### IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON September 18, 2000 S ession
RHONDA GALE PHILLIPS MOFFITT v. PAUL SIDNEY MOFFITT
A Direct Appeal from the Chancery Court for Henderson County No. 10438 The Honorable Joe C. Morris, Chancellor

No. W1999-02403-COA-R3-CV - Filed November 13, 2000

In this divorce case, Husband appeals the trial court’s final decree as it deals with the division of marital property, the division of marital debt (including cr editing Wife for m

onies spent prior t

o the sale of the marital home), and child support arrearages. We affirm.

Tenn.R.App.P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed

W. F RANK C RAWFORD , P.J., W.S., delivered the opinion of the court, in which A LAN E. H IGHERS , J. and H OLLY K IRBY L ILLARD , J., joined. Lloyd R. Tatum, Hend

erson, For Appella

nt, Paul Sidney Moff

itt Joe H. Byrd, Jr., Ja

ckson, For Appelle

e, Rhonda Gale Phil

lips Moffitt
OPINION

Paul Sidney Moffitt, def endant/appellan

t (“Husband”), a

nd Rhonda Gale Mof

fitt, plaintiff/appellee (“Wife”), were married on September 28, 1972, in Florence, Alabama. There are two children of the marriage, Brandon and Phillip. Brandon was a minor at the time that Wife filed
a petition for divorce, but neither child remained a minor at the time of trial. Wife filed a complaint for an ab solute divorce against Husband on April 11, 1996, in the Chancery Court of Hen derso n County, Tennessee, alleging irreconcilable differences. Husband filed an answer and countercla

im
on June 20, 1996. A trial was held on August 27, 1999. At th e time of trial, Wif

e received a gr

oss monthly income from her employer, Volvo Penta, of approximately $3,583.33, and Husban d
rece ived a gross monthly income from his employer, National Industrial Services, Inc., o f approximately

$2,773.33 (not including overtime which he receives from the same sou rce). On October 1, 1999, the trial court entered a final decree of divorce granting an absolute divorce

to the parties pursuant to T.C.A. § 36-4-129 (b) and dividing marital property. It is from this decree that Husband appeals, raising four issues as stated in his brief:-2- I. Wh e ther the trial court erred in not deducting child support arrearages from plaintiff’s award of marital property?

II. Whether the tria

l court erred in

reimbursing plaintiff $6,167.33 for mortgage payments she made pe ndi ng the divorce and in not crediting defendant with $25,000.00 of mortgage payme nts he made pending the divorce?

II I. Whether the evidence preponderates against the trial court’s division of proper

ty and debt?

IV. Whether the tria

l court erred in

awarding appellee attorney fees?

Since this case

was tried by the trial court sitting without a jury, we review the case de novo upon the record with a

presumption of cor

rectness of the findings of fact by the trial court. Unle ss the evidence preponderates against the findings, we must affirm, absent error of law. Tenn. R. App. P. 13(d).

We begin by addressi

ng issue I, whethe

r the trial court e

rred in not deducting child

support ar r earages from Wife’s award of marital property. Husband contends that Wife paid no child support to him in violation of a pendente lite order of February 20, 1997, requiring her to pay to him $409.00 per month until the parties minor child reached majority in December of 1997. Husband contends that Wife disregarded the order by paying child support dire

ctly to the minor child. Husband avers that at the time of trial, Wife was in arrears in child support in the amount of $2,863.00. On the other hand, Wife contends that for t h e first twelve months after she and Husband separated, she gave money directly to the parities’ children pursuant to her agreement with Husband.

Wife contends that Husband failed to comply with Local Rules of Practice for the Chancery Court for Henderson County 34 and 41 requiring the filing of pretrial information. Wife asserts that due to such failure, neither the trial court nor Wife’s counsel we re a ware that proof would be required as to the

issue of child suppo

rt pentente

lite arrearages. I

n addition, Wife a

sserts that an order regarding payment of child support was adjudicated October 7, 1997, but not entered due to
a failure on the part of Husband’s then counsel to file the order. Wife cont end s that according t

o such order, for the first twelve months after Husband and Wife separated, she gave money directly to the parties’ chil

dren pu rsuant to an agreement between the parties. Wife further contends that the trial court heard the testimony of both the Wife and Husband regarding child support and chose not to find validity in Husband’s contention that he was owed child support in arrears.

