                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                   MAY 23, 2002 Session

                 LEO CLIFFORD DAVIS, JR. v. ANGELA DAVIS

                Direct Appeal from the Chancery Court for Madison County
                    No. 56866; The Honorable Joe C. Morris, Chancellor



                   No. W2001-01748-COA-R3-CV - Filed October 16, 2002


This appeal arises from a divorce proceeding initiated by the husband. The trial court, holding that
husband had engaged in inappropriate marital conduct, granted the divorce to the wife. The trial
court valued and classified much of the parties’ property with limited proof. The court further
awarded wife attorney’s fees and costs. Husband now raises several issues for our review. For the
foregoing reasons, we affirm in part, reverse in part, and remand this case for further proceedings.


Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Chancery Court Affirmed in Part,
                            Reversed in Part and Remanded

ALAN E. HIGHERS, J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., W.S.,
and HOLLY KIRBY LILLARD, J., joined.

James F. Butler, J. Brandon McWherter, Jackson, TN, for Appellant

Linda Sesson Taylor, Jackson TN, for Appellee

                                            OPINION

                                 Facts and Procedural History

       Leo Clifford Davis (Husband) and Angela Laure Davis (Wife) were married on June 10, 1995
in Madison County, Tennessee. On December 29, 1999, after approximately four and a half years
of marriage and the birth of one child, Husband filed for divorce from Wife. As grounds for the
divorce, Husband alleged that Wife had engaged in inappropriate marital conduct and that
irreconcilable differences existed between the parties. Wife soon filed an answer as well as a
counter-complaint, in which she denied Husband’s allegations and alleged that Husband had engaged
in inappropriate marital conduct.
        On January 31, 2000, the court entered an order pendente lite. This order granted temporary
custody of the parties’ minor child to Wife and ordered Husband to pay $735.00 per month in child
support and alimony. Following the entry of this order as well as reciprocal temporary restraining
orders, the court issued a garnishment on Husband’s wages due to his failure to pay the temporary
support ordered.

        On November 7, 2000, both Husband and Wife made filings with the court. Husband filed
a “Stipulation and Statement” and a “Financial Statement.” These two filings listed all of the parties’
personal and marital assets along with corresponding values and disclosed Husband’s alleged income
and expenses. Similarly, Wife filed a “Settlement Proposal” that also disclosed the parties’ assets
and their respective values.

        On the same day, the court heard arguments concerning Husband’s visitation rights. The
dispute stemmed from charges brought against Husband for the aggravated sexual battery of the
parties’ minor child. As a result of these proceedings, Husband’s visitation rights were temporarily
terminated until the charges were resolved. At such time, Husband could petition the court for
reinstatement of his visitation privileges.

         A trial was held on March 5, 2001 at which evidence was offered as to the parties’ relative
fault, the value of marital property and debts, and the parties’ income. As a result of the trial, the
court was able to issue its findings on May 9, 2000. Relevant to this case, the court found that Wife
was entitled to the divorce on the grounds of Husband’s inappropriate marital conduct. Further, the
court found that Husband’s and Wife’s incomes in 1999 were $30,488.16 and $6,325.00
respectively. For the year 2000, the court found that Husband’s and Wife’s incomes would be
$33,000.00 and $17,000 respectively.

        With regard to the parties’ real property, the court found two tracts of land and a trailer
located on the larger of the tracts to be marital property. The court valued the property at $72,000.00
and concluded that $19,500.00 of equity existed in the property due to $54,000.00 of outstanding
mortgages. The court determined that the property should be awarded to Husband along with the
mortgage obligations, but that Husband should pay $9,750.00, half of the equity, to Wife.

        With regard to personalty, the court found that Husband should be granted $40,800.00 of
separate property. Wife was granted an automobile that had no equity due to an outstanding loan.
With regard to the division of marital property other than the realty, the court found that Wife should
be awarded property valued at $1375.00 plus various furniture as well as one-half of husband’s
401(k) and pension plans and one-half of a CD held by Husband. In total, by our calculations, the
court concluded that Wife was entitled to approximately $16,165.00 of marital property. Husband,
again, by our calculations, was granted approximately $18,490.00 in marital property. With regard
to marital debt, the court found that Husband and Wife should pay $58,995.001 and $16,250.00
respectively.


