                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT KNOXVILLE
                                       July 2, 2003 Session

                        BETTY J. BRYANT v. ROY C. BRYANT

                    Appeal from the Chancery Court for Claiborne County
                              No. 13,268  John McAfee, Judge

                                  FILED SEPTEMBER 23, 2003

                                  No. E2002-02201-COA-R3-CV


In this divorce case, the trial court dissolved a marriage of over 36 years; divided the parties’ marital
property; and denied the request of Betty J. Bryant (“Wife”) for attorney’s fees. Wife appeals,
arguing that the division of marital property is not equitable. Her argument is predicated primarily
upon the assertion that her spouse, Roy C. Bryant (“Husband”), dissipated the marital assets as a
result of his gambling activities. In addition, Wife contends that the trial court erred in refusing to
award her attorney’s fees. We affirm.

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

CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which HERSCHEL P. FRANKS , J.,
joined. HOUSTON M. GODDARD , P.J., not participating.

Johnny V. Dunaway, LaFollette, Tennessee, for the appellant, Betty J. Bryant.

David H. Stanifer, Tazewell, Tennessee, for the appellee, Roy C. Bryant.


                                              OPINION

                                            I. Background

        Husband and Wife were married on December 25, 1965. There were no children born to
their union. Wife obtained her undergraduate degree shortly following the parties’ marriage. After
living and working in Michigan for four years, Husband and Wife returned to Tennessee, where
Husband completed his undergraduate education. Both parties went on to obtain Masters degrees,
and both have had extensive careers in education. Wife taught in the Kentucky school system until
she retired in 1998; Husband has been employed with the Claiborne County school system since
1973, first as a teacher and later as an administrator. At trial, Husband stated that he planned to
retire from his position as a school principal in June, 2003.

        Wife initially filed for divorce in 1980, after learning that Husband was having an affair. The
parties later reconciled. Twenty-one years later, Wife again filed for divorce, alleging, inter alia,
cruel and inhuman treatment, as well as adultery. Husband answered, denying Wife’s allegations.
He filed a counterclaim for divorce.

       A divorce hearing was held on August 26 and 27, 2002. At trial, Wife testified that Husband
gambled extensively. She claimed that Husband hosted weekly poker games at the parties’ home
for approximately ten years; that Husband regularly gambled on sporting events and utilized the
services of several bookmakers; and that he gambled while on several vacations. Wife argued that
Husband’s gambling habit resulted in the dissipation of thousands of dollars of the marital estate.

        Husband admitted that he had gambled throughout the marriage, but stated that he was
merely a recreational poker player. He claimed that, during the time the poker games were held in
the parties’ home, Wife never complained and that she provided food and drink for Husband and his
friends. Husband stated that he and Wife hosted numerous Super Bowl parties, at which Wife, along
with the other guests, placed bets on the score of the game. Husband also testified that, when the
parties took a vacation to Aruba, Wife played the slot machines and won money in doing so.

       At the conclusion of the trial, the court ruled from the bench, granting Wife a divorce on the
ground of adultery. The trial court divided the parties’ marital property as follows:




                                                 -2-
                                                                                             Awarded To
     Assets/Debts                                  Value                        Wife                   Husband
Marital Residence                                $213,000                     $213,000
Payment to Husband re:
  his interest in Marital Residence                                             <93,152>                    $ 93,152
1/4 Interest in Long Farm                          13,000                                                     13,000
1/6 Interest in Ramsey Farm                        18,800                                                     18,800
Wife’s Pension                                     70,000                         70,000
Husband’s Retirement                               47,000                                                      47,000
Household Furnishings                               7,000                          7,000
Other Household Furnishings1                        2,000                                                        2,000
1994 Jeep Automobile                                6,000                          6,000
1991 Chevrolet Automobile                           3,500                                                        3,500
Jewelry                                             3,250                          3,250
Certificates of Deposit                            15,000                         15,000
Checking Account                                    8,500                          8,500
Mutual Funds                                       11,000                         11,000
1/2 Interest in Two Boats                           1,100                                                      1,100
1/3 Interest in Cattle                              2,000                                                      2,000
Gun Collection                                     16,300                                                     16,300
Commercial Bank Debt                              <13,000>                                                   <13,000>
First Century Bank Debt                           < 3,000>                                                   < 3,000>
Farm Debt                                         < 4,000>                     _______                       < 4,000>

         Total                                   $417,450                     $240,598                      $176,852

         In making this 58%/42%2 split, the trial court made the following statements:

                   [Y]ou settle in on [Tenn. Code Ann. § 36-4-121(c)(5)], the
                   contribution of each party to acquiring the property, preserving the
                   property, the appreciation in the property – depreciation and
                   dissipation of marital property, and there’s a difference. . . .