The final decree is

silent on this issue. T

he record conta

ins a temporary child support

order dated February 20, 1997 , requiring Wife to pay $409.00 per

month to Husband for

child support. The order directs that payment shall be made one-half on the first of each month and one-half on the 15 th of each month, and shall continue until Brandon reaches the age of eighteen or until this matter is finalized, which ever occurs first. However, there is evidenc e in the record that an agreement1 At the March 11, 1999 heari ng Husband stat

ed that he was

unable to pay t

he monthly mortgage on the marital resid ence. Af ter the hear ing, the trial co urt entered an orde r directing H usband to remove himself f rom the parties’ residence

and that t

he residenc

e be placed f

or sale. The order was si lent on chi

ld sup port pendent e lite arrearag es. -3- existed between Husband and Wife regar di ng child support to be paid directly to the minor child. Wife testified a

t trial:
Q: Isn’t it true you an d he had an agree

d order? You paid

him child support during the time you left for the minor child - - directly to the child?

A: To Brandon. I bought him clothes and everything At the March 11, 1999 hearing Wife testified:

Q: Okay. The first tw

elve months - - You

spoke about child s

upport. Mr. Byrd asked you some questions about tha t. The f irst year after you and Mr. Moffitt separated did you give your boys any money?

A: Yes, I did.
Q: Did you?

A: Yes, I did.
Q: Did you give Mr. Mof fitt any money for

them?

A: I give the money dir ectly to my boys.
Q: Okay.

A: That was agreed

upon between me a

nd Mr. Moffitt.

Wife also testified at trial that she continued to pay child support to the youngest son, Brandon, past his eighteenth birthday in December of 1997, until his graduation from high school in May of 1998.

At trial, Husband states that the house payment was eight months in arrears at the time of the March 11, 1999 hearing 1 , because Wife had not paid child support, cau sing him to be “so dee

p in debt where I couldn’t pay these payments.” However, this is not the explanation that Husband provided for his inability to pay the mortgage on the marital home in his response to Wife’s second-4-

petition for contempt and for possession of residence pending sale of the same filed on March 11, 1999. In that resp

onse, Husband sta

tes in pertinent pa

rt:

Now having fully responded to the Petition filed he rei n against him the Respondent would state that the reason h e has been unable to pay the January, February and March 1999 mortgage payments is that because he is a carpenter, hi s inco me is solely dependent upon the weather.

When asked about an ag reement made by h

is then lawyer an

d subsequent c

onsent or der allowing Wife to pa

y child support dire

ctly to the parties

son, Husband state

s: Q: ...So now at some point, you reach a c onsen t order. You didn’thave to have a hearing on i t . You reached a consent order where she

agreed to pay ch

id support; did she no

t?

A: Two Weeks before her first court date, apparently her lawyer, Ms. Kibbe, didn’t

want her to come into court for not paying child support so she agreed. And weeks before this court date, we got a check.
Q: And that order, unlike all the orders that you misunderstood that we had to come in here and try, was entere d by consent between those two

lawyers; was it no

t?

A: (No response.) Q: You don’t know?

A: (No response.)

The sile nce in the final de cree with rega

rd to the alleged c

hild support arre

arages c oul d indicate that the trial cour

t did not find Husban

d’s testimony cred

itable regarding the agreement and consent order allowing Wife to pay child support directly to the minor child of Husband.

When the resolution of th e issues in

a case depends upon the
cr e dibilityof witnesses, the t rial judge who has

the opportunity to observe the witnesses in their manner and demeanor while testifying is in a far better pos

ition than this Court to

decide those issue

s. See Whitaker v. Whitaker , 957 S.W.2d 834, 837 ( Tenn. Ct. App.1997);
se e also M

cCaleb v. Saturn Corp., 910 S.W.2d 412, 415 (Tenn.1995). The weight, faith , and credit to b e given to any2 Wife filed a submission of pretrial infor mation pursuan t to local rules 3 4 and 4 1 in which the contested issues of this cause were listed. Such list did not include child support arrearages. Husband fail ed to fil e a submissi

on of pretria l inf

ormation and therefore st ated no list of contested iss ues. Because Husband did not submit pret rial informati

on and according to the record di d not raise chil

d support as a contest

ed issue in any other pl eading or pretrial hearing, Wife’s counse l and the trial court were unawar

e the proof woul

d be required as to the issue of child support pendente lite arrrearages. -5-

witness's testimony lies in the first instance with the trier of fact, and the credibility accorded will be g ive n great weight by t he appellate court. See In r e Estate of Walton v. Y oung , 950 S.W.2d 956, 959 (Tenn.1997); McCaleb , 910 S.W.2d at 415. The trial court will not be reversed unless there is found in the record clear, concrete, and convinc ing evidence other than the oral testimony of witnesses that contradicts

