# FILED February

7, 1996 Cecil W. Crowson SYBLE B. STEPHENSON, ) ) Plaintiff /Appella nt, )

) Lawrence

Chancery ) No. 5349 91 VS. ) ) Appeal No. ) 01-A-01-9507-CH-00328 WILB ER D. STEPHENSON, ) ) Defendant/Appellee. )

IN THE COURT OF APPEALS OF TENNESSEE MIDD LE S EC TION AT N AS HVILLE
APPEAL FROM THE CHANCERY COURT OF L AWRENCE COUNTY AT LAWRENCEBURG, TENNESSEE
HONORABLE JI

M T. HAMIL

TON, JUDGE

ROBERT D. MASSEY P.O. Box 409 Pulaski, Tennessee 38478 ATTORNEY FOR PLAI

NTIFF/APPEL

LANT
Paul Bates Christophe

r V. Sockw ell BOS TON , BA TES & HO LT 235 Waterloo Street P.O. Box 235 Lawrence burg, Tennessee 38464 ATTORNEYS FOR DEFENDANT/APPEL LEE
MODIFI ED, AFFIRMED AN

D REMANDED HENRY F. TODD PRESIDING

JUDGE, MIDDL

E SECTION CONCUR: SAMUEL L . LEWIS, JUDGE BEN H. CANTRELL , JUDGE-2-

SYBLE B. STEPHENSON, ) ) Plaintiff /Appella nt, )

) Lawrence

Chancery ) No. 5349 91 VS. ) ) Appeal No. ) 01-A-01-9507-CH-00328 WILB ER D. STEPHENSON, ) ) Defendant/Appellee. )
O P I N I O N
In thi s divorce

procee ding, the

plaintiff , Syb le B. Ste

phenson, has appe aled fr

om a judgment entered by

the Trial Court on April 11, 1995, overruling a motion to alter or amend a judgment previously

entered on November 14, 1994, dealing with distribution of marital property a

nd indebtedness thereon, child support arrearag e, future child support and medical expenses, visitation

and posse ssion of a

list of per sonal bel onging s.
This cause was before this Court on a previous appeal whic h was concluded by

an order s tati ng: In a

ccorda nce with t he opinion

of the Cou

rt filed h erein, it is, therefore, ordered and adjudg ed by this Court that because the Trial Court's division of marital property may aff ect the award of attorney' s fees to wife, this Court cannot address this issue until the Trial Court places a value on the husband's retireme nt account. This case is remanded to the Chancery Court of Lawrence County for such furthe

r proceedings as may

be ne ce ss ar y. On remand the Trial Court conducted a hearing on a number of issues and entered the judgment presently

under review.

First issu e is as fo llows: 1. The Trial Court erred i n sett ing th e valu e of th e husb and's retirem ent acc ount.-3- The ju dgment of the Trial Court conta ins t he fol lowi ng: It appeared to the Court that the pr esent value of defendant Wilber Don Stephenson's retirement account is Thirty -Eight Thousand Five Hundred Dollars ($38,500.00) as ag reed between the parties, but that the net present value of sa me after Federal I ncome Taxes is Twenty-Eig ht Thousand Eight Hundred Seventy- Five Dollars ($28,875.00). . . .

. . . . The Court

further finds tha t the alloc ation of a ssets in thi s case should require the plaintiff to assume Fifteen Thousa nd Dollars ($15,000.00) of the indebtedness on the realty at 102 Pond Drive, which has been awarded to her. I n order to more evenly divide the mar

ital estate, the Court further finds that the defendant should be awarded the entirety of the parties' silver certifi cates, making th

e net re sult of thistransaction a dec rease in th e a ss et s a wa rd ed to pl ai nt if f o f E ig ht ee n T ho us an d T hi rt ySeven Dollars ($18,037.00).

. . . . It is, therefore, orde

red by the Court that the pr ior allocation and distribution of the marital estate is modified to provide that the prope rty indicate d in Exhibit 1 a

warded to defendant is modified to include the entirety of the parties' silver certificates, and the plaintiff will assume Fifteen Thousa nd Dollars ($15,000.00) of the indebtedness on the realty awarded her at 102 Pond Drive. Plaintiff argues that it was error for the Tr ial Court to discount the present value of the retirem ent to the extent of income taxe s to be due thereon . Plaintiff

cites Kendrick v. Kendrick, Tenn. App. 1994, 902 S.W.2d 918, in which this Court determined that it was impractical to attempt to establish the present value of the retirement and or dered that, when distributi on bega

n, the inst allments s hould be d

ivided be tween the parties a s paid. Th

is disposition would require each party to pay income tax on the portion of the retire ment pay ments rec eived. T

hus, ther e was no o ccasion

to conside

r the ef fect of anticipa ted incom e taxes. The

cited au thority is not cont

rary to the ac tion of the

Trial Judg e in the pr

esent ca se where the entire retirement was assig ned to the defendant and other marital property was assigned to plainti ff in lieu of an inte

rest in the retirem ent.-4- T.C.A. Section 36-4- 121(c)( 9) provid es: C. In making equitable distribution of marital proper ty, the court shall consi der all releva nt fact ors, i nclud ing:

. . . . (9 ) T he ta x c on se qu en ce s t o e ac h p ar ty. The right to receive taxable income, such as a r etirement, is not as valuable as the right to collect non-taxable income, such as principal pay ments upon an installment note.
T.C.A. Section 36-4-121(a)(1) requires the cour ts to equitably divide the marital estate in divorce cases.

The cour ts are a fforde d wide disc

retion in d

ividing t he inter est of the parties in jointly owned property . Its distribution will be given grea t weight on appeal, and will be presumed correct unless the preponderance of the evidence is otherwise. Lloyd v. Lloyd, Tenn. App. 1993, 860 S. W.2d 409; Barnhill v. Barnhill, Tenn. App. 1991, 826 S.W.2d 443.

In ma king an equitabl e distribu

tion of mar

ital asse ts, it is nec essary

for the c ourt to evaluate the assets. The judgment of the Trial Courts as to the va lue of assets must be accord ed the sa me respect as the

judgmen t allotting the vari ous asset s to the pa rties.
The op inio n of th is Co urt up on th e form er appe al inc luded the fo llow ing: . . . Husband also argues that Wife's interest in his retire ment as marital property should be based on the amount of pension received by

husband after federal income taxes have been paid. We agree. . . . On remand, counsel agreed tha t an expert had valued the retirement at $38,500. At the second, July 15, 1994, hearing , defense counsel's opening state ment to the Trial Court inclu ded th e foll owing:

So we're here as I

understand it on the child support issue. The value of the retirement is thirty -eight five. One thing Mr.-5- Massey failed to mention wa s in the Cour t of Appe als' decision , Your Ho nor will r emember , on the fo

urth or f ifth page, they

said it ought to be figured on after tax dollars. After tax dollars. So the present value is thirty-eig ht five. Whatever tax bracket he's in I use d twenty-five pe rcent. I don' t think that's unreasonable. . . .
There w as no othe

r stateme nt or evid ence asto the app

ropriate reducti on for ta

xes.
In the same hearing , defendant testified: Q. Back when you first talked to me, your c heck stub showed you were making three forty -six fifteen a week, but now y ou've got a raise. A. That' s corre ct. Q. Now you'

re making four twenty -three-o-eight a wee k? A. Yes, sir. The Trial Court reduced the estimate of the expert by 25%.
On appea l to this Cour

t, plaintif f's bri ef arg

ues: It is the original plaintiff/appellee 's position that the trial court erred in reducing the value f rom Thirty-Eig

ht Thousand, Five Hundred Dollars ($38,500.00) to Twenty -Eight Thousand, Eight Hundred and Seventy -Five Dollars ($28,875.00) as the trial court did. (Original supplemented TR, 17). This Court has previously rec ognized the present value method of valuing pensions and retirement plans. Kendrick v. Kendrick, 902 S.W.2d 918 (Tenn. App. 1994). The present value plan does not require the court to discount the present value by federa l income ta

xes (noting

there wa s no proof

as to the original defendant/appellant's tax brac ket) and the trial court has therefore erred by discounting same. Defendant's brief does not arg ue or cite evidence to support the amount of the reduction.

Plaintiff 's repl y br ief state s: The original plaintiff/appellee would reitera te that there was no proof adduced at the hearing on r emand to establish the tax-6- bracket of the appellee. The af ter tax figure of $23,825.00 which re duced the

present value of the retir ement ac count, $38,500.00, by 25% was pure ly speculative. She reasserts her position as set forth in her original brie f.
There isno eviden

ce as to t he annua l pay ments of r

etireme nt due def endant. H

is past income was shown to be $41,000 per year, and his present income was shown to be $423.08 per wee k, or $22, 000 per y

ear. The Trial Co

urt evide ntly estimate d the annu al pay ments under the retirement, and took judicial notice of applicable federal revenue statutes as required by

T.R.E. Rule 202(a).
The evidence does not preponderate a gainst the finding of the Trial Court as to the value of the subject retirement. Such finding is theref ore presumed correct and is aff irmed.