                                                            ***

                   [W]e’ve got what I characterize as [Wife] – and I think, [Wife], you
                   would agree with this, that she sort of kept the house. I mean, she

         1
          These furnishings include a pool table, mounted deer heads and fish, a small bedroom suite, a 78 RPM record
collection, a grand father clock, clothing and tools.

         2
           In its opinion, the trial court stated that it was fashioning a “fifty-five/forty-five split;” however, this does not
take into account the debt assessed to Husband. Factoring in Husband’s $20,000 debt, the division of the estate is 58%
to Wife and 42% to Husband.

                                                              -3-
sort of cleaned it and she took care of it. She enjoyed it. I would
imagine that’s probably a great deal of pride for you, that home. . . .
So regardless if you were anticipating later to get a greater reward in
a divorce proceeding is why you contributed more, you contributed
more because you loved your husband, and you contributed more
because you had a lot of honor and pride in that home, and it is a very
beautiful home. And I know [Husband] would acknowledge that. I
think that he’s appreciated over the years being able to come home to
a clean home, to a nice home, to a loving wife, and that’s worth
something. . . .

It’s clear from the record that [Husband] has gambled. Now, I’m not
going to sit here and say that he’s got a problem or it’s recreational,
whatever it is, and he’s had some bad days and he’s had some good
days. I’m sure there’s days that he’s made some money, and I’m sure
there’s days he didn’t make any money. He’s testified that he’s had
to borrow money to pay people because he’s lost some bets, and
that’s just the way it is.

Would you have had greater assets if he had not gambled? Perhaps.
. . . And you look at the word dissipated and the terminology it’s used
in [Tenn. Code Ann. § 36-4-121-(5)], it’s where people waste the
estate. It’s where they just all of a sudden start giving money away
because they’re mad at the other spouse and they don’t want the other
spouse to have it, and I think that’s the general notion that the General
Assembly meant in reference to that. Now, if someone hauls off with
a fifty thousand dollar CD that you all have worked mutually together
to build up and he just goes and blows it in Las Vegas, clearly it’s
dissipating and that should be counted against him.

                                 ***

But I asked the question a moment ago and I asked you yesterday on
the witness stand about the relationship that you all had. I mean,
that’s just the way you all lived. Whether that’s right or wrong, you
were happy with that. There was a time that you finally got to the
point and said, “I’ve had enough of this, and I’m not taking this
anymore, and I’m going to file for a divorce.” The marriage was
probably over a long time ago. You just sort of stuck it out.

                                 ***




                                  -4-
                The Court finds that [the division of marital assets is] an equitable
                distribution based on the fact of dissipation of monies, and there are
                thousands of dollars here. And I think [Husband] has acknowledged
                that, . . . . But the Court believes that to be equitable taking into
                consideration her contributions toward this home and what she did
                after the acquiring of the mortgage and her upkeep of this property,
                that she should be – and that’s the reason why the Court has deviated
                somewhat from the norm, which is generally fifty/fifty.

The trial court then declined to award Wife her requested attorney’s fees. The court’s bench ruling
was incorporated by reference into the final order, entered September 12, 2002. From this order,
Wife appeals.

                                        II. Standard of Review

       Our review of this non-jury case is de novo upon the record developed 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. Property Division

       Wife first argues that the trial court erred in its division of the parties’ marital property.
Specifically, Wife contends that the trial court failed to appropriately adjust the parties’ interests in
the marital estate in view of Husband’s dissipation of that estate.

        Property must be equitably divided and distributed between the parties once the property is
properly classified as marital. See Tenn. Code Ann. § 36-4-121(a)(1) (Supp. 2002). “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). Such a division is to be achieved upon consideration of the
statutory factors found in Tenn. Code Ann. § 36-4-121(c) (Supp. 2002).

        “[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). 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.

        Tenn. Code Ann. § 36-4-121 provides, in pertinent part, as follows:

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


                                                  -5-
               (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;

               (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.

        In the instant case, the trial court awarded 58% of the marital estate to Wife and the
remainder to Husband. The evidence does not preponderate against this division. Our review of the
trial court’s remarks from the bench, as incorporated into its final judgment, clearly indicates that
the court considered Tenn. Code Ann. § 36-4-121(c)(5) to be “the most relevant factor” in dividing
the parties’ marital property. See Batson, 769 S.W.2d at 859. The trial court referred to Wife’s
contributions to the home and the parties’ property, as well as Husband’s dissipation of marital assets
through gambling, in reaching its conclusion that Wife was entitled to 58% of the marital estate.


