1 Mr. Da vis appea led the jud gmen t of the Co cke Co unty Circ uit Court fo ll owing the tri al on July 21,

1998. This Court rem anded the cau se to the Tri al Court f

or a final judgment. See Davis v. D avis , an unreport ed opinion of this Cour t, filed in Kn oxville on Octobe r 4, 1999 , No. 03 A01-9 901-C V-000 16.



### IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE March 26, 2001 Sessi

on
WILLIAM H. DA

VIS v. DAIRA

F. DAVIS
Appeal from the Circuit Court for Cocke County No. 23,867-I Ben W. Hooper, II, Judge
FILED AUGUST 13, 2001

No. E2000-02678-COA-R3-CV

This appeal from the Co

cke County Circuit

Court questions whe

ther the Trial Cour

t erred in dividing the marital estate. Mr. Davis appeals the Trial Court’s valuation of his closely held corporation, the payment o f some debt by Mr. Davis, and th e award of perm

anent periodic a

limony to Ms. Davis. We affirm

the decision of the Trial Court as modified and re

mand for such fur

ther proceeding

s, if any, consistent with this opinion. We adjudge costs of the appeal against the Appellant, William H. Davis and his surety.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed As Modified; Cause Remanded

H OUSTON M. G ODDARD , P.J., delivered the opinion of the court, in which C HARLES D. S USANO , J R ., and D. M ICHAEL S WINEY , JJ., joined.
Jerry W. Laughli

n, Greeneville,

Tennessee, for

the Appellant, Wil

liam H. Davis.
K. Karl Spalvins, K

noxville, Tenness

ee, for the Appe

llee, Daira F. Da

vis.

OPINION

This appeal arises from a divorce between William H. D avis , the Appellant, a nd Daira F. Davis, the Appellee. Mr. Davis appeals the judgment of the Cocke County Circuit Court 1 and presents for our

review four issue

s which we restat

e:

I. Wheth er the Trial Court erred when it ruled, on remand, that the $17,7 67.9 8 payment Mr. Davis ma

de to sa tisfy credit card obligations would not be credited-2-

agains t t he $208,386.00 judgment Ms. Davis received as her share of Mr. Davis’s corporation, but w

as a separate r

esponsibility for Mr

. Davis.

II. Whether the Trial Court erred in determining the value of Mr. Da v is’s share of his closely held corporation.

III. Whether the Trial

Court failed to

equitably divide the marital assets, awarding Ms. Davis a substantially disproportionate share.

IV. Whether the Trial Court erred in awa rdin g Ms. Davis perman ent periodic alimony.

We affirm the judgment of the Trial Court as modified and remand for further

proceedings, if any, consistent with this opinion.

The parties were married in Cocke County on April 23, 1981. There was one child born of this marriage, Diana Nicole Davis. The parties separated on November 24, 1994 and Mr. Davis filed
a complaint

for divorceon July 2, 1996. Following a trial on July 21, 1998, the Trial Court granted Mr. and Ms. Davis a divorce. Ms. Davis re c eived custody of D iana Nicole Davi

s and Mr. Davis received reasonable and

liberal visitation.

Child support was also se

t in accordance w

ith the child supp ort guidelines. Mr. Da

vis was to provide h

ealth insurance

for Ms. Davis for 1 8 mo nth s following the divorce. Additionally, he wa s to provide health

insurance for th

e minor child

and was responsible for any uncovered medical expenses.

As for the division of the marital estate, the Trial Court awarded Ms. Davis a 1990 Lincoln, andMr. Davis a 1977 Jeep. There was a 1998 Jeep leas ed t o United Business Forms, Inc., Mr. Davis’s corporation, which was also awarded to him. No value was given to any of the automobiles by the Trial Court. The marital home was valued at $100,000.00 by Ms. Davis and $115,000.00 dollars by Mr. Davis. The contents of the marital home were valued by Ms. Davis at $3,000.00 and Mr. Davis at $9,000.00. The Court awarded the mar

ital home and its

contents to Ms. Davis without assigning a value to either the marital home or

th e conten ts and ordered Mr. Davis to pay the remaining mortgage on the home which was approximately $6,400.00 dollars.

The Davises had

a 401K with a value of $29,468.69 which was awarded to Mr. Davis along withtwo IRA a ccounts; one with a value of approximately $12,000.00 and the other with a value of approximately $4,000.00 . An account with $6,200.00 held by Mr. Davis for the purpose of purchasing a car for the minor child was awarded to Mr. Davis, and th

e Court ordered h

imto proceed withthe purchase of an automobile for the minor child. Mr. Davis was ordered to provide insurance coveragefor the automobile . Finally, there wa s a substantial a

moun t of credit card debt at issue during the trial. The Trial Court ordered Mr. Davis to pay “a lump sum sufficient to pay off all of those credit card

obligations.” Ms.

