1 The source of the funds for t he down pay ment was di sput ed attri al. Wife t est if ied t hat the fun ds came fr om the sale of her

previous hom e in Michigan. Husband testifi ed that Wife had borrowed the funds f rom her brother and that the co uple had repaid t he brother

aft er the y marri ed. In i ts “ Finding s of Fact and Conclusi ons of Law, ” discus sed infra , the trial co urt foun d that the $30 ,000 .00 d own paym ent was paid from M s. Co nn’s sep arate fun ds.



### 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 Septem ber 8, 2005

Inthis divorce case, Husband/Appellant appeals and raises issues involving thedivision of certain marital property . Finding that th e trial c ourt did no t abuse its discreti on in makin

g its division of

the marit al prope rty , we aff

irm.

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

W. F RANK C RAWFORD , P.J., W.S., delivered the opinion of the court, in which A LAN E. H IGHERS , J. and D AVID R. F ARMER , J., joined. Thomas F. Bloom of Nashville, Tennessee, for Appe llant, 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 par ties beg an dating

in1991. Soon after they be gan dating, in 1992, Ms. Conn had a home constructed at 1730 Oakway Circle in Columbia, TN (the “Residence”). The Residence was cons tr

uctedfor $86,500.00 Ms. Conn paid $30,000.00 down and financed the remaining$56,500.00 1 Prior to their marriage, in April 1993, Mr. Conn moved into the Residence with Ms. Conn.

OnNovember 19, 2002, Mr. Conn filed a “Complaint fo r Divorce ” (the “ Complaint” ) agai nst Ms. Conn. The Complaint seeks a divorce on grounds of inappropriate ma rital condu c t and-2-

irreconcilable

diffe rences and requests an equitable division of the parties’ marital property and marital debt. On Febr

uary 14, 2003, M s. Conn file d an “Ans wer and Counter- Complaint”

in which she denied being guilty

of inappropriate marital conduct but admitted that irreconcilable difference s had arisen between the parties. I n her Counter-Complaint, Ms. Conn seeks a divorce on the grounds of inappropriate marital conduct and irreconcilable differences and asks the court to make a n equitabl e division

of marita l proper ty a nd debt.

A hearing was held on October 27, 2003. On November 10, 2003, the trial court en tered its “Find ings of Fact and Conclusions of La w.” The “Findings of

Fact an d Conclusions of L aw” re ads, in relev ant part , as follows:

SE P ARATE PROPERTY-REAL PROPERTY: Upon marri age of the parties in March of 19[97], Wife owned a houseand lotlocated

at 1730 Oa

kway Circle in Spring Hill, Tennessee. The parties began

living to gether

in this hous e in

April of 1993. At that time, Husbandbegan pay ing rent to Wife at the monthly ra te of $300.0 0

. This property will be fur ther discussed under “marital property.”

SEPARATE P ROPER TY–PERSONAL PROPERTY: At the time of marriage, each of the part ies had sa

vings pla ns (I SP) with Saturn; Hu s band had an investment account with A G Edwards ...value d at $2,22 2.58; and Wife had a

ROTH I RA throu gh Primeri ca Shareholder...valued at $12,997.49. As to all other s eparat e personal property, the Court a ccepts Wife’s list of pr operty and valuation pursuant to Exhibit No. 7-E & H.

DISTRI BUTION OF M ARIT AL P ROPE RTY: In makin g a distribution of marital property , the Court has cons i dered a ll appli cable f

actors of Ten n. Co de Ann . §36- 4-121 , incl udin g:
Duration of the marriage: The parties wer e married on March 23 , 1997, and separated in November 2002. I n this short-t er m m arriage of over five (5) y ears at separation, the Cour t has a n obligation

to restor e the par ties to the ir

pre-m arriage positions. This is a second marria

ge for each of the part ies.
The age, phys ical and

mental he alth, voc ational sk il ls,
em pl oya bi li ty, earning capacity , estate an d financial needs of the parties: Husband is 53 years old; Wife will be 56 in November, 2003. Neit her party complains of ill health. B oth of the parties ar e employed by Saturn, ear

ning comparable gross incomes of ove r $65,000.00 in 2002.-3- The relative abili ty of eac h party for f

uture 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 co nt ri bu ti on s o f e ac h p ar ty to th e acquisition, preservation, appreciation, depreciation or dissipation of the martial pr op er ty, including the contr ibution of a party to the mar

