### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE April 10, 2000 Sessi on
WILLIAM EMORY FOX v . MARCELLA ANNE AMES F OX Appeal from the Chancery Court for Franklin County No. 15,620 Jeffrey F. Stewart, Chancellor

No. M1999-01720-COA-R3-CV - Filed April 11, 2001

In this divorce

case ending an eigh

teen year marriage, the

trial court awar

ded as separate

property only the items owned by each party a t the time of the marriage. The court award ed the marital home to both parties as tenants in common, allowing Wife to retain possession while the children were minors but requiring her

to make the mortgage payments. Upon the sale of the prope rty, the parties
were to divide the proceeds of the sale, after

costs and encumbr

ances were pai

d, with Wife receiving 60% and Husband receiving 40%. Wife appeals, contending that the court was required to classify the gifts during the marriage as separate property , a nd t hat the court’s distribution of the marital property was not equitable. She also argues tha t the tria l court violated federal law by awarding Husbanda percentage o f the real pro perty and by orderin g her to pay the mo rtgage, claim ing t h e source of the equity in

the property

and of her income

is her disability

benefits, and those funds are exempt from “attachment, levy, or seizure.” The evidence does not preponderate against the court’s classification of property, and we find the division to be equitable. We find no violation of federal law in the award of th

e real property

or in the requirement that Wife pay the mortgage so long as she occupies the pre

mises. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed and Rem

anded.

P ATRICIA J. C OTTRELL , J., delivered the opinion of the court, in which B EN H. C ANTRELL , P.J., M.S., and W ILLI

AM B. C AIN , J, joined.

Robert F. Hazard, T

ullahoma, Tennesse e, for the appellee , William Em

ory Fo x.
Barbara G. Hardin

, Decher d, Tennes see, for t

he appell ant, Marc ella Anne Ames Fox.1 Tenn. R. App . P. 10 states:

This Court, with the concurrence of all judges part icipating in the

case,may af

firm, reverse or m odify the actions of the trial court by memorandum opinion when a formal opinion would have no precedential

value. W h en a case is deci ded by memorandum opinion it s hall be design

ated “MEMORANDUM OPIN ION” , shall not be p ubli shed, and shall not be cited or relied on for any reason in any u

nrelated case.

2 Wi fe suf

fered from Meniere ’s disease and fibromyalgia, d egenerative in nature, both of which were in remission at the time of t he hearing in this matter

. 2

MEMORANDUM OP

INION 1

William Emory Fox (“Husband”) and Marcella Anne Ames Fox (“Wife”) married in 1981 and have two chil dren, a daughte r born in 1983 and a

son born in 1986. The

parties met in fie

ld artillery school at Fort Sill, Oklahoma, while Wife was on active duty in the U.S. Army and Husband
was in the National Guard. After the marriage, Husband took various jobswhere Wife was stationed in order to remain w

ith the family ; Wife was the primary br eadwinner. Wife

was medically discharged 2 from the army in 1994, and at the time of the trial she received disability benefits from the Veteran’s Administration (“VA”) as her primary source of income. She a lso received VA vocat ional rehabilitation benefits, which provided her with tuition, books and a stipend whi le sh e pursueda master’s deg

ree in education

from Tennessee

State University

. She expected to g

raduate in May, the following year.

Husbandhas a college degree, and was working two jobs, both related to computers, at

the time of the trial. He also has a disability related to his military servic e, but he did not apply for disability be

nefits.

