# FILED September 18, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COU RT OF A PPEA LS OF TENN ESSEE WESTERN SECT ION A T JA CKSON MATTIE GREEN TERRELL, ) ) Plaintiff/Appellee, ) Shelby Circuit No. 146626 R.D. ) VS. ) A ppeal No. 02A 01-9610-CV-002 54 ) MACK TERRELL, ) ) Defendant/Appellant. )
APPEAL FROM THE CI RCUI T COURT OF SH ELBY C OUNTY

AT MEMPHIS, TEN NESSEE THE HONORABLE ROBERT L. CH ILDERS, JUD GE

KA THLEEN D. NORFLEET Memphis, Tennessee Attorney for Appellant

SABRINA

D. BALL LONG, UMSTED & JONES Memphis, Tennessee Attorney for Appellee

AF FIRMED A

S MODIFIED

ALAN E. HIGHERS , J.

CONCUR: W. FRA NK CRA

WFORD, P.J., W.S. DAVID R. FA RMER, J.2

Defendant Mack Terrel l (Husband) appeals the final divorce decree entered by the trial court wh ich distri but ed the parties’ property and ordered the Husband to pay child support by income as signment to Plaintiff Matti e Green Terrel l (Wife). W e affirm the trial court’s judgment, with minor modificat ions.

I. Factual a nd Procedural History

The Wife filed this divorce ac tion in A ug ust 1994, after twenty year s of marriage. The parties had three ch ildren, but only one child, a fifteen-year-old daug hter, remained
a minor at the time of trial. Th e W ife had been em plo yed by the Uni ted States Postal Service for twenty-seven years. The Husband was employed by

Mid-South Transportation Management, Inc., where he had worked as a MATA (Memphis Area Transit Authority) bus driver for twenty- th ree yea rs. Dur ing the year pri or t o thefina l di vorce he ari ng, the Wife earned approximatel y $50,000 from her employment, w hile the Husba nd ear ne d approximatel y $40,000.

At trial, the Wife testified that the Husband’s g ambling acti vities h ad been a problem throughout the marriage. According to the Wife,

[Th e Husband] went to the dog t rack and the poker games. And he went -- usually he would leave on Thursd a y nightwhen h e got p aid, and we might not s ee hi m an ym or e until Sunday

when he came home.

. . . . Sometime he would lose his whole check. In the year pr ior to the par ties’ separation, the Husba nd lost $2,000 w ithin a two-month period by gambling. In October 1993, the Husband ha d $2,000 in saving s. By December 1993, he had gambled and lost the enti re amount.

The Husband denied having a gambling problem, bu t he admitted occasi on ally visiti ng the dog track in West Memphis, Arkansas, as well asplaying in poker games where the “pot” contained as much as $30 0. Because of the Husb and’s gambling problem, the Wife opened a separate c hecking account in the early 1980's. Thereaf ter, upon receiv ing3

the irr espective paychecks, the parties contributed eq ually to t he household bil ls and expenses, including the mortgag e payments on themarital home, and retained thebalance of their incomes

to use as they

wished. Dur ing the l ast fiv e ye arsof th e mar ria ge, the Wife used her di scret ionar

y income to purchas e various in vestmen ts, inclu ding stoc ks, savings bonds, mutual funds, and other inv estments. Accor

ding to the Wife, after payinghis share of the household ex penses, the Husb and spent his remaining income gambling.

Pe r the parties’ stipulation at trial, the trial court awarded the W ife an absolu t e divorce on the grounds

of inappropriate marital conduc t. In its final divorce decree, the tr ial court awarded the parties joi nt custody of the minor chil d and designated the Wife as the primarycustodial par

ent. The trial court ordered the Husband to pay child suppor

t to the Wife in the amount of $500 per month and ordered that this oblig ation be paid by income assig nment. The trial cour t distribut ed the parties’ household goods and furnishing s by ordering the Husband to compile two lists of the pr operty and to

allow the Wif e to choose
one list as her property. The trial court distributed the part ies’ re maining proper ty as follows: To the Husband: One-half of equity in marital residence $ 10,000.00 1979 Camaro Z28 $ 1,025.00 1988 Pontiac LeMan s $ 1,425.00 Globe Life Insurance policy (cash surrender value) $ 274.11 Leader Federal account $ 1,239.00 MATA pension and retirement account $ 46,470.56 Total $ 60,433.674

