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# FILED March 31, 2000 Cecil Crowson, Jr. Appellate Court Clerk 

### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE

F. G. SUTTON, ) NO. E1999-00302- COA-R3-CV ) Plaintiff/Appellee, ) Appeal As Of Right From The ) BLOUNT CO. CI RCUIT COURT v. ) ) HON. W. DALE YOUNG, J. W. SUTTON, ) JUDGE ) Defendant/Appellant )
For the Appellant: For the Appellee: Charles M. Clifford Jerry G. Cunningham 339 High Street Melanie E. Davis Maryville, TN 37804 329 Cates Street Maryville, TN 37801
REMANDED SWINE Y, J. 

### O P I N I O N
In this divorce action, J. W. Sutton (“Husband”) appeals the Trial Court’s division of the marital estat e, the Tr ial Cou rt’ s va lua tio n of the mar ita l ho me w hic h red uced its val ue b y a seven percent real

estate sales comm

ission although the

house was never

sold, and the awar

d to F. G. Sutton (“Wife”) of her attorney’s fee. We find the record contains insufficient proof on the real estate commission and Wife’s attorney’s fee. Accordingly, we remand the case to the Trial Court for further proceedings on those two issues consistent with this Opinion.2 BACKGROUND These parties were married on May 14, 1994. Wife filed this Complaint for divorce, alleging inappropriate

marital conduct by Husband, on September 18, 1998. One month later she fileda Motion to Amend the Complaint in which she alleged specific inappropriate marital conduct and sought a Temporary

Restraining Order to prevent Husband from coming about her at work or at the marital home. Husband answere d, denying

inappropriate

marital conduct and contesting the motion for restraining

order because

Wife had left the ma

rital home

when she filed the Complaint. On November 12, 1998, the Trial Court filed an Order declaring the parties’ agreement that Husband would move out of the mar

ital home “taking

with him hispersonal belong ings and items

which he may have broug ht into t he marriage” and Wife would have exclusive possession of the home and
assume responsibility for the mortgage pay ments and not incur

“large charges.” The case was tried
on March 10, 1999, at which time Husband stipulated that Wife was entitled to an absolute divorce basedon Husband’s inappropriate marital conduct and stated that the only issue was “the division of marital property and the assignment of separate prope rty versus marital property.” Wife’s father, Glenn Grubb, testified that he and Wife’ s mot her purchased and developed

Clearview Subdivision and Panoramic View Subdivision and ga ve lots to two of thei

r children. They gav

e their daughter (Wife) and her Husband a five-acre tract. Rev. Grubb does not know its exact value, butthe tract next to it, “not as good a lot,” sold for $35,000. The lot Wife and Husbandwere given will never have additional houses built on it becau se of county flood control specifications.

Rev. Grubb is trying to buy another five -acre lot nearby for $45,000. To treat all five of the ir c hil dren equ all y, the Grubbs gave each of their other three children $25,000 in cash. Rev. Grubb testified that his daughter and Husband built a home on the five-acre tract less than three years3

beforethe divorce hea

ring. The house

needs some repa

ir work at a cost

of about $2,000 because the wrong lumber apparently was used to build the front porch.

Wife testified that

the marital home has two mortgages. One mortgage is for $81,000 to Amer ican Fidelity an

d another is for $2 1,000 to Farm Cred it Services. Wife ha

d the property appraised in September 1998, because she wanted a divorce and wanted an agree ment with Husband that the property would be sold. They listed the house for sale

at $154,900, a price somewhat higher than the appraisal. After two weeks, they took the house off the market. She thinks t he house would sell for $145,000 to $15 0,000. The curre nt mortgage pa

yments a re $750 p er month and $300 per month. She thinks the parties’ interest in the house should be divided equally. She testified that the parties have other marit

al debt, including

a personal loan f

rom I.C. Meyers with a balance of $3,000,
an acc ount at Sear s with a balance of $1,950, and a Discover credit card balance of $2,000. She statedthat she and Hus ban d ha ve al read y div ide d th eir pers ona l pr ope rty, and she wants to keep the part that is in her possession, including the living room furniture, which she purchased for $3,875 during the marriage. She also wants to keep her car, a 1992 Chevy

Lumina, and for Husband to keep his two vehicles, a Chevy Blazer and a 1970 pick-up truck.

