# FILED
April 28, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF A

PPEALS OF TENN ESSEE AT JA CKSON PHILLIP WAYNE CROCKER, ) ) Plaintiff/Appellee, ) Madison Chancery No. 53013 ) VS. ) Appeal No . 02A01-9801-CH- 00014 ) PATRICIA L. TA

YLOR CROCKER, ) ) Defendant/Appellant. )
APPEAL FROM

THE CHANCE RY COURT O F MADISON COUNTY AT JACKSON, TENNESSEE THE HONORABLE JOE C. MOR RIS, CHANCELLOR

JAMES F. (TIM) SCHAEFFER Memphis, Tennessee Attorney for Appellant
BENJAMIN M.

HUEY JASON C. SCOTT FLIPPIN, COLLINS, HUEY & WEBB, P.L.L.C. Milan, Tennessee Attorneys for Appellee

AFFIRMED A

S MODIFIED

ALAN E. HIGHERS, J.

CONCUR: W. FRANK CR

AWFORD, P.J., W.S . DAVID R. FA

RMER, J. Patricia Louise Taylor Crocker (“ Wif e or “Appellant”) appeals the judgment of the2

tria l court which granted divorce to Wife and Phillip Wayne Crocker (“ Husband” o r “Appellee”); awarded Wife rehabilitative alimony in the amount of

$1,000.00 per month for
a period of twenty-four ( 24) months; awarded Wife court costs and attor ne y’s fees as alimo n y in solido

in the amount of $4,000.00; awarded eac h party the separate proper ty he/she respectively owned be fore marriage or inherited during marriage; and di vided the property acquired during the marriage as follows: Wife: 1. Real property l ocated at Three Way in Madison County upon which Wife’s dancing school business w as located. Value $53,500 Debt $37,500 Husband: 1. 33.5-acre Gibson County farm.

Value $25,800 Debt $0 2. 115.5-acre Gibson County farm

Value $95,200 Debt $95,000

I. Factual and Procedur al History

Husband and Wife were married in Augu st of 1991. They first met in Januar y of 1990 when Husband came to a dance class at

Wife’s dancing school. This marriage was marriage number three for Wife and marriage number four for Husband.

Prior to this marriage, Wife was receiving alimony in the amount of $1,200.00 per month for life (which was to increase to $2,000.00 per month fo r life by the year 2000), medical expenses, and m edical insuran ce cove rage fr om her fo rmer husba nd. She was also named asbeneficiary on a life insurance policy . All of these things termi nated upon Wife’s remarriage pursuant to Wife’s property settlementagreement withformer husband. Wife contended she gave up these things at Husband’s reassurance that this was going to be his last marriage and that every thing wo uld be al l right. Husband conte nded Wife pressed fo r marriage telling him her mother w ould be opposed to the two of them li ving together without marri age.

At the t im e of marriage, Wife owned her own home, an automobi le, a boat, a di amond c luster ring, and had sav ings in the bank and an inher itance of $12,200.00. During the marriage, Wife’s home appreciated in val ue in the amount of $17,400.00. At the time of marriage Husband owned hi s own home, and 21.5 acres of farm land. While the3

parties were married , Husband inherited numerous tracts of land from his father. Husband’s property appreciated in value during the mar riage. At trial, Wife assertedthat the appreciation in value was thesum of $178,900.00. The trial court aw arded each party their respective appr

eciation in value.
During the six year marriage, Husband spent most of his time farming whil e Wife
ran the dance studio located at the Three-W ay property. There was an initial first mortgage
on the Three-way propert y in theamount of $58,400.00. Husband paid that note down to $37,500.00 using his own funds. In a ddition he took out another loan i n his name to pay $25,000.00 toward renovation of that property. Wife testified that during themarriage she made financi al contri butions from her own funds for use at the dance studio in the amount of $93,779.00. Wife also testified that the business sc hool showed considerable operating losses from which Hus band benefitted by offsetting such los ses against his gains

for income tax savings.

Prior to the divorce the school busi ness deteriorated drastic ally. Wife testified that this was due to Husband spreading misinformation and misinforming p arents of students about details. Husband testified that he notonly invested his money, but also his time in the studio. Husband and others tes tified that Wife would humiliat e and e mbarrass Husband in front of the school customers. Hu sband asserted t h at such unprofessional behavi or caused the decline of the business.

