                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                 OCTOBER 17, 2000 Session

                 BOBBY F. CONLEE v. JUANITA RICE CONLEE

                  Direct Appeal from the Chancery Court for Tipton County
                  No. 17, 032; The Honorable Martha Brasfield, Chancellor



                    No. W2000-00471-COA-R3-CV - Filed January 5, 2001


This appeal involves a divorce ending a fourteen year marriage. The trial court granted the husband
a divorce and divided the property. On appeal, the wife takes issue with the division of marital
property, and the failure of the trial court to award her alimony or attorney’s fees. For the following
reasons, we affirm the judgment of the trial court in all respects.

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

ALAN E. HIGHERS, J., delivered the opinion of the court, in which DAVID R. FARMER , J., and HOLLY
KIRBY LILLARD, J., joined.

J. Thomas Caldwell, for Appellant

T. D. Forrester, for Appellee

                                             OPINION

                                  Facts and Procedural History

       Bobby F. Conlee (“Husband”) and Juanita Rice Conlee (“Wife”) were married on June 26,
1986. Husband was fifty-six years old, and Wife was fifty-one. It was the Husband’s second
marriage and the Wife’s eighth marriage. Husband worked as a laboratory technician at Proctor and
Gamble for thirty-three years prior to the marriage, and he earned a yearly salary of approximately
$30,000.00. Husband was approximately four years from retirement at the time of the marriage.
Wife worked as an insurance agent, and her yearly earnings were between $25,000.00 and
$30.000.00.

        Husband entered into the marriage with a separate estate that included the following: (1) a
one-half interest in a home in Mississippi with an estimated value of $85,000.00 - $100,000.00 and
an existing debt of $34,096.56; (2) a tractor and various other farm equipment; (3) a pickup truck;
(4) a vested interest in a pension plan at Proctor and Gamble; and (5) a small amount of cash.
        Wife entered into the marriage with a separate estate that included the following: (1) a house
and lot in Memphis, Tennessee, which was being used as rental property, with a value of
approximately $45,000.00 and an existing debt of approximately $8,500.00; (2) a Ford Taurus with
a disputed amount of debt (Wife stated that the debt was approximately one-half of the value of the
car, but Husband stated that the debt equaled or exceeded the value of the car); (3) a vested interest
in a civil service retirement plan; and (4) a small amount of cash.

        After their marriage, the parties resided in the Husband’s home in Mississippi, and the Wife
continued to rent out her home in Memphis. The parties never lived in the Wife’s Memphis rental
home, and the house was never titled in their joint names. Furthermore, the Mississippi home was
never titled in the Wife’s name.

        In June of 1988, the parties, along with with Wife’s sister and brother-in-law, co-purchased
a chalet in Gatlinburg, Tennessee. The parties’ share of the purchase price was $7,000.00, which
they obtained by borrowing money, using the Mississippi house as collateral. In 1989, the chalet was
sold, and the parties’ share of the net sale proceeds was $9,000.00. The parties were separated at this
time, and the proceeds from the sale of the chalet were divided equally.

        By October of 1989, the parties had reconciled and purchased a home in Seymour,
Tennessee, for $78,265.70. The Wife applied her $4,500.00 share of the chalet sale proceeds on the
down payment, and Husband borrowed money on his Mississippi house for the remainder of the
down payment. Husband retired in early 1990, receiving pension plan funds totaling $315,359.48
and seventy-two shares of Proctor and Gamble stock. Husband placed the money into individual
retirement accounts (“IRA”). In March of 1990, Husband withdrew $17,000.00 from an IRA to pay
a note on the Seymour house which was due on April 1, 1990. The monthly mortgage payments on
the Seymour home were paid from the parties’ joint account.

        On April 20, 1992, the parties received a personal injury settlement of $31,152.00 for injuries
they received in an automobile accident that occurred on October 15, 1990. The trial court found
that the settlement proceeds were used for routine living expenses. Wife was involved in another
automobile accident for which she received another settlement of approximately $7,900.00. The
court below also found that this settlement was used by the parties for routine living expenses.

