                     IN THE COURT OF APPEALS OF TENNESSEE
                                 AT NASHVILLE
                                             April 13, 2000 Session

                      MARILYN E. REEL v. GEORGE C. REEL, JR.

                          Appeal from the Chancery Court for Maury County
                            No. 98-486     James T. Hamilton, Chancellor



                         No. M1999-01151-COA-R3-CV - Filed Apri1 30, 2001


This is a divorce case ending a twenty-seven year marriage. The trial court made an essentially equal
division of property, awarding Wife the marital residence which remained unfinished even though
the parties had occupied it since 1985. We modify the property division to provide Wife additional
funds with which to complete and repair the residence.

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

PATRICIA J. COTTRELL, J., delivered the opinion of the court, in which WILLIAM C. KOCH, JR., and
WILLIAM B. CAIN , JJ., joined.


Peter D. Heil, Nashville, Tennessee, for appellant, Marilyn E. Reel.

Dana Dye, Centerville, Tennessee, for the appellee, George C. Reel, Jr.

                                        MEMORANDUM OPINION1

       Marilyn E. Reel (“Wife”) and George C. Reel, Jr. (“Husband”) were married for twenty-
seven years and have two adult sons. At the time of the trial, both parties were fifty years old, both

       1
           Tenn. R. A pp. P. 10(b) states:

       The 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. When a case is decided by memorandum opinion it shall be designated
       "MEMORANDUM OPINION," shall not be published, and shall not be cited or relied on for any
       reason in a subsequent unrelated case.
were in good health, both had college degrees and Husband had a master’s degree, and both were
unemployed.

       The parties bought a 245 acre farm in Hickman County in 1983. For two and a half years
the family lived in a small, old house on the farm while Husband constructed a new house on the
property.2 In 1985, the family moved into the new house which was not finished at that time,
remains unfinished, and was in need of repair at the time of the trial in 1999. At the time of trial,
the house had some unfinished floors, particle board walls in some areas, a door held in place by a
block of wood, exposed wires, unfinished cabinets, drainage problems in the shower, a leaking roof,
and drainage problems causing water damage. Wife produced an estimate of $25,000 to complete
and repair the house.

        The parties had marital difficulties for some time, and had separated for a period in 1989,
when Wife moved to Nashville. In 1996, Husband moved from the residence, after the younger son
graduated from high school, and informed Wife that he wanted a divorce and would not be returning
to the marital home. In 1997, Husband began cohabiting with another woman and assisting her in
the construction of a house. In July 1998, Wife filed for divorce, seeking a division of property,
alimony, attorneys fees and a restraining order. Shortly thereafter, the court issued an order
restraining Husband from “returning to the marital residence and from dissipating, transferring,
cashing or disposing of the marital estate in any manner and especially from continuing to place
marital assets into the construction of [his girlfriend’s] house.” Husband paid one half of the
mortgage payments on the marital residence during the separation.

        Husband admitted spending minimal amounts of money on his girlfriend’s house and
removing some building materials from the marital residence for the construction of that house, even
in violation of the court order restraining him from doing so. He claimed to have no ownership
interest in the girlfriend’s house.

        The trial court awarded Wife the divorce, based on Husband’s inappropriate marital conduct,
and made an essentially equal division of the real and personal property. Wife was awarded the
marital residence and the land, the household furnishings, her retirement and checking accounts, and
her car. Husband was awarded his car, his checking and retirement accounts, and some tools. Based
upon testimony, the court valued the equity in the real property at $225,000.3 In order to equalize
the distribution, the court awarded Husband a judgment of $137,000,4 so that the final property
division gave Wife $172,900 in assets and gave Husband $167,974. The trial court explained its
distribution by finding, “During the marriage both parties worked outside the home, shared equally

        2
          Husband had previously done historic restoration work and had some expertise in b uilding hom es. He built
the marital residence as well as building other structures and making improvements on the farm.
        3
            The farm was valued at $315, 000 with a mortgage debt of approximately $90,000.

        4
           Wife was ordered to pay the $137,000 within 120 days of the entry of the decree. That order was stayed
pendin g this appe al after Wife posted a b ond.

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in the rearing of their two children and both contributed to the accumulation of the marital assets,
approximately Three Hundred Thirty-five Thousand ($335,000.00) Dollars.” The court declined to
award alimony or attorney fees to Wife.

