# FILED

September 5, 1997 Cecil Crowson, Jr

. App ellate C ou rt Clerk

IN THE COURT OF APPEALS OF TENNESSEE WESTERN SECTION AT JACKSON

______________________________________________ MARY ANN UMSTOT, Plaintiff-Counter-Defendant/Appellee,
Vs. C.A. No. 02A01-9701-CV-00008 Shelby Circuit No. 150200 R.D. EDWARD SHIRER UMSTOT, Defend ant-Coun

ter-Plaintiff/Ap

pellant.

__________________________________________________ __________________________ FROM THE SHE

LBY COUNTY CIRCUIT COURT THE HONORABLE KAREN R. WILLIAMS, JUDGE

Daniel L oyd Taylo

r and Jam es H. Tay lor, III

of Memphi s For Appellee Hal Ger ber and K aren R. Ci cala of

Memphis For Appellant

REVERSED IN PART

, AFFIRMED AS MO

DIFIED ANDREMANDED Opinion fi led:

W. FRANK CRAWFORD,

PRESIDING J

UDGE, W.S.

CONCUR: DAVID R.FARMER,

JUDGE DISSENTS IN PART, CONCURS IN PART BY SEPARATE OPINION: DAVID G. H

AYES, JUDG

E This is a divorce case. Edward Shirer Umstot (Husband) a ppeals the order of the trial court awarding a divorce, alimony in solido , and child support to Mary Ann Umstot (Wife).1 At the time of the divorce, one of the children was eightee n years old and the other child was fifteen years old.

2 Wife’s e

xpert, who valued

the plan, testifie d that a de fined be nefit pla n is a plan

in which a benefit is accumulated during one’s working yea rs or tenure with a particular employer that will ultimately be paid out upon retirement or the attainment of so many years of service or a certain age.

3 The trial court accepted the lower va lue because the parties testified that the propert y occasi onally flo ods. 2 The parties were married on August 16, 1977 and had two c hildren during the marriage. 1 At the time of

the divor ce, Wif e was 52 y ears old , and Husb and was 5 3 years o ld. Husba nd is in good health, but Wife was recently diagnosed with malignant melanoma. She testified that

she has a 40% chance of living another five ye ars. Wife works for Arlington Developmental Center as a me dical technologist with a net monthly income of $2,447.76 and at Methodist Hospital with a net monthly income of $200.00. W

ife has a defined benefit s retire

ment plan with the Sta

te of Ten nessee w orth $76,309.00. 2 Husband i s a rese arch as sociate for the U niversity of Tenne ssee-Me

mphis earning $35,418.96 per year. Husband’s net monthly income is $2,271.64, and his retire ment benefits are worth $158,563.00. Husband’s retirement plan be gan with a balance of

$4,437.00 at the time of the marriage. The parties owned an unencumbered mar ital residence. Wife presented expe rt testimony that the real estate was worth $130,000.00, and Husband pre sented an expert witness who valued the real estate at $146,571.00. 3 The parties also owned four automobiles, various personal property worth about $13,400.00, two individual retirement accounts each w orth $2,715.23, and government savings bonds worth $24,000.00. Each party maintained a sepa rate bank account. Wife inherited an annuity and some Gene ral Motors stock during the marriage. In 1980, Wife had an affair with a co- worker, but she terminated the relationship after one year. H usband te stified th at Wife w as verba lly abusiv e to him, wa s not suppor tive of him , and withheld affection and sexual relations from him. In 1995, Husband c ontacted an exgirlfriend, Grover Lynn Irving, and reestablished a platonic relationship. Wife testified that Husband a

nd Irving talked on the telep hone eve ry day. H usband even infor

med the pa

rties’ children about Irving and told Wife that he loved Irving more than he loved Wife. Husband sent $7,500.00

to Irving and incurred long-distance phone bills of $2,500.00 talking to Irving. Wife asked Husband to end this relationship, but he refused. Afte r Wife told Irving to stop calling the house, Husband purchased a beepe r so he and Irving could continue to talk. On Septem

ber 22, 1 995, Wife

filed a c omplaint f

or divorc e allegin g irrec oncilabl e differences and inappropriate mar ital conduct. On October 9, 1995, Husband filed an answer and a counter-complaint. In the answer, Husba nd admits irreconcilable differences, but denies that he is guilty of inappropriate marital conduct. In his counter-complaint, Husband agrees that the parties have irrec oncilable differences and alleges that W ife is guilty of inappropriate marital conduct. On May 6, 1996, Wife filed a n answer that denied she was guilty of in appropr

