# FILED September 30, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSO N

___________________________________________ PHILI P RENE JULIAN, ) ) Appellan t, ) Shelby Circuit No. 1519 27-1 ) v. ) Appeal 02A01-9709-CV-00229 ) BEVERLY ANN JULIAN, ) ) Appellee. )

APPEAL FROM THE CIRCUIT COURT OF SHELBY COUNTY

AT MEMPHIS, TENNESSEE

THE HONORABLE J OHN R. McCARR OLL, JR., JUDGE

For the A ppellant: For the Appellee: Stuart Brian Breakstone James D. Pugh, Memphis, Tennessee Memphis, Tennessee

AFFIRMED AS MODIFIED

HERSCH EL P. FRAN KS, J.
CONCUR: W. FRANK CRAW FORD, P.J., W. S. ALAN E . HIGHERS , J.2 OPINI ON

In this divor

ce action, t

he husband has appealed, raising is sues about the value and division of the marital property,

as well as an award of att orney’s fees

to the wife. The hus band first arg ues that the v aluations by the Trial Judge are in error, and t

hat the divis ion of the marit al estate i s inequitabl

e. It is clear from the Tri al Judge’s co mments a nd orders th at he intend ed to divide the marital esta te two-thirds to the wife and one-third to the husband, and according to the Trial Judge’s valuations, the wife was awarded $102,417.88,and the husband $51,208.93. The equity in t he house, determined by

the Court to be $23,174. 33 was awarded to the wife. Evidenc e on the value of the equi ty differs. However, the Trial Judge assessed the c

redibili ty of the witnesses,and the evidence does not preponderate agai

nst the valuat

ion established by the Trial Judge. T.R .A.P. Rule 13(d). Th e value of the wife ’s retirement s avings with her employ er was establis

hed at $81,789.00, with $1,294.05 treated as se

parate propert

y. The wife began contr ibuting to t

his plan before t

he parties’ marriage, and the evide nce does not prep onderate against the Trial Jud ge’s determina tion. T.R.A .P. Rule 13 (d). The ev idence sho wed that th e wife ha d a profit sharing plan wit

h her employer,with a total va lue of $20,403.00. The Court found $6,491.00 to be separ

ate property . However, the evidence i ndicates the plan was established d uring the m arriage. W e conclud e that the total am ount in the p rofit sharing plan at th e time o f the div orce w as mari tal prop erty.

The Court allocated $21,947.40 to the hu sband, which the C ourt described as American Couri er Income. The record shows the parties for med that3

company in order for

the husband to have a permanent job, and while the

wife had worked for that company, as well as the husband, she testifi

ed that over the y

ears she had only drawn $900.00 out of the company. She fur ther test ified that t

he company had been created out of he r funds by sel

ling Federal Expres s stock, and tha t she had invested a tot

al of $12,000.00 in t

he company. The record fur ther shows that t

he company’s assets or accounts had been sold or transferred. Under the circumstances, we find no basis to disturb the Trial Judge’s allocat

ion and evaluation of American Courier. However, si

nce the stock was not ment ioned by the Trial Judge, we belie ve it appro priate to vest all o f the sto ck ow ned by th e parties in the hu sband
.

Tennessee Code Annotated §36-4-121 gi ves a trial

court wide discre

tion to adjust and adj udicate the ri ghts and inter

ests of the part

ies in all jointly-owned proper ty. Pennington v. Penningt on , 592 S.W.2d 576 (Tenn. App. 1979). The test for the pro priety of th e divisio n is wh ether the division is equita ble, not e qual. Ward v. Ward, 937 S .W.2d 931 (T enn. A pp. 199 6).

We find the division m ade by the T rial Judge is eq uitable und er the facts of this case. The wife owned a home when the parties marri ed. According to her testimony , the husband brought into the marri age an old rusted- out Datsun automobile. She was gai nfully employ

ed at the ti

me of the marriage and has continued in tha

t employment,and in an effort t o find employment for

the husband, sold sto cks fro m her s tock sh aring p lan with her em ployer to c reate a b usiness for him
. Subsequently,

she sold her home and put $18, 000.00 of the $21,000. 00 equity re alized from its sale

as a downpayment for the pr esent home, which she purcha sed in her
name. However , in 1 993 the home wa s ref inanc ed, a

t whic h tim e the husba nd’s n ame was placed on the tit

le. The other si

zeable item in t

he marital est

ate, other t

han the house, was the wife’s r

etirement pl an with her employer , which was generated throug h her ef forts an d emp loyment.4 The action of the Tri al Judge in reduci ng the marital

interest in the Federal Express profi

t sharing pla

n, as noted, i s against the preponderance of the evidence . Accordin gly, the amoun t of $6,491 .00 design ated as sepa rate property, w ill be included as mari

tal propert

y, and divided in accordance with t he allocation ordered by the Trial

Judge. In reachi

ng his allocat

ion, the Tria

l Judge ordered the

wife to pay the husband $19,888.40. Following the same formula as to the amount added t o the marital proper

ty, t he husband is enti

tled to be pai d an additional$2,163.77, or onethird of the val

ue of the Federal Expres s profit shar ing plan which was not incl uded as marital proper

ty, for a total to be

paid by the wife t

o the husband in cash i

n the amount of $22,04 2.17. The Trial Cou rt’s judgme nt in dividing the marital pro perty is affirmed, as modifi

ed. Finally , the husband contends the Trial Court

erred in requi

ring the husband to pay the wif e a portion o f her attorne y’s fees. It is noted th at a hotly contested is sue in the Trial Court was the custody

of the parties ’ child, and a substantial

amount of the wife’s legal expenses were incur red on this account . The record establ

ishes that t

he wife had incurred at

torney’s fees and expenses in an amount exceeding $12,000. 00, and it furt her appears that

she does not have the
necess ary liquid a ssets to d efray all o f her leg al expe nses.

Courts in this

State have long fol

lowed the policy

of upholding the award of attor ney’s fee s by the T rial Cou rt, unless the aw ard resu lts in an “ injustice ”. In Connors v. Connors , 594 S.W.2d 672 (Tenn. 1980),the Supreme Court said:

We adhere to the long est ablished rule of Holston National Bank v. Wood , 125 Tenn. 6, 14 0 S.W.31 (191 1), that this Court will not interfere with the allowance of at torney’s fees by the t

rial court unless we can see that som e injustic e has be en perp etrated. . . . We find no b asis to disturb the Trial Court’s aw ard of a portion of the w ife’s attorney’s fees ag ainst the husba nd. See T.C.A . §36-5 -103(c ).5 We affirm the judgment of the Tr ial Court, as

modified, and remand for entry of judgm ent with the cost of app eal adjudg ed two-th irds against th e appellant, and one-third agai

nst the appell

ee.

__________________________

Herschel P. Franks, J.
CONCUR:

___________________________ W. Frank Crawford, P.J.

___________________________ Alan E. Highers, J.