        Wife appeals, raising four separate issues. She contends that, considering her greater
financial contribution to the marriage, an equal division of property is not equitable. She also argues
that the trial court should have assigned a value to Husband’s uncompensated labors during the
parties’ separation and included that value in the marital estate. Wife submits that the trial court
erred by not awarding her alimony in solido sufficient to repair her house, and that the court should
have awarded her attorney fees.

                                                  I.

       Upon the dissolution of a marriage, courts are called upon to divide the assets the parties
accumulated during the marriage. Such decisions are very fact specific, and many circumstances
surrounding the property, the parties, and the marriage itself play a role.

        The trial court is charged with equitably dividing, distributing, or assigning the marital
property in “proportions as the court deems just.” Tenn. Code Ann. § 36-4-121(a)(1). Thus, after
the property is classified as either separate or marital, the court is to make an equitable division of
the marital property. The court is to consider several factors in its distribution, including the
duration of the marriage, the contribution to and dissipation of the marital estate, the value of the
separate property, the estate of each party at the time of the marriage, and each party’s ability to
acquire additional assets and income. Tenn. Code Ann. § 36-4-121(c) (listing the factors to be
considered). The court may consider any other factors necessary in determining the equities
between the parties, Tenn. Code Ann. § 36-4-121(c)(11), except that division of the marital property
is to be made without regard to marital fault. Tenn. Code Ann. § 36-4-121(a)(1).

        The court’s distribution of property “is not achieved by a mechanical application of the
statutory factors, but rather by considering and weighing the most relevant factors in light of the
unique facts of the case.” Batson v. Batson, 769 S.W.2d 849, 859 (Tenn. Ct. App. 1988). An
equitable distribution is not necessarily an equal one. Word v. Word, 937 S.W.2d 931, 933 (Tenn.
Ct. App. 1996). Thus, a division is not rendered inequitable simply because it is not precisely equal,
Cohen v. Cohen, 937 S.W.2d 823, 832 (Tenn. 1996); Kinard v. Kinard, 986 S.W.2d 220, 230 (Tenn.
Ct. App. 1998). Similarly, equity does not require that each party receive a share of every piece of
marital property. King v. King, 986 S.W.2d 216, 219 (Tenn. Ct. App. 1998); Brown v. Brown, 913
S.W.2d 163, 168 (Tenn. Ct. App. 1994).

        The trial court’s goal in a divorce case is to divide the marital property in an essentially
equitable manner, and equity in such cases is dependent on the facts of each case. The fairness of
a particular division of property between two divorcing parties is judged upon its final results.
Watters v. Watters, 959 S.W.2d 585, 591 (Tenn. Ct. App. 1997).


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         Because dividing a marital estate is a process guided by considering all relevant factors,
including those listed in Tenn. Code Ann. § 36-4-121(c), in light of the facts of a particular case,
a trial court has a great deal of discretion concerning the manner in which it divides marital property.
 Smith v. Smith, 984 S.W.2d 606, 609 (Tenn. Ct. App. 1997); Wallace v. Wallace, 733 S.W.2d 102,
106 (Tenn. Ct. App. 1987). Appellate courts ordinarily defer to the trial judge’s decision unless it
is inconsistent with the factors in Tenn. Code Ann. § 36-4-121(c), or is not supported by a
preponderance of the evidence. Brown, 913 S.W.2d at 168; Wilson v. Moore, 929 S.W.2d 367, 372
(Tenn. Ct. App. 1992).

         Appellate review of a division of marital property is de novo upon the record with a
         presumption of the correctness of the trial court's findings of fact. Trial courts have
         wide discretion in the manner in which marital property is divided, and their
         decisions are accorded great weight on appeal. The trial court's decision on the
         distribution of marital property is presumed correct unless the evidence
         preponderates otherwise.

Dellinger v. Dellinger, 958 S.W.2d 778, 780 (Tenn. Ct. App. 1997) (citations omitted).

        Wife contends that she made a greater financial contribution to the marriage after the parties
acquired the farm, and that, therefore, she is entitled to a greater share of the marital estate. On
appeal, she asserts that she is entitled to the entire real property. She also relies on the fact that
Husband used marital property and monies, although Husband stated they were minimal, helping his
girlfriend build a new home, while the marital home remained unfinished and in disrepair.

