1 Rule 10 (Court of Appeals). Memorandum Opinion . -- (b) The Court , with

concurrence of all the judge s participating in the case, may affirm, reverse or modify the actions of the trial court by me

morandum opinion when a formal opinion would have no precedential value. When a case is decided by memorandum opinion it shall be designated “MEMORANDUM OPINI ON,” shall not be published, and shall not be cited or relied on for any reasons in a subsequent unrelated case. 1 

# FILED June 09, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COURT OF AP PEALS OF

TENNESSEE, WESTE RN SECTION AT JACKS ON

_______________________________________________________ ) DAVID ALA N DUNEHEW , ) C.A. No. 02A01-9604-CH-00079 ) Shelby Equity

No. 23509-3 R.D. Plaintiff/Appellee. ) ) HON. D. J. A

LI SSANDRATO S, VS. ) CHANCELLOR ) DONNA LYN

N DUNEHEW , ) AFFIRMED AS MODIFIED AN D ) REMANDED Defend ant/Appe

llant. ) ) OPINI ON FIL

ED: James D. Causey , Memphis, Jean E. Markowitz , Memphis, for Def endant/A ppellant
. Charles E.

Hodum , Collierville, Mitzi C. Johnson , Memphis, for Plaintiff/Appellee.

______________________________________________________________________________ MEMORAN

DUM OP

INION 1

______________________________________________________________________________ FARMER, J. David Alan Dunehew (Husband) and Donna L ynn Dunehew

(Wife) were divorced by fi na l d ec re e e nt er ed No ve mb er 15 , 1 99 5 a ft er ap pr ox im at el y 20 y ears of ma rriage. Wife has appealed from the final decree challeng ing the trial court’s classification and division of the marital estate and its failure to award rehabilitative al im on y or al im on y in futuro
. For reasons hereinafter set forth, we affirm as modified.

The following

evidenc e was adduce d at t rial: At the time of trial, Husband was 48 years old a

nd Wife, 43. They have t wo adu lt chi ldren . Husb and wo rked t hrough out t he marr iage and for the last ten years ha s been employed as a f inancial advisor with the Access Group, a holding company owned by his brother- in-law. Husband’s base annual salary is $58,000. He is also subject to a “pe rf ormance bonus” which he has rece ived in three out of the five years he has been in the2

bonus program. For the past four ye ars, he h as a veraged a gr oss annual income of $104,000 (excluding any

bonus awa

rded for the year 1995 , which Hu sband tes tified is c alculated at t he en d of every c alendar y ear). Wife has a high school education plus some cont

inuing e ducation

courses . She worked periodically

during the marriag e, in cluding hostessing at a restaurant and se lling real estate. She was a realtor for three y ears and found the wor

k very stressf

u l, prompting her to seek professional counseling. She has noin terest in pursuing a care er in re al estate . After t he parti es’ separation in November 1993, she obtaine d employ ment with th

e MemphisCity

School Sy stem, working as a secret ary at a local high school where she also assists with students having rec urring problems . She cur

rently works a 40 hour week earning $8.07 per hour for nine months each year.

Wife testified that she wishes to attain a degree in psy

cholog y to

counsel a dolesce nts. It is her intention to continue working full-time and attend school in the ev enin gs. She has persona lly interviewed

wi th re pr es en ta ti ve s a t C hr is ti an Br ot he rs Un iv er si ty, her school of choice, describing it as “[t]he m

ost advan tageou s progr

am that will give m e my deg ree the soonest . . . .” She has also made inquiry re garding the curriculum at the University of Memphis. She testified that the program at the latter is not accele rated a nd willrequire a longer period to complete e ach course. Her expenses for attendance at Christian Brothe rs is $8,000 per yea

r.

On cros s-exa

min ation, Wife stated that she “assumed” the degree requirements at bothschools were the same. She agreed that the re were psy cholog y c ourses of

fered a t the Unive

rsity of Memphis in the evening. She did not know the specific coursesshe would

be requi red to ta ke to earn he r degr ee or wh at, if an

y, f inancia l assistance is ava

ilable to her. She mistak

enly refer red to the degree she seeks as a

n “associate’s degree.”

She then clarified that

she wishe d to obtain , with Husband’s financial assistance, a “four- year degree.”

