                    IN THE COURT OF APPEALS OF TENNESSEE
                         WESTERN SECTION AT JACKSON
                 ______________________________________________

SARAH ANN WILKERSON,

       Plaintiff-Appellee,
                                                                          FILED
                                                    Shelby Circuit No. 154340 R.D.
Vs.                                                 C.A. NO. 02A01-9709-CV-00231
                                                                             July 16, 1998
ROBERT WILKERSON,
                                                                          Cecil Crowson, Jr.
      Defendant-Appellant.                                    Appellate C ourt Clerk
____________________________________________________________________________

                  FROM THE SHELBY COUNTY CIRCUIT COURT
                THE HONORABLE JAMES E. SWEARENGEN, JUDGE



                                   Kim G. Sims of Memphis
                                   For Defendant-Appellant

                             Jerry Stokes of Memphis for Defendant
                                      For Plaintiff-Appellee




                               REVERSED AND REMANDED

                                        Opinion filed:




                                                           W. FRANK CRAWFORD,
                                                           PRESIDING JUDGE, W.S.


CONCUR:

ALAN E. HIGHERS, JUDGE

DAVID R. FARMER, JUDGE

       This is a divorce case involving a dispute over the distribution of marital property.

Robert Wilkerson (Husband) appeals the judgment of the trial court awarding him $25,000.00,

representing 38.5 % of the value of the marital home, while awarding the remainder of the
marital property to Wife as alimony in solido.

           Robert Wilkerson and Sarah Ann Wilkerson (Wife) were married on August 31, 1974

and divorced by decree entered August 21, 1997. The parties have one adult child who was

twenty years old at the time of the divorce. Wife filed for divorce on January 16, 1997 alleging

that the parties had irreconcilable differences and that Husband was guilty of inappropriate

marital conduct. Husband counter-claimed for divorce on the same grounds. Each party accused

the other of physical and emotional abuse, and Husband later admitted to at least two adulterous

affairs.

           Wife is a college graduate and has been employed with the Tennessee Department of

Human Services for over twenty-four years. She makes over $29,000.00 per year and has a

retirement account that was valued at over $33,000.00 at the time of trial. Husband is a high

school graduate who held various jobs during the marriage. Husband worked for International

Harvester manufacturing iron parts for farm equipment for over seven years. After the

International Harvester plant closed, Husband went to work for Kellogg’s where he remained

for approximately eight years until suffering an injury on the job. As a result of the injury,

Husband received a worker’s compensation settlement of approximately $15,000.00 which he

used to start a clothing business which subsequently failed. Husband could have returned to his

job with Kellogg’s, earning $11.25 per hour, but he claims that it was not a safe working

environment and that he was continually harassed by management and co-workers. At age 60,

Husband will be entitled to receive a pension of $22.00 per month from Kellogg’s. If Husband

waits until age 65 to begin receiving his pension, the amount will be $54.00 per month. Husband

currently earns $6.00 per hour as a security guard, for a gross income, including overtime, of

approximately $1,000.00 per month.

           At trial, Wife’s counsel argued that Husband’s fault should be considered in the division

of marital property. The trial court apparently agreed, stating at one point: “[I]f I have to make

a division [of property], I’m going to have to hear some proof and find out who did what in this

matter in order to determine what would be a reasonable division of the property.” Although

Husband stipulated that Wife was entitled to a divorce on the ground of inappropriate marital

conduct, the trial court heard Wife’s testimony regarding the fault of Husband. Wife testified

to physical abuse she suffered and even testified that she contracted genital herpes as a result of


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Husband’s relationship with a prostitute.

       The trial court granted Wife an absolute divorce on the ground of inappropriate marital

conduct. The court found that the marital estate consisted only of the marital residence, valued

at $65,000.00, and Wife’s retirement account valued at $33,000.00. In addition, the court found

that a 1993 Toyota automobile, titled in the names of Husband and Wife, was not marital

property, because the court credited Wife’s testimony which characterized the car as a gift to the

parties’ daughter. The court awarded Husband $25,000.00 of the equity in the marital home, and

awarded the remainder of the equity to Wife as alimony in solido. The court also decreed that

Wife shall retain the full value of her retirement account as alimony in solido.

       Husband appeals the trial court’s division of marital property and the characterization of

the Toyota as a gift to daughter rather than marital property. Husband asserts that the trial court

erred when it considered fault in the division of marital property and that the factors to be

considered weigh in the favor of Husband. We have taken the liberty of consolidating and

paraphrasing appellant’s issues as follows:

1. Whether the trial court erred in classifying the 1993 Toyota automobile as a gift to daughter

rather than marital property.

2. Whether the division of marital property was equitable.

       Since this case was tried by the court sitting without a jury, we review the case de novo

upon the record with a presumption of correctness of the findings of fact by the trial court.

Unless the evidence preponderates against these findings, we must affirm, absent error of law.

T.R.A.P. 13(d). In reviewing the record, we are mindful that trial courts have broad discretion

in dividing the marital estate upon divorce. Loyd v. Loyd, 860 S.W.2d 409, 411 (Tenn. App.

1993); Lancaster v. Lancaster, 671 S.W.2d 501, 502 (Tenn. App. 1984).