        Having reviewed the property division herein, and having considered it in light of the relevant
factors, we are not persuaded that the “equities between the parties” would be served by an award
to Wife of all the equity in the marital real property. However, in view of the long duration of the
marriage, and the financial situations of both parties at the divorce, a more equitable distribution of
the property should take into consideration the habitability and state of repair of the marital residence
where Wife will presumably continue to live. Based upon the testimony at trial regarding the
condition of the house and the repairs needed, the property distribution should recognize the $25,000
which Wife will need to spend to bring the house up to acceptable standards.

        Because Husband’s share of the marital property consists largely of a judgment enforceable
against Wife, the appropriate method for making the adjustment is to reduce Husband’s judgment
of $137,000 by $25,000. Therefore, we modify the award to Husband of a judgment from $137,000
to $112,000. The remainder of the trial court’s distribution of marital property is affirmed.5


         5
          Wife also argues that Husband’s uncompensated labors for his girlfriend and other friends should be assigned
a value and inc luded in the m arital estate. She argue s that Husba nd’s exper tise in construction matters was, in essence,
given away during the period the p arties were separated. She sub mits that the unpaid labors are akin to a fraudulent
conveyance. See Tenn. C ode An n. § 36-4 -121(b )(1)(A); Layne v. Layne, No. 01A01-9805-CV-00265, 1999 WL 20774
(Tenn. Ct. App. Jan. 20, 1999) (no Tenn. R. App. P. 11 application filed) (affirming a monetary award to the wife for

                                                             4
                                                        II.

        Wife also asserts that she is entitled to alimony in solido, specifically an award of $25,000
in order the make the repairs on the marital residence. 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 paid over time. Tenn. Code Ann. § 36-5-101(d)(1); Loria v. Loria, 952 S.W.2d 836,
838 (Tenn. Ct. App.1997).

        In determining whether to award spousal support, the type of support, and the amount and
duration thereof, courts must consider a number of factors. See Tenn. Code Ann. § 36-5-101(d)(1)
(listing the factors to consider). The initial determination must be whether one spouse is
economically disadvantaged relative to the other. Id. In addition, the two most important factors in
setting spousal support are the demonstrated need of the disadvantaged spouse and the obligor
spouse's ability to pay. Aaron v. Aaron, 909 S.W.2d 408, 410 (Tenn.1995); Varley v. Varley, 934
S.W.2d 659, 668 (Tenn. Ct. App.1996). Because support decisions are factually driven and involve
considering and balancing numerous factors, appellate courts give wide latitude to the trial court's
discretion. Cranford v. Cranford, 772 S.W.2d 48, 50 (Tenn. Ct. App.1989).

         In denying Wife’s request for alimony, the trial court stated:

         In the instant case this Court finds that neither party is economically disadvantaged
         and both parties are healthy, possess college degrees and are capable of earning a
         substantial living as well as the fact that the Wife will physically retain the larger
         share of marital assets.

        We agree with the trial court’s findings. Because we have already adjusted the property
division to provide for needed repairs Wife’s house, we can find no basis for a finding that Wife is
economically disadvantaged. Additionally, Wife’s request for alimony was for the money needed
to make the repairs, and we have modified the distribution of property to take into account that
amount for the same purpose.

        Wife also argues that she is entitled to have her attorney fees paid. Attorney fees are
considered a form of alimony in solido, and the courts are to consider the same factors as when
making an alimony award. Herrera v. Herrera, 944 S.W.2d 379, 390 (Tenn. Ct. App.1996). Thus,
the trial court appropriately relied on the same factors to deny attorney’s fees as those it used in
determining Wife’s alimony request. A trial court has broad discretion regarding the award or denial
of attorney’s fees, and we will not interfere with the trial court’s decision absent a clear showing that


her share of land fraudulently conveyed by the husband). We decline to extend the concept of “fraudulent conveyance”
to include a party’s uncompensated labor.

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it abused its discretion. Aaron v. Aaron, 909 S.W.2d at 411. Having reviewed the entire record, we
cannot say that the trial court abused its discretion in denying Wife’s request for attorney’s fees.

                                                III.

         In conclusion, we modify the property division to reflect an additional $25,000 for Wife.
Husband’s judgment is reduced to $112,000. The trial court is affirmed on all other issues. This
case is remanded to the trial court for such further proceedings as may be required. Costs are taxed
equally to both parties, for which execution may issue if necessary.



                                                       ____________________________________
                                                       PATRICIA J. COTTRELL, JUDGE




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