To the Wife: One-half of equity in marital residence $ 10,000.00 1986 Audi 5000 $ 2,300.00 1993 Toyota Camry

Sedan XLE ($ 3,354.00) Leader Federal stock $ 4,275.00 Savings bonds $ 500.00 Twentieth Cen tury mutual fund $ 3,583.00 Janus fund $ 1,865.96 Globe Life Insurance policy (cash surrender value) $ 246.23 Great American Reserve Insurance annuit y $ 2,801.71 First Tennessee cashier’s check $ 2,000.00 Household good s and furniture pu rchased after sepa ration $ 7,027.00 Cash $ 2,100.00 USPS pe nsion an d retirem ent ben efits, includin g $ 50,646.00 thrift savi ngs plan Total $ 83,990.90 In m aking this

distributi on, the trial court speci fically found th at the Husband had “dissipated and wasted thousands of dollars g ambling.” The final decree cont ained no provisi on for attorney ’s fees, thus le aving eac h party to pay his or her own fees.

On appeal, the Hus band challenge s the trial court’s v aluation and distribution of the parties’ mar ital propert

y and the tr ial court’s dec ision torequire the Husband to pay child support by income assig nment.

II. Cash Wit hdrawals

The Husband first cont ends that the trial court erred in distributing the pa rties’ property without t aking into account cash w ithdrawal s from marital funds made by the Wife
near the time of the parties’ sep aratio n . At trial , the Wife acknowledged that she had withd rawn approximatel y $13,000 from a M emphis Area Teacher s Credit U nion account, $9,000 from a First Tennessee Bank account , and $3,000 from a Twenti eth Century mutual fund account. The W if e also cashed a certificate of depos it with National Bank of Commerce containi ng approx imately $8,00 0, for cash w ithdrawal s totaling $33,000.

We agree that the f und s withd rawn by the W ife shou ld ha ve been considered by the trial court in i ts divis ion of the marital estate. See Cupples v. Cupples , No. 0 2 A 0 1 - 9 4 0 8 - C H - 0 0 1 9 3 , 1 9 9 5 WL650134, at *5 (Tenn. App. Nov. 2, 1995), perm. app.1 The $2,000 Fir st Tennessee Bank cashi er’ s check dist ri buted t o the W if e was dated September 4,

1992, and was no t pa rt o f th e $ 33 ,00 0 in ca sh with dr aw als made by the Wife around t he ti me of the part ies’ sep aratio n.

2 At tr ial , t he W if e indi cated t hat, from the $33, 000 in ca sh wit hdrawal s, she spent $5,227 on furniture for h er ne w ap artm ent, $ 300 on a new televisio n, an d $1 ,500 on o ther m isce llaneo us s tart-up exp ens es. 5 denied (Tenn. Feb. 26, 1996 ). Ne verthe less, we decline to disturb the trial court’s distributi on of the parties’ property for several reasons. First , as the Husband acknowledg es on appeal, the tr ial court’ s equitable distributi on scheme does take into accounta large portion of the $33,00 0 in withdraw als. In dist ributing the part ies’ p rope rty, t he trial cour t awar ded the W ife $2,1 00 in cash , the amo unt t he W ife test ifie d wa s remaining from the origi nal $33,000. 1 The trial cour t also awa r ded th e W ife $7,027 in household goods and furniture purchased by the Wife af ter the separat ion. 2
Moreover, the evidence at trial r evealed that $ 9,000 of the w ithdrawal s was not marital p roperty. T he Wife testified, without contr adiction, that $9,000 of the funds represented a gift to th e Wife from the Wife’s mother. The $9,000 was i n an account bearing theWife’s name only. Under thes e circumstances, the trial court properly could have found that $9,000 of the cash wi thdrawals constituted theW ife ’s sep arat e pro pert y. See Brow n v. Brow n , 913 S.W .2d 163, 167 (Tenn . App. 1994) (noting that fa ir interpretati on of trial court’s m emorandum opin ion was determination that husb and’s interest in family business was hissepa rat e proper

ty b ecau se i t w as g iftto him alone from his father); see also T.C.A. § 36-4-121(b)(2)(D) (1991) (definin g as se par ate property “[p]roperty acquired by a spouse at any time by gift, bequest, devise or descent”).

