### IN THE CO URT OF APPEALS OF TE NNE SS EE AT NASHVILL E Ju ne 24 , 20 09 Ses si on
LARRY LYNN AVERITT, SR. v . LYNN BINKL EY AVERIT T

Direc t Appeal from the Chancer y Court for Montgom ery C ounty No. MC- CH-CV- DI-06-172 Laurence M. Mc Millan, Chan cellor

No. M2008- 02047-COA-R 3-CV - F iled Jul y 24, 2009

I n this divorce dispute, Wife arg ues that the trial court err ed in not awa rding her the d i v o rce , by char acte rizing her condominium as marital proper ty , and in the division of marital assets, including funds that the court found Husband had dissipated from the marital estate. Finding that the Husband did not dissi pate mar ital funds, we r ever se. On a ll other issues, we a ffirm.

Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Chancer y Court Affi rm ed in p art; Reve rsed in part; and Rem anded

D A V I D R. F A R M E R , J
., delivere d the opinion of the court, in which A L A N E. H I G H E R S , P.J
., W.S
., and H O L L Y M. K I R B Y , J ., joined.

W. Tim othy

Har vey , Clarksville, Tennesse e, for the Appellant, Ly

nn Binkley

Aver itt.

Michae l K. Wil liamson, Clarksville, Tennessee , for the A ppellee, L arr

y L y nn Aver itt, S r.,

OP INION

Background /P roce dural Hi story

After over thirty y ear s of marria g e, L arr y L y nn Aver itt, Sr. (“H usband”) filed for divorce from his wife, L y

nn Binkley Aver itt (“Wife” ) on Marc h 28, 2006, citing irrec oncilable differ ence s. The pa rties wer e mar

ried in 1968 and ha d two children, w ho are both be y ond the ag e of majority

. Husband filed a Motion to Compel Mediation, and the parties ag ree d to mediate the dispute. During the m ediation, t he parties signe d a handw ritten ag ree ment reg arding various issues. Among other things, the parties agr eed to “[e]qualiz e all retire ment acc ounts

. . . upon verific ation of amounts. Ex cluding the FE RS account of Wife, the de termination of which w ill be reser ved.”

On J uly 30, 2008, Wife filed an answe r and counter -complaint, arguing that she was entitled to a divorce on the g rounds of inappropria te marital conduct, abandonme nt, a nd ref usal to pr ovide for the spouse. Wife aver red that in 1993 Husband discovered that Wife had enga g ed in multipl eadulterous rela tionships. At the time, he filed for divorce but subsequently dismiss ed his complaint

afte r the parties soug ht counseling and rec onciled. Eventually
, the parties resumed marital relations and cohabited until Dec ember 2006. Wife cla i m s t h at during their rec onciliation, Husband was distrustful a

nd often for ced he r to explain the circumstanc es of he r infidelity in vivid detail. W ife claims that Husband was difficult throug hout the rec onciliation proce ss. She claimed that Husband kept a videotape of her indiscretions that he would occa sionally revie w. Husband require d Wife to disclose and descr ibe ever y transg ression, and when the parties beg an to rec oncile, Wife quit her job as a g raphic desig n artist beca use i t require d extensive trave ling. She explained that Husband did not want her to continue trave l i n g b eca use it bred mistrust. Severa l y ear s later, Wife’s mother moved in with the parties afte r she had surg ery , and Husb and disclosed Wife’s conduct to her mother.

Both Husband and Wife have worke d throug hout their marria g e. I n 1993, Wife was employ ed as a gra

phic design artist. After quitting her j ob as a g raphic desig ner, W ife earne d her Masters deg ree and beg an teac hing art. She ear ned approximately $55,000.00 to $60,000.00 a y ear while teac hing and manag ed to acquir e approximately $62,300.00 i n t wo retirement acc ounts. Meanw hile, Husband worke d in a family -owne d business called Aver itt L umber Company (“Company ”). Husband also owned share s in that b u s i n es s

. At the time that Husband filed for divorce
, Husband’s business was in trouble. At some point, h e loaned $410,000.00 to a potential purcha ser of the Company

. Neve rtheless, the Company failed and Husband and Wife wer e persona lly sued in fede ral court for the Company ’s fourtee n milli on dollar debt. The parties settled the federa l court suit and, thereaf ter, approxi mately $2.1 milli on dollars re m ai n ed in their m arital estate.

T h e trial court enter ed a Final Dec ree of Divorce on September 5, 2008. I t decl ar ed t h e parties to be divorce d pursuant to Tenne ssee Code Annotated § 36-4-119. The trial court then made the following finding s releva nt to this appea l:

(7) The [court] specific ally finds that the parties’ former marital residence located at 2989 West-Mor Drive has a value of Two Hundre d Five Thousand Dollars and No/100 ($205,000.00) and is unencumbe red. By stipulation of t he parties, the [c] ourt finds that the WI FE’ s condominium to which she reloc ated in D ece mber of 2006 following the filing of these divorce proce eding s, contains equity in an amount of For ty -Seven Thousand Four Hundre d Four Dollars and No 100 ($47,404.00). The HUSBA ND is order ed to pay to the WI FE Seventy -Eig ht Thousand Seven Hundre d Ninety -Eig ht Dollars and No/100 ($78,798.00) within ten (10) day s of a Final Dec ree of Divorce in this cause becoming fi nal in order to balanc e the parties’ respe ctive interests in this rea l proper ty

. I n the event HUSBA

ND is unable or unwilling to pay
s u ch am o unt within such time, the Clerk and Master will be appointed as Spe ci al Commi ssioner and the house will be s o l d
, wi t h the WI FE to rec eive her Seventy

Eig ht Thousand Seven Hundre d Ninety -Ei gh t Dollars and No/100 ($78,798.00) provided he rein.

-2-(8) The [c] ourt d eclines to awa rd to the WI FE any compensa tion for the HUSBA ND’s o cc u pancy of the former marital residenc e during the pendenc y of these proc eeding s.
(9) The [ c]our t d o es fi nd that the HUSBAND’s participation i n the “L arr y Parrish transac tion” consisting of a Four Hundre d Ten Thousand Dollars and No/100 ($410,00 0

. 0 0 ) loan during the pendenc y of these divorce proce eding s, did, in fac t, repr esent a dissipation of t he marital estate. The [c]ourt specifically finds that it is undisputed that such loan was made without the knowledg e or consent of the WI FE.

(1 0 ) The [c] ourt finds, notwithstanding the terms of the parties’ mediated ag ree ment, that the WI FE had three (3) retire ment ac co u nts consisting of an AXA

acc ount, a FE RS account, and a Thrift Saving s Plan.