riage as a homemaker, wag e earner or pare nt, with the

contribu tion of a p arty as homemaker or wage ea rner to be given the same weig ht if each party has fulfilled its role: It is undisputed that Husband d

eposited his earnin gs in a joint c

hecking accoun t, keeping only a small amount for persona l items each pa

y pe riod. All e

xpenses we

re paid f rom this
accoun t. Wife deposited

her che ck in a joi

nt saving s accoun

t. Wife complained

that Husband gambled, and stated that “she protected

the money.” It is clear that Husband

likes to gam bl e. W ife doe s no t. It is also cle ar that it

is through Wife’s frugality that the parties are debt free and are in good financial stan ding. The Court finds that each party has co ntri buted to the acquisition and appreciation of the marital pr op er ty. Wife’s efforts of pr es er va ti on ar e n ot ew or th y; however, the Courtcannot find that Husband’s gambling has ca use d any
measura ble dissipa

tion of as sets.
The economic circumstances of eac h party at the time the division of property is to bec ome effective and thetax consequences to each party : While Maur

y Co unty is econom

ically depress ed, these parties enjoy

full-time positions w

iththe third l argest employ er in the
co un ty.
The Court finds the following to be an equitabl e division of marital a ssets and

allocati on of mar

ital debt:
The marital residence–I

t is undisputed that the re s idence pre viously

owned by

Wife...is n

ow marita

l proper ty. Exhibit

No. 6 is an appraisal of the propert y, d ated July 10, 2003, r

eflecti ng the f air market value tobe $169,0 00.00. While Wife insists

that this va

lue is too high, she is the one who chose the appraiser. From the proof, the Courtfinds tha

t this house

was built in 1991 at a cost of $86,500.00. Wife paid $30,000.00 cash of her own money , and fin anced $56,500.00. Hu sbandbegan pay ing rent in 1993, and the parties married in Mar ch of 1 997. In 1 998, t he part ies re finan ced to ge t a lower APR, and jo intl y execute d a mor tgage f or $55,000 .00. By paying no less than $300.00 per mont h and paying

up to $600.00-4- monthly from bonuses received by both parties, they we

re able to pay of f t he mo rt ga ge ea rl y. Wife t estified

that the property

had a fa ir marke t valu e o f $110,000.00 in 1997. The Court accepts this value. The Court finds the fair market value of the proper ty at the p resent time to be $169,000.00. Wife will r

eceive the prope rty as her so le and sepa

rate pr op er ty. Husband will receive the sum of $29,500.00 to be paid by Wife within th irty (3 0) days of c ompletion of the appraisal of the stamp and coin collection as set out hereafter. This figure is der ived
a s follows: Subtracting the fair market value of $110,000. 00 a s Wife’s separat e asset in 1997, from the present fair market value of $169,000.00, the Court i s usi ng the remainder of $59,000.00 as the increa se in equity

since the

marriage of the p arties. H usband is entitled to an equi t able share of one-half of $59,000.00 or $29,500.00, for his contributions to the mortgage, upkeep, maintenance , re pa irs and replacements to the property prior to separation....
Savi ngs Accounts, etc–The Court fin ds the fol lowing a ccounts to be marital pr operty, subject to equal division. This includes the worker’s compensation settlement received by Wife during the marriage, reflected b elow as “ CD–First Farmers & Merc

hants National Bank....”
The acc ounts are

as follow s:
CD UAW CREDIT UNI ON...– VALUE: $21,155.76 CD BANK OF AMERI CA...– VALUE: [$]7,028.81 CD BANK OF AMERI CA...– VALUE: $12,139.94 CD BANK OF AMERI CA...– VALUE: [$]12,514.09 INVESTMENT ACCT.–PRIMERI CA SHAREHOLDER... VALUE: [$]6,575.13 SAVINGS ACCT.–BANK OF A MERICA... VALUE: [$]10,259.88 SAVINGS ACCT.–BANK OF A MERICA... (PROCEEDS OF CD BANK OF AMERI CA...) VALUE: [$]14,000.00 CD–FI RST FARMERS & MERCHANTS NATIONAL

BANK VALUE: [$]25,722.33

TOTAL TO BE DI STRIBUTED EQUAL LY $109,395.94 50% TO HUSBAND = $54,697.97 50% TO WIFE = $54,697.97-5- Reti rement /Sav ings Plans: Each of the pa rties will reta

in his/her ISP with Saturn. Vehicles –

Each of the parties will keep the vehicle in his/her possession.
Other Person al Pro perty – The Court a pproves the designa tions, valuations and

distributions of Wife as reflected by Exhibit 7-D, F & G. The Court finds tha t the entir e stamp and coin collectionshown on Exhibit 7-I, J & K were acqu ired aft er the marriage. The colle ctions wil l be valued by an appra

iser to be agreed uponby the parties. The parties will each pay

on e -half of the appraisal fee. Once the

value is e stablishe d, each party will receive
a share of the coins/stamps equal to one-half of their total value. Wife may elect to allow Hus

band to ke ep her one-half

share in full or partial payment

of the $29 ,500.00 owed to him by her as hi s equitab le interest in the marital residence.

