# FILED

December 3, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk 

### IN THE COURT OF AP PEALS OF TENNESSEE AT JACKSON

PATSY LOREAN JOHNSON, ) ) Plaintiff/Appellee, ) Shelby Chancery No. D-13441-3 ) v. ) ) JAMES LARRY JOHNSON, ) Appeal No. 02A01-9703-CH-00069 ) Defendant/Appe

llant. )

APPEAL FROM THE CHANCERY COURT OF SHELBY COUNTY

AT MEMPHIS, TENNESSEE THE HONORABLE D. J. ALISSANDRATOS, CHANCEL LOR

For the Plaintiff/Appellee : For the Defendant/Appellant : Charlie R. Ashford Lawrence W. White Memphis, Tennessee Memphis, Tennessee

AFFIRMED

HOLL Y KIR BY LI LLA RD, J.

CONCURS: DAVI D R. FAR

MER, J. HEWIT T P. TOM

LIN , JR., SR .J.OPINI ON

This is a divorce case. In t he original divorce, year s ago, the w ife was award ed shares of stock from the husband’s p ension fund. Subs equently, the pension fund was distr ibuted to the husband, wit h no monie s going to the wife. I n this action, the trial court awarded the wife a judgment

for the value o f the stock at the time of the trial co urt’s order. The husband appeals. We aff irm. Patsy Lorean Joh

nson (“Wife”) filed f

or divorce from James Larry Johnson (“Husband”) in Shelby County, Tennessee, on October 8, 1985. During t he liti gation, Husband thre atened th at he would quit his

job and col

lect hi s pension be

fore he would pay Wif

e alimony

or agre e to a divi sion of the mari tal ass ets. The

trial court th en entere d an injunct

ion prohibi

ting Husba

nd’s employ

er fr om distri butingto Husband “ an y savings, pension or profit shar ing funds, or other retir ement funds, pending furth er orders of this Court.” Th is injunctio n was nev er modified o r lifted. The final decree of div orce was en tered on D ecember 1 9, 1986. The decree awarded Wife: the exclu sive ow nershi p of a one half (1⁄2) interest in any and all pension fund s, profit sharing accounts,

savings or stock a

ccounts hel

d in the name

of or f or the use

and benefit of the

defendant, James Larry Johns on, by his employer, Buckeye Cellulose Com pany, any of its agents, fiduciarie s or dep ositori es and said intere st shall be vested and d

etermine d as of Dec ember 15, 198 6. Nothing was done at t

hat time to trans fer Wif

e’s int erest t o her. Husba

nd continued to work for Buckeye C ellulose after the divorce. In May 1996 , W ife f

iled a petition to require Husban d to disclose his pensio n and profit sharing funds. After a hearing, the t rial c our t found that, in 1993, the pension funds had been distributed to Husband wit h no funds g oing to Wif e. Thetrial court’s f

indings may be summarized as follows: 1. In the parties’ divorce de cree dat ed December 1 9, 1986, Wife was awarded one-half of Husband’ s pension, savings and profi

t shari ng accounts with his empl oyer, B ucke ye Cell ulos e Com pany. 2. Husband’s empl oyer, however, ne

ver tra nsferr ed the funds into Wife’s name. 3. The entire

pension f

un d was distr ibuted to Husband on or abou t March 16, 1993. 4. Husband did not deliver to Wife her share of the funds. 5. At the time

of the di vorce, Wif

e was enti

tled to 5 33.802 shar

es of Pr octor and Gamble common st

ock and cash a

mounting t

o $2,557.87. 6. The shares ha

ve split t wo for one on October 20,1989 and again on May 15, 1992. 7. At the time

of dist ribution in 199 3, Wife was entit led to 2, 135.208 shar

es of Proctor & Gamble stoc

k, and shar

e valueas of September 17, 1996 was $93.00 per share. 8. Plaintiff is entitl ed to rec eive the

sum of $198, 574.34 for her shar es, plus the cash award of $2,557. 87, for a total award of $201,132.21. The trial court also found Husb and in contemp t, and ordered him incarcerated until he purg e d

### 2

himself of the c ontempt by

payment of the j udgment. Husband was la ter re leased f rom custody

and filed this appe al. We review the trial court’s f indings de novo , with a presumption of correctness of the tri al court’s findings of fact. See Tenn. R. App. P. 13(d). “ Trial c ourts ar

e entit led to br oad discr etion in adjudica

ting t he right s of par ties i n a divorce

case. De

cision s based u pon this discretion are entitled to great weight.” Cutsinger v. Cutsinger , 917 S.W.2d 238, 243 (Te

nn. App. 1995)