iate mar ital cond uct. On June 20, 1996, the trial court entered a final decr ee of absolute divorce that awarded the divorce to Wife on the grounds of inappropriate marital c onduct. The final decree granted custody of the minor children to Wife with liberal visitation to Husband. Husband was ordered to pay child support of $730.00 per month through May 1997, then to pay $479.00 per month . The tria

l court div

ided the m arital a ssets and determined that the incre ase in value of Husband’s retirement benefits was mar ital property. The trial court awarded Husband’s interest in the marital residence, valued at $65,000.00, to Wife as alimony in solido and awarded $2,500.00 as additional alimony in solido for Wife’s attorney’s fees. Finally, the trial c ourt orde red Husb and to pay

Wife $1, 000.00 in a

lump sum as c

hild support to help pay for the extraordinary educational e xpense of a trip to Europe by one of the part ies’ dau ghters. Husband appeals the judgment of the trial court and presents five issues f or review: 1) whether the trial court erred in awar ding Wife alimony in solido ; 2) whether the trial court erred in awarding Wife additional alimony in solido to pay her attorney’s fees; 3) whether the trial cou rt erre d in its dete

rmination that the in

crease in the val ue of Hus band’s se

parate3

propert y was mar

ital prope rty; 4) wh

ether the trial c ourt err

ed in devi ating fro m the child support guidelines; and 5) whether the trial court erred in aw arding a divorce to Wife only. Since this case was tried by the court sitting without a jury, we review the ca se de novo upon the rec ord with a

presumpt ion of cor rectne ss of the f

indings of

fact by t he trial c ourt. Unle ss the evidence preponderates aga inst the findings, we must affirm, absent error of law. T.R.A.P. 13(d). We will first consider Husband’s third issue. Because the valuation of Husba nd’s retirement plan aff ects the division of

the marit al prope rty, Husb and argu es that the trial cou rt erre d in its determination that the increase in the value of his retirement plan wa s marital property. The tria l court de termined that $4,43 7.00 of the

value of Husband’ s retire

ment plan was his separate property and that $154,106.00, which repr esents the increase in value of the retirement plan during the marriage, was marital prope rty. The trial court awarded both the $4,437.00 and the $1 54,106.00

to Husban d. Husban d assert s that the t rial cou rt allotte d only the original value of the pension at the time of the marriage, $4,437.00, as se parate property. He argues that the trial court should have also considere d the interest earned on that portion as separate property. He contends that only $131,000.00 of the inc rease in value is martial property, instead of the full $154,106.00, because $23,106.00 of the intere st accumulated on the original amount of $4,437.00 and is therefore separate property. T.C.A. § 36-4- 121(b)( 1)(B) pr

ovides: “Marital property” includes income from, and any incr ease in value during the marriage, of property determined to be separate prope rty in accordance with subdivision (b)(2) if each party substantially contributed to its preservation and appreciation and the value of vested pension, retirement or other fringe benefit rights acc rued during the period of the marriage. T.C.A. § 36 -4-121(

b)(1)( B) (1996) . Marital

propert y include s retire

ment bene

fits, both vested and unvested, that accrue during the marr iage. Cohen v. Cohen , 937 S.W.2d 823, 830 (Tenn. 1996). An interest in a retirement benefit plan is marital prope rty subject to division under T.C.A. § 36-4-121(a)(1) (1996). Cohen , 937 S.W.2d at 830.
In Cohen , the Supre

me Court r

eiterat ed three observa tions: 1. Only the

portion of

retirem ent benefits acc

rued dur ing the ma

rriage are mar ital prope rty subject to equitable division. 2. Retire ment bene

fits acc rued dur ing the ma

rriage are mar ital prope rty subje ct to equitable division e ven thoug h the non- employee spouse did

not contr ibute to the

increa se in their value. 3. The value of retirement benefits must be determined a t a date as near as possible to the date of the divorce. Id

