### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE June 26, 200 2 Session SHERRY MAE HOPKINS v. JAMES FRANKLI N HOPKINS

Appeal from the Circuit Court for Sevier County No. 2000-472-1 Ben W. Hooper, II, Judge FILED OCTOBER 23, 2002
No. E2001-02849-COA-R3-CV

In this appeal from the Circuit Court for Sevier County the Appellant, James Franklin Hopkins questions whether

the Trial Court erred in awarding alimony to the Appellee, Sherry

Mae Hopk

ins, and in ordering that all of Ms. Hopkins' debts be paid out of proceeds from the sale of the marital residence. Mr. Hopki ns also as serts tha t Ms. Hopkin s unlawfu ll y d ispos ed of

mari tal a ssets . We affirm in part and modify in part.
Tenn. R. App. P. 3 Appeal as of Right; Jud gment of the Circ

uit Court Affirme d in Part

and Modified in Part; Cause Remanded
H OUSTON M. G ODDARD , P.J., deliver ed the opinion of the

court, in which C HARLES D. S USANO , J R ., and D. M ICHAEL S WINEY , JJ., joined. Scarlett Allen Beaty , Knoxville, Tennessee, for the Appellant, James Franklin Hopkins Rebecca Denise Slone, Dandridge , Tennessee, for the Appellee, Sherry Mae Hopkins
OPINION
In this a ppeal from the Circuit Court for Sevier County the Appellant, James Frankli n Hopkins, r

aises thr ee issue s which we

restate as follow s: 1. Did the Trial Cour

t err in it s award

of alimony

to the App ellee, Sh

erry Mae Hopk

ins?
2. Did the Trial Cour

t err in or dering that all marital debts be paid from proceeds from the sa le of the pa rti es re sid en ce ? 3. Did Ms. Hopkins dispose of marital assets in violation of T.C.A. 36-4-106(d)?
Our review o f a case

such as th

is one is de novo upon the trial court record with a presumption that

the Tr ial C ourt's factua l find ings are correct absent a pre ponderance of evidence-2-

to the contrary . Tenn.R.App.P. 13(d). There is no presumption of correctness as to the Trial Court 's conclusions of law. Campbell v. Florida Steel ., 919 S.W.2d 26 (Tenn. 1996).
The parties in this matter separated on June 18, 2000, and Ms. Hopkins filed a complaint for divorce in the Sevier County Circuit Court on June19, 2000, and amendment thereto on December 13, 2000. Trial was held on May 14, 2001, and, by final dec ree entered June 14, 2001, t he Trial Court orde

red as f ollows:
1. The wife is a

warded an absolu te divorce on the g rounds of inapprop riate marital c onduct.
2. The Court awards the hay elevato r to the wi fe and th

e husban d's inte

rest is divested. Otherwise each party is award ed that pe rsonal pr operty in his or her possession and the other

party' s interest is divested. The Court finds this division to be fair and equitable.
3. All debts of the parties with balances as of June 18, 2000, including the wife's Kia, sha l l be paid from the sole proceeds of the marital residenc e. After said date, ea ch party shall be r esponsibl e for his or her own indebte dness and shall hold the other harmless thereon.
4. The wife is awarded one-half of the husban d's ret irement/pension benefit s up to t he date of t rial of Ma

y 14 , 2001 and

a Qualif ied Domes tic RelationsOrder sh all be sub mitted for disburse ment of thi s asset. 5. Each p arty

shall ret ain his or her own savings accounts. The husband shall be a warded his Edward Jones In

vestment A

ccount a s his separa

te prope rty from a wo

rker' s compens ation sett

lement.
6. Each party

shall pay his or her own attorne y' s fees a nd Court c osts shall be paid from the proceeds from the sale of the marital residence.
7. The wife is awarded alimony in the amount of

