# FILED September 29, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE

HENRY LEE HULSHO

F, )

) Plaintiff/Appellee ) Appeal No. ) 01A01-9806-CH-00339 v. ) ) Marshall County Chancery DOROTHY ANN HULSHOF, ) No. 10075 ) Defendant/Appel

lant. )

)

COURT OF APPEALS OF TENNESSEE

APPEAL FROM THE CHAN CERY COURT FOR MARSHALL COUNTY AT LEWISBURG, TENNESSEE

THE HONORABLE TYRUS H. COBB PRESIDING

RONDAL T. WILSON 200 E. DEPOT ST. P.O. BOX 336 SHELBYVIL

LE, TN 37160 ATTORNEY FOR PLAINTIFF/APPELLEE

LAWRENCE D. SANDS P.O. BOX 1660 102 WEST 7 TH STREET COLUMBIA,

TN 38402-1660 ATTORNEY FOR DEFENDANT/APPELLANT

AFFIRMED AS MODIFIED IN P ART, VACATED IN PART, AND REMAND ED PATRICIA J. COTTRELL, JUDGE CONCUR: KOCH, J. CAIN, J.-2- 

## OPINION Henry Lee Hulshof ("th

e husband") comm

enced this divorce a

ction, alleging inappropriate m arital conduct or,

alternatively , irreconcilable differences. T wo weeks later, his wife of twenty-sev

en years, Do

rothy Ann Hulshof ("the wife") respondedby filing an answ er and counter-pet

ition alleging inappropriate

marital conduc

t, irreconcilabl

e differe nces, an d adult ery. After a bench trial, the court be

low awarded the wife a d ivorce on the ground tha t the husband had commit

ted inappropriate m

arital conduct. T

he court divide d the parties' personal property between them and aw arded the wife re habilitative alimony in the amount of $300 per month for two year

s and one half the valu

e of the husband's retirement benefits calculated as of March 2, 1998. The court also equally divided th

e funds in the couple' s various accounts and ordered their

rea l property sold and

the proceeds divided equally. The wife appe aled , challenging

the property dis

tribution, the am

ount of alimony

awarded, and the court's failure to awar

d her suffic ient attorn ey fees. We affirm in part as modified,vacate in par t, and remand for proceedings consistent with this opinion. The parties married in 1970, when the wife wasseventeen years old and just days after she graduated fro m high school. T he wife did not continue her education. The couple had two children, both of w

ho m wereadults when the parties separated. At the time of tria l, the wife was

forty-six (46)years old. The couple had been married for twenty-seven (27) years when the divorce complaint was filed. Throughout

the marriage, the husband workedat Inner City Products. His approximate yearl

y income was betwe

en $31,500 and $35,500,

depending-3-

on the amount of overtime he worked. The j ob provided retirem ent benefits, but at trial the husband was unsure of their value. The wife worked at nu

merous jobs during the marriage. However, in 1985, she injured her back at work and underwent

surgery. After

that injury, she

re ceiv ed a $7,000 lump sum worker's compensation award. In 1994, she had surge ry to treat carpal tunne l syndrome. Appar

ently, the wife c

eased working outside the home after this surgery. She subsequently rec eived a $19,000 workers compensation settle ment. In May of 1997 , she was determ in ed to be disabled and entitled to disabil ity payments by the Soc ial S ecuri ty Administration. She received a $6, 000 disability payment covering back pay at that time and began draw ing $472 in monthly social security disability be nefits which is hersole income. The wife testified she

also underwent a second carpal tunnel su rgery, a second lower back s urgery, and suffe

red from degenera

tive arthritis in her

ankles, a degenerative musc le disorder, and a

degenerative nerv

e disorder. The wife admitted that notwithstanding her disability, she wa

s able to clean the house, baby sit, drive her car, crochet , and do some yard work. Atthe time of

trial, the parties jointly ow ned their residence , which the parties valued at $50,000 to $60,000. The outsta

nding balance on the mortgage
was approximately $5,10 0, and themonthly mortgage paym ents were $98. T

he parties also owned a nearby lot, valued at appr

oximately $5,000. T

he parties had

no joint accounts at the time of trial. T he husband testifie

d that his ch ecking account had a $535.58 balance, the asse ts in his savings totaled