T HE DISCOVER CARD DEBT: Wife will pay this marital debt of $915.02....
The trial court entered an Order onDecember 3, 2003, which grants the pa rties a divorce and incorpor ates, by refe

rence, the above “Findings of Fact and Conclusions of Law”. I n this Order, the tr ia l c ou rt al so ad op ts Ms . C on n’ s p ro po sa l r eg ar di ng th e d is tr ib ut io n o f p er so na l p ro pe rt y.
OnDecember

11, 2003, Mr. Conn filed a “Motion to

Amend Fi

nal Orde r,” whic h reads, in pertine nt part, a s follows:

1. Wh en 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 wa s $110,000.00. However, at the time of the marriage there wa s a mortgage on the proper ty in the approxima

te amount of $55,000.00. If you subtr act mo rtgage amount from the value at the time of t he marr iage, y ou come up

with equit

y inthe amount of

$55,000.00 at the time of the marriage. The increase i nequity during the

course of the marriage wa s in fact, the presen t value of $169,0 00.00 less the equit

y a t the ti me of mar

riage, $55,000.00 or $114,0 00.00. Pla intiff the refore avers that he shou

ld 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 $12,99 7.49 by

the Court. Plaintiff has never been provided proof of the current value of this account. A lthough in wife’s-6- separa te name, this was contributed to on a monthly basis during the
course of the marriage as was shown to the Court. This ac c oun t should have been d

ivided eq ually betwee n the par ties. 3. Pl aintiff will further show that in her list of marita l pr op er ty, the Defendant

failed to list the value of the horse collection. Plaintiff had testified that this wa s a va luable collection and that
man y of the horses were

purchas ed at auc

tion. I f Defen

dant 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 gif ts , the horse collection, along with all other collectibles received during the marriage should beappraised 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 we re inher ited from his father. The fairest division would be to allowthe Defendant to retain her collection and Plaintiff to retain his collec

tions.

4. Pl ai ntiff will further show that in accepting Defe ndant’s list, the court gave the Defenda nt all property purc

hased wi th the proceeds from the water loss. Plaintiff would show that this is not equitabl e as he lost $904.4 5 worth of persona l proper ty and the joint reimbursement

was $1,376.23. If Defe ndan t was to receiv e all furnit ure and furnishings purchased following this loss, Plaintiff should be reimbursed for his portion of the claim or $1,592.56.

OnDecemb er 15, 20 03, Ms. Conn also filed a “Motion to Alter or Amend the Judgment,” seekingto hav e the s avings accoun t at Ban k of Am erica w ith t he val ue of $ 10, 25 9.88 ( see “Fi ndin gs 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, th e t ri al co ur t e nt er ed an Or de r o n M ar ch 3, 20 05 de nyi ng the respecti ve motions to alter and/or a mend the f

inal judg ment. Mr. Conn appeals and raises four issues for review a s stated in his brief:

I. Whether the tr ia l c ou rt er re d i n d iv id in g t he ma ri ta l p ro pe rt y, specifically the

equity in the marital home.

II

. Wh ether the trial court erred in failing to divide the Primer ica Roth IRA.

III. Whether

the trial court erred in failing to divide the horse figurine collection.-7- IV

. Whetherthe trial court erred in failing to divide the proce eds from the water da

mage c laim.
Since this case was tried by the court sitting without

a jury, we re

view the case de novo upon the record of the proceeding s below wi th no presumpt ion of correctness with respect to the trial court 's conclusions of

law. Ten n. 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 c ontrary. Union Carbide Corp.
v. Huddleston , 854 S.W.2d 87 (Tenn.1993). We further note that when the resolution of the issues ina case depends upon the truthfulness of witnesses , the trial judge w ho has the