Husband injured his back onthe job, the same week they moved into their

new home. He was off work and received worker ’s compensat ion benefits for temporary total disability. He later received a cash settlement of $12,500 for permanent partial disability, and much of that settlement

was used to pay marital deb t . Later in the marriage, Husband also received unemployment

compensation benefits totaling $1,280, which he used for marital expenses “to keep the lights on, groceries.” At the time of trial, Wife was working two j obs, one ful l-time at the University

of Tennessee, earning $16.75 per hour, and one part-time, earning $21.00 an hour. Wife4

testified that during the time that Husband was unable to work because of his back injury, she worked nearly

80 hours per wee

k to pay the f

amily expense

s. Husbandtestified that he currently works full-time as a welder at Jones Brothers and
earns $10.50 per hour plus overtime. He thinks the marital house should be listed for $159,900, and he thinks that was the l

isting price whe

n it was on the marke

t earlier. He ag

rees with Wife that the equity in the marital home should be divid ed equally

between the parties. He was injured on the job andwas awarded eleven percent permanent partial disability to t

he body as a

whole, a $12,500 c

ash settle men t. Within one week after receiving the settlement, he used all of these funds on marital expenses and to pay off marital debt. He went back to work. He was assigned heavy lifting, which he could not do, and so he quit the job.

Husbandtestified that he should be awarded some personal property not then in his possession, including the garden tiller, living room furniture, bar stools, refrigerator and microwave. He testified that “I’m trying to divide every thing equally, and, wi

th he r Chevrolet car,

I think it
comes out about the same, an equalamount.” He stated that his truck was not running and was not worth fixing, and that he had originally paid $875 for it.

After the testimony of the three witnesses, the Trial Court stated: I’m goi ng to waive your arguments and ask y ou to submit a written proposeddivision of assets and liabilities for the Court’s review, and, to do that by March 19 th

. . . . On March 16, 1999, Wif e’s attorney

filed a lette

r wi th the Trial Court setting out Wife’s proposed proper

ty settlemen

t. The letter proposed that the Trial Court set the value of the marital home as $150,000. Wife furthe r proposed, as pe

rtinent on appeal : Accordingly, if the property were sold through a realtor as proposed5 by Mr. Sutton, the real

estate fee would be

th e standa rd 7%. This would amount to

$10,500.00. When this amount is subtracted from the proposed valuation of $150 ,000. 00, it leaves a figure of $139,500.00. From that figur e, of course, the

re exists two mortgages which both the testimony of Mr. and Mrs. Sutton indicated to be a total of $ 102,000.00. Subtracting the $102,000.00 from the $139,500.00 leaves $37, 500.00 which we submit would be the true equity figu re re mai nin g if t he p rop ert y were listed and sold at the $150,000.00. When the $37,500.00 is divided betwee

n the parties, this would give each party $18,750.00. Our settlement proposal would be th at Ms. Sutton tender to Mr. Sutton the amount of $18,750.00 for his int

erest in the real pr

operty . * * * . . . Ms. Sutton would retain the living room furniture . . . . * * * That Mr. Sutton be orde red to pay Jerry G. Cunningham a supplemental

attorney fee in the amoun t of $ 2,500.00 [emphasis added]
. On March 17, 1999, Hu

sband fil ed “De fendant’s Proposed Distribution of Marital Assets and Liabilities” in the Trial Court. In that document, Husband proposed, as pe r tinent, that Wife receive pers onal proper ty valued at $8 ,095.00, i ncluding the li ving room furnitu re, while Husbandrece ive p ersonal property valued at $2,176.00, that all marital debts be paid in full upon the saleof the parties’ real property, and that the real proper ty be listed for sale and, when sold, the proceeds of the

sale be distribute

d as follows: First, to the Defendant Husba nd the sum of $6,250.00 representing one-half (l/2) of the worker’s compensation permanent partial disability benefits h e received an d invested in the marri age through the payment of marital debt or improvement of the parties’ residence. Second, the remaining proceed s would be equally divided between the parties, with

the Plaintiff Wife, however, paying the Husband the sumof $2,959.00 from her share of the proceed s to equa lize the6 div isi on o f th e par tie s’ m ari tal pers ona l pr ope rty. On March 24, 1999, the Trial Court filed a Memorandum which directed: The Court has received and con sidered the proposed division of assets and liabilities from both parties and conclud e s that Mrs. Sutton’s proposal is fair,