$102.00, and his credit union acc ounts held approximately $3 ,018. In the approx imately six months before the husband filed his petition for divorc e , the balances in hi s
c redit union accounts plummet ed from over $23,000

to just over $3,000. T

he husband’s explanation for the dissipation

of the account was that he made some-4-

improvementsaro und the house, and may have gambled some of the money away. During the course of these proceedings, the parties requested an Order of Reconciliation, a

nd attempted to put asi

de their differen

ces. Those effo

rts failed. At the close of the evidence, the trial court granted the wife a divorce based upon the husband's inappropriate marital conduct. Although the trial court awardedthe wife the

above-m entioned rehabilitative alimony, it denied her request for in futuro or in solido alimony. Attorney’s fees were awarded t o the wife in the amount of $1,200 . The trial cour t subsequently ent

ere d an order staying all proceedings,

excep t the alimony obligation , in connection with the enforcement of the

judgment, pending fin

al determination on a

ppeal. I. The wife raises four

issues, all of whic

h are related to th e financial impactof the court’s decision. Essentially, she as serts that the distri bution of assets and the lim

ited award of alimony will preclude her from meeting her minimal living exp enses. She fu rther asserts that the economic disparity between the parties, the length of the marriage, and her disability justify an award to her of a greater share of the marital prop erty and/or

alimony in futuro or alimony in solido

. She also asserts tha t the money dissipated by the husband from his cre dit union accounts should be take n into consideration

in dividing the marital assets and that she should have bee n awarde d a ll her attorney’s f ees. Although the i ssues are separately r

aised, the effec

t of the trial court ’s ruling must first b e examined in totality. The wife’s sole incom

e is her disability pa

yment of $472 per month

. For two years, the inc

ome will be suppleme

nted by the rehabilitative

alimony of $300 per month. The wife’s monthly expenses total $616.33. This figure-5-

incl udes the $98 house payment, and the record indicates the least expen siv e alternative

rental property

would cost

$300 per month. Thus,

either the cessati

on of the rehabilitativ

e ali mony or the requirem ent that the wife m

ove out of the marital residence, both of which are contemplated by the order, would

reduce the wife’s income below her expenses. Her a ttorne y’s fees, before

the appeal, exceeded the amount

awarded by the cour

t by $2,145. Her share of the distrib

ution of the major ma

rital assets includes half the proceeds of the sal

e of the house and the l

ot (approximately $27 ,500 ), half the accounts (approximately $1,659.15), h alf of the proceeds of the sale of a trailer ($1,000) and half of

the husband’s retire

ment as of March 2,

1997 (the value of the retirement

asset, the monthly

amount she would receive,

and the date of eligibility are unknown). In addition, the wife’s health problems, especially as they affect her ability to work, ar

e relevant to both the distribution of marital property a

nd the awardof alimony. She is t otally disabled and, according to her tes timony, cannot performrepetitive functio ns, cannot sit for lo ng periods of time, and cann ot bend, stoop, or

lift. Although she does her own housework and some yard work (using a riding mower),

she must stop frequen

tly and can only do a littl e work ata time. It is undisputed that she has had two back surgeries and two operations for carpal tunnel syndrome. II. In her first issue, the wife maintains that the trial court erred in limi ting the award to the assets th e parties possessed at the time of separati on. S h e argues that she was entitle d to a portion of the re cently diss i pated funds ($20,000) from the hu sband's accounts at one credit union. The division of the marita l estate necessar

ily c ommences with the-6-

classification

of the parties' pr

operty. See Brown v. Brown , 913 S.W.2d 163, 166 (Tenn. App. 1994) . The now-fami liar statutory defi

nitions of marital pr

operty and separate propert y p rovide the ground rule s for this task. Te nn. Code Ann. §§ 36-4-121(b)(1) and (2)(1996). Implic it in this statutory sche

me is th e concept that the property

to be divided, genera

lly speaking, must be "owned by the parties, individual

ly or jointly, at the t

ime of the divorce." Brock

v. Brock , 941 S.W. 2 d 896, 900 (Tenn. A pp. 1996). This is so

because courts ordi

narily "cannot divide and/or distribute what is 'not there' --- property no longer owned by the parties . . . at the time of the divorce." Id. Applying these princ iples to the instant case, we find the trial court properlylimited its decision on the division of

marital property t

o that in which the parties posses sed an ownership in terest at the time of th e divorce. With regard

to the wife's conte

ntion that trial cour

t erred by rej ecting her claim that the

dissi pation of the funds constituted a fraudulent conveyance within the purview of Tenn. Code Ann. § 36-4-121(b)(1)(A), the wife bears the burden of showing that the ev idence preponderat ed against that fin ding. See Galb reath v. Harris , 811 S.W.2d 88, 91 (Tenn. App. 19 90);Tenn. R. Ap p. P

