                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                 December 12, 2001 Session

            CURTIS MICHAEL DANIELS v. MARY FREELS DANIELS

                        Appeal from the Circuit Court for Rhea County
                           No. 20297, Thomas W. Graham, Judge

                                    FILED APRIL 23, 2002

                                 No. E2001-00605-COA-R3-CV


This appeal from the Circuit Court of Rhea County questions whether the Trial Court erred in failing
to award Ms. Daniel any portion of Mr. Daniel’s retirement benefits, whether the Trial Court erred
in dividing the marital estate, and whether the Trial Court erred in failing to award Ms. Daniels
rehabilitative alimony. We affirm the judgment of the Trial Court in part and reverse in part.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed in Part,
                           Reversed in Part; Cause Remanded

HOUSTON M. GODDARD, P.J., delivered the opinion of the court, in which HERSCHEL P. FRANKS and
D. MICHAEL SWINEY , JJ., joined.

Selma Cash Paty, Chattanooga, TN, for the Appellant, Mary Freels Daniels

Howard L. Upchurch, Pikeville, TN, for the Appellee, Curtis Michael Daniels

                                            OPINION

       This is an appeal from a divorce between Curtis Michael Daniels, the Appellee, and Mary
Freels Daniels, the Appellant. Ms. Daniels appeals the decision of the Rhea County Circuit Court
and presents for our review three issues which we restate:

       1.      Whether the Trial Court erred in failing to award Ms. Daniels any share of Mr.
               Daniels TVA retirement and pension benefits.

       2.      Whether the Trial Court erred in dividing the marital assets.

       3.      Whether the Trial Court erred in failing to award Ms. Daniels rehabilitative alimony.

       We affirm the decision of the Trial Court in part, vacate in part and remand for such further
proceedings, as may be necessary, consistent with this opinion.
        The parties were married July 14, 1973 and separated July, 1998. There are no minor
children of this marriage. Mr. Daniels filed his complaint for divorce on March 12, 1999 alleging
inappropriate marital conduct. Ms. Daniels filed an answer and counter-complaint on April 1, 1999
alleging that Mr. Daniels was guilty of inappropriate marital conduct. A hearing was held on
November 2, 2000 and an order was entered on November 21, 2000 granting Mr. Daniels a divorce
as a result of an extra-marital affair admitted to by Ms. Daniels.

        In the Order entered on November 21, 2000, the Trial Court determined that the entire estate
was marital property and divided it accordingly. With respect to that division, the Trial Court stated
the following:

               In making this distribution, the Court makes the following
               explanations: The wife has been granted property having a value of
               One Hundred Forty Five Thousand Six Hundred Five and 74/100
               ($145,605.74) Dollars and has been assigned debt of Eleven
               Thousand Six Hundred Fifty-Four and 94/100 ($11,654.94) Dollars,
               leaving her a net estate of One Hundred Thirty-Three Thousand Nine
               Hundred Fifty and 80/100 ($133,950.80) Dollars. The husband has
               been granted property having a value of Two Hundred Eighty-Nine
               Thousand One Hundred Eighty-Two ($289,182.00) Dollars against
               which he is required to assume debt of One Hundred Twenty-Nine
               Thousand Eight Hundred Fifty-One and 80/100 ($129,851.80)
               Dollars. The net estate to the husband is One Hundred Fifty-Nine
               Thousand Three Hundred Thirty and 20/100 ($159,330.20) Dollars.
               Of this One Hundred Fifty-Nine Thousand Three Hundred Thirty and
               20/100 ($159,330.20) Dollars, the amount of One Hundred Twenty-
               One Thousand Five Hundred ($121,5000.00) Dollars in value can be
               traced directly to a gift from his mother for the purpose of purchasing
               the Trotter Farm which was quite late in the marriage (1993). This
               Court believes it inequitable to grant any substantial interest in this
               farm to the wife for the reasons stated. It should be further noted
               when this is subtracted from the husband’s net marital estate, the
               husband will realize approximately Thirty-Seven Thousand Eight
               Hundred Thirty ($37,830.00) Dollars in assets as a result of the
               marriage while the wife will realize a net estate valued at One
               Hundred Thirty Three Thousand Nine Hundred Fifty ($133,950.00)
               Dollars. In consideration of the foregoing and further in
               consideration that the wife was the legal fault for this divorce and that
               she is self supporting, this Court does not believe spousal support is
               warranted, nor does the Court believe it proper to award attorney’s
               fees. In accordance herewith, this marriage is dissolved and the



