                    IN THE COURT OF APPEALS OF TENNESSEE
                                  AT KNOXVILLE
                         Submitted on Briefs, October 28, 2004

           RHONDA ELAINE BOLICK v. RONALD DALE BOLICK

             Direct Appeal from the Circuit Court for Hamilton County
 No. 03D1402 Hon. W. Frank Brown, III, heard by interchange for W. Neil Thomas, III.
                                      Judge



               No. E2004-00369-COA-R3-CV - FILED NOVEMBER 29, 2004



Husband appeals property settlement award to wife in divorce action. On appeal, we affirm.


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


HERSCHEL PICKENS FRANKS, P.J., delivered the opinion of the court, in which CHARLES D. SUSANO ,
JR., J., and D. MICHAEL SWINEY , J., joined.


John T. Rice, Chattanooga, Tennessee, for Appellant.

James A. Meaney, III, Chattanooga, Tennessee, for Appellee.



                                             OPINION


                In this divorce action, the sole issue on appeal by the husband is that the Trial Court
erred in allocating the wife any portion of the husband’s 401(k) retirement, on the grounds that she
did not make a substantial contribution to the retirement fund.

               The parties were married on March 20, 2001 and the case was tried on November 11,
2003 on stipulated grounds and the parties were divorced.

               Since no transcript of the evidence has been filed, we conclusively presume that the
Trial Court’s findings of fact are correct. State v. Oddy, 823 S.W.2d 554 (Tenn. Criminal App.
1991). The Sole issue raised on appeal as stated by the appellant, is:

               The Chancellor/Trial Judge erred in application of Tenn. Code Ann. § 36-4-121(b)(1)
               in allocating to the wife any portion of husband’s 401(k) retirement, without finding
               she made a substantial contribution.

               After the Trial Court’s initial Judgment, appellant filed a Motion to Alter or Amend
the Judgment and/or Relief from Judgment, and submitted his affidavit, copies of certain statements
on his 401(k) account and a Memorandum. Responding to the Motion the Trial Court said:

                       Neither party was helpful to the court in developing the facts about Mr.
               Bolick’s 401(k) plan with Rooms-to-Go at the trial. Based upon one written exhibit
               and the oral testimony, the court calculated that Mr. Bolick’s contributed $24,000.00
               of the salary he earned during the marriage to the 401(k) account. The court
               concluded that $10,000.00 from the 401(k) to Ms. Bolick would be equitable.

Upon analysis of the additional documentation, the Court said that an award of $8,000.00 was more
appropriate than the initial $10,000.00 awarded, and explained the basis of his ruling:

                      The court differentiates between payments from salary during a marriage
               made to a retirement plan and the increase in value of the plan during marriage
               caused by market conditions. T.C.A. §36-4-121(b)(1)(A)’s definition of “Marital
               Property” does not contain a requirement that the other spouse substantially
               contribute to such asset, as is true with an increase in value of separate property. See
               Wilson v. Moore, 929 S.W.2d 367, 373-74 (Tenn. Ct. App.) perm. app. denied
               (1996) where a husband’s contributions from martial salary to a premarital retirement
               account was held to be marital property.

              The Court, in its original Decree had allowed appellant to avoid transfer of a
$10,000.00 portion of his 401(k) plan by transferring $9,000.00 cash to the wife. The amended
Order provided:

               . . . to delete $10,000.00 and substitute $8,000.00 in lieu thereof as the amount of his
               401(k) plan that Mr. Bolick must transfer to Ms. Bolick and the cash buyout of
               $9,000.00 is reduced to $7,200.00.

                Appellant insists that since the Trial Court did not find that the wife had contributed
to the increase in the value of the retirement account, that she was not entitled to the award made by
the Trial Court. Appellant misapprehends the Trial Court’s ruling. The Trial Court ruled that the
contributions made to the retirement plan from appellant’s salary were marital property pursuant to
Tenn. Code Ann. § 36-4-121(A)(3)(1)(a). Clearly, the Trial Court did not rule that the wife was
entitled to a share of any increase in the 401(k) fund during the marriage, but rather based his
decision on the marital property paid into the 401(k) plan by the appellant.


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              We affirm the Judgment of the Trial Court and remand, with the cost of the appeal
assessed to Ronald Dale Bolick.




                                                    ______________________________
                                                    HERSCHEL PICKENS FRANKS, P.J.




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