       IN THE COURT OF APPEALS OF TENNESSEE
                   AT NASHVILLE                                  FILED
                                                                 November 9, 1998

CATHY P. McMANAMAY,                      )                      Cecil W. Crowson
                                         )                     Appellate Court Clerk
      Plaintiff/Appellee,                )     Montgomery Chancery
                                         )     No. 97-01-0151
VS.                                      )
                                         )     Appeal No.
CHARLES T. McMANAMAY,                    )     01A01-9802-CH-00081
                                         )
      Defendant/Appellant.               )




                        CONCURRING OPINION

      The presiding judge has determined that this case should be remanded “to hear
further evidence and to adjudge an equitable division of the marital estate.” His
opinion does not explain why the court has been unable to “ascertain from the
evidence in this record what an equitable division of the marital estate should be” and
does not provide directions to either the trial court or the parties regarding the steps
that should be taken on remand. We have prepared this separate opinion to provide
this information.


      One of the three issues Colonel McManamay raises on appeal concerns the trial
court’s failure to consider as marital property the increase in the value of three of Ms.
McManamay’s investment accounts, two pieces of real property in Ms.
McManamay’s name, and Ms. McManamay’s civil service retirement. When this
oversight was first brought to the trial court’s attention on December 10, 1997, the
trial court stated that it would not be “equitable” to award Colonel McManamay any
interest in these assets because “Mr. McManamay was quoted in his deposition as
having said, he didn’t care about Ms. McManamay’s property, as I understood it.”
Later, in response to Colonel McManamay’s Tenn. R. Civ. P. 59 motion pointing out
that he had never relinquished his claim against marital property being held by Ms.
McManamay, the trial court entered an order on February 27, 1998, concluding that
it would not consider the appreciation in the value of these assets as marital property
because the parties had maintained their financial accounts separately during the
marriage.


      We ordinarily defer to a trial court’s decisions with regard to the classification
of property and the division of the marital estate unless they are inconsistent with
Tenn. Code Ann. § 36-4-121(b), (c) or are not supported by a preponderance of the
evidence. See Brown v. Brown, 913 S.W.2d 163, 168 (Tenn. Ct. App. 1994);
Mahaffey v. Mahaffey, 775 S.W.2d 618, 622 (Tenn. Ct. App. 1989); Hardin v.
Hardin, 689 S.W.2d 152, 154 (Tenn. Ct. App. 1983). The trial court’s reasoning in
this case reflects a fundamental misunderstanding of the nature of marital property.


      As defined in Tenn. Code Ann. § 36-4-121(b)(1)(A) (1996), “marital property”
includes
             personal property . . . 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 . . . and valued
             as of a date as near as reasonably possible to the final
             divorce hearing date.

Based on this broad definition, a spouse’s income earned and received during the
marriage is marital property, no matter whether the spouse receiving it deposits it in
a separate account or in a joint account. Thus, a spouse’s separate financial account
is not, by definition, separate property. It follows that income deposited into a
separate account during the marriage must be treated as marital property subject to
distribution in an equitable fashion. With this rule in mind, we turn to the property
at issue on this appeal.


      Ms. McManamay is the record owner of two tracts of real property, one in
Hudson, Kentucky and the other in Sharpsburg, Georgia. Ms. McManamay testified
that her mother had conveyed the Hudson, Kentucky property to her and that she was
holding the property in trust for her mother. She also conceded that the value of this
property had increased $10,000 during the marriage. While the trial court did not
specifically address this property, Ms. McManamay’s testimony is uncontradicted.
Accordingly, we find that the evidence would have supported a decision to exclude
this property from the marital estate because Ms. McManamay was holding it in trust
for her mother. The trial court also declined to treat the appreciation in value of the

                                          -2-
Sharpsburg, Georgia property as marital property because of the lack of evidence
concerning the appreciation in the value of this property and because the property
“has no equitable value beyond that which has already been considered in the
distribution of the . . . personal property.”1 We have no basis to second-guess this
determination.


       Ms. McManamay also had three separate financial accounts, a 401(k) account,
a savings account, and an account with Putnum Securities. Ms. McManamay
deposited portions of her income into these accounts during the marriage, and at the
time of the divorce hearing, the 401(k) account had appreciated by $20,332.63; the
Putnum Securities account had increased by $9,451.45; and the savings account had
increased by $26,000. Ms. McManamay testified without contradiction that $20,000
of the deposits to her savings account belonged to her mother and that she was
holding these funds in trust. The appreciation in these accounts, with the exception
of the funds attributed to Ms. McManamay’s mother, came from deposits of salary
Ms. McManamay earned during the marriage, and, therefore, should have been
classified as marital property.           Likewise, the increase in the value of Ms.
McManamay’s pension during the marriage should also have been classified as
marital property. See Cohen v. Cohen, 937 S.W.2d 823, 830 (Tenn. 1996).


       While Tenn. R. App. P. 13(d) and 36(a) empower us to classify and distribute
marital property on appeal, we have determined that the present record does not
contain sufficient evidence to enable us to devise an equitable distribution of the
parties’ marital property in this case. Accordingly, we must remand the case with
directions to the trial court to permit the parties to present additional evidence thatwill
enable the trial court to classify the parties’ separate and marital property, to place a
value on the marital property, and to divide the marital property equitably. The
division need not be precisely equal, see Cohen v. Cohen, 937 S.W.2d at 832; Ellis
v. Ellis, 748 S.W.2d 424, 427 (Tenn. 1988), and each party is not necessarily entitled
to receive a share of every piece of marital property. See Brown v. Brown, 913
S.W.2d at 168.



       1
         Ms. McManamay apparently used the proceeds of the sale of one of the parties’ pontoon
boats to purchase this property following the parties’ separation. She was awarded the pontoon boat
as personal property.

                                               -3-
      We concur with the presiding judge’s conclusion that Colonel McManamay
was not prejudiced by the pace in which the trial court conducted the hearing of this
case. We also concur that Ms. McManamay was entitled to the divorce and that the
trial court did not err in the classification and distribution of the appreciation in the
value of the Stratford Way property and the Eddyville, Kentucky property.




                                         ____________________________
                                         WILLIAM C. KOCH, JR., JUDGE



                                         ____________________________
                                         WILLIAM B. CAIN, JUDGE




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