(11) The [c] ourt finds that the balanc e in the AXA acc ount c onsists larg ely of funds from the WI FE’ s mother’s estate, her s h ar e o f former marital assets that

wer e liquidated and divided by ag ree ment of the parties during the pendenc y of these p ro ce ed i n gs , and to a lesser extent, her pay chec ks ear ned during the pendenc y of these proce eding s. The [c] ourt finds that the AXA acc ount should be awa rded to the WI FE a s her se parate prope rty

. (12) The [c] ourt also finds that the parties’ t wo (2) other acc ounts repr esenting a FERS acc ount, having a balanc e of approximately Four Thousand Three Hundre d Dollars and N o/100 ($4,300.00), and a Thrift S aving s Plan, having

a balanc e of approximately Fifty -Eig ht Thousand Dollars and No/100 ($58,000.00),

are marital proper

ty , having acc rued during the pendenc y of this marria g e, and are subject to an equitable division by this [c ]ourt. The [c] ourt finds that the HUSBA ND’s belief that the Thrift Savings Plan, having a balanc e of approximately Fifty -Eig ht Thousand Dol l ar s and No/100 ($58,000.00), was actua lly the FERS account ref

err ed to in the mediation ag ree ment, is rea sonable and, there fore, t h e Court finds the same to be subject to division by this Court. As part of an equitable d i v i sion of the marital proper ty , and as compensa tion to the WI FE for t h e HUSBA ND’s dissipation of marital assets in t h e fo rm of the “L arr y Parrish transac tion,” the [c] ourt awa rds to the WI FE all rig ht, title and intere s t i n b o t h the FERS acc ount and the Thrif t Savings Plan.

(1 3 ) Ba sed upon all statutory fac tors, which the [c] ourt is require d t o consider, the [c] ourt will not awa rd alimony in this case

. Simi larly
, the [c] ourt will not make an awa

rd of attorney ’s fee s. Eac h of the parties shall bear their own attorney ’s fe es in this cause.

-3-Issues

As stated in her

brief, Wife r aises the f

ollowing issues on a

ppeal:

1. Did the court er r when it did not g rant the Wife the divorce and awa rd attorney [] fee s?

2. Did the court err when it did not awa rd t he app el l an t re i m bursement of the dissipation of the marital estate for the husba nd’s

I

. Pay

ment of Husband’ s attorney [] fee s from the mar ital estate I I

. Husband’s living in the marital home, a nd I I I

. L oss of marital estate in the loan of money to a third party in

a cove rt scheme for his business purposes

3. Did the court err when i t i n cl u d ed assets for division that had ear lier been allocate d by

an ag ree d mediation?

4. Did the court err when it found t h e equit y in the Wife’s condominium was marital prope rty ?

We have reor g anized Wife’s issues to addre ss t h em i n the order we believe is most appropr iate. We first addre ss Wife’s argument that she was entitled to attorney fee s beca use the trial court should have g rante d her the divorce

. Second, we will addre ss Wife’s third argument that the marital dissoluti on ag ree ment prec luded the trial court from considering Wife’s thr ift saving s
acc ount. Third, we a ddress whether W ife’s condominium was separa te property that should have been excluded from equitable division betwee n the parties, and finally
, we addre ss whether Husband dissipated marital funds.

Stan dard of Revie w

Be cause this case wa s tried befor e the trial court, we revie w the dec ision de novo upon the

rec ord and presume the corr ectne ss of the trial court’s fac tual findi n gs

. Tenn. R. App. P. 13(d); Fowler v. W

ilbanks
, 48 S.W .3d 738, 740 (Tenn. Ct. App. 2000). We will not reve rse the trial court’s fac tual finding s unless they are contra ry to the preponde ranc e of the evidenc e. Berryhill v. Rhodes
, 21 S.W .3d 188, 190 (Tenn. 2000). For it to preponde rate ag ainst a trial court’s finding of fac t, the evidenc e must support another finding of fac t wit h g reater convincing evidenc e. Mosley v. McCanless
, 207 S.W .3d 247, 251 (Tenn. Ct. App. 2006). I f the trial court’s fac tual deter minations

are based on its assessment of witness cre dibilit y , this Court will not ree valuate that asse s sment absent clea

r and convincing evidenc e to the contra ry

. Jones v. Garrett
, 92 S.W .3d 835, 838 (Tenn. 2 0 0 2 ). I f the trial court fails to make finding s of fac t, howeve r, our revie w is de novo with n o presumption of corr ectne ss. Archer v. Archer
, 907 S.W .2d 412, 416 (Tenn. Ct. Ap p

. 1 9 95). Simi larly
, we revie w the trial court’s application of law and mix ed questions of law and fac t de novo

-4-with no presumption of corr ectne ss. State v. Thacker
, 164 S.W .3d 208, 248 (Tenn. 2005); Bowden

v. W ard , 27 S.W .3d 913, 916 (Tenn. 2000)

.

I n this divorce case , Wife challeng es the trial court’s equitable division of the marital assets. The trial court has wide latitude in di v iding the marital assets and awa rding alimony

. Owens v. Owens
, 241 S.W .3d 478, 490 (Tenn. Ct. App. 2007); Brown v. Brown
, 913 S.W .2d 163, 169 (Tenn. Ct. App. 1994). An award of attorney fee s lies in the di scre tion of t he trial court, and we will not

reve rse ab s en t an ab u s e of that discretion. Owens
, 241 S.W .3d at 495. A trial court abuses its discreti o n wh en the evidenc e does not support the court’s decision, when the court applies an incorre ct leg al standard, or when it rea ches a decision that contravenes logic or employ s rea soning that cause s an injusti ce to the complaining party

. Id. at 496. L ikewise, trial courts are aff orded g reat d i s cr et i o n wh en dividing marital proper ty

. Sullivan v. Sullivan
, 107 S.W .3d 507, 512 (Tenn. Ct. App. 2002). Be cause of this wide discretion, we will g ener ally defe r to the trial court’s division of the marital proper

ty unless it is inconsistent with the statutory fac tors or is not s u pported by a preponde ranc e of the evidenc e. Kinard v. Kinard , 986 S.W .2d 220, 231 (Tenn. Ct. App. 1998).

