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### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE Februar y 14, 2002 Se ssion JERRY DWAYN E NOE v. MELISSA DAWN NOE (BARNES) Appeal from the Chancery Court for Cheatham County No. 10676 Leonard W. Martin, Chancellor

No. M2001-02223-COA-R3-CV - Filed August 7, 2002
This is an appeal by the Wife in a divorce case complaining of the disposition of marital property. The Husband also complains about an award of alimony in sol ido against him. We affirm the Chancellor. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed W ILLI AM B. C AIN , J., deliv ered the opinio n of the court, in which P ATRICI A J. C OTTRELL , J. and V ERNON N EAL , S P . J., joined. Lawrence D. Wilson, Nashville, Tennessee, f or the appellant, Melissa Dawn Noe (Barnes). Jennifer F. Noe, Ashland City, Tennessee, for the appellee , Jerry Dwayne Noe. OPINION Jerry Dwayne Noe (“Husband”) a nd Mel issa Dawn Barnes (“Wife”) we re married on September

7, 1991. Twins were born to the marriage but one died shortly after birth. The Husband filed a complaint for divorce on November 22, 2000 on the grounds of inappropriate marital conduct and irreconcilable di ffere nces. An answer and counter-complaint we re filed by the Wife on Decemb er6, 2000 alleging that the H

usband wa s guilty of c ruel and inhuman tr

eatment, abandon ment, and that irreconcila

ble diffe rencesexisted b etween

the part ies. O n Febru ary 4, 1994, the parties acquired 3.20 acre s of land by quit claim deed from the Wife’s parents, Larry and Sandra Barnes. The parties constructed

a home on the land. Both of the parties’ family members and friends contributed to the building of the marital re sidence e ither by m anua l labor or by financial contribution. In March of 1998, the parties star ted a landscaping b usiness called D & D Landscaping. The business acquired ce rtain assets and liabilities. Th e Husband left the marital residence in September 2000. The trial in this case was heard on May 31, 2001.-2-

On July 23, 2001, the

trial cou rt issued t he Final D ecree

holding in p ertinen

t part: 2. The Court her

eby findsthat the p arties ha ve acquired re al prope

rty locatedat 3241 Thomasville Road, Chapmansboro, Tennessee, during the marriage that is marital property as well as certain items of personal prope rty which is outlined in Exhibit 6

and was s tipulated

by the par

ties. 3. In reviewing the marital residence it appears tha t there is equit

y of $37,228.62 accord

ing to the a

ppraisa l and the payoff on the first and second mortgage. The cour

t hereby finds tha t the dee d to the prope

rty was jointly titled and that all equity is marita l proper ty in which

each sid e is awar ded a one half inte rest of $18,614.31. 4. The wife is hereby awarded the marital re sidence and shallbe liable for the f irst and seco nd mortga

ge as well as all

taxes. The wife shall have husband released from both the mortgage’s either by the lender relea sing him or by the wife refinancing both debts as soon as possible but no later than o ne y ear. Wi fe shall indemnify

and hold h

usband ha

rmless of said debt s. 5. The wife is hereby a warded the pers onal prop erty as e stablishe d in the Offer of Settlement of Personal Property as filed by the Plaintiff which is E

xhibit 7 withthe exce

ption of the 1998 Che

vrolet Lu mina. The

to tal val ue of the personal property shall also be equally divided with a setoff to the husband. 6. Each par ty is award ed their separa te prope rty as out lined in the

ir stipulated exhibits li sting sepa rate pr operty which is Exh

ibit 5. Husband’s separa

te propert y is a hunting rifle, boat, fishing equipment, clothing items of personal nature, stereo, parts wa sher, ge

nerator , guns & a qu

ilt . Wi fe’s separate property is her jewelry, guns, fishing equipment, microwave, glass coffee table, and glass bamboo dinning suite. The wife is awarded the 1968 Chevrolet Camaro as the custodian of Conner Dwayne Noe and said vehicle is held in trust for the minor child. 7. The parties have a credit card debt of $8,200.00 which the court finds as a joint marital debt

