### IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON April 18, 2000 Sessi

on MARTHA BOWEN LANGSCHMIDT v. CARL H. LANGSCHMIDT An Appeal from the Circuit Court for S helby County No. 155250 R.D.

Russell Lee Mo

ore, Jr., Spe

cial Judge

No. W1999-00434-CO

A-R3-CV - F

iled May 1, 2001
W. Frank Crawford, J., Dissents in Part, Concurs in Part I concur in part and dissent in part. I dissent in the majority’s affirma nce of the trial court’s award of fifty percent of the

increased value of Husband’s IRA accounts. The trial court’s decision and that of

the majority is based on the finding that such inc reas ed v alu e con sti tut es m ari tal pro pert y. I do not agree with that conclusion. While I can agree that

some IRA acc

ounts or increase

therein are marital property, I cannot ag ree that all IRA accounts are marital property

. Because a spouse, prior to marriage, puts separate property in an I RA accou nt as opposed to any other type of investmentaccount, it does not change the nature of the investment. It is still an investment for the owner thereof. When the spouse marries, this does not, in my opi nion, ipso facto change the involved account into something other than the personal account of the investor. The definition of “marital property” in T.C.A. § 36-4-121(1)(A)(B) includes any marital funds used by a spo

use to fund an IRA a

ccount. Those fun

ds and the increa

se in value there

of would rightfully be subject to a divi

sion. However, in

the absence of proof that marital funds were added to the separate fu nds, marital property should be limited to the increase in value attributed to a spouse’s contribution, as specified in T.C.A. § 36-4-121(1)(B). I must respectfully disagree with the unpublished decisions of other sections of this Cour t cited in the majority opinion holding that an increase in the value of an I RA held sepa

rat ely b y a spouse without any ma

rital co ntribution is marital property. In my opinion, the language in the statute, “the value of v ested pension, retirement, or other fringe benefit rights accrued during the period of the marriage,” T.C.A. § 36-4-121(b)(1)(B), contemplates the use of marital funds or benefit s provided by

an employer

as a part of the c

ompensation pack

age, which, in a

nd of itself , would be marital f

unds. Therefore, I would treat the IRA accounts which have no contribution of marital funds in

the same manner as the majority treated the non-IRA accounts. The importance of this question in dome

stic cases warr

ants review by

the Supreme Court.-2-

Moreover, I disagree with the majority tha

t an equal division o

f marital proper

ty in this case is an eq uit abl e di vis ion . Th e ma jor ity points out tha t the trial court commented that but for the division of marital property, periodic alimony would be a ppr opriate. I al so cannot agree with the trial court on this point. Pe rhaps some rehab

ilitative alimony

could be justified

, but beyond t

hat, I cannot agree. I concur in the remainder of the majority opinion. Accordingly, I concur in pa rt and dissent part as indicated herein.

__________________________________________ W. FRANK CRAWFOR

D, PRESIDING JUDGE , W.S

.