                                                 -2-
                  parties shall sign all proper instruments necessary to transfer the
                  property awarded to each pursuant to this Decree.1

Based on this division, Ms. Daniels received 45.7% of the marital property and Mr. Daniels received
54.3% of the assets.

        We review the Trial Court’s findings of fact de novo upon the record of the proceedings
below, with a presumption of correctness “unless the preponderance of the evidence is otherwise.”
Tenn. R. App. P. 13(d); see also Hass v. Knighton, 676 S.W.2d 554 (Tenn. 1984). There is no
presumption of correctness with regard to the trial court’s conclusions of law, and those conclusions
are reviewed de novo. Jahn v. Jahn, 932 S.W.2d 939 (Tenn. Ct. App. 1996).

                                                          I.

        Ms. Daniels appeals the Trial Court’s failure to award her any share of Mr. Daniels TVA
retirement and pension benefits. Mr. Daniels is an employee of Tennessee Valley Authority
(hereinafter referred to as “TVA”) where he is an assistant unit operator at Watts Bar Nuclear Plant.
Mr. Daniels began his career with TVA in June, 1980. At the time of the trial Mr. Daniels testified
that his annual base salary was $49,750.00 and that he generally earns approximately $5,000.00 to
$10,000.00 a year over his base salary in overtime pay. Ms. Daniels works full-time for the City of
Dayton as a billing clerk and works part-time for Wal-Mart. Her income is approximately
$23,000.00 per year from both jobs.

        Both Mr. and Ms. Daniels have retirement benefits available through their employers. Ms.
Daniels’s retirement through the Tennessee Consolidated Retirement System at the time of the
divorce was valued at $11,335.74. Ms. Daniels received all of her retirement in the Trial Court’s
division of the marital property. According to an affidavit of Mr. Robert J. Vaughn, Manager of
Retirement Services, Mr. Daniels has a “Fixed Annuity Fund” through TVA with a value on
September 14, 2000 of $51,419.36. Mr. Daniels received all of his annuity in the Trial Court’s
division of the marital property. Additionally, the affidavit sets forth the follwing with regard to an
unvested pension available to Mr. Daniels in the event he retires from TVA:

                  In addition, if Mr. Daniels retires from TVA after five or more years
                  creditable TVA service, he may be eligible to receive a pension based
                  solely on TVA’s contributions to TVARS to which Mr. Daniels
                  makes no contributions. The amount of any pension to which Mr.
                  Daniels may become eligible has not been determined by TVARS
                  and is not contained in any record maintained by Retirement Services.



         1
           It should be noted that the mon ey given by Mr. Daniels’s mother was a gift to both Mr. and Ms. Daniels. The
Trotter Farm w arranty d eed reflects that the property wa s transferred to b oth M r. and M s. Daniels.

                                                         -3-
The Trial Court did not address this unvested pension in the November 21, 2001 order.

        On December 5, 2000, Ms. Daniels filed a Motion to Alter or Amend wherein she argued
inter alia, that the Trial Court erred in failing to recognize that Mr. Daniels has both an annuity as
well as a pension and that while the Trial Court addressed the annuity, it did not address the pension.
In the Order Denying Motion to Alter or Amend, entered on February 16, 2001, the Trial Court
stated:

               From all of which it appeared to the Court that Defendant’s Motion
               should be denied except to the extent that may be necessary to clarify
               the Court’s disposition of those unvalued TVA pension rights which
               are apparently conditioned upon future events. The Court has
               carefully reviewed the distribution of property heretofore contained
               in the Decree of November 21, 2000. Based on this review, the Court
               finds that the Defendant has received an equitable distribution which
               is already favorably balanced in her behalf. The Court finds that it
               would be inequitable, given the property and debt distribution already
               made, for the Defendant to receive any rights in and to Plaintiff’s
               TVA pension. In accordance herewith, IT IS ORDERED: 1)
               Defendant’s Motion to Alter or Amend is denied. 2) To the extent
               there is any question with regard to the Plaintiff’s TVA pension
               rights, same are vested entirely in his name.

