                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT KNOXVILLE
                                     August 9, 2004 Session

               MITCHELL LLOYD MAGILL v. MARY R. MAGILL

                  Appeal from the General Sessions Court for Roane County
                         No. 5460A    Dennis W. Humphrey, Judge



                  No. E2003-02209-COA-R3-CV - FILED AUGUST 31, 2004


This is a divorce case. The trial court granted Mary R. MaGill (“Wife”) a divorce based upon the
inappropriate marital conduct of her spouse, Mitchell Lloyd Magill (“Husband”); awarded Wife
rehabilitative alimony of $600 per month for four years, plus attorney’s fees of $600; and divided
the parties’ marital property. Husband appeals the trial court’s award of rehabilitative alimony. In
a separate issue, Wife contends that the trial court failed to divide marital assets in the form of two
businesses, i.e., MaGill Electric and C&M Lounge. She also seeks an award of damages for a
frivolous appeal. We affirm.

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

CHARLES D. SUSANO , JR., J., delivered the opinion of the court, in which HERSCHEL P. FRANKS, P.J.,
and D. MICHAEL SWINEY , J., joined.

Scarlett Beaty Latham, Albany, Kentucky, for the appellant, Mitchell Lloyd MaGill.

Tom McFarland, Kingston, Tennessee, for the appellee, Mary R. MaGill.

                                               OPINION

                                                    I.

       The trial court dissolved a marriage of 17 years. At the time of their divorce, Husband was
47 years old, and Wife was 42. No children were born to their union.

        This matter was initially heard on October 3, 2002, and an order was thereafter entered
granting Wife an absolute divorce. The order reserved all other issues. A hearing on the division
of the parties’ property and alimony was held on July 31, 2003. Apparently, the parties did not have
a court reporter present at this latter hearing; as a consequence of this, there is no verbatim transcript
of the evidence. Husband, instead, filed an amended statement of the evidence along with exhibits.
Wife does not dispute the accuracy of the statement. The parties and Wife’s daughter of an earlier
marriage were the only witnesses in this case.

       Wife testified that Husband earned “over $50,000 per year” and that he worked for “cash
money”, pocketing “thousands” of dollars that he failed to “report[] to the IRS.” Wife stated that
she was employed at Harriman Hospital earning $6.47 per hour.

         According to Wife, during the parties’ marriage, she made deposits of $3,000 to $4,000 per
month for C&M Lounge, which is apparently a bar-type establishment. Wife also tendered several
exhibits that were received into evidence. These exhibits – apparently reflecting various business
transactions – were offered in an attempt to prove that Husband’s sole proprietorship, MaGill
Electric, earned more money than reported on the parties’ tax returns. In her affidavit of assets, Wife
listed the current revenues of MaGill Electric as $50,000 per year and the current revenues of C&M
Lounge as $25,000 per year. Husband listed the value of MaGill Electric as “[u]nknown” and did
not list a value for C&M Lounge.

        Husband disagreed with Wife’s testimony regarding his income; he produced joint tax returns
in order to support his claim. Husband also testified that C&M Lounge never made “much money”.
Husband stated that “the tax returns accurately reflected his net earnings after costs of goods,
business expenses and other allowable deductions were taken into consideration.”

       The trial court entered a final judgment on August 11, 2003. In its final judgment, the trial
court made the following findings with respect to alimony.

               At the time of the divorce, [Wife] testified, she earned at the hospital
               $5.48 an hour and now earns $6.47. She has a high school education
               and is 42.

                                                * * *

               [Husband] maintained [C&M Lounge] operated at a loss and denied
               concealing income. . . .

               [Husband] also denied the income attributed to him during-cross
               examination, which revealed a cash flow of several hundred thousand
               dollars each year. He explained that the expense of materials were
               depicted in the records obtained from his computer and submitted
               during the hearing. He denied concealing income from that business
               as well.

               [Wife], however, maintained in her testimony that at the bar she often
               made the deposits of $3,000.00 to $4,000.00 each month, and that as



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               an electrician, [Husband] would often accept cash that would not be
               reported as income. [Husband’s] actual income is in dispute.

