                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                       June 2000 Session

                 LOIS LYNN MILLER v. JAMES EARL MILLER

                A Direct Appeal from the Circuit Court for Davidson County
                  No. 98D-1144    The Honorable Muriel Robinson, Judge



                    No. M1999-00724-COA-R3-CV - Filed August 31, 2000


In this divorce, both Husband and Wife have appealed contesting the trial court’s division of marital
property and alimony awards. The division of marital property is affirmed, alimony awards are
modified, and the case is remanded for a determination of the value of Husband’s retirement plan
and a proper division thereof.

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

W. FRANK CRAWFORD , P.J., W.S., delivered the opinion of the court, in which DAVID R. FARMER ,
J. and HOLLY KIRBY LILLARD, J., joined.

Jack Green, Nashville, For Appellant, James Earl Miller

Robert L. Jackson, Nashville; Larry Hayes, Jr., Nashville, For Appellee, Lois Lynn Miller


                                             OPINION


         This is an appeal from a final decree of divorce by the Circuit Court of Davidson
County. Lois Lynn Miller (hereinafter “Wife”) filed a complaint for divorce against James Earl
Miller (hereinafter “Husband”) on April 8, 1998. After a non-jury trial, the trial court awarded the
divorce to Wife on the grounds of inappropriate marital conduct. The final decree awarded alimony
in futuro, alimony in solido, and attorney fees to Wife and classified and divided the parties’ marital
property. Husband has appealed, and Wife also presents issues for review.

     The parties were married in January of 1988. At the time of the marriage, Husband was 48
years old, and Wife was 58 years old. The marriage lasted 11 years. There were no children of the
marriage. After about three years, the marriage began to deteriorate, but the parties continued to live
together. The parties did not acquire title or interest to real property but lived in an apartment that
had been occupied by Husband before the marriage. Husband’s total income during the marriage
was $363,086.00. Wife’s total income during the marriage was $214,867.00. Throughout the
marriage, Husband paid the rent and utilities. Wife purchased all of their groceries and cleaning
supplies, as well her own clothes, car, and gasoline.

        Wife filed for divorce alleging inappropriate marital conduct on the part of Husband and
irreconcilable differences. A trial was held on September 20, 1999. At the time of trial, Husband
was 60 years old, and Wife was 70 years old. Wife testified that she worked throughout the marriage
until 1998, when she applied for and was granted social security benefits in the amount of $963.00
per month and medicare coverage. Wife testified to monthly expenses of $1,432.00.

        Husband testified that during the marriage, he worked for Avco, which was subsequently
known as Textron, and then Aerostructures. Prior to the marriage, Husband had retirement funds
and stocks in mutual funds. Husband testified that Wife signed a waiver making Husband’s children
the beneficiaries of a Lincoln Life account. Husband further stated that all accounts were established
prior to the marriage and that neither party contributed to accounts during the marriage. The
accounts included a Heritage Federal Credit Union Account, a CD with J.C. Bradford, a CD with
Heritage Federal, two Lincoln Life IRAs, and a Textron pension fund.

         At the close of proof, the court stated from the bench that the demise of the marriage after
2 ½ years was the fault of both parties, but that they chose to continue to live together and “be
basically miserable for 8 years.” The court found that during the marriage the parties chose to keep
their finances separate, maintaining separate checking accounts, paying separate bills, and keeping
separate retirements and 401(K) accounts. The court noted, however, that Wife paid for their shared
groceries in addition to her own expenses, allowing the Husband to “compile a sizeable estate.” The
court found that although Wife made no monetary contributions, she maintained the marital home
for 11 years. The trial court noted that Wife is 10 years older than the Husband, is retired, is on a
fixed income, and has health problems.