The parties purchas

ed approxima

tely thirty-three acres inFranklin County in 1994, after Wife left the army. They

placed a Quonset hut on the property and began fixing the interior f or use as the family home. Both parties worked on the residence, but after the separation, Wife remained there withthe chi ldr en an d as sum ed re spo nsi bil ity for the improveme nts. Wife’s parents gave the parties $5, 000 toward the purchase of the land, Wife contributed $4,000 and closing costs, and Hus ban d contributedalmost $16,000 after cashing out an Individu al Retirement Account. Wife made arrangements

so that the mortgag

e payments w

ere taken direc

tly from her checking account. The parties did not have the landand home appraised prior to the trial; they owed almost $55,000 on the property and Husband believed it was worth about $94,000, while Wife claimed it was worth about $65,000. Neither party

felt able to pay the other for his or her share of the

equity unles s the property
were sold. Wife specifically stated that she wanted to remain

on the property with the children and testified she would have to sell i t and move to another state, where her parents lived, if she were ord ered to p ay th e hu sba nd a nyth ing i mme dia tel y.
The parties stipulated to gro unds fo r divorce, and the court heard testimony regarding3 Custody was not a h

ot ly d isputed issue a

t tri al, wi

th the on

ly real question being t

he husband’ s visi

tation schedule. The court grante d a divorc e to both p arties on stipula ted ground s, awarded custody of t he children t

o Wife, with visitation to Hu sband, and ordered Husban d to pay child support. N o issue regar ding the gran t of divorce, c ustody, or visitation has b een raised o n appea l.
3 custody 3 of the children and the division of property. Most of the testimony at trial centered around the value of certain items of personal property, and which party ow ne d which items. Some silver place settings were r

eceived at the ti

me of the marriag

e; Husband conten

ded they we

re wedding gi

fts, while Wife claim ed they were gi fts from her family to her. Husband had a large gun collec tion,
someof which he owned before marriage, some of which had bee n gifts from Wife to Husband, although there was some dis agreement as t

o how many an

d as to their value. Husband also testified that other people had given him guns and a miniature cannon. They also had other collections, such
as David Winter cottages , Hummel figurine s, and books. They

testified that some

of these items had been gifts from one spouse to the other and that they had purchase d a number.

Prior to its ruling, the court was informed that the parties were “not all that far off” regarding
a property agreement. The court took a recess so the parties could work out a settlement, but the attempt was unsuccessful. In dividing the couple’s property, the cour t awarded each party his or her vehicle; awarded the parties’ household furnishings and appliances to Wife; awarded the Wife the
use of the tractor until she sold the farm, when the proceeds would be divided equally; orde red that
an insurance policy maintained by Husband be cashed in and the proceeds applied to a marital debt, with any remaining debt to be divided equally . Regarding the real property, the cour t ordered:

The marital residence and acreage owned by the part ies shall henceforth be owned by [Husband and Wife] as tenants in common. [Wif e] may contin

ue to reside in this residenc e until the parties’ youngest child attains the age of 18 y ears or gradu ate s from high school with th

e class of which he is a membe r, whichever oc

curs last. [Wife], until this property is sold as provided h

erein, shall b

e respons ible for and shallpay the month

ly mortgage expense encumbering this residence, shall be responsible

for and shall pay

the monthly mo

rtgage expens

e encumbering

this residence, shall be r espon sible for payment of property taxes acc rued for the year 1999 and thereafter, shall be responsible and pay for all routine maintenanc e expense, and paymen

t of property

casualty in

surance with a min

imum insurable

value equal to the fair market v

alue of all improve

ments tothe property . Property taxes accrued for tax year 1998 shall be born equally by the parties. Major repair to the residence shallbe paid jointly

by the parti

es with [Wife] contrib

utin g 60% of said costs and [Husband] contributing 40% of said costs.

This real property

and the improveme

nts th ereon shall be sol

d when the partie

s’ youngest child attains the age of 18 year s and/or gradua

tes high school wi

th the class of which he is a member. . . . The net proceeds derived from the sale, i.e. gross sales pr ice less the costs of sale and the then existing mortgage indebtedness, shall be divided between the parties with [Wife] receiving 60% of the net proceeds and [Husband] receiving 40% of the net proceeds. Neither party shall further encumber4 This figur e includes t he guns he claims he acquired during the marriage which were not gi fts, but we have excluded the insurance ca sh value and the househo ld goods.
4 this real property without the prior written consent of the other party thereto.

