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

       SIDNEY TILLMAN HOOVER,              FROM THE WILLIAMSON
                                                 COUNTY CIRCUIT COURT
                                                 No. 95337
             Plaintiff-Appellee,                 THE HONORABLE HENRY
                                                 DENMARK BELL, JUDGE
       Vs.                                       C.A. No. 01A01-9706-CV-00245
                                                 VACATED AND REMANDED
       DANIEL EDMONDSON HOOVER,                  Virginia L. Story of Franklin
                                                 For Appellee
             Defendant-Appellant.          Nathaniel H. Koenig of Nashville
                                                 For Appellant
       ___________________________________________________________________________

                                MEMORANDUM OPINION1
                                                                                      FILED
       ___________________________________________________________________________
                                                                      March 6, 1998
       CRAWFORD, J.
                                                                                  Cecil W. Crowson
                                                                                Appellate Court Clerk
               This is a divorce case. Defendant-appellant Daniel Hoover appeals the trial court’s

       division of marital property and asserts that the land containing the parties marital home was

       improperly classified as wife’s separate property. Plaintiff-appellee Sidney Hoover asserts

       that the trial court erred in failing to award her one-half of Husband’s retirement account.

               Daniel Hoover (Husband) and Sidney Tillman Hoover (Wife) were granted a divorce

       in February 1997 after fourteen years of marriage. In September 1983, nine months after the

       parties were married, Wife’s parents conveyed a five acre portion of their 105 acre farm to

       the parties for construction of their marital home. The deed provides in pertinent part as

       follows:

                       For and in consideration of the sum of Ten ($10.00) dollars,
                       cash in hand paid, and other good and valuable considerations,
                       the receipt and sufficiency of which is hereby acknowledged,
                       we, GEORGE NEWTON TILLMAN AND WIFE, SYDNEY
                       HART TILLMAN, have bargained and sold and by these
                       presents do hereby transfer and convey unto DANIEL E.
                       HOOVER AND WIFE, SIDNEY TILLMAN HOOVER, their
                       heirs and assigns, the following described property situated in
                       the 8th Civil District of Williamson County, Tennessee, to wit:

               [Description of Property]


       1
          Rule 10 (Court of Appeals). Memorandum Opinion. -- (b) 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.
                      TO HAVE AND TO HOLD said tract or parcel of land,
               with the appurtenances, estate, title and interest thereto
               belonging to the said Daniel E. Hoover and wife, Sidney
               Tillman Hoover, their heirs and assigns, forever.

       In addition to providing for the custody and support of the parties’ minor children,

and rehabilitative alimony to Wife, the Amended Final Decree of Divorce, entered February

13, 1997, provides for the distribution of property as follows:

               3. REAL PROPERTY. That the Court has heard the testimony
               of the parties, experts and witnesses, regarding the real
               property located at 2131 S. Berry’s Chapel Road, Franklin,
               Williamson County, Tennessee and has considered the
               statutory factors as well as other appropriate criteria allowed by
               Tennessee law in considering the equity between the parties in
               the division of this property. That the Court finds said property
               to be valued at One Hundred Ninety Three Thousand
               ($193,000.00) Dollars although Wife’s appraisal showed the
               property to be valued at One Hundred Seventy Five Thousand
               ($175,000.00) Dollars. However, the Court finds that if the
               Wife continues to live on the property with the minor children
               she should not have the problems of the septic lines and
               improvements to driveway which her appraiser took into
               consideration in his evaluation if the property were sold to a
               third party. The Court further finds that the land upon which
               the residence was constructed was given to the parties by the
               Wife’s family and the Wife’s family continues to own the
               surrounding property this property having been in her family
               since the early 1900's, the Court finds that said land was valued
               at Fifty Thousand ($50,000.00) Dollars at the time of the
               conveyance to the parties and therefore finds that this should be
               considered as Wife’s separate property and deducted from the
               net marital equity. The Court does not find controlling that the
               title was placed in both parties’ names or that the actual
               consideration listed on the warranty deed was Five Thousand
               ($5,000.00) Dollars as the testimony and evidence at trial
               verify that the transfer was in family conveyance for love and
               affection. Further the Court finds that Wife is disadvantaged
               and she has less education and lower income than Husband and
               will not have the ability to substantially acquire assets in the
               future. Further, the Husband testified that he has family land
               which may be available to him in the future as it was offered to
               him at the time the parties were married. That Court also finds
               that Husband has a retirement with the State of Tennessee in
               the approximate amount of Twenty Eight [Thousand] Five
               Hundred Thirty Three and 94/100 ($28,533.94) Dollars and
               Wife has no retirement available to her.

                       Therefore, based upon the foregoing the Court awards
               the marital residence to the Wife charging her with the
               repayment of the mortgage in the amount of Forty Four
               Thousand ($44,000.00) Dollars which she shall expressly
               assume and hold Husband harmless therefrom. That Husband
               shall pay the remaining marital debts being Visa, $4,673.76,

                                               2
                 Mastercard $491.40, Dr. Bond $25.00, Dr. Bressman $20.00,
                 Midsouth Dental $110.00, William Yost $88.00, Pediatric
                 Associates $101.00, Dr. Henderson $178.00, Moody’s $250.00,
                 litigation costs of $4,075.00 to Wife’s attorney, $4,860.65 to
                 Husband’s attorney, Court reporter fees for depositions and per
                 diem of $272.00, $142.50, $335.00, $55.00, $225.00, $112.50
                 for a total marital debt of Sixteen Thousand Three Hundred
                 Fifty Two and 31/100 ($16,352.31) Dollars plus court costs.

