# FILED August 5, 1998 Cecil Crowson, Jr. Appe llate Court C lerk IN THE COURT OF APPEALS OF TENNESSEE,

AT JACKSON

_______________________________________________________ ) LINDA JANIECE WRIGHT -MILLER , ) Dyer County Circuit Court

) No. 96-234 Plaintiff/Appellee. ) ) VS. ) C.A. No. 02A01-9708-CV-00196 ) HARVEY GRANVILLE MI LLER , )

) Defendant/Appe

llant. ) )

______________________________________________________________________________ From the Circuit Court of Dyer County at Dyersburg. Honorable Joe C. Morris, Chancellor, Sitting by Interchange

Thomas H. Strawn , KELLY, MILLAR, STRAWN & KELLY, Dyersburg, Tennessee Attorney for Def

endant/Appellan

t. Douglas W. Wilkerson , W. Lewis Jenkins, Jr. , WILKERSON GAULDIN & HAYES, Dyersburg, Tennessee Attorneys for Plaintiff/Appellee.

OPINION FILED: AFFIRMED IN PART,

REVERSED IN PART AND REMANDED FARMER, J. CRAWFORD, P.J., W

.S. : (Concurs in part, Dissents in part by Separate Opinion) HIGHERS, J. : (Concurs)1 Mr. Miller testified that his name is Granville Harvey Miller although he is identified

throughout the record as “Harvey Granville Miller.”

2 The parties’ marriage was Husband’s fourth and the second for Wife. This is a divorce c

ase. The partie

s, Granville

Harvey Miller 1 (Husband) and Linda Janiece Wright-Miller (W ife), were mar

rie d fo r approximately 5 years before a final decree of divorce was entered in August 1997. 2 During the marriage, the parties resided at a home located at 2166 Aztec Drive. On

appeal, Husband

challenges the c

orrectness

of the trial court’s classification of this property as marital as well as its determination that the asset is unencumbered. Husband contends that

the true owner of

the property

is Heartland Investments, Inc. (Heartland), a corporation that he founded prior to the parties’ marriage and of which he is president and sole shareholder or, alternatively, that the parties own the property encumbered by a mortgage executed in favor of the corporation. Wife has also raised an issue with respect to the trial court’s finding that there was no increase in

value of Heartland stock

during the marria

ge. After revie

w of the record,

we affirm in part and reverse in part. We set forth our reasons below.

Prior totrial, the partie

s stipulated that the

y would be divorce

d pursuant to

the trial court’s statutory authority set forth in T.C.A. § 36-4-129. T hey also s tipulated that Wife had substantially

contributed durin

g the marriage to

any increase in

value of Husband ’s separate interest in Heartland stock. By consent order, it was agreed that the marital home would be sold on October 1, 1996, with the net proceeds (approximately $148,000) temporarily placed with the court clerk. The trial court subsequently entere d an orde r acknowledging that all issues regarding division of property and debts had been settl ed by the parties except those concerning (1) the division of the proceeds of the sa

le of the house

and lot located at 2166 Aztec Drive and (2) the division of any increase in value during the marriage of Heartland stock.

The following facts are not in dispute: Prior to the parties’ marriage, Husband was the president and sole shareholder of two corporations: Heartland, which dealt pr ima rily with the purchase and sale of real

property and Mille

r Consolidated Ser

vices, Inc., which dea

lt with various plumbing and electrical services. The parties purchased the property at 2 166 Aztec Drive by warranty deed which identifies the purchasers as “Harvey G. Miller and wife, Janiece Wright-Miller,
as tenants by the entirety” and was recorded on September 13, 1993. On this day , t he partiescontracted to constru ct a dwelling on the property for a total price of $107,328.28. The contract providedthat final payment was to be made when the “Customer,” identified as “Harvey G. Miller and wife, JanieceWright-Miller,” either sold the house or moved onto the premises. The contract is signed by “Customer

” as “Heartlan

d Invest
. ” and also includes the individual signatures of Husband a nd Wife. Heartla nd funds were use

d to purchase the

property and con

struct the home
. A consent resolution of Heartl and, dated July 12, 1996, authorizes

