1 Child 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 a ward of ma

rital assets, award of ali mon y, 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 pro ceedings as n eces sar y. Tenn.R.App.3; Appeal as of right; Judgment of the Chanc ery Court Affir

med inpart, Reversed in Part and Remanded
H IGHERS , J., d elivered the opinion of the court, in which C RAWFORD , P.J., W.S.
, F ARMER , J. , joined. M. Andrew Hoover, ANDREW HOOVER & ATTORNEYS, Pulaski, Tennessee, Attorney for Appellant, Jerry Benson Brya nt Barbara J. Walker, Columbia, Tennessee, Attorney for Appellee, Ka therine Anne Bryant

OPINION Facts and Procedural History
This appeal arises from an action for divorce initiated by Husband. On December 2, 1996, Husbandfiled for divorce alleging inappropriate marital conduct by Wife. In March 1998, Wife filed a counterclaim for divorce

alleging inappropriate marital conduct by H

usband. After a p

endente 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

of2 T enn. Cod e Ann. § 36-4- 129(b) provide s: The court may, upon s

tipula tion to or proof of

any groun

d for divorce pursuant to § 36-4- 101, grant a divorce to the party

who was less at

fault or, if eith er or both partie s are entit led to a divorce, decl

are the parti

es to be divorced, r

ather than awar

ding a divorce to ei

ther party a

lone.

2 the parties a “dual-fault” divorce pursuant to Tenn. Code. Ann. § 36-4-129(b). 2 The court reserved ruling on the othe

r issues.
Th e trial was resume

d and completed on

September 16, 1998 . At this time, the fol l owin g was lis ted as m ari tal pro pert y: J&B Co. Inc. Stock $59,000 ST Money Market $30,000 Third Street House $110,000 Gibson and Cardin B

uilding Equity $55,000 Proceeds from Dr

ugstore sale $11,900 Truck $3,150 Husband’s car e

quity $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 I

RA $530 Revco 402K $264 Household Furnishin gs $50,000 Total $346,050
Based on the foregoing, the cou rt awarded Wife $140,000 worth of marital assets and Husband approximately

$202,000 of marita

l assets. Husband w

as also ordered t

o pay the pa

rties’ marital debt andto pay periodic alimony of $1,000 per mo nth t o Wif e unti l her d eath o r rema rriage . In addition, Husband was orde

red to pay Wif

e’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 th

at the courterred 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 tha t the $30,000 in the ST Money Market account i

s his separate prop erty and s hould be withdrawn from the marital estate. Husband also asserts that the marital estate should be reduced by $11,900 because these proceeds fr om the sale of the drugstore were used to remodel the house

awarded to Wife.

Husband also conte

sts the valuation of

the parties’ hous

ehold furnishi ngs at $50,000. Husband claims that the actual value of all the assets he receive d i s3 Tenn. Cod e Ann. §36-4-12 1(c) provides:

In making equitable division of marit al property, the court shall consider all relevant fact ors including: (1) The duration of t

he marriage; (2) The age, physical and mental health, vocational s kills, employabilit

y, earn ing c apacity, es tate, fi nancial 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 earn

ing power of the other p arty;

(4) The relative

ability of each party f

or future acquisitions of capital ass

ets and income; (5) The contribution of each pa rty to the ac quisit ion, pres ervati on, appreci

ation or dissipa

tion of the mari tal or separate property, inc luding the co ntribution of a party to the marria ge as homemaker, wage earner or parent, with the contributi

on of a party as

homemaker or wage earner t o be given the same we ight if each party has fulfil

led its rol

e; (6) The value of the sep arate prop erty of each p arty; 3 approximately

$80,000. In ad

dition, Husband all

eges that the co

urt erred in awa

rding 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 awa rding 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 pro pert y, any error was due to Husband’s failure to submit a Sworn Statementof Parties’ Separ ate andJoint Assets and Liabilities as required by the local trial court

rules. In addition, Wif

e asserts that the trial cour

t did not err in the a

ward 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 asset

s. Before dividing the mari

tal estate, the tr

ial court must first classify the parties' property as either maritalor separate pro perty beca