. Husband argues that the amount of the retirement benef its that accrued during the marriage should not i nclude th

e amount t

hat acc rued as a result of his separ ate prop erty. He

asks this Court to separate the appreciation of the retire ment plan into two income streams: one based only on the separate property amount of $4,437.00 and one base d on the contributions made

to the retirement plan during the marriage.
In an unr eported case, th is Court ad

dressed the divisio n of retir

ement fu nds: We believe the trial court abused its discretion in awarding W ife $13,311 instead of half of the total of the parties’ retirement accounts acc umulated after the marriage. The trial cour t was obviously influenced by his express finding that “a good portion of [the increa se] has4

been passive income that has accrued since the parties’ marriage”; but the “passive” na ture of the accrual during the marriage is immaterial. T.C.A. § 36-4- 121(b)(1)(B) provides that marital p roperty includes “the val

ue of a ve sted pens ion, retir ement or other fr inge bene fit rights accrued during the period of the marriage .” (Emphasis Added). This code section does not differentiate between value adde d by “passive income” and value added by additional contributions during the marriage. The critical determination is whether the value “accrued” during the marriage . In this case, everything in Husband’s thrift and profit sharing plan, save the $5,091 in there at the time of the marriage, “ accrued” after the mar riage. Franklin v. Fr

anklin , No. 03A01-9410-CV-00364, 1995 WL 371573, at *2 (Tenn. App. June 21, 1995). We agree with the reasoning of the Franklin Court that the critical determination is whether the value “accrue d” during the marriage. The statute is clear that “the value of vested pension, retirement or other f ringe benefit rights accrued during the period of the marriage” is marital property. T.C.A. § 36-4- 121(b)(1)(B) (1996). In this case, all of Husband’s retirement plan, except $4,437.00, acc rued during the marriage. The trial court correctly held that $154,106.00 of the retirement plan wa s marital property. In his first issue, Husband argues that the trial court erred in aw arding alimony in solido to Wife. Hu sband ar

gues that Wife doe s not need

the awa rd, that h e does no t have the

ability to pay the a ward, a nd that the

court’s percep tion of the relative fault, wh ich can b e conside

red in an award of alimony, unfairly focused on him. In this case, the tr ial court awarded Husband’s interest in the marital residence, valued at $65,000.00, to Wife as alimony in solido

. Trial courts have broad discretion in dividing the marital estate upon divorce. Loyd v. Loyd , 860 S.W.2d

409, 411 ( Tenn. Ap

p. 1993); Lancaster v. Lancaster , 671 S.W.2d 501, 502 (Tenn. App. 1984). T.C.A. § 36 -5-101( d)(1) pr ovides: It is the intent of the general assembly that a spouse who is economically disadvantage d, relative to the other spouse, be rehabilitated wheneve r possible by the granting of an order for payment of rehabilitative, temporary support and maintenance . Where there is such relative economic disadvantage and rehabilitation is not feasible in consideration of a ll relevant factors, including those set out in this subsection, then the court may grant an order for payment of support and maintenance on a long-term basis or until the death or r emarriage of the recipient except as otherwise provided in subdivision (a)(3) . Rehabilitative support and maintenance is a separate class of spousal support a s distinguished from alimony in solido and periodic alimony. In determining whether the granting of an orde r for payment of support a nd mainte nance to a party i s appropr

iate, an d in deter

mining the n ature, a

mount, length of term, an d manner

of payme

nt, the court shall c onsider a ll releva nt facto rs, including: (A) The relative earning capa city, obligations, needs, and financial resources of ea ch party, including income f rom pensi on, profi

t sharing or retir ement pla ns and all other sou rces;5 (B) The relative education and training of eac h party, the ability and opportunity of each party to secure such education and training, and the necessity of a party to secure further educati on and tra

ining to impr

ove such party’s earning capaci ty to a re asonable

level; (C) The duration of the marriage; (D) The age and mental condition of each pa rty; (E) The physical condition of each party, including, but not limited to, physical disability or

incapacity due to a chronic debilitating disease; (F) The extent to which it would be undesirable for a party to see k employment outside the home because such party will be custodian of a minor child of the mar riage; (G) The separate assets of ea ch party, both real and personal, tangible and intangible; (H) The provisions made with regard to the marital property a s defined in § 36-4-121; (I) The standard of living the parties established during the marr iage; (J) The extent to which each party has made such tangible and intangible contributions to the marriag e as mone

