# FILED
June 7, 1996 Cecil W. Crowson Ap pellate Cou rt Clerk MALCOL

M YATES WORLEY, ) ) Plaintiff and Counte

r-Defe ndant/ ) Appellan t, ) ) Hickman Chancery ) No. 9511296 VS. ) ) Appeal No. ) 01-A-01-9601-CH-00037 RITA K. WORLEY , ) ) Defendant and Counter-Plaintiff/ ) Appellee. )

IN THE COURT OF APPEALS OF TENNESSEE MIDD LE S EC TION AT N AS HVILLE
APPEAL FROM THE CHANCERY COURT OF HI CKMAN COUNTY AT CENTERVIL

LE, TENNESSEE
HONORABLE CORNEL IA A. CL ARK, CHANCELLOR

DOU GLAS THO MP SO N BA TES , III P.O. B ox 1 Centerville, Tennessee 37033 ATTORNEY FOR PLAI

NTIFF/APPEL

LANT
DANA DYE P.O. Box 11 105 West End Avenue Centerville, Tennessee 37033 ATTORNEY 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-

MALCOL

M YATES WORLEY, ) ) Plaintiff and Counte

r-Defe ndant/ ) Appellan t, ) ) Hickman Chancery ) No. 9511296 VS. ) ) Appeal No. ) 01-A-01-9601-CH-00037 RITA K. WORLEY , ) ) Defendant and Counter-Plaintiff/ ) Appellee. ) O P I N I

O N
This is a su

it and cou ntersuit f or divorc e in which

the wife was gr anted an absolute divorce on grounds of inappropriate marital c onduct of the husband. On appeal, the husband presents issues which relate only to identification and division of the marital estate: The parties were married in 1958 and sepa rated in 1995. Both parties worked during the marriage. Their ear

nings were approximately equal. There are no minor children.

The husba

nd’s firs t issue is: 1. It was error f

or the Trial Court to hold that the assets of the parties w ere ac quired by

equal co ntribution

of the pa rties.
Husband d

oes not que stion the a

pproximate

equality of earn ings, bu t assertsthat, during the marriage, he a

cquired $152,625.34 worth of assets by inheritance from his family
. The Trial Judge recognized $47,000 in certifica tes of deposit as being derived from inheritance and therefore sepa rate property

of the husband. The husband insists that the remainder of the $152,625.34 inheritance, or $102,625.34 be a lso assigned to him out of the marital estate of $126,204.10. In re spect to the inheritance, the Trial Judge stated orally from the bench: I also find under these def initions that the three CD’s of ten thousand d

ollars, se venteen thousand d

ollars and twenty thousand dollars were and remain the separa te property of

Mr. Worley, because

those monies came primarily from inheritance. They

have come fairly

recently, sinc e 1993, they can be t raced s eparat ely, and I don ’t fin d ther e’s bee n enou gh-3- proof of an intent or purpose to really treat them as marital fu nd s t o c ou nt th em in an y di ff er en t w ay. The fund s that wer

e rece ived at the same tim

e, beca use those were not the total of the funds received on those three occasions, but spent for other things, did become marital property a

nd they’ve been spent up or given to the children or otherwise disposed of, and I’m not g oing to attempt to deal wi th th os e t od ay.

. . . . And to the

extent I need to ma

ke a find ing, I find that in this marriage of thirty -seven, or thirty- six and a half years, w here both parties have worked outside the home for some substantial period, Mr. Worley has c ontributed significant inherited funds to the pre servation of the f amily , but Mrs. Wo

rley has also worked inside the home as homemaker and has decor ated the house, has raised the children, has done all the business and financial management for the fa mily, that there has bee

n a substantia l contribu tion, or a n equal c ontributio n, of both parties t o the ultima

te cours e of the marriag e and tha t both should be c

redited with that. The judgment of the

Trial Cour

t states: Both parties have made substantial and equal contributions to the accumul ation of ma

rital ass ets and th

e distribu tion of tho se asset s identified as marit

al assetsshould be a

pproximate

ly equal.
Husband a

rgues t hat the Tr ial Court in

cluded th e $102,62 5.34 in the

marital e state because the wife did housew ork at hom

e in addit ion to her work outs ide the ho me. This Court disa

grees . The hous ework wa s mentione d to justify an equa l division of

the incr ease in value or income f rom inher ited prop erty . The justi fication for fail ing to de signate

as separ ate propert y the $102,62 5.34 was t

he failu re to tra ce it into a

ny s everab le asset a s was done with the three certificates of deposit. As stated by the Trial Judge, so far as this record shows, the $102,625.34 has been “spent for other things or spent up” or given to the children or otherwis e dispose d of. The record does not r

eflect a prepond erance of the evidence a

gainst this finding. Consid

eration of the inte

resting question a

bout rec ognition

of housew ork ably presented by

counsel must await a more suitable factual and decisional situation.

