# FILED May 21, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk 

### IN THE COURT OF A PPEALS OF TENN ESSEE

AT NASHVILLE

CHARLOTTE DIANA WINFREE, ) ) Plaintiff/Appellant, ) ) Appeal No. ) 01-A-01-9805-CH-00264 VS. ) ) Warren Chancery ) No. 6354 THOMAS SIDNEY WINFREE, ) ) Defendant/Appellee. )
APPEALED FROM THE CHAN CERY COUR T OF WARREN COUN TY AT MCMINNVILLE, TENNESSEE THE HONORABLE CHARLES D.HASTON, JUDGE

H. THOMAS PARSONS PARSONS & NICHOLS 101 West Main Street Manchester, Tennessee 37355 Attorney for Plaintiff/Appellant MARGUERITE H. STEWART CAMP & STEWART 111 West Court Square McMinnville, Tennessee 37110 Attorney for Defendant/Appellee

AFFIRMED AS MODIFIED AND REMANDED

BEN H. CANTRELL PRESIDING JUDGE, M.S.
CONCUR: KOCH, J. COTTRELL, J.- 2 - 

## O P I N I O N

This is an appeal of the division of marital property in a divor

ce case. We modify the judgment of the trial court.

I.

CharlotteDiana Winfree and Th omas Sidney Win free married on Augus t 28, 1982. They had two children, who were fourteen and twelv e a t the time of the divorce. Both parties had public employment; Mr. Winfree worked as a pr operty appr aiser

fo r the State of Tennessee; Ms. Winfree taught school in the Warren County system. They s eparated in September of 1996.

Mr. Winfree owned a home at the time of the marriag e. It sat on app roximately three acres of land give n to him by his parents. Shortly before the parties separated, Mr . W infree’s mother deeded another tw o acres to the parties jointly. At approxi mately the s ame time, Mr . Winfree convert ed the title

to the home to a tenancy by the entireties.

In addition to his regular employment, Mr. Winfree also raised cattle on his mother’s farm and on some rented acr eage. In December of 1997 t he parties announced to the court that they had ag reed that the home be sold at auctio n and the net proceeds divided sixty-five percent to Mr . Winf ree and thirty-five percent to Ms. Winfree. The proceeds of the cattle an d equipme nt sale wer e to be divi ded equa lly. At the time of the final hearing, the parties had divided the proceeds from the house and the sale of some of the cattle and the farm equipment. Mr. Winfree got $72,150 from the house and $12, 74 3 from the personal property.Ms. Winfree got $38,850 and $12,743 respectively

.

The proof showed that Mr. Winfree had a 401(k) retirement account at the time of the marriage. Betw een the marriage a nd the di vorce, the fund ha d grown- 3 -

by$69,748.54. Ms. Winfree earned a college degree dur ing the marriage, began her teaching career, and had $8,746. 00 in a retirement account.

Earlyin 1996, Mr. Winfree borrowed $20,000 from his 401(k) accou n t to pay on the parties’ cred it card debt. He was able to reduce the debt to approximately $2,000. By the time of the separation, the debt had increased aga in, to approximately

$20,000.Ms. Winfr

ee wa s chiefly responsible for these charges, although she contended that the purchases were primarily for family purposes. Mr. Winfree still owed approx imately $17,000 on his loan at the time of the he aring. The trial judge ordered the parties to be responsible for their respective debts.

In addition to the property the parties had already divided, th e trial judge ordered Mr. Winfree to pay Ms. Winfree $200 for a tool box Mr. Winfree removed from
one of the trucks sold earlier, $1 ,500 as the value of five cow s he retained, and $1,500 as one -half of the value of a front-end loader. The decree also awarded a Lumina automobile to Ms. Winfree, but the debt exceeded the value of the car by $2,000. Ms. Winfree also got the debt. In order to equali ze the property div ision, the trial judge ordered Mr . Wi nfree to pay Ms. Winfree $7,500 as her share of the increase in his 401(k) plan.

The final decree resulted in the following divis ion of the marit al proper ty: Husband Wife House $ 72,150 $ 38,850 Personal Property 12,743 12,743 Retirement Accounts 69,748 8,746 Tool Box 200 Cattle 1,500 Front-end Loader 1,500 1,500 Debt (17,000) (20,000) Lumina (2,000) Other Personal Property
-- -- Offsetting Payment ( 7,500) 7,500

________ ________ Total $131,641 $ 49,039 In fairness to Mr. Winf ree we should point out that he ow

ned the home before the marriage, and the parti es agreed that he should get sixty-five per

cent of it. That agreement can beconstrued as assigning

$33,300 of the h ome to Mr. Winfree- 4 -

as his separate property. If we make that adjustment, and subtract that amount from his total, his share of the marital estate comes to $9 8,341 and Ms. Winfree’s to $49,039.