$600.00 pe

r month unt

il deat h, re marr iag e, or coha bitat ion with som

eone of the oppos ite se

x. Upon motion of Mr. Hopkins, the Courtamended the final decree by order entered October 11, 2001, to also award Mr. Hopkins one-half of Ms. Hop kins' re tirement accumulated as of May 14, 2000.
The first issue we address is whether the Trial Court erred in awa rding Ms. Hopkins alimony in futuro in the amount of $600.00 per month until death, remarriage or cohabitation. Mr. Hopkins argues that Ms. Hopkins should rece ive no alimony in this case. Alternatively , Mr. Hopkins contends that Ms. Hopkins should receive no more than $200.00 to $300.00 for a few months. Mr.-3-

Hopkins as serts tha

t the Tria l Court referre d to only

one fac tor - the d

iscrepa ncy in the par

ties' salarie s - in justification of its award of alimony. Mr. H opkins further asserts that the Trial Court also failed to make a

determin ation tha

t Ms. Hopkin s is inneed of rehabilitation or that rehabilitation is fe as ib le be fo re aw ar di ng he r a li mo ny in futuro

. T.C.A. 36-5-101 (d)(1) providesthat, in determining whether pay ment of spousal support is proper and in determining the proper form and amount of such support, a trial court should consider all re levan t fact ors in cludi ng the f ollo wing: (A) The rela

tive ear ning ca pacity , obliga

ti ons , needs, and financial resources of eachparty, including

income from pension, profit sharing or retirement plans and all other sources ; (B) The relative education and training of e ach party , the ability and oppor

tunity of each party

to secure such education and trai ning, a nd the nec essity

of a par ty to secure further education and training to

improve s uch part

y' s earnin g capa

city to a rea sonable l evel; (C) The duration of the marriage; (D ) T he ag e a nd me nt al co nd it io n o f e ac h p ar ty; (E) The ph ysical co ndit ion o f each p arty; inc ludi ng, but not limited to, physical disability or incap acity

due to a chronic de

bilitating disease ; (F) The extent to which it would be undesirable for a party to seek e

mployment outside the home because such party will be custodi an of a m inor child of the marriage; (G) The separate a ssets of each party , both real and personal, tangible and intangible; (H) The provisions made

with reg ard to the

marital p roperty as defined in

§ 36-4- 121; (I) The standar

d of living of the parties established during the marr iage; (J) The extent to which each party has made such tangible and intangib le contributions to the marriage as monetary an d home maker contributions, and tangibl e and intangible contributions by a party to the education, training or in cr ea se d e ar ni ng po we r o f t he ot he r p ar ty; (K) The relative f

ault of the parties in cases where the court, in its discretion, deems it appropriate to do so; and (L) Such other

fact ors, inclu ding

the ta x c onsequences to each party , as are necessa ry to conside

r the equ ities betw een the p arties.
This Court has noted on prior occasion that, while all of the above factors must be considered in arriving

at a dec ision reg arding spousal su

pport, " the two mos t importa nt factors ar e the demonstratedneed of the di sadvantaged sp ouse and the o bligor spou se's abilit y to pay." Anderton v. Anderton , 988 SW2d 675 (Tenn. Ct. App. 1998).-4-

The legislature of

this State has heretofore indicated its preferenc e for rehabilitative alimony when one spouse is found to be economically disadvantaged. As provided at T.C.A. 36-5-101(d)(1):
It is the intent of the general assembly that a spouse who is economic ally disadvantaged, relative to the other spouse, berehabilitatedwhenever possible by the granting of an order f or payment of r

ehabilitative, tem p orary suppor t and maintenance. Where there is such relative economic disadvantag e and rehabilitation is no t feasibl e in consideration of all relevant factors, including those set out in this subsection, then the court may grant an order for pay

ment of support and maintenance on a

long-t erm bas is or u ntil the de ath or remarr iage of the recipient except as otherwise provided in subdivision (a)(3). A trial court may not orde r alimony in futuro unless it has made the threshold determination that, considering all relevant factor s, rehab ilitation o f the ec onomically disadvantaged spouse is not feasible. Storey v. Storey , 835 SW2d 593 (Tenn . Ct. App. 1992). Although the record does not specific ally

show that the Trial Court found that rehabilitation of Ms. Hopkins is not feasible, such fi nd in g i s i mp li ci t i n t he Tr ia l C ou rt 's aw ar d o f a li mo ny in futuro. We must ascertain whether the evidence present

ed suppor ts that finding con sidering all relevant factors set forth a t T.C.A. 36-5- 101(d)(1). Robertson v. Robertson , 76 S.W.3d 337 (Tenn. 2002). In so doing, we bear in mind that a trial court is acco rded wi de dis creti on in determ inin g w hether an award of alimony should be rehabilitative or in futuro