Husband, as pres

ident, sole shareholder

and director of t

he corporation,

to execute a dee

d of trust in the amount

of $146,688.85 “inorder to ensure repayment of said sum to the co

rporation upon the

resale of said real estate . . . .” On August 20, 1996, Husband recorded a deed of trust on the property in favor

of Heartland in this amount. It is signed by Husband only and states that the borrowed funds were due and payable in full to Heartland upon resale of the proper t y. The July 1996 resolution makes reference to an August 1993 consen

t resolution which i

s signed by Husband

and reads as foll

ows:

CONSENT RESOLUTION OF HEARTLAND INVESTMENTS, INC. 2380 UPPER FINLEY RD. DYERSBURG, TENNESSEE 38024 By conse nt of the sole shareholder and director of the corporation the following resolution was adopted: RESOLVED, that the president and sole director of the corporation is he

reby authorized

to contract with VALLEY LAND DEVELOPMEN T COMPANY to purchase a lot and construct a 3 bedro om sin gle family dwelling for resale. Said officer is authorized to negot iate all terms and sign all necessary documents

to procure a loan or use funds from HEARTLAND [ IN VESTMENTS]. The amount of the loan, withdrawal from HEAR TLAN D IN V ESTMENTS FUNDS are limited to a combined total of $150,000.00. Dated this the TENTH day of AUGUST, 1993.
The construction of the home was completed in June 1994.

At trial, Husband tes

tified that he nev

er intended to con

vey a one-half

interest in

the property to Wife and that within a couple of weeks of the warranty deed ’s execut ion, the parties executed a quitclaim

deedprepared by Wife, “quitclaiming [the property] back to [Heartland].” The quitclaim deed was not produced at trial. According to Husband, the warranty deed identified theparties as purchasers because the se ller would not allow the property to be

placed in a corp

orate
name and would not accept an out-of-town corporate check at closing. Husband maintained that it
was his intention that the house be purchased as an asset of Heartland and that it be sold for a pro

fit to the corporation. He stated that “[the home] was for sale from the time that we started construction
on it . . . .” He denied that the purpose for the construction of the home was to provide a residence for the parties.

Husbandstated that a series of checks were written on Heartland’s account to pay for the construction of the house. When asked whether these funds were a loan or “something else,” he replie d, “at that p oint, it was either a loan or this actually belongs to the corporation.” When questioned further as to whe ther Heartland r

eally owned the pr

operty or whether the companyhad loanedthe parties the fu

nds to purchase it, he answered, “[a]s of right now, it was a loan because the paper work that we had, I can’t locate and it was never filed.” He additionally testified:

Q. And, your testimony is tha t it was your intent,

at the time

that you bought this property, that for [Heartland] to own

it; is that right? A. Yes, sir, own it and sell it.

. . . . Q. Buttoday, because you can’t find this Quitclaim Deed you say was made, you now say that [Heartland] loaned the money, and that [Heartland] ought to be repaid; is that basically what your position is about this house? A. Wellregardless,

either way you look at it, th

e money all came out of [Heartland] because we had no money.

. . . . A.
. . . . We could not possibly qualify for a [$175,000.00] house. Our income has never been that way, combined income. We could not go to the bank and get a loan. And, it was, like I say, it was a business.

Husbandstated that Hear tland received v

arious loa ns from First Tennessee Bank which were personally guaranteed by him. He adm it ted that none of his personal financial statements

presented at trial, dated from 1993 to June 1996, indicate t hat he ow ed Heartland any money. He explained tha t Wife had prepa

red the financia

l statements. He sta

ted that Wife also prepared, on or about August 10, 1993, the consent resolution authorizing him to purchase theproperty

with Heartland funds. Headmitted that a pro missory note was ne

ver executed to

Heartland butstated that there was a “minutes of t he meeting promise

” regarding the o

bligation. He coul

d not produce the minutes of the meeting at trial, stating that the corporate record book was missing. He maintained that he and Wife, the corporate secretary, attended the meeting wh ere they deci ded to build the house “for sale under Heartland Investments.” He explained that

a note was never executed to Heartland because “at [that] point it was going to be [Heartland] all the way.”

Heartland presently owns three commercial properties in Fulton, Kentucky, all of which have been

condemned by the city. In Tennessee, Heartland owns three rental properties, one commerci al and two residential, and a warehouse located at 2380 Upper Finley Road where Heartland presently maintains its offices. Husband testified that the latter property was purchased in 1995. Mille

r Consolida ted was dissolved in 1991 and its assets (

$225,000) were f

olded into Heartland in 1993. Husband stated that Heartland had constructed about ten houses altogether and two within the last five years. He resided in one for a short time prior to the couple’s marriage.

