. Each was entrepreneurial, engaged in
various business endeavors. Expenditures included the maintenance of two houses and a
condominium, swimming pool, numerous trips to Florida, Las Vegas, Biloxi, Hot Springs,
and elsewhere.

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      The aggregate of Wife’s equitable interest in the safe cash, the tax

overpayment, and the Equitable account was determined to be $20,000.00. Wife

disagrees, arguing that she was not awarded a fair share because she found no

record of deposits for about $120,000.00 received by Husband during their

separation, and she presents for review the propriety of the disposition of the five

(5) disputed assets.

      Our review of the findings of fact made by the trial Court is de novo upon

the record of the trial Court, accompanied by a presumption of the correctness of

the finding, unless the preponderance of the evidence is otherwise. TENN. R. APP.

P., RULE 13(d); Campbell v. Florida Steel Corp., 919 S.W.2d 26 (Tenn. 1996).

      From the extensive evidence offered by the parties, the Chancellor found

that the Bank of Troy funds and the brokerage funds, aggregating about

$120,000.00, were taken into consideration by the parties during their negotiations

and settlement and hence were included in the settlement. The evidence does not

preponderate against this finding. From the remaining disputed accounts, the

Chancellor awarded the appellant $20,000.00. We cannot find that the evidence

preponderates against this amount.

      The judgment is affirmed at the costs of the appellant.




_______________________________
                                              William H. Inman, Senior Judge
CONCUR:



_______________________________
Alan E. Highers, Judge


_______________________________
Hewitt P. Tomlin, Jr., Special Judge

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