FILED

March 30, 2000

Cecil Crowson, Jr.

Appellate Court Clerk

PEGGY NORINE (RANDOLPH) )

GAVIN, )

)

Petitioner/Appellant, )

) Appeal No.

v. ) M1999-02755-COA-R3-CV

)

NEIL FRANCES GAVIN, ) Wilson General Sessions

) No. 5838

Respondent/Appellee. )

COURT OF APPEALS OF TENNESSEE

APPEAL FROM THE GENERAL SESSIONS COURT FOR WILSON

COUNTY

AT LEBANON, TENNESSEE

THE HONORABLE ROBERT HAMILTON, JUDGE

JOHN R. PHILLIPS, JR.

Phillips & Ingrum

117 East Main Street

Gallatin, Tennessee 37066

ATTORNEY FOR PETITIONER/APPELLANT

JESSICA DAWN DUGGER

GREGORY S. GILL

Rochelle, McCulloch & Aulds

109 Castle Heights Avenue North

Lebanon, Tennessee 37087

ATTORNEYS FOR RESPONDENT/APPELLEE

AFFIRMED AND REMANDED

WILLIAM B. CAIN, JUDGE

O P I N I O N
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This appeal involves the dissolution of a ten-year marriage. The Wife

is the appellant, and on appeal, she challenges the trial court’s asessment of

alimony, the court’s failure to award her attorney fees, and the court’s

distribution of marital property. We affirm the decision of the trial court with

regard to all issues.

Peggy Norine (Randolph) Gavin (“the Wife”) and Neil Frances Gavin

(the “Husband”) were married in Putnam County, Tennessee on June 11, 1988

and were divorced after trial by the General Sessions Court of Wilson County on

July 29, 1998. At the time of the divorce, the Wife was 44 years of age the

Husband 38 years of age. Divorce was granted to the Wife on the ground of the

Husband’s adultery. No issue is raised on appeal concerning the grant of divorce

or the ground upon which it was granted.

By her first issue on appeal, the Wife questions the adequacy of

rehabilitative alimony as ordered by the court. Factors to be considered by the

trial court in an award of alimony are set forth in Tennessee Code Annotated

section 36-5-101(d):

(A) The relative earning capacity, 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

capacity to a reasonable level;

(C) The duration of the marriage;

(D) The age and mental condition of each party;

(E) The physical condition of each party, including, but not

limited to, physical disability or incapacity due to chronic

debilitating disease;

(F) The extent to which it would be undesirable for a party

to seek employment outside the home because such party will

be custodian of a minor child of the marriage;
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(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

and intangible contributions to the marriage as monetary and

homemaker contributions, and tangible and intangible

contributions by a party to the education, training or

increased earning power of the other party;

(K) The relative fault of the parties in cases where the

court, in its discretion, deems it appropriate to do so; and

(L) Such other factors, including the tax consequences to

each party, as are necessary to consider the equities between

the parties.

In setting rehabilitative alimony in the amount of $1,000 per month for

one year, the trial court stated: 

So, then that would basically be, again to the husband:

$81,395.00. And to the wife: $133,435. It’s approximately

a 37-63% split on it.

And, I do that basically just on the idea that, I don’t think the

wife really has owed to her the right to be kept up in the lifestyle that she has experienced for those 10 years for the rest

of [her] life.

But, I think something is owed there because I think the

husband is going to be able to recover from this a lot more

than the wife will. 

. . .

And, I think as a transition period, I am going to allow an

alimony of $1,000.00 a month for 12 months.

Under Rule 13(d) of the Tennessee Rules of Appellate Procedure, the

findings of fact of the trial court are not to be disturbed on appeal unless the

evidence preponderates against such findings. In this case, the record shows that

the Wife, prior to and during the marriage of the parties, held various positions

of employment as a bookkeeper, office manager and sales person. Her gross

income for 1997 was $19,333, achieved while working a 28 hour work week.
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This court has held:

Trial courts have broad discretion over awards for

alimony. Determinations concerning the amount and

duration of rehabilitative alimony are factually driven and

require balancing the many factors contained in T.C.A. § 36-

5-101(d). Appellate courts are not inclined to alter a trial

court’s alimony determination unless the trial court’s

discretion has been manifestly abused. 

