IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

April 10, 2000 Session

WILLIAM EMORY FOX v. MARCELLA ANNE AMES FOX

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 eighteen year marriage, the trial court awarded as separate property

only the items owned by each party at the time of the marriage. The court awarded 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 property, the parties

were to divide the proceeds of the sale, after costs and encumbrances were paid, 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, and that the court’s distribution of the marital

property was not equitable. She also argues that the trial court violated federal law by awarding

Husband a percentage of the real property and by ordering her to pay the mortgage, claiming the

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 the real property or in the requirement that Wife pay the mortgage so long as she

occupies the premises.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court 

Affirmed and Remanded.

PATRICIA J.COTTRELL, J., delivered the opinion of the court, in which BEN H.CANTRELL,P.J.,M.S.,

and WILLIAM B. CAIN, J, joined.

Robert F. Hazard, Tullahoma, Tennessee, for the appellee, William Emory Fox.

Barbara G. Hardin, Decherd, Tennessee, for the appellant, Marcella Anne Ames Fox.
1

Tenn. R. App . P. 10 states:

This Court, with the concurrence of all judges participating in the case, may affirm, reverse or m odify

the actions of the trial court by memorandum opinion when a formal opinion would have no

precedential value. W hen a case is decided by memorandum opinion it shall be designated

“MEMORANDUM OPIN ION” , shall not be p ublished, and shall not be cited or relied on for any

reason in any unrelated case.

2Wife suffered from Meniere ’s disease and fibromyalgia, d egenerative in nature, both of which were in

remission at the time of the hearing in this matter.

2

MEMORANDUM OPINION1

William Emory Fox (“Husband”) and Marcella Anne Ames Fox (“Wife”) married in 1981

and have two children, a daughter born in 1983 and a son born in 1986. The parties met in field

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 jobs where Wife was stationed

in order to remain with the family; Wife was the primary breadwinner. Wife was medically

discharged2 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 also received VA

vocational rehabilitation benefits, which provided her with tuition, books and a stipend while she

pursued a master’s degree in education from Tennessee State University. She expected to graduate

in May, the following year. 

Husband has 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 service, but he did not apply for

disability benefits.

The parties purchased approximatelythirty-threeacresin Franklin County in 1994, after Wife

left the army. They placed a Quonset hut on the property and began fixing the interior for use as the

family home. Both parties worked on the residence, but after the separation, Wife remained there

with the children and assumed responsibility for the improvements. Wife’s parents gave the parties

$5,000 toward the purchase of the land, Wife contributed $4,000 and closing costs, and Husband

contributed almost $16,000 after cashing out an Individual Retirement Account. Wife made

arrangements so that the mortgage payments were taken directly from her checking account. The

parties did not have the land and 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 unless 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 it and move to another state, where her parents lived, if she were

ordered to pay the husband anything immediately.

The parties stipulated to grounds for divorce, and the court heard testimony regarding
3

Custody was not a hotly disputed issue at trial, with the only real question being the husband’s visitation

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

custody3

 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 owned which items. Some silver

place settings were received at the time of the marriage; Husband contended they were wedding gifts,

while Wife claimed they were gifts from her family to her. Husband had a large gun collection,

some of which he owned before marriage, some of which had been gifts from Wife to Husband,

although there was some disagreement as to how many and 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 figurines, and books. They testified that some of these items had

been gifts from one spouse to the other and that they had purchased 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 court 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; ordered 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 court ordered:

The marital residence and acreage owned by the parties shall henceforth be owned

by [Husband and Wife] as tenants in common. [Wife] may continue to reside in this

residence until the parties’ youngest child attains the age of 18 years or graduates

from high school with the class of which he is a member, whichever occurs last.

[Wife], until this property is sold as provided herein, shall be responsible for and

shall pay the monthly mortgage expense encumbering this residence, shall be

responsible for and shall pay the monthly mortgage expense encumbering this

residence, shall be responsible for payment of property taxes accrued for the year

1999 and thereafter, shall be responsible and pay for all routine maintenance expense,

and payment of property casualty insurance with a minimum insurable value equal

to the fair market value of all improvements to the property. Property taxes accrued

for tax year 1998 shall be born equally by the parties. Major repair to the residence

shall be paid jointly by the parties with [Wife] contributing 60% of said costs and

[Husband] contributing 40% of said costs. 