Davis was awarded permanent periodic alimony in the amount of $1,650.00 per month.2 Our use of the first name of Horace Davis s hould not beconstrued as disrespe ctful, but is t o avoid confusi

on in referring to two M r. Davises.
-3- The only other property at issue is Mr. Davis’s busine ss. When t he parties married, Mr. Davis and his brother, H

orace Davis

2 were the principal sha

reholders of a c

loselyhelp corporation, United Business Forms, Inc. According to the record, United Business Forms, Inc. is a printing business begun by Mr. Davis and Horace Davis in 1971. United Business Forms, Inc., (hereinafter referred to as UBF) manufacture

s snap-out business

forms, and employs

approximately

65 people. At the time of trial Mr. Davis and Horace Davis each owned 2550 shares of stock in UBF and each held slightly less than fifty percent of the c orporate stock. A third shar

eholder, Mr. Ray A

dams,
owns the remaining three shares. In 1985 Mr. Davis and Horace Davis were the sole shareholders of UBF. At that time they entered into a Stoc

k Redemption Agree

ment which is at iss

ue on thi s appeal.
Following the trial, Mr. D avis filed a Notic e of Appeal. This C

ourt remanded the

cause to the Trial Court for a

final judgment.See Davis v. Davis , an unreported opinion of this Court, filed in Knoxville on October 4, 1999. According to the Order of the Court of Appeals, the Trial Court hadreserved a que

stion of the method o

f payment as to

a lump sum judgment Ms. Dav is was to receivefrom Mr. Davis. If the parties could not agree on a method of payment, the Trial Court would render a decision. At the time of oral argument on appeal, the parties had not agreed as to a
m ethod of payme nt. Therefore, this Court concluded the order was not a final one subject to an appeal as of right. The case was remanded to the Trial Court for a final judgment.
Following remand, Mr. Davis filed a Motion to Specify Terms of

Judgment. On March 16, 2000, a hearing on that m otion took place. T

he Trial Court h

el d that beginning June, 2000, Mr. Davis would be obligated to pay $1 500.00 per month tow ard the $208,386. 00 judgment. Additionally, the Trial Court also determined that the$17,767.98 paid by Mr. Davis to satisfy Ms. Davis’s credit c

ard debt was not to

be credited toward

the $208,386.00 judgment, but that the two were separate

liabilities. Mr. Da

vis also appeals th

is decision by the Tr

ial Court.

We review the Tr ial Court’s findings of fact de novo upon the record of the proceedings below, with apresumption of correctness “unless the preponderance of the evidence is otherwise.” Tenn. R. App. P. 13(d); see also Hass v. Knighton , 676 S.W.2d 554 (Tenn. 1 984). There is n o presumption of correctness with regard to the trial court’s conclusion of law, and those conclusions are reviewed de novo

. Jahn v. Jahn , 932 S.W.2d 939 (Tenn. Ct. App. 1996).

I. Mr. Davis’s first issue on appeal is that the Trial Court erred when it ruled the $17,767.98 payment Mr. Davis made to satisfy th e credit card obligation would not be credited against the $208,386.00 judgment Ms. D a vis received. Mr. Davis argues that during the March 16, 2000, hearing on the Motion to Specify Terms of Judgment the Trial Court declared sua sponte that Mr. Davis was not entitled to a credit against the lump sum j udgment. He asser ts that Ms. Davis testified-4-

that these were her individual debts and that she was willing to pay these debts. He further argues that both parties acknowledged that the $17,767.98 payment would be credited toward the lump sum payment and that the brief

submitted by Ms. Dav

is during the first a

ppeal to this Court reflects that acknowledgment.

Therefore, it is Mr. Davis’s argument that the Trial Court, upon remand, modified its original order, sua sponte , at the motion hearing on March 16, 2000.

Ms. Davis argues that the original judgment required Mr. Da

vis to pay to her the amount of $208,386.00 for her

interest in UBF. She further asserts that Mr. Davis was also required to pay the credit card debt, which

was to be paid in a l

ump sum. Ms. Davis

argues that Mr. Davis was the party who filed the Motion to Specify Terms of Judgment and that the Trial Court was ordered to resolve the issue as to the terms of payment of the $208,386.00 judgment, and at the time of the hearing on March16, 2000, Mr. Davis had not paid any amount toward that judgment, but had paid $17,767.98 towardthe satisfaction of the credit card debt. Ms. Davis argues that Mr. Da vis initiated the discussion at the motion hearing concerning the credit toward the $208,386.00 judgment, and that
now he is trying to argu

e on appeal that th

e Trial Court’s ru

ling on that matter w

as s ua sponte

. Finally, Ms. Davis argues that the TrialCourt was merely clarifying for Mr. Davis, upon his request, its order from the July 21, 1998, hearing.
Upon review of

the transcr ipt of the hearing on July 21, 1998, and the transcript of the hearing March 16, 2000, we agree with Ms. Davis. At the July 21, 1998, hearing, the Trial Court stated the following:

In order to make the other awards and figures that I’ ve used in this decision to equal out, it means that Mr. Davis woul d be obligated to pay Ms. Davis for h

er interest in the

business the sum of

$208,000 . . . $208,386.

