### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE March 26, 2001 Sessi

on DANIEL ED LO

WE v. FAYTEL

LA D. LOWE Appeal from the Circuit Court for Bradley County No. V-99-300 Lawrence H. Puckett, Judge

FILED MAY 30, 2001 No. E2000-01456-COA-R3-CV

In this divorce case, the trial court dissolved a childles s m arriage of 5 1/2 years. Daniel Ed L owe (“Husband”) appeals, arguing that the trial court erred (1) in declaring the parties ’ antenuptial agreement

voi d an d (2 ) in gran tin g Fayt ella D . Lowe (“Wife”) half of the increase in value of Husband’s retire

ment benefits ac

crued during th

e marriage. We

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

Affirmed; Case Remanded C HARLES D. S USANO , J R ., J., delivered the opinion of the court, in whichH OUSTON M. G ODDARD , P.J., and D. M ICHAEL S WINEY , J., joined. John W. Cleveland, Sweetwater, Tennessee, for the appellant, Daniel Ed Lowe. Ashley L. Ownby

, Cleveland, Tennessee, for the appellee, Faytella D . Lowe.

OPINION
I. Background The parties were married

on July 1, 199 4. It was the t hird marria ge for each of them. Prior to the marriage,

the parties execu

ted an antenuptia

l agreement, in

which they a

greed that the p

roperty ownedby each at the time of marriage would remain sepa rate property and t

hat any proper

ty acquired during the marriage from sources other than from their separate property would be divided equally between the parties.
In February, 1999, Husband retired from his employ ment at Cleveland Utilitie

s. He filed for divorce in April, 1999. The parties were divorced by entry of a judgment on January 24, 2000. The t rial court awarded Wife a divorce on the ground of inappropriate marital conduct. Withou t assigning values to

any of the property, the trial c ourt found that the parties’ personalty, Husband’s-2-

deferred compensation, the increase in value of Husband’s retirement benefits during the course of the marriage, and an annuity acc ount opened by Husband after his retirement were all marital property to be equally divided between the parties. The trial court furthe r awarded Wife $75 0 in attorney’sfees and declared the parties’ antenuptial agreement to be void “due to the fact the Wife didnot enter into the a

greement knowi

ngly and di

d not h ave p roper notice of the Husband’s retirement

account prior to enteringthe antenuptial agreement.” The trial court subsequently ente red a qualified domestic relations order, directing the administrator of Husband’s retirement plan to pay benefitsto Wife equ aling 50% of Husband’s retirement benefits accrued during the parties’ marriage. Husband filed a motion for a new trial, which was denied. This appeal followed.
II. Standard of Review
Our review of this non

-jury case is de novo ; however, the record comes to us accompanied by a presumption of correctness that we must honor unless the evidence preponderates against the trial court’s findings. Tenn. R. App. P. 13 (d); Jahn v. Jahn, 932 S.W.2d 939, 941 (Tenn. Ct. App. 1996). No presumption attaches to the lower court’s conclusions of law. Jahn, 932 S.W.2d at 941.
III. The Antenuptial Agreement
We first turn to the parties’ antenuptial agreement. Antenuptial agr eements are enf

orceable in Tennessee if en

tered into “fre

ely, knowle

dgeably and in good

faith and without e

xertion of duress or undue influ ence upon ei ther spous e.” T.C.A. § 36-3-501 (1 996). To sat isfy the knowl edge element of this provision,

the spouse seeking to enforce an antenuptial agreement must prove, by a preponderanc

e of the evidenc

e, either that a f

ull and fai r disclosure of the nature, extent, and value of his or her holdings was pr ovided to the spouse seeking to avoid the agreement, or tha t disclosure was un

necessary because the spou

se seeking to avoid the agreement

had independent know

ledge of the fu

ll nature, extent, and value of the proponent spouse’s holdings. Randolph v. Randolph, 937 S. W .2d 815, 821 (Tenn. 1996). What constitu

tes a “full and fa

ir di sclo sure” depends upon the circumstances of each case. Id. “While disclosure need not reveal precisely every asset owned by

an individual spouse

, at a minimum, full and fair disclosure requires that each contracting party be given a clear idea of the nature, extent, and value of the other party’s property and resources.” Id. According to t he S tat eme nt o f th e Ev ide nce, Hus ban d in ten tio nal ly an d wi llf ull y failed to disclose to Wife the value of his retirement account prior to their marriage. T h us, it is clear there was no “full and fair disclosure” of the value of what appears from the record to be the largest asset in t his case. Husband argues, however, that Wife had independent knowledge of his re tiremen t ben efi ts a nd, the refo re, d isc los ure w as n ot n eces sar y. Sp eci fic all y, he points to the fact that, prior-3-

to the marriage, Wife knew he had been employed by Cleveland Utilities for over 20 years. He also cites the fact that he tol d Wife prior to the marriage that he had directed his attorney in a pr ior divorce to “just make sure my [previous] wife doesn’t touch any of my retirement. I don’t care what it costs me,” or words to that effect. Finally, he argues that Wife ha d the advice of counselbefore signing the antenuptial agreement. The evidence does not preponderate against the trial court’s finding that Wife did not enter into the agreement “knowledgeably.” Knowing how long Husband had been employed and that he had made such a statement to prior cou nse l may have indicated to Wife that Husband had a retirement

account, but we do not find that such information revealed to Wife the nature, extent, and value of that asset. Moreover, we do not find that Wife’s consultation with the attorney who drafted the antenuptial agreement is dispositiveof the issue. Consul tation with counsel

