# FILED
October 14, 19 97 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COURT OF AP PEALS OF

TENNESSEE, WESTE RN SECTION AT JACKS ON

_______________________________________________________ ) ELMER LEWIS SID ES , ) Shelby County Circuit Court ) No. 148278 R.D. Plaintiff/Appellee. ) ) VS. ) C.A. No. 02A01-9611-CV-00277 ) PEGG Y LUE SIDES , ) ) Defend ant/Appe

llant. ) )

______________________________________________________________________________ From the Circuit Cou

rt of Shel by C ounty

at Memphis
. Honorable Robert A. Lanier, Judge

Darrell D. Blanton , CAUSEY, CAYWOOD, TAYLOR, McMANUS & B AIL EY, Memphis, Tennessee Attorney for Def endant/A ppellant
. Kay Farese Turner , Memphis, Tennessee Attorney for Plaintiff/Appe llee.

OPINI ON FIL

ED: AFFI RMED AND

REMANDED FARMER, J. CRAWF ORD, P. J., W.S. : (Concur s) SUMMERS, Sp. J. : (Concur s)Defendant Peggy Lue Sides (Wife) appeals the fina l decree of divorce entere d by the trial court which distributed the parties’ marital propert y and awarded the Wife alimony and attorne y’ s fees. We

affirm.

The parties had been married for over twe nty-five y ear s when th ey

separa ted in February 1995. No children were born of the marriag e. At the time of the divorce trial in July 1996, bothparties were fifty -one years of age. Plaintiff/Appellee

Elmer Lewis Sides (Husband) owne d and operated an auto parts store in Collierville, Tennessee, which he acquired i n t he e arl y 198 0's . In 1995, the year pr

ior to the parties’ divorce, the Husband’s adjusted gr oss income from the store was $51,898. The Husband’s average a nnual income for the y ears 1991 through 1995 was $41,679.

In contrast, the Wife contributed no income to the parties’ marriag e in the year prior to the parties’ divorce. The W ife formerl y worked a t WREG Television in Memphis, where she earned approxima

tely $20,000 pe

r y ear at t he t ime of her resignation in 1987. The Wife resigned because she was “totally burned out;” however, t he Wife pre sented no

evidenc e of any

health problemsor any other

impediment which would prev en t the Wife f rom obtain

ing comp arable employ ment. In 1990, the Wife bega n “Expressions of E legance,” a flora l design and home decorating business which she operated out of the marital home. Although the bus iness earned a smallprofit

in its first few yea

rs of operation, in the last two ye ars prior to the trial, 1994 and 1995, the business operated at a loss of several thousand dollars per y ear.

The parties’ disagr

eementsover the

Wife’s bus iness led, at least in part, to the demise of the marriage. I

n a conversationbetween the parties in July 1994, the Wife agreed to quit operating the business i f

it failed to show a profit by the e

nd of the yea

r. Although the business showed losses of over $3,000 that yea

r, the Wife continued t o ope rate the business, despite her promise to the Husband. The Husb and o bjected to the Wife ’s contin

ued oper ation of th

e busines s becaus e, in addition to failing to contribute financ ia ll y to the marriage, the Wife had depleted much of the parties’ savingsin order

to fund the

business. In 19 91, the pa rties had approxima

tely $25,000 in

a money market account with Peoples Bank. By 1995, much of

the account had been

depleted. The Husband also kept several thousand dollars in

the part ies’ freeze

r from wh

ich the Wif

e consta ntly borrowed but never repaid.1 The trial court also ordered the Husband to be re sponsible for paying debts of $18,000 for the Husband’s 1992 GMC truck and $24,700 for P&M Auto Parts’ new c omputer system. These debts are not included in the list of debts assigned to the Husband because the trial court appear s to have c onsidered these de bts when it

assigned values t

o the truc k and to P&

M Auto Parts. Similarly, the mortgag e on the marital home does not appear on the list of debts assigned to the Wife. In its final decree of divorce, the trial cou rt order ed the Hu sband to

pay reha bilitative alimony to the Wife in the amount of $600 per month

for a pe riod of th irty -six (36) mo nths and to pay $2,000 towards the Wife’s attorney ’s fees. The trial court distributed the parties’ proper ty as follows:

