1Child custo dy and sup port are no t issues on app eal.

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

JERRY BENSON BRYANT v. KATHERINE ANNE BRYANT

An Appeal from the Chancery Court for Giles County

No. 9417 The Honorable Jim T. Hamilton, Chancellor

No. M1999-00065-COA-R3-CV - Decided May 5, 2000

Appellant (“Husband”) appeals the trial court’s division and award of marital assets, award of

alimony, and award of attorney’s fees to Appellee (“Wife”). For the following reasons, the decision

of the trial court is hereby affirmed in part, reversed in part, and remanded for further proceedings

as necessary.

Tenn.R.App. 3; Appeal as of right; Judgment of the Chancery Court Affirmed in part,

Reversed in Part and Remanded

HIGHERS, J., delivered the opinion of the court, in which CRAWFORD, P.J., W.S. , FARMER, J. ,

joined.

M. Andrew Hoover, ANDREW HOOVER & ATTORNEYS, Pulaski, Tennessee, Attorney for

Appellant, Jerry Benson Bryant

Barbara J. Walker, Columbia, Tennessee, Attorney for Appellee, Katherine Anne Bryant

OPINION

Facts and Procedural History

This appeal arises from an action for divorce initiated by Husband. On December 2, 1996,

Husband filed for divorce alleging inappropriate marital conduct by Wife. In March 1998, Wife filed

a counterclaim for divorce alleging inappropriate marital conduct by Husband. After a pendente lite

hearing on March 18, 1998, the court awarded Husband temporary custody of the parties’ two minor

children.1 On July 15, 1998, a bifurcated trial was held, and at this time the court granted each of
2Tenn. Code Ann. § 36-4-129(b) provides: The court may, upon stipulation to or proof of any ground for

divorce pursuant to § 36-4-101, grant a divorce to the party who was less at fault or, if either or both parties are entitled

to a divorce, declare the parties to be divorced, rather than awarding a divorce to either party alone.

2

the parties a “dual-fault” divorce pursuant to Tenn. Code. Ann. § 36-4-129(b).2

 The court reserved

ruling on the other issues.

The trial was resumed and completed on September 16, 1998. At this time, the following

was listed as marital property:

J&B Co. Inc. Stock $59,000

ST Money Market $30,000

Third Street House $110,000

Gibson and Cardin Building Equity $55,000

Proceeds from Drugstore sale $11,900

Truck $3,150

Husband’s car equity $10,500

Wife’s car $2,500

Wife’s retirement $3,000

Community Bank $3,850

First National Bank $958

Husband’s retirement $1,400

Putnam Mutual Funds $2,500

Nissan $1,500

State Farm IRA $530

Revco 402K $264

Household Furnishings $50,000

Total $346,050

Based on the foregoing, the court awarded Wife $140,000 worth of marital assets and Husband

approximately $202,000 of marital assets. Husband was also ordered to pay the parties’ marital debt

and to pay periodic alimony of $1,000 per month to Wife until her death or remarriage. In addition,

Husband was ordered to pay Wife’s attorney’s fees. Husband appeals.

On appeal, Husband asserts that the court erred in its calculation and division of the marital

assets. Specifically, Husband claims that the court erred by counting J&B stock shares twice.

According to Husband, this stock is the same asset as the Gibson and Cardin Building equity and the

truck. In addition, he asserts that the $30,000 in the ST Money Market account is his separate

property and should be withdrawn from the marital estate. Husband also asserts that the marital

estate should be reduced by $11,900 because these proceeds from the sale of the drugstore were used

to remodel the house awarded to Wife. Husband also contests the valuation of the parties’ household

furnishings at $50,000. Husband claims that the actual value of all the assets he received is
3Tenn. Cod e Ann. §36-4-12 1(c) provides:

 In making equitable division of marital property, the court shall consider all relevant factors including:

(1) The duration of the marriage;

(2) The age, physical and mental health, vocational skills, employability, earning capacity, estate, financial

liabilities and financial needs of each of the parties;

(3) The tangible or intangible contribution by one (1) party to the education, training or increased earning power

of the other p arty;

(4) The relative ability of each party for future acquisitions of capital assets and income;

(5) The contribution of each pa rty to the acquisition, preservation, appreciation or dissipation of the marital or

separate property, inc luding the co ntribution of a party to the marriage as homemaker, wage earner or parent, with the

contribution of a party as homemaker or wage earner to be given the same weight if each party has fulfilled its role;

(6) The value of the sep arate prop erty of each p arty;

3

approximately $80,000. In addition, Husband alleges that the court erred in awarding alimony to

Wife without making the necessary finding of facts under Tenn. Code. Ann. § 36-5-101(d)(1)(A)-

(L). Finally, Husband alleges that the trial court erred in awarding Wife’s attorney’s fees without

considering the factors in Tenn. Code Ann. § 36-5-101(d)(1)(A)-(L).