the trial court's f

indings. See Hawkins v. Ell is , No. 02A01-9708-C H-00 203, 1998 WL 704521, at * 4 (Tenn. Ct. App. Oct.12, 1998) (citing Galbreath v. Harris , 811 S.W.2d 88, 91 (Tenn. Ct. App.1990)). Brownyard v. Brownyard, No. 02A01-9803-CH-00063, 1999 WL 418352, *7 (Tenn. Ct. App. Jun e 22, 1999). Because Husband did not submit this issue as a contested issue 2 and because he failed to produce creditable evidence that there existed an arrearage of pendente lite child support, we find that the evidence does not preponderates against the trial court in not

finding that Wife was in arrears in her child support p

ayments. Theref

ore, we affirm t

he trial court in a

wardin g no child support arrearages to Husband.

Husband’s second issue is whe ther the trial cou

rt erred in reimb

ur sing Wife $6,167.33 for her mortgage payments made pending the divorce and in not crediting Husband with

$25,000.00 for mortgage payments he made pending the divorce . We find this issue is without merit. The trial court found that the total equity of the value of the home was $112,825.56 and awarded $67,721.04 to Husband and $45,104.52 to Wife. The trial court then deducted $11,308.26 from Husband’s share of the equity and credited Wife with the same. In addition, the trial court deducted $6,167.33 from Husband’s share for mortgage payments made to

G.E. Capital Mortgage Services by Wife during Husband’s occupancy of the marital residenc

e and credite

d Wife for th

e same. Other deductions from Husban d’s share of equity were: $1,382.22 for expenditures by Wife for cleaning, maintena nce , and improvements necessary for the sale of the marital re

sidence; $1,133.2 1 for replaceme nt costs of fixtures removed from marital residence by Husband in violation of March 11, 1999 order; and $1,858.28 for Wife’s portion of attorney fees attributable to Husband’s failure to pay mortgage for hearings held August 7, 1997, October 2, 1997, and March 11, 1999. The total amount deducted from Husband’s share

of the equity

in the marital home

and credited to W

ife is $22, 049.30. T

his results in $34,363.48 awarded to Husband for his share of the equi ty in the marital home and $78,462.08 awarded to Wife for her share of equity in the marital home.-6-

Pursuant to the trial court’s order dated September 4, 1997, Husband is required to pay the mortgage payments on the mar ital residence f

or the month of Augu

st of 1997 and for

each month ther eafter, “pending the further orders of this Court, and/or an agreement by the part ies to th e contrary.” At that time, Husba n d occupied the marital residence. In Husband’s response to the Second Petition For Contempt For Possession Of Residence Pe nding Sale Of Same, etc., filed March 11, 1999, he admits that he agreed to make the mortgage payments on the residential home. In the same response, in an affirmative defense and request for relief, Husband himself re

quests that the trial court make an equitable division of the parties’ property and that Wife be given credit for the payments as re

quired to bring the

mortgage curre

nt.

In her pretrial inform ati on filed with the tr ial court, Wife su

bmitted that she had

paid $6,167.33 to G.E. Capital Mortgage Services during Husband’s occupancy in the marital residence. The evidence does not preponderate against the trial court’s aw

ard of credit in th

at amount to

Wife in the division of marital property. In addition, we find nothing in the record to indicate that Wife received any credit for mortgage payments made while she occupied the house. Therefore, we find that the evidence does not preponderate agains t the tr ial court’s award with regard to mortgage payments on the marital home.

Husband next cont

ends that the trial

court erred in th

e distribution of ma

rita l asse ts and marital debt. Husband con tends that the ma

rital residence sold for $126,600.00, leaving net proceeds of $62,511.80 which should be divided equitably between the part ies with each party receiving approximately

$31,250.00. In addition, Husban d cont ests the valuation of a number of items of marital property by Wife, and asserts that the trial court erred in using her inflated va lues in valuating and dividing the marital property. Finally, Husband asserts that an award of $24,000.00 from Wife’s father’s estate was compensation to Wife for her services rende red to her parents during the course of parties’ marriage. Husband contends that the trial court erred in classifying the award
as Wife’s separate property, and that pursuant to T.C.A. § 36-4-121 the award shou ld have been classified as marital property and divided equitably between the parties. Dividing a marital estate

must begin

withthe classificati

on of the property

as either separ

ate or marital property. See McClellan v. McClellan , 873 S.W.2d 350, 351 (Tenn.Ct. App.1993). The definitions of "separate pr operty" and "marit