                                                * * *

               The Court resolves these conflicts in favor of [Wife] and finds
               [Husband’s] testimony to not be credible.

                                                * * *

               In reviewing the wife’s Affidavit of Expenses, the Court finds her
               monthly expenses and her income to be an accurate representation of
               her financial state and agrees that an ward of alimony and an award
               of attorney’s fee[s] to be appropriate. . . .

      The trial court ordered Husband to pay Wife rehabilitative alimony in the amount of $600
per month for four years and awarded wife $600 in attorney’s fees. This appeal followed.

                                                  II.

       Our review of this non-jury case is de novo upon the record of the proceedings below with
a presumption of correctness as to the trial court’s factual findings, “unless the preponderance of the
evidence is otherwise.” Tenn. R. App. P. 13(d). The trial court’s conclusions of law are not accorded
the same deference. Brumit v. Brumit, 948 S.W.2d 739, 740 (Tenn. Ct. App. 1997).

                                                 III.

       Tenn. Code Ann. § 36-5-101(d)(1)(E)(i)-(xii) (Supp. 2003), sets forth the factors to be
considered by a court in addressing the issue of alimony:

               (i) The relative earning capacity, obligations, needs, and financial
               resources of each party including income from pension, profit sharing
               or retirement plans and all other sources;

               (ii) The relative education and training of each party, the ability and
               opportunity of each party to secure such education and training, and
               the necessity of a party to secure further education and training to
               improve such party’s earning capacity to a reasonable level;

               (iii) The duration of the marriage;
               (iv) The age and mental condition of each party;
               (v) The physical condition of each party, including, but not limited to,
               physical disability or incapacity due to a chronic debilitating disease;


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               (vi) The extent to which it would be undesirable for a party to seek
               employment outside the home because such party will be custodian
               of a minor child of the marriage;

               (vii) The separate assets of each party, both real and personal,
               tangible and intangible;

               (viii) The provisions made with regard to the marital property as
               defined in § 36-4-121;

               (ix) The standard of living of the parties established during the
               marriage;

               (x) The extent to which each party has made such tangible and
               intangible contributions to the marriage as monetary and homemaker
               contributions, and tangible and intangible contributions by a party to
               the education, training or increased earning power of the other party;

               (xi) The relative fault of the parties in cases where the court, in its
               discretion, deems it appropriate to do so; and

               (xii) Such other factors, including the tax consequences to each party,
               as are necessary to consider the equities between the parties.

                                                 IV.

        Husband argues that the trial court erred in awarding rehabilitative alimony to Wife “solely
on the basis of her claim that the Husband has unreported income.” Husband asserts that the trial
court failed to find that “Wife is capable of or in need of rehabilitation” and failed to “consider the
other factors set forth in Tenn. Code Ann. [§] 36-5-101 in determining whether alimony was
appropriate in this case.”

        Because the amount of alimony to be awarded is within the sound discretion of the trial court
in view of the particular circumstances of the case, appellate courts will not alter such awards absent
an abuse of discretion. Lindsey v. Lindsey, 976 S.W.2d 175, 180 (Tenn. Ct. App. 1997). In
determining the propriety, nature, and amount of an alimony award, courts are to consider the
statutory factors set forth in Tenn. Code Ann.§ 36-5- 101(d)(1)(E)(i)-(xii). “[T]here is no absolute
formula for determining the amount of alimony.” Aaron v. Aaron, 909 S.W.2d 408, 410 (Tenn.
1995). The two most important factors in setting the amount of an alimony award are need and the
ability to pay, with need being “the single most important factor.” Id. (quoting Cranford v.
Cranford, 772 S.W.2d 48, 50 (Tenn. Ct. App. 1989) (citations omitted)).



