### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE October 9, 2000 Se ssion

GERTRUD KRAUT DENEAU v. DONALD HERBERT DENEAU

Appeal from the Chancery Court for Stewart County No. 99-9-031 Leonard W. Martin, Judge

No. M2000-00238-COA-R3-CV - Filed February 23, 2001

This divorce case

involves property division and alimony after a short term mar riage. The trial court awarded all of the real property to the husband and allowed each par ty to keep the personal prop

erty in his or her possession. The court ordered the husband to pay $50,000 to the court clerk’s offic e, who shal l i n turn pay the wife’s debt to the Department of Veterans Aff airs and disburse the remainder to the

wife. The court r

efused to award

alimony. We a

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

P ATRICIA J. C OTTRELL , J., delivered the opinion of the court, in which B EN H. C ANTRELL , P.J., M.S., and W ILLI

AM B. C AIN , J., joined.
Carrie W. Kersh, Clarksville, Tennessee, for the appellant, Gertrud Kraut Deneau.
Markley Runyon Gill, Erin, Tennessee, for the appellee, Donald Herbert Deneau.

OPINION

Gertrud Kraut Deneau (“Wife”) and Donald Herbert Deneau (“Husband”) married in 1993, separated for a time in 1996, reconciled, and separated again in 1999. Wife filed for divorce. The parties stipulated grounds for divorce, and the hearing concerned proper ty division and alimony.

Both parties had sepa

rate assets at the

time of the marria

ge. Wife owned a

home at the time of the marriage and Husband paid off the indebtednes s o n the house immediately after the honeymoon. He also paid for taxes, utilities, and improvements, estimating that he spent a total of approximately

$35,000 on her property. His testimony indicated that he expected that

money to be repaid when the house was sold. Wife denied any such agreement, stating that Husband had said the house note paymen

t was a gift. When Wife later sold the house for $57,000, Husband received none of the proceeds.-2-

Wif e was employed at Shoney’s at the time of the mar riage but quit her job a

t Husband’ s request and did not work for the first five of the six years the parties were married. At the time of the marriage, Wife

was receiving

survivor benefit

s following the de

athof a previous husband. She continued to draw those benefits, although they should have stopped upon her marriage. Husband testified that he did

not know Wif

e continu ed to rece

ive the be

nefits. Wh

en the Department of Veterans Affairs learned of the wrongful payments, it demande d restitution of

$35,540. Although Wife sold her house for

$57,000, she repa

id only $20,00

0 of her debt to

the Department. The court inquired as to whether Wife ’s benefits could be rein state d after her divorce from Husband, and Wife’s counsel stated that they could, after the debt was paid.

Husband owned a farm prior to the marriage, and Wife did some work on it, although the parties disagree about how much work she did. The farm contained a trailer where the parties lived for part of the marriage. Husband spent some mone y bu ilding a house on t

he farm, but the ho

use was neve r compl eted. No testimony was offered regarding any increase in the value of the farm during the marriage.

Husband sold some

timber from the farm, although the parties disagree about the amount he received for the sale.

Husband testifiedthat he did not know how much money he had in his accounts when the parties married, but Wife put that figure at about $93,000.
Throughout

the marriage, Husband received $5,5 00 per month from various sources, and testified that he gave Wife $1,000 per month. D

urin g the mar

riage, Husband gave Wife jewelry worth about $23,000 and a $24,000 car which he titled in her name. Husband used his funds to pay for several expensive vacations that the parties to ok together. He

testified that he h

ad approximately $142,000 in his acc

ounts at the time of t

he trial.

Husband used about $133,00 0 of his funds to

purchase a house, and put both parties’ names on the deed. This became the marital home.
During the marriage,

Husband also

purchased two other parcels of land. He had previously owned the parcels

and had sold them to a

friend prior to the

marriage. Purs

uant to an agre

ement with the friend, Husband repurchased the land for the same price he had received for it, and testified that he used his separate funds to pay for the land. The deed for the two tracts listed Husband alone as the purchaser.
During the marriage,

Husband had medic

al problems,and Wife provided care for him. The parties disagree as to the seriousness of his condition and the amount of care Wife provided. Wife claim s he was hospitalized several times during the marriage, and that she provided care for hi m during that time. Husband admitted that he had a few health problems, but denied he was disabled in any way. He maintained that he c ould “kick a lot of butts yet.”-3-

