# FILED
Novemb er 24, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COURT OF AP PEALS OF

TENNESSEE, WESTE RN SECTION AT JACKS ON

_______________________________________________________ ) DEBORAH JOA NNE CUP PLES ) Chester County Chancer y Court PLUNK , ) No. 8847 ) Plaintiff

/Appella nt. ) ) VS. ) C.A. No. 02A01-9702-CH-00040 ) EDWARD LEE PLUNK , ) ) Defendant/Appellee. ) )

______________________________________________________________________________ From the Chancery

Court of Chester County at Hende rson. Honorable Joe C. Morris, Chancellor

Michael B. McWherter , SPRAGINS, BARNETT, COBB & BUTLER, Jackson, Tennessee Attorney for Plain tiff/App ellant.
Harold F. Johnson , Jackson, Tennessee Attorney for D efendant/Appellee.

OPINI ON FIL

ED: AFFI RMED AND

REMANDED FARMER, J. CRAWF ORD, P.J., W.S. : (Concur s) LILLARD, J. : (Concur s)Plaintiff Deborah Joanne Cupples Plunk (Wife) a ppeals the final divorce decree entered by the trial court whic

h awarded custody

of the parties’ tw o children to the Wife, ordered Defendant/Appellee Edward L ee Plunk (Husband) to pay child support and rehabilitative alimony to the Wife , and distr

ibuted the parties’ real and persona l proper ty. We affir

m.

The partie s were mar

ried for twenty -six years and had two da ughters, who were thirteen andfifteen

ye ars of a

ge at th e time of t

rial. The parties’ primary source of income during the marriage was their re

tail weste rn-wea r store, Boots Fo

r Le ss. Until

the time of their separation, bothparties worked full-time at the store. The Husband did the paper work for the s tore and

sold merchandise. The Wife waited on customers, stocked inventory , maintained the store’s computer inventory sys tem, clea

ned, and perfor med oth er tasks as r equired. The Wife participated in the management of the store and was c apable of running the store when the Husba nd was not there.

T he parties 1992 and 1993 tax returns, respectively , indicated total income of $83,94 7 and$63,252. A

lthough t he tax retu

rns attri bute d this inco me solely to the Husband, it was undisputed that neith

er part y drew a set salary

from Boots For

Less and that most of this income was generated by t he store , where

bothparties worked full-time. The parties also earned a small inco me from their activities as licensed bail bondsmen and from rental properties whic h they acquired over the ye ars, including the Magic Valley property on whic

h Boots For Less wa s located and var iou s residen tial prope rties.

At the tim e of tria

l, the Wife was forty- three ye ars old and had a high school education. Most of he

r jo b experience came

from wor

king at B oots For L

ess. Afte r the par ties’ separation, the Wife contacted other retail stores to inquire about employment opportunities. The Wife did not think it would be a problem for her to find a new job.

The Husband had a high school education and some colleg e education and military experience. Like

the Wife, m

o st of the Husband’s job experience came from his employ ment at Boots For Less. The Husba nd also owned a

one-half intere st in two Subw ay restaur ants, which he formerl y valued at $25,000; however, the Husband testified that the Su bways had no va

lue at the time of trial because their debts exceeded their assets. According to the Husband, the Subway s owed1 A special master was appointed to oversee the liquidation of B oots For Less.

$38,041.35 to their

suppliers and $27,246.57 in back taxes. During the y ear prior to the divorce, the Subway s earne d no profi

ts.

In the fina l divorce decree , the tria

l court div ided most o f the par

ties’ marital p

roperty eq ua ll y, with all real property to be owned by

the part ies as ten ants in common. The marital estate, which was valued in excess of $900,000, included, but was not limited to, the following propert ies:

PROP ERTY APPROXIMATE VALUE Magic V alley

propert y $ 175,000 Marital home $ 150,000 26 acre s adjace

nt to marit

al home $ 104,000 Accounts receivables $ 376,500 Re si de nt ia l r en ta l p ro pe rt ie s ( eq ui ty) $ 40,000 Morgan Keega n accounts $ 41,400 Boots Fo r Le ss Unknown 1

Rather than ordering a distribution of the proceeds from the sale of the parties’ r eal property , the trial court ordere d that the

procee ds be dep osited wit h the cour

t c lerk to be

dis bursed la

ter purs uant to court order or ag reement of the parties. The trial court awa rded the Husband his interest in the Subway restaur ants.