       In June of 1990, the Mississippi house was sold, and the mortgages on the Mississippi house
were paid. In September of 1994, the parties moved to Tipton County, Tennessee, and purchased
a home in Covington. The gross purchase price was $86,594.56. The purchase was funded with a
bank loan and with a cash payment of $24,050.40 taken from a $28,000.00 withdrawal from
Husband’s IRA. In November of 1994, the house in Seymour, Tennessee was sold. The cash
proceeds of $24,050.40 from the sale of the Seymour home were used to replace Husband’s
$28,000.00 IRA withdrawal. The estimated value of the Covington house at the time of trial was
$95,000.00, with an outstanding debt of approximately $48,000.00.



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       In November of 1994, Wife received a lump-sum distribution of approximately $10,000.00
from Capital Holding Corporation Thrift Savings Plan. These funds were retirement benefits that
Wife earned beginning in 1987 while working for the insurance company. These proceeds were
placed in Wife’s separate account and were not commingled with the parties’ joint funds.

        Since the parties separation in 1998, Wife has remained in the Covington home. Before their
separation, the parties paid the mortgage from their joint account. Since their separation, however,
Husband paid the mortgage payments and utility bills pursuant to court order.

        The trial court awarded the divorce to the husband, finding him to be the more credible
witness. The trial court awarded the following property to the Wife: 1) the house in Memphis,
Tennessee; 2) her monthly retirement benefits from Commonwealth Insurance ($414.00 per month);
3) her social security benefits of approximately $535.00 per month; 4) her certificates of deposit
valued at approximately $3,000.00; 5) her lump-sum retirement of approximately $10,000.00; 6) 125
shares of Proctor and Gamble stock and $12,196.86 in cash (one-half of the amount of Husband’s
retirement funds that accumulated during the marriage); 7) various items of furniture and appliances;
8) the car she is presently driving; and 9) one-half of the net proceeds from the sale of the Covington
house.

        The court awarded Husband the following property: 1) the house in Mississippi; 2) the
remainder of the Proctor and Gamble stock after Wife receives her 125 shares; 3) the remainder of
all cash, retirement accounts, bank accounts, etc., less the $12,196.86 to the Wife; 4) his Social
Security ($900.00 per month); 5) various items of furniture; 6) the van he currently drives and a
pickup truck; and 7) one-half of the net proceeds from the sale of the Covington house.

         Wife appeals the decision of the trial court, raising the following issues, as we perceive them,
for this court’s review:

        1.      Whether the court erred in making a property division.
        2.      Whether the court erred in failing to award Wife alimony in futuro.
        3.      Whether the court erred in failing to award Wife her reasonable attorney fees.


                                          Law and Analysis

        First, Wife argues that the court erred in making a property division. Dividing a marital
estate begins with the classification of the property as either separate or marital property. See
McClellan v. McClellan, 873 S.W.2d 350, 351 (Tenn. Ct. App. 1993). “Marital property” is defined
as follows:

                [A]ll real and personal property, both tangible and intangible,
                acquired by either or both spouses during the course of the marriage
                up to the date of the final divorce hearing or up to the date of the legal


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                   separation hearing unless equity would require another valuation date
                   and owned by either or both spouses as of the date of filing of a
                   complaint for divorce or complaint for legal separation . . . and valued
                   as of a date as near as reasonably possible to the final divorce hearing
                   date or the date of the legal separation hearing.

TENN. CODE ANN . § 36-4-121(b)(1)(a)(Supp. 2000).