The Court is going to

also require tha

t an amount suffic

ient to pay all of her credit card obligations, including one-half of those which I’m going to order them to pay equally, and that being Proffitt’s and Lowe’s, he’ll have to pay a lump sum sufficient to pay

off all of those credit card obli

gations.
Now, the Court is not going t o make a ruling at t

his time on how the balance of tha t will be p aid, so that you all will be given an opportunity

to see if you can agree upon some manner or method of pa ym ent, however you wish to do it. Now, if you can’t do it, then we’ll have to have a further hearing on it.

The Order from this hearing filed on December 14, 1998, nunc pro tunc July 2 1, 1998, state s the following with respect to this matter:-5- 11. Mr. Davis shall be obligated to pay to Mrs. Dav is the sum of T wo Hundred Eight Thousand Three Hundred Eighty Six Dollars ($208,386.00) for her

interest in the busi

ness. Mr. Davis sha

ll pay in
a lump sum an amount suffici ent to satisfy all of Mrs.

Davis’s credit card obligations and one-half of the c redit card obligations t

o Proffitts andLowes. The parties are hereby granted a n opportunity to reach
an ag reement upon some manner or method for the payment of the balance. Absent such an agreement, up on prop er motion the Court will make a ruling on the manner and method for the payment of the balance.
According to the transcript of the motion hearing on March 16, 2000, this issue was addressed. The lawyers for the parties were discussing how the lump sum payment of $208,386.00 would b

e paid to Ms. Davis and the following discussion took place:

The Court: The credit card billing. Let me see here a minute. We’re down to what, $190,618.02?

Mr. Spalvins [attorney for Ms. Davis]: No, Your Honor

. I don’t think that’s the wa

y that is calculate

d. I think her inter

est in the business was separate and additional and I thi nk t he interest in the business of $208,000-some dollars is stillsolid.

Mr. Laughlin [attorney for Mr. Davis]: No, Your Honor. I think it’s qui te clear

that that’s to be a credit against the amount for which he was obligated to pay her for her interest, what the Court determined to be her interest in the stock.

The Court: Okay. Let

me, where is . . . well, I’m not goin g to ask you where it is , let me find the Or der. Let’s take t

his education business first. Has she enrolled in school or anything?
[the Court moves on to another matter briefly]

The Court: In reading m

y opinion which is ve

ry short, I do not find that there is a credit against the sum of $208,386.00.
Mr. Laughlin: Can I mention to the Court the language on Page 5?
The Court: Yeah, I

just got through rea

ding that.-6- Mr. Laughlin: I’m sorry, YourHonor. On Page 4 it talks about $208,000.00, I’m sorry.
The Court: Okay.

Mr. Laughlin: And then it talks in terms in the v ery last p aragraph about the payment of the credit card obligations and the n continuing onto the next p a ge, it talks about the payment of the balance of that, payment of the balance of the $208 . . .

Mr. Spalvins: W

here ar e you reading from? I’ve got the judgment before me?

Mr. Laughlin: I’m sorry. We’re reading from the Memorandum Opinion, Page 5.
Mr. Spalvins: Oh, oka

y. All right.

Mr. Laugh lin: And it says, give the opportunity it talks in term s o f the balance of

this amount, and that’s why we believe that the Court intended to take the credit card obligations, her cred i t card obligations a credit, if yo u will, against the $208, because . . .

The Court: I see and understand why you’re saying that. But when I have said that the Court is going to also require t ha t an amount sufficient to

pay all of her

credit card obligations and having j ust stated that he owed her $208,386.00, and then I say is also going to require. That language is, I can p ret ty welltell what I meant by reading what I said, so there will not be a credit there.

It appears from this discussion that the Trial Court was merely clarifying an earlier point addressed by the attorney at the motion hearing. The Trial Court rev iewed the Me morandum Opinion and pointed out thatthe language, “t he Court is going to a

lso require that a

n amount sufficie

nt to pay all of her credit card obligations . . .” is the language suggesting that no credit was intended.

Mr. Davis argued that theTrial Court changed its previous ruling sua sponte at the motion hearing. The ter

m sua sponte

is defined as, “of

his or its own will

or motion; voluntarily; without prompting or suggestion.” Black’s Law Dictionary 1424 (6th ed. 1990). We do not find that the Trial Courtaddresse

d this issu e sua sponte . The aforementioned discussion clearly shows that the attorneys haddifferent opinio ns as to what the Tr

ial Court ordered

at the July

21, 1998, hearing and thereforeturned to the Trial Court for clarification. The T rial Court reviewed the Memorandum-7-

Opinion, pointed out specif ic language and r

eiterated his de

cisi on fr om the prior hearing. No changes were ma

de to the prior ord

er, only clarific

ation. The Trial Co

urt is in the best posi

tion to clarify an order set for

th by said Trial Cour

t. We therefore

find that the trial

Court did not err in clarifying the previous court order.