In addition to

distributing the parties’ property , the trial court ordered the Husband to pay reha

bilitative alimonyto the Wife in the am ou nt of $4 00 pe r m on th fo r a pe ri od of tw en tyfour mon ths and to pay child support in the amount of $798.66 per month. In calculating the Husband’s child support

obligat ion, the tr ial cour t attribut ed $40,00 0 of the pa

rties’ total income

for 1993 to the Husband.

On appeal from the final divorce decree, the Wife c ontends that the trial court erred (1) in calculating th

e Husband’s incom

e for pur poses of d

etermining child

support, (2) in failing toaward permanent alimony to the Wife, (3) in failing to award the Wife any interest in the Subway restaur ants, and (4) in failing

to provide

for a definite

distribution of proceeds upon the sale of the pa rt ie s’ re al pr op er ty.

We first reject the Wife ’s argumen t that the t

rial cou rt erre d in attributing onl y $40,000 in gross income to the Husband for purposes of establishing his ch ild sup port obligation when the parties’ tax returns showed a much greater income. At trial, the Wife reque sted that the trial court award

child support

based on the Husband’s total income of $63,252 as reported on the parties’ 1993 tax return. Although the parties’ joint tax return f or 1993 a ttributed all of thisincome to the Husband, it was undisputed that most of the $63,252 amount repr esente d income from the parties’ business, Boots Fo r Le ss, that both partie s worked full-time at the bus iness, and that this income resulted from

the efforts of both parties. Accordingly , we hold that the trial court did not err in apportioning $40,000 of the $63,2 52 amount t

o the Husband as income for purposes of calculating child supp ort.

As part of

this issue, the Wife contends that the trial court erred in failing to requir e the Husband to maintain insurance on his life and to name the parties’ childre n as beneficiaries of the policy. See T.C.A. § 36-5-101(g) (1996). I nasmuch as there has been noshowing of a timel

y
re quest to the trial court for this relief, we decline to gr ant such relief on appeal. Mayfield v . Mayfield , No. 01A01-9611-CV-00501, 1997 WL 210826, at *7 (Tenn. App. Apr
. 30, 1997). The Wife also cont ends that, in ca lculating the Husba

nd’s gr oss income

for purp oses of de

termining child support, the trial

court er red in fa iling to include de

precia tion and ot

her amou nts and in f

ailing to average the Husband’s inc ome as shown on the parties’ 1992 and 1993 tax returns. See Tenn. Comp. R. & Regs. chs. 1240-2-4-.03(3)(a ), 1240-2-4-.04(e) (amended 1994). The Wife, howe ver, didnot raise these arg u ments below. Instead, she reque sted that the trial court establish the Husband’ s child support obligation based on the $63,252 in total income reported on the pa rties ’ 1993 tax return . Under t

hese circumstances, the Wifehas waived these sub-issues for purposes of appellate review. Barnhill v. Ba rnhill , 826 S.W.2d 443, 458 (Tenn. App. 1991).

Even if the Wife properly pre served these arguments, we still would affirm. If, as the Wife argues, d epreci ation is added back to the parties’ 1992 income and the 1992 income is then2 As for the Wife’s argument on appeal that deduc tions for advertising and car expenses should be added back to the parties’ gross income, our review of the record revea ls no evidence to support the Wife’s contention that these expenses were excessive. See Tenn. Comp. R. & Regs. ch. 1240-2-4-.03(3)(a) ( amended 1994). averaged with the parties’ 1993 income, the result is an averag e gross income of $77,950. I nasmuch
as this figure represents the combined income of both pa rties, we conclude that the trial court properl y allocated over fifty

percent of this income to the Husband for purposes of determining the Husband’s child support obligation. 2