After characterizing the parties’ assets as either marital or separate property, the trial court will make
an equitable division of marital assets. An equitable division of property does not necessarily mean
an equal division. See Bookout v. Bookout, 954 S.W.2d 730, 732 (Tenn. Ct. App. 1997); Batson
v. Batson, 769 S.W.2d 849, 859 (Tenn. Ct. App. 1988). This court has stated that “the division of
the estate is not rendered inequitable simply because it is not mathematically equal, or because each
party did not receive a share of every item of marital property.” King v. King, 986 S.W.2d 216, 219
(Tenn. Ct. App. 1998) (citing Cohen v. Cohen, 937 S.W.2d 823, 832 (Tenn. 1996); Ellis v. Ellis, 748
S.W.2d 424, 427 (Tenn. 1988); Brown v. Brown, 913 S.W.2d 163 (Tenn. Ct. App. 1994)). In
determining what constitutes an equitable division of marital assets, the court will consider the
factors listed in section 36-4-121(c)1 of the Tennessee Code. The trial court’s classification and
division of marital property enjoys a presumption of correctness and will be reversed or modified
only if the evidence preponderates against the court’s decision. See Lancaster v. Lancaster, 671
S.W.2d 501, 502 (Tenn. Ct. App. 1984); Hardin v. Hardin, 689 S.W.2d 152, 154 (Tenn. Ct. App.
1983). The appellate courts of this state are not inclined to disturb a trial court’s division of marital
property unless they find that the distribution lacked proper evidentiary support or results from either


         1
             Section 36-4-1 21(c) of the Te nnessee Cod e provides:
In making equitable division of marital property, the court shall consider all relevant factors including:
           (1) The duration of the marriage;
           (2) The ag e, physica l and m ental health , vocational skills, employability, earning capacity, estate, financial
liabilities and financial needs of ea ch 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 associa ted with th e reasona bly forese eable sale o f the asset, and
other reas onably foreseeab le expen ses associate d with the asset;
           (10) The amount of social security benefits available to each spouse; and
           (11) Such o ther factors as are necessary to consider the equ ities between the parties.
Tenn. Code Ann. § 36-4-121(c) (Supp. 2000)




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an error of law or a misapplication of the statutory requirements. See Thompson v. Thompson, 797
S.W.2d 599, 604 (Tenn. Ct. App. 1990).

        The Wife’s main assignment of error regarding the division of marital property deals with
the Husband’s Morgan Keegan funds. Upon his retirement from Proctor and Gamble, Husband
received approximately $315,000.00 in cash and 72 shares of Proctor and Gamble stock. Husband
placed this money with several financial institutions to take advantage of F.D.I.C. insurance.
Husband also invested approximately $44,000.00 with Morgan Keegan. From an initial investment
of $44,000.00, Husband’s Morgan Keegan account had grown to approximately $220,000.00 at one
time, and the balance was approximately $166,000.00 at the time of trial.2 The trial court determined
that $24,393.72 of the Proctor and Gamble retirement money and 24.869 shares of stock were
accumulated during the parties’ marriage. The Proctor and Gamble stock split during the marriage
and had increased to 427 shares of stock. As a result, the trial court awarded Wife one-half of the
$24,393.72, or $12,196.86, in cash, and additional shares of stock for a total of 125 shares pursuant
to section 36-4-121(b)(1)(B)3 of the Tennessee Code.

         On appeal, Wife argues that she is also entitled to a share in the appreciation of Husband’s
Morgan Keegan investment account. In its final decree of divorce, the court below stated that
“during the marriage, the parties used the interest from the cash and part of the corpus for living
expenses. This money [retirement funds] has now depleted to approximately $247,000.00 [from the
original $315,000.00]. There is no accumulation or increase of cash to be divided between the
parties.” We agree. While the individual Morgan Keegan account increased in value, the sum of
the retirement funds had been depleted. The parties lived off of interest and withdrawals from the
corpus of the Husband’s retirement funds. The total of Husband’s retirement funds had been
depleted from the original $315,000.00 to approximately $247,000.00. As a result, there was no
increase or appreciation from Husband’s retirement funds to divide.

