                    IN THE COURT OF APPEALS OF TENNESSEE
                                AT NASHVILLE
                                         August 15, 2005 Session

                              DAVID E. CONN v. OKSOON CONN

                   A Direct Appeal from the Chancery Court for Maury County
                   No. 02-711   The Honorable Stella L. Hargrove, Chancellor



                      No. M2004-00995-COA-R3-CV - Filed September 8, 2005


        In this divorce case, Husband/Appellant appeals and raises issues involving the division of
certain marital property. Finding that the trial court did not abuse its discretion in making its
division of the marital property, we affirm.


     Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Chancery Court Affirmed

W. FRANK CRAWFORD , P.J., W.S., delivered the opinion of the court, in which ALAN E. HIGHERS,
J. and DAVID R. FARMER , J., joined.

Thomas F. Bloom of Nashville, Tennessee, for Appellant, David E. Conn

Michael D. Cox of Columbia, Tennessee, for Appellee, Oksoon Conn

                                                    OPINION

       David E. Conn (“Husband,” or “Appellant”) and Oksoon Conn (“Wife,” or “Appellee”) were
married on April 23, 1997. The parties began dating in 1991. Soon after they began dating, in 1992,
Ms. Conn had a home constructed at 1730 Oakway Circle in Columbia, TN (the “Residence”). The
Residence was constructed for $86,500.00 Ms. Conn paid $30,000.00 down and financed the
remaining $56,500.001 Prior to their marriage, in April 1993, Mr. Conn moved into the Residence
with Ms. Conn.

      On November 19, 2002, Mr. Conn filed a “Complaint for Divorce” (the “Complaint”) against
Ms. Conn. The Complaint seeks a divorce on grounds of inappropriate marital conduct and


         1
            The source of the funds for the down payment was disputed at trial. Wife testified that the funds came from
the sale of her previous home in Michigan. Husband testified that Wife had borrowed the funds from her brother and
that the co uple had repaid the brother after they married. In its “Findings of Fact and Conclusions of Law,” discussed
infra, the trial court found that the $30 ,000 .00 d own paym ent was paid from M s. Conn’s sep arate fun ds.
irreconcilable differences and requests an equitable division of the parties’ marital property and
marital debt. On February 14, 2003, Ms. Conn filed an “Answer and Counter-Complaint” in which
she denied being guilty of inappropriate marital conduct but admitted that irreconcilable differences
had arisen between the parties. In her Counter-Complaint, Ms. Conn seeks a divorce on the grounds
of inappropriate marital conduct and irreconcilable differences and asks the court to make an
equitable division of marital property and debt.

        A hearing was held on October 27, 2003. On November 10, 2003, the trial court entered its
“Findings of Fact and Conclusions of Law.” The “Findings of Fact and Conclusions of Law” reads,
in relevant part, as follows:

                       SEPARATE PROPERTY-REAL PROPERTY: Upon
               marriage of the parties in March of 19[97], Wife owned a house and
               lot located at 1730 Oakway Circle in Spring Hill, Tennessee. The
               parties began living together in this house in April of 1993. At that
               time, Husband began paying rent to Wife at the monthly rate of
               $300.00. This property will be further discussed under “marital
               property.”

                       SEPARATE PROPERTY–PERSONAL PROPERTY: At the
               time of marriage, each of the parties had savings plans (ISP) with
               Saturn; Husband had an investment account with AG
               Edwards...valued at $2,222.58; and Wife had a ROTH IRA through
               Primerica Shareholder...valued at $12,997.49. As to all other separate
               personal property, the Court accepts Wife’s list of property and
               valuation pursuant to Exhibit No. 7-E & H.

                       DISTRIBUTION OF MARITAL PROPERTY: In making a
               distribution of marital property, the Court has considered all
               applicable factors of Tenn. Code Ann. §36-4-121, including:

                       Duration of the marriage: The parties were married on March
               23, 1997, and separated in November 2002. In this short-term
               marriage of over five (5) years at separation, the Court has an
               obligation to restore the parties to their pre-marriage positions. This
               is a second marriage for each of the parties.