         Ms. Daniels argues that the TVA pension is marital property pursuant to T.C.A. 36-4-
121(b)(1)(B) and that the Trial Court abused its discretion in failing to award her any portion of the
TVA pension that accrued during her husband’s twenty year career with TVA. Mr. Daniels argues
that the Trial Court specifically found that the division of marital property was equitable. He further
argues that his receipt of the unvested pension is based upon a number of future events and that Ms.
Daniels has failed to produce any evidence as to the value of the pension, or any evidence that Mr.
Daniels will even receive this pension. He further states that any question as to the equitable nature
of the distribution falls within the Trial Court’s wide discretion in dividing the marital property.

        We disagree with Mr. Daniels because of T.C.A. 36-4-121(b)(1)(B), which states:

                “Marital property” includes income from, and any increase in value
               during the marriage of, property determined to be spearate 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 or unvested stock option rights,
               retirement or other fringe benefit rights relating to employment that
               accrued during the period of the marriage.



                                                 -4-
In the Order entered by the Trial Court on November 21, 2000, Mr. Daniels’s annuity was listed as
a marital asset with a value stated thereof, and distributed to Mr. Daniels. Additionally, the Trial
Court added the value of the annuity to Mr. Daniels total sum of assets received as a result of the
Court’s division. There was no mention of the TVA pension in the Order. However, the Trial Court
did state in the February 16, 2001 Order denying Ms. Daniels’s Motion to Alter or Amend that the
pension had been addressed in the property settlement. Mr. Daniel’s total sum of assets does not
reflect any value of his TVA pension. While Mr. Daniels’s pension is contingent upon several
factors including but not limited to his retirement from TVA, the pension is a valuable marital asset
assuming Mr. Daniels retires from TVA and is eligible to benefit from the retirement.

        We find that the TVA pension is a marital asset. Further, we find that it was not divided by
the Trial Court in the November 21, 2000 order, and in the event the Trial Court did address it, the
Trial Court erred in failing to award Ms. Daniels any portion of the pension. In Cohen v. Cohen, 937
S.W.2d 823, 830(Tenn. 1996), the Supreme Court states:

               Further, the difficulty in determining the value of the benefits should
               not affect the classification of the property. Having held that
               unvested retirement benefits are marital property under our statute,
               we discuss briefly principles which may assist trial judges in valuing
               these benefits. Three helpful observations made by the Court of
               Appeals in Kendrick bear repeating:
                      1.       Only the portion of retirement benefits accrued during
                               the marriage are marital property subject to equitable
                               division.
                      2.       Retirement benefits accrued during the marriage are
                               marital property subject to equitable division even
                               though the non-employee spouse did not contribute to
                               the increase in their value.
                      3.       The value of retirement benefits must be determined
                               at a date as near as possible to the date of the divorce.

Further, Cohen specifically directs the Trial Courts as to possible methods of dividing an unvested
pension:

               The difficulty in dividing future benefits is aided by the use of elastic,
               equitable approaches. See e.g. 24 Am.Jur.2d Divorce and Separation
               §§ 948, 949 (1983). Most courts use one of two techniques. In re
               Marriage of Brown, 126 Cal.Rptr. at 638, 544 P.2d at 566; In re
               Marriage of Gallo, 752 P.2d at 54; Janssen v. Janssen, 331 N.W.2d
               at 755. The first approach, known as the present cash value method,
               requires the trial court to place a present value on the retirement
               benefit as of the date of the final decree. Kendrick v. Kendrick, 902
               S.W.2d at 927. To determine the present cash value, the anticipated