       1
           This amount includes $54,000.00 in mortgages on the property awarded to Husband.

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        On June 16, a final decree of divorce was entered in accordance with the court’s findings.
The decree granted Wife the divorce based on Husband’s inappropriate conduct, divided the property
and debts as shown above, and ordered Husband to pay $105.00 per week to Wife for child support.
Husband was also ordered to pay $7,573.00 to Wife in attorney’s fees and other related costs. A
portion of the fees, totaling $3,848.00, was specifically for the attorney’s fees and costs Wife
incurred for overturning a temporary order of custody sought by Husband, securing the support
Husband refused to pay, terminating Husband’s visitation, and an order of protection and petition
for contempt filed by Wife. Husband filed a timely notice of appeal and now raises several issues
for our review.
                                               Issues
        I.      Whether the trial court acted contrary to the preponderance of the evidence in
                determining the value of various property owned by the parties, the level of the
                parties’ indebtedness, and the parties’ incomes;

        II.     Whether the trial court erred by considering evidence not introduced at trial;

        III.    Whether the trial court erred in ordering Husband to pay $54,000 for the parties’ two
                mortgages;

        IV.     Whether the trial court erred by awarding Wife a portion of Husband’s certificates
                of deposit; and

        V.      Whether the trial court erred by awarding Wife attorney’s fees and costs.

                                           Law and Analysis
        Husband’s first four issues concern the court’s classification, valuation, and division of
property between the parties. When faced with the obligation to divide the assets of divorcing
parties, courts must first classify each asset as either marital or separate property. Dunlap v. Dunlap,
996 S.W.2d 803, 814- 815 (Tenn. Ct. App. 1998) (citing Cutsinger v. Cutsinger, 917 S.W.2d 238,
241 (Tenn. Ct. App. 1995)). When classifying the property, courts must look to section 36-4-121(b)
of the Tennessee Code. Section 36-4-121(b) provides in pertinent part:
        (1) (A) “Marital property” means any real and personal property, both tangible and
        intangible, acquired by either or both spouses during the course of the marriage . . .
        .

            (B) “Marital property” includes income from, and any increase in value during
        the marriage of, property determined to be separate property in accordance with
        subdivision (b)(2) if each party substantially contributed to its preservation and
        appreciation, and the value of vested and unvested pension, vested and unvested
        stock option rights, retirement or other fringe benefit rights relating to employment
        that accrued during the period of the marriage.

        ....



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            (D) As used in this subsection, “substantial contribution” may include, but not
        be limited to, the direct or indirect contribution of a spouse as a homemaker; wage
        earner; parent or family financial manager, together with such other factors as the
        court having jurisdiction thereof may determine . . . .

        ....

        (2) “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);

           (D) Property acquired by a spouse at any time by gift, bequest, devise or descent . . . .

TENN. CODE ANN . § 36-4-121(b) (2001).

        After characterizing the parties' assets as either marital or separate property, the trial court
must give parties their separate property and make an equitable division of marital assets. See
Batson v. Batson, 769 S.W.2d 849, 856 (Tenn. Ct. App. 1988). An equitable division of property
does not necessarily mean an equal division. See Bookout v. Bookout, 954 S.W.2d 730, 732 (Tenn.
Ct. App. 1997); Batson, 769 S.W.2d at 859. "The division of the estate is not rendered inequitable
simply because it is not mathematically equal, or because each party did not receive a share of every
item of marital property." King v. King, 986 S.W.2d 216, 219 (Tenn. Ct. App. 1998) (citing Cohen
v. Cohen, 937 S.W.2d 823, 832 (Tenn. 1996); Ellis v. Ellis, 748 S.W.2d 424, 427 (Tenn. 1988);
Brown v. Brown, 913 S.W.2d 163, 168 (Tenn. Ct. App. 1994)).