II. The second issue this Co urt will address is the Trial Court’s valuation of Mr. Davis’s Corporation. The Trial Court determined that on January 1, 1981, UBF had a value of $22,000.00 andat the “time material to this litigation” UBF had a value of $517,705 .00 dollars. Ms. Davis was awarded $208,386.00 as her

interest in UBF. Divi

ding a marital esta

te begins with classifying the property as either separate or marital property. McClellan v. McClellan , 873 S.W.2d 350 (T enn. Ct. App. 1993). The Trial Court did not make a determination as to whether UBF was Mr. Davis’s separate property or mari

tal property, th

erefore it is incumbent upon this Court to make that determin ation before evaluating whether the Trial Court erred in its value determination an d i n dividing the marita

l assets.
Marital property

is defined at T.C.A. 36-4-121(b)(1 )(B) as follows:

“Marital Property” include s income from,

and any increas

e invalue during the marriage of

, property deter

mined tobe separate

property in accordance w

ith subdivision (b)(

2) if each party

substanti all y contributedto its preservation and appreciation, a nd the value of vestedand 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.
Separate property is defined at T.C.A. 36-4-121(b)(2) (A) as “All rea l and personal pro

pertyowned by a spouse before marriage.”

Because Mr. Davis owned sto

ck in UBF prior to his marria

ge to Ms. Davis, we find t

hat UBF is Mr. Davis’s separate property. However, UBF’s increase in value during the marriageis marital property pursuant to T.C.A. 36-4-121(b)(1)(B), “any increase in value during the marriage of, property determined to be separate property in accordance with subdivision (b)(2) if each p art y substantially

contributed to its preservationand appreciation”. “Substantial contribution” includes butis not limited to the “dire ct o r indirect contribution of a spouse as homemaker, wage earner, parent or family financial manager.” T.C.A. 36-4-121(b)(1)(D). A spouse’s “indirect contributions
a s homemake r constitute contributions to the appreciation or preservation of the other spouse’s separate property.” Cohen v. Cohen , 937 S.W.2d 823 (Tenn. 1996).
Upon review of

the testimony of Ms. D

avis, we find that s

he did “substantially contribute” to the appreciationof UBF. Ms. Davis testified that when she married Mr. Davis she had two years of college education. Upon her marriage t o Mr . Davis she dropped out of school and became a homemaker. Shortly thereafter Mr. and Ms. Davis had a d a ughter. There is no dispute as to Ms.-8-

Davis’s role as homemaker and parent. I n add ition to Ms. Davis’s aforementioned indirect contributions to UBF, she also cont ributed directly t

o UBF. Ms. Davis

testified that twice she had been employed at UBF. The first time she began working there was shortly after the birth of their daughter. Ms. Dav

is testified that she

went towork at

the request of Mr. Davis because UBF was short-handed. Ms. Davis further testified she worked two to thre

e years for UBF du

ring another time period. Ms. Davis testified that she went t o Salt Lake City with M r. Davis on a busine

ss trip to purchase equipment for UBF andshe attended a convention in Charlotte, North Carolina with Mr. Davis. Additionally, she a ccompanied Mr. D

avis on a business

trip to Atlanta, Ge

orgia to a paper company. Therefore, while UBF is considered the separate property of Mr.Davis, the increase in value of UBF is cons

idered a marital

asset.

As for the valuation of Mr. Davis’s share of UBF, Mr. Davis argues that the Trial Court erred in assessing his value

in UBF at $517,705.00 . Mr. Davis asser ts that UBF is subje

ct to a Stock Redemption Agreement and that thi s agreement provides that if Mr. Davis attempts to sell or encumber his stock in UBF, UBF has the right to redeem the stock for

$175,000.00 dollar

s, and if it fails to do so the oth

er stockholders h

ave th e right to pur chase Mr. Davis’ s stock for the sam e price. Therefore, Mr. Davis argues that there is no way the value of his shares of UBF can exceed $175,000.00. Mr. Davis further argues that the Tr

ial Court erred in

adopting the opinion of LeRoy Bible, a certified public accountant, who testified on beh alf of Ms. Davis as to the value of Mr. Davis’s share of

UBF. Mr. Davis asse

rts that it is eviden

t Mr. Bible

did not consider the effect of the Stock Redemption Ag reement in arriv

ing at his opinion that Mr. Davis’s share of UBF was between $518,503.00 and $517,705.00.

Mr. Davis relies on the case of Erwin v. Erwin , an unreported o pinion of this Court, f

iled in Nashville on March 25, 1988, arguing that a Trial Court must take into consideration the effect any stock redemption agreements might have on a corporation wh

en placing a valu

e on that asset.We agree with Mr. Davis’s argument as to what Erwin v. Erwin holds with respect to valuing an asset when a stock redemption agreement is in place. The Court states that “if the true value of the stock is greater than its agreed value, then its value for purposes of this

suit would be somewhat greater than its agreed value

and somewhat less

than its true value .” It also sets for th the premise

that if the stockholder

chooses to sell his share of the corporation, then the stock redemption agreement forces the value of those shares of stock to be sold ata set price. Howe ver, the Court fur

ther notes that if the stockholder continues to h ol d onto the shares of stock he is free to continue to “reap all the benefits of ownership without offering it for sale.”