. Crabtree v. Crabtree , 16 S.W.3d 356 (Tenn. 2000).
Wi th respe ct to T.C.A. 36-5-101(d)(1)(A) we note as follows. Ms. Hopkins rec eives approxima

tely $32,000.00 in annual compensation as a rural mail carrier for the U.S. Postal Service while Mr. Hopkins receives a significantly larger salary , in the amount of $61,000.00, as a certified and licensed truck driver. No proof was pres ented as to the projected future earning potential of either party in their current positions of employment. As set forth above, the Trial Court decreed that all debts of the parties as of June 18, 2000, were to be paid from the proce eds realizedfrom sale of the marital residence. After subtracting these debts from the list of average monthly expenses filed by M s. Hopkinson May

14, 2001, w e find tha

t Ms. Hopkin s still incu

rs the fo llowing e

xpenses:

Rent $ 350.00 Gas 40.00 Electric 60.00 Car Insurance 57.50 Phone 60.00 Cellular Phone 100.00 Medications 50.00 Chiropractor 100.00 Other medical 100.00 Groceries 300.001 M s. Hopkins is required to use her own vehicle i n h er j ob as ma il c arrie r. The KIA automobil e purchased

shortly before her

sep ara ti on f

rom Mr. Hopki ns h ad al rea dy a ccum ul ate d 31, 000 mi les by t he time of trial acc ord ing to M s. Ho pkins' testim ony.

2 M s. Hopkins testif

ied that she had been told that her sal ary would be diminished by $3,000.00 in th upcoming year. Th e T rial Co urt ove rruled a hear say ob jectio n to this testim ony. Ms. Hopkins subse quent t esti mony reveal s that she ha s neve r rece ived a ny written fo rmal n otice o f this pro pos ed w age d ecrea se. -5- Gas (automobile) 1 500.00 Church 200.00 Horse feed 80.00 Vet bills 150.00 Clothing 200.00 Insurance 80.00 TOTAL $2,427.50 Ms. Hopkins' total annual compensation of $32 ,000.00 consists in part of benefits in the amo untof $6,665.38 extended to her by he r employer a

nd represent coverage

of cert ain heal t h be nefits, basic lif

e insura nce, re tirement plan, soc ial secu

rity and medic are. Th

is $6,665. 38 is appare ntly th e value placed on these benefits by Ms. Hopkins' employer

and does not represent money which is a

vailable to Ms. Hopk

ins. The r ecord shows that Ms

. Hopkins' actual gross salary is $25,350.03 or $2,112.50 per month. Ms. Hopkins testified that she will receive an initial raise of forty cents an hour aft er she ha s been em

ploy ed for a

period of ninety -six weeks

. 2
We do not find an itemized list of Mr. Ho pkin s' mon thly exp enses in th e recor d, alt hough he testified at trial that he pay s rent in the amoun t of $42 5.00, utilities in the amount of

$25.00 to $50.00 and a car pay

ment in the amount of

$143.00. Mr. Hopkins further testified that he incurs road expenses related to his work in the amount of $60.00 to $70.00 per week for food, a perce ntage of which he deducts as a bus iness expe nse on his tax return. He also testified that he incurs expenses for laundry , phone, a

nd clothin g in

unspecified amounts and a life insurance premium in the amount of $83.00 a q

uarter . Mr. Hopk

ins prese nts no proof

that his mon

thly expenses m

eet or e xceed thos e of Ms. Hopkin s. Mr. Hopkins' Form W-2 wage and tax statement shows that his gr oss salary for