         The trial court's classification, valuation, and division of marital property enjoys a
presumption of correctness on appeal and will be reversed or modified only if the evidence
preponderates against the trial court's decision. See Lancaster v. Lancaster, 671 S.W.2d 501, 502
(Tenn. Ct. App. 1984); Hardin v. Hardin, 689 S.W.2d 152, 154 (Tenn. Ct. App. 1983). "The trial
court is granted broad discretion in adjusting and adjudicating the parties' interest in all jointly owned
property. Its decision regarding division of the marital property is entitled to great weight on
appeal." Watters v. Watters, 959 S.W.2d 585, 590 (Tenn. Ct. App. 1997) (citing Batson, 769 S.W.2d
at 859). The fairness of the property division is judged upon its final results. See Wade v. Wade,
897 S.W.2d 702, 717 (Tenn. Ct. App. 1994) (citing Thompson v. Thompson, 797 S.W.2d 599, 604
(Tenn. Ct. App. 1990)).

        In the case sub judice, Husband first contends that the trial court erred in assigning values
to various assets of the parties. Husband supports this assertion by arguing that the evidence fails
to support such findings. The items of personalty which Husband alleges were improperly valued
include the following: firearms, a lawnmower, two trucks, two four-wheelers, two boats, seven deer
heads, and Husband’s 401(k) and pension plan. We agree with Husband. From our review of the


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record, with regard to these items, the court either assigned values without sufficient evidence or
assigned values outside of the range of the actual evidence offered.

         Husband further asserts that the court improperly valued the equity in the parties’ real
property. Specifically, Husband argues that the court erred in valuing the mortgages on the property
at $54,000.00. We agree. At trial, Husband testified that the total indebtedness on the property was
$62,000.00. In response, Wife testified that the combined indebtedness was approximately
$56,000.00. Accordingly, the value assigned by the trial court is outside the appropriate range and,
thus, is not supported by a preponderance of the evidence.

        Finally, Husband maintains that the trial court erred in determining the relative earnings of
the parties for the years 1999 and 2000. We agree with Husband with respect to the parties’ 1999
earnings. The W2’s of Wife admitted into evidence plainly show that she earned more than the court
found and that the court’s finding was contrary to the preponderance of the evidence.

        With regard to the classification of the parties’ property, Husband asserts that the trial court
erroneously classified two items. First, Husband argues that a truck, which the court found to be his
separate property, was his father’s. Husband points to his testimony at trial in which he indicated
that the truck was owned by his father and that he merely drove it sometimes. From our review of
the record, no evidence was offered by Wife in opposition to this testimony. Although Wife asserted
that Husband’s testimony was not entirely reliable, there was no additional proof before the court
upon which to act. Thus, we hold that the courts finding was contrary to the preponderance of the
evidence in determining that the truck was Husband’s separate property.

        Second, Husband asserts that the court improperly classified a certificate of deposit allegedly
given to him by his grandmother as marital property. Again, no evidence was offered to refute
Husband’s claim that the CD was a gift. Had any evidence been provided by Wife to the contrary,
the result might be different. However, with Husband’s testimony being the only evidence offered,
we hold that the evidence preponderated against the finding that the CD was marital property. We
take note of the fact that Husband’s marital fault cannot be taken into account in classifying and
dividing the parties’ property. See TENN. CODE ANN . § 36-4-121(a)(1) (2001).

        Finally, Husband’s last argument with respect to the classification and division of the assets
and liabilities concerns the allocation of two debts to Husband. First, Husband argues that the court
had no evidence upon which to support the requirement that he pay $1,000.00 to Jackson Madison
General Hospital. From our review of the record, we agree with Husband that no evidence was
offered with respect to this debt.

         Next, Husband argues that the court erred in ordering him to pay $733.00 of debt owed to
the Women’s Clinic. We disagree with husband’s assertion as to this debt. Although Husband
testified that Wife accrued this debt prior to the marriage, Wife testified to the contrary and offered
further proof in the form of an exhibit. Accordingly, we hold that this portion of the ruling was not
contrary to the preponderance of the evidence.


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        In sum, because this Court has reversed several findings made by the trial court with respect
to the property valuations and classifications, we remand this case to the trial court so that further
proof can be offered and a redetermination can be made.

