### \ 

### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE April 10, 2000 Sessi

on MARK A. SAMMARTANO v. HELEN SAMMARTANO Appeal from the Chancery Court for Williamson County No. II-25574 H. Denmark Bell and Russell Heldman, Chancellors

No. M1999-00415-COA-R3-CV - Filed November 22, 2000

In this divorce case, the defendant/wife appeals complaining of an inequitable division of marital assets, an inadequate award of rehabilitative alimony and the denial of attorney

fees. As modified herein, we affirm the decision of the trial court

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed as Modified
W ILLI AM B. C AIN , J., delivered the o pinion of the court

, in which B EN H. C ANTRELL , P.J., M.S. and P ATRICIA J. C OTTRELL , J., joined. Bill Easterly, Nashville, Tennessee, for the appellant, Helen Sammartano. Joanie L. Abernathy, Franklin, Tennessee, f or the appellee, Mark A. Sammartano.

OPINION Mark Sammartano (“Husband”) and Helen Sammartano (“Wife”) were married in1983 and divorced in April 1999. They had no children.
In the early y

ears of the marr

iage, Husband a

tt ended night s chool attaining a degree in computer science. Wife attained an associates degree from a college in Pennsylvania and worked initially as a medical secretary. The parties moved to Tennessee in 1994 when Husband accepted a job with Arenda Health Corporation. The parties enjoyed a relatively hig h standard of living which included a 4000 square foot homein Franklin, Tennessee, expensive jewelry and frequent travel. Husband’s income over the last five years of the

marriage ranged from an annual salary of $100,000 in 1994 to $140,000 in 1998 and 1999. Husband changed jobs in October 1996, moved to an apartment in Cleveland, Ohio, and flew hometo Franklin on weekends. The parties separ ated on March 13, 1998, and in August 1998,-2-

Husband accepted employment in Rea di ng, Pennsylvania with the Landau Group. Following the separation of the parties, Wife, in June 1998, left the marital home in Franklin to live with her sister in Atlanta, Georgia. The proof establishe

d that, at the ti

me of the separation of the parties on March 13, 1998, Husband packed his belong ings and drove to

Cleveland, Ohio. Sh

ortly thereafter, Wifeabandoned the marital home to live with her sister in Atlanta, Georgia. Subsequent to the separation, Husband became intimate with one Mary Fisher in Cleveland, and i

n August 1998, Husband and Ms. Fisher began living together in Reading, Pennsylvania. Husband testified to severa l sources of

friction in the marriage including Wife’s desire for expensive jewelry, her behavior at public functions, and an incident involving a homosexual male guest in the marital home clad only in his underwear. The trial court granted a divorce to Wife on the grounds of inappropriate marital conduct, and the order granting the divorce was entered April 5, 1999. Fina

l judgment in the c

asewas withheld until May 21, 1 999, from which Wife appeals. Wife’s first issue on appeal asserts that the trial court failed to make an equi table div ision of the marital asset

s pursuant to Tennessee Code Annotated section 36-4-121 (1996) when it failed to consider Husband ’s pendente lit e paym ents made from marital property and his frequent fly er miles. The record indicates gross marital property valued at $302,575 consisting of the equity in the marital residence, three

automobiles, retirement accounts, bank accounts, and household goods and furnishings. In dividing th is marital proper

ty, the trial

court awarded H

usband marit

al propert y valued at $151,400 and awarded Wife marital property valued at $151,175.
In construing distribution of marital prop erty under Tennessee Code Annotated 36-4-121, certain rules are clear. 1) Fault

is not a factor tha

t is to be considered. Fisher v. Fisher , 648 S.W.2d 244 (Tenn. 1983. 2) Ownership

of marital proper

ty ispresumptively equal. Salisbury v. Salisbury , 657 S.W.2d 761 (Tenn. Ct. App. 1983). 3) The test is not whether the division of marital property is equal, but whet her or no t it is equitable. Word v. W

ord , 937 S.W.2d 931 (Tenn. Ct. App. 1996). 4) Great

weight is given on appeal as to the decision of the

trial court in divid

ing marital asse

ts, and such division will not be di sturbed absent a

misapplication of t

he statutory

requirements. Wade v. Wade , 897 S.W.2d 702 (Tenn. Ct. App. 1994). The parties also h ad m ari tal deb ts t ota lin g $46 ,31 4. T hes e deb ts i ncl ude d mo rtga ge pa ym ent s on the marital home for April and May 1999, cr