“is merely one factor relevant to the assessment of knowledge.” Randolph, 937 S.W.2d at 822. In light o f all the facts, we do not find that her consultation with an attorney is sufficient to

establish Wife’s knowledge by a preponderance of the evidence. Accordingl y, we find th at the evidence d

oes not preponder

ate again st the trial court’s factual findings underpinning that court’s deterination that the par ties ’ antenuptial agreement is void.
IV. Husband’s Retirem ent Benefits
We nex t turn to the division o f Husband’s retir

ement benefits tha

t accrued during

th e marriage. Husband argues that the judgment of divorce is not a “qualified domestic relations order” within the meaning of the anti-alien ation provision of the Emp loyee Retir

ement Income

Security Act, 29 U.S.C. § 1056(d) (1999) (“ERISA”), and, so the argument goes, the a ward is invalid. Furthermore, he argues, the trial court erred in calculating the a mount to which Wife is entitled. According to the Statement of the Evidence, Husband worked for Cleveland Utilities, and participated

in its retirement plan from October 1, 1965, until November 7, 1969. Husband cashed out his retirement benefits when he left this employment in 1969. Approximate

ly two years later, Husband returned

to work for Cleveland Utilities and parti cipated i n its retir ement pla n for the n ext 27 years. In August, 1997, he r epurchased his retirements benefits for the years 1965 to 1969 for $7,294.18. Husban

d used $2,500 of mar

ital funds to repur

chase these ben

efits. Husband retired in February, 1999, after 30 years of

employment w

ith Cleveland Utiliti

es. Husband elected to draw his retirement without a survivor’s benefit. Upon his election, the Cleveland Utilities plan administrator purchased an annuity to pa

y Husband’s

retirement bene

fits basedon Husband’s life expectancy. At the time of the parties’ marriage, the value of Husband’s retirement

benefits was $97,730.54. At the time of Husband ’s retirement, th e value of these b

enefits was $225,906.80.
There is no dispute that the retirement benefits that accrued during

the marriage c

onstitute marital property. See T.C.A. § 36-4-121(b)(1)(B) (1996) (defining “mari tal pro perty” to include “the value of vestedand unvested pension, vested and unvested stock option rights, retirement or other-4-

fringe benefit right s relati ng to employment that accrued during the period of the mar riage”). As marital property, H

usband’s retire

ment benefits wer

e subject to

an equitable division , even thou gh Wife didnot directly contribute to the increase in their value. See Cohen v. Cohen, 937 S.W.2d 823, 830 (Tenn. 1996); Kendrick v. Kendrick, 902 S.W.2d 918, 926 (Tenn. Ct. App. 1994). The division of marital property

must be done in

accordance with the statutory factors set forth in T.C.A. § 36-4- 121(c). “[A]n equitable pro perty divisio

n is not necessari

ly an equal o

ne. It is n

ot achie ved by a mechanical application of the statutory factors, but rather by considering and wei ghing the m ost relevant factors in light of the unique facts of the case.” B a tson v. Batson, 769 S.W.2d 849, 859 (Tenn. Ct. App. 1988). A tri a l court ha s wide discretion in fashioning an equitable division of marital property, and we will defer to the trial court’s de cision unless it is inconsistent with the statutory factors or is unsupp orted by the preponderance of the evidence. Brown v. Brown, 913 S.W.2d 163, 168 (Tenn. Ct. App. 1994). Husband argues that the judgment of divorce is not a qualified domestic relations order; thus, so the argument g

oes, the award of

benefitsto Wife must fail. Husband may indeed be correct that the judgment of divorce does not meet the statutory criteria of a qualified domestic relations order. However, the judgment of divorce does not purport to be such an order. Moreover, we note that a qualified domestic relation s order was ente

red in this case subseque

nt to the judgment of divorce. Hus band does not contend th at this subsequent o

rder fails to mee

t the statutory

requirements o f ERISA. Thus, we

must conclude that

Husband’s arg

ument has no merit.
We further

find no merit in Husband’s argument that the trial court erred in its calculation of the amount

of benefits to which Wife is entitled. Upon reviewing the record, we cannot say that the trial court abused

its discretion in awarding Wife 50% of the increase of Husband’s retirement benefits during the marriage. This issue is also found adverse to Husband.
V. Conclusion The judgment of the trial court is affirmed. This case is remanded for enforcement of the trial court’s judgmen

t and for collect

ion of costs

assessed below, a

ll pursuant to applic

able law. Costs on appeal are taxed to the appellant, Daniel Ed Lowe.

___________________________________ CHARLES D. SUSANO, JR., JUDGE