ASSET WIFE HUSBAND Gun collection $ 200 P&M Auto Pa

rts $150,000 19 92 GM C t ru ck (e qu it y) $ (9,290) Bass boat $ 2,000 Gold ring $ 300 Silver ch ain $ 50 Life insurance (c ash value) $ 11,619 Ma ri ta l r es id en ce (e qu it y) $ 32,700 New York Times stock $ 35,371 Furniture $ 10,000 1984 Pontia

c Grand Prix $ 3,000 1983 Dodge van $ 2,500 Slayden Ba

nk account $ 2,200 Snapper lawn mower $ 1,000 Power mower $ 100 Burial p lots $ 1,000 Expressions of Elegance $ 25,000 WREG retirement account $ 12,177 1993 Plymouth Voy ager van $ 12,500 Money marke

t account $ 4,000 TOTAL ASSET VA LUES $141,548 $154,879

The tria l court or dered th e partie s’ to assu

me the fo llowing marital de bts: 1LIABILITY WIFE HUSBAND

Peoples B ank of Collierville $ 7,000 Peoples B ank of Collierville $ 4,000 Wife’s brother $ 1,700 Boatmen’s Bank $ 5,854 Bean & I son $ 5,300 Brewer Detective Service $ 3,413 Suit expenses $ 278 Attorney’s fees $ 13,122 Crestar Visa $ 2,587 Citibank V isa $ 8,669 Advanta Visa $ 7,326 Househol d Bank Visa $ 7,248 Bankone Visa $ 4,847 TOTAL LIABILIT IES $ 60,344 $ 11,000 TOTAL ASSET VA LUES $141,548 $154,879 TOTAL NET ASSETS $ 81,204 $143,879

On appeal, the Wife presents the following issues for this court’s re view:

1. Di d the T rial Court err in its valuation of Husband’s business, P&M Auto Pa

rts? 2. Did

the Trial Court err in its valuation of Wife’s business, Expressions of Elegance? 3. Did

the Trial Court err in i ts division of marital propertya nd alloca

tion of mar

ital debt b y ma

king an inequita ble division pursuant to T.C.A. § 36-4-121? 4. Did

the Tria l Co urt err by only awarding Wife alimony in the amount of $600.00 per month for a period of 36months in light of the factors found in T.C.A. § 36-5-101? 5. Did

th e T ri al Co ur t e rr by on ly a warding Wife $2, 000 .00 of her a tto rn ey fe es ?

We first conclude that the tr ial court pr operly valued the Hus band’s busi ness, P&M Auto Parts, at

$150,000. At trial, t

he Wife’sexpert, Cha

rles Mich ael I son, te s tified tha t, in his opinion, P&M Auto Parts was worth $170,000. Ison, a certifi ed public

accoun tant, ar rived at thisvalue by using a w eighted combination of the asset value method and the earning s valu e method.

Ison applied a fifteen percent (15%) discount f or lack of marketability , inasmuch as P&M Auto Pa rts is a sole proprietorship, and he also discounted the accounts rece ivables and inventory

by $10,000 to account for

any uncollectible acc ounts or ob solete inventory. I son did not use the market value method because he was unable to discover any comparable sales in the area.

In con tra st , t he H usb and tes ti fie d t hat hi s bu si nes s wa s wo rth onl y $10 0,0 00. In support of this opinion, the Husband testified that he did not own the building in which the store was located; that the building’s lan dlord ha d advised the Husba

nd that the

rent would incre ase substantia lly in the next two or three months; that the Husband recently ha d incurred a liability of almost $25,000 to purchase a new computer sy stem for the store; and that the Husband knew of a similarstore in Moscow, Tennesse e, which the owne r had bee n unable t o sell. The

Husband a

lso noted that two compe

titors, NA PA and Aut

o Zone, operated much lar ger pa rts stores nearby . The “Super N APA Store”

had opened just six mon

ths prior t o trial.

The trial cou

rt, in its di scretion , was free to plac e a value on the par

ti es’ ma rital assets, including the Husband’s business, as long as such value was within the rang e of competent evidence submitted. Wallace v. Wallace , 733 S.W.2d 102, 107 (Tenn. App. 1987). In this rega rd, the Husband, as the owner of P&M Auto Parts, was qualified to give an opinion as to the value of the business. See Blackburn v. Murphy , 737 S.W.2d 5 29, 532 (Tenn. 1987 ); State ex re l. Smith v. Livingst o n Limestone Co. , 547 S.W.2d 9 42, 943 (Tenn. 1977 ); Price v. Allstate Ins. Co. , 614 S.W.2d 377, 379 (Tenn. App. 1981). In lig ht of the Husband’s testimony, we conclude tha t the trial court’s valuation of P&M Auto Parts was within the range of competent evidence submitted by the partie s and, thus, should be affirmed. See Koch v. Koch , 874 S.W.2d 571, 576-77 (Tenn. App. 1993) (affirming trial court’s $200,000 valuation of Husband’s sole proprietorship business where Husbandtestified business was worth $105,000, Husband’s CPA testified bus iness w as worth $177,160, and business’s balance sheet showed net asset value in e xcess of $300,000).