        Generally, the fairness of the property division is judged upon its final results. See Wade v.
Wade, 897 S.W.2d 702, 717 (Tenn. Ct. App. 1994). Considering all relevant factors including those
enumerated in section 36-4-121(c) of the Tennessee Code, we do not find the final results of the trial
court’s distribution to be inequitable.

       Next, Wife claimed that her home had been robbed in November 1999. The chancellor
below held a hearing regarding the alleged theft and determined that Wife could not prove by a
preponderance of the evidence that Husband was the one who had taken the items. In the decree of
divorce, the chancellor ruled that Husband will not be required to transfer the Proctor and Gamble

        2
         The reason for the depletion of funds in the account is that the trial judge authorized Mr. Conlee to remove
approximately $60,000.00 from the account in order for him to purchase a home.

        3
            Section 36-4-1 21(b)(1)(B) o f the Tennessee Code prov ides:
“Marital property” includes income from, and any increase in value during the marriage of, property determined to be
separate p roperty . . . if ea ch party s ubstantially contribu ted to its prese rvation an d appre ciation. . . .
Tenn. Code An n. §36-4-121(b)(1)(B) (Supp . 2000).

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stock that was awarded to Wife until such time as the Wife allows the Husband to obtain either
possession of the items awarded to him, or until such time as Wife files a proper claim with her
insurance company for theft of the items taken and gives forty percent of such insurance proceeds
to Husband. In her brief, Wife argues that she cannot be held responsible to deliver property to
Husband that she does not have, and she asks this court to modify the court’s decree in that respect.
We find that Wife is not being asked to deliver non-existent property. In contrast, Wife is simply
being asked to file a proper insurance claim regarding the stolen items and remit forty percent of the
proceeds to Husband. We find no error with the trial court’s ruling on this issue.

        Next, Wife asserts that the trial court erred in failing to award her alimony in futuro. There
are no hard and fast rules for spousal support decisions. See Crain v. Crain, 925 S.W.2d 232, 233
(Tenn. Ct. App. 1996); Stone v. Stone, 409 S.W.2d 388, 392-93 (1966). Trial judges have broad
discretion to determine whether spousal support is needed and if so, its nature, amount, and duration.
See Garfinkel v. Garfinkel, 945 S.W.2d 744, 748 (Tenn. Ct. App. 1996); Jones v. Jones, 784 S.W.2d
349, 352 (Tenn. Ct. App. 1989). Appellate courts are generally disinclined to second-guess a trial
judge’s spousal support decision unless it is not supported by the evidence or is contrary to the public
policies reflected in the applicable statutes. See Brown v. Brown, 913 S.W.2d 163, 169 (Tenn. Ct.
App. 1994); Ingram v. Ingram, 721 S.W.2d 262, 264 (Tenn. Ct. App. 1986).

        Alimony decisions hinge on the unique facts of the case and require a careful balancing of
the factors in section 36-5-101(d)(1)4 of the Tennessee Code. See Hawkins v. Hawkins, 883 S.W.2d

         4
            Section 36-5-1 01(d)(1) of the Tennessee C ode provid es:
          It 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. Where there is such relative economic disadvantage and rehabilitation is not feasible in consideration
of all relevant factors, including those set out in this subsection, then the court may grant an order for payment of
support a n d m aintenance on a long-term b asis or until the death or rem arriage of the recipien t except as otherw ise
provided in subdiv ision (a)(3) . Rehabilitative support and maintenance is a separate class of spousal support as
distinguished from alimony in solido and periodic alimony. In determining whether the granting of an order for
payment of supp ort and m aintenan ce to a party is appropriate, and in determining the nature, amount, length of term,
and manner of payment, the court shall consider all relevant factors, including:
          (A) The relative earning capacity, obligations, needs, and financial resources of each party, including income
from pen sion, profit sharing or retirem ent plans and all othe r sources;
          (B) The relative education and training of each par ty, the ability a nd opp ortunity of each party to secure such
education and training, and the necessity of a party to secure further education and training to improve such par ty’s
earning capacity to a reasona ble level;
          (C) The duration of the marriage;
          (D) The age and mental condition of each party;
          (E) The physical condition of each party, including, but not limited to, physica l disability or in capacity d ue to
a chronic debilitating disease;
          (F) The ex tent to wh ich it wou ld be un desirable fo r a party to seek employment outside the home because such
party will be custodian of a minor child of the marriage;
          (G) The separate assets of each party, both real and personal, tangible and intangible;
          (H) The provisions made with regard to the marital property as defined in § 36-4-121;
          (I) The standard of living of the parties established during the marriage;
                                                                                                               (continu ed...)

