### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE August 2000 Session JERRY WAYNE TERRY v. DONNA BRAZIER TERRY Direct Appeal from the Probate and Family Court for Cumberland County

No. 12154 Steven C. Douglas, Judge 

### FILED SEPTEM

BER 20, 2000
No. E2000-00825-COA-R3-CV

This appeal from the Cu

mberland County

Probate and Fami

ly Court conc

erns wheth

er the Tr ial Courterred in making an equitable division of the marital estate of Jerry Wayne Terr y, the Appellant, andDonna Brazier Terry, the Appellee. We affirm the judg ment of the Trial Court and remand for such further proceedings as may be nece ssary. We adjudge costs of appea l agai nst Mr. Terry and his sur ety. Tenn. R. App. P. 3; Judgment of the Probate and Family Court Affirmed and 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. S. R oger Yor k, C ros svi lle , Te nne sse e, fo r th e app ell ant , Je rry W ayne T erry. Vivian E. Warner and Allison M. Barker, Crossville, Tennessee, for the a ppellee, Donna Brazier Terr y. OPINION

This appeal arises from a divorce action between Jerry Wayne

Terry, the

Appellant, andDonna Brazier

Terry, the Appellee. Mr. Terry appeals the judgment of the Cu mberland County Probate and Family Court and presents for our review the sole issue of whether the Trial Court erred in its division of the marital estate.

We affirm the judgment

of the Trial Court and remand for such furthe r proceedin gs as may be necessary

consistent with this opinion.1 No children wer e born of the

marriage. Mrs. Terry had t wo children f

rom her firs

t marriage,

and they were adults at the time of her marriage to Mr. Terry. Mr. Terry's three pr evious marriages ended in divorce. Ms. Terry stated in her answer th at she was unaw are that Mr. Terry had been m arried several times.

2 Ms. Terry's a

ssets consist

ed of $201,565 in bank account s and cert

ificat es of deposi

t, $214,000

in real est

ate, $173,605 in retirement accou nts, and a 1992 Chevrolet Lu mina. She h ad no deb ts.

3 Mr. T erry's assets consist ed of $7,385 in ba

nk accounts,

$59,500 in rea

l estat e, and a 1991 GMC Jimmy of unknown value. His debts for r eal est ate and an aut

omobile amounted to $51,555. -2- The parties wer e married in May 1994. It was th e second mar riage for Ms. Terr y, whose husband had died, and it was thefou rth mar ria ge fo r Mr . Te rry. 1 Both parties were employed at Liberty Life I

nsurance Company in Tullahoma.

In January 24, 1994 Mr. Terry purcha sed a home valued at

approximately

$59,000 from his mother in Crossvi

ll e. Mr s. Terry had inherited a large farm fr om her parents and had inherited the marital home and propert y from her l

ate husband. Thus , at the time of the T errys' marriage, Ms. Terry's net worth was approximately $589,170 2 , and Mr. Terry 's n et worth wa s approximately $15,330. 3

Approximately

t h ree months after their marriage, Ms. Terry paid the remaining amount owed on Mr. Terry's vehicle. During 1995 Mr. Terr y added Ms. Terry's name to the deed of the Crossville property. Likewise, Ms. Terry added Mr. Terry 's name to th e certificates of deposit and bank accounts, except the retirement account s, that s he had before their marriage.

During 1995, Mr. Terry

left his employ

ment at Libert

y Life Insu rance Company

in Tul lahoma

for a position as a sales manager for Fairfield Glade Communities in Cro ssville. I n January 1996 Ms. Terry retired after 40 y ears of employment

at Liberty Life I

nsurance Company as a cashier's sec

retary be cause the company

was relocat ing to Nashv ille. Ms. Terry received a year's salary for 1996 as severance. Ms. Terry moved into the parties' home in

Crossville, and during that year she sold the real property she had inherited from her parents a nd late husband for $214,000. In September that sam e ye ar, Ms. Terry 's son died unexpec

tedly, and sh

e received app

roximately $32,000 in retirem

ent and life insur

ance proceeds

.
After selling Ms. Terry's property , the parties purchased a home in Cumberland County, for the cash price of approximately $216,000 on November 25, 1996. They moved into4 The Trial Court asse ssed the furni shings at a curr ent market val

ue of 60% of the ori

ginal cost

for a value

of $23,263.63. -3- the new house and began renting the house in which they ha d be en living. They purchased furnishings totaling $38,772.72 for the new home. 4

The parties crea ted joint bank accoun ts during their mar riage from their separate bank accounts,income, and Ms. Terry's certificates of deposit. Mr. Ter ry testified that

he would givehis paychec kto Ms. Ter ry, and she woul d deposit t he money into t heir joint accounts. M s. Terry's retirement

accounts remained her separate property throug hout the marriag e and were never commingled. During the marriage Ms. Terry made $6,000 in contributions to he r indivi dual retirement

account, and Mr. Terry made $8,000 in contributions to his individual ret

irement account

. He testified that

he believed Ms. Terry

was honest about the couple's finances and did a good job of managing them

during the marr

iage. Accord

ing to both

parties, Ms. Terry

managed the pa

rties' finances from the outset of the marriage.