                       The age, physical and mental health, vocational skills,
               employability, earning capacity, estate and financial needs of the
               parties: Husband is 53 years old; Wife will be 56 in November, 2003.
               Neither party complains of ill health. Both of the parties are
               employed by Saturn, earning comparable gross incomes of over
               $65,000.00 in 2002.


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        The relative ability of each party for future acquisitions of
capital assets and income; Husband’s ISP with Saturn is valued at
$96,554.52; Wife’s ISP is valued at $134,550.19.

         The contributions of each party to the acquisition,
preservation, appreciation, depreciation or dissipation of the martial
property, including the contribution of a party to the marriage as a
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: It is undisputed that Husband deposited his
earnings in a joint checking account, keeping only a small amount for
personal items each pay period. All expenses were paid from this
account. Wife deposited her check in a joint savings account. Wife
complained that Husband gambled, and stated that “she protected the
money.” It is clear that Husband likes to gamble. Wife does not. It
is also clear that it is through Wife’s frugality that the parties are debt
free and are in good financial standing. The Court finds that each
party has contributed to the acquisition and appreciation of the marital
property. Wife’s efforts of preservation are noteworthy; however, the
Court cannot find that Husband’s gambling has caused any
measurable dissipation of assets.

        The economic circumstances of each party at the time the
division of property is to become effective and the tax consequences
to each party: While Maury County is economically depressed, these
parties enjoy full-time positions with the third largest employer in the
county.

        The Court finds the following to be an equitable division of
marital assets and allocation of marital debt:

        The marital residence–It is undisputed that the residence
previously owned by Wife...is now marital property. Exhibit No. 6
is an appraisal of the property, dated July 10, 2003, reflecting the fair
market value to be $169,000.00. While Wife insists that this value is
too high, she is the one who chose the appraiser. From the proof, the
Court finds that this house was built in 1991 at a cost of $86,500.00.
Wife paid $30,000.00 cash of her own money, and financed
$56,500.00. Husband began paying rent in 1993, and the parties
married in March of 1997. In 1998, the parties refinanced to get a
lower APR, and jointly executed a mortgage for $55,000.00. By
paying no less than $300.00 per month and paying up to $600.00



                                   -3-
monthly from bonuses received by both parties, they were able to pay
off the mortgage early.
        Wife testified that the property had a fair market value of
$110,000.00 in 1997. The Court accepts this value. The Court finds
the fair market value of the property at the present time to be
$169,000.00. Wife will receive the property as her sole and separate
property. Husband will receive the sum of $29,500.00 to be paid by
Wife within thirty (30) days of completion of the appraisal of the
stamp and coin collection as set out hereafter. This figure is derived
as follows: Subtracting the fair market value of $110,000.00 as
Wife’s separate asset in 1997, from the present fair market value of
$169,000.00, the Court is using the remainder of $59,000.00 as the
increase in equity since the marriage of the parties. Husband is
entitled to an equitable share of one-half of $59,000.00 or $29,500.00,
for his contributions to the mortgage, upkeep, maintenance, repairs
and replacements to the property prior to separation....

       Savings Accounts, etc–The Court finds the following accounts
to be marital property, subject to equal division. This includes the
worker’s compensation settlement received by Wife during the
marriage, reflected below as “CD–First Farmers & Merchants
National Bank....”

The accounts are as follows:

CD UAW CREDIT UNION...–   VALUE: $21,155.76
CD BANK OF AMERICA...–    VALUE: [$]7,028.81
CD BANK OF AMERICA...–    VALUE: $12,139.94
CD BANK OF AMERICA...–    VALUE: [$]12,514.09
INVESTMENT ACCT.–PRIMERICA SHAREHOLDER...
                          VALUE: [$]6,575.13
SAVINGS ACCT.–BANK OF AMERICA...
                          VALUE: [$]10,259.88
SAVINGS ACCT.–BANK OF AMERICA...
(PROCEEDS OF CD BANK OF AMERICA...)
                          VALUE: [$]14,000.00
CD–FIRST FARMERS & MERCHANTS
NATIONAL BANK             VALUE: [$]25,722.33

       TOTAL TO BE DISTRIBUTED EQUALLY $109,395.94
       50% TO HUSBAND = $54,697.97
       50% TO WIFE     = $54,697.97



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                       Retirement/Savings Plans: Each of the parties will retain
               his/her ISP with Saturn.
                       Vehicles – Each of the parties will keep the vehicle in his/her
               possession.