(cita tions omitted). No transc

ript or stateme nt of the evidence was filed in this case, so our review is confined to the techn ical record. Husband argues that

the trial court erred in ordering him incarcerated for civil contempt un til he paid Wife the sum o f $201,132.21, an am ount representing the presen t value o f the pensi on account. Husband contends that the trial court should have instead awarded Wife $49,000, which represents the value of Wife’s fif ty-percent interest

in thepension fund in 1986, when the divorce decree was ent

ered. On appeal, Husband does not challeng e his inc arcera

tion, onl y the a mount of the mone y judgment ren dered agains t him. At the time of the divorce, under the trial court’s orders, Wife was entitled to 533.802 shares of Proctor and Gam ble commo n stock. The shares split two for one o n October 20, 19 89 and again

on May 15, 1992 to result in a total of 2,135. 208 shares. Share val ue as of Se

ptember 17,

1996 was $93.00 per share, for a to tal cash valu e of $198,5 74.34. Husband claims t

hat the t rial c ourt should not haveincluded i n its val uationstock splits that occurred twice during the ten years since the divo rce decree, alleging that this valuation is "arbitrary and without a factual basis." The divorce decree st ates that W ife' s inter

est "sha ll be ves ted and deter mined as of Dec ember 19, 198 6." Ther efore, Husband clai

ms that t he tria l court s ho uld no t have used present day dollars to determine the value of Wife's percentage. Husband all eges tha t the divorce decree could not have granted the trial court jurisdi ction to divide pr

operty acquired

in the future. In dividing

marital assets, one of two me

tho ds ma y b e employed to value and distribute pension benefits. In the fi rst meth od, the t rial c ourt dete

rmines t he present

cash value

of the pe nsion at the time of the dissolution of the marriage. The trial court t hen determines the value of th e percentage owed to the non-employee spouse an d “awards t

he other spouse marital property of equal value.” Kendrick v. Kendrick , 902 S.W.2d 918 , 927 (Tenn.App. 1994). The second method, called

### 3

the “retai ned juris diction”

method, “requires the court to retain juri sdiction over the case and to defer divid ing the pe nsion interest until the pension vests or matures.” Id. ; see Cohen v. Cohen , 937 S.W.2d 823 (Ten n.

### 4

1996). Under this method, th e trial court retain s jurisdiction to oversee th e payment of b enefits. See Cohen , 937 S.W .2d at 831

. 

### In this case, the trial court’s 1986 permanent injunction stated that “no funds shall be distributed to [Husband] from any savings, pension or profi t s haring funds, or o ther retirement

funds, pending further orders

of this Court.” In the 1986 final decree of divorce, the trial court awarded Wife: the exclusive owner ship of a one half

(1⁄2) interest in an

y and all pension fu

nds, profit sharing accounts, savings or stock accoun ts h eld in the name of or for the use and benefit of the defendant, James Larry Johnson, by his employer, Buckeye Cellulose Company, any of its agents, fiduciaries or depositories and said inter est sha ll be vested and determined

as of December

15, 1986. And said

interest shall be p

aid to her at the earliest date allowable; that any of defendan

ts [sic] interest i

n and tosaid one-half (1⁄2) of said

fund is devested out of defendant and vested in plaintiff and any interest of the pla intiff in the balance is divested out of her and vested in the defendant. The final decree of divorce d id not mentio n the earlier permanent injunction and made no further provision to distribute Wife’s interest in the pension funds to her. Therefore, the trial court’s final decree of

divorce does not s

ta te e xpressly whether the pension fun ds wer e valued by the present cash value method or the retained jurisdiction method. Husbandargues that, in the judgment that is the s

ubject o f this appeal, the tri al court erred i n the valuati on of the pe

nsion becaus e Wife’s

intere st should ha

ve been limited to a portion o f the benefits that Husban d earned d uring t he marria ge, a nd any accrua

l bey ond that

amount be

longed to him. 

### However, in the 1986 decree, the tri al court simply

awarded Wife a fixed percentage of the shares of stock in the pension fund, and left in place the permanent injunction prohibiting the distribution of the pension fund to Husband. Therefore, it is clear that the trial court in

its 1986 decree did not value the pension fund under the “present value” method, because no shares of stock or equivalent monies were distributed to Wife. Implicitly, by fixing Wife’s share of the pension fund and leaving in place the injunct

ion against its

distribution, the trial court retained jurisdiction over thepension fund to be distributed at a later date. Husbandargues that, by awarding Wife a judgment that gives her the benefit of sto

ck splits and increases in value

after the final decree of

divorce, the trial court erroneously awarded Wife a division of property out of Husband’s future earnings or property acquired in the future.In support of his co ntention, Husband cites Ettinger v. Ettinger , 637 P.2d 63 (Okla. 198 1). I n Ettinger , the wife claimed a one- h alf interest in st ock options that her former husband would receive from his