Husbandbelieved Heartland to be about one-third the value it was when the parties
ma rried. He believed the decrease in value was primarily due to his failing health, the phy sica l depreciationof the propertie s and the business’ s fai ling reputation wit h lending institutions
. Husband stated that he is not presently employeddue to his health pr oblems and that He

artland is “just sitting there.”

On direct examinati

on, Husband testif

ied that he was “almost positive” that the parties executed a prom

issory note to Hea

rtland but that he w

as unable to obtain

it because

it was
on a computer in

Wife’s possession. He maintained that he had been repaying the loan in increm

ents of $1,000 per month ever sinc e he and Wife had resided in the home. He explained that he was charging Heartland a management fee for his services and that when the company paid him $1,000 a month, he in turn paid this amount toward the note.

Husbandstated that after a diligen t searc h, he remained unable to locate all of the corporate books

and records inc

luding those contai

ning the quitclaim de

ed. He was questi

oned:Q. Did those books and records include, among other things, a quitclaim deed? A. Yes, sir. Q. Do you recall when that quitclaim deed was signed? A. It was signed on a Sunday afternoon in Fulton, Kentucky. Q. . . . . And, who signe d it? A. I signed it, my wife signed it and it was notarized, a local notary. Q. And, what did you al l quitclaim? A. We gave up all the rights to the property? Q. To who? A. To the corporation.

. . . . Q. Did you ever rec

ord the original? A. No, sir, didn’t have any reason to.

Husbandrequested that the court award the entire amount of net proceeds from the sale of the marital hometo the corporation, stating that “[w]ell regardless, what happens is, I have got to satisfy that corporation. I’ve got to pay that.”

Wife testified that she and Husband prepared hi s p ersonal financi al statements together. She never participated in any corporate meetingsor prepared an y corporate res

olutions. When the parties first married, they resided at 2108 Aztec Drive. Th ey agreed to sell

that property and buy a new house in another subdivision and reside there until construction of the home at 2166 Aztec was completed. W ife stated that Hu

sband never info

rmed her that the

homewas going to be
an investment of Hea

rtland or that the p

urpose for constr

ucting the home wa

s to immediately list

it for resale to a third party. She said that “[Husband] always told me that house was our house . . . .” and “I trusted that.” When the parties started having problems, Husband informed her that Heartland actually owned the property. She denied ever preparing or executing a quitclaim deed regarding the property or signing any promissory note to Heartland. She further testified:

Q. Up until the time that you and M r. Miller started havingmarital troubles, to your knowledge, did either you or he ever pay [Heartland] any money for the money that went into the construction of this house? A. No, sir. Q. You are aware, . . . that . . . [Heartland] did issue it’s checks to pay for the construction of this house? A. Yes, sir. Q. Did that seem unusual to you? A. No, sir. Q. Why not? A. Well, because

[Heartland] -- there’s always a lot of mixing of money. I mean, he’s paid for personal expenses, he paid for anything he didput on his credit card and then he paid for it out of Heartland. And, the personal and company money was just always . . . it was ju

st kind of all together. Q. That is, in fact, th e way Mr. Miller op

erated, wasn’t

it? A. Yes, sir.

On cross-examination, Wife acknowledged that the contract for construction of the homeat 2166 Aztec was signed by the “customer” asHeartland Investments as well as the individual parties. She expla

ined, “[n]ormal

ly, if [Husband] was doing something . . . and it was a company document, it would have Harvey G. Miller, President an d he would ha ve wanted Janiece WrightMiller, Secretary. And t hen, he would sign a

s that position . . . .” She could not explain why Heartland had been written on thedocument in addition to the individual sign atures of the par

ties.
Danny Harris, a certified publ ic accountant, testified that he was familiar with the business of Heartlan d and, for a period of time, had prepared Husband’s corporate financial state ments. H e stated that the c ompany sustained a

loss in operating in

come of approxima

tely $30,000 in fiscal year 19

93 and a loss

of approximately $34,000 for fiscal year 1994. He explained that the c ompany als o realized a deferred gain of $72,000 in this year, representing the insurance proceeds from a fire which occurred in November 1991. For fiscal year 1995, the company realized
a net profit in operations of $11,700, but in 1996, realiz ed a loss in operat

ions of $8,900. Har

ris explainedthat for fiscal ye ars 1992 through 19

96, there was a to

tal increase in

stockholder’s equity of $223, 000 due t o the liquidation of Miller Consolidated

which resulted in a

n increase in3 This financial sta tement states that

it is accurate “a

s of January 1, 1996.” It lists Husband’s assets to include “real estate, two homes, one rental, one occupied, [at a value of] $210,000.” Husband acknowledged that as of June 12, 1996 he occupied no home other than the one at 2166 Aztec Drive.