opportuni

ty to observe the witnesses in their manner and demeanor while tes tify

ing is in a far better position than this Court to de cide those i ssues. 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, f aith , and cre dit to be given to an y witness's testimony lies in the first instance w ith the trier of fact, and the credibi lity

accorded will be given gr eat weight by

the appellate court. Id

. ; In re Estate of Walton
v. Young , 950 S.W.2d 956, 959 (Tenn.1997). However, in reviewing documen ta ry proof, " all impressions of weig

ht and cr edibility are dra wn from the conten

ts of the evidence, and not from the appearanceof witnes s es and oral testimony at tria l." Wells v. T

ennessee Board of Re

gents , 9 S .W.3d779, 783-784 (Tenn.1999). As a result, appellate courts may make an independent

assessment of the cre dibility

of the doc

umentar y pr oof it rev iews, without affording deference to th e tria l cour t's findings. See Corcoran v. Foster Auto GMC, Inc. , 746 S.W.2d 452, 456 (Tenn.1988).
Under Tennessee law, altho ugh t he re is a p re su mp ti on th at ma ri ta l p ro pe rt y is ow ne d e qu al ly, there is no presumption that ma ri ta l p ro pe rt y sh ou ld be di vi de d e qu al ly. Bookout v. Bookout

, 954 S.W.2d 730, 731 (Tenn.Ct.App.1997). Thus, anequitable division of marital property need not be
anequal division of the prope rty. Id . A trial court is afforded wide discretion when dividing the marital property, a

nd its distribution will be given "great weight" on appeal. Ford v. Ford , 952 S.W.2d 824, 825 (Ten

n.Ct .App. 1997). Gu

idelines f or the eq uitable division of marital property ar e set forth in T.C.A. § 36-4-121 (c)(Sup p.2004). That stat

ute provi des, in re levant pa rt:

Inmaking equitable divi si on of mar ital prope rty , the cour

t shall consider all rele vant factors inclu

ding: (1) The d uration o f the mar

riage ; (2) The age, physical and mental health, vocational ski lls , em pl oya bi li ty, ear

n ing capacity , estate, financial liabilities and financi al needs

of each of the pa rties; (3) The tangible or intangible c ontr ibution by one (1) party to the educati on, train

ing or in crease d earnin

g power of the other part

y; (4) The relative ability of each pa rty for future

acquisitions of capital assets a nd income ; (5) The cont

rib ution of each party

to the acquisition, preservation, appreciation, depreciation or dissipation of the m ari tal or sep arate-8- pr op er ty, including the contribution of a part y to th e marriage as homemaker, wage earner or pa rent , with the c ontribution of a par ty as homemaker or wage ea rner to be given the same weig ht if each party has fulf illed its ro le; (6) The value of t

he separ ate prop erty

of each party ; (7) The e state of e ach par ty a t the time o f marria

ge; (8) The economic cir

cumstanc es of ea

ch party at the time the division of prope rty is to become effe ctive; (9) The tax consequences to e ach party , costs associated with the
reasona bly foreseeable sale of the asset, and o ther re asonably forese eable expenses as sociate d with the a sset; (10) The amount

of socia l securit y be nefits available t

o each spouse; and (11) Such other factors as are ne c essary to conside r the equities between the parties. Havingreviewed the law governing the divi sion of ma

rital pro perty, we now proceed

to consider separa tely each of the prope rties at i ssue in this

appeal.
Marital Residence

Onappeal, Mr. Conn asserts that the trialcourt er re d i n d iv id in g t he Re si de nc e. Sp ec if ic al ly, he contends

that his eq

uit ab le share

of the Res idence should be in crease d from $29 ,500.00 to $57,000.00. The trial court determined that the value of the Residence at the time of the marri age was $110,000.00. This amount was taken from Ms. Conn’s undisputed testimony. According to the apprais al, which was admitted as an Exhibit at the trial, the Residence had appreciated to a value of $ 169,000.0 0 at the time of the divorce proceedings. Subtrac ting 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 e qually

betwee n the par ties.