just and equitable

and the Court adopts Mrs. Sutton’s proposal a

s the Order of the

Court. Mr. Cunningham will prepare an appropriate Order, pursuant to the provisions of this Memorandum , submit same to Mr. Cliffordfor his approval as to form, and the Order will be tendered to the Court for entry not later than twenty (20) days f

rom the date of this Memorandum, taxing the costs to Mr. Sutton. The divorce Judgment f

iled on April

23, 1999 orders, as pertinent, that Wife receive the marital home and tender to Husband the sum of $18,750 for his interest in said real property. The figure$18,750 was appar ently arriv

ed at, as described in Wife’s proposal, by assuming that “if the property were sold through a

realtor as prop osed by Mr. Sutton, the real estate fee would be the standard7%. This would amount to $10,500.00.” The Judgment also provides that

Wife is to pay indebtedness

owing to Icie

Myers, Disc

over Card and Sea

rs C ard in t he amount of $7,500.00 and to deduct 1⁄2 of that amount ($3,750.00) from the $18,750.00 owing to Husband for his interest in the real property. The net result is that Husband receives $15,000.00 for his share of the parties’ equ

ity in the marital home after receiving credit for his share of the debts, $3,750. Wife receives the living
roomfurniture. Husband must pay Wife’s attorney “a supplemental attorney ’s fee in the amount of $2,500.” DISCUSSION

In this appeal, Husband first raises the issue that the Trial Court erred in awarding
more than 50% of the marital property to Wife because T.C.A. § 36-4-121(c) mandates an equit able7

division of

assets and l iabiliti es. Next, h e argues that the Trial C ourt erred i n deductin g a real estate commission from the value of theparties’ real property when the property was awarded to Wife and not sold. Finally, Husband argues that the Trial Court erred in awarding Wife an attorney’s

fee in the amount of $2,500.00.

Our review is de novo upon the record, accompanied by a presumption of the
correctness

of the findings of fact of the Trial Court, unless the preponderance of the evidence i s otherwise. R u le 13(d), T.R.A.P.; Davis v. Inman, 974 S.W.2d 689, 692 (Tenn. 1998). A Trial Court’s conclusions of law are s ub ject to a de novo review with no pre sumption of corre

ctness. Ganzevoort v. Russell, 949 S.W.2d 293 (Tenn. 1997).

We address Husb and’s fi rst two issues toge ther. Dividing a

marital estate is n

ot a mechanical process but rather is guided by considering the factors in T.C.A. § 36-4-121(c). Kinard v. Kinard, 986 S.W.2d 220, 230 (T enn. Ct. App. 1998) . That statute prov ides: (c) In making equitable di vision of marital property

, the court shall c

onsider all relevant fac tors inclu ding: (1) The duration of the marriage; (2) The age, physical and mental health, vocational ski lls , emp loya bil ity, earning capacity, estate, financial liabilities and financial needs

of each of the pa

rties; (3) The tangible or intangibl e co ntribution by one (1) party to the edu cat ion , tr ain ing o r in crea sed earn ing p owe r ofthe oth er pa rty; (4) The relative ability of each party for future acquisitions of capital assets and income; (5) The contribution o

f each party

to the acquisiti on, preservation, appreciationor dissip a tio n of the mar ita l or sep arat e pro pert y, including the contribution of a party to the marriage as a homemaker , wage earner or pare

nt, with the contribution of a party as homemaker8 or wage earner

to be given the sa

me weight if

each party has fulfilled its role; (6) The val ue o f th e sep arat e pro pert y of ea ch p art y; (7) The estate of each party at the time of the marria ge; (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; and (10) Such other factors are necessary to consider the equities between the parties. Applying the statutory factors, the record in this case shows a mar riage of short duration. The parties are both 43 years old, a nd Wife is in good he

alth with good voc

ational skills, employabilit

y and earning capacity. Husband has some perm anentdisability from a work-related inj ury. However, Husba

nd was able to wor

k full-time when th

is matter came to trial. Wife was the primary w age earn er during the marriage and made a much greater financial contribution to the acquisition of marital property than did Husband because her earning power was much greater. Neither party has su