the year 2000 w as $61,318.08 or $5,109.84 per month.
As to T.C.A. 36-5-101(d)(1)(B) the rec ord shows that both parties have twelve y ears of education. Mr. Hopkins has certification as a truck driver and has been employ ed in that capaci ty for many ye ars. Ms. Hopkins worked for the Postal Service on a part time basis for six years prior to her divor

ce and a t the time of divorce Ms. Hopkins had worked full time for the Postal Service for more than a year. With respect

to T.C.A. 3 6-5-101( d)(1)( C), as pre viously noted, the

duration of this marri age was thirt y y ears.-6-

With respect

to T.C.A. 3 6-5-101( d)(1)( D), we note that bo th partie s were f orty six ye ars old at the time of the divorce. There was no proof sub mitted as t o the ment

al condit ion of the parties.
With respec t t o T.C.A. 36-5-101(d)(1)(E) we note that eac h party has ha

d some physical problems

. Mr. Hopki ns sustained an on- the-job b ack injur y in 1999 which le ft h im with a tw enty percent permanent disability. Ms. Hopkins underwe nt surgery

for cervical cance

r sh ortly before separating and will require medicati on for the

remaind er of he r life asa conseq

uence. She also testified that she must ta

ke medic ations fo

r the re st of her

life for a thy roid cond ition and f

or th e effec ts of carbonmono xid e pois onin g. Neither party offere d evidenc e that the ir phy sical pro

blems impai r thei r abil ity to ear n a liv ing.
There were no minor children at the time of divorc e and , accordingly , T.C.A. 36-5- 101(d)(1)(F) is not a relevant factor in this case.
W ith respect to T.C.A. 36-5-101(d)(1)(G), we note that the Trial Court decr eed that Mr

. Hopkins be awarded as his separate pro p erty an Edw ard Jones Account containing $18,000.00 representing f

unds remaining from the settlement of a worker' s compensation claim related to the ba cki njury suffer

ed by Mr. Hopkins in 1999. The Court did not specific ally designa te any other propert y awarded to either party

as that party' s separate property , although the Court referred to the KI A a utomobile acquired by Ms. Hopkins shortly before separation, and awarded to her, as "the wife's KIA". The va

lue of the KIA is approxima tely $14,000.0 0. Mr. Hop

kins was a

dditionall y awarded funds con

tained in two individ

ual savin gs acc ounts in his name which contained a total of $1,676.29 according to filed statemen ts. Mr. Hopkins was also awarded vehicles in his possession consisting of an encumbered Bronco valued by Ms. Hopkins at $2,500.00, an une ncumbered

pick-up truck valued by

Ms. Hopkin s at $8,500 .00, a dum p truck which Mr. H opkins tes tifies belongs to h is mother and a motorcyc le which Mr. Hopkins testifi es belong s to his brother. The Trial Court made no finding as to the ownership of these latter two vehicles. With respect to T.C.A. 36-5-101(d)(1)(H), as set forth in the Trial Court's final decree and amendment

thereto, each party

was awarded the personal proper ty in his or her possession except for a hay elevato r which w as in Mr. H opkins'posse ssion an d was awarded to Ms. Hopkins. Each party was al so awar ded on e-half of the other 's reti rement /pens ion b enefit s. Alt hough the Trial Court assigned no specific value to the parties' pension/retireme nt benefits Ms. Hopkins testified that she had accumulated approximately $2,400 .00 of suc h benefits at the time of divorce and that Mr. Hopki ns had bee n developing his pension plan for approximately ten year s. Finally, the Court ordered that the $82,000.00 realized from the pre-divorce sale of the Parties' residence be used to pay "all of debts of the pa

rties with balances as of June 18, 2000, including the wife's KI A." After pay ment of a ll these de

bts the ba lance r emaining was divided equally

betwee n the par ties.
As to T.C.A. 36-5-101(d)(1)(I), there was little evidence presented reg arding the standard of living established by the par ties during the marriage. Ms. Hopkins testified that she now lives in a small rented house with no closet space; however, we find no evidence as to the characteristics of the marital residenceby which we mig ht compare it to her

current residence. Ms. Hopkins testified-7-

that she no longer has a barn for he r horse as she did when she was married, although she still has pasture land.
With regards to T.C.A.36-5-101(d)(1)( J), we find that, while the marriage was supp orte d financi ally

by M r. Hopkin s, Ms. Hopk

ins made equivalen

t contribu tion to th e mar riage by

taking care of the home and raising the parties' two c hildren. Ther e is n o evid ence th at eit her par ty's contribution to the marriage exceeded that of the other

