### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE Assigned on

Briefs, March 14, 2003 RICK ALLEN WILLIAM S, v. ANGELA WILL IAMS Direct Appeal from the Fam ily Court for Rhea County No. 21402 Hon. James W. McKenzie, Judge

FILED MARCH 24, 2003 No. E2002-01995-COA-R3-CV

The Tri al Court in

th is di vo rc e a ct io n, gr an te d t he pa rt ie s a di vo rc e a nd di vi de d m ar it al pr op er ty. The husba

nd appea ls, seeki ng additional mar ital prope rty . We affir

m. Tenn. R. App.P.3 Appe al as of Right ; Judgme nt of the F amily Co

urt Affirm

ed.

H ERSCHEL P ICKENS F RANKS , J., delivered the opinion of the court, in which C HARLES D. S USANO , J R ., J., and D. M ICHAEL S WINEY , J., joined.

J. Shannon Ga

rrison, D ay

ton, Tennessee, f

or Appel lant. Carol Ann Barron, Day

ton, Tennessee, for Appellee.

OPINION

The parties t

o this divorce action were married on May

23, 1997, and separated on December

4, 2000. The Trial Court notedthat the marriage “lasted approximately three ye ars” and said “at the time of the marriage [the wife] . . . had in her possessio n the house

in question, also, that at the time of the marriage, Mr. Williams had gotten out of bankruptc y and had nominal assets at the time of the marriage”.

After hearing the evidence, the Trial Court granted both pa rties a divorce and assigne d the marital property to the pa rties. The husband has appealed, insisting that he should h ave bee n-2-

awarded one-half of the inc rease in value in the wife’s retirement account during the marriage, and should have been

awarded one-half of the increase in the wife’ s home accruing during the mar riage. Also he argues that he should have been a warded the divorce. On appeal, the wife raises the issue of whether the a

ppeal is f rivolous. Tennessee Code Annotated Section 36- 4-2 1(B) includes as marital property “any increa se in value during the marriage of, property determined to be separa

te prope rty . . . if ea ch party substanti ally

contribu ted to the preser vation an d apprec iation . . . .” As to the husband’ s claim t

o one-half of the increase in the value of the 401(k) at the wife’s place of employ ment, the Trial Court held that the increase was marital property , but found: “. . . that Mr. Williams has not made any substantial contributions toward the appreciation or increa se in valu e of said

account.” While the evidence does not

prepond erate a gainst t his finding , Tenn. R. App. P. 13( d), monie s were w ithheld from the wi fe’s ea rnings durin g the ma rriage and were placed in the 401(k) acc ount. However, we conclude that the distribution of the full 401(k) accoun t to the wif e was an equitable distribution under the overall distribution of the assets made by the Trial Court. The evidence does not preponderate against the Tria l Court’s finding. Tenn. R. App. P. 13(d). As to the sec ond issue, i.e., any increa se in

value of the wife’s house, the Court said:

. . . the Cour

t is asked to rely upon the a

ppraise r submitte d as Exhibits 5 and 6, to come up with a value that Mr. Williams feels is appropriate, which would have been around, somewhere around $12,000.00. However, the Court is of the opinion that the use of said documents does not justify a va luation nor can the Court, based upon the proof presented here, come up with a valua tion as to Mr. William’s theory on the increa se in value. The proof is not -- basical ly w hat I ’m say

ing is tha t Mr. William s has notcarried his burden of proof as to the proof in value in regard to the increased value in this case. Again, the evidence does not preponderate against the Trial Court’s finding , and the e vidence amply supports that the Trial Judge appropriately granted both parties a divorce. The wife seeks damages for a frivolous appea l, pursuant

to Tenn. Code Ann. § 27-1- 122. The record does not establish that the appeal was taken “ solely for delay”, since

the husband was actu ally

seeking to incre ase his a

ward. We

deny the wife ’s Applic ation for Damag es. The cause is remande d, with the cost of the appea

l assesse d to Rick Al len Williams

.

_________________________ H ERSCHEL P ICKENS F RANKS , J.