The remainder of the personalty owned by either or both p arties ranged from the gun and figurinecolle c tions, to prints men tioned onl y in passing but never valued , to a tent, shelving, camping equipment, ca ssette tapes, swor ds mentioned but not v

alued, and other

miscellaneous ite

ms. Husband’s list included 72 miscellaneo us items, but he testified it was not complete. The record regarding this personalty is confusing. Husband offered a list of pr operty which included a miscellaneous pe

rsonalty category which he valued at $22,724. 4 Wife also introduced a list, but it is notclear

if it includes only

those items Husband

wanted or all thei

r property . The testimony did notclear up many

issues regarding

what property they actua

lly had, how it was acquired, or its value. The parties’ testimony about gifts is unclear , sometime s distinguishing between gifts from each other and gifts from third p

arties. Based u

pon the lack of cla

rity and spe cif ici ty re gard ing t he p rop ert y, the cou rt a ward ed ea ch p art y, as separate property, those items each brought into the marriage, and specifically

enumerated some

of those. It a

lso specifically awarded some pieces of m ari tal pro pert y. Concerning the remainder of the personal property, the court ordered:

All remaining items o

f personalty

not specifically

decreed to eithe

r party her ein shall be divided by the par

ti es as follows: the Court directs that the parties assemble or designate all other items of

personalty

and that they

draw lots and that t

he party wi

th the lowest number sha

ll first choose one item of personalty, the other party ther eafter shallchoose the second item o f personalty , and alternating

thereafter unt

il all remaining items have been selected. Items of pers onalty sele

cted by ea ch party sha

ll become their sole property fr

ee from claims of the other . The Court instruc

ts this division to be made in this manner in order to avoid further expense to the parties which would result from a court ordered s ale or the cost of independent inventory and appraisal that would be necessary in order for the court to make further division of p ers ona lty.

Neither party on appeal challenges this method of distribution of the personalty, per se . Wife presents two issues: first, thatthe trial court’s division of the property was inequitable, and, second, that the trial court violated federal law by awarding Husba nd 40% of the real propert y and by ordering that she pay the mortgage, beca use her sole source of income, and the source of some of the equity in the real property, is the disability benefits, and those funds cannot be “attached.” Because this issue goes to the authority of the court to make its distribution of the major asset in the marital estate, we will deal with it first.5 I.

It is not disputed that the land and residence are properly classified a s marital property. Wife objects to the distribution of equity by the cour

t, but also asserts tha

t the trial court ha

d no authority to award Husband pa

rt of the equity

or to order her to

pay the mort

gage until the

house is sold. We cannot avoid placing this argument in the context of Wife’s testimony that she wanted to be a

ble to remain liv ing o n th e pro pert y, an d th at s he co uld not imm edi ate ly p ay Husban d for any e quity withoutselling the property. We assume she intended to make mortgage payments in order to keep the house hadshe been awarded all the equity. At least, we assume the mortgagor intended that she make such pay

ments.
Wife’s argument that the trial court violated federal law by awarding

Husband 40% of the equity in the real property

at the time it is sold, and by ordering her to pay the mortgage should she choose to occupy the premises until the younger child is emancipated, is based on 38 U.S.C. § 5301(a) which sta

tes, in pertinent p

art: Payments of [veteran’s disability] benefits due or to become du e under any law administeredby the Secretary shallnot be assignabl

e except to the exten

t specifically authorized by law, and such payments made to, or on a ccount of, a beneficiary

shall be exempt from taxation, shallbe exempt from the claim of creditors, and shall not be liable to attachment, levy, or seizure by or under any legal or equitable pro ce ss whatever, either before o

r afte r rece ipt by th e ben efi cia ry. The preceding sentence shallnot apply to claims of the United States arising under such laws nor s hall the exemption therein contained as to taxation extend to anyproperty purchased in part or wholly out of such payments. . . . Wife argues that, because the mortgage pay ments have been and will bemade through her checking account, and

because her “o

nly guaranteed so

urce of income”

is her VA disability

benefits, the court’s order a

warding Husban

d a portion of the e

quity in the property and

ordering her to make the payments on the property is an unlawful “ attachment” of her benefits. We disagree.