Herrera v. Herrera, 944 S.W.2d 379, 387-88 (Tenn. Ct. App. 1996) (citations

omitted). Considering the length of the marriage, the unequal distribution of

marital property favoring the Wife and the earning capacity of the Wife, we

cannot say that the trial court abused its discretion in setting the amount of

rehabilitative alimony at $1,000 per month for a period of twelve months. See

Crain v. Crain, 925 S.W.2d 232, 233-34 (Tenn. Ct. App. 1996).

The Wife next contends that the trial court erred in not requiring the

Husband to pay part or all of her attorney fees. In the division of marital

property, the Wife received net assets of $152,791.52 while the Husband received

marital assets in the amount of $87,900.64. Under these circumstances, we

cannot say that the evidence preponderates against the trial court action in

requiring the Wife to pay her own attorney fees. Duncan v. Duncan, 686 S.W.2d

568 (Tenn. Ct. App. 1984); Ingram v. Ingram, 721 S.W.2d 262 (Tenn. Ct. App.

1986).

The Wife next questionsthe trial court’s distribution of marital property

and its holding that certain property was the separate property of the Husband.

We hold that the preponderance of the evidence supports the action of the trial

judge in all aspects of his determination of property rights. In so holding, we

note that, contrary to the Wife’s assertion, the trial court did not classify the

Husband’s British Aerospace pension as his separate property. The Wife argues

on appeal that the lower court erred by classifying this pension as separate

property. While we agree that the record contains an ambiguous statement

regarding the classification of this property, we hold that the court made its

determination of the parties’ property rights upon a finding that the pension was

marital property, not separate property.
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The ambiguity arises from the trial court’s language at the close of the

hearing at which time the judge made the following statement: "$27,000.00 to the

husband. Probably, that may be all separate. Well, he worked for British

Airways part of the time." Despite this language, moments later, the court clearly

stated two times its intention to give the Husband "$60,000 as separate property,"

an amount which reflected an entire $50,500.00 separate A.G. Edwards IRA

account plus $9,500.00 of another A.G. Edwards account. Furthermore, the final

divorce decree draws a significant distinction. While the decree awards the

$50,500.00 and the $9,500.00 to the Husband as his pre-marital separate property,

the court awards the $27,000.00 pension account to him to be his separate

property upon the award.

2. THAT Husband shall be awarded the AG Edwards SEP/IRA

account (account #66-245454) in the approximate amount of Fifty

Thousand Five Hundred Dollars ($50,500.00) as his separate

property, free and clear of any and all claims of Wife. This account

represents Husband’s pre-marital credits.

3. THAT Husband shall be awarded his British Aerospace Pension

Account (account #9965-033592) in the approximate amount of

Twenty Seven Thousand Five Hundred Dollars ($27,500.00) as his

sole and separate property, free and clear of any and all claims of

Wife.

. . . 

7. THAT Husband shall be awarded the A.G. Edwards Account

(account #66-245446) in the approximate amount of Thirty Two

Thousand Seven Hundred Forty Seven Dollars and Eight Cents

($32,747.80) as his sole and separate property, free and clear of any

and all claims of Wife. The sum of Nine Thousand Five Hundred

Dollars ($9,500.00) of said account represents Husband’s

pre-marital credit.

(emphasis added). In light of this language in the decree as well as the court’s

statements at the end of the hearing, we find that the trial court’s division of

property was based upon a classification of the Husband’s British Aerospace

pension as marital property.

The judgment of the trial court is in all respects affirmed. Costs of this

appeal are assessed against the parties equally and the case is remanded to the

trial court for such further proceedings as may be necessary.
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______________________________

WILLIAM B. CAIN, JUDGE

CONCUR:

_____________________________________

BEN H. CANTRELL, P.J., M.S.

_____________________________________

PATRICIA J. COTTRELL, JUDGE