which each party is liable for one half or $4,100.00. The court hereby finds that the wife is responsible for the Credit Card debt and shall indemnity and hold h

usband ha

rmless. 8. The court awards the business of D & D Landscaping to the Plaintiff alon g with allequipments and profits as listed in Exhibit 4. The husband shall be solelyliable fo

r the cur rent deb t of the bu siness wh ich said debts are on the Great Dane Mower, the Ex Mark Mower and on the payback to Mr. Noe’s brother for the paymentshe has made on the Great Dane Mower

. All assets and liabilities of business as stipulated to by the parties are listed in Exhibit 4. Husb and shall-3-

indemnify and hold w ife har mless for said debt and liabi lities. The

court finds in reviewing Exhibit 4 as stipulated to by the parties that the business has a minimum value after deducting liabilities. 9. The husband s hall rec eive the 1997 GMC four wheel drivetruck and be solely re sponsible

for the debt on the vehic le. Husba nd shall in demnify a

nd hold wife harmless of

said debt . The cou

rt finds th at is has no value due to the fact that more is owed on the vehicle that it is worth. 10. The court

hereby find that

the husbands one half interest of personal proper ty is $11,225 .00 afte r deduct ing $250.0 0 for the

John Boat a

nd tools tha

t h e is receiving that is owed to him as well as $18,614.3 1 for the one half of intere st

in the marital residencefor a tota l of $29,83 9.31. Husb and is liab le for one half of the Credit Card debt of $4,100.00 which brings his total due to him at $25,739.31. The parties own a 1998 Chevrolet Lumina that is paid for with a value of $10 ,000.00. The cour t hereby awards solely to the Husband the 1998 Chevrolet Lumina. T h e court gave the wife the option of purchasing the vehicle a nd paying to the husband $10,000.00 which she declined. 11. The remaining $15,739. 31 left ow ed to the h usband a s his one half share is hereb y award

ed to the wife as a

limony in solido. Said alimony is intended to be an a ward to cover a ll rehabilitative alimony and to offset wife’s attorney fees and defr ay the ex pense of the lawsu

it. Review of the record in this case indicates that the major mar

ital asse t of the pa rties is their marital home which is encumbered by two mortgages totaling $97 ,771.38 l eaving an equity of $37,228.62. The business known as D&D L andscap ing had

a taxable loss in 1999 of $3,908.00 and a taxable inc ome of $2,189.00 in the tax year 2000. The trial c ourt held this business appears to have a minimum value for distribution as marital property. I t likewise appears that the 19 97 GMC 4- wheel drive truck, though maritalproperty, ha s no value since it is undisputed that more is owed on the vehicle

than it is wo rt h. Th e t ri al co ur t, af te r d et er mi ni ng to di vi de th e m ar it al pr op er ty e qu al ly, found th e H us ba nd to ha ve a g ro ss , m ar it al pr op er ty s har e including half interest in the personal propert y and half interest in the residential equity , having a value of $29,839.3 1. The Chancellor then deducte d one-ha

lf of th e credit card de bt of $4,100.00 to be paid by the Husba nd and the $10,000.00 value of the 1998 Chevrolet Lumina leaving the Husband a net value of $15,739.31 as his share of the mar

ital prope rty . This amount was then awarded to the Wife as rehabilitative alimony and to offset Wife’s attorney ’s fees and defray the expense of the lawsuit. The Wife was awarded the marital residence but also required to ge tthe Husba

nd relea sed and held harm less from the $97,000.00 indebtedness on the house. On appeal, Wife argues that the trial court erred by dividing marital property equa lly as opposed to equita

bly, err ed in its division of marital property by not considering all factors required-4-

by Tennessee Code Annotated section 36-4-121 (c), and in alloc ating all d ebt to the Wife. Husband argues that the trial court erred in its award of $15,734.31 a s alimony in solido. The trial cou

rt is obliga

ted to equ itably divi de the ma

rital pro perty in a divorce case without regard to fault. Tenn. Code Ann. § 36-4-121(a)(1). Tri al court s have bro ad discr etion in determining what is eq

uitable in a given case. Batson v. Batson , 769 S.W.2 d 849 (Te nn. Ct. App. 1988). The trial court’s classification and division of marital property is reviewed de novo with a presumption that the trial court’s factualfindings are correct. Waters v. Waters , 959 S.W.2d 585, 588 (Tenn. Ct