Wife’s argument has two prongs which we shall a

ddress in turn. First, she argues that because the regu larmonthly payments on the real property have been made from her checking account, which is funded by her VA disability

benefits, th

e property

itself is not subjec

t to “attachment, levy or seizure.” This argument is simply not supported by case law.

The United States Supreme Court addressed a similar argumen

t in Carrier v. Bryant , 306 U.S. 545, 59 S. Ct. 707 (1939). In Carrier , the Court confro nted the question of

whether the Nort

h Carolina Supreme Court had erred in rul ing that negotia ble notes and U.S. b

onds purchased w

ith “payments

of [veteran’s disability] benefits” were subject to execution upon a judgment against the veteran. The Cou

rt considered 38 U

.S.C. § 454(a) [repe

aled], the precur

sor to the statute at issue, 38 U.S.C. § 5301(a), and which contained almost identical language. Carrier , 370 U.S. at 546, 59 S. Ct. at 707. First noting that the exemption applied only to “‘payment of benef its’ due o r to become due,” the Court found that the investments purchased with that money were not exempt. Id .,5 In a later case, Porter v. Aetna Casualt y and Surety Co. , 370 U.S. 159,82 S. Ct. 1231 (1962), when confronted with the question of whether bank a ccounts f unded b y dis ability benefits were subject to attachment, the Court distinguished between funds held in bank accounts and “readily available as needed for support and maintenance,” and funds “converted into permanent inves tments.” Porter , 370 U.S. at 162, 82 S. Ct. at 1233. The “readil y avail able” fu nds
were not subject to atta

chment by

creditors wh ile the “perma nent investme nts” were. Id. The Court no ted that Congress, by creating t

he exemption for benef its int ended that veter

ans have money “rea

dily avail

able as needed for support and maintenanc e” of the veter an. Id.

6 In cases somewhat related to this, t he Tennessee Supreme Cour t and this court have held that veterans who waived retirement benefits i n order to receive disabil ity ben efits must rei mburse th

e former s

pouse for t

hat porti on of the waived retire ment bene fits which had been awarded to the former spouse at the divorce. W e found no conflict with 38 U.S.C. § 5301 (a) in those ruling s. See Johnson v. J ohnson , No. W1999-01232-SC-R11- CV, 2001 WL 173502 at *5 (Tenn. Feb. 23, 2 001) (re quiring form er husband who receiv ed disability b enefits to reimb urse former wife for monies awarded to her

at div orce, a nd sta ting , “On re

ma nd, the trial court shall give effect to it

s decree without dividing Mr. Johnson ’s disability pay.”); Hillyer v. Hil lyer , M19 98-00942- COA- R3-CV, 2001 WL 242558 at *5 (Tenn . Ct. App. March 13, 2001) (interpreting Johnson “only as limiting the tria l court’s ability to or der direct p ayment s” fr om the
6 370 U.S. at 547, 59 S. Ct. at 708. Turning to the second sentence of the statute, the Court

observed that while Congress had exempted the veteran’s benefits from taxation, it clearly had not exempted the property purchased with those benefits. Id. Then, discussing an earlier cas

e in which a

veteran had argued that because his veteran’s benefits were exempt from taxation, the land purchased with those funds was also exem

pt from taxation, the

Court s a id, “‘The moneys payable to this soldier
were unquestionably exempt till they came into his hands . . . we think it very clear that there was
an end to the exemption when they lost the qua lity of m oneys and were converted into land and buildings.’” Id. , 370 U.S. at 549, 59 S. Ct. at 709 (quoting Trotter v. Tennessee , 290 U.S. 354, 54 S. Ct. 138 (1933)). The Court upheld the North Carolina Supreme Court’s judgment allowing execution on investm

