                       IN THE COURT OF APPEALS OF TENNESSEE
                           WESTERN SECTION AT NASHVILLE



CINDA KAY CANTRELL,                   )
                                      )
       Plaintiff/ Appellant,          )      Davidson Circuit No. 92D-1968
                                      )
v.                                    )
                                      )      Appeal No. 01A01-9603-CV-00091
JAMES CLARENCE CANTRELL,              )
                                      )
       Defendant/Appellee,

MARIE LOYA,
                                      )
                                      )
                                      )
                                                              FILED
                                      )                         June 27, 1997
        Intervenor/Appellee.          )
                                                              Cecil V. Crowson
                                                             Appellate Court Clerk


             APPEAL FROM THE CIRCUIT COURT OF DAVIDSON COUNTY
                          AT NASHVILLE, TENNESSEE


                       THE HONORABLE MARIETTA SHIPLEY, JUDGE



For the Plaintiff/Appellant:          For the Defendant/Appellee:

Louise R. Fontecchio                  Michael K. Radford
Nashville, Tennessee                  Nashville, Tennessee

For the Intervenor/Appellee:

John Aaron Holt
Nashville, Tennessee


                                      AFFIRMED



                                      HOLLY KIRBY LILLARD, J.



CONCURS:

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


ALAN E. HIGHERS, J.
                                            OPINION



       This is a divorce case involving the division of marital property. Among other things, the

trial court found that $30,000 from the husband’s mother was a loan to the husband and wife, and

the wife appeals. We affirm.

       Prior to their present marriage, Cinda Kay Cantrell (“Wife”) and James Clarence Cantrell

(“Husband”) had been married to each other and divorced. They remarried in 1982, and Wife filed

for divorce in 1992. At the time the divorce was filed, Husband and Wife owned two residential

properties in Nashville, Tennessee, the first at 675 Westboro Drive (“the Westboro residence”) and

the second at 7419 Bridle Drive (“the Bridle residence”). Husband and Wife had been living at the

Bridle residence. Pending the final divorce decree, Wife was permitted to move into the Westboro

residence, while Husband remained at the Bridle residence. In 1993, Husband’s mother, Marie Loya

(“Loya”), intervened, alleging that she had loaned Husband and Wife $36,000, which had not been

repaid. Loya asserted that she loaned Husband and Wife the money to help them purchase the Bridle

residence, and that they verbally agreed to repay her from the proceeds from the sale of the Westboro

residence.

       A hearing was held to determine, among other things, the validity of Loya’s claim. Husband

testified that he and Wife borrowed money from his mother, Loya, in order to help purchase the

Bridle residence. The money came from some certificates of deposit and a checking account, all of

which were in both Loya’s and Husband’s names. Husband testified that he and Wife had an

understanding with Loya, prior to their use of Loya’s money, that they would pay her back with the

proceeds of their planned sale of the Westboro residence. Husband denied that Loya’s money was

a gift. Husband’s documents indicated that he and Wife received a little over $33,000 from Loya.

Husband also admitted that during this period Wife had inherited money from her family, some of

which was used to renovate the Westboro residence.

       Loya’s testimony was fairly consistent with Husband’s. She testified that all her savings had

been placed in a joint account with Husband, her only child, to ensure that Husband would get the

money in the event of her death. When Husband and Wife decided to acquire the Bridle residence,
Loya permitted them to use her funds in the purchase. Loya asserted that the money was a loan and

that she expected to be repaid, without interest, when Husband and Wife sold the Westboro

residence. She denied that it was a gift. Loya testified that the amount of the loan was $36,000, but

she had no documentation to that effect.

       In her testimony, Wife admitted that funds belonging to Loya had been used as a down

payment for the Bridle residence. Wife also admitted that she understood that the money was to be

repaid once they sold the Westboro residence. She testified that she did not think of the money as

a gift but instead understood that it was only a loan. Wife stated, however, that as time went on and

Husband continued to refuse to put the Westboro residence on the market, she began to think that

the money had not been a loan after all. Wife testified that she believed that the money received

from Loya was used for the down payment and the down payment had been $30,000.

