# FILED

March 30, 2000 Cecil Crowson, Jr. Appellate Court Cle rk PEGGY NORINE (RANDOLPH) ) GAVIN, ) ) Petitioner/A

ppellant, )

) 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 H

eights Aven

ue North Lebanon, Tennessee 37087 ATTORNEYS FOR RESPONDENT/APPELLEE

AFFIRMED AND REMANDED

WILLIAM B. CAIN, JUDGE 

## O P I N I O N2 This appeal involves the dissolution of a ten-year marriage. The Wife is the appellan

t, and on a

ppeal, she c

hall enges t

he trial court’s asessment of alimony, the court’s failure to award h er at torney fees, and the cou rt’s distribution of marital property. We affi r m the decision

of the trial co

urt with regard to al

l issues.
Peggy Norine (Randolph) Gavin (“the Wife”) and Neil Frances G avin (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 grantof divorce or the ground upon which it was granted.
By her firs t issue o n appeal, the Wife questions the adequacy of reha bilit ative 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 An no tated section 36-5-101(d): (A) The relative earning capacity, obligations, needs,and financial resources of eac h party, including income from pension, profit sharing or retirement plans and a ll other sources; (B) The relative education and training of each party, the ability and oppo rtunity of each party to secure such education and training, and the necessity o f a party to secure further education and training to improve su ch part y ’s earning capacity to a

reasonable level; (C) The duration of the marria ge; (D) The age and mental condition of each party; (E) T he physical condition of each party, including, but no t limited to, physical disability or incapa cit y due to ch ronic debilitating disease;
(F) The extent to wh

ich it would be u

ndesirable

for a party to seek employment outside the home because such

party will be custodian of a minor ch ild of the marriage;3 (G) The separate assets of each party, b oth rea l and personal, tangible and in

tangible; (H) The pr ovisions 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 home ma ker

contributio

ns, and tan

gible and in

tangible con tributions by a party to the education, training or increased earning power of the other party; (K) The relative fault of the parties in c ases whe re the court, in its discretion, deems it appropriate to do so; and (L) Suchother factors, including th e tax consequences to eachparty, as are necessary to consider the eq uities between the parties.
In setting rehabilitative alimony in the amount of $1,000 per month for one year, t

he trial cour

t stated: So, then that wo

uld basic al ly be, again to the husband: $81,395.00. And to the wife: $133, 435. It’s approxima

tely a 37-63% sp

lit on it. And, I do that basically just on the idea that, I don’t think the wife really has owed

to her the ri

ght to be ke

pt up inthe lifestyle that she has experienced for those 10 ye ars for the rest of [her] life. But, I think some

th ing is ow ed there because I think the husband is going to be able to recov er from this a lot more than the wife will.

. . . And, I think as a transition period, I am going to a llow an alimony of $ 1,000.0

0 a month fo

r 12 months

. Under Rule13(d) of the Tennessee Ru les of Appellate Procedure, the findings of fact of the trial court are no t to be disturb ed on app eal 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 bookkee per, off ice manag er and sales p

erson. Her

gross income for 1997 was $19,333, achieved while working a 28 hour work week.4

This court has held:

Trial courts have br oad discretion over awards for ali mon y. Determinations concerning the amount and duration of rehabilitative alimony are factually d riv en and requirebalancing the many factors contained in T.C.A. § 36- 5-101(d). Appellate courts are not inclined to a lt er a trial court’s alimony det

e rmination 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). C onside ring the length of the marriage, the unequal distribution of marital property favoring th e Wife a nd the e arning capacity of the Wife, we cannotsay that the tr

ia l court ab used its discretion in setting the amount of rehabilitative alimony at $1,000 per month for a period of twelve mont hs. See Crain v. Crai

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

The Wife n ext contends that the trial court erred in not requiring the Husband to pay part

or all of her

attorney fe

es. In the di

v ision of marital property, the Wife re ce ived net assets of $152,79 1.52 while the Husban d received marital assets in the amount of $87, 900.64. Under th ese circums tance s, we cannotsay that the evidence prepo nderates against the tr ial court acti on in requiring the Wife to pay her own attorney fees. Duncan v. Duncan , 686 S.W.2d 568 (Tenn. Ct.App. 198

4); Ingram v. Ingram , 721 S.W.2d 262 (Tenn . Ct. App. 1986).

The Wife next q

uestions the trial court’s

distribution

of marital pr

operty and its holding that certain prop erty was the separate property of the Husband. W e hold that th

e prepond erance of th

e evidence s

upports the

action of th

e tr ia l judge in all aspects of his determ ination of pr operty rights. In so holding, we note that, contr

ary to the Wi

fe’s assertion, the trial co urt did not cla ssify the Husband’s British Aerospace pension as his separate propert y. The Wife argues
on appeal that the lower court erred by classifying this pens ion a s separate property. While we agree that the record cont ains an ambiguous statement regarding the classification of this pr operty , we hold th at the court m

ade its determination of the parties’ property rights upon a finding that the pension was marital property, not separate property.5 The ambiguit

y arises from the trial court’s language at the close of the hearing at which time

the judge ma

de the follo

wing statemen

t: "$27,000.00 to the husband. Probably,

that may be a

ll separate. W

ell, he work

ed for Briti s h Airways part of the time." Despite this la nguage, m

oments later, the co

urt clearly stated two times its intention to give the Hu sband "$60,000 as

separate property,"
an amountwhich reflected an entire $50,50 0.00 separate A.G. Ed

wards IRA accountplus $9,500.00 of another A.G. Edwards account. Furthermore, the final divorce decree draw s a significan t dist inction. While the decree awards the $50,500.00and the $9,500.0 0 to the Husban d as his pre-marital separate property, the court awards the $27,000.00 pension accoun t to him to be h is separate property upon the award. 2. THAT Husband shall be awarded t he AG Ed wards SEP/IRA account (ac

count #66-245454)

in the appr

oximate amou

nt of Fifty ThousandFive Hundred Dollars ($50,500. 00) as his separate property, free and clear of any and all claims of Wife. This account represents Hu

sband’s pre -marital cred its. 3. THAT Husband sh

all be awarded his British Aerospace Pension Account(account #9965-033592) in the approx imat e amount of Twenty Seven Thousand Five Hund

redDollars ($2

7,500.0 0) as his sole and separat

e property , free a nd 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 am ount o f Thirty Two ThousandSeven Hun

dred Forty

Seven Dolla

rs and Eigh

t Cents ($32,747.80) as his sole

and separate property, free and clear of any a nd all cl aims of Wife. The sum of Nine Thousan d Five Hundred Dollars ($9,500.00) o

f said account represents Husba nd’s pre-marital c

redit

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

at the end of the hearing, we fi n d that the trial court’s division of property was based up

on a classifica

tion of the H

usband’s Br

itis h Aerospace pension as marital property.

The judgment o

f the trial cou

rt is in all resp

ects affirmed . Costs of thi s appeal are assessed agains t the part ies equally and the case is remanded to the trial court for such further proceedings as may be necessary.6 ______________________________ WILLIAM B. CAIN, JUDGE

CONCUR:

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

__________________________________ ___ PATRICIA J. COTTRELL, JUDGE