Wife admitted to having a gambling problem. Husband introduced evidence of Wife’s checks written to a casino in Illinois and to “State Line Lotto” in Kentucky . Wife admitted pawning
some jewelry, b

ut claimed not to ha

ve pawned any

that Husb and gave h er. She claimed to have received $400 or $500 for two rings, but she could not remember whe re she pawned the jew elr y. She also testified that she ha d spent most of the $3 7,000 remaining from her house pr

oceeds, “[s]ome of it” on gambling, and that she spent the money she received in survivor benefit

s “probably gambling.”
Upon hearing the evidence, the trial court fo und that “Mrs. Den

eau is not a credi

ble witness. Mr. Deneau, on the other hand, ap peared to me, while he’s cantankerous and opinionated, to be credible.” The court then awarded each party the per son al p roperty in his or her possession. Husband was awarded al l of the real prop

erty

. The trial court considered the value of the marital home ($133,000) and the increase in Husband’s bank accounts ($49,000), divided the total by two, and found the value of half of the marital est

ate to be $91,000. T

he court determi

ned that, becaus

e of Wife’s dissipation of assets and because she had never repaid Husband the money he spent on her house, she should not be awarded half of the marital estate. The court awarded Wife $50,000 to be paid to the court clerk. The clerk was to satisfy Wife’s debt to the government and to disburse the remainder

to Wife. Wife was aw

arded no alimony

, but the court note

d that her survivor

benefits could be reinstated upon payment of her debt.

This appeal ensued. Wi

fe challenge

s the classificat

ion of certain

property, the division of marital property, and the trial court's refusal to award a limony. H usband filed a cross-appeal challenging the cash award to Wife.

I. Standard of Review

We review the findings of fact by the trial court de novo upon the record o f the trial court, accompanied

by a presump

tion of the corre

ctness of the find

ings, unless

the preponderance of the evidence is otherwise. Tenn. R. App. P. 13( d). Because the tr ial judge is in a be

tter position to weigh and evaluate the credibility of the witnesses who testify orally, we give great weig ht to the trial judge's findin

gs on issues i

nvolving c redibility of witnesses. Gillock v. Board of Prof’l Responsibility , 656 S.W.2d 365, 367 (Tenn.1983).

In cases involving issues of classificat ion and distribution of p roperty, a trial court’s decisions enjoy a presumption of correctness. Dunlap v. Dunlap , 996 S.W.2d 803, 814 (Tenn. Ct. App. 1998). Acco rdi ngly, a trial court’s division of the mar ita l estate should be presumed proper unless the evidence preponderates otherwise. Lancaster v. Lancaster , 671 S.W.2d 501, 502 (Tenn. Ct. App. 1984). Likewise, ap

pellate courts

give wide latitude to the trial court's discretion regarding support decisions. Cranford v. Cranford , 772 S.W.2d 48, 50 (Tenn. Ct. App.1989).-4- II. Classi fication of Prope

rty

Tennessee is a “dual property” state, meaning that the divorce statutes differentiate between marital and separate property. Batson v. Batson , 769 S.W.2d 849, 8 56 (Tenn. C t. App. 1988). Gen eral ly, separate property is that which was owned by

one party b

efore the marr

iage or given

to
one part y during the marriage. Tenn. Code Ann. § 36-4-121(b)(2) (1996). Marital property is, gene ral ly, that which was acquired by either or both parties during the marriage. Tenn. Code Ann. § 36-4-121(b ) (1). However, property acquired by one party during the marriage with that party ’s separate pre-marital funds is considered separate property. Tenn. Code Ann. § 36-4-121(b)(2)(B) (sepa rate property includes “property a cquired in exchange for property acquired be fo re th e marriage”); Wilson v. Moor e , 929 S .W.2 d 367, 374 (T enn. C t. App . 1996 ). Li kewis e, income received from a party ’s separate ass ets remains separat e property, with certain exceptions. Tenn. Code Ann. § 36-4-121(b)(2)(C).

The clear implication of the trial court’s explanation of its awardis that the court considered the marital estate, subject to division, as including the marital home and the increase in Husband’s accounts during the marriage.