Plaintiff 's third issue is: 3. The Trial Court erred by reallocating the asset and debt division from that which was originally found in the initial trial.
Plaintiff argue s: The trial court, rather than adhere to the ma ndate issued by this Honorable Court by deter mining a value of the retirement account and allowing the case to re turn to this Honorable Court for a fin al deter

mination of

the issue s, reallo cated ma rital ass ets and debt in a manne

r that be nefited the original def

endant/ appellant and is in direct conflict with the court's previous opinion. The judgment of this Court, quoted above, does not pre-empt the authority of the Trial Court to redistribute

the marit al prope rty as nece ssary

after p erforming the ma

ndate to evaluate the pension. The "remand for further proceedings" inc luded the authority to make the distribution "equitable" in the light of the actual value of the retirement. Nothing is found in the for mer opinion of this Cou

rt to prec lude adju stment of t he prope rty distributi on to conform to the find

ing of va lue manda

ted by this Court.-7- This Court i s a court

of appellate and

not orig inal juris diction. I ts functio n is to review the findings and conclusions of the courts of or iginal jurisdiction rather than to usurp the original juris diction of the Tria l Courts.

No erro r is found in the ac tion of the

Trial Cour

t in adjusting the d

istributio n to conform to his furt

her find ing of f act.
Plaintiff does not challenge the equitable fairness of the ultimate distribution of assets.

Plaintiff

's seco nd issue is : 2. The Trial Court erred in establishing the proper a mount of child support arrearage. The ju dgment of the Trial Court conta ins t he fol lowi ng: This case was heard on the 15th day of July, 1994, on remand from the Court of Appeals including the motion of Wilber Don Stephenson to modify child support, answer and counterpetition on behalf of Syble B . Stephenson, testimony of the parties in open court, exhibit s thereto , and the e ntire re cord in the case. Plaintiff asserts that the only evidenc e in the record supports a judgment of $4,801.25. The judgment reviewed by this Court in the former appeal set child support at $90.00 per week or $360.00 pe

r month. Th

e opinion o f this Cour

t states: We therefore mod

ify Husband' s child sup

port oblig ation to $379. per month. The arrearage

may be computed a s $4,801.25 by using $90.00 per week as allowed by the former judgment of the Trial Court. However , the opinion of this Court superseded the $90.00 per week and substituted $379.00 per month which produces an ar rearage of $4,271.00 . The ar

reara ge judg ment of the

Trial Cour

t will be reduced to t

his amount
.-8- Otherwi se, no er

ror is fou nd in the a

rrear age jud gment.

Plaintiff 's four th and fin al issue is : 4. The Tr ial Court e

rred by finding that alimo ny p

reviousl y aw ar de d s ho ul d b e c ha ng ed to no al im on y. The original decree of divorc e, entered on August 4, 1992, provided: It is, therefore, orde

red by the Court that the de fendant pay

the sum of Sixty Dollars ($60.00) per week to the plaintiff a s rehabilitative alimony for a period of thirty-six (36) months or until the pl aintiff r

emarrie s, whiche

ver occurs first
. The opinio n of this Cou

rt upon the

former a ppeal sta tes: Husband asserts that the trial court erred in awar ding rehabilitative alimony to wife. B ecause the court's division of marital property ma

y affect an award of alimony , we conclude that it is inappropriate to address this issue because we are unable to resolve the division of marital property at this time. The judgment of the

Trial Cour

t on rema nd states : It a pp ea rs to th e C ou rt th at th e p la in ti ff to ok a v ol un ta ry l ayoff following the trial of this cause and that she has made no effort toward rehabilitation, and accordingly an awa rd of alimony in this case is improper.
There is no other reference to alimony in the quoted judgment.
The judgment contains no order implementing the quoted finding . A finding without a resulting order is ineffective. F or this reason, the original provision for 36 monthly alimony payments rema

ins in force and effect, and there is no modification of alimony as complained by plaintiff.
The judgment of the Trial Court is modified to reduce the judgme nt for child support arrearage f

rom $4,801.25 to $4,271.00, to bear lawful interest from November 14, 1994. As-9-

modified, the judg ment of the Trial Cour

t is affir med. Costs o f this app eal are taxed ag ainst the plaintiff. The cause is remanded for fur ther proceedings as nece ssary and pr oper.
Modified, Affirmed and Remanded.

_______________________________________ HENRY F. TODD PRESIDING

JUDGE, MIDDL

E SECTION CONCUR:

_____________________________________ SAMUEL L . LEWIS, JUDGE

_____________________________________ BEN H. CANTRELL , JUDGE