Wife has been under thecare of Dr. John Leite, a psychologist, for

2-1/2 year s. Dr. Leite testified that

he curr ently sees Wife

“on an ir regula r basis” for a “[d]iagnostically a djustment disorder with mixed emotional features and dealing with the stress and strains associated with life uncertainties . . . .” It was L eite’s testimony that Wife is capable of working full-time and attending school part- time . Leite b eliev ed con tinu ed psycho logi cal couns eling would be needed in such a3

situation, “once or twice a month.” Wife also related some gy necological problems resulting in her undergoing a hy sterectomy in 1994. Since her surgery Wife considers her health much improved.

The marital e state

includes two residences. “Stornaway ” is approximately 30 y

ears oldand wher

e the par ties prim a rily lived throughout the ma rriage. I t is a four bedroom home of approxima

tely 2400 square feet. I

t is unencumbered with an agreed va lue of $105,000. Husband testified that Stornaway “is a little rundown” andin need of some c osmetic w ork. He c urrently resides there a

nd estimat

ed his mo nthly hom e maintenance costs at approximately $100. Wife
curren tly resides at the two y ear old “ Massey Pointe” ho me which w as comple ted just three months prior to the couple’s separation. It ha s an agreed value of $225 ,000 and is encumbered with two mortga ges. The par

ties ag ree tha t it has an e

quity of $60,00 0. The se cond mort gage (initially used to pay off the

mortgage on Stornaway

) is a line of

credit whi ch Wife te stified sh e withdre w cash advances against after the couple’s sepa ration in order

to pay expenses, including credit card debt amounts which were increased by Wife after the separation.

Wife’s monthly expenses shown in her Rule 15 affidavit total $3,504.88. This figure includes a monthly

minimum payment on credit car ds of $617.78, $666.66 for college expenses at Chris tian Bro thers and $150 for home maintenance, if awar ded the Stornaway

residence. If

not awarded this resid

ence, Wif e projects a monthly

rental exp ense of $650 (included in the above figure). Husband lists hi s mon thly exp enses at $3, 760 t o incl ude th e two m onth ly mortgage pay ments totaling $1,590 and $120 for homeowner’s insurance and home maintenance and re pair. Husband estimated that he could rent an apartment for $750 pe r month.

Husbandtestified regar

ding a b ank loan o f $50,000 which he obtained a month prior to t rial. He stated that the funds were used in part to purcha se a 1996 Honda Accord which, after
a trade-in value of $1,200, cost $16,931. Another po rtion of the funds was used to pay Wife’s monthly pendente lite support of $600, attorney’s f ees of $3,607, real estate taxes on Stornaway of $1,650 and the ir daughter’s college tuition and expenses totaling approximately $10,000. Approx imately

$ 15,000 remains in Husband’s bank account. The parties identified total mar ital liabilities of $255,093.64, which included Wife ’s attor ney’s fees as of September 19, 1995 of4

$14,637.50 and the first and second mortgage s totaling $163,000. The parties listed maritalassets totaling approxima

tely $450,000, including Husband’s prepaid attorney ’s fees of $13,531.04. The parties disputed the proper amount to be attributed to Husband’s bonus for the y ear 1995.

After hearing the evidence, the trial c ourt entered a final decree, a warding the divorce to Wife on grounds of inappropriate marital conduct pursuant to the parties’ stipulation. The court additiona lly ruled tha t Wife is “n ow health

y”despite suffering from various maladies in the past; that the most equitable division of the marital estate is a “fifty -fift y” div ision, whic h in order

to accomplish, necessitates the selling of the two

marital homes; that

the proc eeds fr

om the sale

of the realty first be used to pay a

ll present encumbrances and then divided equally between the parties; that eachparty receive marital personalty of $42,281.44; that the personalty a warded to Husband

include the 1996 Hond a Accor

d which ha s no equity ; that Husb and pay Wife as al im on y i n solido debts totaling $28,091.65; that Husband pay Wife’sattorney’s f ees to the extent

of $15,900; that Husband be solely responsible for pa yment of the $50,000 loan; that Husband be responsible for any

of Wife’s uncovered

medical bills incurred prior to the divorce hearing; and that Wife receive no re habilitative al im on y or al im on y in futuro
.