al property" i

n T.C. A.§ 36-4-121(b) (1996) provide the guidance in classifying the property. After the property

has been classif

ied, the trial judge

is to divide the marital property in anequitable manner. A division is not to be considered ineq uitable simply because each

party did not receive a share of every piece of marital property, see Brown v. Brown, 913 S.W.2d 163, 168 (Tenn. Ct. App.199 4), or because i

t is not precisely e

qual. See Cohen
v. Cohen , 937 S.W.2d 823, 832 (Tenn.1996); and El lis v. Ellis, 748 S.W.2d 424, 427 (Tenn.1988). Dividing a marital e

state is not a

mechanical procedure but rather is guided by a consideration of th e factors in T.C.A.§ 36-4-121(c). Trial judges have wide latitude in fashioning an equitabl e division of marital property, see Fisher v. Fisher, 648 S.W.2d 244, 246 ( Tenn.1983); Brown v. Brown, 913 S.W.2d at 168, and appellate courts accord great weight to a trial judge's d ivision of marital property. See Wilson v. Moore , 92 9 S.W.2d 367, 372 (Te nn. Ct. App.1996); Edwards v. Edwards, 501 S.W.2d 283, 288 ( Tenn. Ct. App.1973). Conseq uently, we ordina

rily defer to the trial-7-

judge's decision regarding the div ision of property u

nless it is inconsiste

nt with the factors in T.C.A. § 36-4-121 (c) or is not supported by a preponderance of the evidence. See Kinard v. Kinard, 986 S. W.2d 220, 230- 31 (Tenn. Ct. App. 1998); Brown v. Brown, 913 S.W.2d at 168; Mahaffe y v . Mahaffey , 775 S.W.2d 618, 622 (Tenn. Ct. App. 1989); and Hardin v. Hardin, 689 S.W.2d 152, 154 (Tenn. Ct. App.1983).

The valuation of a

marital asset is a

fact driven inquiry. Kinard v. Kinard, 986 S.W.2d 220, 231 (Tenn. Ct. App. 1998). The value of mar ital assets are to

be determined by c

onsidering all relevant evidence, and each party bears the burden of bringing forth competent evidence. Wallace
v. Wallace , 733 S.W.2d 102, 107 (Tenn. Ct. App.1987). If there is conflicting evidence of value, the trial judge may assign a value within the range of values supported by evidence. Ray v. Ray, 91 6 S.W. 2d 469, 470 (Tenn. Ct. App.1995). On appeal, the trial judge's factual findings are presumed correct unless t he evidence pre

ponderates aga

inst them. Jahn v. Jahn , 932 S.W.2d 939, 941 (Tenn. Ct. App.1996).

T.C.A. § 36-4-121 defines separa te property as inc

luding “[p]roper

ty acquired by a s

pouse at any time by gift, bequest, devise or descent.” T.C.A. § 36-4-121 (b) (2) (D) (1996).

The trial court

adopted the valuations supplied by Wife in her pretrial submissions. Husband made no such submission, however, he challenges values given by Wife on a number of

items and asserts that Wife’s valuations were based on items when new, without allowance for depreciation. At trial Wife testified that she did take into account age and depreciation when valuating property.

We believe this to be a credibility issue, and therefore defer to the judgment of the trial court, who had “the opportun

ity to observe the w

itnesses in

their manner and

demeanor while

testifying” and who “is in a far better position than this Court to decide those issues.” See Brownyard, supra. The values assignedby the trial court are within the range supported be the evidence. Therefore we find that evidence does not preponderate against the trial court’s valuation of property.

With regard t o the trial c ourt’s classific ation of the awar

d received from

Wife’s father’ s estate as separate property belonging to Wife, the evidence does not preponderate against the trial court’s finding that W if

e’s award from her father’s estate was not payment for services. Acc ordingly, we affirm the trial court with regard to the valuation of marital assets and the division thereof. Husband makes no specific contention concerning the assignment of marital debt. The trial court found that the mar

ital d ebt consisted $4,535.91 owed to Household Bank Credit Card and assigned $2,885.91 of that amount to Husband, and the rem ainin g $1,650.00 to Wife . In so assigning the marital debt, the trial court stated that the disposition of the debt was “in conjunction withthe benefit derived

by the parties respectively for the purchases made in accordance with the incurrence of same.” Marital debt should be equitably dividedbetween the par ties. Cutsinger v. Cutsinger , 917 S.W.2d 238, 243 (Tenn. Ct. A pp.1995); Mondelli v. Howard, 780 S. W.2d 769, 773 (Tenn. Ct. App.1989). "When

practicable, th

e debts should follo

w the assets they p

urchased." Id.-8-

The evidence does not preponde rat e against the tria

l court’s division of

marital debt. Consequently, we a

ffirm the trial co

urt’s assignment of

marital debt.

