MALCOLM YATES WORLEY,                    )
                                         )
      Plaintiff and Counter-Defendant/   )
      Appellant,                         )
                                         )   Hickman Chancery
                                         )   No. 9511296
VS.                                      )
                                         )   Appeal No.
                                         )   01-A-01-9601-CH-00037
RITA K. WORLEY,                          )
                                         )
      Defendant and Counter-Plaintiff/
      Appellee.
                                         )
                                         )                       FILED
                                                                     June 7, 1996
                   IN THE COURT OF APPEALS OF TENNESSEE
                                                                 Cecil W. Crowson
                         MIDDLE SECTION AT NASHVILLE
                                                                Appellate Court Clerk

        APPEAL FROM THE CHANCERY COURT OF HICKMAN COUNTY

                          AT CENTERVILLE, TENNESSEE


               HONORABLE CORNELIA A. CLARK, CHANCELLOR




DOUGLAS THOMPSON BATES, III
P.O. Box 1
Centerville, Tennessee 37033
ATTORNEY FOR PLAINTIFF/APPELLANT


DANA DYE
P.O. Box 11
105 West End Avenue
Centerville, Tennessee 37033
ATTORNEY FOR DEFENDANT/APPELLEE


MODIFIED, AFFIRMED AND REMANDED


                                   HENRY F. TODD
                                   PRESIDING JUDGE, MIDDLE SECTION


CONCUR:
SAMUEL L. LEWIS, JUDGE
BEN H. CANTRELL, JUDGE
MALCOLM YATES WORLEY,                          )
                                               )
       Plaintiff and Counter-Defendant/        )
       Appellant,                              )
                                               )      Hickman Chancery
                                               )      No. 9511296
VS.                                            )
                                               )      Appeal No.
                                               )      01-A-01-9601-CH-00037
RITA K. WORLEY,                                )
                                               )
       Defendant and Counter-Plaintiff/        )
       Appellee.                               )

                                       O P I N I O N


       This is a suit and countersuit for divorce in which the wife was granted an absolute

divorce on grounds of inappropriate marital conduct of the husband. On appeal, the husband

presents issues which relate only to identification and division of the marital estate:

       The parties were married in 1958 and separated in 1995. Both parties worked during

the marriage. Their earnings were approximately equal. There are no minor children.



       The husband’s first issue is:

               1. It was error for the Trial Court to hold that the assets of the
               parties were acquired by equal contribution of the parties.


       Husband does not question the approximate equality of earnings, but asserts that,

during the marriage, he acquired $152,625.34 worth of assets by inheritance from his family.

The Trial Judge recognized $47,000 in certificates of deposit as being derived from

inheritance and therefore separate property of the husband. The husband insists that the

remainder of the $152,625.34 inheritance, or $102,625.34 be also assigned to him out of the

marital estate of $126,204.10. In respect to the inheritance, the Trial Judge stated orally from

the bench:

                I also find under these definitions that the three CD’s of ten
               thousand dollars, seventeen thousand dollars and twenty
               thousand dollars were and remain the separate property of Mr.
               Worley, because those monies came primarily from
               inheritance. They have come fairly recently, since 1993, they
               can be traced separately, and I don’t find there’s been enough



                                               -2-
               proof of an intent or purpose to really treat them as marital
               funds to count them in any different way.

                The funds that were received at the same time, because those
               were not the total of the funds received on those three
               occasions, but spent for other things, did become marital
               property and they’ve been spent up or given to the children or
               otherwise disposed of, and I’m not going to attempt to deal
               with those today.

                ....

                 And to the extent I need to make a finding, I find that in this
               marriage of thirty-seven, or thirty-six and a half years, where
               both parties have worked outside the home for some substantial
               period, Mr. Worley has contributed significant inherited funds
               to the preservation of the family, but Mrs. Worley has also
               worked inside the home as homemaker and has decorated the
               house, has raised the children, has done all the business and
               financial management for the family, that there has been a
               substantial contribution, or an equal contribution, of both
               parties to the ultimate course of the marriage and that both
               should be credited with that.


       The judgment of the Trial Court states:

               Both parties have made substantial and equal contributions to the
               accumulation of marital assets and the distribution of those assets
               identified as marital assets should be approximately equal.


       Husband argues that the Trial Court included the $102,625.34 in the marital estate

because the wife did housework at home in addition to her work outside the home. This

Court disagrees. The housework was mentioned to justify an equal division of the increase in

value or income from inherited property. The justification for failing to designate as separate

property the $102,625.34 was the failure to trace it into any severable asset as was done with

the three certificates of deposit. As stated by the Trial Judge, so far as this record shows, the

$102,625.34 has been “spent for other things or spent up” or given to the children or

otherwise disposed of. The record does not reflect a preponderance of the evidence against

this finding. Consideration of the interesting question about recognition of housework ably

presented by counsel must await a more suitable factual and decisional situation.



       The husband’s second issue is:



                                               -3-
               2. It was error for the Trial Court to ignore the uncontradicted
               proof of $9,500 contributed by husband toward the purchase
               price of the house when such funds came from the sale of an
               asset husband held before the marriage.