Aconsiderati on of the foregoing assets and g ift leaves $14 ,873 unaccounted for out of the origi nal $33,000 in cas h withdrawals. The Wife testified that she spe nt $850 of these funds on the m inor d aught er’s orthod ontic bill s. At the ti me of trial, the H usband had made no contribut ion t oward thesebills, al though a prev ious court or der requir

ed him to pay forty percent (40%) of such expenses. Of the remainin g $14,023, the Wife testified that she spent these funds on car repair bil ls, vacat ion expen ses, and a n aut omo bile down pay m ent. Even if thi s $14,023 remains unaccounted for, we conclude, for reasons3 The trial cou rt awa rded a total o f $50 ,646 in retirem ent b ene fits to the W ife. T his amount incl uded

$37 ,646 for the W ife’s em ployee con tribution s an d $1 3,00 0 for her th rift savin gs p lan. 6 explained here inaf ter, that neit her t his d iscre pan cy nor any ot her a llege d pro pert y valuation errors ju stify dist urbing the t rial court ’s equitabl e distributi on scheme.

III. Valuati on of Hu sband’s Ret irement A ccount and Wife’s A utomobil e

As forthe other alleged property valuation errors, the Husband chal lenges the tr ial court’s valuations

of the Husband’s r

etirementaccount and the Wife’s automobile. In the final divorce decree, the tr ial court valued the H usband’s reti rement account at $46,470.56, which included $30,442. 44 in em ploye e contributio ns plus $16,028.12 in interest. In valuing the W ife’s retirement account , however, the trial court considered only the W ife’s contributions

because the materi al provided by the Wife’s employer did not i ndicate the amount of any accrued interest. 3 The Husband contends that the trial court erre d in failing to use the same method, i.e. contribution s only, for eval uating e ach party’ s retirement account.

The Husband a lso conten ds that the trial court erred in valuing the W ife’s automobile based on the Wife’s opinion of the car’s value when the Hus band presented evidence of the car’s N ADA book val ue. The Wife’s affidavit of inco me and expenses indicated that she believ ed the car, a 1993 Toyota Camry Sedan XLE, to be worth only $13,800. Inasmuch as the Wife still owed $17,154 on the car, the tr ial court as signed it a nega tive value of $3,354. At trial, however, the H usband presented ev idence that theretail value of the car was actually $18,150, given the car’s optional featuresand low mi leage. Taking into account the lien on the car , therefore, the H usband contended that the value of the car was

$996.

The Husband’s argument thatthe trial court should have used the same method in valuing the parties’ retirement accounts appears t o be well-taken. We note, however, that the Husb and fail ed to provi de evidence at trial of the c urrent val ue of his retirement accountwhile t he Wife did provide such infor mation concerni ng her accoun t. At trial , the4 See Turner v. Turner , 776 S.W .2d 88, 90 (Ten n. App. 1988). 7 Husband presented ev idence that he had contributed $30,442.44 tohis retirement account as of December 31, 1994. As a result of the Hus band’ s continued cont ributions, t he amount in the Husband’ s retirement account presumab ly w oul d have increased significantlyby the date of tr ial in March 1996, but the H usband failed to show the amount of this increase. Theevidence showed, for example, that be tween the months of Feb ruary 1995 and March 1996 the value of the Wife’s retirement account incr eased by $2,158 (or 6%) as a res ult of the Wife’s contributions.