Wife fra mes the iss ues on ap

peal as f ollows:

1. Whether the trial court erred in failing to include Husband’s 1995 bonus , monies pa id to his attorney pending

trial, and a v al ue to th e 1 99 6 H on da as ma ri ta l p ro pe rt y? 2. Whethe r the tri al court erred in its division of marital pr op er ty? 3. Whether the trial co urt erred in ordering the sale of the marital homes? 4. Whether the trial court erred in failing to awa rd alimony

in futuro or rehabilitative alimony to Wife?

Our review o f this case is pursuant to Rule 13(d) T.R.A.P., providing for a de novo review of the trial court’s findings of fact acc ompanied by a pre sumption of correctness, unl ess the evidence preponderates otherwis e. We firs t addres s the tria l court’salleged error

in its classification5

of the part ies’ property. As noted in Batson v. Batson , 769 S.W.2d 849 (Tenn. App. 1988), proper classification of the couple’s property is essential as our divorce statutes only provide for the division of marital pr op er ty. Batson , 769 S.W.2d a t 856. The

refore , it is incum

bent upon the trial court to first classify the coupl e’s prop erty , to give each the ir separ ate prop erty

and then t o make an equitabl e division of the ma

rital est ate . Wade v. Wade , 897 S.W.2d 7 02 (Tenn . App. 199 4); Batson , 769 S.W.2d at 856.

“Marita

l proper ty”is define d in T.C.A. § 36-4-12 1(b)(1) (A) as:
[A]ll real and p ersona l property, both tangible and intangible, acquired by either or

both spous es dur ing th e cours e of th e marri age up to the date of the final divorce hearing and owned

by either or both spouses a s of the da

te of filing of a complaint for divor ce, exce pt in the case o f frau dulent conveya nce in anticipation of filing, and including any proper

ty to which a rig

htwas acquired up to the date of the final divo

rce hea ring, a nd valued as of a da te as nea r as rea sonably possible to the final divorce hearing date.

Wife asserts that Husband’s 1995 bonus should have been included in the marital estate. Husband t

estified as follow s rega

rding th e method o f calculating h is bonus:

I’m basically on a pe

rformance bonus. At

the first of the ye ar, a oneyear CD rate is set, and if we b eat that on e-yea r CD rate, then I receivea bonus of 10 percent of the pr ofits minusmy

salary. I f I can give you an example, say , we made 10 perce nt a year and CD rates were 6, we exceeded the CD rates, so there would be a bonus. If we made profits of a million dollars, 10 percent of that w ould be my bonus or 100,000, minus the 58,000, which is my salary , so my bonus would be 42. In that setup, as of Dec ember 31st, that’s cal culated. So how we stand at the end of the year de pends on what the bonus is.

On cross-examination, Husband admitted that as of the hearing date, Septe mber 21, 1995, the

Access Group had exceeded

the CD ra te estab lished fo

r the y ear. Whe n asked “ [a]nd y ou said

that there was
no way that y

ou could know what [the bonus] was going to be on the end of Dec ember of ’95 . . . butif we cashed out every thing today

that you have in

that fund and inves ted in the

CD’s, we would have [the amoun

t of prof its for the ye ar-to-date] locked, wouldn’t we?”, Husband answered, “[i]f we did that, yes.”2 The rec ord indic ates tha t the tria l court is r

eferr ing to all debts other than t hose to be

paid “out of the common property ” - the first and second mortgag es on the Massey Pointe home. 6 The trial court

determined that the 1995 bonus was “pretty well made,” stating that “there ’s no ques tion that if he were to continu e to inves tin such a fashion, that if the market were to turn, tha

t he does h ave some

control over that, . . . it’s not in his fiduciary ’s benef

it for him to

lose money on his commission because to do so means that the fiduciary is losing money on his profit.” Howeve r, the tri al court

chose to t

reat suc h as “ord inary income,”reasoning as fo llows:

But [Hus band] will b ear the responsi bility of the re maining debts 2 there. That’s the reason why I’m granting

it as an in solido amount. It is a substan

tial amoun

t that will a

dd up to, . . . a little

ove r $90,000.00 including the attorney ’s fees; . . . .

. . . .

