### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE Februar y 12, 2002 Se ssion

JUDITH LYNN SILV EY v. DARREL C. SILVEY
Direct Appeal from the Chancery Court for Hamilton County No. 00-0572 Hon. W. Frank Brown, III., Chancellor

FILED MARCH 22, 2002

No. E2001-02007-COA-R3-CV

In this divorce action the Trial Court granted divorce ordered r ehabilitative alimony, child support and divided the marital property. Issues on appeal include the valuation, classifica tion and division of marital property and the award of alimony. We affirm in part, vacate in part and rema nd.

Tenn. R. App. P.3 Appeal as of Right; Judgment of the Chancery Co urt A ffirmed in Part, Vacate d in Part, a

nd remande d.

H ERSCHEL P ICKENS F RANKS , J., delivered the opinion of the court, in which C HARLES D. S USANO , J R ., J., and D. M ICHAEL S WINEY , J., joined.

John P. Konvalinka and M athew D. Brownfie ld, Chattanooga, Tennessee, for Appellant, Judith Lynn Silvey. Roger E. Jenne, Cleveland, Tennessee, for Appe llee, Darrel C. Silvey.

OPINION

In this divorce action, the issue before us involves the classification, evaluation and division of marital property, as w ell as the award of alimony to the wife.1 The Court awarded the husband the increase in value as a portion of his marital property.

-2- Following trial, the Court designated the wife as the primary r

esidential custodian for the minor child, and classified, assigned values and made di stribution o f t he pa rt ie s’ ma ri ta l p ro pe rt y. Child support and alimony were e stablished. The wife has appealed the valuation of the home place at the time of the marriage, and at the time of the

divorce , and she

charg es the Cou

rt erre d in valuing the husband’s business, as well as allocating Bledsoe County property , whe

n the parties had agreed to sell it and split the proceeds. The husband appeals the award of alimony and

charges the division of the marital property

was inequitable.
The Court

fo un d t he Ba tt er y Pl ac e p ro pe rt y to be th e h us ba nd ’s se pa ra te pr op er ty, and valued it at $500,000.00 at the time of the marriage, and $709,500.00 at the time of trial, wit h
an increase of value during the mar riage of $209,500.00. 1 Also, the Courtfound the East Valley Road, Bledsoe County prope rty was marital, a

nd valued the same at $550,000.00, which was awarded to the wife. Overall, the court awarded wife $191,350.00 more in proper ty th an the husband, finding that

he was in a better position to replace assets than the wife due to his income. The wife takes issue with the Court’s finding that the Battery Place property

was worth $500,000.00 at the time of the parties’ marriage.

Our standard of revi ew is de nov o with a presumption of correctness of the Trial Court’s findings of fact, unless the evidence pre ponderates otherwise. Tenn. R. App. P. Rule 13(d). McCarty v. McCarty , 863 S.W.2d 716 (Tenn. Ct. App. 1992). It is well-settled that valuation of an asset is a question of

fact that is to be determined by considering all of the evidence prese nted. Kinard v. Kinard

, 986 S.W.2d 220 (Tenn. Ct. App. 1998). As to the valuation of the home place at the time of the marriage, the only proof bef ore the Trial Court was that husband purchased thehome place for $58,000.00, and that he spent approximately $50,000.00 renovating the same, all of which
was prior to th

e partie s’ marri age. H e testifi ed that he did signi ficant w ork on the home prio

r to the marriage, but did not testify to any monetary amount for those efforts. Husband’s business partner and a former employ ee also testified regarding work the husband had done on the house prior to the marriage, but they

provided no proof as to the home’s value at the time of the marriage. Also, the evidence established that it was a show place home for the Symphony

Guild in 1979.

We conclude there is insufficient proof in this record to support the Trial Court’s finding as to the value of the home being $500,000.00 at the time of the marr iag e. The record indicates that more satisfactory evidence can be pr

esented which will enable the Tria l Court to establish the value of the Battery

Place property

at the time of the marriage, and we rema nd for that determination. See Tenn. Code Ann. §27-3-128. State ex rel. Vaughn v. Kaatrude , 21 S.W.3d 244 (Tenn. Ct. App. 2000).

