                     IN THE COURT OF APPEALS OF TENNESSEE
                                  AT JACKSON
                                           June 19, 2008 Session

META-SUE JONES WOODALL v. JETHERO JACKSON WOODALL, JR.

                       Direct Appeal from the Circuit Court for Shelby County
                              No. CT-002673-02     Rita L. Stotts, Judge



                        No. W2007-01880-COA-R3-CV - Filed August 20, 2008




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

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

Daniel Loyd Taylor and John N. Bean, Memphis, Tennessee, for the appellant, Jethero Jackson
Woodall, Jr.

Mitchell D. Moskovitz and Adam N. Cohen, Memphis, Tennessee, for the appellee, Meta-Sue Jones
Woodall.

                                       MEMORANDUM OPINION1

        This appeal arises from a divorce action. The issues presented on appeal relate to the trial
court’s classification and division of the parties’ property. We affirm.

       Meta-Sue Jones Woodall (“Wife”) and Jethero Jackson Woodall, Jr. (“Husband”) were
married in 1968. At the time of the marriage, Husband was forty years of age and Wife was thirty-
four years of age. It was the third marriage for both. No children were born of the marriage. Wife


       1
           Rule 10 of the Rules of the Court of Appeals of Tennessee provides:

       This Court, 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. W hen a case is decided by memorandum opinion it shall be designated
       “MEMORANDUM O PINION”, shall not be published, and shall not be cited or relied on for any
       reason in any unrelated case.
filed a complaint for divorce in May 2002. The parties stipulated that sufficient grounds existed for
divorce, and in May 2004 the trial court entered a final decree of divorce declaring the parties
divorced pursuant to Tennessee Code Annotated § 36-4-129, reserving disposition of financial
matters.

        A contentious battle over the classification and division of the parties’ property was heard
by the trial court on June 29-30 and July 6-7, 2004. The trial court entered lengthy findings of fact
and conclusions of law with respect to the classification and division of property in February 2005.2
In March 2005, Husband filed a motion for new trial or to alter or amend the judgment. Following
a hearing on the matter in May 2005, the trial court denied Husband’s motion for a new trial in June
2005.

         Husband filed a notice of appeal to this Court in July 2005. We determined the trial court’s
order of June 2005 was not a final order where the trial court had not ruled on Husband’s motion to
alter or amend the judgment. We accordingly dismissed Husband’s appeal and remanded the matter
to the trial court in February 2006. The trial court entered its order denying Husband’s motion to
alter or amend the judgment on July 17, 2007. In its July 2007 order, the trial court adopted its
February 2005 findings of fact and conclusions of law, but modified those findings with respect to
property known as “the Kerwin property” and the “AmSouth account.” Husband filed a notice of
appeal to this Court on August 16, 2007.

                                                  Issues Presented

         Husband presents the following issues, as we slightly reword them, for our review:

         (1)      Whether the trial court erred in finding the appreciation of the value of
                  Husband’s separate “Jack Bond” property to be marital property.

         (2)      Whether the trial court erred in finding the appreciation of the value of
                  Wife’s separate property in Corning, Arkansas, to be Wife’s separate
                  property.

         (3)      Whether the trial court erred in setting the value of an AmSouth Money
                  Market account to reflect the balance of the account in June 2003, rather than
                  the balance that existed when the trial court issued its findings in February
                  2005.




         2
           The parties agree that, although the trial court’s findings and conclusions are dated February 2006, they were,
in fact, entered in February 2005.

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       Wife raises the following additional issues:

       (1)     Did the trial court err by requiring Wife to reimburse Husband for the
               retention of her separate property?

       (2)     Did the trial court err with respect to its division of the Kerwin property?

       Wife additionally requests attorney’s fees and costs on appeal.