                        Other Personal Property – The Court approves the
               designations, valuations and distributions of Wife as reflected by
               Exhibit 7-D, F & G. The Court finds that the entire stamp and coin
               collection shown on Exhibit 7-I, J & K were acquired after the
               marriage. The collections will be valued by an appraiser to be agreed
               upon by the parties. The parties will each pay one-half of the
               appraisal fee. Once the value is established, each party will receive
               a share of the coins/stamps equal to one-half of their total value.
               Wife may elect to allow Husband to keep her one-half share in full or
               partial payment of the $29,500.00 owed to him by her as his equitable
               interest in the marital residence.

                       THE DISCOVER CARD DEBT: Wife will pay this marital
               debt of $915.02....

        The trial court entered an Order on December 3, 2003, which grants the parties a divorce and
incorporates, by reference, the above “Findings of Fact and Conclusions of Law”. In this Order, the
trial court also adopts Ms. Conn’s proposal regarding the distribution of personal property.

       On December 11, 2003, Mr. Conn filed a “Motion to Amend Final Order,” which reads, in
pertinent part, as follows:

                       1. When determining the marital value of the parties[’]
               home...the Court found that the present value is $169,000.00 and that
               the value at the time of the marriage was $110,000.00. However, at
               the time of the marriage there was a mortgage on the property in the
               approximate amount of $55,000.00. If you subtract mortgage amount
               from the value at the time of the marriage, you come up with equity
               in the amount of $55,000.00 at the time of the marriage. The increase
               in equity during the course of the marriage was in fact, the present
               value of $169,000.00 less the equity at the time of marriage,
               $55,000.00 or $114,000.00. Plaintiff therefore avers that he should
               be receiving $57,000.00 for his share of the increase in equity during
               the course of the marriage.

                      2. Plaintiff will further show that the Primerica account was
               valued at $12,997.49 by the Court. Plaintiff has never been provided
               proof of the current value of this account. Although in wife’s


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               separate name, this was contributed to on a monthly basis during the
               course of the marriage as was shown to the Court. This account
               should have been divided equally between the parties.
                       3. Plaintiff will further show that in her list of marital
               property, the Defendant failed to list the value of the horse collection.
               Plaintiff had testified that this was a valuable collection and that
               many of the horses were purchased at auction. If Defendant is to
               receive half of the coin collection, without taking into consideration
               the coins that were owned by Plaintiff prior to marriage and those that
               were gifts, the horse collection, along with all other collectibles
               received during the marriage should be appraised and divided along
               with the coin collection. The testimony was conflicting about when
               the coin collection was started. Plaintiff will show that many of the
               uncirculated coins were inherited from his father. The fairest division
               would be to allow the Defendant to retain her collection and Plaintiff
               to retain his collections.

                        4. Plaintiff will further show that in accepting Defendant’s
               list, the court gave the Defendant all property purchased with the
               proceeds from the water loss. Plaintiff would show that this is not
               equitable as he lost $904.45 worth of personal property and the joint
               reimbursement was $1,376.23. If Defendant was to receive all
               furniture and furnishings purchased following this loss, Plaintiff
               should be reimbursed for his portion of the claim or $1,592.56.

        On December 15, 2003, Ms. Conn also filed a “Motion to Alter or Amend the Judgment,”
seeking to have the savings account at Bank of America with the value of $10, 259.88 (see “Findings
of Fact and Conclusions of Law” above) declared to be her separate property. On January 22, 2004,
Ms. Conn filed a “Response to Plaintiff’s Motion to Amend”. Following a hearing on February 25,
2004, the trial court entered an Order on March 3, 2005 denying the respective motions to alter
and/or amend the final judgment.

       Mr. Conn appeals and raises four issues for review as stated in his brief:

               I. Whether the trial court erred in dividing the marital property,
               specifically the equity in the marital home.

               II. Whether the trial court erred in failing to divide the Primerica
               Roth IRA.

               III. Whether the trial court erred in failing to divide the horse figurine
               collection.



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               IV. Whether the trial court erred in failing to divide the proceeds
               from the water damage claim.

