1 Rule 10 (Court of Appeals). Memorandum Opinion . -- (b) The Court, with the

concurrence of all judges participating in the case, may affirm, reverse or modify the ac tions of the trial court by memorandum opinion when a formal opinion would have no precedential value. When a case is decided by memorandum opinion it shall be designated "MEMORANDUM OPINION," shall not be published, and shall not be cited or relied on for any reason in a subsequent unrelated case. 

# FILED February 9, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF APPEALS OF TENNESSEE WESTERN SECTION AT JACKSON

______________________________________________ CHERI OWINGS TUNCAY, From the Shelby County Chancery Court, No. 26322-3 Plaintiff-Appella

nt, The Honorable D. J. Alissandratos, Chancellor Vs. C.A. No. 02A01-9709-CH-00209 AFFIRMED ENGIN HALIF TUNCAY, James D. Causey and Jean Defendant-Appellee. E. Markowitz of Me mphis For Appellant Michael C. Williams; Evans & Petree of Memphis, For Appellee

___________________________________________________________ _________________ MEMORANDUM OPINION 1

___________________________________________________________________________ CRAWFORD, J.
This is a divorce case. Plaintiff-appellant Cheri Owens Tunc ay was granted a divorce on the ground of inappropriate marital conduct. Mrs. Tuncay appeals the trial court’s division of the marital debts as well as the court’s failure to award her alimony beyond $5,000 in attorney fees. The parties had been married for app

roximately twenty

years when Mrs. Tuncay

filed for divorce in October 1995. Mr. Engin Halif Tuncay worked in the club managem ent busines s throughout the marriage, with income varying from $20,000 per year during the early years to
over $93,000 per year at the time of the divorce hearing. Mrs. Tuncay had significant income, sometimes as much as $200,000-300,000 per year during the early years of the marriage, from her ownership interests in various hotels and other companies which she owns jointly with other family members. This “passive” income allowed the parties to live an extravagant lifestyle. Mr. Tuncay at various times purchased a Jag uar, a Mercede

s, a Ferrari, and

a $50,000 boat, whi

le his individual income a

veraged less tha

n $50,000 per yea

r. Income from Mr

s. Tuncay’s holdings2

beganto decrease in th

e mid 1980's due primar

ily to a slump in the hot

el business. Mr. Tuncay also found himself on hard times, and at one point was unemployed for approximately two years. Mrs. Tuncay testified

that in order to sus

tain their lifestyle, the parties were forced to deplete her separate assets, including $200,000 that she held in certificates of deposit. Mrs. Tuncay further testifiedthat Mr. Tuncay never contributed any of his salary to running the household

and that she “had no idea” what he did with his money. Mrs. Tuncay is qualified to tea ch element ary students in all p rivate, city, and

county schools in the Memphis area, but she has not worked

full-time for app

roximately twenty

years. The evidence showed that Mrs. Tuncay has worked perio

dically as a

substitute teacher during the last six years, but has made little or no effort to obtain full-time employment. Four months prior to the divorce hearing, Mrs. Tuncay began working part-time at Service Merchandise for $7.30/hour. A major dispute at tr

ial, and in this appeal,involves assignment of a $41,000 debt owed to the IRS as a result o

f income tax, pena

lties, and interes

t from “phantom g

ains” on Mrs
. Tuncay’s holdings. Mrs. Tunc ay asserts that her husband has primarily benefitted from use of the parties’ credit cards and from her investment income and that he should bear

the majority of the credit card and

IRS debts because of his currently high earnings. Furthermore, she asserts she is entitled to alimony when considering Husband’s much greater earning capacity, the le

ngth of the marriage, th

e fault of Husban

d, her contributio

ns to th e parties’ lifestyle, and other statutory factors. Mr. Tun cay counters tha

t his wife has signif

icant earning ca

pacity as a

teacher, is in good health, an

d retains signific

ant personal, inc

ome-producing a

ssets. The final decree awarded Mrs. Tuncay an absolute divorce on the stipulated ground of inappropriate

marital conduct, awarded her custody of the two minor children, and ordered Mr. Tuncay to pay child support in accordan ce wi th the child support guidelines. In addition, the divorce decreeprovides in pertinent part that credit card debts totaling $8,297.56, as well as the IRS debtof $40,651.54, plus any interest and penalties, are to be borne equal

ly by the parties. In addition, Mr. Tuncay was ordered to continue making paym ents on the eldest daughter’s vehicle. Mrs. Tuncay was aw arded alimony in solido in the amount of $5,000, for part of her attorney fees.3 Mrs. Tuncay appe