The statute g overning the distri bution of marital property r equires that marital property be “valued as of a date as near as reasonably

possible” to th e date of the final divorce hearing. T.C.A. § 36-4-121(b)( 1)(A) (1991 ). In accord ance with this princi ple, retirement

accounts “must be valued as of a date as near as poss ible” to the trial date. Kendrickv. Kendrick , 902 S.W.2d 918, 927 (Tenn. App. 1994). Based on the Husband’s failure to present ev idence of the val ue of his retirement account as of the d ate of the trial,
or as of a reasonably close date, we conclude th at the trial court did not err in refusing to use $30,442.44 as the value of the Hus band’s retirement account.
On the other hand, we conclud e that the evidence preponderates ag ainst the tri al court’s finding that th e Wife’s automobile had a negative value of $3,354. This finding w as based on t he Wife’s affidavit of income and expen ses, introduced at trial, in which she opined that the car w

as worth only $13,800. Even if the Wife’s affidavit pr operly co uld be considered as evidence, 4 her opinion as to th e car’s value reflected ther ein was undermined on cross-ex amination whe n the Wife admitted that she purchased the car for $18,824 only fiv

e months prior

to the trial . The Wife described the car as a 1993 Toyota Camry Sedan XLE wi th a power sunroof, power and leather

seats, anti- lock brakes , and low mileage. According to

the NADA information sub mitted into evidence by the Hus band, the described v

ehicle had a retail val ue of $18,150 at the time of trial.8

We recognize that the Wife, as the owner of the automobile, was quali fie d to gi ve an opinion as to t he automobile’s v alue. See Blackburn v. Murp hy , 737 S.W.2d 529, 532 (Tenn. 1987); State ex

rel. Smith v . Living ston Limestone Co

. , 547 S.W.2d 942, 943 (Tenn. 1977); Price v. A llstate Ins. Co. , 614 S.W .2d 377, 379 (Tenn . App. 1981). W e also
reco gnize that, althoug h NADA (Nat ional AutomobileDeal ers As sociation) “blue book” valuesconstitute highly probative evidence, this source is not conclusi ve evi dence of an automobile’s value. See First Tennessee Bank Nat’ l Ass’n v . Helton , No. 03A01-9501-CV- 00026, 1995 WL 515658, at **3-4 (Ten n. App. A ug. 31, 1995); Jackson v. Rodgers Cadillac, Inc. , 1 9 9 1 WL73952, **3-4 (Tenn. Ap p. May 9, 1991). Given the lack of probati ve evi dence presented by the Wife on this issue, how ever, we conclude that the evidence preponderates ag ainst the tri al court’s finding that the car ha d a ne gative value of $3,354, and agreethat a positi ve val ue of $996 more closel y reflects the valueof the Wife’s automobile.
IV. Distribution of Marital Property
Despite any errors in property valuation, we nevertheless conclude that the record supportsthe equitabl e distributi on achieved by t he trial cour

t in its final decree. See Melton v. Melt on , No. 02A01-9701-CH -00022, 1997 WL 367682, **2-3 (Tenn. App. July 2, 1997). Trial courts have broad discretion in div iding mari tal estates, and their decis ions are afforded great weight on appeal

. Fisher v. Fis her , 648 S.W .2d 244, 246 (Tenn . 1983); Harring ton v. Harr ington , 798 S.W.2d 244, 245 (Tenn. App. 1990). The trial cour t’s divi sion of marital prop erty need not be equal. Batson v. Batson , 769 S.W.2d 849, 859 (Tenn. App. 1988). “The test i s whether the d ivision is equitable, not whether it is equal.” W ord v. W ord , 937 S.W .2d 931, 933 (Tenn . App. 1996).

In distr ibut ing th e par ties ’ mar ital prop erty, the trial court was required to consider, among other factors, the “c ontribu tion of each party to the acqui sition, pres ervation, appreciation or dissipation” of the property . T.C.A. § 36-4- 121(c)(5) (1991). In making i ts distributi on in this case, t he trial cour t specificall y found that the H usband had dissi pated9

and wasted tho usands of dollars in marital assets by

gambling. After carefully review ing the testimony, we conclud e that the evidence supports this finding. On t he other hand, the evidence ind icates that the Wifewas largely responsible for th e acquisit ion, preserv ation, and appreciation of the m arital estate. W hile the Husband spent his discr etiona ry i ncome gamblin g, the evidence demonstrated that the Wife used her income to purchase v arious investments, such as the st ocks, sav ings bonds, mutual funds, and other investments awarded to her in the f inal divorc e dec ree. Base d on t he f orego ing evi den ce, we affirm the trial court’s dec ision to award the W ife a gre ater share of the mar ital estate th an the Husband in this c a se. See Storey v . Storey , 835 S.W.2d 593, 598 (Tenn. App. 1992) (affirming trial co urt’s deci sion to award wife al l of marital ass ets based, in par t, on evidence that husband ha d dissipated marital assets).