useonly marital

property is subject to the tria l court's powers of equitable distribution. Dunlap v. Dunlap , 996 S.W.2d 803, 814- 815 (Tenn. Ct. App. 1998) citing Cutsinger v. Cuts ing er , 917 S.W.2d 238, 241 (T enn. 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. C t. App. May 1, 1 991) citin g Fisher v. Fisher , 648 S. W.2d 24 4, 246 (Tenn.1983); Edwards v. Edwards , 501 S.W.2d 283, 288 (Tenn. Ct. App.1973).
After charac

terizing the par

ties’ assets

as either marital or separ

ate property

, the court will make an equitable division of marital assets. An

equitable division

of property

does not necessa

rily
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 re ndere d inequitable

simply because it is not mathematically equal, or beca use ea ch part y 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. I n determining wh

at constitu tes 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 e ach party at t

he time of th

e marriage; (8) The economic circumst ances of each part

y at the t ime the divi sion of property is to become eff

ective; (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 Ap pellate Procedure, the trial co urt's classification and division of ma rital prop erty enjoys a presumption of corre ctness and will be re v ersed or modified only if the evidence preponderates aga inst the court's decision. Lancaster v. Lancaster , 671 S.W.2d 501, 502 (T enn. Ct. App.1984) ; Hardin v. Hardin , 689 S.W.2d 152, 154 (Tenn. Ct. App.1983); Gorenv. Goren , 1988 WL 118114, at *3 (Tenn. Ct. App. Nov.7, 1988). With this in mind, we now tu

rn 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 proper

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

$59,000) twice. A

ccording to Husb

and, this stock is

the same ass et as the Gibson and Cardin Bu ilding equity and the truck. In addition, he asserts that the thirty thousand dollars in the ST Money

Market account i

s 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 representingproceeds from the sale of the drugstore

that was used to re

model the house aw

arded to Wife. Husband also contests the valuation of the parties’ household furnishings at $50,000.
A. J&B stock
F romour reading of the record, there seems to be at least some evidence to suppor t Husband’s contention regarding the J&B stock. Du ring Wife’s testimony, Husband’s attorney questionedher about the stock. Wife admitted that the building and truck were assets in J&B. Based on the conflic

ti ng 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 A

ccount
Husbandalso 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 receiv ed as a gift from his parents and is therefore separate property . In her testimony , Wif

e admitted that the money was a gift solely

to Husband and tha

t is was hisseparate prope rty. Despite this testimony, the court

included the money

market account i

n the marital asset

s subject to equita

ble5

division.
A spouse's separate property includes property a

cquired "at any

timeby gift, be

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

a gif t, t he gi ft i s hi s or her s epar ate pro pert y, regardless of when it was acquired. The burden of proving that a gift was ma de is upon the donee

or the party

asserting the g

ift. 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 P roceeds
Husbandasserts that

the trial court er

red in including $ 11,900 in cash as part of the marital estate. According to Husband, this money was used to re model t he parties’ res

idence, and this residencewas awarded to Wif e. However, at t

rial Husband was u

nable to offer any proof regarding this contention. Husband only testified that this money was spent “somewhere along the line.” As statedabove, the trial court’s characterization and division of marital

assets carries a

presumption of correctness. H

usband has failed

to overcome this presumption. Therefore, the decision of the trial court on this issue is affirmed. D. Household Furnishings
Husbandalso contends that the trial court erred in valuing the parties’ ho usehold fu rnishings at $50,000. At trial, Husband testified that he had received only five t housand dollars worth of household

furnishings from the parties’ residence. Wife testified that the property in her possession was worth approxim

ately twe nty- five thousand dollars and that Husband either took an equal amount from the parties’ marital residence or used marital assets to acquire additional furni shings. O n appeal, Husband argues that the total value of all household furn

ishings should be r

educed to twenty thousand dollars. Husband o ffers no furt her evidence to support this reduc

tion. Based on the

se 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
Husbandasserts that t

he trial court failed to make the necessary findings of fa ct to award alimony pursuant to Tenn. Code. Ann. § 36-5-101(d)(1)(A)-(L). According to Husband, the c ourt 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 t

rial court considered the f actors4 Tenn. Code. Ann. § 3 6-5-101(d)(1 )provides: It is th e intent of

the general a

ssembly that

a spouse w ho is
econom ically disadvantaged, r elative t o the other spouse,

be rehabilit

ated whenever possi

ble by the grant

ing of an order forpayment o f rehabilitative, tem porary sup port and m aintenance. Where th ere is such relat ive economic di