                                                  -5-
number of months the employee spouse will collect the benefits
(based on life expectancy) is multiplied by the current retirement
benefit payable under the plan. In re Marriage of Gallo, 752 P.2d at
54. This gross benefit figure is then discounted to present value
allowing for various factors such as mortality, interest, inflation, and
any applicable taxes. Id. See also In re Marriage of Grubb, 745 P.2d
at 666; In re Marriage of Hunt, 78 Ill.App.3d 653, 34 Ill.Dec. 55, 63,
397 N.E.2d 511, 519 (1979); Deering v. Deering, 437 A.2d at 891.
Once the present cash value is calculated, the court may award the
retirement benefits to the employee-spouse and offset that award by
distributing to the other spouse some portion of the marital estate that
is equivalent to the spouse's share of the retirement interest. In re
Marriage of Gallo, 752 P.2d at 54. The present cash value method
is preferable if the employee-spouse's retirement benefits can be
accurately valued, if retirement is likely to occur in the near future,
and if the marital estate includes sufficient assets to offset the award.
Kendrick v. Kendrick, 902 S.W.2d at 927; In re Marriage of Gallo,
752 P.2d at 54.
         In other circumstances in which the vesting or maturation is
uncertain or in which the retirement benefit is the parties' greatest or
only economic asset, courts have used the "deferred distribution" or
"retained jurisdiction" method to distribute unvested retirement
benefits. This method has distinct advantages when the risk of
forfeiture is great. Kendrick v. Kendrick, 902 S.W.2d at 927. Under
such an approach, it is unnecessary to determine the present value of
the retirement benefit. Rather, the court may determine the formula
for dividing the monthly benefit at the time of the decree, but delay
the actual distribution until the benefits become payable. In re
Marriage of Brown, 126 Cal.Rptr. at 639, 544 P.2d at 567; In re
Marriage of Gallo, 752 P.2d at 55; Deering v. Deering, 437 A.2d at
891; Janssen v. Janssen, 331 N.W.2d at 753. The marital property
interest is often expressed as a fraction or a percentage of the
employee spouse's monthly benefit. The percentage may be derived
by dividing the number of months of the marriage during which the
benefits accrued by the total number of months during which the
retirement benefits accumulate before being paid. Kendrick v.
Kendrick, 902 S.W.2d at 927 n. 17. (FN9)
         One advantage to the deferred distribution method is that it
allows an equitable division without requiring present payment for a
benefit not yet realized and potentially never obtained. In re
Marriage of Gallo, 752 P.2d at 55. Another advantage to the
approach is that it equally apportions any risk of forfeiture. While a
disadvantage may be that the approach requires a trial court to retain

                                  -6-
                 jurisdiction to oversee the payment, the entry of an order awarding a
                 certain percentage of the benefits at the time of payment should
                 lessen the administrative burden of the court. Courts routinely retain
                 jurisdiction to supervise payments of alimony and child support and
                 have, in the past, successfully divided vested pension rights by
                 awarding each spouse a share. An administrative burden should not
                 excuse an inequitable distribution of marital property.
                         The choice of valuation method remains within the sound
                 discretion of the trial court to determine after consideration of all
                 relevant factors and circumstances. While the parties are entitled to
                 an equitable division of their marital property, that division need not
                 be mathematically precise. Kendrick v. Kendrick, 902 S.W.2d at 929;
                 Thompson v. Thompson, 797 S.W.2d 599, 604 (Tenn.App.1990). It
                 must, however, reflect essential fairness in light of the facts of the
                 case. Kendrick v. Kendrick, 902 S.W.2d at 929.

Cohen v. Cohen, 937 S.W.2d 823, 831-832(Tenn. 1996).

        Both the Supreme Court in Cohen v. Cohen, 937 S.W.2d 823 (Tenn. 1996) and this Court,
in Kendrick v. Kendrick, 902 S.W.2d 918 (Tenn. Ct. App. 1994) have addressed this issue. We
therefore remand to the Trial Court to choose one of the two aforementioned methods2 of valuation
following the consideration of all relevant factors and circumstances and for an equitable division
of Mr. Daniels’s TVA pension as set forth in Cohen v. Cohen, 937 S.W.2d 823 (Tenn. 1996).

