# FILED April 24, 1998 Cecil W. Crowson Appellate Cou rt Clerk DIANE KEE LAZENBY, ) ) Wilson County Gener al Sessions Plaintiff/Appellee, ) No. 5216 ) VS. ) ) JAMES ALLAN LAZENBY, ) Appeal No. ) 01A01-9708-GS-00432 Defendant/Appellant. )

IN THE COURT OF AP PEALS OF TENNESSEE AT NASHVILLE APPEAL FROM

THE GENERAL SESSIONS COU RT OF WILSON COUNTY AT LEBANON, TENNESSEE HONORABLE ROBERT HAMILTON, JUDGE

Honorable John T. Gw

in 2542 North Mt. Juliet Road P.O. Box 888 Mt. Juliet, TN 37122 ATTORNEY FOR PLAINTIF F/APPELLEE Honorable Sidney

S. F. Bennett 1225 First American Center 315 Deaderick Street Nashville, TN 37238 ATTORNEY FOR DEFENDANT/APPELLANT AFFIRMED AND REMANDED.

HENRY F. TODD PRESIDING JUDGE, MIDDL E SECTION

CONCUR: BEN H. CANTRELL, JUDGE WALTER W. BUSSART, JUDGE-2-

DIANE KEE LAZENBY, ) ) Wilson County Gener al Sessions Plaintiff/Appellee, ) No. 5216 ) VS. ) ) JAMES ALLAN LAZENBY, ) Appeal No. ) 01A01-9708-GS-00432 Defendant/Appellant. )



## O P I N I O N In this divorce case, the defendant/husband has appealed from the judgment of the Trial Courtgranting both parties a divorce as provided by TCA § 36-4- 129(b) , granting to the plai ntiff/wife the cus tod y of t he m ino r chi ld o f th e par tie s, w ith spe cif ied vis ita tio n by t h e husband, fixing child support, and dividing the marital estate. On appeal, appe

llant presents only

the following issu

es: 1. The Trial Court erred in its division of marital assets of the par

ties. 2. Th e T rial Court erred in its designation of a $9,000.00 portion of Husband’s separate dup lex pro pert y, as mar ita l pr ope rty. The wife states th

e following issue

s: 1. Whet h er

the Trial Court rul

ed correctly

in its division of marital

assets of the par

ties. 2. Whether

the Trial Court ruled correc t ly in its designationof a $9,000.00 por tion of Husband’s s

e p arate dup lex pro pert y, as mar ita l pr ope rty. 3. Whet her the Trial Court erred in its calculation of child support. 4. Whether

the Trial Court erre

d in its failure to grant Wife her a

ttorney fe es at trial. 5. Whether

the Wife should be award ed her attorneys f

ees incurred on

appeal.-3- Th e parties have filed identical sc hedules as requir

ed by Rule 15 o

f the Rules of this Court. A copy of said schedules is appended hereto as Exhibit A. Although not required by the rule, it would be a great convenience to this Court to have the total value of property awarded to each party. Accordingto the values fixed by the Trial Judge, the wife received $130,765.73; and the husbandreceived $88,244.53. However, within 30 days after the divorce

decree, the Trial Court entered the following order:

This Order is the result of a Motion filed on behalf of the Husband, an answer to the Motionwas filed by the Wife anda hearing was h

ad upon this matter

wherein it

was alleged that a mistake was made in calculatingthe property division andit is the finding of theCourt that the Husband was owed $22,000 as s ep arate property which was invested in the parties marital residence. Upon the review of the rec ord, it was found by the C ourt that the $22,000 wa

s not awarded to th

e Husb and. I n order to correct the mistake, the Court calculated that the previous Order

gave the Husband $6,681 more than the wife. Therefore, the $22,0 00 would be reduced by that amount leaving a total of $15,319 payable f romWife to Husband. Said amount to b e paid w ithin 45 days f rom the date of this Order. It appears that the quoted order required the wife to pay the husba nd$15,319.00 which would reduce the share

of the wife from

$130,765.73 to $115,446.73 and increase the share of the husband from

$88,244.53 to $103,5 63.53. By th is computation, the total marital estate was $219,010.26, of which the wife received 52.7% and the husband received 47.3%.
The husband complains that the Trial Court erred by including in the martial estate a $9,000.00 increase in

the value of his separately owned duplex because there is no evidence that the wife contributed

to t he p res ent ati on, mai nte nan ce or inc reas e in val ue o f th e pro pert y. The wife insists that her work as a housewife and homemake r justifie d her participation in the increased value. It has been he

ldthat the services of a homemaker may amount to a contribution to the success and appreciation in the value of a business. Brown v. Brown , Tenn. App. 1994,-4-

913 S.W.2d 163. Howev er, the ownershi

p of the duplex was not a business but aninvestment unconnected with the principal employment of the husband.
An error in includin

g the $9,000.00 in

the marital estate is deemed harmless in view of above computation of the percentages of the estate received by each party. TRAP Rule 36(b).
The sta tut e, T CA § 36- 4-1 21 d oes not requ ire an ex act ly equaldivision of the ma r ital estate, but an equitable

division. It is usual to award each party approximately one-ha lf of the marital estate. Evans v. Evans , Tenn. App. 1977, 558 S.W.2d 851.
In the division of martial property, the court has jurisdiction to do what may be just and re asonable

und er the circumstances. Langford v. Langford , 220 Tenn. 600, 421 S.W.2d 632 (1967).
Trial courts have wide discretion in dividing the marital estate. Loyd v. Loyd , Tenn. App. 1993, 860 S.W.2d 409.
No reversible error is found in the valuation or division of the marital estate. The foregoing disposes of the first and second issues presented by the wife.
The third issue presented by the wife asserts that the Trial Cou rt erred in setting the amount of child support. T

he decree req

uires payme

nt o f $731.00 per month, based upon an income of $4,925.00 per month. In addition, the husband is required to pay the wife $58.00 pe r month for health in

surance. This ma

kes a total of $4,983 child support.
The wife insist that the

gross rental inc

ome of the husband

should be included

in his income for setting child

support. This Court does not agree. In view of the mortgage de bt which-5-

preceded the debt, the payments thereon, together with expenses of t axes, insurance and maintenanceshould be allowed to reduce the net “cash-flow” income from the property, which is not found in the record.
The wife cites a conf

using series of t

ransactions invol

ving joint funds wh ich do not establish any right of additional recovery by her.
Fin all y, the wife asserts that she should be awarded attorneys fee by the Trial Court and this Court. The allowance o f attorney s fees is large

ly in the discretion of the trial courts, and the appellate courts wi ll not or dinarily interfere with that discretion. Houghland v. Houghland , Tenn. App. 1992, 844 S.W.2d 619. A similar discreti on is vested in this Court o n appeal. This Court finds no ground for reversal of the judgment of the Trial Court in regard to attorney fee , and, in its own discr

etion declines to o

rder payme

nt of fee for pro

ceedings in this C

ourt.
The judgment

of the Trial Court is affirmed. Costs of this appeal are taxed against the appel lantand his surety. The cause is remanded to the Trial Court for further nec essary procedure.


### AFFIRMED AND REMAN DED

___________________________________ HENRY F. TODD PRESIDING JUDGE, MIDDL E SECTION
CONCUR:

____________________________ BEN H. CANTRELL, JUDGE

____________________________ WALTER W. BUSSART, JUDGE-6-