Ms. Davis argues tha

t each party

presented expert testimony and the Trial Court had a wide range of values for Mr. Davis’s share of UBF from which the Trial Court chose $517,705.00 . Ms. Davis further argues that the methods used by both experts are valid means of placing a value on a corporationand that there is no requirement that TrialCourts rely on stock redemption agre

ements when assessing the value of a corporation for the purpose of dividing assets in a divorce.

T he valuation of a marital asset is a question of fact to be determined by considering al l relevant evidence. Kinard

v. Kinard

, 986 S.W.2d 220 (Tenn. Ct. App. 1998). Each party bears the3 Mr. Davis owns 2550 sha res of st ock.
-9- burden of bringing forth competent evidence. Wallace v. Wallace , 733 S.W.2d 102 (Tenn. Ct. App. 1987). If the evidence

the parties set fo

rth as to value is c

onflicting, the tr

ia l judge may assign a value that is w ithin the range of values supported by the evidence. Ray v. Ray , 916 S.W.2d 469 (Tenn.Ct. App. 1995). On appeal, we presume the trial judge’s factual determinations are correct unless th e evidence pre

ponderates aga

inst them. Jahn v. Jahn , 932 S.W.2d 939 (Tenn. Ct. App

. 1996).

Mr. andMs. Davis both presented expert testimony at the trial as to the value of UBF. Mr. Ray Adams, CPA, testified on behalf of Mr. D avis, and Mr. LeRo

y Bible, CPA, testifie

d on behalf of Ms. Davis. According to the record, Mr. Adams used a “capitalization of income” method and
a “weighted average” method to determine the value of UB F. Under the “normal average” Mr. Adams arrived at a value of $126,900.00 and the weighted average he ar rived at $142,200.00. A discount was applied by Mr. Adams in arriving at the aforementioned values for “lack of control” and“lack of market

ability.” Mr. Adam

s further testifie

d that he did not ta ke into consideration a method of valuation based on comparable sales of similarly situated businesses ashe was unable to find such comparable

businesses. Mr. Ad

ams also testified as to the value of UBF based on using
a “co st method .” Using this method M r. Adams testified

that the value of M

r. Davis’s intere

st in UBF was $270,800.00. Finally, averaging the results under each method used Mr. Adams testified that he arrived at the

figure $180,000.0

0. Finally, Mr. Adam

s testified that the

book value for UBF
was 1,095,000.00. From this figure tax liability was subtracted, a discount was taken for a minority share and a

discount was taken for

lack of marketability arriving at the figure $278,831.00 which he rounded to $270,800.00.

Mr. Bible, testifying on behalf of Ms. Davis, stated that he valued the business in December 1980, a few months prior

to the marriage of Mr. and Ms. Davis. Mr. Bible stated that Mr. Davis’s share of UB F based on that valu

ation was $20,000. 00 to $22,000.00. Mr . Bible also valued

UBF in December, 1996. Mr. Bible testified that he used a “weighted average.” He also testified that the preferred method of placing a value on this corporation was to find a comparable sale, but he, like Mr. Adams, was unable to find one. According to Mr. Bible, the method he used is refer re d to by the Internal Revenue Service as the “industry standard.” Additionally, discounts were taken for lack of control and marketability. Mr. Bible arrived at $203.00 per sharemultiplied by the number of shares Mr. Davis owns 3 for a total of $518,000.00. Mr. Bible testified that a value of $517,705.00 whi ch he arrived at usi

ng numbers that Mr.

Adams had provide

d was also a fair r

epresentatio

n o f the value of Mr. Davis’s interest in UBF.

While we agree that

the stock redemption agreement should be considered in placing a value
on Mr. Davis’s share

of UBF, there is absolutely no e vidence that Mr. Bible did not consider the agreement

in arriving at his f

igures. At no point w

as Mr. Bible asked

on direct examina

tion or crossexamination whether he considered the stock redempt io n agreement when valuing Mr. Davis’s share of the corporation. It was theresponsibility of Mr. Davis to insure

that Mr. Bible had th

e appropriate-10-

documentation in order for him to do a competent valua tion of hiscorporation. This Court cannot automatically

assume simply because Mr. Davis argues that Mr. Bible did not consider the s t ock redemption agreement that that was the case, nor can this Court assume that the value of Mr. Davis’s stock is $175,000.00 because the stock redemption agreement may prevent its sale

at a higher price. Therefore, we find that

the evidence does not preponderate against the Trial Court’s valuation of Mr. Davis’s share in UBF of $517,705.00.

III. Mr. Davis’s third iss

ue on appeal questions whether the Trial Court erred in dividing the marital assets and liabilit

ies; thereby gra

nting Ms. Davis a

disproportionate share of the assets. He further contends that the Trial Court did so without consideration of thestatutory criter ia upon which such divisions should be based. More specifically he argues that the Trial Court ignored the factors set forth in T.C.A. 36-4-121(c).