                                                        II.

        Ms. Daniels appeals the Trial Court’s division of the marital assets. Ms. Daniels argues that
the division of assets was inequitable in that Mr. Daniels received a larger percentage of the assets
than Ms. Daniels. Ms. Daniels received property having a value of $145,605.74 and debt of
$11,654.94, leaving her a net estate of $133,950.80. Mr. Daniels was granted assets with a value
of $289,182.00 and debt of $129,851.80. As already mentioned, the value of Mr. Daniels net estate
is $159,330.20. Ms. Daniels received 45.7% of the marital property and Mr. Daniels received
54.3%.

        Because Tennessee is a “dual property” jurisdiction, it is essential that the first order of
business is for the Trial Court to classify all the property, give each party their separate property and
then divide the marital property. Batson v. Batson, 769 S.W.2d 849 (Tenn.Ct. App. 1988). The
distinction between the two categories of property is important because only marital property is



        2
         It may be that more information will be available upon remand to evaluate the value of Mr. Daniels’ pension
which was not available at the initial hearing.

                                                        -7-
divided between the parties. T.C.A. 36-4-121(a)(1). A party’s separate property is not to be divided.
Brock v. Brock, 941 S.W.2d 896 (Tenn. Ct. App. 1996).

       Marital property is defined in T.C.A. 36-4-121(b)(1)(A) which reads in pertinent part as
follows:

               “Marital Property” means all 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 and owned
               by either or both spouses as of the date of filing of a complaint for
               divorce, except in the case of fraudulent conveyance in anticipation
               of filing, and including any property to which a right was acquired up
               to the date of the final divorce hearing, and valued as of a date as near
               as reasonably possible to the final divorce hearing date.
               ...

Marital property is further defined at T.C.A. 36-4-121(b)(1)(B)-(D) as follows:

               (B) “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.

               (C) “Marital property” includes recovery in personal injury, workers’
               compensation, social security disability actions, and other similar
               actions for the following: wages lost during the marriage,
               reimbursement for medical bills incurred and paid with marital
               property, and property damage to marital property.

               (D) As used in this subsection, “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 facotrs as the court having
               jurisdiction thereof may determine.

       Separate property is defined at T.C.A. 36-4-121(b)(2) in pertinent part as follows:

               (A) All real and personal property owned by a spouse before
               marriage; (B) Property acquired in exchange for property acquired
               before the marriage; (C) Income from and appreciation of property

                                                 -8-
               owned by a spouse before marriage except when characterized as
               marital property under subdivision (b)(1); (D) Property acquired by
               a spouse at any time by gift, bequest, devise, or descent;
               ...

        Once property is classified as marital, it is to be equitably divided and distributed between
the parties. T.C.A. 36-4-121(b)(1). “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). The
standard factors set forth in T.C.A. 36-4-121(c) must be considered. This Court has further stated
in Batson v. Batson, 769 S.W.2d 849, 859 (Tenn. Ct. App. 1988) the following:

               an 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.

The trial judge's goal is to divide the marital property in an essentially equitable manner. A division
is not rendered inequitable simply because it is not precisely equal, or because each party did not
receive a share of every piece of marital property. Kinard v. Kinard, 986 S.W.2d 220 (Tenn.Ct.
App.1998). Appellate Courts are to defer to a Trial Court’s division of marital property unless that
division is unsupported by a preponderance of the evidence or inconsistent with the statutory factors.
Brown v. Brown, 913 S.W.2d 163 (Tenn. Ct. App. 1994). Marital fault cannot be considered. T.C.A.
36-4-121(a)(1).