. With respect to T.C.A.36-5-101(d)(1)(K), althoug h the divorce

was awa rded to Ms

. Hopkins the record does not support a finding that Mr. Hopki ns' fau lt in th is marria ge wassufficie

nt to influenc e our det

erminati on of spou sal suppor t. After caref ul analy sis of the ci

rcumstan ces in this

case we find that M s. Hopkinsis economic ally

disadvan taged. There isa

preponderance of evidence that Ms. Hopkins is in need of some alimony which Mr. Hopkins has the ability to pay . At the sa

me time, w e do not ag

ree tha t in futuro alimony

is approp riate in this case and it is our determination that the evidence preponderates agains tthe implicit finding of the Trial Court that rehabilitation of Ms. Hopkins is not feasible. She has been employe d in a secure job for over a y ear, she is able to earn

gro ss wa ges in exc ess of $2,000.00 per month

and she receives additional annual compensation of $6,665.38 in the form of paid benefits. Neither Ms. Hopkins' age nor state of health convince us that

she will no t be able

to enjoy her current position of employ ment for many more

years should she c

hoose to do so. In view of our findings we reverse the Tria l Court's award o f ali mo ny in futuro and award Ms. Hopkins rehabilitative alimony in the amount of $600.00 per month for f our year s. Suc h an awar

d is in keeping with the purpose of rehabilitative a

limony as rece ntly describ ed by

the Tennessee Sup

reme Court in Robertson v. Robertson , 76 S.W.3d 337 (Tenn. 2002) at page 340-341: ...[R]ehab il itative alimony may assist the disadvantaged spouse in obtaining further education or training. (citations omitted). "Rehabilitative alimony serves to support an econ omi cally dependent spouse 'through a limited period of reeducation or retraining following divor ce, thereby c

reating incentive and opportuni ty for that spous e to beco me self-supporting." I t may also provide temporary

income to

support the disadva

ntaged spouse du

ring the post -div orce economic adjustment. (citations omitted)
The next issue raised in this appeal is whether the Trial Court erred in ordering that all debts of the part ies incur red as of June 18, 200 0, be paid

from the p

roceed s from th e sale o f the marital residence.
The record shows that the marital residence w as sold pre-divorceon September 16, 2000, and the proceeds realized were placed in an interest bearing escrow ac count pending further order of the Court r

egard ing thei r distrib ution. The T rial Court ordered that these funds, which totaled $82,000.0 0 at the tim

e of tria l, be used to pay "all the debts of the parties with balances as of June-8-

18, 2000, including

the wife 's KI

A". The Court also

ordere d that the se funds b e used to pay court costs and that any remaining funds

be split be

tween the parties.
Mr. Hopkins asserts that, before the divorce, then existing c redit card debt was consolidated witha $20,000.00 home loan and all of this consolidated debt had been paid when the mar ital residence was sold in September, 2000. Mr. Hopkins contends that the credit card debt since that time did not benefit him and that Ms.Hopkins "failed to demonstrate in the proof any benefit which the Husband had received from said credit cards during the period of the pa rties' separation following the consolidation of the marital debt which was paid off by the home loan." Mr. Hopkins' references Ms. Hopkins' testimony that the cr edit cards were used b y her to hel p an adult