        In his fifth issue, Husband asserts that the trial court erred in awarding costs and attorney’s
fees to Wife. Tennessee Rule of Civil Procedure 54.04 authorizes trial courts to award certain
discretionary costs incurred in a proceeding to the prevailing party. TENN. R. CIV . P. 54.04. When
awarding discretionary costs, as the name denotes, judges are given broad discretion and their
decisions will not be overturned on appeal unless the challenging party can clearly demonstrate an
abuse of discretion. See Placencia v. Placencia, 3 S.W.3d 497, 503 (Tenn. Ct. App. 1999) (citing
Perdue v. Green Branch Mining Co., 837 S.W.2d 56, 60 (Tenn. 1992)). We recently stated in
Milliken v. Crye-Leike Realtors, No. M1999-00071-COA-R3-CV, 2001 Tenn. App. LEXIS 472
(Tenn. Ct. App. July 5, 2001) the following with regard to discretionary costs:

                Generally, trial courts award such [discretionary] costs to whichever party
       ultimately prevails in the lawsuit, provided the prevailing party has filed a timely,
       properly supported motion. The successful party is not, however, automatically
       entitled to an award of costs. Instead, trial courts are free to apportion costs between
       the litigants as the equities of each case demand. Accordingly, if any equitable basis
       appears in the record which will support the trial court's apportionment of costs, this
       court must affirm. Moreover, on appeal, the appellant bears the burden of showing
       that the trial court abused its discretion in its assessment of costs. Sanders v. Gray,
       989 S.W.2d at 345 (citations omitted).Milliken, 2001 Tenn. App. LEXIS 472, at *35.

        Turning to the case sub judice, Husband has failed to show that the trial court abused its
discretion in any way by awarding certain costs to Wife. Accordingly, we affirm the trial court’s
decision in this respect.

        With regard to the attorney’s fees, this court has repeatedly held that an award for attorney’s
fees in a divorce case is treated as spousal support and should be characterized as alimony in solido.
Wild v. Wild, 66 S.W.2d 892, 894 (Tenn. Ct. App. 2001) (citing Sannella v. Sannella, 993 S.W.2d
73, 76 (Tenn. Ct. App. 1999); Smith v. Smith, 984 S.W.2d 606 (Tenn. Ct. App. 1997); Anderton
v. Anderton, 988 S.W.2d 675, 682 (Tenn. Ct. App. 1988); Gilliam v. Gilliam, 776 S.W.2d 81 (Tenn.
Ct. App. 1988)). With attorney’s fees being a form of alimony, courts must balance the factors given
in section 36-5-101(d)(1) of the Tennessee Code in determining a proper award. Because this Court
has reversed a portion of the lower court’s ruling, we are unable properly to analyze this issue. Upon
remand, the lower court should weigh again the factors given by statute in accordance with its new
findings.

        As a final matter, Husband has requested that this Court order Wife to pay his attorney’s fees
incurred for this appeal. Our supreme court has defined the factors that should be applied when
considering a request for attorney’s fees incurred on appeal. These factors include the ability of the
requesting party to pay the accrued fees, the requesting party’s success in the appeal, whether the
requesting party sought the appeal in good faith, and any other equitable factors that need be
considered. Folk v. Folk, 357 S.W.2d 828, 829 (Tenn. 1962). This Court has also held, however,
that “where both parties are partially successful on appeal,” attorney’s fees associated with that
appeal should not be granted. Baggett v. Baggett, 512 S.W.2d 292, 294 (Tenn. Ct. App. 1973)
(citing 27-B C.J.S. Divorce § 203, p. 882, n.71.10); see also Hunt v. Hunt, No.
M1997-00221-COA-R3-CV, 2000 Tenn. App. LEXIS 488, at *15-16 (Tenn. Ct. App. July 27,


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2000); Young v. Young, 971 S.W.2d 386, 393 (Tenn. Ct. App. 1997). Accordingly, because both
parties have been partially successful and because of the equitable circumstances of this case, we
decline to award Husband the attorney’s fees incurred for this appeal.

                                            Conclusion
        Based on the foregoing conclusions, we hereby affirm in part and reverse in part the decision
of the trial court. In addition, we remand this case for further proceedings consistent with this
opinion. Costs on appeal are assessed against the appellant, Leo Clifford Davis, along with his
surety for which execution may issue if necessary.



                                                      ___________________________________
                                                      ALAN E. HIGHERS, JUDGE




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