                     IN THE COURT OF APPEALS OF TENNESSEE
                                 AT NASHVILLE
                                           March 5, 2001 Session

                  GERALD W. HOPPER v. PATRICIA ANN HOPPER

                   A Direct Appeal from the Circuit Court for Davidson County
                   No. 98D-2599     The Honorable Marietta M. Shipley, Judge



                         No. M2000-01444-COA-R3-CV - Filed May 24, 2001


        Wife appeals final decree of divorce as it pertains to a division of marital property and
alimony in futuro award. The trial court charged Wife with entire amount of advance from house-
sale proceeds and failed to award Wife one-half of Husband’s retirement. Wife appeals. We modify
the division of marital property and affirm as modified.

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

W. FRANK CRAWFORD , P.J., W.S., delivered the opinion of the court, in which ALAN E. HIGHERS,J.
and DAVID R. FARMER , J., joined.

Joanie L. Abernathy, Franklin, For Appellant, Patricia Ann Hopper

Michael S. Bligh, Nashville, For Appellee, Gerald W. Hopper


                          MEMORANDUM OPINION1
___________________________________________________________________________

CRAWFORD, J.




         1
           Rule 10 (Co urt of Ap peals). Memorandum Opinion. -- (b) The Co urt, with the concurrence of all judges
participating in the case, may affirm, reverse or modify the actions of the trial court by memorandum opinion when a
formal opinion would have no precedential value. When a case is decided by memorandum opinion it shall be
designated "MEM ORA NDU M OP INION ," shall not be pu blished, an d shall not b e cited or re lied on fo r any reas on in
a subseq uent un related case .
        Plaintiff/Appellee, Gerald Wayne Hopper (Husband), and Defendant/Appellant, Patricia Ann
Hopper (Wife) divorced after a 37-year marriage. The parties had no minor children at the time of
the divorce. Husband and Wife are in their late fifties, and both complain of health problems. Wife
suffers from high blood pressure, high cholesterol and heart problems. Husband has Meniere’s
Disease, which can apparently cause hearing loss or deafness.

       On May 15, 2000, the trial court entered a final decree that granted Husband a divorce
pursuant to T.C.A. § 36-4-101(12) and set out a division of marital assets. That division is as
follows:
                Asset                         Value              Husband               Wife
 1993 Ford Thunderbird                          $6,500.00           $6,500.00
 1991 Buick Park Avenue                         $6,500.00                             $6,500.00
 Husband’s cash                                 $9,700.00           $9,700.00
 Husband’s checking account                     $4,600.00           $4,600.00
 Wife’s checking account                        $1,600.00                             $1,600.00
 Sunpoint securities                              $400.00             $400.00
 BellSouth stock                                $1,400.00           $1,400.00
 BellSouth 401k                                $49,285.24          $49,285.24
 First Union IRA                                $8,573.97           $8,573.97
 Ascend account                                $13,500.69                            $13,500.69
 Ascend account IRA                            $12,721.37                            $12,721.37
 J.C. Bradford account                          $7,905.82                             $7,905.82
 U.S. Savings bonds                             $1,975.00           $1,975.00
 Cash value life insurance                      $5,000.00           $5,000.00
 Silk Plants Plus                              $35,000.00                            $35,000.00
 Cash proceeds from house                      $94,095.58          $47,047.79        $47,047.90




                                               -2-
 Cash Advance on sale of marital                       $32,000.00                                   $32,000.00
 home2
 MFS-IRA account                                       $93,994.33              $57,894.00           $36,100.33
 TOTALS:                                              $384,752.00            $192,376.00           $192,376.11

        Wife appeals and presents three issues for review: (1) Whether the trial court failed to make
an equitable division of marital property pursuant to T.C.A. § 36-4-121; (2) Whether the trial court
erred in the amount of alimony in futuro awarded to Wife; and (3) Whether the trial court erred in
failing to award Wife attorney’s fees.

        Since this case was tried by the court sitting without a jury, we review the case de novo upon
the record with a presumption of correctness of the findings of fact by the trial court. Unless the
evidence preponderates against the findings, we must affirm, absent error of law. See Tenn. R. App.
P. 13(d).

        Although there is a presumption that marital property is owned equally, there is no
presumption that marital property should be divided equally. See Bookout v. Bookout, 954 S.W.2d
730, 731 (Tenn. App. 1997). Thus, an equitable division of the marital property need not be an equal
division of the property. See id. A trial court is afforded wide discretion when dividing the marital
property, and its distribution will be given “great weight” on appeal. See Ford v. Ford, 952 S.W.2d
824, 825 (Tenn. App. 1997). Guidelines for the equitable division of marital property are set forth
in T.C.A. § 36-4-121, which provides, in relevant part:

                          (c) In making equitable division of marital property, the court
                  shall consider all relevant factors including:

                          (1) The duration of the marriage;

                        (2) The age, physical and mental health, vocational skills,
                 employability, earning capacity, estate, financial liabilities and
                 financial needs of each of the parties;

                        (3) The tangible or intangible contribution by one (1) party to
                 the education, training or increased earning power of the other party;



        2
          This amount represents the advances Wife took on proceeds from the sale of the parties’ marital home. When
added to the item labeled “Cash Proceeds from House”, the items equal the $126,095.58 gross proceeds from the sale
of the parties’ marital residence.

