### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE Februar y 11, 2 003 Session SHIRLEY JEAN KLEIN v . DAVID FRANCIS KLEIN Appeal from the Circuit Court for Greene County No. 01-CV-175 Ben K. Wexler, Judge FILED APRIL 14, 2003 No. E2002-00867-COA-R3-CV

In this divorce proceeding the wife, Shirley Jean Klein, appeals the judgment of t he Trial Court which held that Ms. K

lein was n ot entitle d to alimony . We affir m. Tenn. R. App.P. 3 Appe al as of Right ; Judgme nt of the Cir

cuit Cour

t Affirme d; Cause Remanded H OUSTON M. G ODDARD , P.J., delivered the opinion of the court, in which H ERSCHEL P. F RANKS and D. M ICHAEL S WINEY , JJ., joined. Jerrold L . Becke

r, Knoxville , Tennes see, for the Appellant, Shir

ley Jean Klein Kenneth N. Baile y, G reenev ille, Ten nessee, for the A

ppellee , David F

rancis K lein

MEMORAN

DUM OP

INION

This is a marriage of over 50 y ears, during which the parties accumulated as marita l proper ty over one and one-half million dollars. This was divided by the Court in accor

dance w ith the marital dissolution agree

ment, re sulting in

assets of approximately $792,000 going to the wife and $746,000 to the husband. As this is a non -jury

case, ou r revie w is de novo upon the rec ord of the pr oceedi ngs below; however, that record comes to us with apresumpt ion that the

trial cou rt's fa ctual findings ar

e correct. Tenn.R.A pp.P. 13(d). We must honor that presumption unless we find that the evidence preponderates against the trial court's factua l findings. Union Carbide Corp. v. Huddleston , 854 S.W.2d 87, 91 (Tenn. 19 93). The trial court's conclusions of law, however , are not accorded the same deference. Campbell v. Florida Steel Corp. , 919 S.W.2d 26, 35 (Tenn. 1996).-2-

While an assau

lt is made by M s. Klein up on the val idity of the ma rital diss olution ag

reemen t, which made no reference to alimony , it appears the Trial Court, while holding the agreem ent was va li d, di d m ak e a n i nd ep en de nt de te rm in at io n r el at iv e t o a li mo ny:

The par ties in this divorce

have a h ome and some real estate, along w ith a considerable amount of

cash assets. This case was mediated, but each time the case comes to court the wife claims themediation was unfair to her as the husband got more ac tual cas h being

paid to him t

han is being paid

to the wife. The court has held that the wife agreed to the mediation, at the time a nd the court feels the mediation was fair

to the par ties. The parties withheld se

ven cash assets that they didnot tell the

mediator about and

the cour t divided th

ese seve n ass ets 50% to eachparty. Althoug

h the mediation has been settled and the seven cash ass e ts have been settled, the wife continues to bring up the me diation as being unfair. It appear s that the c ashflow to the husband isabout $3,600.00 per month, and the cash

flow to the

wife is a

bout $ 1,716.00 per month, but the real d ifferences in the cash flow between the spouses is that the husba nd is in fac t drawing more ac tual cas h from his a nnuities a nd the wif

e is no t drawing any payment from her annuities, his annuities are decreasing and her an nuities have been increa sing al thou gh her inte rest rate is not quite as much as his interest rate.

The court is o f the opin

ion the pa

rties a re now re ceiving about equal amount of cash flow per month from the marital nest egg owne d by the parties a nd the wi fe is not entitled to any alimony payments as her

annuities are increasing and hi s annu itie s are de creasi ng. Another issue in thi s case is who is entitled to the divorce, the divorce evidence agai nst the husband is at best very we ak, and the divorce evidence agains tthe wife is even weaker than the evidenc e against the husband. The court is of the opinion that the parties be declared divorced pursuant to T.C.A. Section 36-4-129. The court is of the opinion that the marital property of the parties be divided according to the mediation, and the seven ca sh items that the parties d id not mention

to the med

iator be divided e qually

betwee n the par ties. Ms. Klein received approximately $46,000 more in assets that Mr. Klein. While it is true Mr. Klein’s monthly

income stream is , as found by the Tr ial Court, $3600, compared to his wife’s $1700, this was because of his withdrawing ce rtain funds from

his 401k, which would be exhausted in three ye ars, a s well as withdrawing certain income from annuities whic h Ms. Klein could have, but declined to do.-3-

Our reading

of th e record, including the memorandum opinion of the Trial Judge a nd the briefs of the parties, convinces us that the evidence does not preponde rate against the

Trial Court’s findi ngs of fact

and his ap

plication of law to t

he fact s found. We c onclude t hat this is an appro

priate case fo r affir mance under Rule 1 0 of this Cou rt. For the foregoing reasons the judg ment of the Trial Court

is affirmed and the cause remande d for such fur ther pro ceeding s, if any , as m ay be nece ss ary and c ollection of costs below. Costs of appeal are adjudged ag ainst Ms. Klein.

_________________________________________ HOUSTON M. GODDARD, PRESIDI NG JUDGE