       A final decree granting Wife a divorce was entered on September 29, 1999. The final decree
divided the property as follows:

                       IT IS FURTHER, ORDERED, ADJUDGED and DECREED
               by the Court that the following non-marital accounts shall be awarded
               to Mr. Miller: Heritage Federal Credit Union account 402500173
               (Money Management Account); Heritage Federal Credit Union
               account 402500173 (Prime Share Account); Heritage Federal Credit
               Union account 402500173 (Checking Account); IDEX II Mutual
               Fund account 1000131757; the J. C. Bradford Certificate of Deposit;
               the Heritage Federal Certificate of Deposit; Lincoln Life IRA account
               XX-XXXXXXX; and Lincoln Life IRA account 96-900817.




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                     IT IS FURTHER, ORDERED, ADJUDGED and DECREED
              by the Court that the following marital assets shall be awarded to
              Mrs. Miller: $7,000.00 of Dean Witter Fund account 303-043020;
              Dean Witter Fund account 308-052604-054 (inheritance).

                      IT IS FURTHER, ORDERED, ADJUDGED and DECREED
              by the Court that the following accounts are deemed marital property
              to be equally divided between the parties: Aerostructures Corporation
              401 (K) account 402500173-62532, approximately $24,000.00; the
              Delaware Group Roth IRA account 600005455, approximately
              $1,856.46; Essential Service Inc. Profit Sharing Sun Trust account
              XXX-XX-XXXX, approximately $20,920.55; Essential Service Inc.
              401(K) account 465402982, approximately $17,668.00. The balances
              in these accounts shall be divided equally between the parties with the
              value determined as of September 20, 1999.

Wife was awarded alimony in futuro of $850.00 per month until death or remarriage and alimony
in solido of $65,000.00. She was also awarded $4,500.00 in attorney fees.

       Husband appeals, bringing three issues for review:

       Wife alimony in solidotrial court abused $65,000.00? in awarding
             1. Whether the in the amount of its discretion

       awarding Wife alimony in futuro abused its discretion in
             2. Whether the trial court of $850.00 per month?

              3. Whether the trial court abused its discretion in awarding Wife her
              attorneys fees in the amount of $4,500.00?

       Wife raises additional issues on appeal:

              1. Whether the trial court erred in classifying the following assets as
              Husband’s separate property, thereby failing to make an equitable
              distribution thereof?

                      a. The Heritage Federal Credit Union Account, with
                      a value of $2,050.00; the CD with J.C. Bradford, with
                      a value of $79,000.00; and the appreciation in value in
                      the amount of $31,899.00 of Husband’s CD with
                      Heritage Federal with value of $98,015.00

                      b. The appreciation in value in the amount of
                      $120,735.00 of the Idex II Mutual Fund, with value of
                      $136,831.00


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                            c. Lincoln Life IRA, with value of $71,860.00

                            d. Lincoln Life IRA with value of $162,824,00

                            e. Husband’s vested retirement plan with his current
                            employer.

                   2. Whether Wife should be awarded her attorney’s fees on appeal?

        Since this case was tried by the trial 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. Tenn .R. App.
P. 13(d).

         Husband contends that the trial court awarded excessive alimony. He argues that the trial
court did not properly consider the three most important elements in determining alimony awards:
duration of the marriage, need of the wife, and non-marital assets of the husband. Husband contends
that this was a marriage of short duration, with the parties living as husband and wife for a minimum
of two, and a maximum of four years. Husband further asserts that Wife has social security
payments of $963.00 per month, Medicare insurance, an inherited amount1, with an estate acquired
during the marriage of $92,134.27. Husband contends that Wife has sufficient monies of her own
and does not need, nor has she demonstrated the need for, the amount of alimony awarded by the
trial court. With regard to the trial court’s award of $65,000.00 in alimony in solido, Husband
asserts that the only possible basis for the trial court’s award was the value of the stock that he
acquired prior to the marriage.