Attorn ey Fe es

Wife first argues is that the trial court err ed when it did not g rant Wife the divorce and awa rd her att o rn ey fee s. Wife’s argument is two-fold; first, she argues that there wer e no g rounds upon which to g rant Husband the divorce beca use the couple rec onciled. Then, Wife argues that the trial court shoul d h ave g rante d Wife the divorce beca use of Husband’s inappropria te marital conduct, including his conduct “to humiliate and redr ess her during the period of rec onciliation 1993 to 2006, and his conduct in reg ard to the illusory promise of $150,000.00 in the proposed Marital Dissolution Ag ree ment, and the cover t wasting of asse t s in the form of a loan to L arr y Parrish.” Wife then contends that the t ri al co urt should have awar ded W ife attorney fee s in the amount of $20,000.00 beca use the trial c ourt should have g rante d her the divorce

. First, we note that it is wit hin the trial court’s discretion to a war d attorney fee s. I n divorce proce eding s, an awa

rd of attorney fee s is considere d to be alimony in solido. Owens v. Owens
, 241 S.W .3d 478, 495 (Tenn. Ct. App. 2007). Unlike discretionar y costs, which require a claimant to be the “pre vailing party ” befor e such cos t s ca n b e awa rded, attorney fee s may be awa rded to an economica lly disadvantag ed spouse in a ccor d with T ennesse e Code Annotated § 36-5-121( i). Id. 1
at 495–97. The decision to awa rd attorney fee s lies soundly within the discretion of the trial court, and we will not reve rse absent an abuse of that discre tion. Id. at 495. I t is not our role to secondg uess a trial court’s a l i m o n y aw ar d unless it is not supported by the evidence or is contra ry to the public policies ref

lected in the applicable statutes. Id. at 493. When deter mining whether to awa

rd attorney fee s, the trial cour

t must consider the following applicable fac tors:

D i s c r e t i o n a r y c o s t s i n c l u d e r e a s o n a b l e a n d n e c e s s a r y c o u r t r e p o r t e r e x p e n s e s , r e a s o n a b l e a n d n e c e s s a r y e x p e r t 1

w i t n e s s f e e s a n d g u a r d i a n a d l i t e m f e e s

. O w e n s a t 4 9 6

– 9 7

.

-5-(1) The rela tive ear ning capa city
, obligations, needs, and financ ial resour ces of eac h party , including income, from pension, profit sharing or retire ment plans and all other sourc es; (2) The rela tive education and training o f eac h party , the ability and opportunity of eac h party to secur e such education and training
, and the nece ssity of

a p ar t y to secur e further education and training to improve such party ’s ear nin gs capa city to a re asonable level; (3) The duration of the ma rriag e; (4) The ag e and me ntal condition of ea ch par ty ; (5) The phy sical condition of eac h party , including, but not limit ed to, phy sical disability

or inca pacity due to a c hronic de bilitating disease ; (6) The extent to which it would be undesirable fo r a p arty to seek employ ment outside the home, beca use such party will be custodian of a minor child of the mar

riag e; (7) The separ ate assets o f each party , both rea l and persona l, tang ible and intang ible; (8) The provisions ma de with r eg ard to the marital proper ty , as define d in § 36-4-121; (9) The standard of

living of the parties e stablished during the marr iag e; (10) The extent to which eac h part y h as made such tang ible and intang ible contributions to the marria g e as monetary and homemake r c o n trib uti o n s , a n d ta ng ible and intang ible contributions by a party to the education, training or incre ased ear ning power of the other

party ; (11) The rela tive fault of the parties, in case s wher e the court, in its discretion, deems it appropr iate to do so; and (12) Such o t h er fa ctors, including tax conseque nces to eac h party , as are
nece ssary to consider the e quities betwee n the par ties.

T en n

. Code Ann. § 36-5-121( i)(2005). The most important of these fac tors is the need of th e economica lly disadvantag ed spouse and the ability of the obligor spouse to pay

. Owens
, 241 S.W .3d at 496.

I n addition, Tenne ssee law provides that a trial court may decla re the parties to be divorce d without spe cifica lly g ranting the divorce to e ither party

. Tenn. Code Ann. § 36-4-129. Tenne ssee Code Annotated § 36- 4-129 provides tha t

[t ]he c ourt, may , upon stipulation to or proof of any g round for

divorce pursuant to § 3 6 -4 -1 01, g rant a divorce to the party who was less at fault or, if either or b o t h parties are en t i t l ed to a divorce
, decla re the parties to be divorce d, rathe r than

awa rding a divorc e to either

party alone.

Tenn. Code Ann. § 36- 4-129 (2005)

.

-6-We find no merit, there fore to either of Wife’s ar gu m en t s

. Be cause the Tennessee statute

expressly provides that the trial court may decla re the parties to be divorce d so long as either party has submitt ed sufficie nt proof that it ha s g rounds for a divorce
, we find no err or in the trial court’s decision to decla

re the parties to be divorce d instead of awa rding a divorce to Wife alone. I n addition, Wife’s argument that the trial court should have awa rded her attorney fee s focuse s solely

on the fault of the parties and fails to addre ss any of the other rele vant statutory fac tors. Considering the proof submitt ed at trial, howeve r, we find that the trial court proper ly denied Wife’s reque st for attorney fee s. There are no m i n o r ch i l d ren in the home and Wife is well-e ducate d and has a sufficie nt income, while Husband is curr ently unemploy ed. Wife failed to submit any proof as to her need, as an economica lly dis ad v an t aged spouse, for Husband to pay her attorney fee s or to submit proof that Husband had a g reater ability to pay these fee s. The evidenc e indicates that both parties are in g ood phy sical health, though both are near ing traditional retire ment ag e. Neither party has signific ant separ ate p ro p er t y , and the division of marital proper ty has been equal. After a t h o ro u gh revie w of the rec ord, we find that the trial court did not err when it held that the parties would be re sponsible for their ow n attorney fee s.

Mediation A greement

This Court is a bit perple x ed by Wife’s argument that the trial court err ed by dividing Wife’s thrift saving s acc ount, which she claims was included in the parties’ Marital Dissolution Ag ree ment (“MDA ”). The MDA provided that the parties wer e to split their retire ment acc ounts equally

. The parties expressly excluded Wife’s FERS acc ount from this ag ree ment and did not further state which of Wife’s acc ounts wer e to be equally divided. Wife’s argument to this Court appea rs to be that the trial court errone ously set aside a portion of the mediation ag ree ment by awa rding the entire fifty

eig ht thousand dollar thrift savi n gs ac co u n t to Wife, which it then set off ag ainst Husband’s dissipation of marital assets. Wife now seeks this Court to order that the fifty -eig ht thousand dollar thrift saving s acc ount be Wife’s sole and separ ate proper ty

. As we explain below, we find no merit to Wi fe’ s argument.