II.

Ms. Winfree argues on appeal that during the marriage Mr. Winfree paid a $25,000 pre-marital debt to hi s parents, that he had a certificate of dep osit of $12,842.27 in a local bank, and that he retain ed furniture and household effects after the separation worth $18,000. She insists that all should have been accounted for in the division.

Mr. Winfree and his mother testified that the loan had been repaid prior t o the m arriage. Although M r. Winfree admitted in his deposition that the l oan was unpaid at t he time of the marriage, he chang ed his testimony and the tri al judg e apparently accepted his explanati on. Since th is issue i s prima rily one o f credib ility, we accept the trial j udge’s resolutionof the conflicting testimony. Town of Alamo v. Forcum-James C

o. , 327 S.W.2d 47 (Ten n. 1959).

The same can be said for t he certificate of deposit. T he trial judge heard Mr. Winfree deny having a certificate of deposi t and made a finding that it did not exist. Based on the record before us we c annot say that

the evidence preponderates against that finding. See Rule 13(d), Tenn. R. App. Proc.

The final decree awarded each party the personal property they had in theirpossession at

the time ofthe divorce. The record shows that Ms. Winfree took some of the household furniture and other goo ds wh en the parties separated. She estimated that what remaine d wa s worth $18,000. Mr. Winfree disputes that testimo ny. There is no proof of the value of what Ms. Winfree t ook. The refore, we cannot say that the trial jud ge erred in leaving them where he found them on thi s issue.- 5 - Ms. Winfree also asserts that the proof showed that Mr. Winfree so ld cattle in the months of October and Nov ember of 1996 and collected $5,556.98. The trial judge did notmake any finding on that item. Mr. Winfree admitted the sales but asserted that he needed the money to pay ex penses. He does not

spec ify what expenses. In light of the fact that he w as living in the mar

ital home rent free and Ms. Winfree was having to

pay rent at her new resi dence, we think she is entitle d to have Mr. Winfree account for the money he collected.

Finally, Ms. Winfree asserts that she is entitl ed to one-half of the amount Mr. Winfree’s retirement account incr eased during themarriage. She makes an err or common to many divorce litigants by treatin g each asset individually when we are concerned with the equitable di vision of the overall

marital estate. Tenn. Code Ann. § 36-4-121(c).

There are many factors that affect the div ision o f the marital p roperty. See Tenn. Code Ann. § 36-4-121(c). Included in the list are th e duration of the marriage, the contribution of one party to the education, training or increased earning power of the other party, and the contr ibution of each party to the ac quisition, preservation, a pprecia tion or dissipation of the marital property. In this case, Ms. Winfree earned a degree during the marriage and she has a history of living on credit. She insists that her debts should have been jointly shared, but we do not think the trial judge erred in concluding tha t the charges shemade the last year of the marri age and after the separation could reasonably be assigned to her.

We are also aware that the final decree is silent about another $10,000 loan on the farm equipment Mr. Winfree will ha ve to rep ay. But th e $17,000 remaining on the 401(k) loan, he owes to him self. As h e repays that loan with interest the bala nce in his retireme nt accou nt will rise a ccordingl y.

Taking all these factors into account , we think that Mr. Winfree should pay Ms. Winfree $25,000 instead of the $7,500 ordered by the t rial judge. The division will then look like this:- 6 - Husband Wife House $38,850 $38,850 Personal Property 12,743 12,743 Retirement Accounts 69,748 8,746 Tool Box 200 Cattle 1,500 Front-end Loader 1,500 1,500 Cattle Sold in 1996 5,557 Debt (17,000) (20,000) Lumina ( 2,000) Offsetting Payment ( 25,000) 25,000

_______ _______ Total $86,398 $66,539

The $25,000 payment is in addition to the payments alr eady ordered by the trial judge ($200, $1500 an d $1500) but no further payment is due for

the cattle sold in October and November of 1996 since we have taken that sale into account.

The judgment of the court below is modified as indi cated herein and as modified it is affirmed. Remand the case to the Chancery Cou rt of Warren County for further proceedings. Tax the costs on appeal to Mr. Winfree.

___ ______________________ ___ _ BEN H. CANTRELL, PRESIDING JUDGE, M.S. CONCUR:

_____________________________ WILLIAM C. KOCH, JR., JUDGE

_____________________________ PATRICIA J. COTTRELL, JUDGE