           IN THE COURT OF APPEALS OF TENNESSEE
                      AT NASHVILLE
                                                 FILED
HENRY LEE HULSHOF,          )                    September 29, 1999
                            )                    Cecil Crowson, Jr.
     Plaintiff/Appellee     )       Appeal No. Appellate Court Clerk
                            )       01A01-9806-CH-00339
v.                          )
                            )       Marshall County Chancery
DOROTHY ANN HULSHOF,        )       No. 10075
                            )
     Defendant/Appellant.   )
                            )


                COURT OF APPEALS OF TENNESSEE


               APPEAL FROM THE CHANCERY COURT
                    FOR MARSHALL COUNTY
                   AT LEWISBURG, TENNESSEE


           THE HONORABLE TYRUS H. COBB PRESIDING



RONDAL T. WILSON
200 E. DEPOT ST.
P.O. BOX 336
SHELBYVILLE, TN 37160

     ATTORNEY FOR PLAINTIFF/APPELLEE


LAWRENCE D. SANDS
P.O. BOX 1660
102 WEST 7TH STREET
COLUMBIA, TN 38402-1660

     ATTORNEY FOR DEFENDANT/APPELLANT


           AFFIRMED AS MODIFIED IN PART, VACATED
                  IN PART, AND REMANDED


                                PATRICIA J. COTTRELL, JUDGE
CONCUR:
KOCH, J.
CAIN, J.
                                  OPINION

           Henry Lee Hulshof ("the husband") commenced this divorce action,

alleging inappropriate marital conduct or, alternatively, irreconcilable

differences. Two weeks later, his wife of twenty-seven years, Dorothy Ann

Hulshof ("the wife") responded by filing an answer and counter-petition alleging

inappropriate marital conduct, irreconcilable differences, and adultery. After a

bench trial, the court below awarded the wife a divorce on the ground that the

husband had committed inappropriate marital conduct. The court divided the

parties' personal property between them and awarded the wife rehabilitative

alimony in the amount of $300 per month for two years and one half the value

of the husband's retirement benefits calculated as of March 2, 1998. The court

also equally divided the funds in the couple's various accounts and ordered their

real property sold and the proceeds divided equally. The wife appealed,

challenging the property distribution, the amount of alimony awarded, and the

court's failure to award her sufficient attorney fees. We affirm in part as

modified, vacate in part, and remand for proceedings consistent with this

opinion.

           The parties married in 1970, when the wife was seventeen years old and

just days after she graduated from high school. The wife did not continue her

education. The couple had two children, both of whom were adults when the

parties separated. At the time of trial, the wife was forty-six (46) years old. The

couple had been married for twenty-seven (27) years when the divorce complaint

was filed.

           Throughout the marriage, the husband worked at Inner City Products.

His approximate yearly income was between $31,500 and $35,500, depending


                                       -2-
on the amount of overtime he worked. The job provided retirement benefits, but

at trial the husband was unsure of their value.

         The wife worked at numerous jobs during the marriage. However, in

1985, she injured her back at work and underwent surgery. After that injury, she

received a $7,000 lump sum worker's compensation award. In 1994, she had

surgery to treat carpal tunnel syndrome. Apparently, the wife ceased working

outside the home after this surgery. She subsequently received a $19,000

workers compensation settlement. In May of 1997, she was determined to be

disabled and entitled to disability payments by the Social Security

Administration. She received a $6,000 disability payment covering back pay at

that time and began drawing $472 in monthly social security disability benefits

which is her sole income. The wife testified she also underwent a second carpal

tunnel surgery, a second lower back surgery, and suffered from degenerative

arthritis in her ankles, a degenerative muscle disorder, and a degenerative nerve

disorder. The wife admitted that notwithstanding her disability, she was able to

clean the house, babysit, drive her car, crochet, and do some yard work.