Wife claims that the court improperly cl assified t wo tracts of land a s Husband’s separ

ate pro pert y. W if

e claims that, because the property was purchased during the marriage, it is marital property and should be divided. The trial court ob viously believed Husband's testimony that he purchased

that land with his separate funds. We find no error in the court’s treatment of the land as Husband’s sep arat e pro pert y. Wil son , 929 S.W.2d at 374 (pro perty acqu

ired in exchange

for separate property remains separate property ).

Wife also argues that although Hus ban d owned the farm at the time of the marriage, her contribution to the upkeep of the farm should entitle her to a share in the increase in its value. It is true that the increase in value of separately owned proper ty may, unde r some circumstances, be
co nside redmarital property. Tenn. Code Ann. § 36-4-121(b)(1)(B) (ma rital property includes increase in value of separate property if each party substantially contributed to its preservation and appreciation). No evidence was offered as to the present value of the farm, however, nor as to any increase in value during the marriage. The trial court made no mention of any increase in value when determini ng that the f arm was Husband’ s separate prope rty. Beca

use the record f

ails to demonstrate

the existence of a

ny increas

e in value, we ca nnot say that the trial court erred in not classifying

or awarding it. B rock v. Brock , 941 S.W.2d 896, 900 (Tenn. Ct. App. 1996) ("a court cannot divide and/or distribute what is 'not there'").

Wife also argues that she should share in the proceeds Husband received from the sale of timber from the farm. As noted

above, income received from a party’s separate assets remains that party’s separate property. Tenn. Code An n. § 36-4-121( b)(2)(C). We find the income from the tim ber t o be Hus ban d’s sep arat e pro pert y.-5- III . Division of Marita

l Property

After the property is classified, courts are to make an equitable division of the marital pro pert y. Tenn. Code Ann. § 36-4-121(a)(1). An equitable distribution is not necessarily an equal one, however. Batson , 769 S.W.2d at 859. The court is to consider several factors in its distribution, including the duration of the marriage, the contribution to and dissipation of the marital estate, the value of the separate property, and the estate of eac h party at the time of the marriage. Tenn. Code Ann. § 36-4-121(c) (listing the factors to be considered). The court’s distribution of property “is not achieved by a mechanical application of the statutory factors, but rather by considering and weighing the most relevant factors in light of the unique facts of the case.” Batson , 769 S.W.2d at 859. A trial court has a great deal of discretion concerning the manner in which it divides marital property. Smith

v. Smith , 984 S.W.2d 606, 609 (Tenn. Ct. App. 1997); see also Wallacev. Wallace , 733 S.W.2d 102, 106 (Tenn. Ct. App. 1987).

Wife argues that the distribution of property was inequitable. She argues, correctly, that the trial court is to make the distribution of marital property without regard to fault. Tenn. Code Ann. § 36-4-121(a)(1). She claims that, in the case before us, the trial court allowed her “fault” i n gambling away some of

the part ies ’ as set s to inf lue nce i ts d eci sio n reg ardi ng th e ma rit al p rop ert y. The trial court could not ignore, nor can we, thefact that Wife ga mbled away

thousands of dollar

s. Although Wife attempts

to charac terize the trial court’s consideration of her gambling as awarding property based on "fault," we believe the gamblingis properly characterized as "dissipation of the marital or separate

property,"

which the trial co

urt is required to

consider. Tenn. Code Ann. § 36-4- 121(c)(5). We find no error in considering that money which was gambled

away when determining an eq uit abl e di vis ion of p rop ert y.

Wife also challenges the trial court’s determination that the money Husband paid towardher mortgage and improvements to her house was a loan. She contends that the payment was a gift, and thereforeher separate property. I n making its division of marital property, the court stated that it had reduced Wife’s s

hare, in part,

because “she got all of that money out of him on that house, and he
never got any of it back.” The court heard conflicting testimonyregarding Husband’s payments, and determinedthat the money was a loan. In matters involving credibility of witnesses, we g ive great weight to the trial court’ s findings. Gillock , 656 S.W.2d at 367. We f ind no error in

the trial court’s considering the payment

s as a loan. In

fact, it really

doesn’t matter wh

eth er the payments were a loan to her or a gift t

o her because

they were only fac

tored in by the trial court in its determination of how to equitably

distribute

the marital assets. The court was entitled to consider Husband’s payments toward the house and thefact that Wife disposed of the money for her own purposes when deciding the eq

uities between the

parties.