Wife argues that if the court erred in the calculation of an equitable distribution of marital

property, any error was due to Husband’s failure to submit a Sworn Statement of Parties’ Separate

and Joint Assets and Liabilities as required by the local trial court rules. In addition, Wife asserts

that the trial court did not err in the award of alimony or attorney’s fees.

Analysis

As a preliminary matter, we find it appropriate to discuss the general principles governing

a court’s division of the marital assets. Before dividing the marital estate, the trial court must first

classify the parties' property as either marital or separate property because only marital property is

subject to the trial court's powers of equitable distribution. Dunlap v. Dunlap, 996 S.W.2d 803, 814-

815 (Tenn. Ct. App. 1998) citing Cutsinger v. Cutsinger, 917 S.W.2d 238, 241 (Tenn. Ct.

App.1995); Brown v. Brown, 913 S.W.2d 163, 166 (Tenn. Ct. App.1994). In classifying the parties'

property as either marital or separate, the trial court is vested with wide discretion, and its decision

is entitled to great weight on appeal. Harris v. Corley, No. 01A01-9011-CH-00415, 1991 WL 66447,

at *5 (Tenn. Ct. App. May 1, 1991) citing Fisher v. Fisher, 648 S.W.2d 244, 246 (Tenn.1983);

Edwards v. Edwards, 501 S.W.2d 283, 288 (Tenn. Ct. App.1973).

After characterizing the parties’ assets as either marital or separate property, the court will

make an equitable division of marital assets. An equitable division of property does not necessarily

mean an equal division. Bookout v. Bookout, 954 S.W.2d 730 (Tenn. Ct. App. 1997); Batson v.

Batson, 769 S.W.2d 849, 859 (Tenn. Ct. App. 1988). “The division of the estate is not rendered

inequitable simply because it is not mathematically equal, or because each party did not receive a

share of every item of marital property.” King v. King, 986 S.W.2d 216, 219 (Tenn. Ct. App. 1998)

citing Cohen v. Cohen, 937 S.W.2d 823, 832 (Tenn.1996); Ellis v. Ellis, 748 S.W.2d 424, 427

(Tenn.1988); Brown v. Brown, 913 S.W.2d 163. In determining what constitutes an equitable

division of marital assets, the court will consider the factors listed in Tenn. Code Ann. §36-4-121(c).3
(7) The estate of each party at the time of the marriage;

(8) The economic circumstances of each party at the time the division of property is to become effective;

(9) The tax consequences to each party; and

(10) Such other factors a s are necessary to consider the eq uities between the parties.

4

Pursuant to Rule 13(d) of the Tennessee Rules of Appellate Procedure, the trial court's

classification and division of marital property enjoys a presumption of correctness and will be

reversed or modified only if the evidence preponderates against the court's decision. Lancaster v.

Lancaster, 671 S.W.2d 501, 502 (Tenn. Ct. App.1984); Hardin v. Hardin, 689 S.W.2d 152, 154

(Tenn. Ct. App.1983); Goren v. Goren, 1988 WL 118114, at *3 (Tenn. Ct. App. Nov.7, 1988). With

this in mind, we now turn to the specific issues raised by the parties.

I. Division of Marital Property

On appeal, Husband argues that the trial court miscalculated the amount and kind of property

subject to division. Specifically, Husband claims that the court erred by counting J&B stock shares

(worth approximately $59,000) twice. According to Husband, this stock is the same asset as the

Gibson and Cardin Building equity and the truck. In addition, he asserts that the thirty thousand

dollars in the ST Money Market account is his separate property and should be withdrawn from the

marital estate. Husband also asserts that the marital estate should be reduced by $11,900, an amount

representing proceeds from the sale of the drugstore that was used to remodel the house awarded to

Wife. Husband also contests the valuation of the parties’ household furnishings at $50,000.

A. J&B stock

From our reading of the record, there seems to be at least some evidence to support

Husband’s contention regarding the J&B stock. During Wife’s testimony, Husband’s attorney

questioned her about the stock. Wife admitted that the building and truck were assets in J&B. 

Based on the conflicting evidence, we are unable to ascertain how the stock, building, and truck

should be characterized and whether the court below essentially counted the same asset twice. For

the reason stated above, this issue is remanded to the trial court for clarification.