This real property and the improvements thereon shall be sold when the parties’

youngest child attains the age of 18 years and/or graduates high school with the class

of which he is a member. . . . The net proceeds derived from the sale, i.e. gross sales

price 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 encumber
4

This figure includes the guns he claims he acquired during the marriage which were not gifts, 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 parties ranged from the gun and

figurine collections, to prints mentioned only in passing but never valued, to a tent, shelving,

camping equipment,cassette tapes, swords mentioned but not valued, and other miscellaneous items.

Husband’s list included 72 miscellaneous items, but he testified it was not complete. The record

regarding this personalty is confusing. Husband offered a list of property which included a

miscellaneous personalty category which he valued at $22,724.4

 Wife also introduced a list, but it

is not clear if it includes only those items Husband wanted or all their property. The testimony did

not clear up many issues regarding what property they actually had, how it was acquired, or its value.

The parties’ testimony about gifts is unclear,sometimes distinguishing between gifts from each other

and gifts from third parties. Based upon the lack of clarity and specificity regarding the property,

the court awarded each party, as separate property, those items each brought into the marriage, and

specifically enumerated some of those. It also specifically awarded some pieces of marital property.

Concerning the remainder of the personal property, the court ordered:

All remaining items of personalty not specifically decreed to either party herein shall

be divided by the parties as follows: the Court directs that the parties assemble or

designate all other items of personalty and that they draw lots and that the party with

the lowest number shall first choose one item of personalty, the other party thereafter

shall choose the second item of personalty, and alternating thereafter until all

remaining items have been selected. Items of personalty selected by each party shall

become their sole property free from claims of the other. The Court instructs this

division to be made in this manner in order to avoid further expense to the parties

which would result from a court ordered sale or the cost of independent inventory

and appraisal that would be necessary in order for the court to make further division

of personalty.

Neither party on appeal challenges this method of distribution of the personalty, per se. Wife

presents two issues: first, that the trial court’s division of the property was inequitable, and, second,

that the trial court violated federal law by awarding Husband 40% of the real property and by

ordering that she pay the mortgage, because 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 as marital property. Wife

objects to the distribution of equity by the court, but also asserts that the trial court had no authority

to award Husband part of the equity or to order her to pay the mortgage until the house is sold. We

cannot avoid placing this argument in the context of Wife’s testimony that she wanted to be able to

remain living on the property, and that she could not immediately pay Husband for any equity

without selling the property. We assume she intended to make mortgage payments in order to keep

the house had she been awarded all the equity. At least, we assume the mortgagor intended that she

make such payments.

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 states, in pertinent part:

Payments of [veteran’s disability] benefits due or to become due under any law

administered by the Secretary shall not be assignable except to the extent specifically

authorized by law, and such payments made to, or on account of, a beneficiary shall

be exempt from taxation, shall be exempt from the claim of creditors, and shall not

be liable to attachment, levy, or seizure by or under any legal or equitable process

whatever, either before or after receipt by the beneficiary. The preceding sentence

shall not apply to claims of the United States arising under such laws nor shall the

exemption therein contained as to taxation extend to any property purchased in part

or wholly out of such payments. . . .

Wife argues that, because the mortgage payments have been and will be made through her

checking account, and because her “only guaranteed source of income” is her VA disability benefits,

the court’s order awarding Husband a portion of the equity 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 address in turn. First, she argues that

because the regular monthly payments on the real property have been made from her checking

account, which is funded by her VA disability benefits, the property itself is not subject to

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

The United States Supreme Court addressed a similar argument in Carrier v. Bryant, 306

U.S. 545, 59 S. Ct. 707 (1939). In Carrier, the Court confronted the question of whether the North

Carolina Supreme Court had erred in ruling that negotiable notes and U.S. bonds purchased with

“payments of [veteran’s disability] benefits” were subject to execution upon a judgment against the

veteran. The Court considered 38 U.S.C. § 454(a) [repealed], the precursor 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 benefits’ due or 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 Casualty and Surety Co., 370 U.S. 159, 82 S. Ct. 1231 (1962), when confronted

with the question of whether bank a ccounts funded b y disability 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 investments.” Porter, 370 U.S. at 162, 82 S. Ct. at 1233. The “readily available” funds

were not subject to attachment by creditors wh ile the “perma nent investme nts” were. Id. The Court no ted that Congress,

by creating the exemption for benefits intended that veterans have money “readily available as needed for support and

maintenanc e” of the veter an. Id. 