       Wife also testified that, during this period, she inherited approximately $30,000 from her

family. She stated inter alia that she spent approximately $7,000 on items at the Westboro

residence, a small building and a pool, and that she spent approximately $15,000 of it in renovating

the Bridle residence.

       Two other witnesses testified at the hearing. Buford Cantrell, Husband’s uncle, testified that

Husband and Wife, in his presence, discussed the loan from Loya and the plans to repay her from

the proceeds of the sale of the Westboro residence. George Bartlett testified that more than once he

had heard Wife describe the money from Loya as a loan.

       Wife raises several issues on appeal. First, she asserts that Loya failed to carry her burden

of proof as to whether the money used by Husband and Wife was a loan and, if it was a loan, the

amount of the loan. Second, she claims that the division of the parties’ marital property was

inequitable, in that she was ordered to pay half the debt to Loya, that she was not given credit in the

division of property for the inheritance monies she spent on joint property, and that she was ordered

to sell the Westboro residence to pay the debt to Loya if the debt could not otherwise be paid. Third,

Wife complains that several issues in the case, such as spousal support, attorney’s fees and the

division of Husband’s pension benefits, never received a full and fair hearing. Finally, Wife seeks

attorney’s fees for this appeal.




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        Husband maintains that Wife admitted in her testimony that the money received from Loya

was a loan, intended to be repaid from the proceeds from the sale of the Westboro residence.

Husband also contends that the remaining issues between the parties were resolved by agreement,

and that Wife cannot appeal from a consent decree.

        The Statement of Evidence regarding the January 6, 1994 hearing, approved by the trial

court, describes the testimony and evidence concerning the monies from Loya, and states:

        This statement of the evidence is presented for the purposes of evidence presented
        on the issues raised in the Intervening Petition of Marie Loya; the remaining issues
        raised in the Complaint and Counter-Complaint for Divorce were resolved by the
        parties and were announced in open court.

On appeal, Wife disputes that the parties reached an agreement regarding such “remaining issues.”

        Our standard of review in this case is de novo on the record, with a presumption of the

correctness of the trial court’s findings of fact. The decision of the trial court will be affirmed unless

the evidence preponderates against its findings of fact or the trial court committed an error of law.

Tenn. R. App. P. 13(d). Further, a trial court has broad discretion in dividing a marital estate upon

a couple’s divorce. Kincaid v. Kincaid, 912 S.W.2d 140, 142 (Tenn. App. 1995). Its division of the

marital estate will be presumed correct unless the evidence preponderates otherwise. Batson v.

Batson, 769 S.W.2d 849, 859 (Tenn. App. 1988).

        Wife first asserts that Loya failed to carry her burden of proof that the money she let Husband

and Wife use in purchasing the Bridle residence was a loan rather than a gift. Loya and Husband

both testified that the money was a loan to be repaid upon the sale of the Westboro residence. Two

other witnesses testified that they had heard Wife speak of the money as a loan. Wife admitted that,

at the time of the loan, it was her understanding that the money was a loan, to be repaid upon the sale

of the Westboro residence, although she stated that this understanding later changed. Great weight

is accorded the trial court on issues involving the credibility of witnesses. Lindsey v. Lindsey, 930

S.W.2d 553, 556 (Tenn. App. 1996). There was ample evidence to support the trial court’s finding

that the money from Loya was a loan rather than a gift.

        Wife also asserts that Loya failed to present sufficient evidence on the amount of the loan.

Loya testified that she lent Husband and Wife $36,000, and Husband produced records purporting

to show that at least $33,000 of Loya’s funds had been used. Wife testified that Loya’s money had

been used as a down payment on the Bridle residence and that the down payment had been $30,000.



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Wife’s attorney noted that, at the time of the down payment, Husband had also cashed some CD’s

owned jointly with Wife, raising a question as to whether some of this money had been used for the

down payment. After reviewing the testimony and the evidence, however, the evidence does not

preponderate against the trial court’s conclusion that the loan was for at least $30,000. The trial

court’s decision regarding the amount of the loan is affirmed.