“Trial Courts have wide latitude in fashioning an equitable division of marital proper ty. ” Brown v. Brown , 913 S.W.2d 163 (Tenn. Ct. App. 1994). The standard factors set forth in T.C.A. 36-4-121(c) must be considered. This Courthas further stated in Batson v. Batson , 769 S.W.2d 849 (Tenn. Ct. App. 1988) the following:

an equi table property division is not necessarily an equal one. It i s notachieved by a mechanical application of the statutory fac

tors, but rather by considering and w

eighing the most

relevant factors in light of the unique facts of the case.
Appellate Courts are to defer to a Trial Court’s division of marital property unless that division is unsupported by a

preponderance

of the evidence

or inconsistent wit

h the statutory factors. Brown v. Brown , 913 S.W.2d 163 (Tenn. Ct. App. 1994).

The Trial Court’s division of the marital assets and liabilities as modified by this opinion is as follows:

Asset Value Mr. Davis Ms. Davis

1990 Lincoln (no value stated) (no value stated) 1977 Jeep (no value stated) (no value stated) 1998 Jeep (leased to UBF) (leased to UBF) IRA #1 $ 12,000.00 $ 12,000.00 IRA #2 4,000.00 4,000.00 401K 29,468.69 29,468.694 Mr. Dav is tes tifi ed that the value of t

he marital

home was $115,000.00 whil e Ms. Davis t

estif ied that the value of t

he ma ri tal home was $100 ,00 0.0 0. T

he Tr ial Cour t f ail ed t o pl ace a va lue on t he h ome. Her

e i t ma kes n o difference in our eval

uation of t

he appropriat

eness of t

he Trial Cour

t’s divi sion whether

we use thehigher or lowerof these values as our con clusion is the same reg ardless of which values are used. To simplify t he calculation , we use o nly one of the values, the lower.

5 Mr. Da vis estimate d that the ho usehold furnishin gs were worth $ 9,000.0 0 and M s. Davis estim ated their value at $3,000 .00. Ag ain, it makes no differe nce in our eval

uation of t

he appropriat

eness of t

he Trial Cour

t’s divi sion whether we use the higheror lower of these values. However, in order to remain consis tent, we choose the l

ower value.

6 The marital assets incl ude the increase in val

ue of UBF which can be calculated as follows: $517,705.00 (Mr. Davis’s s

hare in UBF) - $11, 000.00(one half of the val

ue of UBF in 1981) = $506,705. 00.
-11- Marital home

4 100,000.00 $100,000.00 Mortgage on home (6,400.00) (6,400.00) Household furnishings 5 3,000.00 3,000.00 Credit card debt (17,767.98) (17,767.98) UBF 6 506,705.00 298,319.00 208,386.00

Total $631,005.71 $319,619.71 $311,386.00
Percentage of a

ssets 50.7% 49.3%

We find that the division of the marital assets in this case is equitable. A division of marital assets is not inequitable simp

ly because it

is not precisely equal. Kinard v. Kinard , 986 S.W.2d 220 (Tenn. Ct. App. 1998).

The statutory factors that are most determinative on t h is issue are the following: (1) the duration of this marriage; (2) Mr. Davis is pa

rt owner in a succ

essful business

that contin

ues to generate a stable income for him while Ms. Davis lacks the earning capacity and employability to
m atch that of Mr. Davis; (3) Ms. Davis did contribute both directly and indirectly as employee, spouse, mother, and homema ker to Mr. Davis ’s successful busine ss; (4) Ms. Davis is c

urrently employ ed at a hospital emer gency room making

approximately $21 5.00 a week while Mr. Davis retains UBF as his separate property and will continue to reap the benefits of his ownership shares in the corporation.
Upon review of the statutory factors set forth in T.C.A. 36-4-121(c), we do not find that the evidence preponderates against the Trial Court’s division of the marital assets and therefore affirm the Trial Court’s d

ivision of the marit

al assets.7 See Davis v. D avis , an unrep orted op inion of th is Court, filed in Knoxville on Oct ober 4, 1999. No. 03A01- 9901-CV-00016.
-12- IV. Mr. Davis’s fourth issue on appeal is whether the Trial Court erred in awarding Ms. Davis permanent

periodic alimony. During the hearing on July 21, 1998, the Trial Court, in its Memorandum Opinion stated the following with respect to rehabilitative alimony:

Now, with respect to what we just generally cal l rehabi litation alimony, I’m going to provide that there will be an amount paid over the next five years,

if the wife does, in fact, enroll in school to further her educationand the amount to be paid will be the actual cost of the tuition and books, which means if she does not enroll the

n there will be nothing to be paid.
Alimony in the amount of $1,650 per month will be paid. Of course,
w e know that by statute that is paid for as long as she lives or, I guess, it could even go against his estate if he were to predecease her, butupon your remarriage or cohabitation with a third party, then that would be terminated.
Following this Court’s remand of the first appeal to the Trial Court 7 and the subsequent hearing on March16, 2000, the Trial Court, upon the req

uest of this Court, a

ttempted to set paramet ers as to where Ms. Daviscould attend school and still expect Mr. Davis to pay for tuition. The Trial Court determined the f

ollowing in pertine

nt part:

The Court: Let’s take this education busine ss f irst. Has sh e enrolled in school or anything?
Mr. Spalvins: No, Your Honor, sh e has not.