Around April 1999 Mr. Terry stopped giving Ms. Terry his paychecks or any other mon ey, except for $1,720. Mr. Terry t estified that his

net earnings through October 31, 1999 were $52,889. He further stated that he had opened a bank account the week before t rial and had deposited$16,411 in the account. He also stated that he had $10,000 in cash at the marital residence. However, Mr. Terry

also noted that he had between $6,000 and $10,000 in gambling losses in 1999, andthe parties agreed that Mr. Terry had paid $2,870 in impro

vements to the ren

tal house in

1999.

Although Mr. Terry filed for divorce on July 22, 1999, both parties r emained in the marital home until the divorce hearing on November 29, 1999, and Ms. Te

rry paid al l the household expenses from the parties' joint accounts.In addition to being the fin anci al m anag er of the fam ily, Ms. Terry was also the homemaker for the parties, which included law n work.

At the time of the divorce, Ms. Terry was 61 year s old, and Mr. Terry was 51 years old. Although Ms. Terry is not eligible to receive Social Security benefits, she does rec eive a monthly pension of $233 fr

om Liberty

Life Insu rance Company

. However, sh

e te stified that her monthly living expenses total $1,620. Ms. Terry believes that her prospects for emplo yment are doubtful, and thus, she has little hope of acquiring additional capital assets. She has a high school education, and her employ ment experience c

onsists of secreta

rial work. She suf

fers from s tress, high blood pressure, a

nd an eye pr

oblem.-4- The Trial Court found that the marriage was of short duration and that Mr. Terry had a greater abili

ty to acquir

e future capita

l assets. The Court

found that at ag

e 51, Mr. Terry

was i n his peak earning years, wh ereas Ms . Terry at a

ge 61 had retir

ed after 40 y

ears of service

as a secretary and her prospec

ts for future empl

oyment wer

e doubtful. The Cou

rt also found that M

s. Terry's separate property at the time of the marriage was significantly gr eater than Mr. Terry'

s. Thus, after the division of the ma

rital estate of th

is marriage of

short duration, Ms . Terry received significantly

more of the assets. Therefore, the Trial Court den ied Ms. Terr y's re que st f or al imo ny.

Mr. Terry 's sole issue on appeal is that the Trial Court erred in its division of the marital estate. First, Mr. Terry contends that the Trial Court erred in attributing income from various sou rces suc h as int eres t in com e and farm rent to M s. T erry. Next, He argues that he is entitled to an equitable division of the $65,755 increase to Ms. Terry's retirement ac counts. Mr. Terr y does not argue with the Trial Court's finding that Ms. Terry's retirement accounts, excluding the earned interest, is Ms. Te

rry's sep arate property. However, he does argue that it was his contr ibution as a significant wage earner that allowed Ms. Terry 's assets to increase. He

maintains thatduring the parties' marriage, "the largest and primary contribution to the accumulation of assets came from [his] income." He further contends that "for four of [the] years of marr iage, Donna Terry did not work although for one of these years she did get se verance pay and unemploy ment compensation."

Ms. Terry argues

that the Trial Court did not err in its division of the marital estate. First, she contends that the annual income figures were not a key fa

ctor in determinin

g the equitable division of the marital estate. She maintains that the Trial Court found that the major factor in the acquisition of the marital assets was the significant assets she brought into the marriage. Also, the Courtfound that Ms. Terry earned income through 1996 and contributed to the marital estate as the parties' financ ial mana ger and homemaker in the years after 1996. Therefore, she contends that "exact mathematical figur es are not required for the C ourt to make its decis ion."

With respect

to her retirement accounts, Ms. Terry contends that Mr. Terry made no significant

contribution to

the increase in value, other than the $6,000 individual retirement account contribution. She maintains thatthe "fact that Mr. Terry earned wag es during the marriage does not automatically

mean that he made real and significant con

tributions to the inc

rease in value of Ms. Terry's retirement accounts, especially in light of the fact that he broug ht debt and very

little assets into the marriage." She

asserts that she managed the accounts herself and that Mr. Terry made no contribution towar

d the increase in

value of the acc

ounts.

Last ly, alt hou gh Mr . Te rry ar gues tha t th e la rges t an d pr ima ry c on tribution to the accumulationof as set s du rin g the mar ria ge ca me f rom his inc ome , Ms . Te rry not es that the Trial-5-

Courtfound that the majorfactor in the acquisition of assets was the assets she brought into the marriage.

Our

scope of review pursuant to Rule 13(d) of the Te nnessee Rules of A ppellate Procedure"shall be de n ovo upo n th e rec ord of t he t ria l co urt , acc omp ani ed b y a presumption of the correctness of the finding, unless the preponderance of the evidence is otherwise."