As for the trial court’s valuation of the Wife’s business, however, we agree with the Wife’s contention that the evidence fails to support the $25,000 value placed on the business by the trial court. The trial court’s written opinion indicates that the Husband’s pre-trial memorandum wasthe source of this figure, but no evidence was introduced a t trial to support this value. The Husband testified t ha t, in hi s o pi ni on , t he Wi fe ’s bu si ne ss wa s w or th $2 5, 00 0. Lat er in hi s t es ti mo ny, however, the Husba

nd admitte d that he k

new nothing abou

t the Wife’ s business , and the trial court ruledthat his testimony on this issue was inadmissible. The Wife t estified that, in her opinion, the business was wort

h only $14,500 based on the value of thebusiness’ s curre nt invento ry and suppli es. It was undisputed that, in the two yea rs prior to trial, the business made no profits and, in fact , incurred losses of over $8,500.

Despite the trial court’s error in evaluating the Wife’s business, we conclude that the trial court’s distribution of the parties’ marital property was equitable under thecircumst ances of this
case. See Ter

rell v. Te rrell , No. 02A01-9610-CV-00254, 1997 WL 576536, at *4 (Tenn. App. Sept. 18, 1 997). Tr

ial cour ts have broad discretion in dividing marital estates, and their decisions
are afforded great we

ight on app eal
. Fisher v. Fisher , 648 S.W.2d 244, 246 (Tenn. 1983); Harrington v. Harrington , 798 S.W.2d 2 44, 245 (Tenn. App. 1990). Although the trial court’s distrib ution of the marital property must be equitable, there is no requirement that the division b e equal. Word v. Wor

d , 937 S.W.2d 931, 933 ( Tenn. Ap p. 1996); Batson v. Batson , 769 S.W.2d 849, 859 (Tenn. App. 1988).

Valuing the Wife ’s business at $14,500, instead of $25,000, would result in the following distributi on by

the trial court:

WIFE HUSBAND TOTAL ASSET VA LUES $131,048 $154,879 TOTAL LIABILIT IES $ 60,344 $ 11,000 TOTAL NET ASSETS $ 69,704 $143,879

Alth ough the division of marital property need not be equal, w e not e that the initial distribution effected by the trial court a

wards property

of roughly

comparable value to the parties. The Wife was awarded $131,048, or forty-six perce nt (46%), of the marital property while the Husband was awarded $154,879, or fifty -four percent (54%).The distributi on does no t become uneven u

ntil the lia

bilities are con sidered. Neverth eless, we conclude that the trial court acted within its disc retion in assigning the listed liabilities to the Wife. Over $30,000 of these liabilities constituted credit card debt which the Wife incurred after the parties’ separation. This debt was incurred during a time when the Husba nd was paying substantial sup port on behalf of the Wife. In addition to pay ing temporary

support to the Wife in the amount of

$500 per month, the Husband was resp onsible f

or pay ing the $ 779 house

note
on the marital residen ce in wh ich the Wife was living, utilities and Cablevision for the marital residence, automobile insurance and repairs, medical insurance and noncovered

medical e

xpenses, and burial insurance. Similarly , over $2 5,000 of th e Wife’s l iabilitieswere inc

urred a fter the parties’ separation and related to the pending divorce action, such as detective fees, attorney ’s fees, and
e xpertwitness f

ees. The trial cou rt specif ically found tha

t the Wife h ad “incu

rred unu su ally

hig h attorney’sfees” in light of the relatively “modest means” of the parties. Moreover, we note that the Wife incurred a debt of

over $3, 400 to a de

tective s ervice

but did not p

resent a ny d etective s a s witnesses at trial. Under thesecircumst ances, t he trial c ourt did

not err in allocating these

debts to the Wife.

The trial court’s unequal distribution of marital property is furthe r supported by the court’s finding that

the Wife had depleted marital assets. I n distributing th e p ar ti es ’ m ar it al pr op er ty, the trial court was required to consider, inter alia , the “contribution of each party to the acquisition, preservation, appreciation or dissipation” of thepr op er ty. T.C.A. § 36-4-121(c)(5) (1996). Here, the trial court specifically found that the Wife had“depleted marital p roperty through investmen

t in her losing bu siness. ” Accordingly , the trial court properly considered this factor in awarding the Husbanda greater share of the marital estate than the Wife. See Storey v. Storey , 835 S.W.2d 593, 598 (Tenn. A

pp. 1992) ; Terrell v

. Terrell , No. 02A01-961 0-CV-00254, 1997 WL 576536, at *5 (Tenn. App. Sept. 18, 1997).

