FILED

October 15, 1999

Cecil Crowson, Jr.

Appellate Court Clerk

IN THE COURT OF APPEALS 

AT KNOXVILLE

 

) WASHINGTON COUNTY

SALLY SUTTON BRITT, ) 03A01-9812-CH-00416

)

Plaintiff-Appellant, )

)

v. ) 

) HON. G. RICHARD JOHNSON

BOBBY GLENN BRITT, ) JUDGE

 )

 Defendant-Appellee. ) 

 )

)

) REVERSED AND REMANDED

)

ROBERT D. ARNOLD of ARNOLD, HAYNES & SANDERS, Johnson City, for

Appellant

JUDITH FAIN, Johnson City, for Appellee 

O P I N I O N

 

Goddard, P.J.

This appeal involves an action to determine whether the

Trial Court erred in its division of the marital estate. Sally

Sutton Britt, the Plaintiff/Appellant, presents as her sole

issue, which we restate, whether the Trial Court erred in its

valuation of her Civil Service Retirement Account in its division

of the marital estate in her divorce from Bobby Glenn Britt, the

Defendant/Appellee.
2

The parties were married for thirty-seven years and at

the time of their divorce, their marital estate was valued at

over $1 million.

Mrs. Britt, who is now retired, was employed for

thirty-one years as a registered nurse at the Veterans

Administration Hospital in Johnson City. She receives $1,709 per

month gross from the federal government in a civil service

retirement pension. 

In its division of the marital estate, the Trial Court

awarded Mrs. Britt the entire estimated value of her Civil

Service Retirement Account, $270,000. Each party received

approximately $649,499 from the division of the marital estate.

Mrs. Britt argues that the value of her portion of the

marital estate is less than that received by Mr. Britt. James

Fraser, an investment broker with J. C. Bradford who is

experienced in evaluating retirement accounts, stated that Mrs.

Britt had no access to any lump sum amount from her Civil Service

Retirement Account, unlike an IRA or a 401(k) account. 

Therefore, Mrs. Britt contends that the value of her portion of

the marital estate is less than that received by Mr. Britt. 
3

Mr. Britt argues that the Trial Court did not err in

the division of the marital estate. He contends that Mrs. Britt

argued at trial that her Civil Service retirement benefits were

not a marital asset, so she should not be allowed to argue on

appeal that her retirement is a marital asset and should be

divided. However, Mrs. Britt maintains that she did not assert

at trial that her Civil Service retirement benefits were not

marital property, but did assert that these benefits “should be

considered the same way that Social Security is considered.” 

Mrs. Britt does not contest the Trial Court’s finding that her

Civil Service retirement is marital property, but she does

contest the Trial Court’s division of the marital estate. 

It is well established that division of a marital

estate need not be equal to be equitable. Wade v. Wade, 897

S.W.2d 702, 713 (Tenn. Ct. App. 1994). Courts often divide

marital property retirement benefits by awarding a spouse

periodic payments directly from the pension fund. Towner v.

Towner, 858 S.W.2d 888, 891 (Tenn. 1993). 

“One advantage to the deferred distribution method is

that it allows an equitable division without requiring present

payment for a benefit not yet realized and potentially never

obtained.” Cohen v. Cohen, 937 S.W.2d 823, 831 (Tenn. 1996). 
4

Furthermore, such an approach “equally apportions any risk of

forfeiture.” Cohen, 937 S.W.2d at 831.

The Trial Court awarded the value of Mrs. Britt’s Civil

Service retirement pension, which it determined to be $270,000,

to her in a lump sum, despite the fact that she cannot receive

her retirement in a lump sum amount like other retirement

accounts such as an IRA or a 401(k) plan. She can receive only

a fixed amount, $1,709, per month. Furthermore, Mrs. Britt’s

Civil Service Retirement Account constitutes the largest asset in

her portion of the marital estate. Therefore, in light of the

value of the marital estate at over $1 million, we find that Mrs.

Britt’s portion of the marital estate in liquid assets is not

equitable when compared with the value of Mr. Britt’s portion of

the marital estate.

For the foregoing reasons, we reverse the judgment of

the Trial Court with respect to the division of the marital

estate and remand to the Trial Court for a division of the

marital estate that provides for an equitable monthly payment to

Mr. Britt from Mrs. Britt’s Civil Service retirement pension and

that provides for Mrs. Britt’s receipt of an equitable amount

from the couple’s liquid assets such as various retirement

accounts. Costs are adjudged against Mr. Britt. 
5

___________________________

Houston M. Goddard, P.J.

CONCUR:

__________________________

Herschel P. Franks, J.

_________________________

D. Michael Swiney, J.