On J une 2, 2008, while the divorce action was pending
, the parties enter ed into mediation. Their ag ree ment essentially divided their assets equally
, including proce eds from the sale of sever al parc els of re al prope rty

and their c ollective acc ounts. There was some dispute, howe ver, a s to the settlement of Wife’s retire ment acc ounts. Wife explained at trial that she had three acc ounts. Wife testified that sh e h ad a FERS retire ment acc ount throug h Ft. Campbell, the school at which she teac hes. She testified that the FERS acc ount contained approximately $4,300.00. Wife testified that

s h e also had a thrift saving s acc ount that contained approximately $58,000.00. That acco u n t consisted of money tak en o u t of her pay chec k and a 5% gover nment match on those funds. Wife admitted that she ear

ned the funds in both of these acco u n t s wh i le she was marrie d to Husband. Wife also t es t i fi ed t h at she has an AXA acc ount, which is a non-re tirement acc ount that ear ns interest. She testified that she deposited the funds that she inherited from her mother and her portion

o f t h e liquidated marital assets into her AXA acc ount. She testified that she also deposited her pay chec k into the AXA acc ount, and at the time of trial, the acc ount contained approximately $35,000.00. Husban d t es t i fi ed at trial that he also had various acc ounts. Among the various

-7-acc ounts wer e sever al Morg an Kee g an acc ounts and an AXA acc ount that, toge ther, totaled

approximately

$827,270.00 at the time of trial.

Pursuant to the m ediation, the parties signe d a handwr itten document that provided the following rele vant provisions:

4. Equalize all retire ment acc ounts of the parties upon verific ation of amounts. Ex cluding the FERS acc ount of Wife, the deter mination of which wi ll be

rese rved.

. . . .

8. I ssues rela ti n g to “L arr y Parrish” transac tion, alimony and Wife’s FERS

acc ounts are r eser

ved.

. . . .

15. Submit to Court divis ion of Wife’s AXA a ccount.

On J uly 23, 2008, the parties also filed the mediator’s repor t with the court, which set out the various issues that the parties had mediate d and conta ined a list of those issues re maining a t trial. Among various things, the mediator listed the “[d] ivision and or/dispositi on of the FERS retire ment benef it

acc rued by the wife by virtue of her employ ment” amo n g t hose issues to be submitt ed to the trial court for a deter

mination. I n addition, the mediator stated that the parties had ag ree d to “equa liz e” their retire ment acc ounts, including the Wife’s “F t. Campbell Thrift Savings Plan,” but that they excluded from that ca lculation Wife’s FERS retire ment benef its.

The parties dispute what was communicated during the mediation proce ss. Wife claims that
t h e p arties never discussed the thrift saving s acc ount at the mediation, and that Husban d m ad e a unilatera l mistake in failing to addre ss the thrift saving s acc ount. At trial, Wife testified that she had the following understandingof the media ted ag ree ment:

Q. All rig ht. Now, y ou understood from th e m ed i ati on that the only two

acc ounts which remained not acc ounted for in the m ed i at i o n was the AXA

acc ount - -

A. Mine. Uh-huh ( aff irmative re sponse). My

AXA.

Q. - - a

nd the FE RS account?

A. Yes.

Q. And AXA ha s approximately how much in it?

-8-A. Be tween 35 a nd 33,000.

Husband tes t i fied that they had ag ree d in mediation to split Husband’s various acc ounts equally betwee n them, but that he thought that Wife’s FERS ac co u n t and thrift saving s acc ount wer e the

same acc ount. At trial, Husband prese nted the statement from the acc ount entitled “Thrif t Savings Plan Participant Statement” which contained $58, 368.72. Among the various acc ount information, including the acc ount number, W ife’s date of birth, and employ ment status, the acc ount summary stated “Retire ment Coverag e: FE RS.”

At trial, Husband soug ht to introduce an is s u e reg arding the dispositi on of Wife’s thrift saving s acc ount. After finding that Husband’s belief that the thrift saving s plan containing $58,000.00 was the FERS acc ount the parties excluded from the MDA, the court found that the thrift saving s acc ount w as subject to division by the court. The court awa rded the thrift saving s acc ount to Wi fe but then se t this amount off ag ainst funds that it found that the Husband dissipated dur ing the marr iag e.

“A marital dissoluti on ag ree ment may be enfor cea ble as a contra ct even if one of the parties withdraws consent prior to entry of judgme nt by the trial court, so long as the ag ree ment is otherwise

a validly enfor cea

ble contra ct.” Barnes v. Barnes
, 193 S.W .3d 495, 499 (T en n

. 2 006). “Where parties have rea ched a mediated ag ree ment, we have consistently applied the principles of contra ct law to deter

min e whether
, based upon that ag ree ment, a judgme nt may be enter ed in a case .” McM ahan v. McM

ahan
, No. E2004-03032-COA- R3-CV, 2005 WL 3287475, at *4 (Tenn. Ct. App. Dec

. 5, 2005). Fundamental contra ct principles apply

. Id. at *5. For an ag ree ment to be a valid and enfor cea ble contra ct there must be a meeting of the minds betwee n contra cting parties as to the essential terms of the ag ree ment. Id. *5 (citi ng Higgins v. Oil Chem. And Atomic W orkers Int’l Union, Local # 3-677
, 811 S.W .2d 875, 879 (Tenn. 1991)). I f there is a valid and unenfor cea ble

co ntrac t, the party seeking to invalidate the contra ct must bear the burden of proving ad eq u at e g rounds for its invalidation. Id. at *5 (citing W illiamson v. Upchurc h
, 768 S.W .2d 265, 269 (Tenn. Ct. App. 1988)). Contrac t interpretation is a matter of l aw which appellate courts review de novo with no presumption of corr ectne ss on the trial court’s leg al co n cl u s i o ns. Barnes v. Barnes
, 193 S.W .3d 495. The car dinal rule of contra ct interpre tation is to asce rtain the intent of the parties from the contra ct as a whole and to g ive eff ect to that intention consistent with leg al principles. W infree v. Educ ators Credit Union , 900 S.W .2d 285, 289 (Tenn. Ct. App. 1995).

Wife does not dispute the fac t that the thrift saving s ac co u n t was, in fac t, a retire ment

acc ount. Pursuant to the plain l an gu age o f the parties’ MDA, the thrift saving s acc ount was, there fore
, require d to be equally distributed betwee n the parties. Although Wife did not disclose the thrift saving s acc ount to be separ ate from her FERS acc ount, the trial court divided the thrift saving s
acc ount as provided in the M DA. The trial court procee ded to awa rd W ife the e ntire account due to Husband’s alleg ed dissipation of marital assets. Thus, Wife rec eived not only what the MDA called for, to wit, equal distribution of the retire ment acc ounts, but addit i o n al m o n i es due to the Husband’s dissipation. There fore
, we find no merit to Wife’s argument that the trial court err ed in how it distributed W ife’s thrif t saving s acc ount.