edit card debts, m

edical bills

of Wife, and a loan on an automobile. These

marital debts wer

e allocated by

the court $39,514 t

o Husband and $6,800 to Wife. Thus, the total net value of marital property fo r distribution was $256,261 with the court awarding $111,886 (44%) to Husband and $144,375 (56%) to Wife.
The trial court has the

same authority un

der Code section 3 6-4-121 to apport ion marital debts as it has to apportion ma

rit al assets, and t he judgment of the trial court in this respect will not be-3-

disturbed on appeal except for abuse of discretion. Cutsinger v. Cutsinger , 917 S.W.2d 238 (Tenn. Ct. App. 1995). Wife asserts that a $20,000 gift from her mot her helped the pa

rties to buy th

eir first home

and that such gift was separate property rather than marital prope

rty. The re

cord showed that t

heir first homewas pu rchased as tenants by the entirety for $60,000 and sold for $105,000. Their second homewas purchased as tenants by the entirety for $130,000 and sold for $175,000. Their third home was purchased as te

nants by the e

ntirety for $190,000 and sold

for $219,000. The marital home of the parties at the time of the divorce had been purchased in tenancy by the entirety. “When spouses acqu ire r eal property

as joint tenants, a

rebuttable pres

umption exists that the

purchasing spou

se made a gift to the marital estate. Barnhill v. Barnhill , 826 S.W.2d 443, 452 (T enn. Ct. App. 1992); Batson v. Batson, 769 S.W.2d 849, 858 (Tenn. Ct. App. 1998).” Kincaid v. Kincaid, 912 S.W.2d 140, 142 (Tenn. Ct. App. 1995). The record

discloses no evidence of any effort by Wife to separate this alleged $20,000 gift as separate property until the divorce hearing in this case. From our review of the entire record, we cannot say that the evidence

preponderates against the finding inherent in the trial court’s judgment that the presumption of a gift to the marital estate was not overcome. Wife further complains that the arrangement agreed to by the parties for pendente lite support at a rate of $3,000 p

er month beginnin

g November 1, 19

98, was actu

ally fu nded by her sale of $26,000 wor th o f st ock tha t wa s ma rit al p rop ert y. The record does not show that Wifeexpended the total $26,000 sale pric

e of the stock in iss

ue for her own sup

port a nd maintenance, and her accounting for her expenditures from this stock sale left much to be desired as to her duty under the agreed order to “preserve the

asset to the extent possible.” In its final judgment, the trial court made what it considered to be an equitable distribution of marital assets under which, when marital debt is taken into consideration, Wife received more than an equal share of the total m

arital es tate. We cannot say, on this record, that the trial court abused its discretion in its distribution of marital pro pert y. The last assertion by Wife as to inequitable distribution of mar ital pr operty concerns the failure of the trial court

to divide the frequent flyer miles accumulate

d by Husband

. This matter is raisedfor the first time

on appeal and the trial court cannot be faulted for failure to consider frequent flyer miles

. The next issue on appeal asserts that the trial court erred in its award of rehabilitative ali mon y. In this respec

t we find from the r

ecord that the aw

ard by the tr

ial court is inadeq

uate both as to amount and length of time. Thetwo most critical factors in the determination of alimony under Tennessee Code Annotated section 36-5-101 (1999) are the need of the disadvantaged spouse and the ability to pay by

the other spouse. Lancaster v. Lancaster , 671 S.W.2d 501, 503 (T enn. Ct. App. 1984).-4-

Wife is presently 48 years of ag e and has been absent from the work force for a number of years. A return to the work force demand s improvement of her skills and continuation of her education. As to the ability of Husband to pay, he has a net monthly income of $7,219.48 and has been relieved of the necessity of pay ing the first and second mortgage on the former m arital residence. The judgment of the trial court is, thus, modified to increase rehabilitative alimony from $1,000 per month, as awarded by the trial court, to $2,000 per month for a peri od of 24 mo nths, beginning June 1, 1999 and terminating May 1, 2001. The last issue asserte

d by Wife is

the failure of the

trial court to

require Husband to pay her attorney fees. Wife received

a substantial portion of liquid marital assets, and we cannot find from this record that the evidence preponderates

against the dec

ision made by

the trial court to r

equir e eachparty to pay their respec tive attorney fees. Umstot v. Umstot , 968 S.W.2d 819 (Tenn. Ct. App. 1997).
As modified herein, the judgment of th

e trial court is af

firmed and costs o

n appeal are assessed equally

to the parties.

__________________________________________ WILLIA M B. CAIN, JUDGE