We also affirm the trial court’s award of rehabilitative alimony to the Wife instead of periodic or in futuro alimony . The ge neral a ssembly

has expre ssed the intent “th at a spous e who is economically disadvanta ged, relative to the other

spouse, be rehabilitated

whenever possible by the granting of a

n order f or pay ment of re

habil itati ve, temporary

support and maintenance” as opposed to period

ic or long-term

alimony. T.C.A. § 36-5-101(d)( 1) (1996). If the evide nce showsthat

rehabilitation is not feasible, trial courts still may award pe riodic or long-term alimony
. Id. In the present

case, ho wever, no eviden ce was p resente d to show that the Wife could not be rehabilitated. At

the time of trial, the Wife was fifty -one years of age and in apparent g ood health. The Husbandtestified that the Wife suffered from no health problems which would prevent her from finding work com

parable to her former position with WREG Television, and the Wife failed to rebut this testimony. The Wife earned approximately $20,000 per yea

r at WREG Television, and the trial court fo un d t ha t t he Wi fe cu rr en tl y ha d a n e ar ni ng ca pa ci ty o f a pp ro xi ma te ly $ 24, 000 per yea r. Under these ci rcumstan ces, the trial cou rt did not err in awarding the Wife rehabilitative alimony for
a period of thirty -six months to provide time for the Wife to become self-sustaining. See Storey v. Storey , 835 S.W.2d 59 3, 597 (Te nn. App. 1 992); Loria v. L oria , No. 01A01-9609-CH-00441, 1997 WL 107170, at *3 (Tenn. App. Mar. 12, 1997).

In light of the trial court’sfinding

as to the Wife’ s earnin g ability , we also affirm the amount of alimony awar

ded. “The propr

iety of awa

rd ing alimony as we

ll as the amount depends upon the unique facts of each case.” Campanali v. Ca mpanali , 695 S.W.2d 193, 197 (Tenn. App. 1985). For this reason, the amount of alimony

awarde d in a divorce case is largely within the trial court’s discretion, and this court will not interfere with the trial court’s ruling except upon a clear showi ng of abu se of that discretion. Lyon v. Lyon , 765 S.W.2d 759, 762-63 (Tenn. App. 1988). After carefully reviewing the record, we c onclude that the tr ial cour t did not abuse its discreti on in determining the amount of alimony awarded in this case.

Fi na ll y, we affirm

the trial court’s decision to require the Husband to contribute only $2,000 towards the Wife’s attorney’s f ees. As with the trial court’s decision to award rehabilitative al im on y, the decision to a ward a ttorney’s fees, and the amount thereof, were within the sound discretion of the trial cour t and will not be disturbed on appeal unless the evidence prepondera tes agains tthe court’s decision. Houghland v. Houghland , 844 S.W.2d 619, 623 (Tenn. App. 1992); Storey v. Storey , 835 S.W.2d 593, 597 (Tenn. App. 1992). As previously indicated, the tr ial court specific ally

found tha

t the fee s reques ted by

the Wife w ere “un

usu a lly h igh” given the p arties’ “modest means,” and

the cour t appear ed to ques tion the necessity for incu rring a ll of these fees . We addi tionall y

note that the Wife was awarded significant asse ts in the final divorce decree and, as found by the t

rial cou rt, she has an earning capacity of approximately $24,000 per yea

r.Ac co rd in gl y, we conclude that the evidence does not prepond erate against the trial court’s decision to award the Wife only

$2,000 of her attorney ’s fees. See Thompson v. Tho mpson , 797 S. W.2d 599, 605 ( Tenn. Ap

p. 1990); Walker v. Walker , 656 S.W.2d 11, 15 (Tenn. App. 1983), overruled
on other grounds by Seessel v. Seessel , 748 S.W.2d 422 (Tenn. 1988 ) ; see also Connors v. Connors , 594 S.W.2d 672 (Tenn. 1980).

The trial court’s judgment is affirmed. Costs of this appeal are taxed to the Wife, for wh ic h e xe cu ti on ma y is su e i f n ec es sa ry.

____________________________________ FAR MER , J.

______________________________ CRAWFORD, P.J., W.S. (Conc urs)

______________________________ SUMMERS, Sp. J. ( Concurs)