        In the case sub judice, the Trial Court classified all the property and debt as marital. The
Trial Court stated that its reason for giving Mr. Daniels a greater percentage of the marital property
was an $85,000.00 gift from Mr. Daniels mother out of his father’s estate which was used to
purchase the Trotter Farm. The Court did not classify this as a separate asset, but as marital property
and stated that it would be “inequitable to grant any substantial interest in this farm to the wife.” We
find that the property division by the Trial Court is supported by the record and affirm this decision
of the Trial Court.

                                                  III.

        Ms. Daniels appeals the Trial Court’s failure to award her rehabilitative alimony. Ms.
Daniels argues that because of the duration of the marriage, which was one of twenty-seven years,
the age and physical condition of the parties, the relative earning capacity of the parties, and the
standard of living established by the parties, she is entitled to rehabilitative alimony. With respect
to her physical condition, Ms. Daniels was diagnosed with breast cancer in 1995. She underwent
a lumpectomy, chemotherapy and radiation through May 31, 1996. She is presently cancer free,
however, her doctors are currently monitoring another lump. While Ms. Daniels recognizes that
fault may be considered in determining alimony, she asserts that it should not be the sole factor in
making that decision.

                                                  -9-
        The Trial Court has broad discretion in determining an award of alimony. Loyd v. Loyd, 860
S.W.2d 409 (Tenn. Ct. App. 1993). The decision is factually driven and requires a balancing of the
factors listed in T.C.A. 36-5-101(d). Loyd v. Loyd, 860 S.W.2d 409 (Tenn. Ct. App. 1993). Of
these factors, need and the ability to pay are the most critical. Lancaster v. Lancaster, 671 S.W.2d
501 (Tenn. Ct. App. 1984). Accordingly, this Court is not inclined to alter a trial court's award of
alimony unless it is unsupported by the evidence or is contrary to the public policy embodied in the
applicable statutes. Brown v. Brown, 913 S.W.2d 163 (Tenn.Ct.App.1994).

       In order to address the question of whether Ms. Daniels is entitled to alimony and if so, the
nature of that alimony, there must first be a finding that she is “economically disadvantaged” as
compared to Mr. Daniels. The Trial Court made no such finding. The statute, T.C.A. 36-5-
101(d)(1), sets forth in pertinent part:

               (d)(1) 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 and maintenance on a long-term basis or until the
               death or remarriage of the recipient except as otherwise provided in
               subdivision (a)(3). Rehabilitative support and maintenance is a
               separate class of spousal support as distinguished from alimony in
               solido and periodic alimony.

In making this determination, the following factors, codified at T.C.A. 36-5-101(d)(1) are to be
considered:

               In determining whether the granting of an order for payment of
               support and maintenance 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 pension, profit
               sharing or retirement plans and all other sources;
               (B) The relative education and training of each party, the ability and
               opportunity of each party to secure such education and training, and
               the necessity of a party to secure further education and training to
               improve such party's earning capacity to a reasonable level;
               (C) The duration of the marriage;
               (D) The age and mental condition of each party;


                                                 -10-
               (E) The physical condition of each party, including, but not limited
               to, physical disability or incapacity due to a chronic debilitating
               disease;
               (F) The extent to which it would be undesirable for 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;
               (J) The extent to which each party has made such tangible and
               intangible contributions to the marriage as monetary and homemaker
               contributions, and tangible and intangible contributions by a party to
               the education, training or increased earning power of the other party;
               (K) The relative fault of the parties in cases 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 between the parties.

