SYBLE B. STEPHENSON,                     )
                                         )
      Plaintiff/Appellant,               )
                                         )    Lawrence Chancery
                                         )    No. 5349 91
VS.                                      )
                                         )    Appeal No.
                                         )    01-A-01-9507-CH-00328
WILBER D. STEPHENSON,

      Defendant/Appellee.
                                         )
                                         )
                                         )
                                                                  FILED
                                                                  February 7, 1996
                    IN THE COURT OF APPEALS OF TENNESSEE
                                                                  Cecil W. Crowson
                             MIDDLE SECTION AT NASHVILLE


       APPEAL FROM THE CHANCERY COURT OF LAWRENCE COUNTY

                             AT LAWRENCEBURG, TENNESSEE


                       HONORABLE JIM T. HAMILTON, JUDGE



ROBERT D. MASSEY
P.O. Box 409
Pulaski, Tennessee 38478
ATTORNEY FOR PLAINTIFF/APPELLANT


Paul Bates
Christopher V. Sockwell
BOSTON, BATES & HOLT
235 Waterloo Street
P.O. Box 235
Lawrenceburg, Tennessee 38464
ATTORNEYS FOR DEFENDANT/APPELLEE


MODIFIED, AFFIRMED AND REMANDED

                                    HENRY F. TODD
                                    PRESIDING JUDGE, MIDDLE SECTION

CONCUR:
SAMUEL L. LEWIS, JUDGE
BEN H. CANTRELL, JUDGE
SYBLE B. STEPHENSON,                            )
                                                )
       Plaintiff/Appellant,                     )
                                                )      Lawrence Chancery
                                                )      No. 5349 91
VS.                                             )
                                                )      Appeal No.
                                                )      01-A-01-9507-CH-00328
WILBER D. STEPHENSON,                           )
                                                )
       Defendant/Appellee.                      )


                                          OPINION


       In this divorce proceeding, the plaintiff, Syble B. Stephenson, has appealed from a

judgment entered by the Trial Court on April 11, 1995, overruling a motion to alter or amend

a judgment previously entered on November 14, 1994, dealing with distribution of marital

property and indebtedness thereon, child support arrearage, future child support and medical

expenses, visitation and possession of a list of personal belongings.



       This cause was before this Court on a previous appeal which was concluded by an

order stating:

                  In accordance with the opinion of the Court filed herein, it is,
                 therefore, ordered and adjudged by this Court that because the
                 Trial Court's division of marital property may affect the award
                 of attorney's fees to wife, this Court cannot address this issue
                 until the Trial Court places a value on the husband's retirement
                 account. This case is remanded to the Chancery Court of
                 Lawrence County for such further proceedings as may be
                 necessary.


       On remand the Trial Court conducted a hearing on a number of issues and entered the

judgment presently under review.



       First issue is as follows:

                 1. The Trial Court erred in setting the value of the husband's
                 retirement account.




                                                -2-
       The judgment of the Trial Court contains the following:

                 It appeared to the Court that the present value of defendant
                Wilber Don Stephenson's retirement account is Thirty-Eight
                Thousand Five Hundred Dollars ($38,500.00) as agreed
                between the parties, but that the net present value of same after
                Federal Income Taxes is Twenty-Eight Thousand Eight
                Hundred Seventy-Five Dollars ($28,875.00). . . .

                 ....

                 The Court further finds that the allocation of assets in this
                case should require the plaintiff to assume Fifteen Thousand
                Dollars ($15,000.00) of the indebtedness on the realty at 102
                Pond Drive, which has been awarded to her. In order to more
                evenly divide the marital estate, the Court further finds that the
                defendant should be awarded the entirety of the parties' silver
                certificates, making the net result of this transaction a decrease
                in the assets awarded to plaintiff of Eighteen Thousand Thirty-
                Seven Dollars ($18,037.00).

                 ....

                 It is, therefore, ordered by the Court that the prior allocation
                and distribution of the marital estate is modified to provide that
                the property indicated in Exhibit 1 awarded to defendant is
                modified to include the entirety of the parties' silver
                certificates, and the plaintiff will assume Fifteen Thousand
                Dollars ($15,000.00) of the indebtedness on the realty awarded
                her at 102 Pond Drive.


        Plaintiff argues that it was error for the Trial Court to discount the present value of the

retirement to the extent of income taxes to be due thereon. Plaintiff cites Kendrick v.