       Next, Wife argues that the division of the marital property was inequitable in that she was

ordered to pay half the debt to Loya, that she was not given credit in the division of property for the

inheritance monies she spent on joint property, and that she was ordered to sell the Westboro

residence to pay the debt to Loya if it could not otherwise be paid. Wife also contends that she was

denied the opportunity for a full hearing on several issues, including the division of Husband’s

pension benefits, spousal support and attorney’s fees.

       The Statement of Evidence on the January 6, 1994 hearing, approved by the trial court, states

clearly that evidence was presented on the issue regarding the money from Loya and that “the

remaining issues. . . were resolved by the parties and were announced in open court.” The record

indicates that, at the January 6, 1994 hearing, the court ruled on the Loya debt and the parties’

attorneys indicated agreement on the issues of child custody, child support, and the division of

personal property. At that point, the trial court declared Husband and Wife to be tenants in common

as to both pieces of real property. The trial court found that Wife had not produced sufficient

evidence that her separate inheritance money was spent on the jointly held real property to warrant

an adjustment in the property division, but gave Wife the opportunity to submit further evidence on

her inheritance claim. Wife’s attorney indicated she was not seeking spousal support so long as Wife

was permitted to remain in the Westboro residence, but the trial court required Husband to pay $100

per month in alimony for Wife’s insurance.

       Subsequently, Wife remarried and the trial court ordered Wife to repay the alimony that

Husband paid after her remarriage. The trial court also awarded Husband and Wife each the

residence in which they were living, and gave Husband a judgment against Wife for half the amount

by which the equity in the Westboro residence exceeded the equity in the Bridle residence.




                                                  4
         Subsequently, Wife retained new counsel and filed a motion to alter or amend the judgment,

arguing inter alia that Wife did not receive appropriate credit in the division of property for her

inheritance monies used on the jointly held real property, that Wife did not receive a portion of

Husband’s pension plan and was denied the opportunity to submit proof on that issue, and that the

parties owned cemetery lots that were never divided by the trial court. The trial court denied the

motion to alter or amend, except that it permitted Wife to submit any additional evidence on her

claim for credit on her inheritance monies. Wife later submitted documentation on the inheritance

monies, but the trial court found it insufficient to warrant altering its earlier judgment.

         From our review of the record, the evidence does not preponderate against the trial court’s

decision to allocate half of the Loya debt to Wife. The evidence indicated that the debt was incurred

for the parties’ mutual benefit and that both parties are capable of repayment. See Mondelli v.

Howard, 780 S.W.2d 769, 773 (Tenn. App. 1989). Consequently, the trial court is affirmed on this

issue.

         Moreover, the record supports the trial court’s determination that Wife did not produce

sufficient evidence on how her inheritance monies were spent to warrant giving her credit for such

monies in the division of the real property. The record does not reflect any other evidence indicating

that an equal division of the real property would be inequitable. Accordingly, the trial court’s

decision to divide the real property equally between Husband and Wife is affirmed.

         Although Wife argues that it was inequitable to award Loya a judgment against Wife for half

of the amount of the loan and to require the sale of the Westboro residence if the debt were not

otherwise paid, the record does not include sufficient evidence to conclude that the trial court’s

decision was in error. The trial court is affirmed on this issue.

         Wife contends that she was denied a full and fair hearing on the issues of spousal support,

attorney’s fees and the division of Husband’s pension benefits. However, Wife does not point to any

portion of the record in which she sought to submit evidence on these issues, prior to the motion to

alter or amend the judgment. A motion to alter or amend judgment cannot be used as a vehicle to

raise arguments which could have been raised prior to the issuance of judgment. See Concordia

College Corp. v. W.R. Grace & Co., 999 F.2d 326, 330 (8th Cir. 1993); cert. denied, 114 S. Ct. 926,

127, L.Ed. 2d 218 (1994). The decision of the trial court is affirmed on these issues as well.

         The decision of the trial court is affirmed. Costs are assessed against Appellant, for which


                                                  5
execution may issue if necessary.




                                    HOLLY KIRBY LILLARD, J.

CONCUR:


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



ALAN E. HIGHERS, J.




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