tary and homemake

r contributions, an d tangible and intan gible contributions by a party to the education, training or increased ea rning power of the other party; (K) The relative fault of t he parti es in cas es wher

e the cou rt, in its di scretion , deems it appropriate to do so; and (L) Such other fa ctors, in cluding th

e tax con sequenc es to eac h party, a s are ne cessar

y to consider the equit ies between the pa

rties. T.C.A. § 36-5-101(d)(1) (1996). Need and the ability to pay are the critical fac tors in setting the amount of an alimony award. Smith v. Smith , 912 S.W.2 d 155, 159 (Tenn. Ap p. 1995); Lancaster , 671 S.W.2d at 503. In
Lancaster , this Court stated: Alimony is not and never has been intended by our legislature to be punitive. See McClung v. McClung , 29 Tenn. App. 580, 198 S.W.2d 820, 822 (1947). Nor do we believe it was intended simply as a

n award for virtu e. It is no t designe d to serve as an ann uity for th

e wife; or as Professor Clark has stated “[t]he purpose of alimony is to care for the wife’s needs after divorce, not to provide her with a life-time profit-sharing plan.” H. Clar k, Law of Dome stic Relations § 14.9(4) (1968). Id . The propriety of awarding alimony as well as the adequa cy of the amount awarded depends upon the unique facts of each ca se. Butler v. Butler , 680 S.W.2d 467, 470 (Tenn. App. 1984). The amount of alimony to be awarded is a matter for the trial court’s discretion in view of

the part icular c ircumsta

nces of t he case , and the a

ppellate courts a re not inc lined to alter the awards except where the record reflects that such discretion has been abused. Gilliam v. Gilliam , 776 S.W.2d 81, 86 (Tenn. App. 1988). Husband a sserts tha

t Wife’s net monthly

income is m

ore than his, that sh

e has mor e separ ate6 propert y, and tha t her inc ome exceeds her e xpenses. Wife’s n

et monthly income is $2,714.52, and Husband’s net monthly income is $2,271.64. In addition, Wife received $730.00 per month until May 1997, and now receives $479.00 per month as child support from Husband. Wife listed her monthly expenses as $3,356.00, which includes the e xpenses for the children. In light of the facts that Wife has a greater monthly net income than Husband and has sufficient separate assets, we believe tha t the award of alimony in solido in this case was excessive. After the trial court’s awa rd of alimony in solido , Wife received $252,873.00 or 58% of the marital estate, and Husband rece ived $181,621.00 or 42% of the marital estate. We believe that the division of the marital assets in this case should approach a more equitable division. However, we do believe that Wife should be the sole le gal owner of the marital residence to avoid any chance of a conflict in the future. Therefore, W ife should be awarded Husband’s one-half intere st in the marital residence, but in return, Wife should pay $30,000.00, which should be paid as determined by the trial court. After Wif e reimburses Husband $30,000.00 for his share of the marital residence , Wife will have received $222,873.00 or 51% of the marital estate, and Husband will have rec eived $211,621.00 or 49% of the

estate. We find t

hat this div

ision of the

marital a ssets is mor

e equita ble considering the circumstances of this case. In his second issue, Husband argues that the trial court erre d by awarding Wife $2,500.00 as additional alimony in solido for her attorney’s fees. In deter mining whether to award attorney’s fees, the trial court should again consider the r elevant factors in T.C.A. § 36-5-101(d)(1). Kincaid v. Kincaid , 912 S.W.2d 140, 144 (Tenn. App. 1995). When one party demonstrates that it is financially unable to afford counsel, and whe n the other party has the ability to pay, the court may properly order the other party to pay a ttorney’s fees. Id . An award of attorney’s fees is within the sound discretion of the trial c ourt, and unless the evidence preponderates against the a ward, it will not be disturbed on appeal. Id . A spouse with adeq uate pro perty an d income i s not entitl ed to an a ward of additiona l alimony to compensate for attorney’s fees and e xpenses. See Duncan v. Duncan , 686 S.W.2d 568 (Tenn. App. 1984). In this ca se, Wife

is able to a

fford c ounsel. She has sep arate a ssets that include $ 7,500.00 i n7

a bank account. We believe that the trial cour t should not have awarded Wife the additional alimony in solido for her attorney’s fees. In his fourth issue, Husband argues that the trial court erred in de viating from the Tennessee Child Support Guidelines (Guidelines). The trial court ordered Husband to pay $1,000.00 as child support to “help for the extraordinary educational e xpense of a trip to Europe by one of the minor d aughter s.” Husba nd argue s that an “ extraor dinary e ducation al expen se” implie s a