4 After certain deductions, Wife was awarded $70,528.75 plus one-half of any accr ued interest and Husband received $63,028.76 plus one-half of any accrued interest. The court denied Husband’ s motion to stay disbur sement of the fund

s pending the outco

me of this appeal. Heartland’s book value. When the contribution made from the liquidation of the subsidiary was excluded, Harris said that there was actually a $2,000 decr ease in b ook value. Harris stated that “[w] ithout the contribution and deferred gain,” he could not determine that there had bee n a n increase in the company’s book value for the years in question.

On cr oss-exam ination, Harris a dmitted that prepa

ration of the fina

ncial statements
were based on information provided by Husband. He made no independent verification. He utilized the income tax basis of accounting in preparing the financial statements and agre ed th at the statements

alone could not be utilized to determine a fair market value of the company if the value of the propertie

s owned had chang

ed significantly f

rom their original

cost.

Andrew Harrington, a loan officer at First Tennessee Bank, testified that the bank had made various loans directly to Heartland with Husband as guarantor. For a loan made to Heartland in August 1996, the bank relied, in part, on the personal financial statement of Husband dated June 12, 1996 which did not reflect that Husband owed any debt to

Heartland and expressly indicated that there were no mortgages against the 2166 Aztec property. 3

Based upon the foregoing, the trial court classified the home at 2166 Aztec Drive as marital property and

found that no mortga

ge or indebtedne

ss existed against it. The court divided the net proceeds fr

om the sale of the h

ome equally betwe

en the parties. 4 The court also found that there had not been a “true increase” in the value of Heartland stock during the marr iage.

Husband identifie

s two issues for re

view on appeal:

I. Whether the trial court erred in adjudging that the residence occupied by the parties located at 2166 Aztec Drive in Dyersburg, Tennessee, was marital property.II. Whether the tria l court erred in a

djudging that th

ere wa s no mo rtgage indebtedn

ess against the pr

operty occupied

by th e parties at 2166 Aztec Drive in Dyersburg, Tennessee.
Wife presents th

e following additio

nal issues:

I. Heartland Inve

stments , Inc. increased in value during the parties’ marriage. II. The plaintiff should receive her attorney’s fees on

appeal.

We f irst ad dress whether the trial court erred in classifying the 2166 Aztec Drive property as marital. Wife argues that the trial court was correct in its classification. She asserts that although Husband usedsepar ate property (Heartland funds) to purchase the property, it was thereafter titled in the names of both parties as tenants by the entirety and that the property therefore became marital pursuant to the doctrine of transmutation. In Batson v. Batson , 769 S.W.2d 849 (Tenn. App. 1988), the court recognized that separate property may become marital if its owner treats it as such. Bats on , 769 S.W .2d at 858. The Batson court defined the doctrine of transmutation as f

ollows:
[Transmutation] occurs when separate propert y is tr eated in such a way as to give evidence of an i ntention that it become marital pr op erty. One method of cau sing transmutation i

s to purchase property with separate funds but to take title in joint tenancy. This may also be done by placing se parate propert

y in the names of both spouses. The rationale un derlying both

these doctrines i

s that dealing withproperty in

these ways creates a rebuttable presumption of a gift to th e marital estate. This presumption is based also upon the pro vision in many marital property statutes that property acqu ire d dur ing the marriage is presumed marital. The presumption can be rebuttedby evidence of circumstances or comm unications clear ly indicating an intent that the property remain separate. 2 H. Clark, The Law of Domestic Relations in the United States § 16.2, at 185 (1987).

Id
.

Husbandargues that the presumption created by titling the property in the names of both parties as tenants by the entirety is rebutted by the following:5 Mr. Harris stated that his accounting of the business reflected a “receivable from

stockholder” in the amount of $110,636 as of May 31, 1996.

