### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE October 16, 2001 Se ssion LINDA DARLENE MUSICK v. CALVIN LESLI E MUSICK Direct Appeal from the Chancery Court for Sullivan County No. C7219 Hon. John S. McLellan, III., Judge

FILED DECEMBER 4, 2001 No. E2001-01140-COA-R3-CV

The Trial Court granted parties a divorce, divided ma rital property, a

nd awarded alimony . The parties have appealed on issues of ev id en ce , d iv is io n o f m ar it al pr op er ty, th e g ra nt in g o f a li mo ny, and wife ’s attorn

ey ’s fees . We affir

m.
Tenn. R. App.P.3 Appe al as of Right ; Judgme nt of the Cha

ncery Court Affirm

ed.

H ERSCHEL P ICKENS F RANKS , J., deli ve red the opinion of the court, in which H OUSTON M. G ODDARD , P.J., and D. M ICHAEL S WINEY , J., joined. Thomas C. Je ssee, Johns on City , Tennes see, for Appellan t. David S. Haynes, B ristol, Tennessee, for Appellee.

OPINION
In this divorce action, following tria l, the Trial Court

granted the wife a divorce on the grounds of inappropriate marital conduct, with primary c

ustody of the son to the mother. The Courtordered an equal split of the pers onalty

in the mar

ital resi dence a

nd the husb and’s ap artment, and determined the marital residence had a va lue of $21 5,000.00, and orde red the h ouse to be

sold withthe procee ds d ivided 80% to the wife and 20% to the husband. The wife was aw arded her motor vehicle, and

the husband was awarded his jeep with its attendant debt. The Court found that the husband’s share of his business had a prema rital val ue of $10 8,750.00, and that it was cur rently worth $190,000.00, which made the increase in marital value of $81,2 50.00 as ma ri ta l p ro pe rt y,-2-

which was awarded to the husband.

The Courtdetermined the hus band’s ne t income was $2,100.00 per month, and set child support at $441.00. The Court further found the wife was economically

disadvantaged relative to the husband, but she had a college deg ree and could be rehabilitated. The wif e was awarded rehabilitative alimony of $1,500.00 a month for two y ears, and then $1,000.00 p er month for two ye ars, and then $500.00 per month for one y ear. The Court ultimately r efused to award the wife attorney’s fees, noting that the Court ha d taken attorney’s f ees into consideration when allocating to her 80% of the proceeds of the sale of the marital residence to the wife. Subsequently , the marital residence was sold for $189,000.00, and we granted the wife ’s motion to

consider this fact on appea l. The issue s presen

ted on app eal are

as follow s: 1. Was husband’s business properly value d by the trial court and/or the experts ? 2. Did

the trial court err

in its prope

rty and debt classification and distribution? 3. Should the c ourt have consider ed husba nd’s dissip ation of a ssets? 4. Did

the trial court er r in orderin g husba

nd to pay alimony to wife, a nd should that alimony have bee

n in futuro rather than rehabilitative? 4. Di d th e trial court err in failing to award wife her attorney ’s fees and expenses? 5. Is the

wife ent itled to at torney ’s fees and costson appea l? The husband argues that the business was not properly va l ued by the Tria

l Court because neither of the experts tendered by the parties followed the Supreme Court’s di r ection in Blasingame v. American Materials, Inc. , 654 S.W.2d 659 (Tenn. 1983). In Blasingame , the Court was faced with the issue of how to properly value the stock of a dissenting stockholder, and decided to follow the Delaware rule requiring the use of three methods, market value, asset value, a nd investmentor earnings value. Id . The husband argues that his own expert did

not comply

with these require ments, and we agree. But husband’s counsel was aware of the Blasingame case, as evidenced by his comments in the trial transcript, and moreover, husband ’s exper t admitted that he and husband’s counsel had discussed it. Since the husband had the opportunity to prese nt any evidenc e he chose on the issue at trial, he is bound by the evi d ence he presented. Watte rs v. W atters , 959 S.W.2d 585 (Tenn. Ct. App. 1997). Also see Tenn. R. App. P. 36(a).