                                         Standard of Review

        After classifying property as separate or marital, the trial court must divide the property
equitably between the parties in consideration of the statutory provisions provided at Tennessee Code
Annotated § 36-4-121. As we frequently have noted, the fairness of the property division is reflected
in the end results, and a property division is not rendered unfair or inequitable merely because it is
not precisely equal or because each party did not receive a share of every marital asset. E.g., King
v. King, 986 S.W.2d 216, 219 (Tenn. App. 1998). Trial courts are afforded great discretion when
classifying and dividing property, and their decisions are entitled to great weight on appeal. Sullivan
v. Sullivan, 107 S.W.3d 507, 512 (Tenn. Ct. App. 2002). Accordingly, unless the trial court’s
decision is contrary to the preponderance of the evidence or is based on an error of law, we will not
interfere with its determination on appeal. Id.

                                               Analysis

        We first turn to Husband’s assertion that the trial court erred in determining that the
appreciation in value of his separate “Jack Bond” rental property in Shelby County was marital
property. Neither the ownership nor value of this property is in dispute, and Husband does not
dispute that Wife assisted with the management of the rental property during the course of the
marriage. Husband argues, however, that the increase in the value of the property during the course
of the marriage reflects an increase in the value of the land only, and that Wife’s contributions in the
management and administration of the rental property did not contribute to the increase in the value
of the land.

       The Tennessee Code provides:

       “Marital Property” includes income from, and any increase in value during the
       marriage of, property determined to be separate property in accordance with
       subdivision (b)(2) if each party substantially contributed to its preservation and
       appreciation, and the value of vested and unvested pension, vested and unvested
       stock option rights, retirement or other fringe benefit rights relating to employment
       that accrued during the period of the marriage.

Tenn. Code Ann. § 36-4-121(b)(1)(B)(2005).


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       The Code further provides:

       As used in this subsection (b), “substantial contribution” may include, but not be
       limited to, the direct or indirect contribution of a spouse as homemaker, wage earner,
       parent or family financial manager, together with such other factors as the court
       having jurisdiction thereof my determine.

Tenn. Code Ann. § 36-4-121(b)(1)(D)(2005).

       That each party must have “substantially contributed” to the preservation and appreciation
in value of the separate property is “[t]he only condition imposed in the statute for treating any
increase in value during the marriage as marital property[.]” Ellis v. Ellis, 748 S.W.2d 424, 427
(Tenn. 1988). In Cohen v. Cohen, the supreme court held that the payment of the mortgage and
insurance premiums on separate property from a joint checking account was sufficient to render the
increase in value of the property marital property. Cohen v. Cohen, 937 S.W.2d 823, 833 (Tenn.
1996).

        In this case, it is undisputed that Wife contributed to the preservation of the Jack Bond
property. In his brief to this Court, Husband concedes that Wife “dealt with tenants, placed ads for
vacancies, and helped Husband clean the two houses on the Jack Bond property.” Husband also
acknowledges that the debt and property taxes on the property were paid from joint funds, as were
the taxes on the income of the property. The evidence does not preponderate against the trial court’s
determination that the increase in the value of the Jack Bond property is properly classified as marital
property.

        We next turn to Husband’s assertion that the trial court erred in determining that the increase
in the value of Wife’s separate property in Corning, Arkansas, was not marital property. It is
undisputed that the Corning property consists of unimproved farmland inherited by Wife from her
mother in 1993. Husband asserts that he substantially contributed to the preservation and
appreciation in value of the Corning property where he signed a mortgage on the property in the
amount of $2,900 because the mortgage company required his signature and where a portion of the
parties’ total joint income tax liability in the amount of $1,250 per quarter was generated by the
income from the Corning property. Husband acknowledges, however, that Wife made all of the
payments on the mortgage from her separate farm account. He further acknowledges that he had no
involvement with the property after it came into Wife’s ownership.

