### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE August 22, 2003 Session

SHERYLE A. HYDAS v. HERMAN LEE HYDAS

Direct Appeal from the Chancery Court for Ham ilton County No. 01-0150 Part I Hon. W. Frank Brown, III., Chancellor

FILED SEPTEMBER 18, 2003
No. E2002-02943-COA-R3-CV

I n this divorce action the Trial Court valued marital and non-marital property and divided marital propert y. H usband a ppealed the Tria l Court’s d

ecision o n these is sues. We a ffirm.

Tenn. R. App.P.3 Appeal as of Right ; Judgme nt of the Cha

ncery Court Affirm

ed.

H ERSCHEL P ICK

ENS F RANKS , J. delivered the opini on of the c ourt, in which C HARLES D. S USANO , J R ., J., and D. M ICHAEL S WINEY , J., joined.
Grace E. Daniell, Chatta

nooga, Tenness ee, for

Appellan t. Don W. Poole, Chattanooga, Tennessee, for Appellee.

OPINION

In this divorc e acti on, the hu sb and on appeal, takes issue with the Trial Court’s valuation of

th e p ar ti es ’ p er so na l p ro pe rt y an d t he cl as si fi ca ti on of de fe nd an t’ s s ep ar at e p ro pe rt y, as we ll as th e e qu it ab le di st ri bu ti on of ma ri ta l p ro pe rt y. After an evi denti ary hearin g, the Trial Court found that the wife had purchased re alty before the marriage, and that the wife claimed she should

be give n a gre ater sha

re of the equity in the current marital residence, which wasjointly titled, because she had inve sted the proceeds from-2-

her pre-ma rital home . The Cour

t f ou nd that her pre-marital home was purchased in 1986 f or $52,500.00 and that a

down pay

ment of $1 2,500.00 w as paid by the wife . The par

ties marr ied in 1988, and the hu sband moved into the home with the wife who had made eighteen pay ments till that time.
The Court fu rther found that in 1988 the parties purchased two vaca nt lots, and i n 1993 they sold the home owned by the wife for $64,500.0 0 and built

a new hom

e on those two lots. This home was jointly titled, and the parties stipulated that it was wor th $230,000.00. The Court determinedthe home to be mari t al property a nd valued the furnishings in the home at $8,000.00.
The Court then

discusse d the statu

tory factor s which ha

d to be considered in making an equitable distribution, and observed that it was important for each party to rec e ive their own retirement

benefits. The Court then awarded each party

his or her own retirement

assets, finding they were of similar

value, and that no offset or transfer was r equired. The Court then divided the other assets (except th

e marita l resid ence) such that the husband received $271,000.00, and the wife received $116,000. As to the marital residence, the Court said that it would take $155,906.00 of the equity to be awarded to the wife to make the parties “even”. Thus, the Court deducted this amount from the v alue of the hous e, and found that there was $74,093.00 left for division. The Court declinedto order the house sold, because the w ife wanted to keep the home and the husband had another place to live. He noted that

the husba

nd had inherited a

house with

his sister, and that

his one- half interest in that house had a minimum value of $56,115.00. The Court then awarde d th e house to the wife and ordered her to pay $25,000.00 to the husband for his equitable i nt erest, as found by the Court.
Su bs eq ue nt ly, the husband filed a Motion to A mend, sta ti ng that the Court had omitted the value of the wife’ s annuity fund of $110,000.00 in its calculations. The Court a greed that it had made an error by omitting this asset, and that to allow wife to keep this part of her retirem ent, the overall distribution would have to be changed. Then the Court awarded husband $44,300.00 more equity in the home, fo r a total equity award of

$69,300.00. The Court explained that this was equitable because the wife put more into the marital reside nce than the husband, and the husband h ad anothe

r home, a nd gre ate r separate assets. Ultimately, the marital estate was distributed such that wife received a total award of approximately

$390,000.00, and the husband an award of $340,000.00, a roughly 53/47% split in the marital estate.
On appeal, the husba

nd argues the Tr

ial Court e

rred in valuation of certain items of marital pr op er ty, viz., household furnishings and a four-wh eeler, and the va

luation of the 1⁄2 inte

rest in the home he had inherited from his mother.