bstantial separa

te property or had a substantial separate estate at the time of the marriage. Courts have wide discre tion when determin

ing how to

divide a marital e

state in an equitable manner. Fisher v. Fisher, 648 S.W.2d 244, 246 (Tenn. 1983). Their discretion is guided by the factors listed in T.C.A. § 36-4-121(c) and by other factors made relevant by the facts of the particul ar case. Ellis v. Ellis, 748 S.W.2d 424, 427 (T enn. 1988); Denton v. Denton, 902 S. W.2 d 930, 932 (Tenn. Ct. App. 1995). The trial court’s division of marital proper ty need not b

e equal to b e equitable. Hardin v. Hardin, 979 S.W.2d 314, 317 (T enn. Ct. App. 1998) ; Ford v. For d, 95 29

S.W.2d 824, 825 (Tenn. Ct. App. 1996). Reviewing courts give great weight to a trial court’s distributi on of marit al property and will not disturb its decision unless it is contrary to the preponderance

of the evidence. Wilson v. Moore, 929 S.W.2d 367, 372 (Tenn. Ct. App. 1996); Wade v. Wade, 897 S.W.2d 702, 715 (Tenn. Ct. App. 1994).

Considering the evidence in the recordin light of the statutory factors, we find the Trial Court’s distribution of marital property in this case is not contrary t o the preponderance of the evidenceas an equitab le distr ibution. In lig

ht of the wide discr

etion given the T

rial Court in determining how to divide the marital estate in an equitable ma

nner, we find no r

eversible erro

r in the Trial Court’s decision to deduct from the parties’ equity in the

marital home an am

ount equal to
a reasonable

real estate comm

ission. Husband ask

ed the Trial Court t

o order that the r

eal property be listed for sale and the net proceeds of the

salebe distributed between Husband and Wife. If the Trial Court had proceeded as requested by Husband and ordered the property sold, areasonable real estate commission would have been incurred reducing the net proceeds to be distribut ed between Husbandand Wife by the amount of that commission. To that extent, Husband has received what he asked for, one-half of the net proceeds which,if the property had been sold, would ha

ve been less
a reasona ble real e state com mission. We

find no error in TrialCourt’s exercise o f its discretion to arrive at an equitab le distribution of the parties’ interest in the real estate. However, we find no evidencein the record which would support a deduction from the value of the marital home of a real estate commission in the spe

cific amount of $1 0,500. There is no evidence in the record as to what would constitute a rea

sonable real estate commission. Accordingly, we remand the case to the Tria l Courtto receive evidence concerning the amount to be deducted as a rea son able real es tate commission.10 Husbandcomplains that the Trial Cou rt order ed him to pay $2,500 in Wife’s attorney’sfees. The award of attorneys’ fee s by a Trial Co

urt will be rever

sed by this Cou

rt only upon a clear

showing that the Trial Court abused its discretion. Aaron v. Aaron, 909 S.W.2d 408, 411 (Tenn. 1995). However, an award of attorney’s fees is appropriate only when the spouse seeking them lacks sufficient funds to pay for his or her legal

expenses or would be

required to deple

te his
or her resources i

n order to pay

these expenses. Brown v. Brown, 913 S.W.2d 163, 170 (T enn. Ct. App. 1994). “When the wife demonstrates that she isfinancially unable to afford counsel, and when the husband has the ability to p ay, the cour t may properly order the husband to pa y the wife’s attorney fees.” Kincaid v. Kincaid, 912 S.W.2d 140, 144 (Tenn. Ct. App. 1995). In this case, there is insufficient

proof in the reco rd ab out the abi lit y of t he p art ies to p ay at tor ney’s fees . Ac cord ingl y,
on rem an d, the Trial Court is directed to take proof on the issue of the parties’ ability to pay attorney’s fees and the reasonableness of the fe es, and for entry of an order based upon that proof. CONCLUSION For the reasons herein stat ed, we remand this case fo r addition al proceedi ngs consistent with this Opinion. Costs of this appeal are assessed equally against F. G. Sutton and J. W. Sutton.

_________________________________________ D. MI CHAEL SWINE Y, J.11

CONCUR:

___________________________________ HOUSTO

N M. GOD

DARD, P .J.

___________________________________ HERSCH EL P. F RANKS, J.