# FILED July 31, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COURT OF APPEALS OF TENNESSEE WESTERN SECTION AT JACKSON

______________________________________________ ANDREA Y. JOHNSON, Plaintiff-Appellee, Shelby Circuit No. 127514 R.D. Vs. C.A. No. 02A01-9608-CH-00194 CLINISSON A. JOHNSON, Defend ant-App ellant.

__________________________________________________ __________________________ THE HONORABLE JOE C. MORRIS, CHANCELLOR

Sitting By Designation

Mimi Phillips; Phillips, Ho ward & Gr ubb of Mem

phis For Appellee A. C. Wha

rton, Jr. ; Wharto n & Whart on & Assoc iates of M emphis For Appellant

AFFIRMED Opinion fi led:

W. FRANK CRAWFORD,

PRESIDING J

UDGE, W.S.

CONCUR: ALAN E. HIGH

ERS, JUDGE DAVID R.FARMER,

JUDGE

Th is appeal involves a post-divorce petition. Defendant, Clinisson A. Joh nso n (Husband), appeals from the judgment of thet rial court ordering the immediate payment of2

Husband’s pens ion awar ded in the trial court’s prior distribution of the marital property and awarding attorney’s fees to plaintiff, Andrea Y. Johnson (Wife). The parties were divorced by final decree entered April 17, 1990, ending a mar riage of sixteen y ears. The divorce was gra nted to bot

h partie s on the gr

ounds of ir

reconc ilable differe nces. The parties entere d into a ma rital diss olution ag

reemen t, which was approved and incorpor ated into the fina l decre e by the tr

ial cour t. During the marriage, the parties owned a reside nce v alued at

$75,000.0 0, househ old furnishings worth approximately $2,000.00, and two cars with an undisclosed value. Pursuant to the ma rtial di ssolution agreement, Wife was entitled to purchase Husband’s e quity in the residence, and after consummation of the sale, Wife was to bec ome the sole owner of the residence. She was also responsible for both mortgages. Wife was awarded one of the automobiles and the household furnishings in the residence. Husband was awa rded his personal property in his separate residence and the othe r automobile. Husbandis employed by the Shelby County Government. It appears from the record that Husband’s monthly take home salary is $4,795.35. Wife’s net mont hly inc ome is $1,520.00. Wife has custody of the parties’ three minor childre n. The parties each filed multiple petitions for contempt against the other at various stages of th e divorc e proce edings. T he parti es appea

red bef ore the t rial cou rt numero us time s, bot h before and after the entry of the final decr ee of divorce. Finally, on June 26, 1995, Wife filed

a petition titled “Pet

iti on to Reduce Claim to Final Judgment for Breach of Contract.” In the petition, Wife alleges that Husband failed to pay her the one -half of h is pension that she was awarded pursuant to the mar

it al diss olution ag

reemen t. She cla

ims that she

is entitle d to $4,424.06 from Husband’s pe nsion and that she is owed interest on that amount at the rate of $1.21 per day. The marital dissolu

tion agreement sta

tes in per tinent pa rt: The Second Pa

rty (Husband) is the owner of a pension vested by way of his emp loyment with the City of Memphis and Shelby County Government. It

is agreed that the p arty of th

e first pa rty [sic] (Wife) is entitled to 1⁄2 the valueof this pension as of April 11, 1990 and that

said entitlement

shall be based upon the period1 The trial court heard arguments concer ning other petitions, as well as Wife’s June 26, 1995 petition. The only issues relevant to this appeal concern Husband’s pension and the award of attorney’s fees. 3

of marriag e of the p artie s May 5 , 1973 to Ap ril 10, 199 0, with said benefits being based only on t hos e that accrued during the termof the marriage. First Party waives and relinquishes any claim or rights o f any type to the other 1⁄2 of the Second Party’s interest in his pension.