       Regarding Husband’s Aerostructures Federal Credit Union Account (later called Heritage
Federal Credit Union), Wife claims that during the marriage he deposited some of his paychecks,
monies from matured CDs, and disability payments into that account. Wife contends that the J.C.
Bradford CD was acquired during the marriage. Wife asserts that funds in the Credit Union account
and funds to purchase the CD were co-mingled with marital funds. Wife claims to be entitled to an
equitable division of the increase in value of Husband’s investments during the marriage (particularly
his Idex fund), because she made a significant and substantial contribution to this marriage. Wife
also asserts she is entitled to an equitable division of the increase in value of Husband’s IRAs.

         In her brief, Wife submits that the trial court’s award of alimony in solido was most likely
in lieu of an equitable division of the increase in value of Husband’s assets during the marriage. She
further concedes that it would be improper to award her both alimony in solido and an equitable
division of Husband’s assets.


         1
                    At trial, the Wife testified to having inherited a total of $26,838.00 from her father’s estate in 1996.
Exhibit N o. 4 is a cop y of che cks dated May 2 1, 1996 and M ay 14, 1 996 totalin g that am ount.

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        We address the trial court’s division of property first. In Batson v. Batson, 769 S.W.2d 849
(Tenn. Ct. App. 1988), the Middle section of the Tennessee Court of Appeals addressed the issue
of division of property in a divorce. The first order of business for a trial court in the division of
property is to classify the property, giving each party their separate property, and then dividing the
marital property equitably. Batson, 769 S.W. 2d at 856. (citations omitted).

       T.C.A. § 36-4-121 (1996) defines marital property as follows:

                       (1) (A) ‘Marital property’ means all real and personal
               property, both tangible and intangible, acquired by either or both
               spouses during the course of the marriage up to the date of the final
               divorce hearing and owned by either or both spouses as of the date of
               filing of a complaint for divorce, except in the case of fraudulent
               conveyance in anticipation of filing, and including any property to
               which a right was acquired up to the date of the finial divorce hearing,
               and valued as of a date as near as reasonably possible to the final
               divorce hearing date.
                       (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 pension, retirement or other fringe benefit rights
               accrued during the period of the marriage.
                       ( C ) As used in this subsection, “substantial contribution”
               may include, but not be limited to, the direct or indirect contribution
               of a spouse as homemaker, wage earner, parent or family financial
               manager, together with such other factors as the court having
               jurisdiction thereof may determine.

       Specifically, Wife first takes issue with the classification of the Heritage Federal Credit
Union Accounts, the Bradford CDs, and the Heritage CD as Husband’s separate property. The
record shows that at the time of the marriage, Husband had a credit union account known as
Aerostructures Federal Credit Union. In 1991, that credit union account became the Heritage Federal
Credit Union. Husband testified to buying CD’s with money from the Heritage Federal Account
during the marriage, including the J.C. Bradford CD and the Heritage CD. Wife contends that
Husband’s activity with regard to the Heritage Federal Credit Union Account constitutes a
commingling of separate funds in the Heritage Federal Credit Union Account with marital funds,
thereby rendering the $2,050.00 balance in the account marital property and subject to an equitable
division by the trial court.

         In response to a direct question from the court, Husband testified that neither he nor Wife
made any contribution to these accounts during the marriage. The trial court evidently accredited
this testimony. The weight, faith, and credit given to the testimony by the trial court in the first
instance is to be given great weight on appeal. See Haverlah v. Memphis Aviation, 674 S.W.2d

                                                 -5-
297, 302 (Tenn. Ct. App. 1984). The evidence does not preponderate against the trial court’s
findings that these accounts are Husband’s separate property.

        Next, Wife asserts that the Idex fund, valued at approximately $19,000.00 at the time of the
marriage and approximately $136,814.00 at the time of trial, should have been classified as marital
property by the trial court and equitably divided. Wife contends that she made a significant and
substantial contribution to the marriage and that her efforts made it possible for Husband to allow
his investments to grow over the 11 years of the marriage. Wife asserts that the trial court should
have awarded her an equitable division of the approximately $117,814.00 increase in value of
Husband’s Idex Account.

