FILED

May 21, 1999

Cecil Crowson, Jr.

Appellate C ourt

Clerk

 IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

RUBYE WYRICK CRESWELL, ) C/A NO. 03A01-9804-CH-00151

)

Plaintiff-Appellee, ) KNOX CHANCERY

)

v. ) HON. H. DAVID CATE,

) CHANCELLOR

JOHN E. CRESWELL, )

) AFFIRMED AND

Defendant-Appellant. ) REMANDED

JOHN P. VALLIANT, JR., and PAUL HENSLEY, Knoxville, for Plaintiff-Appellee.

SARAH Y. SHEPPEARD and JASON H. LONG, SHEPPEARD & SWANSON,

P.L.C., Knoxville, for Defendant-Appellant.

O P I N I O N

Franks, J.

In this divorce action both parties appeal the distribution of the marital

property ordered by the Trial Judge, raising issues as to the classification, valuation

and equitable distribution of the properties owned by the parties at the time of the

divorce.

The parties were married on April 4, 1959, and no children were born of

the ma rriage, although the husband had three daughters from a prior ma rriage. 
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In making the property division, the Trial Court said that he was taking

into account the property which the parties said they brought into the marriage as

separate property, as well as other relevant factors in Tennessee Code Annotated

Section 36-4-121(c). The Court adopted the wife’s values on the real property,

because they were corroborated by an appraiser, and also adopted her values on the

vehicles, because they were substantiated by the NAPA car value guide. The court

placed no value on two tax shelter partnerships, Capital Housing Partners and Strauss

Greenberg, because as long as the property is not sold it would not have any negative

tax liability. The court also calculated the present value of the wife’s life estate in an

irrevocable trust to be approximately $160,000.00, but conceded that this is not an

exact calculation due to potential variables. The Court’s distribution of the marital

estate, by the Court’s evaluation, awarded $868,545.82 to the wife and $1,318,376.50

to the husband. Of the total marital estate of $2,004,922.32, the wife received 34% of

the marital assets, while the husband received 66%. Taking into consideration the

award of alimony in solido in the amount of $200,000.00, the wife would receive 44%

of the marital estate, which the Trial Court stated is what he intended in making the

property division equitable. 

The case was tried before the Court without a jury, and our standard of

review is de novo upon the record of the Trial Court, accompanied by a presumption

of correctness of its findings, unless the evidence preponderates otherwise. T.R.A.P.

Rule 13(d). Bookout v. Bookout, 954 S.W.2d 730, 731 (Tenn. App. 1997). Trial

courts are given a great deal of discretion in division of marital property, and the

divisions made are entitled to great we ight in the appellate courts. See Ford v. Ford,

952 S.W.2d 824, 826 (Tenn. App. 1996). 

First, the husband argued that the Trial Court’s award of alimony in

solido lacks any legal basis. While the Trial Court designated the award as alimony in
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solido, it is clear that the court intended to utilize the award as a vehicle to arrive at an

equitable distribution of the marital estate. The Trial Court listed the cash amount as a

part of the division of the marital estate, and stated in his Order on All Pending

Motions that the “court believes that its distribution of the marital estate was fair and

equitable. The plaintiff received approximately 44% of the marital estate and the

defendant received approximately 56% of the marital estate.” This result can only be

reached by including the cash award to the wife in the division of the marital estate,

which resulted in a division of marital property which the Court found to be equitable. 

We find the husband’s contention to be without merit.

 The husband argues that he began Cre swell & Company with

$50,000.00 worth of assets that he owned prior to the marriage, and that the proceeds

from the sale of the company, and the property purchased with those proceeds,

constitute separate property, which the Trial Court treated as marital property. The

evidence does not preponderate against the Trial Judge’s findings. T.R.A.P. Rule

13(d). In this connection, the Trial Judge adopted the wife’s value of the irrevocable

trust, which included the $50,000.00 which the husband claimed was separate

property. Thus, the Trial Court concluded the property was a marital asset. In an

Order, the Trial Judge noted that the husband’s testimony on when he acquired the

stock “was not very positive”. Though the husband testified he owned the stock prior

to the marriage, the wife testified that he did not own any stock when they married. 

The wife further produced the husband’s prior Divorce Decree, entered less than two

months before the parties were married which disposed of most of the ma rital property

in the prior marriage, but made no mention of any stock ownership. The credibility of

the witnesses is resolved by the Trial Court, and we uphold the Trial Judge’s finding

on this issue.

The evidence shows that the parties held substantial investments in their
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own names, and the husband insists that the parties kept their assets separate, and

intended to keep their property separate. The determination of separate property is a

question of fact, and we conclude the evidence does not preponderate against the Trial

Court’s determination that all of such property was marital. This finding is buttressed

by the fact that the husband did not claim these assets as separate prope rty in his

proposed property division.

Next, the husband a rgues the Trial Court erred in valuing the irrevocable

trust at $160,000.00. The value of a marital asset is a question of fact, and a Trial

Court’s decision on the value of a marital asset is given great we ight on appeal. 

Wallace v. Wallace, 733 S.W.2d 102, 107 (Tenn. App. 1987). We conclude the

evidence does not preponde rate aga inst the Trial Court’s determination of the value. 

Neither party presented evidence of the present value, the wife’s life expectancy, or

the proper interest rate that should be used in calculating the value. The husband

argues in his brief that the trust should be treated as an annuity. Using tables found in

Tennessee Code Annotated, the husband determined the wife’s life expectancy to be

20.31 years. Using Annuity Table IX, the husband then calculated the present value

of an annuity producing $23,400.00 per year for 20 years at 6% to be $268,395.66,

which he claims is the proper present value of the trust. 