We also affirm the trial court’s decision to award the Wife r

ehabilita tive alimo ny in the amount of $400 for

a period of twenty

-four mo nths in

lieu of the

$2,000 pe

r month in p eriodic alimony requested by

the Wife at trial. The trial court has broad discretion in determining whether to award alimony. Loyd v. Loyd , 860 S.W.2d 409, 412 (Tenn. App. 1993). In deciding the a mount andtyp e of alimo ny t

o be awa rded in th is case, the trial court was required to consider the following factor s:
(A) The relative earning capaci ty, obligat ions, needs, and financial re so ur ce s o f e ac h p ar ty, i ncluding income from pension, profit sha ring or retirem ent plansand all ot

her sour ces; (B) The relative education and training of ea ch party, the ability and opportunity of ea

ch party to secure such education and train ing, and the necessity of a party

to secure further education and training to improve such pa rty’s earning

capaci ty to a reaso nable level; (C) The duration of the marriage; (D) Th e a ge an d m en ta l c on di ti on of ea ch pa rt y; (E) The ph ysica

l condition of each party , including, but notlimited to, phy sical disa bility or incap acity

due to a chronic debilitating disease; (F) The extent to wh

ich it would be u

ndesira ble for a party to seek emp loyment outsi de th e home because such party will be custodian of a minor child of the marriage; (G) Th e separ ate assets of each party , both real and personal, tangible and intangible; (H) The provisions made with regard to the marit al property a s defined in § 36-4-121; (I) The standar

d of living of the pa rties esta blished during the marriage;(J) The extentto which each party has made such tang

ible andintangible contributions to the marriage as monetary and homemaker

contributions, and tangible and intangible contributions by a party to the

education, training or increased e arning power of the ot he r p ar ty; (K) The relative fault of the partie s in cases where the court, in its discretion, deems it appropriate to do so; and (L) Such other factors, including the tax conseq

uences t o eachparty, as a

re necessary

to consider the equities between the parties.
T.C.A. § 36-5-101(d)(1) (1996). Of these factors, need and the ability to pay are

the most critic al. Loyd , 860 S.W.2d at 412.

Th e evidenc e in this ca se demons trated th at the pa rties we re simila rly situated in terms of their r

especti ve educ ations, jo

b training , earning capa

citie s, and assets. Both parties had high school ed

ucations , and both

parties’ primary

job experi ence wa s working togethe r in their business, Boots For Less. The Wife, w ho was forty- three ye ars old at the time of tr ial, testified that she did not thinkit

would be difficult for her to obtain other employ ment in the retail industry. The Hu sband w as uncertain as to his future employ ment prospects. Moreover, the Wife, like the Husband, was awa

rded one -half

of a mar ital esta te value d in excess of

$900,000. In lig

ht of thes e factor s, we conclude that the trial court did noterr in refusing to award per iodic alimony to the Wife. Barnhill , 826 S.W.2d at 454-56.

As fo r the property

issues raised on appeal by the Wife, we affirm the trial court’s dec ision to awar d the Husband his interest in the two Subway r estaurants and to allocate to the Husbandany

debt asso cia

ted therewi th. Trial courts have broad discretion in dividing marital estates, and their decisions are afforded g reat weight on

appeal. Fisher v. Fisher , 648 S.W.2d 244, 246 (Tenn. 1 983); Harrington v. Harrington , 798 S.W.2d 244, 245 (Tenn. App. 1990). In light of the Husband’s testimony that the debts of the Subway restaur ants exceeded their value, we conclude that the trial court did not abuse

its discre tio n in declining to award the Wife any interest in the restaurants. We likewise conclude that the trial court did not abuse its discretion in requiring that t he procee ds from the

sale of th

e partie s’ real p

roperty be depos ited with th

e court c lerk prio

r to distribution of the funds.As a final matter, w e deny the Wife’ s request for an award of attorney ’s fees on

appeal.

The final divorce decree ente red by the tria

l court is a

ffirmed . Costs of this appeal
ar e t ax ed to th e W ife, fo r w hi ch ex ec ut io n m ay i ss ue if ne ce ss ar y.

____________________________________ FAR MER , J.

______________________________ CRAWFORD, P.J., W.S. (Conc urs)

______________________________ LI LL ARD, J. (Conc

urs)