Wife also contends that

the trial court imp rop erl y reduced its award of property to her because of the jewel ry and th

e car that Husband gave to her. A party' s separate assets are also a fact or for the court to c

onsider when divid

ing the marital pr

operty, an

d the goal is an e

quitable division. Tenn. Code Ann. § 36-4-121(c)(6). We find no error in such consideration.1 Husband has argued that the trial court erred in accepting Wife’s estimate of t he amou nt of mo ney in h is

accoun ts at the t

ime of the

marriage. Husband, when asked the same question , stated, “I wo uld hesitate to answer that.” Because Wife answered t he question,

while Husband would not , we find no er

ror in the

trial court’s a

ccept a nce of Wife’s estimate.
-6- Husban d also contends that the marital property was inequitably divided. He c laims that Wife should not have been awarded

$50,000. He argues that

Wife made no financial contribution to the marital estate, instead, depleting it with her gambling. He argues, essentially, that Wife has already squandered

enough of his money, and that she shouldn’t have any more. The trial court considered the marital home and th

e increase in Hus ban d’s acco unt s to be t he o nly i tem s of mar ita l pr ope rty. When Husband purchased the home for the parties a nd placed both nam

es on the deed, he

is presumedto have made a gift to the marital estate. McClellan v. McClellan , 873 S.W.2d 350, 351 (Tenn. Ct. App.199 3); Barnhill v. Barnhill , 826 S.W.2d 443, 452 (Tenn. Ct. App.1991). Nothing in the record rebu

ts that presumption.

Likewise, the

increase in his a

ccounts, 1 w hich repre sented money received during the marriage, was classified as marital property . Husband does not argue that the court improperly classified property ; his real objection is that the distribution was not equitable. Tenn. Code Ann. § 36-4-121(b)(1)(A).

The court added the values together and determined that an equal distribution of the marital
e state would

result in an award to each party of $91,000. The court awa rded Wife $50,000 after taking into account the $35,000 Husband had spent on her house, the dissipation of funds by Wife through her gambling,

and other approp

riate factors. The court also took into account the fact that Wife made non-monetary contributions to the marriage when making its awar d. In this short term marriage, the trial court attemp ted to place the pa

rties as nearly

as possible in the financial positions they would have held had the marriage never taken place. Batson , 769 S.W.2d at 859. We find no error in the court’s distribution of marital property.
IV. Alimony

Tennessee law pro vid es al imo ny in som e si tua tio ns. In re vie win g the pro pri ety of an alimony award, we must consider a number of factors, including the duration of the marriage; the separate assets of the parties; the relativeearning capa city, oblig

ations, needs and financial resources of the parties; and the relative fault of the parties. Tenn. Code Ann. § 36-5-101(d)(1)(A)-(L ) (listing the factors to be considered). Because suppor t decisions are f

actually driven and involve considering and balancing nu me rous factors, appellate courts give wide latitude to the trial court’s discretion

. Cranford, 772 S.W.2d at 50.

Wife sought rehabilit

ative alimony

of $1,000 per month

for two yea

rs. She argues tha t Husband’s income and assets and h er own lower ea rning capacity

establish that she i

s a disadvantaged

spouse. She contends that she was out of the workforce for five years at Husband’s insistence, and that the court failed to consider her contributions to the

marriage. She

also points to the greater award of marital property to Husband.-7-

Upon reviewing the record, we find no error in the trial court’s refusal to award alimony to Wife. The marriage was one of short duration, Wife had little going into the marriage, she retained money from the sal e of her house, she received valuable gifts from Husband during the marria ge, she “gambled away

thousands upon thousa

nds of dollars,” and she was awarded $50,000 as her equitable share of the marital property. Her survivor benefits will be reinstated onc e her debt is paid. We affirm the trial court’s decision not to award alimony to Wife.

V.

For the reasons stated above, we affirm the trial court’s awards of property

and its refusal to award ali mon y. This case is remanded for such further proceedings as may be necessary . Costs are tax ed eq ual ly to bot h pa rti es, for whi ch ex ecut ion may i ssu e if nece ssa ry.

__________________________________________ PATRICIA J. COTTRELL, JUDGE