### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE July 8, 2002 Session

TERRY B. HAR DIN v. TERESA

DIANE HARDI N
Direct Appeal from the Circuit Court for Sumner C ounty

No. 21177-C Hon. C.L. Rogers, Judge

No. M2001-01845-COA-R3-CV - Filed Septem ber 12, 2002

In this divorce action, the Trial Court cl as si fi ed mo nt hl y be ne fi ts pa id to hu sb an d a s m ar it al pr op er ty. On appea l, husband

contends pay ments are disability benefit s. We aff

irm.

Tenn. R. App.P.3 Appe al as of Right ; Judgme nt of the Cir

cuit Cour

t Affirme d.

H ERSCHEL P ICKENS F RANKS , J., delivered the opinion of the court, in which H O US TON M. G ODDARD , P.J., and D. M ICHAEL S WINEY , J., joined.

Jack Davisand L

uther Er nest Cantr

ell, Nash ville, Te nnessee , for App ellant.
C. Ronald Blanton and Joseph Y. Longmire, Hende rsonville, Tennessee, for Appellee.

OPINION

In this divorce action, the Trial Court determined that the monthly pay ments received by the husband

from the Ford Retirement Plan was a marital asset and declared the wife to ha ve a 50% interest in the same and awarded her one- half of a lump sum payment a lready r eceived by

the husband in the amount of $6,000.00. The husband has appealed.

The parties stipulated to a divorce pursuant to Tenn. Code Ann. §36-4-129.-2- The husband testified that he applied to Ford Company

for disa bility benefits on May 25, 1999, and that he was disabled in May 1998. He fu r ther testified that he was terminated, and then put on medi cal lea

ve, and w as told tha

t his only option was to take disability retirement. He further testifie d that he r

eceive d $831.11 p er month, and a lump sum pay ment of $1 2,026.28 i n November 2000.

Th e wife testified that she contributed to the marital estate as a homemake r and parent. She testif

ied that sh

e had he alth prob lems, including Hepatitis C, and was unable to work, and she filed an exhibit consisting of documentation provided to her attorney

via a subpoena

to the Ford Motor Company.

The Trial Judge determined the Ford Retirement Plan was a re tirement/pension plan and a marital asset. If the Tr ial Court is correct

in its characterization of the monthly pay ment, then the pay ment cons titutes ma

rital pro perty , su bject to e quitable division. Tenn. Code Ann. §36-4- 121(b)(1)(B), Cohen v. Cohen , 937 S.W.2d 823 (Tenn. 1996). ( C.f., Gragg v. Gragg , 12 S.W.3d 412 (Tenn. 2000) (ho lding tha

t true disa bility pay ments replace lost income and are not marital property.)

Our review o f the Tri al Court’ s decisio n is de novo witha presum ption of c orrect

ness of the Tr ial C ourt’ s find ings of fact, unless the preponderance of the evidence is otherwise. Tenn. R. App. P. 13( d); McCarty v. McCarty , 863 S.W.2d 716 (Tenn. Ct. App. 1992). N o pre sumption of correctness attaches to the trial court’s legal conclusions. Union Carbide Corp. v. Huddleston , 854 S.W.2d 87 (Tenn. 1993). T h e issue thus becomes the correctness of the Trial Court’s f actual finding that

the plan at

issue under which the husband was receiving benefits was a retirement plan. The only proof on t

h i s issue is the husband’s testimony and the documenta ry evidenc e. The Ford Motor Company wrote the husband regar ding his “Applicat

ion for Di sability

Retireme nt” from i ts division of “Re tirement Relations”. The letter states that the company was in receipt of the husband’s application “necessary to support your retireme

nt under the Ford-UAW Retirement Plan, commencing 6/1/99.” The letter then explains that the husband w ould be su bjected to a medical evaluation to determine his eligibility for a disability retirement. The letter r epeate dly refer s to the benefit s and plan as “retirement”. The husband’s application was on a form entitled, “Ford-UAW Retirement

Plan - Application for Reti rement Benefits”. The husband, from six choices for retirement type , checked “disability ”.

The information subpoenaed from Ford Motor Company and filed in evidence, consist s of a cov er letter to the attorney , a memo on Ford Motor Company letterhead regarding benefit s information on husband, and attachment which is entitled, “Alternate Pay ee’s Ford-UAW Pension Benef

its”. The memo reg arding

husband’ s benefits addre sses thre e categ ories - health care, savin gs plans, and pension plans. Under the Pension Pla

ns headin g, the me

mo states “ In re sponse to your reque st for Pension data, please be advised that Mr. Hardin commenced a monthly retirement benefit from the Ford Motor Compa

ny- UAW Retire

ment Plan o n June 1, 199 9. The mon thly benefit is curren tly $ 831.11.” The memo c onti nues t hat if a benefit from the pension plan is required for the alternate pay ee, then a QDRO is required. The atta chment r egard ing alte rnate pa ye e benef its sets forth the requirements for such a QDRO.-3- We conclude the evidence does not prepondera te against the findings of th Trial Court. The documentation from the Ford Motor C o mpany clearly indicate s that the h

usband is receiving b enefits under a retirement plan provided by his employer. Ther

e is no evidence of a separa te disability policy . The memo from Ford Motor Company expre ssly

states the husba

nd is receiving a “monthl

y retirement benefit” pursuant to a pension plan, and furthe r describes how the pension plan may be divided pursua ntto a QDRO. The husband admitted that the only plan he had
was his retirement plan through Ford/UAW. The application which the husband filled out states that it is an app lication f

or retir ement. The husband maintains the monthly pay ments are for disa bility to rep lace l ost income, but this is not borne out by the documentary evidence. The statutory de finition of marital propert y is “virt ually all inclus ive”, an d specif

ically includes retirem

ent benefits. See Cohen

.
Ac co rd in gl y, we affirm the Judgment of the Trial Court and remand. The cost of the appeal is assessed to Terry B. Hardin.

_________________________ H ERSCHEL P ICKENS F RANKS , J.