Kendrick, Tenn. App. 1994, 902 S.W.2d 918, in which this Court determined that it was

impractical to attempt to establish the present value of the retirement and ordered that, when

distribution began, the installments should be divided between the parties as paid. This

disposition would require each party to pay income tax on the portion of the retirement

payments received. Thus, there was no occasion to consider the effect of anticipated income

taxes. The cited authority is not contrary to the action of the Trial Judge in the present case

where the entire retirement was assigned to the defendant and other marital property was

assigned to plaintiff in lieu of an interest in the retirement.




                                                 -3-
       T.C.A. Section 36-4-121(c)(9) provides:

               C. In making equitable distribution of marital property, the
               court shall consider all relevant factors, including:

               ....

               (9) The tax consequences to each party.


       The right to receive taxable income, such as a retirement, is not as valuable as the

right to collect non-taxable income, such as principal payments upon an installment note.



       T.C.A. Section 36-4-121(a)(1) requires the courts to equitably divide the marital

estate in divorce cases.



       The courts are afforded wide discretion in dividing the interest of the parties in jointly

owned property. Its distribution will be given great weight on appeal, and will be presumed

correct unless the preponderance of the evidence is otherwise. Lloyd v. Lloyd, Tenn. App.

1993, 860 S.W.2d 409; Barnhill v. Barnhill, Tenn. App. 1991, 826 S.W.2d 443.



       In making an equitable distribution of marital assets, it is necessary for the court to

evaluate the assets. The judgment of the Trial Courts as to the value of assets must be

accorded the same respect as the judgment allotting the various assets to the parties.



       The opinion of this Court upon the former appeal included the following:

               . . . Husband also argues that Wife's interest in his retirement as
               marital property should be based on the amount of pension
               received by husband after federal income taxes have been paid.
               We agree. . . .


       On remand, counsel agreed that an expert had valued the retirement at $38,500. At

the second, July 15, 1994, hearing, defense counsel's opening statement to the Trial Court

included the following:

                So we're here as I understand it on the child support issue.
               The value of the retirement is thirty-eight five. One thing Mr.

                                               -4-
               Massey failed to mention was in the Court of Appeals'
               decision, Your Honor will remember, on the fourth or fifth
               page, they said it ought to be figured on after tax dollars. After
               tax dollars. So the present value is thirty-eight five. Whatever
               tax bracket he's in I used twenty-five percent. I don't think
               that's unreasonable. . . .


       There was no other statement or evidence as to the appropriate reduction for taxes.



       In the same hearing, defendant testified:

               Q. Back when you first talked to me, your check stub showed
               you were making three forty-six fifteen a week, but now you've
               got a raise.

               A. That's correct.

               Q. Now you're making four twenty-three-o-eight a week?

               A. Yes, sir.


       The Trial Court reduced the estimate of the expert by 25%.



       On appeal to this Court, plaintiff's brief argues:

                 It is the original plaintiff/appellee's position that the trial court
               erred in reducing the value from Thirty-Eight Thousand, Five
               Hundred Dollars ($38,500.00) to Twenty-Eight Thousand,
               Eight Hundred and Seventy-Five Dollars ($28,875.00) as the
               trial court did. (Original supplemented TR, 17).

                This Court has previously recognized the present value
               method of valuing pensions and retirement plans. Kendrick v.
               Kendrick, 902 S.W.2d 918 (Tenn. App. 1994). The present
               value plan does not require the court to discount the present
               value by federal income taxes (noting there was no proof as to
               the original defendant/appellant's tax bracket) and the trial
               court has therefore erred by discounting same.


       Defendant's brief does not argue or cite evidence to support the amount of the

reduction.



       Plaintiff's reply brief states:

                The original plaintiff/appellee would reiterate that there was
               no proof adduced at the hearing on remand to establish the tax

                                                 -5-
               bracket of the appellee. The after tax figure of $23,825.00
               which reduced the present value of the retirement account,
               $38,500.00, by 25% was purely speculative.

                She reasserts her position as set forth in her original brief.


       There is no evidence as to the annual payments of retirement due defendant. His past

income was shown to be $41,000 per year, and his present income was shown to be $423.08

per week, or $22,000 per year. The Trial Court evidently estimated the annual payments

under the retirement, and took judicial notice of applicable federal revenue statutes as

required by T.R.E. Rule 202(a).