We also a ffirm the trial court’s decision to award each of the parties $10,000 in equity in the m arita l home. In a div orce action, the trial court, “in i ts discreti on, is free to place a value on a m arital asse t that is w ithin the rang e of the evidence submitted.” W all ace v. Wallace , 733 S.W.2d 102, 107 (Tenn. App. 1987). At trial, t he Wife testifie d that the marit al home had an equ ity of $20,00 0. The H usband testi fied that if thehome
were sold the parti es would re alize onl y $14,854 after pay ing closing costs; however, there
was noevidence that the parties planne d to sell the residence in the fo reseeable future. Under these circ umstances, we conclude that t he trial court’s v aluation of the eq uity in t he marital home was within the range of the evidence sub mitted by the parties.
Nevertheless, we agree with the Husband tha t the trial court’s distribution of the equity in the marital home warra nts some clari fication. Althou gh the tria l court’s judgment does not specify which party shal l have ow nership and poss ession of the marital home, the Wife concedes that , with t he exc epti on of $10, 000 in equ ity, the marital home should be awarded to t he H usba nd. Accor ding ly , w e mod ify

the trial court’s j udgment to prov ide that the Husband shall be awarded ownership and possession of the marital home. In order to secure the W ife’s interest in the equity in the marital home, however , we also modify the trial court’s j udgment to impose a lien upon the mar ital home in favor of the Wife in the5 Th e rec ord in dica tes th at clos ing ar gum ents wer e no t trans cribe d. 10 amount of $10,000. See T.C.A. § 36-4-121(e)(2) (1991) (authorizing the court to “impose
a lien upon the mar ital rea l pr operty ass igned to a par ty as secu rity for t he payment of spouse support or payment pu rsuant to property division”).

As for the Husband’s

remaining a rgumen ts on appeal, we reject the Husband’s contention that the trial court erred in dividing t he parties’ p ersonalty by orderi ng the Husband to compile two lists of the personalty and perm itting the W ife to choose which list of items she wanted. W e agree that this method of dividing the parties’ personalty appears to be somewhat unor

thodox. Our

review of the trial transcript, however, reveals that the Husband failed to raise an objection w hen the trial court ordered the parties to divide their personalty

by use of this

method. Later in the trial, the Wife’s attorney sought clarificati on from the trial court as to the proper m etho d fo r divi ding the part ies’ personal ty. Upon receivi ng s uch clarificati on, the Wife’s attorney announced that the div ision could be accomplished “outside of court.” Again, the Husban d did not raise an obj ection to the tr ial court’s or

dered method of div iding the per sonalty.

An appellant waives an issue for purpo ses ofappellate review when he fails to make the appropriate obj ection atthe trial court level

. Barnhill v. Barnhill , 826 S.W.2d 443, 458 (Tenn. App. 1991). Inasmuch as the H usband failed tomake any objec tion below

to the trial cour t’s or dere d me thod of d ividin g the p artie s’ pe rson alty, 5 we concl ude thathe h as waived this issue on appeal.