The husband, however, used the wrong table in his calculation. Table

IX calcula tes the value of an annuity for a certa in number of years. The trust is

contingent upon the wife’s life, so it should not be trea ted as an annuity for a specific

number of years. In the Explanation of Use to the Annuity and Valuation Tables, the

Code states, “To find the present value of an annuity based on the life of a person

from the following tables multiply the yearly payment by the number found opposite

the present age of the person upon whose life the annuity is based in the column for

the applicable percent.” T.C.A. Tables p. 1035 (1995). Using this method and the
5

various tables following, the present value of the trust at 6% ranges from $150,064.20

to $208,049.40, depending upon the table used. Due to lack of specific evidence of

the value at trial, the present value of the trust according to the annuity tables, and the

presumption of correctness of the Trial Judge’s determination, it cannot be said the

evidence prepondera tes against the valuation of the trust at $160,000.00. 

The husband also claims that the Trial Court erroneously valued two tax

shelters, Capital Housing Partners and Strauss Greenberg. The Trial Court recognized

the husband’s assertion that these asse ts have a negative value because of tax liability

if sold, but stated, “as long as the interests are not sold they do not result in any tax

liability” and assigned no value to the tax shelters and awarded them to the husband. 

The husband insists that if the properties were sold the tax liability would be

significant. A certified public accountant, testified that the two entities have a

negative equity because of the tax consequences, and he recommends that people do

not sell such entities.

While the entities may have tax a liability, if sold, there was no evidence

that they hold any other value. They may be subject to income tax if they earn money,

but there was no evidence pre sented on prec isely how that should e ffect their value. 

Since there is no negative impact if the entities are not sold, and no evidence of how

any possible income would e ffect their value , the evidenc e does not preponderate

against the Tria l Court’s determination. 

The wife argues that the Trial Judge erred in failing to award her an

equitable division of the corpus of two trusts in the marital estate. In this connection

marital property must be valued “as of a date as near as reasonably possible to the

final divorce hearing date.” T.C.A. §36-4-121(b)(1)(A) (1996). One trust was an

irrevocable trust for the benefit of Rubye Creswell, which contained over $400,000.00

in assets, but which the Trial Court va lued at $160,000.00 because it was only worth
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its income stream to the parties. The other trust was an revocable trust for the benefit

of the husband, which the Court valued at $631,324.37. This was the value of the

assets in the trust. The Court concluded that it was worth the amount of the assets

instead of the income stream, because the husband could terminate the trust at any

time and receive the assets at their value.

Both trusts were funded with marital assets, and both trusts were created

before the divorce petition was filed. The evidence does not preponderate against the

Trial Judge’s valuation. The wife may not have liked the terms of the trust, but she

did stop its execution, and the value of the marital asset was reduced by the creation of

the trust so that at the time of trial the Court properly assigned the assets a present

value and utilized those values in making distribution of the marital estate.

The wife insists the husband improperly dissipated the marital estate by

making gifts in violation of the Order of the Court in the amount of $85,300.00. 

While the evidence shows that the husband made $86,000.00 in gifts to his children

and grandchildren after the Order was issued, which prevented him from disposing of

marital asse ts, these gifts did not render the property division of the marital estate

inequitable on this record.

These gifts did come from marital property that had not yet been valued

and divided by the Court, but in his finding of fact the Trial Judge stated, “Over the

course of the marriage the parties have made gifts to their family members. The

plaintiff gifting approxima tely $92,500.00 and the defendant gifting approximately

$115,000.00 to his daughters, in addition to the stock. He also made gifts to the

grandchildren which now total, including the income, $183,000.00.” The wife

advised the Court in her testimony that she wanted the Court to take into account the

gifts given by each party in the distribution of the marital property. Since she did not

insist upon an amount of dissipation, and since the Trial Court did find and consider
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that both pa rties gave substantial gifts to the family in a rriving at the property

division, we find no error. 

Finally, the husband a rgues that the parties had disposed of their assets

through a contract before the divorce, and the Court should enforce that contract. He

asserts that the parties had an oral agreement in which the husband would create an

irrevocable trust for the wife’s benefit, in exchange for her signing over her interest in

other property to him alone. The Trial Court, after hearing this testimony, refused to

enforce this alleged contract, and held “there was insufficient mutual assent to form

the contract the defendant seeks to enforce.” The Court then pointed out that the wife

understood that the trust assets would be hers and would not pass to his children, and

that she would not have to convey any property, while the husband understood just the

opposite. Accordingly, we hold there was no mee ting of the minds. 

Due to the conflicting testimony of the parties as to whether a contract

existed, and if it did, as to what the terms of the contract were, the Trial Court

appropriately determined tha t the evidence did not establish an enforceable contrac t. 

See Sweeten v. Trade Envelopes, Inc., 938 S.W.2d 383 (Tenn. 1996).

While both parties insist that the division of marital property was not

equitable, the evidence does not preponderate against the division made by the Trial

Court. In viewing the evidence and the factors set forth in T.C.A. §36-4-121(c), the

factors a re either irrelevant or tend to favor a nea r equal division of the marital estate. 

While an equal division of the marital estate could have been appropriate in this case,

we hold the division reached by the Trial Court is an equitable distribution.

Accordingly, we a ffirm the judgment of the Trial Court and remand with

the cost of the appeal assessed one-half to each party.
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__________________________

Herschel P. Franks, J.

CONCUR:

___________________________

Houston M. Goddard, P.J.

___________________________

William H. Inman, Sr.J.