-9-Division of Property

Wife also disputes the trial court’s division of proper ty

. She argues that the trial court err ed in how it c lassified the proper ty and in its division of the marital assets. Trial courts are , howeve r, vested with a g reat d ea l o f d i scre tion when classify ing and dividing the marital estate. Owens v. Owens
, 241 S.W .3d 478, 490 (Tenn. Ct. App. 2007). This Court’s role is to deter mine whether the trial court applied t h e co rr ect leg al standards, weig hed the statutory fac tors logic ally and within

rea son, and divided the marital proper ty equitably

. Id. When dividing a marital estate the trial court must b egi n by classifying the parties’ proper ty as either separ ate or marital proper ty

. Owens v. Owens
, 241 S.W .3d 478, 485 (Tenn. Ct. App. 2007). Questi ons reg arding the classification of proper ty as marital or separ ate are fac tual; thus, we will not disturb the trial court’s decision unless the evidenc e preponde rate s to the contra ry

. W oodward v. W

oodward
, 240 S.W .3d 825, 828 (Tenn. Ct. App. 2007). The g ener al rule is that assets acquir ed by eit her spouse during the marria g e are presumed to be marital proper ty

. Owens
, 241 S.W .3d at 478. Thus, the party asser ting that an asset 2 acquir ed during the marr iag e is separ ate proper ty bear s the burden of proving
, by a preponde ranc e of the e vidence , that such asse t is separa te prope rty

. Id. at 485–86.

Tenne ssee Code Annot ated Section 36-4-121( b)(2) provides a list of assets that are considere d separ ate proper ty althoug h they may have been acquir ed during the marria g e. Id. at 486; Tenn. Code. Ann. § 36-4-121( b)(2)

. Such proper ty that is, b y s t at utory definition, “sepa rate ” includes, in rele vant portion, the following proper ty :
(A) All rea l and persona l proper ty owned by a spouse befor e marria g e, including, but not limit ed to, assets held in individual retire ment acc ounts (I RAs) as that term is define d in the I nterna l Revenue Code of 1986, as ame nded; (B ) Property acquir ed in exchang e for proper ty acquir ed befor e the marria g e; (C) I ncome from and app re ciation of proper ty owned by a spouse befor e marria g e except whe n char acte rized as marital prope rty under subdivision (b)(1) ; (D) Propert y ac q u i re d by a spouse at any time by g ift, bequest, devise or desce nt;

Tenn. Code Ann. § 36- 4-121(b) (2)( 2005).

T e n n e s s e e C o d e A n n o t a t e d S e c t i o n 3 6

- 4

- 1 2 1 p r o v i d e s t h a t 2

“ M a r i t a l p r o p e r t y ” m e a n s a l l r e a l a n d p e r s o n a l p r o p e r t y , b o t h t a n g i b l e a n d i n t a n g i b l e , a c q u i r e d b y

e i t h e r o r b o t h s p o u s e s d u r i n g t h e c o u r s e o f t h e m a r r i a g e u p t o t h e d a t e o f t h e f i n a l d i v o r c e h e a r i n g a n d

o w n e d b y e i t h e r o r b o t h s p o u s e s a s o f t h e d a t e o f

f i l i n g o f a c o m p l a i n t f

o r d i v o r c e , e x c e p t i n t h e c a s e

o f f r a u d u l e n t c o n v e y a n c e i n a n t i c i p a t i o n o f f i l i n g , a n d i n c l u d i n g a n y p r o p e r t y t o w h i c h a r i g h t w a s

a c q u i r e d u p t o t h e d a t e o f t h e f i n a l d i v o r c e h e a r i n g , a n d v a l u e d a s o f a d a t e a s n e a r a s r e a s o n a b l y p o s s i b l e t o t h e f

i n a l d i v o r c e h e a r i n g d a t e

.

T e n n

. C o d e A n n

. § 3 6

- 4

- 1 2 1 ( b ) ( 1 ) ( A ) ( 2 0 0 5 )

.
-10-Separate assets can, howeve r, become marital proper ty if they are commingle d with marital
assets

. Keyt v. Keyt
, 2 4 4 S

. W

. 3 d 321, 328 n.7 (Tenn. 2007). The Tenne ssee Supreme Court has previously

explained the following :
[S ]eparate proper

ty become s marital proper ty [by commingling ] if inext rica b l y mingled w ith marital proper ty or wit h the s epar ate property of t he other spouse. I f the separ ate proper

ty continues to be seg reg ated or can be trac ed i n t o i ts product, commingling does not occur

. . . . The rational e u n d er l y i ng these doctrines is that dealing with proper

ty in the se way s cre ates a rebuttable presumption of a g ift to the marital estate. This presumption i s based also upon the provision in many marital proper ty statutes that proper

ty acquir ed during the marria g e is presumed to be marital. The presumption can be rebutted by evid ence of circ umstances or communications clea

rly indicating an intent that the prope rty rema in separate.
Langschmidt v. Langschmidt , 81 S.W .3d 741, 747 (Tenn. 2002) (citations omitted).

i. Class ifying Separate and Marit al Property

Wife arg ues that the trial c ourt err ed by classify ing the condominium in which Wi fe resided a s marital prope rty and distributing the e quity in Wi fe’ s condominium between Wife a nd Husband. Wife ar g ues that bec ause she purcha sed the c ondominium from assets that she inherited fr om her mother, the condominium was separ ate pr operty and should not have be en distributed as part of

the marital e state. At trial, howe ver, Wife testified that the money used to make the dow n pay

ment on the condominium came f rom various sourc es. Wife testified as follows:

Q. And wher e did y ou g et the money for the dow

n pay ment for the condominium?

A. My

mother, whe n she moved in with us, we sold her house and be longing s and her car and all, and w e put that in an ac count, a stock a ccount. And from that we paid - - it wa s in - - it was in my name. That, and then we split . . . . From that. And I believe w e had split a tax return. . . . And my persona l chec k from wor

k was a lso deposited into that account. And f rom that - - those monies, I

paid a down pa

y ment for the loa

n.
The pa rties stipulated that there is $47,404.00 equity in the condominium.