Husband’s final issue addresses whether the trial court erred in awarding Wife $2,500.00 in attorney’s fees at trial and $1,858.28 for attorneys fe es for the March 11, 1999 proceeding. Wife asserts that the trial court

did not err in awarding Wife a portion of her attorneys fee and requests an award of her at

torneys fees on a

ppeal.

An award of attorney fees constitutes alimony in solido

. Herrera v. Herrera, 944 S.W.2d at 390; Cranford v. Cranford , 772 S.W.2d 48, 52 (Tenn. Ct. App.1989). The decision whether or not to award attorneys fees is within the sound discretion of the trial court and "will not be disturbed upon appeal unless

the evidence pr

eponderates ag

ainst such a decis

ion." Kincaid v. Kincaid, 912 S.W.2d 140, 144 (Te

nn. Ct. App. 1995); see Rule 13(d) Tenn. R.App. P. As with any ali mon y award, in deciding wh eth er to award attorneys fees as alimony in solido , the trial court sh ould consider the relevant factors enumerated in T.C.A. § 36-5-101(d). A spouse with adequate prope

rty and income is not entitled to an award of alimony to

pay attorneys fees and expenses. Umstot v. Umstot 968 S.W.2d 819, 824 ( Tenn. Ct. App. 1997); and Duncan v. Duncan , 686 S.W.2d 568, 573 (Tenn. Ct. App. 1984).

These awards are app

ropriate, howev

er, only when the s

pouse seeking them lacks sufficient funds to pay his or her own l ega l expenses, Houghland v. Hou ghl and, 844 S.W.2d 619, 623 (Tenn. Ct. App. 1992); Ingram v. Ingram, 721 S.W.2d at 264, or would be required to deplete his or her resour

ces in order to pay these

expenses. Harwell v. Harwell, 612 S.W.2d 182, 185 (Tenn. Ct. App 1980).

Brown v. Brown, 913 S.W.2d 163, 170. (Tenn. Ct. App. 199 4). Thus, where t

h e wif e has demonstrated that she is financially unable to procure counsel, and where the husband has the ability to pay, the cour

t may p roperly order the husband to pay the wife's attorneys fees. Harwell v. Harwell, 612 S.W.2d 182, 1 85 (Tenn . Ct. App.1980); Palmer v. Palmer, 562 S.W.2d 833, 839 (Tenn. Ct. App.197

7); Ligon v. Ligon, 556 S.W.2d 763, 768 (Tenn. Ct. App.1977). In awarding Wife a portion of her attorney’s fee, the trial court stated in the final decre e:
8. The Court furthermore finds that the Wife incurred in c osts and attorney’s fees, the following sums, to-da te: $ 2,442,60 paid to Ms. Katheryn S. Kibbe, Attorney at Law; $2,000.00 paid to M r. Joe H. Byr d, Jr., Attorney at L aw; and $300.00 pa

id to Weatherly Re

a l Estate Appraisals. The Balance of Mr. Byrd’s attorney’s fees, (excluding appearances on the 7 th day of August, 1997 , to compel the Defendant’ s payment of mortgage payments which accrued during hi s occupancy of the parties’ residence, on the 2 nd day of October, 1997,-9- to compel the Defendant’s compliance w ith the prior orders of t his Court and the and on the 11 ht day of March, 1999, in

the order to present a third Petition for Conte mpt, wh ich total $1,858.28), are

in the tota l sum of $5244.50. The above referenced total sum of attorney fees and costs incurred by the Wife, (excluding attorney fees e xpended in

connection with the above described contempt proceedings), is in the sum of $9,987.10, of which the Husband is ordered to pay $2,2500.00 as alimony is solido

. The costs of this cause shall be assessed against the Husband. Considering this and the record as a whole, we do not fe el that the trial cour t abused its discretion in awarding Wife a portion of her attorney’s f

ees. Each party

shall be responsib

le for their attorney fees on

appeal. Accordingly, the judgment of the trial court is affirmed. Co sts of the appeal are assessed against the appellant, Paul Sidney Moffitt, and his surety.

__________________________________________ W. FRA NK CRAWFORD, PRESIDING JUDGE, W.S

.