### 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, ) CHANCELL OR JOHN E. CRESWELL, ) ) AFFI RMED AND Defend ant-App ellant. ) REMANDED

JOHN P. VALLIA NT, JR., and PAUL HENSLEY , Knoxville, for Plaintiff- Appellee.
SARAH Y. S HEPPEARD a nd JAS ON H. LONG, SHEPPEARD & S WANSON, P.L.C., K noxville, fo r Defen dant-Ap pellant.

O P I N I

O N Franks, J.

In this divor

ce action both par

ties appeal t

he distribut

ion of the marit

al property ordered by t

he Trial Judge, r

aising issues as to the classificat ion, valuati

on and equitable di stribution of the properti es owned by the parties at the time of t

he divorce. The parties were marri ed on April 4, 1959, and no chi ldren were born of the ma rriage, a lthoug h the hu sband had thr ee dau ghters fr om a p rior ma rriage.2 In making the property di vision, the

Trial Court sai

d that he was taking into account t

he property which the par ties said t

hey brought into t

he marriage as separate proper

ty, as well as

other relevant

factors in Tennes see Code Annotated Section 36-4-121(c) . The Court adopted the wif e’s values on the r

eal property, because they were corrobor ated by an appraiser

, and also adopted he

r values on the vehicles, because they w ere substantiated by the N APA car v alue guide. The cou rt placed no value on two tax shelter partnerships, Capital Housing Partners and Strauss Greenberg, because as l ong as the property i s not sold it would not have any negative tax liabil ity. The court

also calculat

ed the present val

ue of the wife’s l

ife estat e in an irrevocable t

rust to be approxi

mately $160,000.00, but conceded that thi s is not an exact calculat

ion due to potential variables . The Court’s dist ribution of t

he marital estate, by t

he Court’s evaluat

ion, awarded $868,545. 82 to the wife and $1,318, 376.50 to the husband. Of t

he total marit

al estate of

$2,004,922.32, t

he wife received 34% of the marital as sets, while t he husband received 66%. Taking i nto considerat

ion the award of alimony in soli do in the amount of $200,000. 00, the wife would rece ive 44% of the marital

estate, which t

he Trial Court st

ated is what he int

ended in making the proper ty divisio n equita ble.

The case was tried befor e the Court without a

jury, and our st

andard of review is de novo upon the record of t he Trial Court,accompanied by a presumption of correc tness of its fi ndings, u nless t he evidence

prepondera

tes othe rwise. T. R.A.P. Rule 1 3(d). Bookout v. Bookout , 954 S.W.2d 730, 731 (Tenn. App. 1997).Trial courts are give

n a great deal of di scretion i n division of mari

tal propert

y, and the division s mad e are en titled to g reat we ight in th e appe llate cou rts. See Ford v. Ford, 952 S .W.2d 824, 82 6 (Ten n. App . 1996)
.

First, the husb and argu ed that the T rial Court’s aw ard of alim ony in solido lacks any legal b asis. While the Trial Co urt designa ted the aw ard as alim ony in3

solido, it is clear t hat the court i

ntended to util

ize the award as a vehi

cle to arri

ve at an equitable distribution of t he marital estate. The Trial Court list ed the cash amount as a part of the di

vision of the mari

tal estat e, and stated i

n his Order on All Pending Motions that the “c ourt believes that its distribut ion of the marit

al estate was f

air and equitable. The plaintif

f received approxi

mately 44% of the marital e state and the defendant recei

ved approximately 56% of the marit al estate. ” This result

can only be reached by includi

ng the cash award to the wif e in the division of the marit al estate, which resulted in a divis ion of m arital pro perty w hich the Court f ound to be equ itable. We find the husba nd’s conte ntion to be w ithout me rit.