        Regarding T.C.A. § 36-4-121 (b)(1), our Supreme Court stated in Ellis v.Ellis, 748 S.W. 2d
424, 427 (Tenn. 1988), that the only condition imposed for treating any increase in the value of
property during the marriage as marital property is that “if each party substantially contributed to
its preservation and appreciation.” Whether the non-owner spouse made a substantial contribution
to an increase in equity is a question of fact. Cohen v. Cohen, 937 S.W. 2d 823, 833 (Tenn. 1996)
(citing Brown v. Brown, 913 S.W. 2d 163, 167 (Tenn. Ct. App. 1994)). In Wade v. Wade, 897
S.W.2d 702 9Tenn. Ct. App. 1994), the Court held that the appreciation of stocks owned by the
husband prior to the marriage was marital property due to wife’s substantial contribution to the
preservation and appreciation of the stocks. In so ruling, the Wade Court found that the husband’s
stock appreciated while the wife supported the husband with her earnings, and made indirect
contributions as a homemaker, wage earner, parent, and family financial manager, and also that she
made direct contribution to the managing of the stocks. Id. at 714 - 15. In Smith v. Smith, 709
S.W.2d 588 (Tenn. Ct. App. 1985), the Court held that the wife’s efforts as a wife, homemaker, and
mother alone contributed to the value of the husband’s law practice, thereby recognizing indirect
contributions of a non-owner spouse as a substantial contribution. Id. at 591. See also Batson v.
Batson, 769 S.W. 2d at 858.

        In the instant case, the parties lived virtually separate lives for all but the first two years of
the marriage. Wife testified that she furnished groceries and cooked most of the meals. Husband
testified that he paid for the rent and utilities. Other than these contributions by both parties, they
pursued their individual ways. Wife supported herself, made her own investments, and generally
made her own way.

        By the same token, Husband did likewise. There is no proof that Husband made any
contribution to this fund from his marital income. Under the peculiar facts of this case, we do not
find that the evidence preponderates against the trial court’s finding that the increase in value of the
Idex fund is not marital property.

        Wife also takes issue with the trial court’s treatment of the two Lincoln Life IRA accounts
as separate property of Husband. Husband testified that one Lincoln Life IRA, valued at
approximately $72,910.00 at the time of trial, was valued at approximately $34,259.00 when he
rolled it over in January of 1995 from the Idex fund. As previously noted, the Idex fund and its
increase in value is Husband’s separate property, and thus the roll-over to the Lincoln Life IRA

                                                   -6-
constitutes Husband’s separate property. As to the other Lincoln Life IRA, Husband testified that
$38,300.00 was transferred from a 401(K) plan in 1996. The funds in the 401(K) plan included
contributions made by Husband from his salary during the period from 1988 to 1996. Under these
circumstances, the contributions of the 401(K) plan constitute marital property.

        Finally, Wife contends Husband has two traditional retirement accounts: the Avco Plan,
which accumulated when the company that employs him was know as Avco, and the Textron Plan,
which began accumulating after his employer changed its name to Textron, around the time of the
marriage. Wife asserts that Husband admitted that all of the monthly payments after retirement to
which he is entitled under the Textron Plan were accumulated during the marriage. Wife argues that
$200.00, the portion of Husband’s retirement benefit attributable to the Textron plan, is marital
property and that she should therefore receive an equitable portion of that amount, $100.00. The trial
court did not address either of these retirement accounts specifically in its final decree.