         We cannot say that the evidence preponderates against the trial court’s finding that Husband
did not substantially contribute to the preservation or appreciation of the value of Wife’s Corning
property. The debt on the property was not paid from the parties’ joint funds, nor does Husband
assert that the property taxes on the property were paid from joint funds. Further, to whatever extent
the property generated income to both parties, they were jointly liable for the income taxes on that
income. Benefitting from the income generated by separate property is not commensurate with
contributing to its appreciation or preservation. We affirm on this issue.


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         We next turn to whether the trial court erred by valuing the AmSouth account as it existed
in 2003 rather than as it existed when the trial court entered its findings in 2005. The Code requires
that marital property be “valued as of a date as near as reasonably possible to the final divorce
hearing date.” Tenn. Code Ann. § 36-4-121(b)(1)(A); Dunlap v. Dunlap, 996 S.W.2d 803, 817
(Tenn. Ct. App. 1998). It appears from the record in this case that the trial court used the latest
account value in the record when it entered its findings in February 2005. Wife asserts that the value
of the AmSouth account decreased as a result of Husband’s expenditures. Wife further asserts that
Husband failed to advise the trial court of any decrease in value prior to the court’s ruling. Husband
does not dispute Wife’s assertions, but submits he filed motions under Tennessee Rules of Civil
Procedure 59 and 60 requesting that the trial court amend its ruling to reflect the February 2005
account balance. In order for a trial court to sustain a motion for a new trial pursuant to Rule 59.02
or to alter or amend the judgment pursuant to Rule 59.04, the moving party must show that the new
evidence sought to be introduced was not known prior to or during the trial and that it could not have
been known through the exercise of reasonable diligence. Barnhill v. Barnhill, No. 86-101-II, 1986
WL 8280, at *3 (Tenn. Ct. App. July 30, 1986)(citing Seay v. City of Knoxville, 654 S.W.2d 397, 399
(Tenn. App.1983)). We find no error on the part of the trial court in setting the value of the
AmSouth account based on the information in the record at the time the account was valued.

        We next turn to Wife’s assertion that the trial court erred by requiring her to reimburse
Husband for the retention of her separate property. Wife argues that by ordering her to pay Husband
$20,000 to “replace essential household items,” the trial court essentially ordered her to pay Husband
part of the value of her separate property consisting of numerous household furnishings. Upon
review of the record, we do not agree with Wife’s interpretation of the trial court’s order. This
divorce entailed the classification and division of a substantial amount of both marital and separate
property. Clearly, Wife retained many items of personality as separate property. We read the trial
court’s order as requiring her to pay Husband $20,000 out of the marital property award in order to
offset the award to her of her separate personal property. In light of the factors provided by
Tennessee Code Annotated § 36-4-121(c), we cannot say the evidence preponderates against the
award of $20,000 to Husband to offset the value of Wife’s separate personal property.

        We finally turn to Wife’s assertion that the trial court erred in dividing real property known
as the Kerwin property equally between the parties. The parties stipulated that the Kerwin property
was marital property, that it was valued at $88,000, and that there was no debt associated with the
property. Wife asserts that an equal division of the property is inequitable, however, where the net
property division results in Husband receiving 56.21% of the net estate and Wife receiving 43.79%
of the net estate. As we have noted repeatedly, the trial court’s goal in dividing property in a divorce
action is to achieve an equitable distribution. A property division is not inequitable merely because
it is mathematically unequal. E.g., Burden v. Burden, 250 S.W.3d 899, 918 (Tenn. Ct. App. 2007).
Upon review of the record, we believe the trial court’s division of property in this case was well
within its broad discretion.




                                                  -5-
                                             Holding

       In light of the foregoing, the judgment of the trial court is affirmed. Wife’s request for
attorney’s fees on appeal is denied. Costs of this appeal are taxed one-half to the Appellee, Meta-
Sue Jones Woodall, and one-half to the Appellant, Jethero Jackson Woodall, Jr., and his surety, for
which execution may issue if necessary.



                                                      ___________________________________
                                                      DAVID R. FARMER, JUDGE




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