# FILED
Ap ril 30, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk 

## IN THE COURT OF APPEALS OF TENNESSEE MIDDLE SECTION AT NASHVILLE

JOANNE DALLE MAYFIELD, ) ) Plaintiff /Appella nt, )

) Davidson C ircuit ) No. 95D -1525 VS. ) ) Appeal N o. ) 01A01-9611- CV-00501 JOHN DREW MAYFIELD, ) ) Defendant/Appellee. )



## CONCUR RING OPIN ION

I concur w ith the court’ s opinionand with its finding that the evidence does not preponderate aga

inst the t rial cour

t’s findingthat Ms. M ayfield di d not contribute

substantial ly to the app reciatio n in the value of Mr. M ayfield’ s separat e property, except for the Tr imble Road house. I

have prep ared this s eparate opinionto elaborat

e on the significance

of this finding in the context of this case.

A spouse’s c ontributions to marital and separ ate prope rty have a two-fold significance. First, these cont ributions affect the classification of property as marital or separate. See Tenn. Code Ann. § 3 6-4-121( b)(1)(B) (19 96). Second, they affect

the equita

ble division

of the prop erty in th e marital est ate. See Tenn. Code Ann. § 3 6-4-121( c)(5).

The finding that Ms. Mayfield did not contribute s ubstantially to Mr. Mayfield’s separate property ef fect ively removes this property from the marital estatewith two exceptions . The f irst exce ption is the $ 50,000 incr ease in the value of the Tr

imble Road house beca

us e the trial court specifically found that Ms. Mayfield had contri b uted to the a ppreciat ion in the hous e’s value . The second exception is the $26,104.57 increase in the value of Mr. Mayfield’s individual retirem

ent accou nt because

the appre ciation in t

he value of

this accou nt is marital property e ven w itho ut substantia l contribut

ions by Ms. M ayfield. Cohen v. Cohen

, 937 S.W.2d 82 3, 830 (Tenn

. 1996). The trial cour t did not1 This amount inc ludes the $16,792.5 6 in marital p

roperty identified by the trial court and the $50,000 “alimony in solido.” The trial cou rt char acterized the $50 ,000 “[a

]s furthe r proper ty division and in

consideration of

her contributions to the appreciation of the home place and he r efforts to make a home for Mr. Mayfield and ra ise the child.” -2- includein the part

ies’ mar ital esta te the incre ase inthe value of the Trimble Road house or Mr. May field’s in dividu al retiremen t account . Adding th ese two valuable assets to the marital estate brings its value up to $109,689.67 rather than $33,585 .11 as foun d by the tr ial court.

The only remaining question concerns whether Ms. Mayfield received an equitable share of the marital pro perty. Tenn. Code Ann. § 36-4-121(c) requires
an equitabl e rather than an equal di vision o f marital pro perty, Batson v. Batson, 769 S.W.2 d 849, 859 (Tenn. Ct. App. 1988), and does not re quire that

each par ty receive a share of

each p iece of marital pro perty. Thompson v . Thomps on, 797 S.W.2 d 599, 604 (Tenn. Ct. App. 1990) . In dividi ng marita l property the courts considerthe contri bution s of each spouse to the acquisitio n, prese

rvation, and apprecia tion of the marital or separ a te propert y. See Tenn. C ode Ann. § 36-4- 121(c)(5).

The trial cour

t effec tively aw arded Ms. Mayfield $66,792.56or 61% of

the parties’ marital estate. 1 I find this distributio n equitable in light of t

he consider ations i n Tenn. Code An n. § 36-4-1 21(c).

_________________

_______________ WILLIAM C. KOCH, JR., JUDGE