         We find that Ms. Daniels is not economically disadvantaged as compared to Mr. Daniels.
Mr. Daniels has a salary of $49,750.00 with overtime pay of approximately $5,000.00 to $10,000.00
a year. Ms. Daniels works full-time for the City of Dayton and part-time for Wal-Mart. Her income
is approximately $23,000.00 per year from both jobs. Both Mr. and Ms. Daniels have retirement
benefits available through their employer, albeit Mr. Daniels are substantially more than Ms.
Daniels. This Court has remanded the issue of Mr. Daniels’s pension stating that Ms. Daniels in
entitled to an equitable share of that asset. We recognize that this was a marriage of twenty-seven
years. We further recognize that Ms. Daniels was diagnosed with breast cancer several years ago.
However, there is no evidence in the record that indicates either party has any physical or mental
disabilities that prohibit employment. With respect to the standard of living enjoyed by the parties,
Ms. Daniels was awarded the marital home, free from debt. The assets awarded to Ms. Daniels
totaled $145,605.74 and liabilities of only $11,654.94, leaving her a net estate of $133,950.80. Mr.
Daniels, on the other hand, was awarded assets of $289,182.00 with a debt of $129,851.80 to
accompany it leaving a net estate of $159,330.20. Mr. and Ms. Daniels have a significant amount
of real property and personal property, however, there is also substantial marital debt. Mr. Daniels
received approximately 92% of the marital debt. Finally, while the Trial Court did not specifically
state that Ms. Daniels was not receiving alimony due to her extra-marital affair, fault is one of the
factors the Court may consider. Furthermore, Mr. Daniels was granted the divorce due to Ms.
Daniels “inappropriate marital conduct.”




                                                -11-
         Ms. Daniels’s Income and Expense Statement introduced at Trial indicates that her monthly
net income is $1,439.453 and her monthly expenses are $1730.85, leaving a monthly defecit of
$291.41. Her monthly expenses include a $200.00 per month allowance toward a new replacement
vehicle, yet Ms. Daniels currently drives a 1997 Ford Explorer that is paid for and only 3 years old
at the time of Trial. Additionally, Ms. Daniels lists $125.00 per month in long distance charges,
$60.00 per month for a cell phone, $80.00 per month for entertainment and $80.00 per month for
“other.”

         Additionally, Mr. Daniels indicates on his Income and Expense Statement that his monthly
net income is $2,795.42 plus an additional $450.00 per month in overtime pay for a monthly average
of $3245.42. Mr. Daniels listed his monthly expenses as $4,899.92 with a monthly defecit of
$1,654.50. However, Mr. Daniels’s monthly expenses are no longer exactly as indicated on the
income and expense statement as a result of the Trial Court’s division. For example, Mr. Daniels
listed the full $350.00 monthly payment to First Tennesse Bank of Athens of which he is now only
responsible for 75% of that debt. Additionally, Mr. Daniels listed the $21.00 insurance policy his
wife has now assumed, as well as $75.00 for insurance on the marital residence and farm. Mr.
Daniels also listed $100.00 for entertainment and $80.00 for tobacco products. Removing these
monthly expenses from Mr. Daniels responsibility still leaves him at least $1,000.00 per month
short. It appears that both parties overstated their monthly expenses.

       Based on the aforementioned, we cannot second guess the Trial Court’s decision, as there
is no “manifest abuse of discretion.” Robertson v. Robertson, a Supreme Court case filed in
Knoxville on April 4, 2002, (Lexis 172).

        Finally, Ms. Daniels argues that she is entitled to reasonable attorney’s fees at trial as well
as on appeal. The award of attorney's fees is a matter of wide discretion for the trial court and absent
an abuse of discretion we will not overturn that decision. Marmino v. Marmino, 238 S.W.2d 105
(Tenn. Ct. App. 1950). We conclude the Trial Court acted within its discretion in failing to award
attorney’s fees.

         With respect to Ms. Daniels’s request for attorney’s fees on appeal, an award of attorney's
fees to either party is not appropriate when both parties have been partially successful in their appeal.
Baggett v. Baggett, 512 S.W.2d 292, (Tenn.App.1973). We, therefore, decline to award Ms. Daniels
attorney’s fees on appeal.

        For the foregoing reasons the judgment of the Trial Court is affirmed in part and reversed in
part. This cause is remanded to the Trial Court for such proceedings as may be necessary and for
the collection of costs below. Costs of appeal are adjudged equally against the Appellant, Mary
Freels Daniels, and her surety, and the Appellee, Curtis Michael Daniels.


        3
            This includes h er incom e from her emp loym ent w ith the C ity of D ayton as w ell as her part-time job at Wa l-
Mart.

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_________________________________________
HOUSTON M. GODDARD, PRESIDING JUDGE




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