                                                        -3-
                       (4) The relative ability of each party for future acquisitions of
               capital assets and income;

                       (5) The contribution of each party to the acquisition,
               preservation, appreciation, depreciation or dissipation of the marital
               or separate property, including the contribution of a party to the
               marriage as homemaker, wage earner or parent, with the contribution
               of a party as homemaker or wage earner to be given the same weight
               if each party has fulfilled its role;

                       (6) The value of the separate property of each party;

                       (7) The estate of each party at the time of the marriage;

                       (8) The economic circumstances of each party at the time the
               division of property is to become effective;

                      (9) The tax consequences to each party, costs associated with
               the reasonably foreseeable sale of the asset, and other reasonably
               foreseeable expenses associated with the asset;

                      (10) The amount of social security benefits available to each
               spouse; and

                       (11) Such other factors as are necessary to consider the
               equities between the parties.

T.C.A. § 36-4-121(c) (2000 Supp.). It is with these considerations in mind that we review the trial
court’s actions in dividing marital assets and debt in this case.

        Wife first asserts that the trial court erred in deducting the $32,000.00 advance Wife took
against the proceeds from the parties’ home from her award of marital property. Wife argues that
$27,000.00 of the advance was used to pay business debt and expenses, and that both parties should,
therefore, be charged with half of that portion of the advance. We believe the evidence does not
preponderate against the trial court’s implicit finding that the $32,000.00 advance was not chargeable
as a marital expense.

        At the conclusion of proof in this case, the court orally set out a division of property. After
discussing the property awarded to Mr. Hopper, the court addressed Ms. Hopper’s property award
as follows:



                                                 -4-
                       Okay. Now, Mrs. Hopper gets the Buick. I value the business
               at 35,000. That is 48 plus the 3 in the checking account, minus the 16
               for accounts payable, business at 35, her personal checking account
               at 1600, that’s 2500 minus her house payment. Her Ascend account
               of 13,500.69, the Ascend IRA of 12,721.37, and the J.C. Bradford at
               7905.82. Now, that totals, let’s see, 77,277.88. Now, that’s the basic.
               So, that means [Mr. Hopper] owes her 5,103.16, okay, when you just
               take those two figures, she owes 16,000, half of the 32 that she got
               as a credit. Okay? So, that means, whatever figure we come up with,
               she owes him 10,896.84.

(emphasis added). The court apparently determined that Ms. Hopper had not provided sufficient
proof that $27,000.00 of the $32,000.00 advance was used to pay business debt and expenses and
considered the entire amount to be for Wife’s personal expenses.

         In a case where the resolution of the issues depends upon the truthfulness of witnesses, the
trial judge who has the opportunity to observe the witnesses in their manner and demeanor while
testifying is in a far better position than this Court to decide those issues. See McCaleb v. Saturn
Corp., 910 S.W.2d 412, 415 (Tenn. 1995); Whitaker v. Whitaker, 957 S.W.2d 834, 837 (Tenn. App.
1997). The weight, faith, and credit to be given to any witness’s testimony lies in the first instance
with the trier of fact, and the credibility accorded must be given great weight by the appellate court.
See id.; In re Estate of Walton v. Young, 950 S.W.2d 956, 959 (Tenn. 1997). Given the fact that,
other than Ms. Hopper’s testimony at trial, there is no evidence that Ms. Hopper used the advance
to pay business expenses and debt, we must accede to the trial court’s assessment that the advance
was not used to pay marital debt.

        Ms. Hopper also asserts that the trial court erred when it failed to award her a portion of her
husband’s monthly pension from BellSouth. The record reflects that the parties stipulated to an
equal division of the pension. Except for the award of the pension death benefit to Wife, the trial
court did not include the pension value in the asset allocation. Since it appears that the trial court
attempted to make an equal division of the marital property, the pension should have been so
divided.

       Wife next asks us to hold that the trial court erred in the amount of alimony in futuro awarded
to Wife. Guidelines for the determination of alimony are set forth in T.C.A. § 36-5-101(d) (2000
Supp.). The trial court is afforded wide discretion concerning the award of alimony, and an appellate
court should reverse the trial court’s findings only in instances in which this discretion “has
manifestly been abused.” Hanover v. Hanover, 775 S.W.2d 612, 617 (Tenn. App. 1989); Ford v.
Ford, 952 S.W.2d 824, 827 (Tenn. App. 1997). We find no such abuse of discretion in this case.




                                                 -5-
        Wife argues that the alimony award is insufficient to cover her expenses, specifically, her
health insurance coverage. However, wife testified that her health insurance coverage would run
between $195 and $268 per month. Since the record indicates that the parties’ annual incomes are
largely the same, the trial court could have intended the $250.00 award to cover Wife’s health
insurance payments. Although the trial court did not award Wife funds to pay for her own life
insurance coverage, the court did order Husband to maintain Wife as the beneficiary of his life
insurance policy. If Wife’s circumstances change significantly, leaving her unable to afford to pay
her monthly expenses, she may always petition the court to modify the alimony award. See Brewer
v. Brewer, 869 S.W.2d 928, 935 (Tenn. Ct. App. 1993).

         Finally, Wife argues that the trial court erred in not awarding her attorney’s fees. The trial
court is afforded discretion concerning whether to award attorney’s fees in a divorce case. See Long
v. Long, 957 S.W.2d 825, 828 (Tenn. App. 1997). An appellate court will not interfere with the trial
court’s decision to award attorney’s fees unless it is shown that “manifest injustice would be done
if the award is allowed to stand.” Id. We find no abuse of discretion in the court’s ruling as to
attorney’s fees.

       Accordingly, the division of marital property is modified by awarding Wife one-half of
Husband’s pension. The case is remanded for modification of the division of marital property
consistent with this Opinion. As modified, the decree is affirmed. Costs of appeal are assessed
equally to the parties, Gerald Wayne Hopper and Patricia Ann Hopper.

                                               __________________________________________
                                               W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.




                                                 -6-