Our finding necessitates a r

emand of the entir

e proper ty d is t ribution, since a significant

shift in the

value of one asse t could impa

ct on the o verall

apporti onment. As to the remaining major mar

ital asse ts, we co nclude th

ere is a mp le evidenc e to support the Trial Court’s2 The wife takes issue with the fact that the Court awar

ded her t he Bledso e County

propert y rather than orde ring it sold

and split, as the parties stated they agreed to at the conclusion of the trial. The Court did not issue its Mem oran dum Opinion for appr oximately 30 days a

fter the trial. However, the part

ies did n ot submit an

y type of Agreed Order or other doc

ument emb odying this agreem ent, and the Court obviously felt that it was best not to leave these parties “entangled” by having them force d to work together to sell the property. The Court had discretion to divide the property in the way it saw fit, and there is no revers ible error in the Court’ s decisio n to awar d this property to the wife. See Thompson v. Thompson , 797 S.W.2d 599, 604 (Tenn. Ct. App. 1990).

3 The husband was ordered to pay $3 ,000.00 pe r month alimony from Februar y 2001 to January 2002, $1,500.00 per month alimony from February 2002 to February 2004, and $1,000.00 per month alimony from February 2004 to February 2006. The Court also awarded wife $10,000.00 in attorne y’s fee s.

-3- finding of value of the husband’s business and the Court’s finding of value of the Bledsoe County pr op er ty. Tenn. R. A

pp. P. Rule

13(d). All of the other issues raised by these parties regarding

the propert y di stribution

will need to be addr

essed on r emand, a s well. 2

The husband takes issu e with the Trial Court’s award of rehabilitative alimony to the wife. The Trial Court has “w id e d is cr et io n” re ga rd in g a n a wa rd of al im on y, since the amount and duration are determined by the court’s findings of fact in con sideration of the statutory factors containedin Tenn. Co de Ann. §3 6-5-101( d)(1). T he statute clearly express es a pref

erence for rehabilitative alimony, where r ehabilitation is feasible. Long v. Long , 968 S.W.2d 292 (Tenn. Ct

. App. 1997). Th

e Trial Co urt’s alimony

award o f alimony

will be reversed only

when the trial court’s discretion “has manifestly been abused.” Id. In this case, the wife demonstrated that she had a nee d for alimony, because

she testified to her expenses and the fact that she was only working part-tim e and thus could not meet her expenses on her own. The Court

recog nized that wife had a n immediat

e needfo r a li mo ny, and also t hat she c ould likely

be reha bilitated in a few y

ears as she obtained fulltime employment and paid off som e debt s. The husband has the ability to pay alimony, since he earned by h is own test

imony at least $ 6,000.00 p er month , even though h is tax records showed a total income in 1999 of $90,213.00. He testified to expenses slightly ove r $4,000.00 per

month. The Courtconsidered the statutory factor s, finding that this was a 20-y ear marriage and that husba nd had
a greater earning capacity

and more significant separate prope rty holdings than the wife, andthat the husband had the a

bility to pay . The Cour

t’s awar d of reha bilitative alimony is supported b y the record , and we a

ffirm. 3
Upon remand, the Trial Court is direct ed to take fu rther proof on the value of the
mar ital residence at the

time of the

marriag e and de

termine t he incre ase in va

lue of tha t propert y during t he marr iage a nd then div

ide the pa rties’ pr operty in accor dance w ith the sta

tutory factor s.
The cause is remanded for further proceedings as indicate d, and the cost of the appeal-4-

is as se ss ed on e- ha lf

to Ju di th Lynn Si lv ey, an d o ne -h al f t o D ar re l C . S il ve y.

_________________________ H ERSCHEL P ICKENS F RANKS , J.