B. Money Market Account

Husband also contends that the trial court erred in including the $30,000 ST money market

account in the division of marital assets. According to Husband, this account was funded by cash

he received as a gift from his parents and is therefore separate property. In her testimony, Wife

admitted that the money was a gift solely to Husband and that is was his separate property. Despite

this testimony, the court included the money market account in the marital assets subject to equitable
5

division.

A spouse's separate property includes property acquired "at any time by gift, bequest, devise

or descent." See Tenn. Code Ann. § 36-4-121(b)(2)(D). Accordingly, if the spouse can show that

the property was a gift, the gift is his or her separate property, regardless of when it was acquired.

The burden of proving that a gift was made is upon the donee or the party asserting the gift. Hansel

v. Hansel, 939 S.W.2d 110, 112 (Tenn. Ct. App.1996); Hartman v. Hartman, No.

03A01-9608-CV-00249, 1997 WL 176701, at *2 (Tenn. Ct. App. Apr.10, 1997). In this case, Wife

admitted that the money in the account was Husband’s separate property. Therefore, the trial court

erred in including the ST account in the parties’ marital property. The decision of the trial court is

reversed on this issue.

C. Drugstore Proceeds

Husband asserts that the trial court erred in including $11,900 in cash as part of the marital

estate. According to Husband, this money was used to remodel the parties’ residence, and this

residence was awarded to Wife. However, at trial Husband was unable to offer any proof regarding

this contention. Husband only testified that this money was spent “somewhere along the line.” As

stated above, the trial court’s characterization and division of marital assets carries a presumption

of correctness. Husband has failed to overcome this presumption. Therefore, the decision of the trial

court on this issue is affirmed. 

D. Household Furnishings

Husband also contends that the trial court erred in valuing the parties’ household furnishings

at $50,000. At trial, Husband testified that he had received only five thousand dollars worth of

household furnishings from the parties’ residence. Wife testified that the property in her possession

was worth approximatelytwenty-five thousand dollars and that Husband either took an equal amount

from the parties’ marital residence or used marital assets to acquire additional furnishings. On

appeal, Husband argues that the total value of all household furnishings should be reduced to twenty

thousand dollars. Husband offers no further evidence to support this reduction. Based on these

facts, Husband has failed to overcome the trial court’s presumption of correctness. Therefore, the

trial court is affirmed on this issue.

II. Alimony Award

Husband asserts that the trial court failed to make the necessary findings of fact to award

alimony pursuant to Tenn. Code. Ann. § 36-5-101(d)(1)(A)-(L). According to Husband, the court

merely stated that Wife was entitled to alimony, without explaining why Wife was so entitled. We

disagree. From our review of the record, it is clear that the trial court considered the factors
4Tenn. Code. Ann. § 3 6-5-101(d)(1 )provides: It is the intent of the general assembly that a spouse who is

econom ically disadvantaged, relative to the other spouse, be rehabilitated whenever possible by the granting of an order

for payment o f rehabilitative, temporary sup port and m aintenance. Where th ere is such relative economic disadvantage

and rehabilitation is not feasible in consideration of all relevant factors, including those set out in this subsection, then

the court may grant an order for payment of support and maintenance on a long-term basis or until the death or

remarriage of the recipie nt except a s otherwise provided in subdivision (a)(3). Rehabilitative support and maintenance

is a separate class of spousal support as distinguished from alimony in solido and periodic alimony. In determining

whether the granting of an order for payment of support and maintenance to a party is appropriate, and in determining

the nature, amount, length of term, and manner of payment, the court shall consider all relevant factors, including:

(A.) The relative earning cap acity, obligations, needs, and financial resources of each party, including income

from pension, profit sharing or retirement plans and all other sources;

(B.) The relative education and training of each party, the ability and opportunity of each party to secure such

education and training, and the necessity of a party to secure further education and training to improve such party's

earning cap acity to a reaso nable level;

(C.) The duration of the marriage;

(D.) Th e age and m ental cond ition of each p arty;

(E.) The physical condition of each party, including, but not limited to, physical disa bility or incapa city due to

a chronic debilitating disease;

(F.) The exte nt to which it would be undesirab le for a party to seek employment outside the home because such

party will be custodian of a minor child of the marriage;

(G.) The separate assets of each party, both real and personal, tangible and intangible;

(H.) The provisions made with regard to the marital property as defined in § 36-4-121;

(I.) The standard of living of the parties established during the marriage;

(J.) The extent to which each party has made such tangible a nd intangible contributions to the marriage as

monetary and homemaker co ntributions, and tangible and intangible contribution s by a party to the education, training

or increase d earning p ower of the o ther party;

(K.) The relative fault of the parties in cases where the court, in its discretio n, deems it ap propriate to do so;

and

(L.) Such other factors, includin g the tax cons equence s to each pa rty, as are necessary to consider the equities

between the parties.