sadvantage and rehabili

tation i s not feasible in considerat ion of all relevant factors , includi ng those set out i

n this subsecti

on, then the court m ay gr ant an order f or payment of support and mainte nance on a long-t

erm basis or

until t he death or remarriage

of the recipie nt except a s otherwise provided in subdivis ion (a)(3). Rehabilitat ive support and main

tenance is a separate class o f spousal suppo rt as distinguis

hed from alimony in solido and periodic alimony. In determining whether the gran ting of an order for payment of support and maintenance to a party is appropriate, and in determini ng the nature, amount, length of t erm, and manner of payment, the court shall consider all relevant factors, i

ncluding: (A.) The relative earning cap acity, obligations, needs, and fina ncial resour ces of each par ty, incl uding i ncome from pension, profit sharing or retirem ent plans and all other sources;

(B.) The relat

ive educat

ion and trainin

g of each party, th

e ability and opportunity of

each party to s

ecure such education

and training, and the necessit y of a party to secure furt her education and training to improve such pa rty'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 debili

tating di sease; (F.) The exte nt to which it would be undesirab le for a party t o seek employment out side the home because such party will

be custodian of a mi

nor child of t

he marriage; (G.) The separate assets of each part y, both real

and personal, t

angible and int

angible; (H.) The provi sions made with re gard to t he marit al propert

y as defi ned in § 36- 4-121; (I.) The standar

d of living

of the parti

es establi shed during the marriage; (J.) The extent to which each party has made such tangible a nd intangible contributions t o th e marriage as monetary and hom emaker 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 part ies 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 necessar y to consider t

he equities between the parties.

5 Wife was diagnosed and tr eated for cancer dur

ing the peri

od prior to the div

orce
. 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 deat h or re marriage. In its order, the court specifically referred to the following factors: W

ife’s role as homemake

r and care giv

er of the partie

s’ children; the p

arties’ standardof living prior to the divorce; the d

isparity 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 part y; the ed ucati on of e ach pa rty; an d the r elati ve ear ning c apaci ty of eac h part y. In addition, the court commented on Wife’s inability

to rehabilitate he

rself due to her age and health. 5
Whileall statutory

factors listed in Tenn. Code Ann. § 36-5-101(d)(1) are important an d will be considered by the trial court, need and the ability to pay are t

he cr itical factors in setting the amount of an alimony award. Whether an alimony award is appropr

iate is dependent

on the facts7

andcircumstances 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 inclinedto 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. 19 97) citing Smith v. Sm it h , 912 S. W.2d 155, 159 (Tenn. Ct. A pp.1995); Lancaster v. Lancaster , 671 S.W.2d 501, 503. Butler v

. Butler , 680 S.W.2d 467, 470 (T enn. Ct. App.1984) ; Gilliam v. Gilliam , 776 S.W.2d 81, 86 (Tenn. Ct. App.1988).
Under the standard stat

ed above, we fin

d that the trial cou

rt did not err in awarding peri

odic alimony to Wife. The court clear

ly consider

ed the factors se

t forth in the statut

e, as well as the c

ase specific facts and circu

ms tance s. For this reason , the holding of th

e trial court is af

firmed 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’sfees 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 fe es 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 whe n one spouse is economically

disadvantaged

and lacks suffic

ient resources w

ith 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 decisio n to award at torney's fees is within the sound discretion of thetrial court. As such, an award of attorney’ s fees will not be di sturbed upon appe

al 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) citing Batson v. Batson , 769 S.W.2d 849, 862 (Tenn. Ct. App. 1988); Lyon v. Ly on , 765 S.W.2d 759, 762-63 (Tenn. Ct. App.1988).
As indicatedpreviously, we find that the trial judg

e properly considered the f

actors set forth in Ten n. Code An n. § 36-5-101(d). In addition, we find it appropriate to note that Wife did not receiveany cash a

ssets in the division o

f marital proper

ty and did not have the

apparent ability

to pay the attorney’ s fees. Theref ore we find that th

e evidence does

not preponderat

e against the award of Wife’s attorney’s fees. The decision of the trial court is affirmed on this issue.
Conclusion
Based onthe 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-ha

lf to the appellan

t, Jerry Ben

son Bryant

, and one-half to the appellee, Katherine8

Ann e Brya nt, for whi ch ex ecut ion may i ssu e ifnece ssa ry.