As to the furnishi ngs, the wife valued those at over $10,000.00 on her Asset and Liab ility Statemen

t, but testi fied tha

t she had g one ba ck and found checks where t he furn ishi ngs were purchased, and that those checks totaled approximately $4,700.00, plus the cost of a couch and two chairs for which s he was unable t o locate invoices. The husband valued the furnishings at $20,000.00, and testified that he found invoices where they bought furniture for the new home, and-3-

those invoices totaled$9,000.00. He said there were differe nt items that he could not find invoices for, and maintained the $20,000.00 valuation.

The Court valu ed the fu

rnishing s at $8,000 .00, which comes to this C ourt wit

h a presumption of correctness. See Tenn. R. App. P. 13(d). Also see, Kinard v. Kinard, 986 S.W.2d 220-231 (Tenn. Ct. App. 1998). The evidence d o es not preponderate against the Tria l Court’s finding on this issue.

Si mi la rl y, husband disputes the value the Trial Court placed on a four-wheeler which husband purchas ed from h is father. He testified that his father purchased the four-whee ler in 1987 when it was new for $2,100.00. He testified that he bought the four- wheeler f rom his father for $2,000.00 in 1999, and he felt it was now worth $400.00 . The wife va lued the four-wheeler at $2,000.00 on her Asset and Liability Statement, and the Trial Court found the fo ur-wheeler was worth $1,000.00. The evidencedoes n ot pre ponde rate aga inst this findi ng, Tenn. R. App. P. 13(d).
The husband argues that the Trial Court’s valuation of his 1⁄2 interest in a hou se h e inheritedfrom his mother was in error. He valued his interest at $10,000.00 on h is Asse t and Liab ility Statement, and the wife valued the asset at $90,000.00 on hers. During the trial, the Court askedif the parties would ag ree tha t the cur rent app raisal on file in the

tax assesso

r’s offi ce would be the value, divided in half, and the parties indicated their ag reement. The judge stated that he would check the appraisal during his lunch hou r , and no one objected. The Court reported after lunch that the records showed an appraised value of $112,300.00, and a copy was entered

as Exhibit 21, with the parties’ agreement.

The Trial Court

then valu ed husba

nd’s 1⁄2 inte

rest in this property at $56,115.00, but the husband complains the Trial Court erred in basing the evalua tion on the tax appraisal. It is clear the husband’s attorney

consented to the action of the Trial Court, and basically stipulated thatthis would be the value. Thus, this issue is without merit, in that no objection was raised at the trial court level and is deemed waived.

Fi na ll y, the husband complains about the overall property distribution, arg uing that it is no t equitable. The Trial Court properly considered all of the statutory factors, including the factor dealing with each party ’s contribution to the marital estate. Pursuant to Tenn. Code Ann. §36- 4- 121(c), the trial court is required to consider any contributions by the parties, as we l l as othe r factors including

their employment, ag e, ability to replace assets, value of

separate estates of each, etc. It is often said that

an equitable division does not have to be equal. Barnhill v . Barnhill , 826 S.W.2d 443 (Tenn. Ct. App. 1991). F urther, “Appella

te review o f a divisio n of marit al prope rty is de novo upon t

he reco rd with a p

resumptio n of the c orrect ness of the trial court' s finding s of fac t. Trial courts ha

ve wide d

iscretio n in the ma

nner in which mar

ital prope rty is div ide d, and the

ir decisions are accorded gr

eat weight on appeal.” Dellinger v. Dellinger , 958 S.W.2d 778, 780 (Tenn. Ct. App. 1997). On the eviden ce before us, the Trial Court’s division of marital property was equitabl e, and we

affirm h is Judgmen

t.-4- The cost o f the app eal is ass essed to Herman L ee Hy das.

_________________________ H ERSCHEL P ICKENS F RANKS , J.