                                                 -6-
        Wife argues strenuously that the 58% award is too low – inequitable – in light of Husband’s
“dissipation of the marital estate through gambling.” In support of her position, Wife cites us to
several cases in which a party’s gambling losses were taken into consideration by the court in
fashioning a division of marital property. See Deneau v. Deneau, No. M2000-00238-COA-R3-CV,
2001 WL 177063 (Tenn. Ct. App. M.S., filed February 23, 2001) (upholding trial court’s division
of marital property where proof of Wife’s gambling away thousands of dollars constituted dissipation
of marital property); Storey v. Storey, 835 S.W.2d 593 (Tenn. Ct. App. 1992) (upholding trial court’s
award of all remaining marital property to Wife, where evidence showed that Husband had dissipated
over $450,000 in assets from the time the divorce was filed until the time of trial); Ford v. Ford,
1989 WL 51510 (Tenn. Ct. App. W.S., filed May 18, 1989) (modifying the trial court’s award of
marital property to take into account evidence that Husband, after the parties separated, dissipated
$220,000 of marital assets, allegedly while gambling in Las Vegas).

        Wife’s reliance on these cases is misplaced. Both the Ford and Storey cases involve
substantial and clearly established dissipation of assets after the parties had separated or after divorce
proceedings had been initiated. As the trial court stated, these are examples of people “wast[ing] the
estate” and “giving money away because they’re mad at the other spouse and they don’t want the
other spouse to have it.” Further, in Ford, Storey, and Deneau, there is evidence of a fairly specific
amount of money lost through gambling; we have no such proof in the instant case. Here, the
plaintiff was unable to quantify in a meaningful way Husband’s net losses. Husband, on the other
hand, denied losing a substantial sum over the life of the marriage. Certainly, there is no proof that
Husband gambled away hundreds of thousands of dollars, as did the husbands in Ford and Storey.
Moreover, the proof at trial showed that Husband had gambled throughout the marriage; there is
absolutely no indication that Husband began gambling significantly more after the divorce
proceeding was initiated. As the trial court stated, “that’s just the way you all lived.” When the facts
of this case – including Husband’s gambling – are considered in light of Tenn. Code Ann. § 36-4-
121(c)(5), we do not find that the evidence preponderates against the trial court’s exercise of its
discretionary function in dividing the marital assets.

        Wife relies upon one case that, in our view, actually supports the division of marital property
by the trial court. In Terrell v. Terrell, No. 02A01-9610-CV-00254, 1997 WL 576536 (Tenn. Ct.
App. W.S., filed September 18, 1997), the wife testified at trial that her husband had gambled
significantly throughout the marriage. The trial court awarded approximately 58% of the marital
estate to the wife, finding that the husband had “‘dissipated and wasted thousands of dollars
gambling.’” Id., at *2 (quoting the trial court’s opinion). In upholding this disproportionate division
to the wife, we agreed with the trial court’s finding with respect to the husband’s gambling. Id., at
*5. Partially based on that evidence, this court “affirm[ed] the trial court’s decision to award the
[w]ife a greater share of the marital estate than the [h]usband.” Id.

        The facts in the instant case are quite similar to those in Terrell, and the percentage of marital
assets awarded to Wife in the instant case is basically identical to that awarded to the wife in Terrell.




                                                   -7-
        Based on all of the above, we find no error in the trial court’s decision to award Wife 58%
of the marital estate, and, consequently, we decline to disturb that award.

                                        IV. Attorney’s Fees

       Wife contends that the trial court erred in refusing to award her attorney’s fees. We disagree.

        The question of whether to award attorney’s fees is within the sound discretion of the trial
court, and an appellate court will not disturb a trial court’s award unless the evidence preponderates
against it. Barnhill v. Barnhill, 826 S.W.2d 443, 456 (Tenn. Ct. App. 1991). A trial court may
appropriately award attorney’s fees “when the spouse seeking them lacks sufficient funds to pay his
or her own legal expenses or would be required to deplete his or her resources in order to pay these
expenses.” Smith v. Smith, 984 S.W.2d 606, 610 (Tenn. Ct. App. 1997) (citing Brown v. Brown,
913 S.W.2d 163 (Tenn. Ct. App. 1994)).

        We find that the evidence does not preponderate against the trial court’s decision to refuse
Wife’s request for attorney’s fees. The trial court awarded Wife $34,500 in liquid assets.
Accordingly, we hold Wife has “sufficient funds” with which to pay her own attorney. This being
the case, we find no abuse of discretion in the trial court’s decision not to award Wife any attorney’s
fees.

                                           V. Conclusion

        The judgment of the trial court is affirmed. This case is remanded 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, Betty J. Bryant.




                                                       _______________________________
                                                       CHARLES D. SUSANO, JR., JUDGE




                                                 -8-