The Court: So that doesn’t even. . . Well, is she going to?
Mr. Spalvins: She says “no”, Your Honor.

The Court: If

that be the case

then at least I’m g

oing to remove from the Appellate Cou rt’ s consideration anything concerning that particular m atter; that it is n ow no longer a part of this litigation in any respect, it’s resolvedby her

announcement of not going to school,-13- because they hadmentioned that as being a loose end. Now, he’s p aying $1650.00 alimony, having no problem with that.
Mr. Spalvins: Initially

there w ere s ome problems but I think that’s kind of been smoothed out, Your Honor.
Following the hearing on March 16, 2000, the Trial Court amende

d its original order and determined that Ms. Davis no longer needed rehabilitative alimony as she was no longer interested in returning to college.

Mr. Davis makes several arguments concerning the alimony award. First, he argues that the Trial Court made no finding that Ms. Davis was economically disadvantaged relative to Mr. Davis, andthat no such s tat us exists due to the division of the marital assets at trial. Additionally, Mr. Davis argues that beca

use the Trial Cour

t initially awarde

d Ms. Davis rehabi

litative alimony she

is obviously capable of rehabilitation and therefore rehabilitative alimony should be awarded rather than permanent

periodic alimony.

Finally, Mr. Davis a

rgues that Ms. Davis is able to work and that she only expected to receive rehabilitative alimony pending the completion of her college education, and therefore, rehabilitative alimony is the only form of alimony appropriate.
Ms. Davis argues that the Trial Court did find that she was economically disadvantaged as compar ed to Mr. Dav is. Additionally, she argues that since the parties separation she has been unable to maintain the standard of living to which she was accustomed during her marriage.

The Trial Court has broad discretion in determining an award of alimony. Loyd v. Loyd , 860 S.W.2d 409 (Tenn. Ct. App. 1993). The decision is factually driven and requires a balancing of the factors listed in T.C.A. 36-5 -101(d); Loyd v. Loyd , 860 S.W.2d 409 (Te nn. Ct. App. 1993). Of these factors, need a

nd the ability

to pay are the most critical. Lancaster v. Lancaster , 671 S.W.2d 501 Accordingly, this Court is not inclined t o alter a trial co urt's award of a

limony unless it is unsupportedby the evidence o r is contrary to

the public policy embodiedin the applicable statutes. Brown v. Brown , 913 S.W.2d 163 (Tenn.Ct.App.1994).

The following factors, codified at T.C.A. 36-5-101(d)(1) are to be considered in determining an award of alimony:

(d)(1) It is the intent of the general assembl y that a spo use who is economically

disadvantaged , relative to the other spouse, be rehabilitatedwhenever pos sible by the granting of an order for payment of rehabilitative, temporary supp or t and maintenance. Where there is such relative econo mic disadvantage and rehabilitation is not feasible in co

nsideration of al

l relevant facto

rs, including those set out in this subsection, then the court may gr ant an order for payment of support and maintenance on a long-term basis or until the-14- death or remarriage of the recipient except as otherwise

provided in subdivision (a)(3). R ehabili tative support and maintenance is a separate class of spousal support a s distinguished fro

m alimony in solido and periodic alimony. In determining whether the granting of
an order for payment of support and maintenance to a party is appropria te, and in determining the nature, amoun

t, length of term, andmanner of

payment, the cour

t shall consider all rele

vant factors, including: (A ) The relative earning capacity, obligations, needs, and financial
resources of each party, in cluding income fr

om pensi on, p rofit sharing or retire

ment plans and all o

ther sources; (B) The relative education and training of each party, the ability and opportunity

of each party to secure such education and training, and the necessity of a party to secure further educati on and training to improve such part

y's earning capa

city to a reasona

ble level; (C) The duration o

f the marriage; (D) The age and

mental condition of

each party; (E) The physical cond

ition of each par

ty, including, but no

t l imite d to, physical disability or incapac ity due to a chronic debilitating disease; (F) The extent to which it would be undesirable for a party to seek employment

outside the home because such party will be custodian of a minor child of

the marriage; (G) The separate assets of each party, both real and personal, tangible and intangible; (H) The provisio ns made with regard to the marital property as defined in § 36-4- 121; (I) The standard of l

iving of the partie

s esta bli shed during the marriage; (J) The exten t to which each party has made such tangible and intangible contributions to the marriage as monetaryandhomemaker contributions,

and tangible and intangible contributions by a party to the education, training or increased earning power of the other party; (K) T he relative fau

lt of the parties in

cases where the

court, in it s discretion, deems it appropriate to do so; and (L) Such other factors, including the tax consequences to each party, as are necessary to consider the equities between the parties.