        Since this case was tried by the court sitting without a jury, we review the case de novo upon
the record of the proceedings below with no presumption of correctness with respect to the trial
court's conclusions of law. Tenn. R. App. P. 13(d); see also Campbell v. Florida Steel Corp., 919
S.W.2d 26 (Tenn.1996). The trial court's factual findings are, however, presumed to be correct and
we must affirm such findings absent evidence preponderating to the contrary. Union Carbide Corp.
v. Huddleston, 854 S.W.2d 87 (Tenn.1993). We further note that when the resolution of the issues
in a case depends upon the truthfulness of witnesses, the trial judge who has the opportunity to
observe the witnesses in their manner and demeanor while testifying is in a far better position than
this Court to decide those issues. McCaleb v. Saturn Corp., 910 S.W.2d 412, 415 (Tenn.1995);
Whitaker v. Whitaker, 957 S.W.2d 834, 837 (Tenn. Ct. App .1997). The weight, faith, and credit
to be given to any witness's testimony lies in the first instance with the trier of fact, and the
credibility accorded will be given great weight by the appellate court. Id.; In re Estate of Walton
v. Young, 950 S.W.2d 956, 959 (Tenn.1997). However, in reviewing documentary proof, "all
impressions of weight and credibility are drawn from the contents of the evidence, and not from the
appearance of witnesses and oral testimony at trial." Wells v. Tennessee Board of Regents, 9 S
.W.3d 779, 783-784 (Tenn.1999). As a result, appellate courts may make an independent assessment
of the credibility of the documentary proof it reviews, without affording deference to the trial court's
findings. See Corcoran v. Foster Auto GMC, Inc., 746 S.W.2d 452, 456 (Tenn.1988).

        Under Tennessee law, although there is a presumption that marital property is owned equally,
there is no presumption that marital property should be divided equally. Bookout v. Bookout, 954
S.W.2d 730, 731 (Tenn.Ct.App.1997). Thus, an equitable division of marital property need not be
an equal division of the property. Id. A trial court is afforded wide discretion when dividing the
marital property, and its distribution will be given "great weight" on appeal. Ford v. Ford, 952
S.W.2d 824, 825 (Tenn.Ct .App.1997). Guidelines for the equitable division of marital property are
set forth in T.C.A. § 36-4-121(c)(Supp.2004). That statute provides, in relevant part:

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

               (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, depreciation or dissipation of the marital or separate


                                                  -7-
               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 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, costs associated with the
               reasonably foreseeable sale of the asset, and other reasonably
               foreseeable expenses associated with the asset;
               (10) The amount of social security benefits available to each spouse;
               and
               (11) Such other factors as are necessary to consider the equities
               between the parties.

       Having reviewed the law governing the division of marital property, we now proceed to
consider separately each of the properties at issue in this appeal.

Marital Residence

       On appeal, Mr. Conn asserts that the trial court erred in dividing the Residence. Specifically,
he contends that his equitable share of the Residence should be increased from $29,500.00 to
$57,000.00. The trial court determined that the value of the Residence at the time of the marriage
was $110,000.00. This amount was taken from Ms. Conn’s undisputed testimony. According to the
appraisal, which was admitted as an Exhibit at the trial, the Residence had appreciated to a value of
$169,000.00 at the time of the divorce proceedings. Subtracting the $110,000.00 from the
$169,000.00, the trial court arrived at a total appreciation amount of $59,000.00, which the trial court
divided equally between the parties.

         Mr. Conn asserts that the trial court failed to take into consideration the $56,500.00 mortgage
that was on the Residence at the time of the marriage. Based upon his assertion that the parties
jointly refinanced $55,000.00 in 1998 and that the payments for the mortgage amount were derived
primarily from his pay check, Mr. Conn contends that the trial court should have found that the
initial equity in the house was $55,000.00 (as opposed to $110,000.00). In essence, Mr. Conn
argues that the $55,000.00 amount that the parties jointly refinanced in 1998 should be subtracted
from the $110,000.00 value of the Residence at the time of the marriage to show equity of
$55,000.00 in the home at the time of the marriage. Consequently, he contends that, based upon the
appreciation in value, he is entitled to $57,000.00 in equity (i.e. $169,000.00 minus $55,000.00 =
$114,000.00 ÷ 2 = $57,000.00).