. 13(d). In rejecting

that claim, t

he trial court consi

dered the husband's testim

ony that he spent a

portion of the mo

ney on home i

mprovemen

ts, gambling,

bills, and groceries. Se e Massingale v. Massi ngale , 915 S.W.2d 818,

819 (Tenn. App. 1995) (trial court's as s essment of witness credibil ity is entitled to grea

t weight

on a ppeal). While the evidence shows that the husband’s accounts decr ease d monthly by significant but di ffering amounts in Octob er, No vember, and December

of 1996 and January of 1997, the wife offered no evidence of a1 The trial court f ound that both parti

es had dissipated s

ubstantial sums fro

m their assets during their marriage. The court was commenting upon the settlement the wife received in 1994 and the disability back pay she received in 1997. With regard to the husband’s accounts, the court noted, “He had gotten rid of some money without a lot of explanation shortly before the divorce was filed.” -7- fraudulent

conveyance. T

he husband testified t

hat he spent the m oney. 1 Inasmuchas the wife presented no facts or law requirin g a different result, we must conclude tha

t she has failed to sa

tisfy her burde

n. Our decision that the trial court correctly defined the marital estate as prop erty ac tuall y owned at the time of the divorce does not, however, pr eclude consideration

of the husband’s pr

e-filing dissipation o

f approximately

$20,000. Tennessee Code Annotated § 36-4-121(c)(5) specifically authorizes the court to considerapar ty’s “dissipation of the marital or separate property ” when fashioning an equitable distribu tion of marit al property. See also Meadows v. Meadows , Appeal No. 01-A -01-9801-CH-00054,

1998 WL 770190

(Tenn. App. 1998). W e discus s the effect of tha t dissipation on the divisi on of property in section IV below. III. The wife argues that the trial court erred in declining to award alimony in solido or in futuro . The husband respo nds that the

wife' s admi tted level of activity dem

onstrates that she is

capable of

rehabilitating herself, but she lacks the desire to do so. Tennessee law provides for th ree types of al

imon y: (1) rehabilitative alimony, which provides modif iable, temporary s upport for a period of adjustment

sufficient to enable a dependent spouse to become partially or totally self-sufficient ; (2) periodic alim ony or alimo

ny in futuro, a continuing, but modifiable, support obligation to an e conomic a lly disadvantage d spouse; and (3) alimony in solido , an unmodifiable lump sum aw

ard which may

be payable2 Fault is a factor to be considered

in the award of a

limony, and th

e trial court her

ein found that the husband had committed inappropriate marital conduct by virtue of an improper relationship with another woman. -8- over time. Tenn. Code Ann. § 36-5-101(d)(1)(1996); see Loria v. Loria , 95 2 S.W.2d 836, 838 (Tenn. App. 199 7). Our law f a vors rehabilitative

alimony whenever possible and requires a finding that rehabilitation is "not feasible" before an award of alimo ny in futuro is appropriate. T enn. Code Ann. § 36- 5- 101 (d) (2); see Self v. Self , 861 S.W.2d 360, 361 (Tenn. 1993). In reviewing the propriety of an alimony award, we m ust consider a number

of factors, inclu

ding the relative earning capaci t y, obligations, needs and financial

resources of the parties, includin g income from pension, profit shar

ing, or retirem

ent plans. Tenn. Code Ann. § 36- 5- 121(d)(1). The predominant factors to consider, however, are the innocent 2 spouse's need, and the obligor spouse's abilit y to pay. See Hazard v. Haza rd , 833 S.W.2d 911, 917 (Tenn. App. 1991). Here , the re cord s hows t hat th e husb and ea rned a yearly i ncome o f approximately