Wife’s health declined during the marriage. S he d eveloped a thyroid pr oblem,
severe female problems, neck pr oblems, dental problems, and mental problems. She testified that she lost the a bility t o work at anything more than a minimum wage grocery type job and she was unable to rehabilitate herself because she lost her ability to perform in school. After hearing all of the evidence in this matter, the trial court granted a divorce to both parties, ordered Hus band to pay alimony to Wife in the amount of $1,000.00 per month for a period of 24 months, order Husband to pay cour t costs and Wife’s attorney4

fees as alimon y in solido in the amount of $4 ,000.00 and a warded to each party respectively all property he/she owned p rior to marriage and all prope rty inherited during the course of the marriage. The tr ial court awarded to Wife the real proper ty locat ed at Three Way in Madison County upon whi ch Wife’s dancing school business wa s located, and awarded to Husband the 33.5-acre Gibson County farm and 115. 5-acre Gibson County farm. This appeal by Wife followed.
II. Property Division

Both parties o wned real p roperty at t he time of their marriage. Wife owned a residence which w

as valued a

t $57,500.00 a

t the time

of marriag e. This property appreciated $17,400.00 during the marriage. The trial court awarded this property to Wife
as her separate property, along with all appreciationin value. Husband own ed a house on
one acre of land, and 21.5 acres o f fa rm land at the time of marriage.These properties appreciated $16,400.00 and $7,200.00 respectivelyduring the marriage. Husband also purchased an 84 acre tract of land while the parties were separated. This property did not appreciate in value. Husband was awarded these properties as his separate property along with all appreciati on in value.

While the parties were marri ed, Husband inherited numerous tracts of land from his father. Wif e argued to the trial court that the se properties appreciated i n value in the amount of $155,300. That figure is based upon the tax assessment r ecords from 1994, the year Husband’s father passed away, and the most recen t tax as sessment records from 1996. Husband contended that there was no appreciation in value of the se properties as his father’s estate was not cl osed until a few months before tri al, and the p roperty val ue at the time of inheritance is measured at the time the esta te is close

d and not at th e time of death. The trial court aw arded these properties to Husband a s his s eparate property along with any appr

eciation in value.
During the marriage, the parties purchased three parcel s of property. Husband5

pur ch ased a 33.5 acre tract of land from his aunt, valued at $25,800.00 at the ti me of purchase, with his separate fun ds and titled the tract joi ntly. Husband also purc hased a 115.5 acre tract of land whic h was titled in the name of Husband and Wife and which was appraised at $95,000.00. At the time of trial,there was no equity in this land. The parties also acquired property l ocated at Three Way in Madison County upon which Wife located her dancing school. The property was valued at $53,500.00, with debt of $37,500.00, resulting in a net value of $16,000.00. The trial court awarded the tw

o parcels of

farm land to Husband, and the Three Way property and danc e school to Wife.

Wife contends that thetrial court failed by a good measure to aw ard her a fair and reasonable division of the marital p roperty. Wife argues that she s hould have been awarded more tha n the dan ce studio property. She claims she is entitle d to a share of

the app rec iation in Husband’s separate proper ty. Wife asserts that Husband’s separate property appreciated in value $178,900.00 during the marriage. She conte nds that sh e contributed to Husband’s estate by genera ting tax l osses enabling Husband to pr ofit by offsetting her losses against his income. Wife also contends Husband contributed to the failure of her enterprise.

Trial courts have broad discr etion in dividing th e marital estate, and their decisions
are a fforded g reat weight on appeal. Fisher v. Fisher, 648 S.W.2d 244, 24 6 (1983). Moreover, findings of the tr ial court are accompanied by a presumption of correctness unless the eviden ce prep onderates otherwise. Barnhill v. Barnhill , 826 S.W.2d 443, 459 (Tenn.App. 1991). A trial court’s division of property need not be equal t o be equitable, Batson v. Batson , 769 S.W.2d 849, 859 (Te nn.App. 1986), and as a general matter, courts will evaluatethe fairnes s of the property divi sion by its final resul ts. Thomps on v. Thompson , 797 S.W.2d 599, 60 4 (Tenn.App. 1990).

The division of marital property, while not perfectly equal, is not in equitable. Hus band was a farmer and Wife was not involv ed in his farming activ

ities. Wife ran th e dance school. It was log ical for the trialcourt to award the farm land to Husband and the6

dance school property to Wife. The net value of the marital property aw arded to Wife was $16,000.00, while the net value o

f the ma rital prop erty awarded to Husb and was $25,800.00.