After a hearing on January 26, 1996, 1 the trial court entered an order in favor of Wife. In its order, the trial court fo und, inter al ia , that Wife was entitled to $4,424.06 of Husband’s Shelby County Government Pension that was awarded originally in the marital dissolution agreement. The trial court also awarded interest in the amount of $1.21 per day. In the order, the trial court sta ted in per tinent pa rt: [T]he Court specifically

finds that the Plaintiff

became entitled t o receivethe portion of Defendant’s pension awarded to her at the time the Final Decreeof Divorce was entered, and, accordingly, that she is also

entitled t o intere st on the pri ncipal amount from and after A pril 17, 1990, the date on which the Final Decree of Divorce was en te red, as is more specifically set. The Court specific ally finds that simple interest on the principal amount has accrued at the rate of $1.21 a day, and that as of January 26, 1996 judgm ent has accrued in the amount of $2,493.12, for a total judgment of principal and interest of $6,917.18. The trial court also awarded attorney’s fees, incurred from Febr

uary 199 4 untilthe date of the hearing in the amount of $7,010.29, to Wife that she paid “to secure the Defendant’s complianc e with Orders of this Court.” Husband appeals the judgment of the trial court and presents two issues for

review: 1) whether the trial court erred by orde ring the immediate payment of Husban d’s pension benefits to Wife, and 2) whether the trial court erred in awarding attorney’s fees to Wife.

Since this case was tried by the court sitting without a jury, we review the case de novo upon the record with a presumption of correctness of the findings of fact by the trial court

.4

Unless the evidence preponderat es again st the findings, we must affirm, absent error of law. T.R.A.P. 13(d). In his first issue, Husband does not dispute that Wife is entitled to one-half of his pension pursuant to the marital dissolution agreement, and he concedes that pension benefits are marital property. See T.C.A. § 36-4-121(b)(1 )( B) (1996) ; Cohen v. Cohen , 937 S.W.2d 823, 830 (Tenn. 1996). However, Husband argues that Wife is not entitled to an immediate distribution of one-half of his pension be nefits. Fir st, Husba

nd argue s that Ten

nessee c ourts recognize two methods of valuing and distributing pensions and that the trial court in this case used the wrong method. In Cohen , the Ten nessee Su preme Cou

rt discuss ed the valuation and distribution of pension be

nefits: The diff

icultyin dividing

future b enefits i s aided by the use of elastic, equ ita ble approaches. Most courts use one of two techniqu es. The first approach, known as the pr esent ca sh value method, requires the t

rial c ourt to place a present value on the retirement

benefit as of the date of the final decree. To determine the present cash val ue, th e anticipated number of months the employee spouse wi ll collec t t he benefits (based on life expectancy) is multiplie d by the cu rrent re tirement benefit payable under the p l an. This gross benefit figure is then discounted to presen t va lue allowing for various factors such as mortality, interest, inflation, and any applicable taxes. Once the present cash value is calculated, the court may award the retirement

benefits to the employee -spouse and offset that award by distr ibu ting to the other spouse some portion of the marital estate that is equ

ivalent to the spouse ’s share

of the re tireme n t interes t. The present cash value method is prefera ble if the employee-spouse’s retirement benefits can be accura tely valued, if retirem ent is likely to occur in

the near future, and if

the marital estate includes sufficient assets to offset the award. In other c ircu mstance s in which t he vestin g or matur

ation is uncerta in or in which the retirement benefit is the parties’ greate st or only economic asset, co ur ts have used the “deferred distribution” or “ret

ained jur isd icti on” metho d to distribute unvestedretirem

ent b enefit s. This method has distinct advantages when the

risk of fo

rfeit ur e is great. Under such an approach, it is unnecessary to determine the present value of the retirement

benefit. Rather, the court may determine theformula for divi ding the monthly benefit at the time of the decree, but del ay th e actual distribution until the benefits become payable. The marital p

roperty interest is often e xpresse d as a

fraction or

a percen ta ge of t he employee spouse’s monthly benefit. The percentage

may be derived by dividing the number of months of the marriage during which t he benefits accrued by the total number of months d

urin g w hich the r

etireme nt benef its accumulate before being paid. One advantage to the defer red distr ib ution metho d is that it allow s an e quitable division without requiring present payment fora b enefit not yet realized and potentially never obtaine d