Although the inheritanc e that she r ece ived from he r mother is prope rly classified a s separ ate pr operty , it became marital prope rty when she commingle d it. W ife testified tha t she place d the inheritanc e into the same a ccount whe re she regularly deposited her

pay chec k. Wife acknow ledg ed that the f

unds she re ceive d in her pa y chec k wer e ea

rned dur ing the marria g e, and they are , thus, marital assets. Wife pre sented no e vidence as to the amount of money that she

-11-inherited or that she could trac e any specific funds into the condominium that she purcha sed. Given the e vidence submitt ed at tria l, we find that the tria l court did not err by concluding that Wife’s condominium was marital prope rty ; Wi fe f ailed to meet he r burde n of proving that the condominium is her separ ate pr operty

. ii. Dissipat

ion of th e Marital Est

ate
Wife also argues that the trial c ourt err ed in dividing the ma rital proper

ty beca use it failed to properly

consider H usband’s dissipation of marital a ssets. She claims that Husband dissipated the marital a ssets in three diff ere nt way s. First, Husband pa id his attorney fee s from the mar ital estate. Sec ond, Husband dissipated the ma rital assets by

living in the mar ital home without paying a ny rent, purc hasing a vehic le, and pa y ing he alth insurance . Finally , Wife argues that Husband dissipated mar ital assets by cover tly loaning money

to a third party . The trial c ourt found that Husband did not dissipate mar ital assets by paying his attorney

fee s or living in the marital home. The court did find, howe ver, tha t Husband dissipated the mar ital assets by loaning money in the “L arr

y Parrish [transaction].” The tria l court bala nced H usband’s dissipation of the marital asse ts by

awa rding Wife her e ntire $58,000.00 thrift saving s acc ount. Addressing eac h separ ate issue be low, we f ind that Husband did not dissipate marital assets. We, there fore , aff irm the trial cour

t’s judgme nt reg arding pay ment of Husband’ s attorney fee s, Husband’s use of the marital home duringthe par ties’ sepa ration, and H usband’s loss of his job, vehicle, a nd health insurance . We reve rse the tr ial court’s de termination that Husband dissipated a ssets when he loaned money

to a third party

.

After classifying pr operty

as sepa rate or marital, the tr ial court must equitably divide the marital prope rty

betwee n the two par

ties considering the statutory provisions in Tennessee Code Annotated Sec tion 36-4-121. The division of marital a ssets is not a mechanic al proc ess, and the trial court ha s the power

to do what is rea sonable unde r the c ircumstance s. Keyt v. Key t , 244 S.W .3d 321, 328 (Tenn. 2007) . The e vidence preponde rate s ag ainst a trial cour t’s fac tual finding only if supports another

finding of fa ct with g reater c onvincing evidenc e. W atson v. W

atson , 196 S.W .3d 695, 701 (Tenn. Ct. App. 2005).

I n equitably

dividing the mar ital assets, the trial cour t should consider whe ther one party dissipated such marital a ssets. Tenn. Code Ann. § 36- 4-121(c )(5) (2005). The conce pt of dissipation is based on w aste. Altman v. Altman , 181 S.W .3d 676, 681 (Tenn. Ct. App. 2005). A party dissipates marital prope rty when he or she use s marital prope rty frivolously

and without justification for a pur

pose unre lated to the mar riag e at a time when the mar

riag e is brea

king down. Id. The pa

rty alleg ing dissipation of mar ital assets has the bur den of pe rsuasion and the initial burden of produc tion. Burden v. B urden , 250 S.W .3d 899, 919 (Tenn. Ct. App. 2007). T o satisfy this burden, the alleg ing pa rty cannot simply

argue that he or

she is uncer

tain of how the money was spent. Id. Once the alleg ing pa rty has made a prima f

acie case of dissipation, the burden shifts to the par

ty who spent the money

to present e vidence that the cha lleng ed expenditures wer e appr opriate. Altman , 181 S.W .3d at 683. As we have pr eviously noted:

-12-I t is also important to di ffe rentiate betwee n “dissipation and discre tionary

spending .” “T rial cour

ts must di stinguish betwe en what marital expenditures are wastef ul and self- serving and those whic h may be ill-advised but not so far

remove d as fr om ‘normal’ e x penditures oc curr ing pr eviously within the marital rela tionship t o rende r them destruc tive.”

Burden , 250 S.W .3d at 919–20 (interna l citations omit ted). In deter mining whe ther a

particula r transac tion constitut es dissipations, courts most freque ntly consider the following : 1) whethe r the expenditure bene fitted the marr iag e or w as made for a purpose e ntirely

unrela ted to the marr iag e, 2) whe ther the e x penditure or transac tion occurr ed whe n the par ties were experiencing marital difficulties or we re c ontemplating divor ce, 3) whether the expenditure wa s excessive or de minimus , and 4) whether

the dissipating pa

rty intended to hide, deple te, or diver t a marital a sset. Altman , 181 S.W .3d at 682–83.

Dissipation is not , howeve r, a se parate fa ctor for the cour t to consider; ra ther, it must be considere d in the context of the marria g e as a whole and w eig hed alongwith various other rele vant statutory

fac tors. Id. at 682. The Te nnessee leg islature has a rticulated tha

t when equitably dividing mar ital property , courts should consider all of the following various fa ctors:

(1) The duration of the ma rriag e; (2) The ag e, phy sical and me ntal health, voca tional skill s, employ ability
, ear ning c apac ity , estate, a

nd financ ial liabiliti es and f inancial ne eds of e ach of

the parties; (3) The tang ible or intang ible contribution by one (1) party

to the education, training or

incre ased e arning power

of the other

party ; (4) The rela

tive ability

of ea ch par

ty for f uture a cquisitions of capital assets and inc ome; (5) The contribution of ea ch par ty to the acquisition, prese rvation, appre ciation, depr eciation or dissipation of the marital or sepa rate proper

ty , including the contribution of a pa rty to the marria g e as home maker , wag e ea rner or par ent, with the contribution of a pa rty as homemake r or wa g e ea rner to be g iven the same weig ht if eac h party has fulfilled its role; (6) The value of

the sepa rate proper

ty of ea ch par

ty ; (7) The estate of

eac h party

at the time of the ma

rriag e; (8) The economic c ircumstance s of ea ch par ty at the time the division of proper ty is to become e ffe ctive; (9) The tax consequence s to eac h party , costs associate d with the

rea sonably

fore seea ble sale of

the asset, a

nd other re asonably

fore seea ble expenses associate d with the asset; (10) The amount of social se curity benef its available to ea ch spouse; and (11) Such other

fac tors as ar e nec essar

y to consider the e quities betwee n the par ties.