Tennessee Code Annotated §36-4-121(c) sets forth factors which ar e intended to guide the court in making a n equitab le distrib ution of marital p roperty. This statuteprovides in pertinent part:

§36-4-121. Distributio n of marital propert y. - (c) In making an equitable division of marital property, the court shall consider al l relevant facto rs including: (1) The duration of the marriag e; (5) The cont ributi on of eac h party to the acquisi tion, preservati on, appreciation or dissipati on of the martial or separate property, including the contr ibu tion of a party to the marriage as homemaker, wage earner or parent, with the contribution of a party as homemaker or wage earner to be given the same weig ht if each party has fulfilled i ts role; (10) Suc h other factors as are necessar y to consider the equities between the parties.
There was tes timony that Husband used his separate funds to purcha se the 33.5 acre property. Unde r § 36-4-121(c)(5), this was a valid factor for the trial court to consider in making an equitable divisi on. The trial court’s div ision of marital property is afforded great weight on appeal, and we find that the evidence does not preponderate against the court’s division o f marita l propert y.

Wife contends that the trial court erred in failing to award Wif e anydivision of Husband’s separate property and any part of its appreciati on in value. The appreciatio n in the value of Husband’s separate property was det ermined by comparing the tax assessmentvalue placed upon the proper ty in the year

Husband acquired the

property to the tax assessment value placed upon theproperty at the time of divorce. There was no eviden ce prese nted of any improvements to the i nherited property. It appea rs the property’s appreciation was due to i nflation and a general increas e in property values

over that period of time.

An increase in the value of s eparate property constitutes marital prop erty if (1) it7

occurred during the marriage and (2) the non-owner spouse made some s ubstantial contributio n to the preservation and appr eciation of the separate property

. Cohen v. Cohen , 937 S.W.2d 823,833 (Tenn. 1996). In the ca se of Harrison v. Harr

ison , 912 S.W.2d 124 (Tenn. 1995), the husband had an interest in a tract of farmland which w as found to be his separ ate prop erty. The 45.5-acre tract of farmland incr eased in value from $7,000 at the time of the parties marriage to $1,361,750 at the time of th eir divor ce. Th e sole
cause of the appreciation in valu e was the construction of a interstate highway across a portion of the larger 125-acre tr act. The Tennessee Supreme Court found that, as the sole
cause of the appreciation in value was the cons truction of the interstate, the wife’s activities did not subst antially c ontribut e to the p reserva ti on and appreciation in val ue of the property. Id . at 127. The increase in value remained the separate property of the husband

. Id

. Wife contends that during the five year period of the marriage, Wife sustained total losses i n the operation of her dance school in the amount of $215,129.00. During that
same period, Husband enjoyed net income of $205,89 2.00. Assuming Husband was in
an average tax brack

et of 35%, Wife alleges he profited approximately $75,000.00 by the filing of joint returns enabling him to take her losses as deductions against his income.Wife contends that by generating t ax losses, she directly contributed to Husband ’s net worth
over the marriage in the

sum of $75,000.00. Essentially, Wife is arguing that by generating business losses she has substantially contri buted to the preservation and appreciation in value of Husband’s separate pr operty.

While Wife’s business l osses ma y hav e contributed to Husband’s net worth, that does not mean that Wife’s business losses substanti ally contributed to the p reservation and appreciation in value of Husband’s separate property. This case bears similarit y to Harrison v. Harrison

in that the appreciation in value of the pr operty was due to outside forces and wholly unre lated to actions taken by ei ther of the parties.

The trial court awarded each party the appreciation in value in their separate and8

inherited properties. Thetrial court specifical ly found that neither party contributed to any appreciatio n in value of their separate p roperties. Determining whether a spouse has contributed substantially to the pr eservation and appreciati on of the oth erspouse’s separate property is a question of fact. Brown v. Brown , 913 S.W.2d 163, 167 (Tenn.App. 1994). The evidence does not p re po nd er

at e a ga in st

th e t ri al co ur

t’ s f in di ng s. We hold that the trial court did not err in awarding each par

ty their respectiv

e separate and inherited property, including

all appreciation in v

alue.
III. Alimony
Shortlyafter th e filing

of the divorce and upon a hearing , the tr ial cou rt awar

ded Wife $2,000.00 per month as alimony pendente lite, p ayable until the anticipated tri al date on July22, 1997. Before the scheduledtrial date, Wife moved for a continuance due to her illness. Upon hearing on said motion, the case was continued to September 24, 1997. At that same hearing, Husband made an or al motion toreduce alimony pendente lite and the court ordered alimony be reduced from $2,000.00 to $1,000.00 per month. No or der was entered on that ruling at th at time.