. Another advantage to the approach i s th at it equally apportions5 any ri sk of for

feiture . While a

disadvan tage may be that the approach require s a

trial court to retain jurisdiction to oversee the payment, the entry of an order awar ding a certain percentage of th e ben efits at the time of payment should lessen the administrative burden o f t he court . Courts ro utinely re

tain jurisdiction to supervise payments of alimony and child support and have , in the pa st, succe ssfully div ided vest ed pensio n rights by aw arding each spouse a share. An administrative burd e n should not excuse aninequitable distribution of marital property. Cohen , 937 S.W.2d at 831 (citations omitted). Hus band argues that the marital estate has been overe xtended and that there ar e insufficient funds from which to offset an immediate judgment of one-half of his pension. He asserts that the distribution of the pension benefits should be in accordance with the “dela yed distribution” or “retained jurisdiction” method. The choice of valuation method remains within the sound disc

retion of the trial court to determine after consideration of all relevant factors and circumstance s. Cohen , 937 S.W.2d at 831. We believe that the trial court properly exer cised its discretion in choosing the “pres ent cash value” method. First, vesting or maturation of Husband’s pension is certain, and the parties easily determined the present value of the pension benef its at the time of the divorce. Th e pension benefits were accurately va lued at $8,848.12, with Wife’s one-half share as $4,424.06. In addition, the pension be nefits ar e not the p arties’ only or gr eatest a sset. We

believe that, in light of Husba

nd’s month

ly net inc ome, ther

e are suffic ient fu nds from which to offset an immediate judgment of the pension. Husband next arg ues that state pension benefits are protected from e xecution, attachment , or garni shment by s tatute. T .C.A. § 26- 2-104 (a ) provide s as follow s: All moneys received by a resident of the state, as pension from the state of Tennessee, or any subdivision or municip ality thereof, before receipt, or while in his hands or upon deposit in the bank, shallbe exempt

from execution, attachment or garnishment other than an order for assignment of support issued under § 36-5-501, whether such pen sioner is t

he head of a fam ily or not. T.C.A. § 26-2-104 (a) (Supp. 1996). Husband argues that the tr ial cour t subjected his pension funds to “execution, attachment or garni shment” b ecause he has no

other fu nds from w

hich to satisf y the judgment. He asserts that the trial court did not order him to “cash out or borrow against” his pension, and therefore, he is protected by statute. In Boyd v. Boy d , No. 02A01-9210-CH-00294, 1993 WL 8379 (Tenn. App. Jan. 20,6

1993), this Court considered the effect of T.C.A. § 26-2-104(a ) on the distribution of pens io n benefits in a divorce action:

The statute clearly renders exempt from execution, attachment or garnishment

all money received by a resident of the state as a pension from

the State of

Tennessee. Coke v. Coke , 560 S.W.2d 631 (Tenn. App. 1977). Howeve r, we do n ot constr

ue the sta tute to mean that the cou rt in a divorce action is prohibited from making an awar

d to the other spouse. T.C.A. § 36-4-12 1(b)(1) (B) does not exclude a state employee’s pension from the definition of marital property. Boyd , 1993 WL 8379, at *2. The Court found that the evidence did not preponderate against the trial court’s findings and allowed the distribution. Id. However, the distribution was not to be made until the husband’s retirement. Id. In Malik v. Malik , No. 02A01-9604-CH-00070, 1996 WL 560257 (Tenn. App. Oct. 3, 1996), this Court again considered T.C.A. § 26-2-104(a). The MalikCourt followed the holding in Boyd and stated: We agree with both the analysis and the conclusion of the Boyd decision. Tennessee CodeAnnotated § 26-2-104(a) prohibits the “e xecution, attachment, or garnishment” of state pension funds