-13-Tenn. Code Ann. § 36- 4-121(c ) (2005) . The trial c ourt should distribute the marital proper ty by consideringand we ighingthe most releva nt fac tors in light of the unique fac ts of the ca se. Batson v. Batson, 769 S.W .2d 849, 859 (Tenn. Ct. App. 1988). B eca use of the w ide discre tion

acc orded to trial judg es in dividing the ma rital proper

ty , we will g ener ally

defe r to the trial court’s de cision unless the dec ision is i nconsistent with the statutory fac tors or is not supported by a pre pondera

nce of the evidenc e. Kinard v. Kinard , 986 S.W .2d 220, 231 (Tenn. Ct. App. 1998). F or a c ourt to equitably divide the marital a ssets, it is not require d that the prope rty be divided equally

. Robertson v. Robe rtson , 76 S.W .3d 337, 341 (Tenn. 2002)

.

a. Attorn ey Fe es

Husband testified at trial that he proba bly spent more than $10,000.00 in a ttorney fee s attempting to de lay

the sale of

the company

assets while he attempted to find someone to purcha se the Company . Husband’s attorney testified that Husband ha s alrea dy paid him approximately

$20,000.00 in attorney

fee s for re prese ntation in the fede ral c ourt suit, the lawsuit Husband filed a g ainst a third par ty , and dela

y ing the sale of the company assets.

Wife testified that there wer e seve ral mar ital assets that the par ties voluntarily

liquidated prior to trial. Wife conc eded tha t Husband may

have pa id his attorney

fee s out of these a ssets. Wife testified as follows:

Q. Okay

. Now, so that we can unde rstand this, Iwant to make sur e I can g ive it some scale: B etwee n Marc h - - a nd y our attorne y

ref ere nced this in his Direct Examination of y ou. Be tween Ma rch of 2006 and the pr esent when this divorce was filed a nd when it was ultimately hear d - -

A. Uh-huh (a ffirma tive response ).

Q. - - y ou, by

ag ree ment, liquidated some assets; is that corr ect?

A. What assets are y ou talking a bout?

Q. I ’ll be happy

to answer

that. You, for e x ample, liquidated a se cond to die life insuranc e policy ; is that right?

A. Yes, I

did. Uh-huh (a ffirmative response ).

Q. Okay . And that re sulted in y ou and y our husband e ach r ece iving, oh, approximately

like $27,000; is that right?

A. Yes, uh-huh ( aff

irmative re sponse).

-14-Q. Okay . And y ou liquidated a fe dera l income tax return that I believe w as like 24,000, something like tha t. You rec eived, r oug hly , 11,000 of that - -

A. Yes.

Q. - - a s did y our husband. Oka y . And then y our husband wa s g iving y ou y our half of

some natura l ga s limi ted par tnership distributions, and y ou
rec eived those. A nd he said those we re a round $3,500 y ear

to date. You

rec eived that - -

A. Yes.

Q. - - a s did he?

A. Yes, uh-huh ( aff

irmative re sponse).

Q. So y our husband would have had the se funds that we re his half of wha t y ou wer e g etting to live of f of, pa y lawy ers, support himself; is that rig ht?

A. Yes.

As we ha ve alr eady

articula ted, it is W ife’s bur den to prove that Husband dissipated mar ital assets by paying his a ttorney . Fr om Wi fe’ s testimony at trial it is appare nt that she failed to mee t this burden, and we find no err or in the trial cour t’s decision that ea ch par

ty pay his and her ow n attorney fee s.
b. Living in the Marital Hom e
Wife arg ues that Husband a lso dissi pated mar ital assets by living in the mar ital home and losing his job, vehicle, a

nd health insuranc e. Wife left the ma rital home in Dec ember

2006, nine months after H usband filed f or divorce . After

Wife left, Husband c ontinued to reside in the marital home a

nd paid the bills associated w ith the upkeep, taxes, and insura nce on the marital home. Wife arg ues that Husband dissipated the marital estate by failing to pay

her r ent while he 3 occupie d the home. I n addition, she claims that Husband dissipated a ssets by purcha sing a

truck for his per sonal use. Wife see ks the following : $1,000.00 per month from De cembe r 2006 throug h September 2008 f or Husband’ s use of the ma rital home, $150.00 per

month for fourte en months that she paid for Husba nd’s hea lth insurance; a

nd $13,000.00 for he r half of the funds that she cla imed Husband used to buy a new vehicle.

Husband testified tha t he deplete d marital asse ts in severa l way s after he filed f or divorce

. Husband testified tha t his employ ment was ter

minated from the Company in Febr uary 2007. He

T h e p a r t i e s a g r e e t h a t t h e p r o p e r t y w a s u n e n c u m b e r e d a t t h e t i m e o f t r i a l

. 3

-15-also testified that he ha s been a ctively seekingemploy

ment. When he lost his job, he lost his salary and var ious benefits, including health insuranc e. Husba nd also previously

drove a truck provided by

the Company ; he was, how ever , require d to return the tr uck to the Company

so that it could be proc essed f

or the sale of the Company ’s assets. He took out approxi mately $23,000.00 out of the cor pus of his acc ounts during this per iod to cover ba sic living e x penses. Husband a lso testified that he purc hased a repla ceme nt vehicle using approximately $23,000.00 worth of mar ital assets.

We simpl y

cannot sa y that the trial cour

t erre d when it found that Husba nd did not dissipate marital asse ts by living in the mar ital home, losing his job, losing he alth insurance benef its, and purcha sing a

vehicle to r eplac e his loss of a compa ny car . As we pr eviously articula ted, the conc ept of dissipation is based on wa ste. See A ltman v. Altman , 181 S.W .3d 676, 681 (Tenn. Ct. App. 2005). I n addition, dissipation i nvolves intentional or purposef ul conduct. Id. at 682. We noted in Altman v. Altman that “[t] he timing of the expenditure or tra

nsaction is extremely rele vant. I t is unli kely

that expenditures that wer e ty pical or c ommonplace dur ing the marria g e will constitute dissipation, especially when the othe r spouse a cquiesc ed in them.” Altman v. Altman , 181 S.W .3d 676, 683 (Tenn. Ct. App. 2005)( citations omitt ed). The re is nothing in the r ecor d to indicate that Husba nd’s job lose was intentional. Husba nd’s purc hase of

a re place ment vehicle in these circ umstances a ppear s to be justified. I n addition, we do not believe that the purcha se of the ve hicle is frivolous; the vehicle rema ined par t of the marital estate a nd was divided by

the par ties in their MDA. We also ag ree with the trial court that Husband did not dissipate marital asse ts by living in the mar ital home. We fail to see how living in the marital home is a f

rivolous, unjusti fied purpose unrela ted to the marr iag e. In addition, such conduc t is ty

pical and c ommonplace dur ing a marria g e. Husba

nd lived in the marital home alone, a nd we f ind that in these circ umstances, his use of the marital home w as not a dissipation of marital a ssets.

c. Third-Party Loan

Wife arg ued bef

ore the trial court that Husba nd dissipated marital funds by loaning $410,000.00 to a potential purc haser of the Corporation. The trial cour t held that Husband dissipated these funds, but ba lance d the equity of this loss aga inst the money that Wife retaine d in her two re tirement ac counts. On appe al, Wife contends that this is inequitable bec ause she

was e ntitled to half of the $375,000.00 Husba nd was una

ble to rec over f

rom the loan a

nd her $187,500.00 loss could not be equitably balanc ed ag ainst the $62,300.00 that she re tained. Husband a

rg ues on appe al that the loan to the third pa rty was not a dissipation of mar ital proper ty

.