         At the time of trial, the parties jointly owned their residence, which the

parties valued at $50,000 to $60,000. The outstanding balance on the mortgage

was approximately $5,100, and the monthly mortgage payments were $98. The

parties also owned a nearby lot, valued at approximately $5,000. The parties had

no joint accounts at the time of trial. The husband testified that his checking

account had a $535.58 balance, the assets in his savings totaled $102.00, and his

credit union accounts held approximately $3,018. In the approximately six

months before the husband filed his petition for divorce, the balances in his

credit union accounts plummeted from over $23,000 to just over $3,000. The

husband’s explanation for the dissipation of the account was that he made some


                                       -3-
improvements around the house, and may have gambled some of the money

away.

          During the course of these proceedings, the parties requested an Order

of Reconciliation, and attempted to put aside their differences. Those efforts

failed. At the close of the evidence, the trial court granted the wife a divorce

based upon the husband's inappropriate marital conduct. Although the trial court

awarded the wife the above-mentioned rehabilitative alimony, it denied her

request for in futuro or in solido alimony. Attorney’s fees were awarded to the

wife in the amount of $1,200. The trial court subsequently entered an order

staying all proceedings, except the alimony obligation, in connection with the

enforcement of the judgment, pending final determination on appeal.

                                        I.

          The wife raises four issues, all of which are related to the financial

impact of the court’s decision. Essentially, she asserts that the distribution of

assets and the limited award of alimony will preclude her from meeting her

minimal living expenses. She further asserts that the economic disparity between

the parties, the length of the marriage, and her disability justify an award to her

of a greater share of the marital property and/or alimony in futuro or alimony in

solido. She also asserts that the money dissipated by the husband from his credit

union accounts should be taken into consideration in dividing the marital assets

and that she should have been awarded all her attorney’s fees. Although the

issues are separately raised, the effect of the trial court’s ruling must first be

examined in totality.

          The wife’s sole income is her disability payment of $472 per month.

For two years, the income will be supplemented by the rehabilitative alimony of

$300 per month. The wife’s monthly expenses total $616.33. This figure


                                       -4-
includes the $98 house payment, and the record indicates the least expensive

alternative rental property would cost $300 per month. Thus, either the cessation

of the rehabilitative alimony or the requirement that the wife move out of the

marital residence, both of which are contemplated by the order, would reduce the

wife’s income below her expenses. Her attorney’s fees, before the appeal,

exceeded the amount awarded by the court by $2,145.

         Her share of the distribution of the major marital assets includes half

the proceeds of the sale of the house and the lot (approximately $27,500), half

the accounts (approximately $1,659.15), half of the proceeds of the sale of a

trailer ($1,000) and half of the husband’s retirement as of March 2, 1997 (the

value of the retirement asset, the monthly amount she would receive, and the date

of eligibility are unknown).

         In addition, the wife’s health problems, especially as they affect her

ability to work, are relevant to both the distribution of marital property and the

award of alimony. She is totally disabled and, according to her testimony, cannot

perform repetitive functions, cannot sit for long periods of time, and cannot

bend, stoop, or lift. Although she does her own housework and some yard work

(using a riding mower), she must stop frequently and can only do a little work

at a time. It is undisputed that she has had two back surgeries and two operations

for carpal tunnel syndrome.

                                        II.

         In her first issue, the wife maintains that the trial court erred in limiting

the award to the assets the parties possessed at the time of separation.         She

argues that she was entitled to a portion of the recently dissipated funds

($20,000) from the husband's accounts at one credit union.

          The division of the marital estate necessarily commences with the


                                        -5-
classification of the parties' property. See Brown v. Brown, 913 S.W.2d 163, 166

(Tenn. App. 1994). The now-familiar statutory definitions of marital property

and separate property provide the ground rules for this task. Tenn. Code Ann.