        It is undisputed in the record that the $55,000.00 refinance amount was assumed as marital
debt; and, during the course of the marriage, this amount was paid in full. Consequently, we cannot


                                                  -8-
say that the trial court erred in declining to subtract the $55,000.00 from the $110,000.00 value of
the Residence at the time of the marriage. Mr. Conn further asserts that it was his pay check that
went to the mortgage payment and expenses of the Residence during the course of the marriage.
These funds, however, were marital funds. As such, Mr. Conn is not entitled to extra credit for these
expenditures. From the record as a whole, and in light of the factors found at T.C.A. § 36-4-121(c)
and set out above, we cannot say that the trial court erred in its calculation of the values of the
Residence (both at the beginning of the marriage and at the time of the divorce), in its calculation
of the appreciation in the Residence, or in its equally dividing the amount of appreciation between
these parties. Given the short duration of this marriage, the fact that Ms. Conn initiated the building
of this Residence, and the fact that Ms. Conn used $30,000.00 of her separate funds to purchase the
Residence,2 we find the division arrived at by the trial court to be quite equitable.

Primerica Roth IRA

       It is undisputed in the record that the Primerica Roth IRA was set up by Ms. Conn, in her
name only, prior to the marriage. Prior to the marriage, Ms. Conn was contributing between $75.00
and $100.00 per month to this IRA. Although Mr. Conn asserts that Ms. Conn increased her
contribution to the IRA after the marriage and paid these contributions from marital funds, there is
no evidence in the record to show the exact amounts of the contributions after the marriage or how
much the IRA was worth prior to the marriage. From the evidence that was introduced, the trial
court valued the account at $12,997.49 and awarded same to Ms. Conn as her separate property.
Based upon the record before us, we cannot say that the trial court erred in either its valuation of this
IRA, or in its awarding the account to Ms. Conn as her separate property.

Horse Figurine Collection

        Concerning the valuation of the horse figurine collection, there is no documentary proof.
Rather, Mr. Conn testified that some of the figurines carried a value as high at $200.00 each. Ms.
Conn testified that the collection was worth very little and that the most expensive figurine in the
collection would be worth no more than $90.00. On appeal, Mr. Conn asserts that the trial court
should have given the same treatment to the horse figurine collection as it did to the coin collections.
Specifically, Mr. Conn asserts that the trial court should have ordered an appraisal on the horse
figurine collection and should have divided the value equally between the parties.As discussed
above, it is well settled in Tennessee that, although there is a presumption that marital property is
owned equally, there is no presumption that marital property should be divided equally. Bookout v.
Bookout, 954 S.W.2d 730, 731 (Tenn.Ct.App.1997). Thus, an equitable division of marital property
need not be an equal division of the property. Id. From the record before us, we cannot find that the
trial court erred in declining to divide the value of the horse figurine collection equally between the
parties, even in the face of the equal division of the value of the coin collection.

Proceeds from Water Damage


        2
            See footnote 1.

                                                  -9-
        During the marriage, the parties suffered water damage to the Residence and received an
insurance claim in the amount of $1,376.23. Mr. Conn contends that he is entitled to $904.45, which
represents the amount of damage to his separate property. We disagree. In his own testimony, Mr.
Conn stated that the insurance proceeds were used to purchase a joint vehicle. Furthermore, Mr.
Conn testifies that an equitable distribution of the insurance proceeds would result in his retaining
his vehicle and Ms. Conn retaining her vehicle, to wit: [58]

                Q [to Mr. Conn]: Do you feel...that the [insurance] money should be
                taken into consideration in the division of property at all?

                A. I’m sorry?

                Q. The proceeds from that insurance settlement?

                A. It’s pretty much already taken care of with the purchase of the
                vehicle, but however the judge decides to do it, that’s fine with me.

Since the insurance proceeds were used to purchase marital property and since Mr. Conn does not
raise an issue as to whether the division of the vehicles was proper, we cannot find that the trial court
erred in declining to award Mr. Conn an additional $904.45 from the insurance proceeds.

       For the foregoing reasons, we affirm the Order of the trial court. Costs of this appeal are
assessed against the Appellant, David E. Conn, and his surety.




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




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