als the order of t

he trial court an

d presents three

issues for revie

w: 1. Whether the tr

ial court erred

in ordering Wife

to be responsible f

or one-half of the 1994 tax deb

t. 2. Whether the tr

ial court erred

in ordering Wife

to be responsible f

or one-half of certain cre

dit card debts. 3. Whether the trial court erred in failing to award alimony to wife. Since this case was tried by the court sitting withouta jury, we review the case de novo upon the rec ord with a presumption of correctness of the findings of fact by the trial co urt . Unless the evidence pr

eponderates ag

ainst the findings,

we must affirm, a

bsent error of l aw. T.R.A.P. 13(d). The weigh t, faith, and cre

dit to be given to

any witness’ testimony lies in the first instance with the trier of fact. The credib ility accorded will be given great weight by the appellate court. Town of Alamo v. Forcum-James Co. , 205 Tenn. 478, 483, 327 S.W.2d 47,49 (1959); Mays v. Brighton Bank, 832 S.W.2d 347, 351-52 (Tenn. App. 1992). This case is unusual in that the primary debate involves th

e assignment of de

bts rather than the division of assets. Other than their home furnishings and automobiles, the parties seem to have acquired few, if any, assets during their marriage, In fact, there is not even a marita l hometo fight over. Mr. Tuncay quit-clai med his interest in the marital home to his wife, appar e ntly in the contemplation of personal bankruptcy. Mrs. Tuncay then quit-claimed her interest in the home to her father who assumed the obligation on the note. Trial courts have broa

d discretion in divid

ing the marital est

ate in a divorce proceeding. Kincaid v. Kincaid, 912 S.W.2d 140, 143 (Tenn. App. 1995). Marital debt should be allocated in the same manner as marital assets and should be considered w he n making an equitab

le division of property. Herrera v. Herrera , 944 S.W.2d 379, 389 (Tenn. App. 1996). The trial court should first separ

ate individual deb

ts from marital debts, id . (citing Batson v. Batson , 769 S.W.2d 849 (Tenn. App. 1988)), and then divide only the marital debts. Mondelli v. Howard , 780 S.W.2d 769, 773 (Tenn. App. 1989). Marital debts are those debt s incurred dur ing the marria ge fo r the joint benefit of the parties. Id. When dividing mari tal debts, courts s

hould consider the following factors: “(1) which party incurred the debt and the debt’s purpose; (2) which party bene

fitted from incur

ring the debt; and (

3) which party is

best able to assume and repay the debt.” Id. at 773. In the instant case, the trial court found the IRS tax liability to be

amar ital debt, stating in effect that although it resulted from Wife’s substantial ind ependen t4

income, both parties were equally guilty

of devouring the wealth that could have bailed them out. The evidencedoes not preponderate against this finding and it will not be disturbed on appeal. Similarly, the court found that the enumerated credit card debts were marital debt as they were incurred to support

the family, and/or

to support Mr. Tuncay while he was working in Indiana to help sustain the family. The evidence do es not preponder

ate against

these findings, and the record indicates that the

court properly

considered the necessary factors. We hold that the trial court did not abuse

its discretion in

holding each party equally responsible for the IRS tax debt and the various c

redit card debts
. Appellant’s issue number three involves the trial court’s refusal to aw ard appellant alimony beyond $5,000 in attorney fees. The trial c ourt has broad discretion in determining whether to award alimony. Loyd v. Loyd , 860 S.W.2d 409, 412 (Tenn. App. 1993). In making this de termination, the trial court must consider the factors listed in T.C.A. § 36-5-101(d)(1) (1996). Of these factors, need and ability to pay are the most critical. Loyd , 860 S.W.2d at 412.
Upon careful review of

the record, we h

old that the trial c

ourt did not abuse

its discretion in refusing to award more

than $5,000 alimony in solido . Although Mr. Tunc ay’s earned inc

ome is much greater than Wife’s potential income as a school teacher, Wife has significant

personal income-producing assets to rely upon. In addition, Mrs. Tuncay testif ied that her fath

er would likelyallow her and thechildren to continue to live rent-free in what was once the marital home. The judgment of the trial court is affirmed. Costs of the appeal are assessed against the appellant.

_________________________________ W. FRANK CRAWFORD, PRESIDING JUDGE, W.S. CONCUR:

____________________________________ DAVID R. FARMER,

JUDGE

____________________________________ HEWITT P. TOMLIN, JR. SENIOR JUDGE