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622, 625 (Tenn. Ct. App. 1994); Loyd v. Loyd, 860 S.W.2d 409, 412 (Tenn. Ct. App. 1993). In
virtually every case, the two most important factors are the demonstrated need of the disadvantaged
spouse and the obligor spouse’s ability to pay. See Varley v. Varley, 934 S.W.2d 659, 668 (Tenn.
Ct. App. 1996); Crain v. Crain, 925 S.W.2d 232, 234 (Tenn. Ct. App. 1996).

        We have weighed the evidence in light of the factors in section 36-5-101(d)(1) of the
Tennessee Code. We note that both parties are in poor health and are unable to maintain gainful
employment. Additionally, Husband receives approximately $900.00 per month in Social Security,
and Wife will receive her retirement and Social Security benefits, which will also total
approximately $900.00 per month. Finally, we note that Wife received an equitable share of the
marital assets. While neither party has the funds to live separately in the manner they lived prior to
the divorce, Wife has a house in which to live and sufficient income to meet her expenses. Based
on these considerations, we find no error in the trial court’s denial of spousal support to Wife. As
a result, this issue is without merit.

        Finally, Wife asserts that the trial court erred in failing to award her attorney’s fees. In a
divorce action, an award of attorney’s fees is treated as alimony. See Smith v. Smith, 912 S.W.2d
155, 161 (Tenn. Ct. App. 1995); Gilliam v. Gilliam, 776 S.W.2d 81, 86 (Tenn. Ct. App. 1988). The
decision to award attorney’s fees lies within the sound discretion of the trial judge, see Aaron v.
Aaron, 909 S.W.2d 408, 411 (Tenn. 1995); Brown v. Brown, 913 S.W.2d 163, 170 (Tenn. Ct. App.
1994), and we will not interfere with the trial judge’s decision unless the evidence preponderates
against it. See Batson v. Batson, 769 S.W.2d 849, 862 (Tenn. Ct. App. 1988). A party is entitled
to attorney’s fees when he or she lacks sufficient funds to pay his or her legal expenses or would be
required to deplete other assets to do so. See Brown v. Brown, 913 S.W.2d 163, 170 (Tenn. Ct. App.
1994).

       Under the facts of this case, we conclude that Wife should be responsible for her own legal
expenses. She has received sufficient funds from the division of the marital estate to enable her to
pay her attorney.




         4
          (...continued)
         (J) The extent to w hich each party has made su ch tangible and intangible contribu tions to the marriage as
monetary and ho mem aker con tributions, an d tangible and intan gible contributions by a party to the education, training,
or increased earning power of the other party;
         (K) The relativ e fault of the parties in case s where the court, in its discretion, deems it appropriate to do so;
and
         (L) Such other factors, including the tax consequences to each party, as are necessary to consider the equities
betwee n the partie s. . . .
Tenn. Code An n. § 36-5-101(d)(1) (Supp . 2000).

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                                            Conclusion

        Accordingly, for the aforementioned reasons, we affirm the judgment of the trial court. Costs
are taxed to the Appellant, Juanita Rice Conlee, for which execution may issue if necessary.




                                                      ___________________________________
                                                      ALAN E. HIGHERS, JUDGE




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