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        Tenn. Code Ann. § 36-5-101 clearly reflects a legislative preference for an award of
rehabilitative alimony. See Tenn. Code Ann. § 36-5-101(d)(1)(C) (Supp. 2003).1 Under this statute,
rehabilitation

                   means to achieve, with reasonable effort, an earning capacity that will
                   permit the economically disadvantaged spouse’s standard of living
                   after the divorce to be reasonably comparable to the standard of living
                   enjoyed during the marriage, or to the post-divorce standard of living
                   expected to be available to the other spouse, considering the relevant
                   statutory factors and the equities between the parties.

It is clear that “[t]he prior concept of alimony as lifelong support enabling the disadvantaged spouse
to maintain the standard of living established during the marriage has been superseded by the
legislature’s establishment of a preference for rehabilitative alimony.” Robertson v. Robertson, 76
S.W.3d 337, 340 (Tenn. 2002) (citations omitted).

        With respect to the propriety of the award of rehabilitative alimony, we are mindful of the
two critical factors–need and ability to pay. See Aaron, 909 S.W.2d at 410. Our review of the record
indicates that Wife is age 42, has a high school education; and earns $6.47 per hour as an employee
of Harriman Hospital. Husband’s income was in dispute at the trial below. Wife claimed that
husband would often accept–and not report–cash for his work as an electrician and that she made
deposits of up to $4,000 each month for the bar. Husband denied concealing income from his
business and denied that he had an annual cash flow of several hundred thousand dollars. The trial
court “resolve[d] these conflicts in favor of [Wife] and [found] [Husband’s] testimony to not be
credible.” Generally speaking, the issue of witness credibility is for the trial court. See Galbreath
v. Harris, 811 S.W.2d 88, 91 (Tenn. Ct. App. 1990).

        It is clear that Wife is economically disadvantaged vis-a-vis Husband. The trial court, in an
effort to rehabilitate Wife, ordered Husband to pay $600 per month for 48 months. Based upon
Wife’s need, Husband’s ability to pay, and the relevant factors under Tenn. Code Ann. § 36-5-
101(d)(1)(E)(i)-(xii), we cannot say that the evidence preponderates against the trial court’s finding
that Wife could be rehabilitated. Accordingly, we do not find that the trial court abused its discretion
in making this award.




       1
           Tenn. Code Ann. § 36-5-101(d)(1)(C), states, in pertinent part, that

                   [i]t is the intent of the general assembly that a spouse who is economically
                   disadvantaged relative to the other spouse, be rehabilitated whenever possible by
                   the granting of an order for payment of rehabilitative, temporary support and
                   maintenance.

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                                                   V.

       Wife argues that the trial court held that MaGill Electric and C & M Lounge are marital
property, but failed to divide the parties’ interests in the businesses. As a result, Wife maintains that
both businesses are “undistributed” martial assets.

        Property may be equitably divided and distributed between the parties once it is properly
classified as marital. See Tenn. Code Ann. § 36-4-121(a)(1) (Supp. 2003). “Trial courts have wide
latitude in fashioning an equitable division of marital property.” Brown v. Brown, 913 S.W.2d 163,
168 (Tenn. Ct. App. 1994) (citation omitted). Such a division is to be effected upon consideration
of the statutory factors found in Tenn. Code Ann. § 36-4-121(c) (Supp. 2003). However,

                an 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). 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, 913 S.W.2d at 168.

         The record in this case is devoid of any evidence as to the value of MaGill Electric and C &
M Lounge. Wife’s affidavit simply lists the annual gross income of each business without providing
further evidence as to their value, if any, as a going concern. Both businesses appear to be a sole
proprietorship which continued to be operated by Husband following the parties’ separation. In the
absence of evidence of tangible assets or other assets of value, we find no error in the failure of the
trial court to specifically address these two businesses which appear, essentially, to be nothing more
than the person of Husband.

                                                   VI.

      Wife maintains that Husband’s appeal is frivolous and that she should be awarded damages.
We find Wife’s argument to be without merit and deny her claim for damages.

                                                  VII.

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




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      _______________________________
      CHARLES D. SUSANO, JR., JUDGE




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