       Marital property includes the value of “pension retirement or other fringe benefit rights
accrued during the period of the marriage,” T. C. A. § 36-4-121(b)(1)(B), with no regard to the other
spouse’s contribution during the marriage. Cohen v. Cohen, 937 S.W. 2d at 830; Kendrick v.
Kendrick, 902 S.W.2d 918, 926 (Tenn. Ct. App. 1994). Consequently, marital property includes any
increase during the marriage in the value of retirement or pension rights, regardless if growth be
through passive growth, or through either party’s direct or indirect contribution. Umstot v. Umstot,
968 S.W.2d 819, 822 (Tenn. Ct. App. 1997).

        Only the portion of retirement benefits accrued during the marriage are marital property
subject to equitable division. The value of retirement benefits must be determined at a date as near
as possible to the date of the divorce. Cohen v. Cohen, supra.

       Husband testified the Textron retirement plan was begun sometime close to the time of the
marriage. Husband also testified that under both plans he would receive approximately $725.00 per
month in benefits. Approximately $525.00 per month would come from the old Avco Plan, and the
remaining $200.00 would be derived from the Textron plan.

         It appears from the record that Husband’s retirement plan with Textron accrued during the
marriage, but we cannot ascertain from the record the value of that accrual. Upon remand, the court
should determine the value of this marital asset and make a proper division thereof.
         Husband’s first issue is whether the trial court abused its discretion in awarding Wife alimony
in solido in the amount of $65,000.00. There is no clear statement in the trial court’s final decree, or
in the record, as to the basis of the $65,000.00 figure. In her brief, Wife submits that the trial court’s
award of alimony in solido was most likely in lieu of and in the nature of an equitable division of the
increase in value of Husband’s assets during the course of this marriage. If that is the case, we would
agree with Wife that it would be improper to award her both alimony in solido and an equitable
division of Husband’s assets.

       T.C.A. § 36-5-101(d)(1) mandates that all relevant factors be considered by the trial court in
determining the nature, amount, length of term, and manner of payment of alimony, and enumerates

                                                   -7-
factors to be included in that consideration. Need and the ability to pay are the critical factors in
setting the amount of an alimony award. Umstot v. Umstot, 968 S.W.2d at 823; (citing Smith v.
Smith, 912 S.W.2d 155, 159 (Tenn. Ct. App. 1995)). “The propriety of awarding alimony as well
as the adequacy of the amount awarded depend upon the unique facts of each case.” Id. (citing Butler
v. Butler, 680 S.W.2d 467, 470 (Tenn. Ct. App. 1984)). The amount of alimony to be awarded is a
matter for the discretion of the trial court and should not be altered on appeal except where the record
reflects that discretion has been abused. Id. In view of the nature of the parties’ relationship and with
an award of alimony in futuro, we see no real entitlement to alimony in solido.

       Husband’s second issue, whether the trial court abused its discretion in awarding the Wife
$850.00 per month alimony in futuro, we again refer to the relevant statue, T.C.A. § 36-5-101(d) (1).
As the court noted in the final decree of divorce:

               Mr. Miller is gainfully employed and is ten years younger than Ms.
               Miller. She’s retired. She’s on fixed income. She’s still his wife.
               She’s ten years older. She’s got health problems that she’s described
               to the Court ....So they have just kind of existed in this state for the last
               8 years. But they’re still married until the gavel falls.

        According to Wife’s income and expense statement, she has ongoing expenses of $1,432.00
per month. Wife receives monthly social security benefits of $963.00. Wife testified that although
this marriage deteriorated after the first two years, the parties remained married. Therefore the
duration of the marriage is of 11 years, which she contends is not a short marriage. Wife testified that
she was supportive of Husband’s attempts as a recovering alcoholic, to remain sober by attending
meetings and was otherwise supporting his sobriety through the marriage. Wife asserts that despite
her support, Husband stopped communicating with her in 1990/1991 and began verbally abusing her,
often using profane language in her presence. Wife asserts that Husband rebuffed Wife’s attempts
to rekindle the marriage or to seek counseling for the marriage.