1. The corporation cou ld n ot buy the property in its own name by subdivision restriction. 2. Evidence that the corporation has p urchased a prio

r home in which the parties had resided during the marriage. 3. All of the monies to pur chase the lot and c

onstruct the house came from the corporation. 4. The defendant clearly testified it was not his intention to make a gift of one-half (1⁄2) of this expensive property to the plaintiff. 5. There still exists an outsta nding indebtednes s to the corporation of approximately $123,000.00. 6. The defendant so

lely made the mortg

age payments. 7. The defendant solely paid the taxes on the property. 8. The defendant solely maintained the property out of hi s income. 9. The corporation normally purc hased p roperties in this manner and sold them during the ordinary course of its business.

As to the first

reason, we note that Husband testified that the property was titled in bothparties’ names a

s tenants by the ent

irety because th

e seller would not s

ell t o a corporation. However, as Wife aptly poi nts out, Husb and could have titled the property in his name only if he intended the property to remain separate. As to the second, we find that evidence that the corporation had previously purchased a home in which the parties had resided inconclu

sive on this issue. As to the third stated reason, it is not disputed that the fu nds us ed to purchase the lot and construct the house came from

Heartland. However, since the property was

titled in both partie

s’
names as tenants by the e ntirety, this fact

gives rise to the iss

ue of wheth

er the doctrine of transmutation applies. Reasons 7 through 9 are not determinative of the issue but are merely factors to be considered. A

s to reasons 5 and 6, the record creates doubt as to whether an actual mortgage against this prope

rty ever existed

. There is no promis sory note indicating such and we agree wi th Wife that a listing of this debt on the corporation’s financial statements may have been simply a tax strategy. 5 Moreover, if a mo rtgage against th

e property

actually exists, this contradicts Husband’s position that Heartland is the true owner of the prope rty. These reas

ons along with rea

son 4 also address Husband’s credibility.6 The deed of trust was recorded on August 20, 1996. Clearly, resolution of the is sue in v olves a determination of the credibility of the parties. The record incl udes cont radictory testimony regarding Husband’s intentions as to the ownership

of this property. After review of the record, we find Husband’s testimony in this regard inconsistentat best. He testif ied to a consent re

soluti on author izing him as preside nt and sole shareholder

to purchase

the 2166 Aztec property and construct a home thereon using Heartland funds. The consent resolution introduced at trial is dated August 10, 1993 and signed by Husband. It identifi es Heartland’s address as “2380 Upper Finley Road.” According to Husband’s ow n testimony, however, this particular piece of property was not purchased until somet i me in 1995. Thus, the date

on which the consent

resolution was actually executed appears suspect. Most telling, howeve r, ar e the inconsistent positions taken by H

usband at trial re

garding the owner

ship of this property. Initially, Husband asserts that Heartland owns the property, having obtained title from the parties by a quitclaim deed. Husband, however, could not produce the deed at trial and Wife denies its ex ecution. Inapposite to this position is Husband’s testimony that the parties actually own the property, having purchased it with borrowed funds from Heartland, with the loan recognized by a promissory note and deed of trust. Again, no promissory note was introduced at trial. With respect to the deed of trust,

the record indic

ates that a document of this kin

d was not execute

d untilJuly 15, 1996, less than two months prior to the filing of Wife’s complaint for divorce. 6 Finally, the record includes Husband’s personal financial statement “as of January 1, 1996,” which was prepared June 12, 1996, to list the property at 2166 Aztec as a personal unencumbered asset.

It is clear that the trial court accredited Wife’s testimony. “Where the issue fo r decision depends on the determinat ion of the credibi

lity of witnesses,

the trial court is the best judge of the credibility an

d its findings of credi

bility are entitled

to great weight. T

his is true becaus

e the trial court alone has the opportunity to observe the appearance and the demeanor of the witnesses.” Tenn-Tex Properties v. Brownell Electro. , 778 S.W.2d 423, 426 (Tenn. 1989). We find no error by the trial court in its classification of this property as marital. We further find the record to support the trial court’s fin

ding that no mortgag

e or indebtednes s exists against the property for the reasons stated above.Wife presents the issue of whether the trial court erred in finding that there had been
no increase in value in Heartland during the marriage. She argues that the evidence reve als that the value of Heartland

increased during the marriage by at least $223,000. To support her position, she relies upon T.C.A.