6

In cases somewhat related to this, the Tennessee Supreme Court and this court have held that veterans who

waived retirement benefits in order to receive disability benefits must reimburse the former spouse for that portion of

the waived retirement 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. Johnson, No. W1999-01232-SC-R11-CV, 2001 WL 173502 at

*5 (Tenn. Feb. 23, 2 001) (re quiring former husband who receiv ed disability b enefits to reimb urse former wife for monies

awarded to her at divorce, and stating, “On remand, the trial court shall give effect to its decree without dividing Mr.

Johnson ’s disability pay.”); Hillyer v. Hillyer, M1998-00942-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 ayments” from 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 case in which a veteran

had argued that because his veteran’s benefits were exempt from taxation, the land purchased with

those funds was also exempt from taxation, the Court said, “‘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 quality of moneys 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 investments purchased with disability benefits.5

 Id.

Although Wife’s disability benefits were exempt from “attachment, levy, or seizure,” we

conclude, as did the U.S. Supreme Court, “there was an end to the exemption when they lost the

quality of moneys and were converted into land and buildings.” We also note that courts in other

states, when dividing property pursuant to a divorce, have held that property purchased with funds

derived from disability benefits was subject to division. See Bishoff v. Bishoff, 987 S.W.2d 798, 800

(Ky. Ct. App. 1999) (disability benefits lost their exempt status when invested in the parties’

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

benefits to personal property by purchasing two vans and a motor home, the exempt status of those

funds was lost); Pfeil v. Pfeil, 341 N.W.2d 699, 702-03 (Wis. Ct. App. 1983) (holding that a

mortgage note and real property purchased with funds obtained through disability benefits were

subject to division). 

Wife’s second argument, that the court may not order her to make the payments on the

property, should she choose to remain, is also based on her theory that the court has “attached” her

benefits. She contends that, in effect, the court awarded 40% of the mortgage payments to Husband.

We cannot agree for two reasons. The trial court did not order that disability benefits be paid to the

mortgage company; Wife is free to pay the mortgage with any funds which might be available to

her.6 Also, Wife is not required to retain the property. She is free to vacate the premises and sell the
Veteran’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 prior to the time her son turns eighteen and graduates from high school; the only

requirement is that she maintain the property and make the payments while she is there. The order

that Wife make mortgage payments while she occupies the property is not an unlawful attachment

or division of her disability benefits. 

II.

Wife also claims that the trial court’s division of property was not equitable, because of her

greater financial contribution to the marriage, and because of her greater need, due to her disability,

even though her income, through her disability benefits and her educational stipend, exceeds that of

Husband, who is also required to pay child support.

We agree with the statement in Husband’s brief that he found it difficult 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 separate property

as required by Tenn. Ct. App. R. 15. That rule provides:

(a) In domestic relations appeals where the issues involve the amount or the

disposition of the marital property, the appellant's brief shall contain in the statement

of facts or in an appendix, an orderly tabulation of all marital property in a form

substantially like the form attached hereto. All entries in the table as to value and to

whom the property was awarded shall be accompanied by a citation to the record

where the information may be found.

 

(b) If the appeal involves issues about the separate property of either party or the

allocation of the marital debts, the appellant's brief 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 brief shall

contain a tabulation in the same form showing the appellee's version of the facts.

MARITAL APPELLANT'S APPELLEE'S VALUE FOUND PARTY TO

PROPERTY VALUE VALUE BY TRIAL WHOM PROP-

 COURT ERTY AWARDED

 BY TRIAL

 COURT 

1. (Description) $ $ $ Husband or Wife

 (Citation to (Citation to (Citation to (Citation 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 over which party should receive certain items of personalty; rather they could not agree on the

values, and “everybody wants to be sure they get their fair share.”