§§ 36-4-121(b)(1) and (2)(1996). Implicit in this statutory scheme is the

concept that the property to be divided, generally speaking, must be "owned by

the parties, individually or jointly, at the time of the divorce." Brock v. Brock,

941 S.W.2d 896, 900 (Tenn. App. 1996). This is so because courts ordinarily

"cannot divide and/or distribute what is 'not there' --- property no longer owned

by the parties . . . at the time of the divorce." Id.

          Applying these principles to the instant case, we find the trial court

properly limited its decision on the division of marital property to that in which

the parties possessed an ownership interest at the time of the divorce.

          With regard to the wife's contention that trial court erred by rejecting

her claim that the dissipation of the funds constituted a fraudulent conveyance

within the purview of Tenn. Code Ann. § 36-4-121(b)(1)(A), the wife bears the

burden of showing that the evidence preponderated against that finding. See

Galbreath v. Harris, 811 S.W.2d 88, 91 (Tenn. App. 1990);Tenn. R. App. P.

13(d). In rejecting that claim, the trial court considered the husband's testimony

that he spent a portion of the money on home improvements, gambling, bills, and

groceries. See Massingale v. Massingale, 915 S.W.2d 818, 819 (Tenn. App.

1995) (trial court's assessment of witness credibility is entitled to great weight

on appeal). While the evidence shows that the husband’s accounts decreased

monthly by significant but differing amounts in October, November, and

December of 1996 and January of 1997, the wife offered no evidence of a




                                         -6-
fraudulent conveyance. The husband testified that he spent the money. 1

Inasmuch as the wife presented no facts or law requiring a different result, we

must conclude that she has failed to satisfy her burden.

           Our decision that the trial court correctly defined the marital estate as

property actually owned at the time of the divorce does not, however, preclude

consideration of the husband’s pre-filing dissipation of approximately $20,000.

Tennessee Code Annotated § 36-4-121(c)(5) specifically authorizes the court to

consider a party’s “dissipation of the marital or separate property” when

fashioning an equitable distribution of marital property. See also Meadows v.

Meadows, Appeal No. 01-A-01-9801-CH-00054, 1998 WL 770190 (Tenn. App.

1998). We discuss the effect of that dissipation on the division of property in

section IV below.

                                             III.

           The wife argues that the trial court erred in declining to award alimony

in solido or in futuro. The husband responds that the wife's admitted level of

activity demonstrates that she is capable of rehabilitating herself, but she lacks

the desire to do so.

           Tennessee law provides for three types of alimony: (1) rehabilitative

alimony, which provides modifiable, temporary support for a period of

adjustment sufficient to enable a dependent spouse to become partially or totally

self-sufficient; (2) periodic alimony or alimony in futuro, a continuing, but

modifiable, support obligation to an economically disadvantaged spouse; and

(3) alimony in solido, an unmodifiable lump sum award which may be payable

       1
         The trial court found that both parties had dissipated substantial sums from their
assets during their marriage. The court was commenting upon the settlement the wife
received in 1994 and the disability back pay she received in 1997. With regard to the
husband’s accounts, the court noted, “He had gotten rid of some money without a lot of
explanation shortly before the divorce was filed.”

                                             -7-
over time. Tenn. Code Ann. § 36-5-101(d)(1)(1996); see Loria v. Loria, 952

S.W.2d 836, 838 (Tenn. App. 1997). Our law favors rehabilitative alimony

whenever possible and requires a finding that rehabilitation is "not feasible"

before an award of alimony in futuro is appropriate. Tenn. Code Ann. § 36-5-

101 (d) (2); see Self v. Self, 861 S.W.2d 360, 361 (Tenn. 1993). In reviewing the

propriety of an alimony award, we must consider a number of factors, including

the relative earning capacity, obligations, needs and financial resources of the

parties, including income from pension, profit sharing, or retirement plans.

Tenn. Code Ann. § 36-5-121(d)(1). The predominant factors to consider,

however, are the innocent2 spouse's need, and the obligor spouse's ability to pay.

See Hazard v. Hazard, 833 S.W.2d 911, 917 (Tenn. App. 1991).