We find that Ms. Davis is economically disadvantaged as compared to Mr. Davis. Ms. Davis is currently making

less than $1,000.00

a month while Mr. Da

vis maintains his closely held corporationwhich generates an income of at least $1,000.00 per week. Additionally, Ms. Da vis has
a very li mited work history and lacks a post-secondary degree or any technical training for a-15-

specified ar ea o f vocation. Even with the income Ms. Davis is currently receiving from her employment,it is evident that she cannot match the earning capacity of Mr. Davis. The purpos e of spousal support

is to assist the disadvantaged sp ouse in becoming se

lf-sufficient a

nd when economic rehabilitation is not feasible, to mitigate the harsh economic reality of divorce. Anderton v. Anderton , 988 S.W.2d 675 (Tenn. Ct. App. 1998). Divorced couples often lack sufficient income or assets to enable both parties to maintain their pre-divorce standard of living, however, the obligor spouse may be able to provide som

e financial assista

nce to enable the

disadvantaged sp

ouseto approach his or her former financial condition. Anderton v. Anderton , 988 S.W.2d 675 (Tenn. Ct. App. 1998).

In Tennesseethere is a preference for rehabilitative alimony. However, where rehabilitation is not feasible, a court may grant alimony in futuro . T.C.A. 3 6-5-101(d)(1). The Trial Court did originally determine based

upon testimony by Ms. Davis that re habilitative alimon

y was appropriat

e as it was Ms. Davis’s d

esire to return to

college and complete her degree. However, in addi tion to the original award of reha bili tative alimony the Trial Court also awarded Ms. Davis alimony in futuro in the amount of $1650.00 per month. The Tri al C ourt later deter mined that becaus

e Ms. Davis had obtained a job

and no longer desi

red toattend college, the Trial Court deleted Mr. Davis’s rehabilitative alimony responsibility.

This Court doe s not find that rehabilitation of Ms. Davis is feasible. While we are not discouraging her from returning to college some day, we find that rehabilitation wo

uld be difficult forMs. Dav is as it pertains to this proceeding. Even if Ms. Davis were to return to college and obtain a degree, it woul

d be difficult

for her to ever a

chieve a level of

financial secur

ity equal to

that of Mr. Davis or for her to obtain a reasonable standard of living when viewed in the context of her pre-divorceeconomic condition. Ms. Davis testified to a very limited work history, most of which she obtained working in Mr. Davis’s corporation. She lacks a post-secondary degree or vocational skills. Ms. Davis’s age (47 years old) is also a factor in determining that reh abilitation is not feasible. She testified that she has generated some income hanging wallpaper, but th at that was only part-time. Additionally, Ms. Davis testified very generally to several health problems including a hearing problem, high blood pressure and a heart condition. It is evident from the record, however, that these ailments ar

e not currently

preventing her from working as she has obtained employment in a hospital emergency room. We find that the rehabilitation of Ms. Davis is not feasible.

As for alimony in futuro , the Trial Court gr anted Ms . Davis $1650.00 per month for the remainder of he

r life or until she r

emarries or co-

habits with

another person. Ms. Davis signed an affidav it of income and expenses on July 20, 1998, whereby she documented that her nee d s amountedto $5,035.16 per month. We find this to be exces sive. In her affidavit, M s. Davis included$300.00 per month for her mortgage payment. However, Mr. Davis has paid the mortgage in its entirety and Ms . Davis was awarded the marital home free and clear of any outstanding mortgage. Also, Ms. Davis documented that she needed $200.00per month for school expenses but Ms. Davis has stated she is no longer interested in attending school and the i r daughter has now graduated from high school. Ms. Davis also stated that she needs $1,800.00 per month for installmentpayments on her c redit card bills, b

ut Mr. Davis p aid the balanc e on her outstanding credit card bills in the amount of $17,767.98. Ms. Da

vis also listed autom

obileinsurance for four-16-

people and four automobiles in the amount of $200.00 per month. At trial shewas awarded one automobile, and Mr. Davis was required to purchase an aut

omobile for their d

aughter and maint

ain the automobile insurance. Therefore, we will reduce her need for automobile insurance to $100.00 per month. Ms. Davis listed recreation and entertainment as $200.00 per month and miscellaneous
was listed twice at $200.00 per listing for a total monthly expense of $400.00. Finally, Ms. Davis listed $125.00 per month for vacations, $150.00 per month for a weight loss program and $66.00 per month for gifts. This equ

als $3,341.00 in excessive expenses. That brings her need from $5,035.16 to $1,694.16 which is at least a more reasonable figure than the one presented by Ms. Davis.

Ms. Davis testified that she currently makes approximately $215.00 dollars per week. That is approximately

$900.00 per

month income. In ad

dition, she recei

ved one half of th

e marital estate including a lump sum award of $208,386.00 to be paid at $1,500.00 per month plus i nterest. We believe the award of $1650.00 per month alimony in futuro was excessive considering the division of marital assets an

d the need demonst

rated by Ms. Davis . We t herefore reduce her alimony in futuro from $1650.00 per month to $1,000.00 per month effective on the date this decision becomes final.

For

the foregoing reasons the jud gmen t of the Trial Court is affirmed as mod

ified. This
cause is remanded for

proceedings not in

consistent with this o

pinion. Costs

of appeal are adjudged against Appellant, William H. Davis and his surety.

_________________________________________ HOUSTON M. GODDARD, PRESIDING JUDGE