ents purchased w

ith disability

benefits. 5 Id. Although Wife’s disability benefits were exempt from “attachmen t , levy, or seizure,” we conclude, as did the U.S. Supreme Court, “there was an end to the exempt ion when they lost the quality of moneys and were converted into land and buildings.” We also note that courts in other states, when dividing pro

perty pursu

ant to a divorce, have

held that propert

y purchase

d with funds derivedfrom disability benefits was subject to division. See Bishoff v. Bish off , 987 S.W.2d 798, 800 (Ky. Ct. App. 1999) (disa bility benef

it s lost th eir exempt status wh en invested in the p

arties’ residence); Gray v. Gray , 922 P.2d 615, 619 (Okla. 1996) (once husband converted his disa

bility benefitsto personal proper ty by pu rchasing two va

ns and a motor home,

the exempt status of t

hose funds was lost); Pfeil v. Pfei l , 341 N.W .2d 699, 702-03 (Wis. Ct. App. 1983) (hold

ing that a mortgage note and real property purchased with funds obtained through di sabi lity benefits were subject to division).

Wife’s second argume

nt, that the court ma

y not o rder her to

make the payments on the pro pert y, should she choose to remain, is also based on her theory that the court has “attache d” her benefits. She contends that, in effect, the court awarded 40% of the mortgage pay ments to Husband. We cannot agree

for two reasons.

The trial court di

d not order that dis

ability benefits be paid

to the
mo rtgage com pan y; Wife is free to pay the mortgage

with any fun

ds which might be a

vailable to her. 6 Also, Wife is not requiredto retain the property. She is free to vacate the premises and sell theVeteran’s Administratio n); Smith v. Smith , No. M1998-00937-COA-R3-CV,2001 WL 242562 at *5 (Tenn. Ct . App. March 13, 2001) (same).
7 property at any time p

rior tothe time her son tur ns eighteen and

graduates fro

m high school;

the only requirement

is that she maintain the property and make the pay ments while she is there. The order that Wife make mortgage payments while she occupies the pr operty is not an unlawful attachment or division of her d

isability ben

efits

. II.

Wife also claims that

the trial court’s division of property was not equitable, because of her greater financial contribut ion to the m arriage , and because of her g reat er ne ed, due to h er di sab ili ty, even though her income, through her disability benefits and her educational stipend, exceeds that of Husband, who is als

o required to pay

child support.

We agree with

the statement in Hu

sband’s brief tha

t he found it diffic

ult to address this issue because Wife “generally complains as to the distribution of assets but does not provide specifics as to a proposed cure.” The wife did not include in her brief a tabulation of marital or separ

ate property as required by

Tenn. Ct. App. R. 15.

That rule provide

s: (a) In domestic relations appeals where the issues involve t he amount or the disposition of the marital property, the appellant's brief shall contain in the statement of facts or in a n appendix, an orderly tabulation of all marital property in a form substantially

like the form attache

d hereto. All entr

ies in the table as to val

ue and to whomth e prope rty was awarded shall be accompanied by a citation to the record where the information may be found. (b) If the appea

l involves issues a

bou t the separate property of either party or the allocation of the

marital debts, the

appellant's bri

ef shall contain a

separate table

in the same form showing the pertinent information for that disputed issue.
(c) If the appellee disagrees with the appellant's tabulation, the appellee's br

ief shall contain a tabulat

ion in the same for

m showing the appe

llee's version o

f the facts.