necessa ry expen se over a

nd above the amoun

t it would c ost to send

an aver age chil d to school such as special education for the physically or mentally disabled or a more challenging curriculum for a more gifted student. Husband asse rts that a decision to spend extra money on education “should be a decision based upon the opinion of a professional that the added expense is needed, not just desired by the custodial pare nt or the minor child.” The Guidelines provide for the upward adjustment of child support for e xtraordinary educati onal expe

nses: (1) Since these percentage amounts are minimums, the court shall increase the award calcula ted in Rule

1240-2-4 -.03 for

the following reas ons: *** (c) Extraordinary educational expe nses and extraordinary medical expenses not cove red by insurance shall be added to the percentage calculated in the above rule. Tenn. Comp. R. & Regs. tit. 10, ch. 1240-2-4-.04-.04(1)(c) (1994).
In Dwight v. D wight , 936 S.W.2 d 945 (Te nn. App. 1 996), this Court found that priv ate school tuition is not to be considered as a portion of child support under the Guideline percentages and that child support can be adjusted upwa rd for private school tuition. Id . at 950. The choice to send a child to private school is not one that must be made by a professional to determine if the added expense is nee ded, and the courts have allowed upward deviation for private school tuition without considering whose decision it was to send the child to private school. In addition, private school tuition is never a “necessary” expense, and the Guidelines do not say that the extraordinary educational expe nse must be “necessary.” Likewise, in this case, we do not believe that the decision to send a child to Europe must be made by a

“profe ssional,”and bec ause ext raordin ary educ ational e

xpenses a re not limited to “neces sary” e

xpenses, the trial

court did not err in orderin g Husband

to pay $1, 000.00 of

his4 We note that $1,000.00 is less than one-half of the cost of the trip. 8 daughter’s trip to Europe. 4 Finally, Husband argues that the trial court erred in awar ding a divorce to Wife only. He asserts that the trial court ignored the numerous acts of inappropria te marital conduct on the part of Wife. Wife admitted that she had an af fair with a co-worker in 1980, and Husband testifie d that the

re was a n absenc e of love

from Wif

e in the ma

rriage and that W

ife ver bally abused him. He stated that Wife never appreciated him or encouraged him. On the other hand, Wif

e testifi ed that she loved H usband a nd fully a pprecia ted and c ared fo

r him. The trial court awarded the divorce to Wif e on the grounds of inappropriate marital conduct and found that Husband’s relationship with Irving precipitated the divorce. W ife testified that Husband told her that he loved Irving more than Wife and that he discussed his new relationship with the parties’ children. The evidence showe d that Husband lent Irving $7,500.00 and spen t $2,500.0 0 on phone

bills. Finally, Husba

nd testifi ed that he

happene d to find Irving’s phone number in the phone book while he was visiting the local library. When the resolution of the issues in a case depends upon the truthfulness of witnesses, the trial judge who has the opportunity to observe the witnesses in their manner and demea nor while testifying is in a far better position than this Court to decide those issues. Mays v. Brighton Bank , 832 S.W.2 d 347, 351- 52 (Tenn . App. 199 2). The w eight, fa ith, and c redit to be given to any witness’s testimony lie in the first instance with the trier of fact, and the credibility accorded will be given great weight by the appe llate court. Id . at 352. We cannot say that the evidence preponde rates against the trial court’s decision to award a divorce to Wife o n the grou

nds of ina ppropria te marita l conduct

. Accordingly, the judgment of the trial court awarding attorney fe es is reversed. The judgment is modified to require Wife to pay Husband $30,000.00 for his equity in the marital home, and, on remand, the trial court shall determine the manner for payment of this sum and
any nec essary s ecurity

for the p ayment. T

he judgme

nt is affi rmed in a ll other r espects . Costs of the ap peal ar e assess ed equa

lly to the pa

rties.

_________________________________ W. FRANK CRAWFORD, PRESIDING J

UDGE, W.S.9 CONCUR:

____________________________________ DAVID R.FARMER,

JUDGE

____________________________________ DAVID G. H

AYES, JUDG

E