       The Trial Judge stated orally:

               . . . As to the house, I find that the entire sixty-five thousand
               dollar equity value, which is apparently unencumbered by any
               lien, is to be considered marital property and may be disposed
               of in that way. I recognize that Mr. Worley initially made a
               contribution of about nine thousand five hundred dollars from a
               house he owned previous to this marriage, but that being more
               than thirty-five years ago, and this house having appreciated
               substantially since then and having been the marital residence
               of these parties, insofar as they’ve testified, forever, I find that
               that has been treated as and has become marital property. And
               so I’m not making any deduction to his credit for that long ago
               contribution, either.


       At the marriage, the husband owned a house of unstated value. About eight years

later he sold the house for $9,500. Appellee argues that any increase in the value of the house

during the marriage could be deemed a part of the marital estate. However, a more important

consideration is that the husband merged the $9,500 into the joint ownership of the new

home. Such is subject to consideration as a presumed gift or the subject of transmutation

which can occur by the conversion of separate ownership of nonmarital property into a form

of common ownership or commingling non marital property with marital property.

McClellan v. McClellan, Tenn. App. 1993; 873 S.W.2d 350; Barnhill v. Barnhill, Tenn. App.

1991, 826 S.W.2d 443; Batson v. Batson, Tenn. App. 1988, 769 S.W.2d 849; 27B C.J.S.

Divorce § 522, pp. 525,526.



       Husband’s third issue is:

               It was error to hold that timber cut on inherited land would be
               separate property.

       The judgment of the Trial Court states in part:

               . . . Thus, the marital assets of these parties consist of the
               marital home valued at $65,000.00, the $15,000.00 certificate
               of deposit which is found to be income derived from the
               husband’s separate property, . . . .



                                               -4-
       The Trial Judge stated orally:

               . . . The fifteen thousand dollar CD, number 46748, which I
               think everybody agrees was purchased after the sale of timber
               cut from Mr. Worley’s inherited property, I find to be marital
               property under (b) (1) (B), in that it really constitutes income
               from separate property and, therefore, should be defined to be
               marital property.


       This Court cannot agree with the Trial Court that the proceeds of timber removed

from separately owned real estate is marital income. Timber is part of the land upon which it

grows. New River Lumber Co. v. Blue Ridge Lumber Co., 146 Tenn. 181 (1922). The

increase in value of the land by the timber growth which occurred while the land was owned

by the husband during the marriage would be a part of the marital estate, but the amount of

such increased value, or the proportion of the timber proceeds attributable to growth during

such period does not appear in this record. Accordingly, there is no evidentiary basis for

classifying any part of the timber proceeds as marital property.



       Husband’s fourth and last issue is:

               It was error to give wife $13,442.00 more of marital assets
               upon a theory of “Partial Attorney’s Fees” especially when the
               issue never came up at the trial until the court announced its
               ruling and there was no proof of what fee was owing.


       The tabulation of assets awarded the parties shows that $56,381.10 was received by

the husband and $69,823 was received by the wife - a difference of $12,942.90. As to this

difference, the Trial Judge stated orally:

                I also recognize that when the numbers are added up, the total
               numbers may work in favor of Mrs. Worley slightly. To the
               extent that they do, then I also intend that they constitute an
               award, a partial award of attorney’s fees, and I’m not going to
               award her those or in any other alimony in solido separately
               because she has now been given assets and/or judgment that
               will give her some liquidity.


       This Court cannot agree that a $12,942.90 difference in distribution of property can be

justified by “attorney’s fees” which are awarded as a part of alimony. Gilliam v. Gilliam,




                                              -5-
Tenn. App. 1988, 776 S.W.2d 81; Raskind v. Raskind, 45 Tenn. App. 583, 325 S.W.2d 617

(1959).



          The counter-complaint of the wife did pray for attorney’s fee. Although no evidence

is found in the record as to the amount of legal services rendered or the reasonable charges

therefor, it is possible for a court to make a determination of the reasonable services which

appear on the face of the record. Kahn v. Kahn, Tenn. 1988, 756 S.W.2d 685.



          The record of the Trial Court and the briefs and argument before this Court justify at

least $5,000 in legal fees which will be awarded to the wife.



          The elimination of the $15,000 timber proceeds will reduce the share of the wife by

$7,500, which, together with the elimination of the $12,942.90 will reduce the amount of the

wife’s share in the marital estate to the extent of $20,442.90.



          Accordingly, the judgment of $25,000 in favor of the wife and against the husband is

reduced to $4,557.10, and an award of $5,000 attorney’s fee to the wife is added to the

judgment. As modified, the judgment is affirmed. The costs of this appeal are taxed equally.

That is, each party shall pay one-half. The cause is remanded for necessary further

proceedings.

          Modified, Affirmed and Remanded.


                                                _____________________________________
                                                HENRY F. TODD
                                                PRESIDING JUDGE, MIDDLE SECTION
CONCUR:



_____________________________________
SAMUEL L. LEWIS, JUDGE


_____________________________________
BEN H. CANTRELL, JUDGE

                                                -6-