. App. 1997). The trial court’s division of marital property is entitled to great weight on appeal, Edwards v. Edwards , 501 S.W.2d 283 (Tenn. Ct. App. 1973), and should be presumed correct unless the evidence preponderates otherwise. Lancaster v. Lancaster , 671 S.W.2d 501 (Tenn. Ct. App. 1984). In exerci sing its discretion, the trial court must weigh the factors set forth in Tennessee Code Annotated section 36-4-121(c) which include:

(1) The duration of the marriage; (2) The age, physical and mental health, vocational skills, employability, earning capacity, estate, financial liabilities and financial needs of each of the part ies; (3) The tangible

or intang ible contr

ibution by one (1) party to the education, training or increased earning powe r of the other party; (4) The relative ability of ea ch party for future acquisitions of capital assets and income; (5) The contribution of each party to the acquisition pre serva tion, appreciation, depr eciation or dissip ation of the marital or separate property, including the contribu

tion of a p arty tothe marriage as homemaker, wage e arner or parent, with the contribution of a party as homemaker or wage e arner to be given the same weight if each party ha s fulfille d its role; (6) The value of the separate proper ty of each party; (7) The estate of each party at the time of the mar riage; (8) The economic circumstances of each party at the time the division of property is to become effective; (9) The tax consequences to each party, costs assoc iated w ith the reasona bly foreseeable sale of the asset, andother reasonably foreseeable e xpenses associa ted with the asset;-5- (10) The amount of social security benefit s availa

ble to each spouse; and (11) Such othe

r facto rs as ar e neces sary toconsider the equities between the parties. Tenn. Code Ann. § 36-4-121(c). When mari tal asset s in this case are compared to marital debt encumber ing the marital prope rt y, there was little equity to divide. The de cision of the trial court to make an e qua l distribution of net marital assets was within his sound discretion. After careful examination of the recor d in this case, we cannot find that the evidence preponderates against the trial court’s division of the marit al prope rty or that it w as inequitable in light of the relevant factors contained in Te nnessee Code Annotated section 36-4-121(c). The appellee complains of the trial court action in awarding an amount equal to his net share of the marital assets distribution ($15,739.31) to the appellant as alimony in solido. Trial judges have broad discre tion to determine whether spousal support is needed and, if so, its nature, amount, and duration. See Garfinkel v. Garfinkel , 945 S.W.2d 744, 748 (Ten

n. Ct. App. 1996); Jones v. Jones , 784 S.W.2d 349, 351 (Tenn. Ct. App. 1989). Appellate courts are gene rally disinclined to second-g uess a trial judg e ’s spousal su

pport dec ision unle ss it

is not suppo

rted by the evide nce or iscontrar

y to the public policies reflected in the applicable statutes. S ee Brown v. Brown , 913 S.W.2d at 16 9; Ingram v. Ingram , 721 S.W.2d 262, 264 (Tenn. Ct. App. 1986). Kinard v. Ki

nard , 986 S.W.2d 220, 234 (Tenn. Ct. App. 1998). We see no re ason to second g uess the t rial cou rt’s broa d discre tion in this award of alimony in solido. The judgment of the tri al court is in all respects affirmed and costs assessed a gainst the appella nt. The case is remanded to the trial co urt for such further proceeding s as may be deemed appropriate.

____________________________________ WILLIAM B. CAIN, JUDGE