The hus band arg ues that he b egan Cre swell & C ompan y with $50,000.00 worth of ass ets that he owned prior to the marriage , and that the proceeds from the sale of the company, and the property purchased with those proceeds, constitut e separate proper

ty, which the Tri al Court treat ed as marital prope

rty. The evidence does not p reponde rate against th e Trial Judg e’s findings. T .R.A.P. R ule 13(d). In this c onnection , the Trial Jud ge adopte d the wife’s value of the irrevocable trust, which in cluded the $50,000 .00 which the husba nd claime d was sep arate property. Thus,the Trial Court concluded the propert

y was a marital asset . In an Order, the Trial

Judge noted that t

he husband’s test

imony on when he acquired the stock “was not very posi tive”. Though the hus

band testif

ied he owned the stock pri or to the m arriage , the wif e testified that he d id not o wn an y stock when they m arried. The wife f

urt her p rodu ced t

he hu sband’s p

rior Div orce

Decre e, enter ed le ss t han t wo months before the p arties were m arried wh ich dispose d of mo st of the ma rital property in the prior

marriage, but made no mention of any stock ownership. The cr edibilit y of the witnesses i s resolved by the Trial Court, and we uphold t he Trial Judge’s f

inding on this issue
. The evid ence sho ws that the p arties held sub stantial investm ents in their4

own names, and the husband insists that t he parties kept

their asset

s separate,and intended to keep their property separate. The determination of separate propert y is a question of fact

, and we conclude the evidence does not preponderat e against the Trial Court’s determinat

ion that all

of such property was marit al. This fi

nding is buttr

essed by the fact th at the husba nd did no t claim these assets as sep arate prope rty in his proposed property di

vision. Next, the h usband a rgues the T rial Court erre d in valuing the irrevoca ble trust at $160, 000.00. The value of a mari tal asset is a question of

fact, and a Tri al Court’ s decisio n on the value o f a mar ital asset is given g reat we ight on appea l. Wallace v. Wallace , 733 S.W.2d 102, 107 (Tenn. App. 1987).We conclude the eviden ce doe s not pre ponde rate aga inst the T rial Cou rt’s deter minati on of th e value
. Neither party pr

esented evidence of

the present val

ue, the wife’s

life expecta

ncy, or the proper int

erest rate that should be used in calculat ing the value. The husband argues in h is brief that the tru st should be treated as an annuity. U sing tables fo und in Tennessee Code Annotated, the husband determined the wif e’s life expe

ctancy to be 20.31 years. Using Annuit y Table IX, the husband t hen calculated t

he present value of an annuity produci

ng $23,400.00 per year f or 20 years at 6% to be $268,395. 66, which he claim s is the pr oper pr esent v alue of th e trust.

The hus band, how ever, used th e wrong table in his calc ulation. Tab le IX calcula tes the value of an ann uity for a certa in numb er of years. T he trust is contingen t upon the w ife’s life, so it shou ld not be trea ted as an an nuity for a sp ecific number of years. In t

he Explanation of Use to t he Annuity and Valuation Table s, the Code states, “To fi

nd the present val

ue of an annuity based on t he life of a per

son from the fo llowing tab les multiply the yearly p aymen t by the num ber found opposite the present age of

the person upon whose lif e the annuity i s based in the col umn for the applicabl

e percent.” T.C. A. Tables p. 1035 (1995). Using this method and the5

various tables following, t he present value of

the trust a

t 6% ranges from $150,064.20 to $208,049.40, depe

nding upon the table

used. Due to lack of specific evide nce of the value at t

rial, t he present value of

the trust a

ccording to the annui

ty tables,and the presumption of corre

ctness of the Trial Judge’s deter mination, it

cannot be said the eviden ce prep ondera tes again st the va luation o f the trus t at $160 ,000.00
.

The husband also claims t hat the Trial

Court erroneously val

ued two tax shelters,Capital Housing Part ners and Strauss Greenbe rg. The Trial Court

recognized the husba nd’s assertion that these asse ts have a ne gative valu e because of tax liability if sold, but

stated, “as

long as the int

erests are not

sold they do not re sult in any t ax liability” and ass igned n o value to the tax shelters and aw arded th em to th e husb and. The husband insists

that if t he properties were

sold the tax l

iabilit y would be significa nt. A certif

ied public account

ant, test ified that the two entiti

es have a negative equit

y because of the tax c onsequences, and he recommends that people do not sell such entities.

While the entit

ies may have tax a lia

bility,if sold, t

here was no evidence that they hold a

ny other value. They may be subj ect to income tax i f they earn money, but ther e was n o evide nce pre sented on prec isely ho w that s hould e ffect the ir value. Since there is

no negative impact i

f the entit

ies are not sol

d, and no evidence of how any possib le income would e ffect their value , the evidenc e does no t prepond erate agains t the Tria l Court ’s determ ination.