. In this case, however, the trial court ordered

husband to cash out and/or borrow against such funds. Thus, t he f unds were not subject to “execution, attachment, or garnishment,” or any other judicial p rocess. Malik , 1996 WL 560257, at *3. This Court affirmed the trial court’s order for the husband to cash out or borrow a gainst his pension fund to pay the wife her share of the pension fund f rom the division of the marital assets. Id. In this case , Husband

argues t hat Malikis distingui shable because the trial court

did not order him to “cash

out” or “borrow against” his pension fund, but instead subjected the pension benefit s to “execution, attachment or garnishm ent.” We do not beli eve that Malikrequires the trial court to u se such ma

gic language to overcome T.C.A. § 26-2-104(a). In that case, the wife did not hav e to wait u

ntil the husband’s retirement to receive her share of his pension. Malik , 1996 WL 560257, at *2. In this case, the trial court stated, “[T]he Court specifically finds that the Plaintiff

became entitled to receive the portion of Defendant’s pension aw arded to her at the time the Final Decree of Divorce was ente red.” We do not beli eve th at the trial court subjected Husband’s pension benefits to “exec ution, attachment

or garnishment.” The trial court’s order clea rly states that Wife wa s entitled t o7

receiveher

share of the pension at the time the final decree was entered. We interpret the trial court’s order to mean that Husband must pay that amount, $4,424.06, to Wife a nd should have done it at the time the divorce became final. Husband may have to c ash out or

borrow a gainst the pension fund, but the pension is not subject to “execution, attachment or garnishment.” Husbandnext argues that th e trial c ourt provided no factual basis for the order of immediate

payment o f the pen sion bene fits. Husbandargues that it is inequitable for the Wife to enforce and add to the marital dissolution agreem ent six years a fter its e ntry. Hus band also argues that the trial court made the order without taking into consideration the relevant factors in T.C.A. § 36-4-121(c). We be lieve tha

t t he trial court was called upon to interpret the marital dissolution agreement

that was part

of the fin al decr

ee of div orce. T

he trial c ourt did not need a f actual b asis to determine whether, as a matte r of law, Wife wa s entitled to the pen sion bene

fits immediate

ly

or upon Husba

nd’s ret irement. For the sa

me reas ons, the tr

ial cour t did not have to consider the factors in T.C.A. § 36-4-121(c). Those are the factors that the trial court considered in making the equitable division in the firs t place. They have no bearing on when the equitable division is payable. We disag

ree with Husband t

hat it is inequitable to enforcea six-year-old marital dissolution agreem

ent. The trial court found that Husband should have paid Wife’s shar e of the pension benefits six years ago, and because Husband ow e s Wife $4 ,424.06, there is nothing inequitable in enforcing the agreed upon division of the marital proper ty. In conclusion, the trial court did not abuse its discretion by applying the “p rese nt cash value” method, and the evidence does not preponderate against the trial court’s findings. Wife is entitled to $4,424.06 of Husband’s pension benefits, plus interest as awarded by the trial court. In his second issue, H usband contends that the trial court erred in awarding W ife $7,010.29 in attorney’s fees. He argues that he is in no better financial position than Wife to pay her attorney’s fees. Instead, he asserts that, in theinterest of equity , each p arty should be held responsible for his or her own attorney’s fees. The law in Tennessee is clear that the trial court ha s wide discretion in awarding attorney’s fees, and unless the evidence preponder ates otherwise, the award

will not be disturbed

on appeal. Kincaid v. Kincaid , 912 S.W.2d 140, 144 (Tenn. App. 1995). An award of attorney’s fees is appropr iate on ly when the spouse seeking them lacks sufficient funds to pay his or her8

own legal expe nses or would b e requir ed to depl ete his or

her res ources in order t

o pay thes e expenses. Brown v. Brown , 913 S.W.2d 163, 170 (Tenn. App. 1994). As stated previous ly, the record show s that Husb and’s ne t monthly inc ome is $4,795.35, and Wife’s net monthly income is $1,520.00. In the case at bar, we believe that Husband has the ability to pay the award, and we cannot say that the e vidence preponderates against the awa rd of attorney’s fees to Wife. Accordi ngly, the judgme nt of the tr

ial cour t is affir med in all r

espects . Costs of th

is appeal are assessed against the appe llant.