Mr. Conn asserts that the trial cou rt faile d to take i nto co nsid erati on th e $56, 500.0 0 mort gage that was on the

Resi dence at the time of the marriage . Based upon his assertion that the parties jointly refinanced $55,000.00 in 1998 and that the payme nts for the mortgage amount were derived primaril y from his pay che ck, Mr. Conn contends that the t rial court should have found that the initial equity in the house was $55,000.00 (as oppos ed to $110,000.00). In essence , Mr. Conn argues that the $55,000.00 amount that theparties jointly refinanc ed in 1998 should be subtracted fromthe $110,000.00 value of the Residence at the time of the marriage to show equity of $55,000.00 in th e h om e a t t he ti me of th e m ar ri ag e. Co ns eq ue nt ly, 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, dur

ing the c ourse of

the marr iage, t his amount

was paid in full. Consequently, we ca nnot2 See foot note 1.
-9- say that the trial cour

t erred in declining to subtract the $55,000.00 from the $110,000.00value of the Residence at the time of the marriage. Mr. Conn further asserts that it was his pay check that went to the mort

gage pay ment and e

xpenses of the Res idence during the course of the mar riage. Thesefunds, however, were marital funds. As such, Mr. Conn is not entit

led to extra cre dit for the se expenditur

es. From the rec ord as a w

hole, and inlight 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 begin ning of t he marr iage a nd at the t

ime of the divorce), in its calculation of the appreciation in the Residence, or in its equally dividing the a mount of appreciation between theseparties. 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 separa te funds to purchase the Residence, 2 we find the division arrived at by the trial court to be quite equitable.
Primeric a Roth I

RA It is undisputed in the record that the Primerica Roth I RA was set up by Ms. Conn, in her
name only , prior to

the marr iage. Prior to the marriage, Ms. Conn was contributing between $75.00 and $100.00 pe

r month to th

is IRA . Althoug

h Mr. Conn a sserts tha

t Ms. Conn increased her contributionto the I

RA after the marr iage a nd paid the se contr

ibutions fr

om marita

l funds, there is
no evidence in the record to show the exact amounts of the contributions after the marriage or how muchthe IRA was wort

h prior to the marriage. From the evide nce that was introduced, the trial court valued the account at

$12,997.4 9 a nd aw ar de d s am e t o M s. Co nn as he r s ep ar at e p ro pe rt y. Based upon the record before us, we ca nnot say that the

trial court

erred i n either its valuat ion of this IRA , o r i n i ts aw ar di ng th e a cc ou nt to Ms . C on n a s h er se pa ra te pr op er ty. Horse Figurine Collection Concerning the valuation of the horse fig urine collection, there is no documentary proof. Rather, M

r. Conn te stified that some of the fig urines c arried

a value a s high at

$200.00 e ach. Ms. Conn t estified that the collection was worth very little and that the most expensive figurine in t h e collectionw o uld be worth no more than $90.00. On appeal, Mr. Conn asserts that the trial court should have g iven the s ame trea

tment to the horse

figuri ne colle ction as it

did to the coin c ollection s. Speci fi ca ll y, Mr. Conn a sserts tha t the tria l court should have

ordere d an appr

aisal on the horse figurine collecti on and sho uld have d

ivided the

value eq ually betwee n the par ties.As di s cuss ed above, it is well se

ttled in Te

nnesse e t hat, although the re is a pr esumption

that mari tal prope rty is owned equally, there

is no presumption that marital pr op er ty s ho ul d b e d iv id ed eq ua ll y. Bookout v. Bookout , 954 S.W.2d 730, 731 (Ten n.Ct.App. 1997). Th

us, an eq uitable d ivision of marital pr

operty 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 figurinecollection equally be tween the parties, even in the face of the equa l division of the value of the coin collection.

Proce eds fro m Wat er Dama ge-10-

Duringthe marriage, the parties suffered water damag e 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 repres ents the am ou nt of

da ma ge to hi s s ep ar at e p ro pe rt y. W e d is ag re e. In h is ow n t es ti mo ny, Mr. Conn stated that the insurance proceed s w ere used to purchase a joint vehicle. Furthe rmore, 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 int o conside ration in t he division of prope

rty at all?

A. I’m so rr y? Q. The pr

oceeds f rom that in surance

settleme nt?

A. It’s pretty

much already

taken care of with t

he p urchase of the vehicle, but however the judge decide s to do it, that’s fine with me.
Since the insurance proceeds were used to purchase marital property and since Mr. Conn

does not raisean issue as to whether the division of the vehicles was proper, we cannot find that the trial cour t erred in declining to award Mr. Conn an a dditional $904.45 from the insurance proceeds.

For the fore going

reasons , we aff

irm the Order of the trial court. Costs of this appeal are
as se ss ed ag ai ns t t he Ap pe ll an t, Da vi d E . C on n, an d h is su re ty.

__________________________________________ W. FRANK CRAWFOR

D, PRESIDING JUDGE , W.S

.