Husband testified at trial that the Company owed a pproxi mately

fourtee n milli on to various banks. A t some point Husband, Wife, Husband’s br other, a nd his wife per sonally g uara nteed the Company ’s loans. As they wer e winding down the business, Husband a nd his brother disa g ree d about how to dispose of the c ompany . Husband wa nted to sell the company

as

-16-a whole. H is brother, on the othe r hand, w anted to coope rate with the bank, close the Company
,

and sell the a ssets using the ba nk’s business broker

.

Husband a

nd another

Company

direc tor, howeve r, believe d that L arr y Parrish (“ Mr. Parrish”) was willing to purcha se the e ntire Company . At the boar d of direc tor’s mee ting, Husband a

nd the other dire ctor voted a g ainst immediately eng ag ing the bank’s business broke r beca use they wanted to g ive Mr. Parr ish ten day s to purchase the company so that they

would not have to pa

y unnece ssary

commissions t o the bank’ s business broker. H usband and the other direc tor out voted Husband’ s brother. The next day , howeve r, Husband a nd the other dire ctor

wer e ter minated as boa

rd member s, and the Company proce eded to c ooperate with the bank a nd 4 underw ent liquidation.

At some point while neg otiating with Mr. Par rish , Husband loane d Mr. Parrish approximately

$410,000.00 of the pa

rties’ mar ital assets. Husband testified that at the time Mr. Parrish consider ed purc hasing the Company it had cea sed purc hasing materia ls, specifica lly lumber. Mr. Parr ish ag ree d to infuse ca sh into the Company to purcha se lumber to continue the Company ’s oper ations. After the lumber ha d been of

f-loade d in the Company ’s lumber y ards, Mr. Parrish c overtly

explained to Husband that his wire tra nsfer did not come throug h and he did not have the f

unds to pay

for the log s. Husband testified that at that point it was impossible to return the logs a

nd that if the deliver ers we re not pa id it was g oing to be a bad situation that would impair their ability to sell the Company . Mr. Parrish, ther efor e, aske d Husband to loan him the money . Husband testified tha t he had to make an immediate de cision and he de cided to loan Mr. Parr ish the money . He c oncede d that Wife was unaw are that he made this transaction and he did not initially

document the loan in wr iting. L ater , Husband a nd Mr. Parrish for

mally executed a note for the f

unds.

Eventually , Mr. Parrish de faulted on the loan. Husband te stified that he wa s only able to

rec over $165,000.00 f

rom the loan he made to Mr. Par rish. Of that money

approximately $35,000.00 was re turned to the pa rties’ mar ital estate. The other $130,000.00 wa s paid to the parties’ debtors as pa

rt of the f eder al suit settlement. Husband cla imed that his decision to loan Mr. Parrish the mone y

was made to minim ize his and W ife’s liability by try ing to se ll the stocks of the Company

instead of se lling Company assets individually

and pay ing a commission to a broker ag e compa

ny

.

The trial c ourt held that Husband dissipated $410,000.00 in mar ital assets by loaning the money to Mr. Parrish. We respe ctfully disag ree . The trial c ourt ac knowledg ed that Husba nd’s decision to loan Mr. Parr ish the money was proba

bly not the wisest decision and he deter mined that Husband dissipated the a ssets beca use Husband f

ailed to inform Wife about the loa n. The court should, howeve r, consider sever al diffe rent fa ctors whe n deter mining whe ther a

party dissipated marital asse ts. W hether a par ty ’s conduc t constitutes dissi pation depends on the particula r fa cts of a c ase. Altman v. Altman , 181 S.W .3d 676, 682 (Tenn. Ct. App. 2005). We

H u s b a n d ’ s b r o t h e r o w n e d 5 1 % o f t h e C o m p a n y ’ s s h a r e s

. 4

-17-believe that the fac ts in thi s case are analog ous to the situation we discussed in Altman v. Altman

.

I n that situation we found that wife did not dissi pate mar ital assets by running an unsucc essful consig nment business. Id. at 683. The w ife used ma rital funds to pay

business tax es and othe r operating e x penses be fore the business finally closed down. We stated that the “[s] imple mismanag ement of f

amily financ es is not dissipation nor is us ing ma rital funds to prop up a failing business.” Id. (interna l citations omit ted). We held in Altman that the wife did not dissipate marital funds. Id.

Although Wife w as not awa re in this case that Husband loane d Mr. Parrish the mone y , the re cord indicated that Wife rar ely participa ted in the Company ’s business dec isions despite the fac t that she was pe rsonally liable on the Company ’s loss. As in Altman , Wife failed to pre sent any evidenc e that Husba

nd loaned Mr. Par

rish the money

for the pur

pose of de pleting the marital estate. To the contra

ry , Husband testified that he intended to limit both hi s and Wife’s alr eady

exis ting liability

for a ny Company

losses. Wi fe did not pre sent any evidenc e to contra dict Husband’s te stimony . We find, theref ore, tha t the trial court e rre d by char acte rizing Husband’ s business decision as “ dissipation.”

I n light of our

deter mination that Husband did not dissi pate mar ital assets, we f ind that it

was a lso error

for the tr ial court to aw ard Wife he r entire thrift saving s acc ount to set off the funds Husband a lleg edly

dissipated. We, theref

ore, f ind that wife’s thrif

t saving s acc ount should be equa lly

divided betwee n the par

ties as provided in the pa

rties’ MDA.

Conclu sion

I n light of the fore g oing, w e af firm in part a

nd reve rse in par

t. This matter is remande d for f urther pr ocee dings c onsistent with thi s opinion. Cos ts of this appeal a re a ssessed ag ainst the Appellant, L y

nn Binkley

Aver itt and her sure ty , for whic h execution may issue, if nec essar

y

.

___________________________________ DAVI D R. FARMER, J UDGE

-18-