. . . . I said that from his bonus he could pay this. No, I believe that’s just ordinary income. No, I don’t see the bonus a s . . . a marital asset, it’s ordinary income. What

I ha ve to do is w

hen I tell somebody

you ’ve go t to pay

that much

money , I think it’s leg

itimate that they ask, did you give some thoug ht, Chancellor, as to how I’m supposed to pay for it. And not to worr y, I did.

In light of the circumstance s of this case, wehold any err or by the trial cour

t in failing to include the 1995 bonus as marital property harmless. Although Wife was awarded no part of the bonus, we do not f

ind that she was p rejudiced because neither was she or dered to pay

any of the marital debt. Awarding a portion of the bonus to Wife unde r these fact s only results in less of an ability by Husband to pay the a

pproximately $90,000debt, unless a portion thereof is also assigned to Wife. Under t hese fa cts, gi ving the entire bonu s to Husba nd is just asbeneficial to Wife as to Husband.

Nor

do we find harmful error in the trial court’s failure to include a portion of Husband’s prepaid attorney ’s fees as marital property . The trial court specific ally

ruled tha t he did not“conside

r [the pre paid atto rney ’s fees ] to be a marital asset.” Wife contends that of the $13,531 fees paid by

Husband t

o his attor ney pending trial, onl y $3 ,000 is des ignate d by

Husband o n his Rule 15 affid avit

as coming from

the proceeds of the $50,000 signature loan. Thus, she asserts that the remaining $10,000 represents a part of the marital e state, subject to equitable division. Husband,7

however, was orde

red to pa y the major p ortion, $1 5,900 of Wif e’s attor ney ’s fees , with only

those fees arising after trial to be paid by Wife.

Fi na ll y, it is argued that the trialcourt erred in placing no value on Husband’s 1996 Honda. It is within the trial court’s discreti on to plac e a value on a marital asset

that is within the range of the evidence submitted. Koch v. Koch , 874 S.W.2d 571, 577 (Tenn. App. 1993). As the valuation of an ass et is a question of fact, there is a presumption on appeal that the trial cour t’s valuation is correct. Smith v. Smith , 912 S.W.2d 155, 157 (Tenn. A pp. 1995). The parties stipulated that the Honda had a value of $17,00 0. Husband t estified that he pa

id approxima

tely $16,900 fo r the vehicle from a portion of the loan procee ds, which the trial court held Husban d solely responsible for repay

ing. It is contended that bec ause the loan is not secured and there is no lien on the Honda it should have been attributed its stipulated value and that any debt of Husband should be dealt with separately

from the “designation and evaluation of the marital assets.” Based
on the evidence presented and the trial court’s decision regarding the distribution of

debt, we find that the trial court did not abuse

its discret ion in assigning no value to the 1996 Honda awarded Husband.

Wife’s second and third issue s addres s the trial court’s division of the marital estate, which entails the sal e of both marital homes, and will be considered together . For Wife’s second issue, she argues that the aforementioned a ssets discussed in issue one should have be en equita

bly divided as marital property and thei r exclusio n from the marital e state re sulted in a n inequita

ble division. As we hav e deter mined tha

t no harmf

ul error w as committ

ed by the trial court in it s classification of these items, we do not reach the issueof their division. Therefore, we address the trial court’s division of t he mar ital property to the extent that it holds that both marital residences
are to be sold. Wife contends that the trial court erred in this regar d, particularly in lig

ht of her limited education and lack of ability to e arn. She asserts that all of her assets will have to be used “to obtain a new residence and support he

rself.”Wife sug gests that an equitable division includes an award of the Stornaway property to her

and the Massey Pointe home to Husba nd.

The divorce

statutes r equire t he trial c ourt to eq

uitably divid e t he marita

l proper ty8

withoutregar

d to fault. T.C.A. § 36-4-121(a)(1). The trial court has broa d discretion in dividing the marital estate and its decision is entitled to great weight on appe al. Its decision is presumed correct unless the evidence preponderates otherwise. Wade , 897 S.W.2d at 715; Rul e 13(d) T.R .A. P. In dividing the marit

al estate , the tria

l court is t

o conside r all rel evant fa

ctors i n cluding

those enumerated

in T.C.A. § 36-4-121 (c). Section 36-4- 121(a)( 2) empow ers the tr ial cour t to order the saleof marital property