5Wife was diagnosed and treated for cancer during the period prior to the divorce.

6

enumerated in Tenn. Code. Ann. § 36-5-101(d)(1)(A)-(L).4

In this case, the court below awarded Wife periodic alimony in the amount of one thousand

dollars per month until her death or remarriage. In its order, the court specifically referred to the

following factors: Wife’s role as homemaker and care giver of the parties’ children; the parties’

standard of living prior to the divorce; the disparity between Wife and Husband’s relative standards

of living at the time of the divorce; Wife’s income at the time of the divorce; the monthly expenses

of each party; the education of each party; and the relative earning capacity of each party. In

addition, the court commented on Wife’s inability to rehabilitate herself due to her age and health.5

While all statutory factors listed in Tenn. Code Ann. § 36-5-101(d)(1) are important and will

be considered by the trial court, need and the ability to pay are the critical factors in setting the

amount of an alimony award. Whether an alimony award is appropriate is dependent on the facts
7

and circumstances of each case. “The amount of alimony to be awarded is a matter for the trial

court's discretion in view of the particular circumstances of the case, and the appellate courts are not

inclined to alter the awards except where the record reflects that such discretion has been abused.”

Lindsey v. Lindsey, 976 S.W.2d 175, 179-180 (Tenn. Ct. App. 1997) citing Smith v. Smith, 912

S.W.2d 155, 159 (Tenn. Ct. App.1995); Lancaster v. Lancaster, 671 S.W.2d 501, 503. Butler v.

Butler, 680 S.W.2d 467, 470 (Tenn. Ct. App.1984); Gilliam v. Gilliam, 776 S.W.2d 81, 86 (Tenn.

Ct. App.1988).

Under the standard stated above, we find that the trial court did not err in awarding periodic

alimony to Wife. The court clearly considered the factors set forth in the statute, as well as the case

specific facts and circumstances. For this reason, the holding of the trial court is affirmed on this

issue.

III. Attorney’s Fees

As a final issue, Husband alleges that the trial court erred in ordering him to pay Wife’s

attorney’s fees as well as the court costs. Husband argues that the court was not justified in making

this award. For the following reasons, we find that the trial court did not err in making this award

to Wife.

In a divorce case, an award of attorney’s fees is considered alimony in solido, and the factors

set forth in Tenn. Code Ann. § 36-5-101(d)(1) must again be considered. Houghland v. Houghland,

844 S.W.2d 619, 623 (Tenn. Ct. App.1992). An award of attorney's fees is proper when one spouse

is economically disadvantaged and lacks sufficient resources with which to pay attorney's fees.

Herrera v. Herrera, 944 S.W.2d 379, 390 (Tenn. Ct. App. 1996); Lancaster v. Lancaster, 671 S.W.2d

501, 503 (Tenn. Ct. App.1984); Thompson v. Thompson, 797 S.W.2d 599 (Tenn. Ct. App.1990).

 The decision to award attorney's fees is within the sound discretion of the trial court. As such, an

award of attorney’s fees will not be disturbed upon appeal unless it is against the great weight and

preponderance of the evidence. Storey v. Storey, 835 S.W.2d 593, 597-598 (Tenn. Ct. App. 1992)

citingBatson v. Batson, 769 S.W.2d 849, 862 (Tenn. Ct. App.1988); Lyon v. Lyon, 765 S.W.2d 759,

762-63 (Tenn. Ct. App.1988).

As indicated previously, we find that the trial judge properly considered the factors set forth

in Tenn. Code Ann. § 36-5-101(d). In addition, we find it appropriate to note that Wife did not

receive any cash assets in the division of marital property and did not have the apparent ability to pay

the attorney’s fees. Therefore we find that the evidence does not preponderate against the award of

Wife’s attorney’s fees. The decision of the trial court is affirmed on this issue.

Conclusion

Based on the foregoing, the judgment of the trial court is hereby affirmed in part, reversed

in part, and remanded to the trial court for such further proceedings as necessary. Costs of the appeal

are assessed one-half to the appellant, Jerry Benson Bryant, and one-half to the appellee, Katherine
8

Anne Bryant, for which execution may issue if necessary.