$32,00 0. The wi fe recei ved a mon thly income of $472 in disability benefi ts -- a yea rly inco me of appr oximate ly $ 5,664. Her monthly expenses, including the extremel y low house paym ent, exceed her m

onthly inco me by $144. In the

division of property

below, she rece

ived $2,659.15 in cash. These figures le

ave no doubt that the wife met the econom ic inequality requirement

on which any ali

mony awar

d must be predica

ted. Tenn. Code Ann. § 36-5-101(d)(1). N

or can we dispute the

wife's obvious ne

ed for additional income. See Loyd v. Loyd , 860 S.W.2d 409, 412 (Tenn. Ap p. 1993). The tri al court made no findin g of fact reg arding th e wife’s employabili

ty or possibility of r

ehabilitatio n . In making the rehabilitative alimony award, the court stated that the $300 per month for

two years wa

s to-9-

“give her a chance to go to

maybe Motl

ow or something t

o get so me fu rther training. She has a high school e ducation according to

the statistical data. She’s going to have to b e able to qualify for somethin g.” While we can find implicit i n th at statement th

e trial court’s c

onclusion that rehabil

itation is possible, th

e trial court made no f

indings of fact in support of that co nclusi on. Add ition ally, the record includes no information regarding training or education which could enablethe wife to work full -time, no info

rmation about he

r employab

ility in view of her limitations, a

nd no information

concerning

the income she could produce if employed part-time or full-tim e. The appellate record

is sufficiently

developed to perm

it us to find

that wife's ability to materially improve her health or increase

her income is l

imited, leading us to conclude that re habilitation is not fea

sible. Tenn. Code

Ann. § 36- 5-101(d)(2). Accordingly, we find the evidenc

e preponderates against the decision to awa rd the wife r ehabi litat ive al imo ny for two year s. Having determined

that the wife is a

t an economic disa

dvantage in relation

to the husbandand that rehabilitation is not feasible, and having considered the abovementionedstatutory fact

ors, especially

the wife’s nee

d, thehusband’s ability

to pay, the duration of the marriage, and the relative earning cap ac ity, in conjunction with

the others enume

rated in Tenn. Co

de Ann. § 36-5-101(d), we awardthe wife periodic alimony in the amount of $300 per month for two years followingthe date of divorce , and in the amo unt of $2 00 per month thereafter, until her death or remarriage. IV. The wife contends that the trial courterred in its division of the marital proper ty. She maintains t hat it failed to consi

der them arriage's length, her-10-

disabilities, age, education, a nd contribution to the m arriage, the disparities in earning capacity betw

een the parties, a

nd her inability t

o maintain herse

lf on her current income. The

husband responds that th e equal division of the

parties' assets was equitable, reflecting his equal , if not primary , contribution to the marriage. Tennessee law requires that marital property be d ivid ed equitably without regard to fault. Tenn. Cod e Ann. § 36-4-121(a). But an e quitable divisionis not necessarily an e qual one. See Barnhill v. B arnhill , 826 S.W.2d 443, 449 (Tenn. App. 1991). Tennessee Code A nnotated § 36-4-121(c) sets fo rth the guiding factors to be c onsidered in

dividing marital property. These include, inter alia, the dur ation o f the marr iage, th e parti es' age, phys i cal and mental health, vocational skill s, employability, e ar ning capacity, financial needs, and relative contribution

to the marital estates. In making an equitable division, t

he courtshould also consider the economic circ

umstances of

each party at the time the division of property

is to become ef

fective and the re

lative ability of

each for future acquisitions of capital assets and income. In addition, as discussed above,

one party’s dissi

pation of assets can b

e consid ere d in formulating a property divisionthat is eq uitable. Te nn. Code Ann. § 36-4-121(c). A trial court's decision on the division of m

arital property

warrants defer

ence unless it is inconsistent

with these factors or un supported by a pre ponderance of the evidence. See Barnhill , 826 S.W.2d at 449-450. Here, the trial c ourt divi ded the major a ssets of th e parties eq ually. We

are not convinced that an equal division was equitable in this situation, however, considering

th at this was a twenty -eight year m

arriage, the husba

nd has a significantly

greater earning

capacity , and the wife's income is limited by her-11-

health problems. The wife’s e

conomic situation at the tim

e of divorce is wor

se than the husband’s. As explained above, the wife will be able to meet her minima