           Here, the record shows that the husband earned a yearly income of

approximately $32,000. The wife received a monthly income of $472 in

disability benefits -- a yearly income of approximately $5,664. Her monthly

expenses, including the extremely low house payment, exceed her monthly

income by $144. In the division of property below, she received $2,659.15 in

cash. These figures leave no doubt that the wife met the economic inequality

requirement on which any alimony award must be predicated. Tenn. Code Ann.

§ 36-5-101(d)(1). Nor can we dispute the wife's obvious need for additional

income. See Loyd v. Loyd, 860 S.W.2d 409, 412 (Tenn. App. 1993).

           The trial court made no finding of fact regarding the wife’s

employability or possibility of rehabilitation. In making the rehabilitative

alimony award, the court stated that the $300 per month for two years was to



       2
         Fault is a factor to be considered in the award of alimony, and the trial court herein
found that the husband had committed inappropriate marital conduct by virtue of an
improper relationship with another woman.

                                             -8-
“give her a chance to go to maybe Motlow or something to get some further

training. She has a high school education according to the statistical data. She’s

going to have to be able to qualify for something.” While we can find implicit

in that statement the trial court’s conclusion that rehabilitation is possible, the

trial court made no findings of fact in support of that conclusion. Additionally,

the record includes no information regarding training or education which could

enable the wife to work full-time, no information about her employability in view

of her limitations, and no information concerning the income she could produce

if employed part-time or full-time.

          The appellate record is sufficiently developed to permit us to find that

wife's ability to materially improve her health or increase her income is limited,

leading us to conclude that rehabilitation is not feasible. Tenn. Code Ann. § 36-

5-101(d)(2). Accordingly, we find the evidence preponderates against the

decision to award the wife rehabilitative alimony for two years. Having

determined that the wife is at an economic disadvantage in relation to the

husband and that rehabilitation is not feasible, and having considered the above-

mentioned statutory factors, especially the wife’s need, the husband’s ability to

pay, the duration of the marriage, and the relative earning capacity, in

conjunction with the others enumerated in Tenn. Code Ann. § 36-5-101(d), we

award the wife periodic alimony in the amount of $300 per month for two years

following the date of divorce, and in the amount of $200 per month thereafter,

until her death or remarriage.

                                        IV.

          The wife contends that the trial court erred in its division of the marital

property. She maintains that it failed to consider the marriage's length, her



                                        -9-
disabilities, age, education, and contribution to the marriage, the disparities in

earning capacity between the parties, and her inability to maintain herself on her

current income. The husband responds that the equal division of the parties'

assets was equitable, reflecting his equal, if not primary, contribution to the

marriage.

            Tennessee law requires that marital property be divided equitably

without regard to fault. Tenn. Code Ann. § 36-4-121(a). But an equitable

division is not necessarily an equal one. See Barnhill v. Barnhill, 826 S.W.2d

443, 449 (Tenn. App. 1991). Tennessee Code Annotated § 36-4-121(c) sets forth

the guiding factors to be considered in dividing marital property. These include,

inter alia, the duration of the marriage, the parties' age, physical and mental

health, vocational skills, employability, earning capacity, financial needs, and

relative contribution to the marital estates. In making an equitable division, the

court should also consider the economic circumstances of each party at the time

the division of property is to become effective and the relative ability of each for

future acquisitions of capital assets and income. In addition, as discussed above,

one party’s dissipation of assets can be considered in formulating a property

division that is equitable. Tenn. Code Ann. § 36-4-121(c). A trial court's

decision on the division of marital property warrants deference unless it is

inconsistent with these factors or unsupported by a preponderance of the

evidence. See Barnhill, 826 S.W.2d at 449-450.

            Here, the trial court divided the major assets of the parties equally. We

are not convinced that an equal division was equitable in this situation, however,

considering that this was a twenty-eight year marriage, the husband has a

significantly greater earning capacity, and the wife's income is limited by her



                                         -10-
health problems. The wife’s economic situation at the time of divorce is worse

than the husband’s.