MARITAL APPEL LANT' S APPE

LLEE' S VALU

E FOUND PARTY TO PROPERTY VALUE VALUE BY TRIAL WHOM PROP- COURT ERTY AWARDED

BY TRIAL COURT 1. (Description) $ $ $ Husband or Wife

(Citation to (Citatio

n to (Citation to (Cita tion to record) record) record) record)8

One reason for the failure to include this type of table is because there is insufficient evidence in the record to compile such a table. As the trial court observed, the primary disputes herein were not ove r wh ich part y sho uld rece ive cert ain ite ms o f per son alt y; rather they could not agree on the values, and “everybody

wants to be sure they get their fair share.”

The issues s urrounding the Hummel figurines and the David Winter cottages, two of the collections involved, exemplify the problem fac ed by the trial court and by this court. Both Wife and Husbandtestified that some of the individual items in the collection were gifts from Husband to Wife and some were purchased by one or both parties during the marriage, and the wife stated “we collected a lot of things while we were in Germany.” Husband estimated there were

approximately 60 items in the Hummel collection and valued them at an average of $40 each. Wife testified there
were onl y 25 Hummel figurines, but failed to estimate their value. She stated there were approximately 70 David Winter cottages, with a average value of $30 to $40 each.

In this appeal, the wife

argues that all

items, presumably

including individu

al items i n th e collections,

which were received by either party during the marriage as gifts should have been classifiedas separate

pro pert y. Th e st atu tor y defi nit ion of “s epar ate pro pert y” includes “[p]roper ty acquired by a spouse at any time by gift, bequest, devise or descent.” Te nn. Code Ann. § 36-4- 121(b)(2)(D). Thus, clearly gifts to one spouse are th

at person’s sepa

rate property

. Even gifts

from
one spouse to the other

become the sepa

rate property of the receiving spouse. Batson v. Batson , 769 S.W.2d 849, 856 (Tenn. Ct. App. 1988).

The disti nctio n in classificatio n is important beca

use only mar

ital property

is subject to distribution. Tenn. Code Ann. § 36-4-1 21(c). Thus, before dividing the marital estate in a divorce proceeding, th e tri al court must first c lassify the p

arties' proper

ty as either

marital or separ

ate propert y. Tenn. Code Ann. § 36-4-121(b). The trial court has wide discretion in classifying the parties' property, and its deci sion is entitled to great weight on appeal. Dunlap v. Dunlap , 996 S.W.2d 803, 814 (Tenn. Ct. App. 1998). Absent an error o f law, the t rial court's classification of property and its divisio

n of marital property will be reversed or modified only if the evidence preponderates against the court's decision. Id., see also Tenn. R. App. P. 13(d).

While the trial court’s duty is to classify and value the pa r ties’ property

and to equitably divide the marital property, the court cannot make these determinations on any basis other than the evidence presented by the parties. Therefore, it is incumbent upon the parties to prese nt clear evidence sufficient to allo w the court to iden

tify the pro

perty owned, classify it, and establish a value for it. The court must, of course, decide any factual issues create d by conflicting

testimony. Wife appears to contend that the court should have classified every item the parties’ possessed, even when the parties present

ed little or no proo

f regarding

their complete holding

s and the ownershi

p thereof, and established a value f or each item, even when it heard no evidence of value for most of the pro pert y.
The trial court herein ord ered that all per

sonalty not otherwise specifically awarded to one party was to be divided roughly e qually. In making its ruling from the bench, the c ourt stated:9

I’m going t

o award each on

e of you the

separate prope

rty that y ou’ve testified to

. . . When I say se

parate property, I

’m not considering

what you ca

ll a gift as sepa

rate pro pert y.
. . . You know, we can go back and argue about what’s a gift and what’s not a gift, but there were gifts both ways and some you agree

on and some y

ou don’t; I can’t tell the differenc e, so when I say separate property , I am defining that as the property that each of you c arried into this marriage . . .

We interpret the trial court’s determination as including a finding that neither party claiming specific property asa gift established such gift through proof. “

In a divorce

case, as in other

cases, the burden of proving that a gift was made is on the donee or the party asserting the gift.” Dunlap , 996 S.W.2d at 814 (citations omitted). Having carefully reviewed the testimony

and exhibits in this record, we cannot say that the evidence preponderates against that finding. Therefore, we affirm the trial court’s cla

ssification of the

property no

t specifically

excluded from its or

der as marital.