Wife agree s that husband’s expert did not f ollow the requirements of Blasingame , and asks this Court to base its finding on her expert’s value of the business. I t appears the wife’s expert didcomply more closely

with the requirements of Blasingame , but wife ’s expert a dmitted tha

t his value did not account for any real losses due to the fire, pollution damage, and other issues which-3-

had an effect

on the business’s value. Thus, while neither expert’s opinion was problem-free, the testimonydid provide the Court with a r eason able range of value for the husband’s interest in the business, and the court was free to assign a value wit hin that range. Koch v. Koch , 874 S.W.2d 571 (Tenn. Ct. App. 19 93); Brock v. Brock , 941 S.W.2d 896 (Tenn. Ct. App. 1996). Also see Kinard v. Kindard , 986 S.W.2d 220 (Tenn. Ct. App. 1998). The evidence does not prepo nderate against the Trial Court’s finding as to the husband’s interest in the business.

Both parties a rgue th e Court er red in its distribution of

assets. Additionally, the wife argues the Trial Court erred in valuing the marital residence. Valuation of an asset is a question of fact, Kinard , and the parties arebound by the evidence they

present ed, and th

e Trial Co

urt’s fin ding of v alue com es to this Court with a presumption of correctness. Kinard

. The only evidence

presented as to the value of the house was the testimony of the parties. The Court’s determination of the issue was based on the parties’ credibility , and the Trial Court decided to accept

the husband’s assessment of the value. But the wife ar gues that the Court should take notice of the post-judgment fact that the house only sold for $189,000.00. The Supre me Court, however , has ma

de it clear that post-judgment facts relating to disputed issues which the party seeks to relitigate after the trial will not be considered. Duncan v. Duncan , 672 S.W.2d 765 (Tenn. 1984). Also see Wade v. Wade , 897 S.W.2d 7 02 (Tenn . Ct. App. 1 994). On t hese authoriti es, it is not appropriate to consider the post-judgment fact of the selling price of the house. The parties chose to prese nt the Cour

t with only

their own opinions as to the value of the home, and the Court’s ruling was within the range of the evidence. The evidence does not preponderate a gainst the Trial Court’s finding. Tenn. R. App. P. Rule 13(d).

Wife argues that the

Court erred in classify

ing certain debts incurred by the husband as marital property, a s well as funds spent by the husband. We find these issues to be witho ut merit. See Mondelli v. Howard, 780 S.W.2d 769 (Tenn. Ct. App. 1989).

Our standard of review of

the Trial Court’s property valuation and distribution is de novo with a presumption of correctness, unless the evidence preponderates otherwise. Mondelli , and we conclude the Trial Court’s distribution was almost equal, although it slightly favored the wife, which we find to be equitable. See Ellis v. Ellis , 748 S.W.2d 424 (Tenn. 1988). The husband argues that the Trial Court er red in award ing alimony to the wife , because he does not have the abilit y to pay. The Tria

l Court determined the husband’s earnings were approxima

tely $2,100.00 per month, and considering the statutory factors contained in Tenn. Code Ann. §36-5-101(d)(1), we find the evidence doe s not preponderate against the Trial Court’s award. Moreov er, the statute clearly expresses there is a preference f or rehabilitative alimony, whe re alimony is feasible. Long v. Long , 968 S.W.2d 292 (Tenn. Ct. App. 1997). We affirm the award of al im on y.-4- Finally, the wife

argues that the Trial

Court erred in failing to award her attorney’s fees. Attorney ’s fees awards in divorc e action s are ty pically viewed a s an addit

i onal awa rd of al im on y, and the Trial Judge, in deny ing an award of attorney ’s fees, stated that he had taken the sameinto consideration when awarding the wife a greater share of

the marital estate. As wehave noted, “If the final decree awards wife sufficient funds out of which her needs and counsel fees can be reasonably

met, then an award

of attorney’ s fees is inappropriate.” Wade v. Wade , 897 S.W.2d 702, 719 ( Tenn. Ct. A

pp. 1994) . We also decline to a ward the wife’s a ttorney ’s fees on appea

l. We affirm the Judgment

of the Trial Court and

remand, with the cost of the appeal as se ss ed on e- ha lf

to ea ch pa rt y.

_________________________ H ERSCHEL P ICKENS F RANKS , J.