          As explained above, the wife will be able to meet her minimal living

expenses with the award of alimony only as long as she is able to remain in the

marital residence with its low mortgage payment or can find another place to live

at a similar low monthly cost. The only evidence in the record is that no such

other accommodation can be found. Thus, the trial court’s decision to have the

marital residence sold greatly reduces the likelihood that the wife can subsist on

her monthly income.

          The wife has asked that she be awarded the marital home. While we

find that request reasonable in light of the wife’s financial situation and the very

low mortgage payments, we are unable to make such an award on the basis of the

record before us. Such an award could render the distribution to the husband

inequitable without modification of the distribution of the other major assets: the

separate lot and the husband’s retirement fund. We know nothing about the

value of the retirement account, the amount of monthly benefits which will

become available or when such benefits will become available. This prevents us

from equitably modifying the distribution of the other assets in order to award

the marital residence to the wife.

          Because, however, we think it would be equitable and reasonable for

the wife to retain the residence, if the other major assets can be distributed

equitably, we remand this case to the trial court to hear evidence regarding the

present value of the retirement accounts in order to reconsider distribution of the

marital property in an equitable manner which will allow the wife to retain the

marital residence.



                                       -11-
          While we regret the delay and additional expense involved in this

remand, we are simply unable to equitably divide the marital estate when we do

not know the value of one of the major assets. On remand, we are certain the

trial court will encourage the least expensive method for obtaining and

introducing the additional fact needed for its reconsideration.

          In this reconsideration, the trial court should also consider the

husband’s dissipation of $20,000 in the six months prior to his filing for divorce.

While the trial court stated that both parties had dissipated money throughout the

marriage, we think the pre-filing reduction in husband’s account is more relevant

to a determination of the equities involved in the distribution of property than

wife’s spending of her earlier settlement monies. Even if the trial court

determines that it should also consider the wife’s $6000 in back pay she received

in May 1997, which was spent during the parties’ reconciliation, as an offsetting

dissipation, the difference between the two amounts is considerable. In addition,

the husband was unable to document that any of the $20,000 was spent to benefit

the wife or the marriage, and was unable to fully explain where the money went.

In view of these facts, and in view of the factors discussed above, we are of the

opinion that an equitable distribution of the marital property would result in the

wife receiving a greater than fifty percent share of the major assets.

                                       VI.

          The wife contends that the trial court erred in limiting her award of

attorney fees to $1,200 when her actual fees and expenses were $3,345.88. The

husband responds that the award must be presumed to be appropriate.

          Trial courts have broad discretion in determining whether to require

one spouse to pay for the other's legal expenses. See Loyd v. Loyd, 860 S.W.2d



                                       -12-
at 413. We see no error in the trial court's decision.

                                       VII.

          Accordingly, the trial court's decision to divide only the property the

parties possessed at the time of separation is affirmed. That portion of the

judgment dividing the marital property is affirmed except for the portion dealing

with the residence, the separate lot, and the husband’s retirement accounts. The

order to sell the residence and the lot and equally divide the proceeds, as well as

the distribution of the retirement funds is vacated, and the case is remanded for

further fact finding regarding the present value of the retirement accounts and for

consideration of an equitable distribution which will not require sale of the

marital residence and will result in a more equitable distribution in accordance

with this opinion. The trial court's decision on the alimony award is affirmed as

modified. The award of attorney fees is affirmed. This case is remanded to the

trial court for proceedings consistent with this opinion and such further

proceedings as may be necessary. Costs of this appeal are to be shared equally

between the parties.



                                              ____________________________
                                              PATRICIA J. COTTRELL, JUDGE



CONCUR:


_________________________________
WILLIAM C. KOCH, JR., JUDGE



_________________________________
WILLIAM B. CAIN, JUDGE



                                       -13-