The issues surrounding the Hummel figurines and the David Winter cottages, two of the

collections involved, exemplify the problem faced by the trial court and by this court. Both Wife

and Husband testified 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 only 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 individual items in the

collections, which were received by either party during the marriage as gifts should have been

classified as separate property. The statutory definition of “separate property” includes “[p]roperty

acquired by a spouse at any time by gift, bequest, devise or descent.” Tenn. Code Ann. § 36-4-

121(b)(2)(D). Thus, clearly gifts to one spouse are that person’s separate property. Even gifts from

one spouse to the other become the separate property of the receiving spouse. Batson v. Batson, 769

S.W.2d 849, 856 (Tenn. Ct. App. 1988). 

The distinction in classification is important because only marital property is subject to

distribution. Tenn. Code Ann. § 36-4-121(c). Thus, before dividing the marital estate in a divorce

proceeding, the trial court must first classify the parties' property as either marital or separate

property. Tenn. Code Ann. § 36-4-121(b). The trial court has wide discretion in classifying the

parties' property, and its decision is entitled to great weight on appeal. Dunlap v. Dunlap, 996

S.W.2d 803, 814 (Tenn. Ct. App. 1998). Absent an error of law, the trial court's classification of

property and its division 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 parties’ 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 present clear

evidence sufficient to allow the court to identify the property owned, classify it, and establish a value

for it. The court must, of course, decide any factual issues created by conflicting testimony. Wife

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

the parties presented little or no proof regarding their complete holdings and the ownership thereof,

and established a value for each item, even when it heard no evidence of value for most of the

property.

The trial court herein ordered that all personalty not otherwise specifically awarded to one

party was to be divided roughly equally. In making its ruling from the bench, the court stated:
9

I’m going to award each one of you the separate property that you’ve testified to . .

. When I say separate property, I’m not considering what you call a gift as separate

property. . . . 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 you don’t; I

can’t tell the difference, so when I say separate property, I am defining that as the

property that each of you carried into this marriage . . .

We interpret the trial court’s determination as including a finding that neither party claiming

specific property as a 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 classification of the property not specifically excluded from its order as marital.

III.

Having affirmed the trial court’s classification of property, we turn now to the distribution

of marital property. This court has previously discussed the division or a couple’s property at

divorce as follows: 

Tennessee Code Annotated § 36-4-121(a) provides that marital property should be

divided equitably without regard to fault. It gives a trial court wide discretion in

adjusting and adjudicating the parties' rights and interests in all jointly owned

property. Accordingly, a trial court's division of the marital estate is entitled to great

weight on appeal and should 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 contained in

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

necessarily an equal one. It is not achieved by a mechanical application of the

statutory factors, but rather by considering and weighing the most relevant factors 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 marital estate, appears to

be primarily concerned with the court’s distribution of the equity in the real property, and argues that

Husband is not entitled to 40% of that equity. With regard to the couple’s personal property, the trial

court awarded each party the car he or she primarily used. It awarded Wife the household

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

remainder of the personal property was to be divided on a roughly equal basis, using an alternate

selection basis. Although Wife has not specifically identified her concern with regard to the personal

property, we presume that she is of the opinion that an equal distribution is not equitable in these

circumstances. She also seems concerned that whatever items she gets actually add up to her
10

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 financial needs of the parties and

the contributions of the parties to the marriage. Tenn. Code Ann. § 36-4-121(c). Wife contends that

her disability and her greater contribution to the marriage entitle her to a greater share of the marital

property than the court awarded her. We cannot agree. Husband contributed to the marriage 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 family 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 greater 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 each party a nearly equal share of the

marital property remaining after the individual awards.

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 valuation by

appraisers. While the alternate selection method devised by the court is unusual, neither party has

challenged that method, per se. Wife’s objections are to the size of the marital estate and to the

proportional distribution. Because neither party has raised the method of distribution, we do not

consider it as an issue before us for review.

We affirm the award of the marital home to both parties as tenants in common, the award of

the proceeds upon the sale of the property, 60% to Wife and 40% to Husband, and the order 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

property. This case is remanded to the trial court such further proceedings as may be necessary.

Costs are taxed to the appellant, Marcella Anne Ames Fox, for which execution may issue if

necessary.

____________________________________

PATRICIA J. COTTRELL, JUDGE