daught er with expen ses, to purcha se a mattr ess which she posse sses and t

o pay for her KIA automo bile. Mr

. Hopkins argues that each pa rty should be r

esponsible for his or her own debts, with Ms. Hopkins paying the credit card debt that she has incurred. Mr. Hopkins contends that the assets for which the credit card debts were incurred went to Ms. Hopkins and the debts should follow those assets .
Mr. Hopkins relies upon the case of Dellinger v. Dellinger , 958 S.W.2d 778 (Tenn. Ct. App. 1997) in support of his argument regarding prop er division of debt. In Dellinger we found that credit card de bts were incurred by

the wife while the parties were separated and that the husband ha d notbenefittedfrom them. Noting that, as a result of the trial court's division of property and award of al im on y in solido and division of property, the wife had suff icient re sourcesto pay

her own d

ebt, we determined that the credit card debts should be allocated to he r. At page 782 we recog

nized the following factor s to be con sidered

in apport ioning ma

rital deb t: (1) which party

incurre d the debt

and the r eason fo r the deb t; (2) which party

benefitted from the loan; and (3) which party

is better able to a ssume the

debt.

First of all we notethe following language f rom a response Ms. Hopkins filed on September 14, 2001, to Mr. Hopkins' motion to alter or amend the Trial Court's final decr ee:
[W]ife avers the Court did not require the husband to share in payment of any

debt after the date of the parties' separa tion an d th e record so reflects. As such the argument that wife's credit card debt incurr ed after separa tion didn' t benefit husband is irrelevant. Any credit card purchases made af ter separation by

wife are wife's respo nsib ilit y pursuan t to t he Cou rt's ru ling. We agree with the se statem ents and, accord

ingly , it is our de

terminat ion that a rgumen ts presented by e ither pa rty with reg ard to wh

y de bts incurred after June 18, 2000, should or should not be paid a re irre levant.-9-

At trial Ms. Hopkins su

bmitted an

itemized lis t of the pa

rties'debts due

at the time

of their separation and the balances due are approximately equal to the amounts shown on a list of distributions to be paid from the $82,000. 00 held in escrow which was filed with the apparent approval of

both parties' attorney s on July 9, 2001. We agree with the Tr ial Court's ruling that

these debts should be divided equally be tween the parties and we do not find that the evidence preponderates agains t a finding that eac h of the de

bts was ei ther inc urred jo intly

or that Mr. Hopkins benefitted from the loan represented.
Based upon the above referenced list filed by the parties on July 9, 2001, the total debt to be paid equals $28,437.4 8. Ms Hopkins testifi ed as follows reg arding the debt t o Master Card MBNA which co mposes $3, 197.26 of the total: Q. Did [Mr. Hopkins] benefit from the use of the Master Card? A. Yes, he did. Q. How would you say

he benefitted from the Master Card? A. Well, when he was there, I talked to him about that before I g ot it. What we didwas a cheaper interest rate a nd got that card and paid off a ca rd we had before and we had a Citi Bank, and that was an acc umulation of debt we had. Q. Buy ing wha t and doing

what with

it? A. There were lots of things. There were clothes, there was money that we had given to my da

ughter for her colleg e expense, household expense.
Ms. Hopkins a

lso testif ied that th

e debt to Wa shington

Mutual F inance, which is listed at $391.00, was incurred for the purchase of a

mattress following Mr. Hopkins' back surg ery " [A]fter he had back surgery

we made sure that we got a re al good mattress and we went out and got it." As to the KIA a

utomobil e purchased prior to the parties' sepa ration and upon which there was an outstanding debt of $1 4,022.47, it is our determination that Mr. Hopkins benefits from Ms. Hopkins possession of this car because her job as mail carr ier requires that

she have her own v ehicle

and her current employment in that position is the p rima ry factor in our determination that rehabilitative, rather than in futuro, alimony is appropriate in this case.
Alth ough the parties have submitted no evidence as to wha t th e remaining listed debts are attributa ble to, the evidence d

oes not pr eponder ate against our presumption that, as debts incurred during t he marr iage a nd prior t o separa tion, thes e debts be

nefitted both part ies.
Fi na ll y, it is evident from our analysis of the pa rties earning capacities that Mr. Hopk ins ' ability to assume

debt exce eds that o f Ms. Hopk ins.
Based upon the record before us, we are compelled to conclude that the Trial Court did not err in its allocations of debt in this case.-10-