V. Income A ssignment O rder

Fina lly, we rejec

t the Husband’s argument that the trial court erred in ordering him to pay chil d support to the Wife by income assignment. Bystatut e, the trial court was required to order the H usband to pay c hild support by income ass ignment, even if the Husband was cur rent on his c hild support obligations at the time of entry

of the di v orce11

decree. T.C.A. § 36-5-501(a)(1) (S upp. 1995). As pe rtinent, sect ion 36-5-501( a)(1) provides that For

any order

of child support iss ued, modified, or enforced on or after July 1, 1994, t he court shall order an immedi ate assignment

to the c lerk of the cour t or the department

of human serv ices o r its contractor of the obligor’s wages, salaries, commis sions , pensi ons, an nuiti es, and other income due or to become due to the o bligor. The order of assig nment shall issue regardless of whe ther support payments are in arrears on the effective dat e of the o rder. . . . The order shall . . . inclu de an amount necessar y to cover the fee due the clerk of the cour

t. . . . T.C.A. § 36-5-501(a)(1) (Supp. 19 95).
The only two exceptions to this requirement are

(A) If, upon proof by one party, ther e is a wr itten finding of fact in the order of the court that there is good cause no t to r equire immedi ate income assi gnment and the pro of shows thatthe obligor has made timely payment of previously ordered support in cases invol ving themodification of support orders. “Good cause”

shall only

be established upo n proof that the immediate incom e assignment would not be in the best interestsof the child. The court sha ll, in its o r der, state specifically why such assignment will not be in the child’s best interests; or (B) If there is a w ritten agreement by bot h part ies that provides for altern a tive arr angements. Such agreement must be revi ewed by the court and enter ed in the recor

d. T.C.A. § 35-5-501(a)(2) (Supp. 19 95).

In construingthe foregoing statute, we note that sec t ion 36-5-501( a) appears to presumptivelyrequi re th at al l chil d sup port orde rs iss ued aft er Ju ly 1 , 199 4, be paid by incomeassignment . The trial cour t may wai ve this requirement onl y if the part ies agree pursuant to section 36-5-50 1(a)(2)(B), or if the tri al court makes a writ ten finding of goo d cause pursuant to section 36 -5-501(a)(2)(A).

At trial, the Husband argue d that his child support obli gation shoul d not be paid by incomeassignment because he never had been late in making a pay ment. The Husband also argued that payment by income assig nment was not in the best interest of the p arties’12

child because the court clerk’s fee of five percent ( 5%) woul d take “money away fro m the family.”

We conclude that, absentother compelling circumstances not pre sent in this case, the assessment of a cour t cle rk’s fee pursu ant to section 3 6-5-501(a)( 1) does not constitutegood cause to waive the requirement of an incom e assig nment ord er under section 36-5-501(a) (2)(A). By its ex press terms, section 36-5- 501(a)(1) contemplates that
a court cler k’s fee wi ll be assess ed. The statute req uires the ass ignment order to include “an amount necessary

to cover”

the fee. T.C.A. § 36- 5-501(a)(1) (Supp. 1995). We doubt that the legislature, in creating its “good cause” exception, intended for the court cle rk’s fee to provide t he basis for such an exception when the stat ute itself contempl ates the imposition of this fee. Further, the imposition of a cou rt clerk’s fee necessarily reduces the obligor’s income. Under the Husband’s rationale, t herefore, an income assi gnment order imposing such a fee woul d never be i n the child’s best inte re st. Such an in terpretation would render meaning less the statu te’s presumpti ve requi remen t of the i ssuance of an income assignment order.

VI. A ttorney ’s Fees

In light of our

aff irma nce o f th e tria l cou rt’s d istri buti on of the p artie s’ pro pert y, we also affirm the trial court’s decision n ot to award the W ife her attorney’s fees. The W if e raised this issue only in th e event that this court altered the trial court’s equitable distributi on scheme on appeal. Inasmuch as the Wife was awarded sufficient assets wi th which to pa y her o wn attorney, we likew ise declineto award t he Wife her attorney’s fees incurred on this appeal. See Ingram v. Ingram , 721 S.W .2d 262, 264 (Tenn . App. 1986).

VII. Conclusion
The judgment of thetrial cour t is hereby

modified to prov ide (1) that the Husband shall be awarded ow nership and poss ession of the mari tal home and (2) that a $1 0,00 013

lien shall beimposed upon the m arital home in favor of the W ife. In all other respects, the trial court’s j udgment is affirmed. Costs of this appeal are taxed to Appe llant, for which
execu tion may is sue i f ne cess ary.

HIGHERS, J.

CONCUR:

CRAWFORD, P.J., W.S.

FARMER, J.