At the final hearing of divorce in September, 1997, the trial cour t awarded $1,000.00
as rehabilitative alimony payable for a period of two years. After the final divorce hearing, the tr ial cou rt set aside the order req uiring alimony pendente lite be reduced from $2,000.00 to $1,000.00. The chancellor held that since the earlier motio n to reduce had
no t been in writing and no prior notice had ben given to Wife, the $2,000.00 per mont h pendente lite award was r eins t ated and Husband was ordered to pay the amount not previously paid betw

een the date of the order and the date of final di vorce.

Wife asserts that the amount of rehabil itative alimony aw arded to her in the final divorce was w

oefully inadequate. It is argued that her rehabili tative alimony should be at least $4,000.00 per month and for a period of at least three years. Wife contends that the trial court erred in setting alimony at $1,000.00

per month in the final decree of divorce9

because the amount of $1,000.00 was “in the air” due to the err on eous reduction in alimony.

A spouse who is economi cally disad vantaged , relative to the other spouse, should be rehabilitated whenever possible by the granting of an or der for payment of

rehabilitative, temporary sup port an d maintenance. Tenn. Code Ann. §36-5-101( d)(1). Factors to be considered in granting an order of support are se t fort h in Tenn. Code Ann. §36-5- 101(d)(1). 36-5-101. Decree for support of spouse and children -

Modification - Delinquencies. - (d)(1) . . .In determining w hether the granting of an ord er for paymentof support and maintenance to a party is appropriate, and in determining the nature, amount, length of term, and ma n ner of payment, the court shall c onsider all relevant factors, inclu ding: (A) The relat ive earning capacity, obligations, needs, and financial resources of each par ty, i ncluding income from pension, profit sharing or reti rement plansa nd all other sources; (B) The relative education and train ing of each part y, the ability and opportu nity o f each party to secure such education and training, and the necessi ty of a party to secure further education and training to i mprove such party's earning capacity to a reasonable level; (C) The duration of the marriage; (D) The age and ment al condit ion of ea ch party; (E) The physical condition of each party, including , but not limited to, physical disability or incapacity due to a chronic debilitating disease; (F) Th e extent to which it would be undesirable for a party to see k employment outside the home because such party will be cus

todian of a minor child of the marri age; ( G) The separate assets of each party , both real an d personal, tangible and intangible; (H) The provisions made with reg ard 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 con tributions to the marriage as monetary and homemake r con tributions, and tangible and intangible contributions by a party to the education, tr aining or increase d earning power of t he other party; (K) The relative fault of the partie s in cases where the court, in its discreti on, deems it appropriate to do so ; and (L) Such other factors, includin g the tax consequences to each party, as are necessary to consider t he equi ties between the parties.
Trial courts have broad discretion c oncerning the amount and duration of spousal10

support. Jones v. Jones , 784 S.W.2d 349, 352 (Tenn.App. 1989). These determinations
are factually driven and r equire a balancing of the factor s contained in Tenn. Code Ann. §36-5-101(d). As a general matter, we are disincl ined to alter a trial court’s spousal support decision unless the court manifestly abused its discretion. Ingram v. Ingram , 721 S.W.2d 262, 264 (Tenn.App. 1986).

The evidence shows that Wife has mont hly livi ng expens es in the amount of $3,450.00 and a monthly incomeof $730.00. Based upon federal income tax returns, for the five year period of 1992 thr ough 1996, Wife sustained losses totaling $215,1 29.00 while Husband enjoyed a profit of $205,892. 00. Husban d also enjoyed substantial tax savings resultin g from of fsettin g Wif e’s losse s against h is gains. T he va lue of a ll real property awarded

to Wife was $90,400.00 while the valu e of all real property aw arded to Husband was $507,300.00.