       The evidence does not preponderate against the finding of the Trial Court as to the

value of the subject retirement. Such finding is therefore presumed correct and is affirmed.



       Plaintiff's third issue is:

               3. The Trial Court erred by reallocating the asset and debt
               division from that which was originally found in the initial
               trial.


       Plaintiff argues:

                The trial court, rather than adhere to the mandate issued by
               this Honorable Court by determining a value of the retirement
               account and allowing the case to return to this Honorable Court
               for a final determination of the issues, reallocated marital assets
               and debt in a manner that benefited the original defendant/
               appellant and is in direct conflict with the court's previous
               opinion.


       The judgment of this Court, quoted above, does not pre-empt the authority of the Trial

Court to redistribute the marital property as necessary after performing the mandate to

evaluate the pension. The "remand for further proceedings" included the authority to make

the distribution "equitable" in the light of the actual value of the retirement. Nothing is found

in the former opinion of this Court to preclude adjustment of the property distribution to

conform to the finding of value mandated by this Court.




                                               -6-
          This Court is a court of appellate and not original jurisdiction. Its function is to

review the findings and conclusions of the courts of original jurisdiction rather than to usurp

the original jurisdiction of the Trial Courts.



          No error is found in the action of the Trial Court in adjusting the distribution to

conform to his further finding of fact.



          Plaintiff does not challenge the equitable fairness of the ultimate distribution of

assets.



          Plaintiff's second issue is:

                  2. The Trial Court erred in establishing the proper amount of
                  child support arrearage.


          The judgment of the Trial Court contains the following:

                    This case was heard on the 15th day of July, 1994, on remand
                  from the Court of Appeals including the motion of Wilber Don
                  Stephenson to modify child support, answer and counter-
                  petition on behalf of Syble B. Stephenson, testimony of the
                  parties in open court, exhibits thereto, and the entire record in
                  the case.


          Plaintiff asserts that the only evidence in the record supports a judgment of $4,801.25.

The judgment reviewed by this Court in the former appeal set child support at $90.00 per

week or $360.00 per month. The opinion of this Court states:

                   We therefore modify Husband's child support obligation to
                  $379. per month.


          The arrearage may be computed as $4,801.25 by using $90.00 per week as allowed by

the former judgment of the Trial Court. However, the opinion of this Court superseded the

$90.00 per week and substituted $379.00 per month which produces an arrearage of

$4,271.00.      The arrearage judgment of the Trial Court will be reduced to this amount.




                                                  -7-
        Otherwise, no error is found in the arrearage judgment.




        Plaintiff's fourth and final issue is:

                4. The Trial Court erred by finding that alimony previously
                awarded should be changed to no alimony.


        The original decree of divorce, entered on August 4, 1992, provided:

                 It is, therefore, ordered by the Court that the defendant pay the
                sum of Sixty Dollars ($60.00) per week to the plaintiff as
                rehabilitative alimony for a period of thirty-six (36) months or
                until the plaintiff remarries, whichever occurs first.


        The opinion of this Court upon the former appeal states:

                 Husband asserts that the trial court erred in awarding
                rehabilitative alimony to wife. Because the court's division of
                marital property may affect an award of alimony, we conclude
                that it is inappropriate to address this issue because we are
                unable to resolve the division of marital property at this time.


        The judgment of the Trial Court on remand states:

                 It appears to the Court that the plaintiff took a voluntary lay-
                off following the trial of this cause and that she has made no
                effort toward rehabilitation, and accordingly an award of
                alimony in this case is improper.


        There is no other reference to alimony in the quoted judgment.



        The judgment contains no order implementing the quoted finding. A finding without

a resulting order is ineffective. For this reason, the original provision for 36 monthly alimony

payments remains in force and effect, and there is no modification of alimony as complained

by plaintiff.



        The judgment of the Trial Court is modified to reduce the judgment for child support

arrearage from $4,801.25 to $4,271.00, to bear lawful interest from November 14, 1994. As




                                                 -8-
modified, the judgment of the Trial Court is affirmed. Costs of this appeal are taxed against

the plaintiff. The cause is remanded for further proceedings as necessary and proper.



       Modified, Affirmed and Remanded.



                                             _______________________________________
                                             HENRY F. TODD
                                             PRESIDING JUDGE, MIDDLE SECTION

CONCUR:



_____________________________________
SAMUEL L. LEWIS, JUDGE



_____________________________________
BEN H. CANTRELL, JUDGE




                                             -9-