l living expenses with the award of alimony only

as long as she is able t

o remain in the maritalresidence with

its low mortgag

e payment o

r can find another place to liv

e ata similar low monthly cost. The o nly evidence i n the record is that no such other accomm

odation can be found.Thus, the trial c ourt’s decision to h

ave the maritalresidence sold grea tly reduces the

likelihood that the

wife can subsist

on her monthly income. The wife has asked tha

t she be awarded t

he marital home. While we findthat request

reasonable in

light of the wife’s financial situation and the very low mortgage payments, we are unable to m ake such an award on the basis of the record before us. Such an aw ar d could render the dis tribution to the husband inequitable

without modification of

the distribution of

the other maj or assets: the separate lot and the husband’ s reti rement fund. We know nothing abou t the value o f the re tirement acc ount, the amount

of monthly be

nefits which will become available or when such benefitswill become available. This prevents us from eq ui tably modifying the distribution of the other assets in order to award the marital residence to the wife. Because, however, we thi nk it would be equitabl

e and reasonable fo

r the wife to retain the resid ence, if the other majo r asse ts can be distributed equita bly, we remand thi s case to the trial c ourt to hear evidenc

e regarding the present value of the retir

ement accounts

in order to reconsider

distribution of the maritalproperty in an e

quitable manner

which will allow the wife to retai n the marital residence.-12- While we regret the de

lay and additiona

l exp ense involved in this remand, we are simpl

y unable to

equitably divide the mari

tal estate when w

e do not know the value of one of the major assets. On remand, we are certain the trial court w ill encourage the le ast expensive me

thod for obtaining and introducing the additio

nal fact needed fo

r its reconsiderat

ion. In this reconsideratio

n, the trial court s

hould a l so consider the husband’s dissipation of $20,000 i n the six months pri

or to his filing

for divorce. While the trial court stated that both parties had dissipated mo ney throughout

the marriage, we think the pre-f iling reduction in husba

nd’s account

is more relev

ant to a determinati

on of the equities invol

ved in the dist

ribution of property than wife’s spending of her earl ier settlemen

t m on ies. Even if the trial court determines that it

shouldalso consider the wife’s $6000 in back pay she received in May 1997, which was spe ntduring the parties’ reconciliation, a s an offsetting dissipation, the difference be tween the two am

ounts is considerable. I

n addition, the husband was unable

to document that any of the $20,00 0 was spent to benefi

t the wife or the m

arriage, and wa

s unable to fully e

xplainwhere the money w ent. In view of these fac

ts, and in view of the fac

tors discussed above,

we are of the opinion thatan equitable

distribution of the m

arital property

would result in the wife receiving a

greater than fif

ty percent shar

e of the majo

r assets. VI. The wife contends that the trial cour t erred in limi

ting her award of attorney fees to $1,200 when her ac tual fees and expenses were $3,345.8 8. The husband responds that the award must be presumed to be appropriate. Trial courts ha

ve b road discretion in determining whether to require

one spouse to pay for

the other's legal exp enses. See Loyd v. Loyd , 860 S.W.2d-13-

at 413. We see n

o error in the tria

l court's decision. VII. Accordi ngly, the trial court's dec ision to divide only

the property the parties possessed at the tim e of separation is a

ffirmed. T

hat portion of the judgment dividing the mari

tal property

is affirmed e

xcept for the portion

dealing withthe residence, th

e separate lot,and the husband’s re tirement acc

ounts. The order to sell the residence and the lot and equally divide the proceeds, as well as the distribution of the re

tirement funds is vacated, and the case is remanded for further fact finding regar

ding the present value of the retirement

accounts and for consideration

of an equitable distr

ibution which will not re quire sale of the marital resi

dence and will res

ult in a more equ

itable distribution

in accordance withthis opinion. The tria l court 's deci sion o n the al imony award is affirmed as modified. The award of at torney fees is

affirmed. This case is rema nded to the trial court for proceed

ings consistent with th

is op inion and such further proceedings as may be

necessary. Costs of this appeal a re to be shared equa

lly between the parti

es.

____________________________

PATRICIA J. COTTRELL, JUDGE

CONCUR:

_________________________________ WILLIAM C. KOCH, JR., JUDGE

_________________________________ WILLIAM B. CAIN, JUDGE