III. Having affirmed the

trial court’s classification of property, we turn now to the distribution of ma rital property. This court has previously discussed the division or a c ouple’s prop ert y a t divorce as follow

s:
Tennessee Code Annotated § 36-4-121(a) provides that marital property should be divided equitably without regard to fault. It g ives a trial court

wide d iscretion in adjusting and adjudicating the parties' ri

ghts a n d interests in all jointly owned pro pert y. Accordingly, a t rial court's division of the marital estate is entitledto great weight on appeal and s hould be presumed to be proper unless the evidence preponderates otherwise.

A trial court's division of marital property is to be guided by the factors cont

ained in Tenn. Code Ann. § 36-4-121(c). However, an equitable property division is not necessarily

an equal one. It is not achi eved by a m echanical application of the statutory factors, but rather by considering and weighing the most relevant f

actors in light of the unique facts of the case.

Batson , 769 S.W.2d at 859 (citations omitted).
Wife, while generally claiming an inequitable distribution of the mari tal estate, appear

s to be primarily

concerned with thecourt’s distribution of the equity in the real property, a nd argues that Husbandis notentitled to 40% of that equity. With regard to the couple’s personal property , the trial court awarded each

party the c

ar he or she prima

rily used. I

t awarded Wif

e the household furnishings,

noting that Husband was to get a few sheets and towels for his personal use. The remainder

of the personal pr

operty was

to be divided on a r

oughly equ

al basis , using an alt

ernate selection basis. Although Wife has not specifically identified her concern with rega rd to the personal property, we

presume that she is of the opinion that an equal distribut

ion is not equitable

in these cir cumstances. She also seems concerned that whatever items she gets actually add up to h e r10

awarded percentage of the total to be distributed.

Tennessee Code Annotated § 36-4-121(c) lists the factors for the court to consider in making its distribution of marital property. Among those are the health and financ ial needs of

the parties and the contributions of the parties to the marriage. Tenn. Code Ann. § 36-4-121(c). Wife contends that her disabili ty and her greater contribut ion to the m arriage entitle her to a greater share of the marital property than the court a

warded her. We cannot agre e. Husband contr

ibuted to the marri

age in several ways: he

contributed financially through his wages, by his work improving the property, and by caring for the children. He left several jobs in order to remain with the f amily when Wife was transferred. Further, Wife was working on a master’s degree at the time of the hearing, so she has
a higher level of education than Husband, and thus, a potentially gre ater ability to earn future income. We cannot find that the trial court abused its discretion by awarding Husband 40% of the proceeds once the real property is sold, and by awarding eac

h party a nearly equa

l share of the marital property

remaining afte

r the individual aw

ards.

IV.

The trial court, by

ordering the parties to make alternate selections, had the laudable goal of reducing the costs to the parties which would be involved in further litigation or v aluation by appraisers. While the alternat e selection metho

d devised by

the court is unusua

l, neither party

has challenged

that method, per se . Wife’s objections are to the size of th

e marita l estate and to the proportional distribution. Because n either par ty has raised the method of distribution, we do not consider it as an issue before us for review.

We affirm the awar

d of the marital hom

e to both parties as tenants in common, the award of t he pro ceeds upon the sale of the property, 60% to Wife and 40% to Husband, and the orde r that Wife continue to make the mortgage payments until the property is sold. We also affirm the trial court’s distribution of the remaining marital property, including an equal distribution of

the personal pro pert y. This case is r

emanded to the tri al c our t su ch fu rth er pr ocee din gs as may b e nec ess ary. Costs are taxed to the ap pellant, Marcel

la Anne Ames Fox, f

or which execution

may issue if
nece ssa ry.

____________________________________ PATRICIA J. COTTRELL, JUDGE