The last issue we address is whether Ms. Hopkins unlawfully disposed of marital a ssets by selling one of two horses in her possession after the parties sepa rated. Ms. Hopkins asserts that she sold the ho

rse in Apr

il, prior t o the filin g of the

divorce and that M

r. Hopkin s did not obj ect.
T.C.A. 36-4-106(d) provides that, upon the filing of a petition for divorce on grounds other than irreconcilable differences, both pa rties are enjoined from disposing of marital property without the consent of the other party until the entry of a

final decree. The record show s that in December of 2000, Ms. Hopkins amendedher orig inal divor ce compl aint, to a

llege g rounds of inapprop riate marital conduct and, therefore , she was subject to the injunction against disposition of marital property until the Court entered its final decree in June of 2001.
Alth ough Ms. Hopkin s assertsin her br ief th at she s old the hor se in Apri l beforeshe filed her complaint for divorce in June of 2000 , this assertion is contradicted by the record. While the year that the h orse wa s sold is not speci fically stated in the record, it is our finding from a review of Ms. Hopkins' testimony that she received two horses when she se parate d from Mr. Hopkins in June of 2000, and that she sold one of these horses thereafte r in April of 2001: Q. Now, y

ou rece ived your horse s, is that r ight?
A. I have one. Q. Yeah, but originally, wa y back whe

n you had how many

horses, before y ou all..
A. Two. Q. And what happened to the stud horse?
A. I sold him in April to give my daug hter a down p ayment fo r her ho me so s he'd have a home.
Ad di ti on al ly, a settlement proposal introduced in evidence which Ms. Hopkins testified was written by her and w

hich is dated May 21, 2000, and, therefore, after the time which she alleges she sold one of the two horses, provides that she receive the horses . It is our conclusion that, contrary to Ms. Hopkins assertio n, she did not sell the

horse in q

uestion in April of 2 000, but ra

ther in Ap ril of 2001 - after the divorce was filed. Furthermore, we find no evidence that this sale was effected withMr. Hopkins' consent. Whenquestioned in this regard, although Ms. Hopkins states that Mr. Hopkins knew of the sale, she offers no evidence that he consented: Q. All rig ht. So y ou've g ot a fifteen y ear old a nd no othe

rs? A. Right.-11-

Q. Did y ou sell one

of them?
A. Yes. Q. Did [Mr. Hopkins] kn ow that y ou sold it?
A. Yes. I sold the bl ack stallion back in April a nd gave the money

to my daughter for down pay

ment.. Q. Okay. And w as [Mr. Hopkins] in agreement to that or do y ou know?
A. Well, he wouldn't give her the money, she aske d him and he said h e coul dn't so I w ent and so ld it.
It is our determination that Ms. Hopkins did violate the st at ut or y injunction agains t disposition of marital assets and, accordingly , Mr. Hopkins is allowed a credit again st

his support obligation to the extent of $1,750.00 which amount represents Mr. Hopkins' one half of the proceeds that Ms. Hopkins testified she was paid for the horse.
Fi na ll y, we note that Scarlett Allen Beaty , counsel fo r the App ellant, Jam es Fran klin Hopkins, h as filed a

motion see

king to be relieved of her represe ntation because she is leaving the State. Her motio n, which i s not suppor ted by an affi davit, doe s not explain why this would

justify her request. We accordingly , in light of the circumstances of the case a t this time, deny the motion.
For the foregoing reasons the judg ment of the Trial Court is affirmed in part and modified in part as set

forth herein. This case is remanded for such fu rt he r p ro ce ed in gs , a s m ay b e n ec es sa ry, and for collection of costs below. Costs of appeal are adjudged equally

to Sherry Mae H opkins and to Ja me s F ra nk li n H op ki ns an d h is su re ty.

_________________________________________ HOUSTON M. GODDARD, PRESIDI NG JUDGE