§ 36-4-121(b)(1 )(B) which states as follows:

“Marital property” includes income from, and any inc

rease in value during the marria

ge of, property d

etermi ned to be separate prop erty in accordance with subdivision (b)(2) if each part y substantially

contributed to its preservation and appreciation and the value of vested pension

, retirement or ot

her fringe bene

fit rights accrued during the period of the marriage.

Wife asserts that “[t]he b road language of the s tatute includes a

ny increase, whi

ch would seem to include an increase from receiving assets from a liquidating company.”

It was Mr. Harris’ testimony that without the consolidation of Miller or the deferred gain realized from the 1991 fire, Heartland actually sustained a loss in book value of approximately $2,000. Harris admitted on cros s- examination that he utilized the income tax basis of accounting which relies upon the original cost of property in determining book value. The only other

evidence presented regarding Heartland’s value were the personal financial statements of Husband. On a statement dated June 1, 1993, Hu sb and valued assets in Heartland at $410,000, at $528,000 in a statement dated May 31, 1994 and, as of January 1, 1996, h

e valued Heartl

and’s assets

at $585,000. Thus, Husband represented an increase in value

of $175,000. Wife

argues that the tr

ial court should have divided the increase as re flected in Husband’s financial statements. It is Husband’s position that the only

proof before the court revealed that the increase in book value resulted only from the consolidation of Miller’s assets with that of Heartland. He asserts that the recognition of an actual increase in value under these circumstances “would be patentl y unfair and not in k

eeping with

the intentor spirit of the statutory law of this state.” We read the plain language of the statute to define marital property to include “any” increase in value. Our supreme court has held tha t “[t]he word ‘any’ is all inclusive” and has interpreted it to include an increase in value due primarily to

inflation. See Ellis v. Ellis , 748 S.W.2d 424, 426 (Tenn. 198 8). The partie s agree that Wif e substantially contributed during the marriage to any increase in value of Heartland stock.In Harrison v. Harrison , 912 S.W.2d 124 (Tenn. 1995), Husband was deeded 125
acres prior to the parties’ marriage. During the marriage, an interstate h ighway was constructed
across the property which greatly i n creased the value of the farm. Our supreme court determined that it was separate property but hel d that the evidence did not support the wife’s claim that she substantially

contributed to the preservation or appreciation of

the property, and thereby it was not marital property. The court went on to say:

Application of the rule stated in Ellis to the facts of this case would require the conclusion that if the evidence proved that the wife had contribut ed substantially to the preservation and appreciation in value the entire amount of the increase in value would be marital property; but, since the evidence does not sho w that th e wife substantia lly contributedto the preservation or app reciati on of the property, the increase in its value is not marital property.

Harrison , 912 S.W.2d at 127. Whether a spouse has made a substantial contribution to the preservation and appr eciation of the ot her spouse’s sep

arate property

is a question of fa

ct. Substantial contribut io ns are not limited to direct contributions but also include indirect contributions such as “homemaker, wage earner, parent or family financial manager.” T.C.A.§ 36- 4-121(b)(1)(C). A spouse’s contributions must be r eal and significa nt in order to be substantial. However, they need not be monetarily commensurate to the appreciation in

the separate property’s value, nor must they relate directly to the separate property at issue. Brown v. Brown , 913 S.W.2d 163, 167 (Tenn. App. 1994). Unlike the Harrison case where it was determined that the evidence didnot support the fact that the wife had made substantial contributions to the increase in value of the separate prope

rty, in the presen

t case the part ies stipulated that Ms. Wright-Miller

did substantially

contribute during the m arriage to any increase in value of Heartland stock. Consequently, we conclude that Wife is entitled to an equitable share of the incr ease in value of Heartland which, as reflected in Husband’s financial statements, totals $175,000.

We deny Wife’s request for an award of her

attorney’s fee

s incurred in this a

ppeal. The judgment of the tria

l court is reverse

d with respect to it

s decision that there has been no increase in value of Heartland stock during the marriage. We therefore remand this cause

to the trial court for a determination o

f an equitable dis

tribution of the inc

rease in value realized by Heartland during the marriage. The judgment in all other respects is affirmed. Costs are assessed against Husband,for which execution may issue if necessary.

____________________________________ FARMER, J.

CRAWFORD, P.J., W.S. (Concurs in part, Dissents in part by Separate Opinion)

______________________________ HIGHERS, J. (Concu

rs)