The wife argues that t

he Trial Judge err

ed in faili

ng to award her an equitable division of the c orpus of two trust s in the marita

l estate. In this connect ion marital propert

y must be valued “as of a dat e as near as reasona

bly possible t

o the final divor

ce hearing date. ” T.C.A. §36-4-121(b)( 1)(A) (1996). One tr ust was an irrevocable t

rust for t he benefit of Rubye Creswell , which contained over $400,000.00 in assets, but w hich the T rial Court va lued at $16 0,000.00 b ecause it w as only w orth6

its income stream to th e parties. Th e other trust w as an revo cable trust for th e benefit of the husband, which t he Court valued at $631, 324.37. This was the val ue of the assets in the tru st. The Co urt conclud ed that it wa s worth the amoun t of the assets instead of t

he income stream, because t he husband could terminat e the trust

at any time and receive t

he assets at t

heir value. Both trusts were f

unded with marital as sets, and both t rusts were creat

ed before the divor

ce petition was filed. The evidence does not preponderat e against the Trial Judge’s val

uation. The wife may not have l iked the terms of t

he trust, but

she did stop its

execution, and t

he value of the marit

al asset was reduced by the creation of the trust s o that at the

time of tria

l the Court proper

ly assigned the

assets a prese

nt value and util

ized those values

in making distri

bution of the mari

tal estat e. The wife insists the husband improperl y dissipated t

he marital est

ate by makin g gifts in violatio n of the Order of the C ourt in th e amo unt of $ 85,300 .00. While the evidence shows that the husband made $86,000.00 in gi fts to his children and grandchildren af

ter the Order was is sued, which prevented hi m from disposing of marital asse ts, these gifts did n ot render the property d ivision of the m arital estate inequitable

on this record. These gifts did come from marital propert y that had not yet

been valued and divided by the Court, but in his f inding of fact

the Trial Judge stated, “Over t he course of the marriage the partie s have made gifts to t heir family members. The plaintiff gifting ap proxima tely $92,50 0.00 and th e defenda nt gifting app roximate ly $115,000.00 to his

daughters, i

n addition to t

he stock. He also made gif ts to the grandchildren w hich now total, including the income, $183 ,000.00.” The w ife advised the Court i

n her testi

mony that she wanted the Court t o take into account

the gifts given by e ach party in the di stribution of the marital property. Since she did not insist upon an amount of dissipation, and since the Tr ial Court did f

ind and consider7

that both pa rties gave su bstantial gifts to th e family in a rriving at the p roperty division , we find no erro r.

Finally, the h usband a rgues that the parties had d isposed of th eir assets thr ough a cont ract befo re t he divorc e, a

nd the Cour

t sh ould enfo rce t hat c ontr act . He asserts t hat the parti

es had an oral agreement i n which the husband would create an irrevocable trust for the w ife’s benefit, in e xchange for her signin g over he r interest in other prop erty to him alone. The Trial Cou rt, after hearing th is testimony , refused to enforce this alleged contract, and held “there was insufficient m utual assent to form the contract the defendan t seeks to enforce.” The C ourt then pointed out that the w ife understood that

the trust assets would be hers and would not pass to his chi

ldren, and that she would not have t o convey any property, whil e the husband understood j ust the oppos ite. Acc ording ly, we h old ther e was n o mee ting of th e mind s.

Due to the conflict

ing testi mony of the parties as

to whether a contrac

t existed, and if it did, as to what the term s of the contract were, the T rial Court approp riately d etermi ned tha t the evid ence d id not es tablish a n enfor ceable contrac t. See Sweeten v. Trade Envelopes , Inc. , 938 S.W.2d 3 83 (Tenn. 1996 ). While both parties

insist t hat the division of marital property was not equitable,the evidence does not preponderate agai

nst the divi sion made by the Trial Court. In viewing t

he evidence and the fac tors set f orth in T.C.A. §36-4- 121(c), the factors a re either irreleva nt or ten d to fav or a nea r equal d ivision o f the m arital esta te. While an equal divisi

on of the marital

estate could have

been appropriate i

n this case, we hold the division reached by the Trial Court is an equit

able distr ibution. Accord ingly, we a ffirm the jud gment o f the Trial C ourt and rem and with the cost of t

he appeal assessed one -half to each par ty.8 __________________________ Herschel P. Franks, J.
CONCUR:

___________________________ Houston M. Godd ard, P.J.

___________________________ William H. Inman, Sr.J.