"In cases invol ving a marriage of relatively short duration, it is appropriate to divide the property in a way that, as nearly as possible, places t

he parties in the s

ame position they

would have been in had the marriage never taken place." Batson v. Batson , 769 S.W.2d 849, 859 (Tenn. Ct. App. 1988) (citation omitted).

It is well established that the division of a marital estate need not be equal to be equitable. Batson , 769 S.W.2d at 856. Before a Court can divide a marital estate, it must determine what is separate property and what is marital property

. Batson , 769 S.W.2d at 856.

Tennessee Code Annotated § 36-4-121(b)(2) defines "separate property": (A) All real and personal property owned by a spouse before marriage; (B) Property acquired in exchange for prope rty acquired before the marriage; (C) Inco me f rom and app reci ati on o f pr ope rty o wne d by a spouse before marriage except when characterized as marital property under subdivision (b)(1); and (D) Property

acquired by

a spouse at any

time by gif

t, bequest, devise o

r descent.

Ten nes see C ode Ann ota ted § 36 -4- 121 (b) (1) defi nes mar ita l pr ope rty: (A) " Mar ita l pr ope rty" m eans all real and pers ona l pr ope rty, both tangible and intangible, acquired by either or both spouses during the course o f the marria ge up to the d ate of the fi nal divorce hearing and owned by either or both spouses as of the date of filing of a complaint for divorce, except in the case of fraudulent conveyanc e-6- in anticipation of filing, and including any property to which a right was acquired up to the date of the final divorce hearing, and valued as of a date as near as reasonably possible to the final divorce hearing date. (B) "Marital p

roperty" includes income f

rom, and any

increase in value during th

e marriage of

, property d

etermined to be se

parate property in

accordance w

ith 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 accrued during the period of the marriage. (c) As used in this subsection, "substantial contribution" may include, but not be limited to, the direct or indirect contribution of a spouse as homemaker, wage earner, parent or family financial manager, together with such other factors as the court having jurisdiction thereof may determine.

The Court considers a

ll of the following

when makin

g an equitable

division of marital pro pert y: (1) The duration of the marriage;

(2) The age, p

hysical and

mental health, voc

ational skills, employability, earning capa city, estate, financial liabilities and financial needs

of each of the pa

rties; (3) The tangibl

e or intangible c

ontribution by

one (1) party to the education, training or increased earning power of the other part y; (4) The relative ability of each party for future acquisitions of capital assets and income; (5) The contribution of each party to the acquisition, preservation, a

ppreciation or di

ssipation of the mar

ital or separate property, incl uding the co ntributi on of a party to t he marriage as homemaker, wage earner or parent, with the contribution of a party as homemaker or wage earne r to be given the same weight if each party has fulfilled its role; (6) The val ue o f th e sep arat e pro pert y of ea ch p art y;-7- (7) The estate of each party at the time of the marria ge; (8) The economic circumstances of each party at the time the division of property is to become effective; (9) The tax consequences to each party; and (10) Such other factors as are necessary to c onsider the equities between

the parties. Tenn. Code Ann. § 36-4-121(c).

We are of the opinion that the evidencedoes not preponderate against the judgment of the Trial Court in its division of the marital estate. The Trial Court followed the enumerated factors of Tennessee Code Annotated § 36-4-121(c) in mak ing its decis ion. As the Trial Court notedin its j udgment, Ms. Terry entered the marriage with a lar ge number of assets, whereas Mr. Terry had more debt than assets. At the end o f the marria ge Mr. Terry' s assets were substantially greater than they were before the marriage

. We must disagree with Mr. Terry

's argument th

at he is entitled to part of the interest that has accrued in Ms. Terry's sepa rate retirement accounts. He admitted that Ms. Terry

had always

managed the ac

counts herself, and during his te stimony he co

uld notstate anyth

ing he had done to

contribute

to the appreciation of

Ms. Terry'

s retirement acc

ounts. The only explanation that he offered was that he had contributed his pay check, and thus, Ms. Terry had not had to draw

funds from the re

tirement accoun

ts.

With respect to

Mr. Terry's argument that the Trial Court erred in att

ributing certa

in sources of income to Ms. Terry, we agree with Ms. Terry that the annual income figures of e ach party were not a key

factor in the equitable division of the marital estate in this case. As the Trial Courtfound, the major factor in the acquisition o

f marital assets w

as Ms. Terr y's in heri ted pro pert y, life insuranc e benefits, and retirement benefits from the death of her first husband and her son. Moreover, Ms. Terry earned income thro ugh 1996 and after that year continued to make contributions to the mari tal estate a s a homemake r and a finan cial manager o f the couple 's investments.
In light of the foregoing, we affirm the judgment of the Trial Court and remand for further proceedings as may be neces sary c

onsistent with this op

inion. We

adjudge costs of appeal agai nst Mr. Terr y and his sur ety.-8- _________________________________________ HOUSTON M. GODDARD, PRESIDING JUDGE