and the proceeds therefrom divi ded between the parties “where deemed necessary .” In thi s case, t he trial cour t found that the most equitable division was an equal one, necessitating the selling of both marital homes. The

fairne ss of the p

roperty division is generally judged by its final results. Wade , 897 S.W.2d at 717. Wife testified that she could “l iv e
co mf or ta bl y” at the Stornaway home and that it was the “wisest choice” she could make. Howe ver,
on cross-examination, she states that she “may be in a bind with the repairs and t he upkeep o f St or na wa y, because I think [it] is may be 30 yea rs old.” We cannot agree that the decision reached by the trial court renders an inequitable result in light of all re levant factors. To aw ard Wife the Stornaway

home means the outlaying of additiona

l e xpense by

her for its upkee p and lessliquid assets with which to further her education as she has e xpressed a desire to do.
Finally , we addr

ess the issue pertaining to alimony . The trial court found this an inapprop riate ca se fo r a li mo ny in futuro “given the heal th, the re la tive youngage of [Wife], and givenher ability to ear

n a livelihood in the market pl ace.” The trial judge also considered rehabi lita tive a limo ny inappr opria te, fi ndin g:

[F ]rom the p roof . . . there is less than a positive historyof followthrou gh by Mrs. Dunehew with her prior occupationalchoices and the training that she undertook with that. The Court further finds tha t, from he r t es ti mo ny, it would appear that not only how she expresses herself, but also the fac ts that she relates , she has o nly

a modera

te interest , in this Court’s op in ion, in her continuing education. She evokes even a

lack o f know ledge of the degree that she is seeking , nor does she appear to know the certification that she needs for th e job that she wishe s to pursue . The Cour t beli ev es that her interest may increa se withthe full assumption of her educational responsibility by herself.

Factors to be considered

in dete rmining

whether to award alimony include t hose identified in T.C.A. § 36-5-101(d). Of these, need

and the ability to pay

are most critical. Loyd v.3 The record indicates that Wife can attain her degree at Christian Brothers in 4 y ears and 4 months. She testified that it would take longer to complete her studies at the University of Memphis. However, we find the amount of rehabilitative alimony awarded sufficient to cover this extended time period if she chooses to enroll there. 9 Loyd , 860 S .W.2d 409, 412 (Tenn. App. 1993). Husband states his monthly net income a s $3,697.44. His monthly expenses, until the marital homes are sold, are $3,760. After their sale, the record indicate s m onthl y expenses for Husband of approximately $2,785, including the $750 he estimates to rent an apartment. Wife has total monthly e xpenses of $2 ,070 .44, excluding the amounts she designates for credit car d payments (aw arded to Husband), home mai nten ance and colle ge expenses and including $ 100 per month for counseling. She has a net monthly income of $1,031.60 for the nine months per y ear she works, for an annual salary of approximately $9,200. If notaw ar de d a li mo ny in futuro , W ife requests that Husband financially assist her to the extent necessary for her to obtain a “four-y ear degree ” in ps ychology. I t is her preference to attend Christian Brothe

rs Univer sity

at a cost of $8,000 per year. The record, however, indicates that she could obtain a like degree a

t the Unive

rsity of Memphi s for con siderab ly le ss. Tuition per credit hour is $225 at Christian Brothers compared to $88 at the University of Memphis. Wife stated that she would need approximately 130 hours to g raduate.

Based on the re cord, we

find it necessary

to modify the judgment of the trial court

to include an award

of rehabilitative alimony to Wife in the amount of $500 pe

r month fo

r four y ears - the approximate time necessary for her to obtain the degree she see ks and allow her to improve her income. 3 The record

indicates that the two homes have not y et been sold. Until such time, Husband is responsible for the t wo mortg ages o n Massey Pointe tota

ling $1,5 90. When c onsidering his monthly income and expenses to include the mortg age pa

yme nts and the amount of debt for which he is responsible, we find that he is unable to pay the rehabilitative alimony until the two homes have sold. Theref

ore, we hold that H

usband is t

o begin pay ing reh abilitativ e ali mony to Wife the first month follo wing the

sale of b oth marita

l residen ces.

The judgment is hereby

modified accordingly

and is otherwise affirmed. Costs are
assesse d equally

agains t the par

ties.10 ____________________________________ FAR MER , J.

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

______________________________ LI LL ARD, J. (Conc

urs)