         Considering the fact that the court awarded this divorce to Wife, her fixed income, her need,
her age, and Husband’s ability to pay, an award of alimony in futuro is proper. However, we believe
a more appropriate award, after consideration of all factors, is $500.00 per month.
         Husband’s third issue is whether the trial court erred in granting the Wife an award of
$4,500.00 in attorney’s fees. In determining whether to award attorney fees, the trial court should
consider the relevant factors enumerated in T.C.A. § 36-5-101(d)(1). See Umstot v. Umstot, 968
S.W.2d at 824; (citing Kincaid v. Kincaid, 912 S.W. 2d 140, 144 (Tenn. Ct. App. 1995)). Where one
party shows that it is financially unable to afford counsel, and the other party has the ability to pay,
that trial court may properly order the other party to pay attorney’s fees. Id. Such an award is within
the sound discretion of the trial court and should not be disturbed on appeal, unless the evidence
preponderates against the award. Id. A party with adequate income and property is not entitled to
an additional award of alimony to compensate for attorney fees and expenses. Id. (citing Duncan
v. Duncan, 686 S.W.2d 568 (Tenn. Ct. App. 1984)).



                                                   -8-
               These awards are appropriate, however, only when the spouse seeking
               them lacks sufficient funds to pay his or her own legal expenses,
               Houghland v. Houghland, 844 S.W.2d 619, 623 (Tenn. Ct.
               App.1992); Ingram v. Ingram, 721 S.W.2d at 264, or would be
               required to deplete his or her resources in order to pay these expenses.
                Harwell v. Harwell, 612 S.W.2d 182, 185 (Tenn. Ct. App. 1980).

Brown v. Brown, 913 S.W.2d 163, 170.(Tenn. Ct. App. 1994).

        Where one party has been awarded additional funds for maintenance and support and such
funds are intended to provide the party with a source of future income, the party need not be required
to pay legal expenses by using assets that will provide for future income. Batson v. Batson, 769 S.W.
2d at 862 (Tenn. Ct. App. 1988). Thus, where the wife has demonstrated that she is financially unable
to procure counsel, and where the husband has the ability to pay, the court may properly order the
husband to pay the wife's attorneys fees. Harwell v. Harwell, 612 S.W.2d 182, 185 (Tenn. Ct.
App.1980); Palmer v. Palmer, 562 S.W.2d 833, 839 (Tenn. Ct. App.1977); Ligon v. Ligon, 556
S.W.2d 763, 768 (Tenn. Ct. App.1977).

       In the instant case, the trial court awarded Wife a portion of her attorney fees, stating in
pertinent part:

                       IT IS FURTHER, ORDERED, ADJUDGED and DECREED
               by the Court that Mr. Miller has not been forthright on getting together
               information, therefore, counsel for Mrs. Miller had to do a lot of work,
               therefore, the court does award attorney fees to Robert L. Jackson and
               Larry G. Hayes in the some of $4,500.00, which fee shall be Taxed to
               the Defendant, James Earl Miller, for the representation of the wife,
               along with the cost of this cause, for all of which execution may issue,
               if necessary.

In addition, the record indicates that Wife is not able to afford counsel without drawing on funds
intended for her future living expenses. She is retired and on a fixed income, therefore there is no
expectation of increased earnings in the future. We believe that the evidence does not preponderate
against the trial court finding and award to Wife of $4,500.00 for her attorney’s fees.

        In summary, the trial court’s final decree is modified to award alimony in futuro of $500.00
per month. The trial court’s award of $65,000.00 as alimony in solido is reversed, and the case is
remanded to the trial court for a determination of the value of Husband’s retirement plan with Textron
and the value of the Lincoln Life IRA rolled over from a 401 (K) plan. The court should then make
an equitable division thereof. The decree of the trial court in all other respects is affirmed. Each
party will pay their own attorney fees on appeal, and costs of the appeal are assessed equally to the
parties, Lois Lynn Miller and James Earl Miller.



                                                 -9-
__________________________________________
W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.




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