                         That Wife shall pay to Husband the sum of Twenty
                 Eight Thousand Eight Hundred Thirty Eight ($28,838.00)
                 Dollars and 00/100 representing his one-fourth of the equity
                 ($193,000.00 less $50,000.00 land value found to be Wife’s
                 separate property, less $44,000.00 mortgage = $99,000.00) and
                 the marital debts 1/4th of which is awarded to him based upon
                 the Wife’s disadvantaged status and Husband’s receipt of his
                 entire retirement account. Husband is then to pay the marital
                 debts as listed above upon receipt of the $28,838.00 Judgment
                 from Wife.

                        Husband is awarded his entire retirement in the
                 approximate amount of Twenty Eight Thousand Five Hundred
                 Thirty Three ($28,533.94) Dollars and 94/100 free and clear of
                 claims of Wife.

                         *               *              *               *

          Both parties appeal the order of the trial court and present the following issues for

review:

Husband’s issues:

                 1. Whether the trial court erred in classifying land given by the
                 Wife’s parents to the parties during their marriage as the Wife’s
                 separate property.

                 2. Whether the trial court’s property division, in which
                 Husband received only 25% of the martial property while
                 incurring 75% of the marital debt is equitable under the facts of
                 this case.

Wife’s issues:

                 1. Whether the trial court erred in failing to award Wife one-
                 half of Husband’s retirement account.

                 2. Whether Wife should be awarded her attorney fees and costs
                 on appeal.

          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 the findings, we must affirm, absent error

of law. T.R.A.P. 13(d). On review, we must also keep in mind that trial courts have broad

                                                  3
discretion in dividing the marital estate upon divorce. Kincaid v. Kincaid, 912 S.W.2d 140,

142 (Tenn. App. 1995).

       In making a division of property in a divorce case, the trial court must first classify

each piece of property as either “marital” or “separate.” Batson v. Batson, 769 S.W.2d 849,

856 (Tenn. App. 1988). Marital property “means all real and personal property, both tangible

and intangible, acquired by either or both spouses during the course of the marriage . . .”

T.C.A. § 36-4-121(b)(1)(A) (1996). Separate property means:

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

T.C.A. § 36-4-121(b)(2) (1996). We hold that the trial court improperly classified the value

of the land conveyed to the parties as Wife’s separate property. We interpret the above

statutes to mean that when property is acquired by both spouses during the course of the

marriage it is marital property. If property is acquired by one spouse during the course of the

marriage it is marital property unless it was acquired by gift, bequest, devise, or descent.

Williamson v. Williamson, C.A. No. 03A01-9602-DR-00073, 1996 WL 555234 (Tenn. App.

E.S. Oct. 1, 1996); England v. England, C.A. No. 88-234-II, 1989 WL 3161 (Tenn. App.

W.S. Jan. 20, 1989). Since the property in question was acquired by deed to both parties

during their marriage, it is considered marital property. Because classifying the land as

Wife’s separate property has tainted the distribution of the remaining marital property, this

case must be remanded for an equitable redistribution. Therefore, we cannot address

Husband’s issue #2 regarding the equity of the property distribution until the trial court

makes a redistribution in accordance with this opinion and the factors listed in T.C.A. § 36-4-

121(c). However, we note that in the Amended Final Decree of Divorce, the trial court

improperly listed litigation costs and attorney fees as “marital debt,” and then assigned all



                                                4
       marital debt to Husband.2 Attorney fees and costs can be awarded in the discretion of the

       trial court, but an award of such fees is considered alimony. Gilliam v. Gilliam, 776 S.W.2d

       81, 86 (Tenn. App. 1988). Furthermore, without an action having been brought by Husband’s

       attorney, the trial court has no authority to reduce Husband’s attorney’s fees to judgment.

              Because the trial court must start over with the redistribution of marital property, it is

       unnecessary to address at this time whether Wife should be awarded one-half of Husband’s

       retirement account. Wife’s request for attorney fees and costs on appeal is denied.

              On remand, the trial court is directed to reclassify the full value of the marital home

       and real property on which it is located as marital property. The retirement benefits earned

       by Husband during the marriage are also marital property, but the court may, in its discretion,

       leave Husband’s retirement account intact and award Wife a corresponding share of other

       marital property in the interest of maintaining equity between the parties. Attorney fees

       incurred by each party are not marital debt. If the trial court feels that an award of fees is

       justified after considering the relevant factors in T.C.A. § 36-5-101(d)(1) and the parties’

       ability to pay, then a separate award may be made.

              For the foregoing reasons, the order of the trial court is vacated 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




       2
          It is unclear from the trial court’s order whether Husband is charged with all marital
debts, or whether 1/4 of those debts are assigned to Wife. The order states that “Husband shall
pay the remaining marital debts,” but the following paragraph can be interpreted as charging
Wife with 1/4 of those debts. It is apparent from the wording of Husband’s issues on appeal that
counsel is confused by the wording of the order as well.

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