There is evidence in the rec ord that, during the marri age of the pa rties, W ife developed numerous health problems. She developed a thyroid problem, severe female problems, neck problems, dental problems, and mental problems and will be on medication forthe rest of

her life. Wife testif ied that these problems would keep her from working until they were c orrect ed or tr eated fu r ther. She testified that she los t the ability to wor

k at anything more than a minimum w age “grocery ty

pe” job in the future. Need and the ability to pay are the critical factors in set ting the amount of an alimony award. Smith v. Smith , 912 S.W.2d 1 55, 159 (Tenn.App.1995); Lancast er v. Lancaster , 671 S.W.2d 501, 503 (Tenn.App.1984). Thepropriety of awardin g alimony as well as the adequacy of the amount awar ded depends upon the unique facts of each case. Butler v. Butler , 680 S.W.2d 467, 470 (Tenn.App.1984). In Lancaster , this Court stated:

Alimony is not and never has been intended by our legislature to be punitive. See McClung v. McC lung , 29 Tenn.App. 580, 198 S.W.2d 820, 822 ( 19 47). Nor do we believ e it was intended simply as an award for virtue. It is not d esigned to serve as an ann uity fo r the wife; or as Professor Clark has stated "[t]he purpose of alimony is to care for the wife's needs afterdivorce , not to provide her wi th a life-time profit-sharing plan." H. Clark, Law of Domes tic Relations

§ 14.9(4) (1968). Lancaster , 671 S.W.2d at 503.11

Taking into consideration the standar d of living establishe

d by the parties duringthe marriage, Wife’s monthly living expenses , Wife’s age and physical condition, we findthat the trial court’s award of alimony in the amount of $1,000.00 per month for a period of 24 months is not adequate to care for Wife’s needs after div orce. As the trial court

abused its discretion in setting the monthly amount of alimony at $1,000.00, it becomes our duty, on this ap p eal, to awa rd to W ife the m easure o f alimon y which, in ou r opinion , should h ave been awarded by the Chancel lor in theexercise of his sound dis cretion. Mount v. Mount , 326 S.W.2d 493, 498 (Tenn.App. 1959).

Based upon Wife’s need and upon Husband’s income andthe considerable value of his separ ate prop erty, the a wa rd of reh abilitative alimony to Wife shall be the sum of $2,000.00 per month for a period of 48 months. We find Husband has the abi lity to p a y said amount and said amount will more fairly meet W ife’s post-divorce needs.

The trial court also ordered Husband to pay cour t costs and Wife’s attorneys’ fees
as alimony in solido

in the sum of $4,000.00. In determining whether to award attorneys’ fees, the trial court should again consider t he relevant factors in Tenn. Code Ann. § 36-5-101(d)(1). Kincaid v. Kincaid , 912 S. W. 2d 140, 144 (Tenn.App.1995). When one party demonstrates that it is financi ally unable to afford counsel, an d when the other party has the ability to pay, the court may properly o rder the other party to pay attorney's fees. Id

. An award of attorneys’ fees is within the sound discretion of the trial court, and unless the evidence preponderates against the award, it will not be disturbe d on appeal. Id . A spouse with adequate property and income is not entitled to an award of additional alimony to compensate for attorneys’ fees and expenses. See Duncan v. Duncan , 686 S.W.2d 568 (Tenn.App.1984).

Wife contends she should be awar ded the sum of$75,000.00 as alimony in solido which could be made payable in f uturo . Wife argues this amount of money was actually “earned”by Wife’s d ance studi o losses during the marr iage which in turn benefitted Husband by reducing his tax liability. The fact that

Wife made th is contribution to the12

marriage and to Husband’s net worth has been considered by thi s Court in increasing the award of rehabilit

ative ali mo ny to Wife. The trial court awarded Wife the amount of $4,0 00.00 as alimon y in solido to cover Wife’s attorneys’ fees. Wife testified as to he r inability to pay her legal expenses arising from this div orce. The evidence does not preponderate against the trialcourt’s award of $4,000.00 to Wife as alimony in solido and we will not disturb this award on appeal.

IV. Conclusion

The judgment of the trial court is hereby affi rmed as m odified , with reha bilitati ve alimony being increased from $1,000.00 per month for a period of 24 months to $2,000.00 per month for a period of 48 months. Costs of this appeal are taxed to Appellant, for which executio n may issue if neces sary.

HIGHERS, J.

CONCUR:13

CRAWFORD, P.J., W.S.

FARMER, J.