       Division of marital property necessarily begins with classification of the property as

either separate or marital property. T.C.A. § 36-4-121(b) (1996). As for the characterization of

the 1993 Toyota, Wife testified that it was intended to be a gift to the parties’ daughter. Husband

testified that the parties intended to allow their daughter to use the car while she was living in

their household, but that upon her departure the car was to revert back to the parties. The trial

court apparently was more impressed with Wife’s testimony and we hold that the evidence does

not preponderate against the trial court’s finding that the car was a gift to daughter and therefore


                                                 3
not part of the marital estate. The trial court awarded each party their respective automobiles and

found that the marital estate consisted only of the marital residence, valued at $65,000.00, and

Wife’s retirement account, valued at $33,000.00.               Other than the dispute over the

characterization of the Toyota, neither party raises issue with the trial court’s determination of

the content or value of the marital estate. Nevertheless, we feel that the trial court erred in failing

to include the value of each party’s automobile in the marital estate. In addition, the value of

Husband’s pension from Kellogg’s, though admittedly small and difficult to value, is marital

property and should be included in the total. See Cohen v. Cohen, 937 S.W.2d 823 (Tenn.

1996).

         It is well settled that a trial court may not consider fault in the division of marital

property. T.C.A. § 36-4-121(a)(1) (1996); Fisher v. Fisher, 648 S.W.2d 244 (Tenn. 1983).

However, it is likely that a trial court sitting as the trier of fact in a contested divorce case will

be required to hear evidence of fault as a factor to consider in determining whether or not an

award of alimony is justified. Perhaps in recognition of the danger that the concept of fault

might creep into the subconscious mind of the trial judge, our legislature has mandated that

marital property be equitably divided “prior to any determination as to whether it is appropriate

to order the support and maintenance of one (1) party by the other.” T.C.A. § 36-4-121(a)(1)

(1996). The factors to be considered in making an equitable distribution of marital property

include:

         (1) The duration of the marriage;
         (2) The age, physical and mental health, vocational skills, employability, earning
         capacity, estate, financial liabilities and financial needs of each 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
         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; and
         (10) Such other factors as are necessary to consider the equities between the
         parties.

T.C.A. § 36-4-121(c) (1996).


                                                  4
       In addition, this Court has stated that the ownership of marital property should be

presumed to be equal unless analysis of the relevant factors militates otherwise. Dellinger v.

Dellinger, 958 S.W.2d 778, 781 (Tenn. App. 1997); Harrington v. Harrington, 798 S.W.2d

244, 245 (Tenn. App. 1990).

       Upon review of the entire transcript and record in this case, it appears that the division

of property could have been influenced by evidence of Husband’s fault. The trial court did not

specify that the distribution was a division of marital property, but instead awarded almost 75%

of the marital estate to Wife as alimony in solido. Although it is permissible to award property

as alimony in solido, it is impermissible to characterize the inequitable division of property as

alimony when the statutory factors concerning alimony enumerated in T.C.A. § 36-5-101(d)(1)

weigh against any award of alimony. See Hazard v. Hazard, 833 S.W.2d 911 (Tenn. App. 1991)

(stating that the dominant factors to consider in making an award of alimony are the need of the

innocent spouse and the ability of the obligor spouse to pay). The record indicates that both

parties worked to purchase and pay off the marital home. Wife testified that during the early

years of the marriage, Husband earned considerably more than she and that over the years the

balance has shifted. Wife is a college graduate and currently earns nearly three times as much

as Husband. She testified that she can meet her monthly needs with her own income. Husband,

on the other hand, is a high school graduate and has a seven percent disability rating as a result

of the back injury he suffered while employed at Kellogg’s. Wife alleges that Husband is

underemployed, and although that is a factor for the trial court to consider, it is doubtful, given

his current education and training, that Husband would ever be able to earn as much as Wife is

currently. Furthermore, although neither party has much in the way of separate property, it

appears that Wife is in a much better position to acquire assets in the future.

       After application of the statutory factors to the facts of this case, we find that the

presumption favoring an equal distribution of marital property has not been overcome. This case

is remanded with instructions for the trial court to make an equal, 50/50, division of the marital

property. In making this allocation, the court should consider how our ruling affects Wife’s

ability and desire to purchase Husband’s equity in the marital residence and whether it would

be preferable to invade the principal balance in Wife’s retirement account. After making the

division of marital property, the court can then address the issue of alimony, considering all


                                                5
pertinent factors, including those set out in T.C.A. § 36-5-101(d) (1).

        In summary, the parties’ marital estate consists of the marital residence, valued at

$65,000.00, Wife’s retirement account, with a present value of $33,045.86, the parties

automobiles, valued at $7,700.00 total, and the value of Husband’s pension which is yet to be

determined by the trial court.

        The judgment of the trial court is reversed and the case is remanded for further

proceedings in accordance with this opinion. Costs of the appeal are assessed equally between

the parties.

                                                      _________________________________
                                                      W. FRANK CRAWFORD,
                                                      PRESIDING JUDGE, W.S.

CONCUR:

____________________________________
ALAN E. HIGHERS, JUDGE

____________________________________
DAVID R. FARMER, JUDGE




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