### 5

employer some time in the future. The Ettinger court found that it was “with out authority to make

a division o f property out of . . . ‘future acquired property .’” Id. at 65. It st ated that “[s]t ock options not in existence at the time of the enteri ng of the divorce decree, and over which [Husban

d] had no interestwhatsoever, is si mply not p

roperty acquired by [Wif e] and [ Husband] dur

ing cover

ture and therefore is not subject to being di vided by the court.” Id. Therefore, in Ettinger , the wif e sought di vision of stock opti

ons not ye

t earned by the husband at the time of the divorce decree. In contrast, in this case, Wife received in the 1986 divorce decree shares of

stock t h at were in existence at the time o f the divorce. These shares increased in number and in value as the res ult of e conomic fa

ctors out side the parties’ control. The increase in value of Wife’s share in the pension was not contingent upon an y actio n by Husband, suc h as his continue d employm ent with tha t compan y. The facts in this case are analogous to those in Bigbie v. Bigbie , 898 P.2d 1271 (Okla. 1995). In Bigbie , the husband, an insurance agent, claimed that the tr ial court erred in consi dering f uture commissions

on renewals of insurance polici es as marital assets and not as “future acquir ed property.” Bigbie , 898 P.2d a t 1272. The app e llate court found that the anticipat ed renewal commissions

were properly designated as marital prop erty because “the husban d was entitled to receive the income under a contractual agreement with the insurance company which also provided for the husband’ s heirs t

o receive the renewal comm issions in the event of his dea th and allowed the husband to assign the commission s under certain circumstan ces.” Id. at 1273 (citin g Niroo v. Ni roo , 545 A.2d 35 (

Md. 1988)) . As in Bigbie , in this case, Husband was ent itled t o receive the pensi on under a contractual arrangement with h is employer esta blished at th e time of the div orce decree

. See also Pascale v. Pascale , 660 A.2d 485, 498 (N.J. 1995 ) (“[S]tock op tions awa rded after the m arriage has termina

ted but obtained as a result of eff orts expended during the marriage should b e subject to equitable d istribution.” ). It must be noted that post-m arriage appreci ation of a marit al asset is not m arital property. See Fox v. Fox , 441 S.E.2d 613 , 616 (N.C. App. 19 94). Howev er, after the 1986 decree of divorce, Wife’s share

of the pension fund wa s no longer marital property; rather, it was Wife’s separate prop erty. Husband seek s to retain the benefit of the stock split s and their increase in value, but aft er the 1986 decree , thos e shar es of stock no l

onger belong ed to hi

m. Husband also ass erts t

hat Wife should be barred f rom pursuing

her clai m by the doc

trine of

### 6

laches. Husband c ontend s that by faili ng to bring this action for over seven years, Wife lost her rights to the

funds. Hu sb and points t o no place i

n the rec ord befor

e this Cour

t in which this is sue was raised before the trial court . It is well -settled that “[i] ssues not r

aised or complained o f in the trial court will not be considered on appeal.” Tops Ba r-B-Que , Inc. v . Strin ger , 582 S.W.2d 756 , 758 (Tenn. App. 1977); see Carl Cl ear Coal Corp. v. Huddlest on , 850 S.W.2d 140 , 143-44 (T enn. App. 19 92). Therefor e, the argumen t will not be co nsidered o n appeal. F inally, Husband c ontendsthat t he tri al cour

t err ed in de termi ning t hat he was in willfu l contempt

of a permanent injunction when the final d ecree of divorce di

d not menti on the continuat

ion of the i

njunction.As noted above , we have no transcr ipt or st atement of

evidence on the proceedings below. The trial court' s findings d o no t addres s Husb and's alle ged vio lation o f a permanent

injuncti on. The te

chnical r ecord does not refle ct the basis for the finding of contempt. The tria l court’ s order e

ntered on Se

ptember 20,

1996, stat

es only that Husband : knew of [Wif

e’s] i nterest in thepension, profit sharing and savings f unds distributed to him on March 16, 1993; that he has failed to produce records of transactions or to account to [Wife] or the Cour

t for the funds

receive d and the Court

finds [Husband] in willf ul Civi l Contempt of

the prio r Orders of the Cour

t and that

he should be incarcerated until he has pu rged himself of said Civil Contem pt. Without an app ellate re cord setting f orth the factual basis for the trial court’s rul

ing, “we must

assume that the record,had it bee

n preserved, would have contained sufficient evidence to suppo rt the trial court’s factua l findi ng s.” Sherrod v. W ix , 849 S.W.2d 7 80, 783 (Tenn. A pp. 1992). Therefore, w e must find th is issue to be without m erit. 

### The decision of the trial court is affirmed. Costs are assessed ag ainst the A ppellant, for which execution may issue, if necessary.

HOLLY KIRBY LILLARD, J.

CONCUR:

DAVID R. FARMER, J. HEWITT P. TOMLIN, JR., SR.J.