The husba

nd’s sec ond issue i s:-4- 2. It was error f

or the Trial Court to ignore the uncontradicted proof of $9,500 co ntributed

by h usband tow ard the purchase price of the house when such funds came fr om the sale of an asset husband held before the marriag e.
Th e T ri al Ju dg e s ta te d o ra ll y: . . . As to the house, I find that the entire sixty -five thousand dollar equity value, whic

h is apparently une

ncumbered by

any lien, is to be considered marital property and may be disposed of in that way. I

recognize that Mr. Worley initially made a contribu tion of ab out nine thousand five hundr ed dollar s from a house he owned previous to this marriage, but that being more than thirty-five y

ears ago, and this house having a ppreciated substantially since then and having been the marital residence of these parties, insofar as they ’ve testified, forever, I find that that has been treated as and has become marital property. A

nd so I’m no t maki ng any dedu ction to hi s credi t for t hat lo ng ago contribution, either. At the marriage, the husband owned a house of unstated value. About eight y ears later he sold the house for $ 9,500. Ap pellee a rgues t hat any increa se in the v alue of t he house during the marriage could be deemed a part of the marital estate. Howe ver, a more important consideration is that the husband merged the $9,500 into the joint ownership of the new home. Such is subject to consideration as a presumed gift or the subject of transmutation which can occur by

the conversion of separate ownership of nonmar ital property into a for

m of common ownership or commingling non marital property with marital property. McClellan v. McClellan, Tenn. Ap p. 1993; 87 3 S.W.2d 350; Barnhill v. Barnhill, Tenn. App. 1991, 826 S. W.2d 443; Batson v. Batson, Tenn. Ap p. 1988, 76 9 S.W.2d 849; 27B C.J.S. Divorce § 522, pp. 525,526.

Husband’ s third issu e is: It was error to hold that timber cut on inher ited land would be se pa ra te pr op er ty. The judgment of the

Trial Cour

t states in part: . . . Thus, the marital assets of these parties consist of the marital home valued at $65,0 00.00, the $15,000.0 0 certif

icate of deposit which is found to be income derived from the husband’s separate property , . . . .-5- Th e T ri al Ju dg e s ta te d o ra ll y: . . . The fifteen thousand dollar CD, number 46748, which I think everybody

agrees was purchased after the sale of timber cut from Mr. Worley’s inher ited property, I

find to be marital propert y under (b) (1) (B) , in that it r eally constitute s income from separate property

and, therefore, should be defined to be ma ri ta l p ro pe rt y. This Court cannot agree with the Trial Court that the proceeds of timber removed from sep arately

owned re al estate

is marita l income. Timber is p art of the land upon

which it grows. New River Lumber Co. v. Blue Ridge Lumber Co., 146 Tenn. 181 (1922). The increase in value of the land by the timber growth which occurred while the land was owned by the husband during

the marriage would be a part of the marital estate, but the amount of such increased value, or the proportion of the timber proc eeds attributable to growth during such period does not appear in this record. Accor dingly, there

is no evidentiary basis for cl as si fyi ng an y pa rt of

th e t im be r p ro ce ed s a s m ar it al pr op er ty.

Husband’ s fourth a

nd last issu e is: It wa s error

to give wife $13,442.00 more of marita l assets upon a theory of

“Partial Attorney’ s Fees” especially when the issue nev er came

up at the t

rial until the cour t announc ed its rulin g and th ere was no pro of of w hat fee was ow ing. The tabulation of assets awarded the parties shows that $56,381.10 wa s received by the husba nd and $69 ,823 was r

eceive d by

the wife - a diffe rence o f $12,942 .90. As to t his di ff er en ce , t he Tr ia l J ud ge st at ed or al ly:

I also recognize that when the numbers are added up, the total numbers may work in f

avor of Mrs. Worley slig

htly. To the extent that they do, then I also intend that they constitute an award, a partia

l award o f attorne

y’ s fees, a nd I’ m not going to aw ar d h er th os e o r i n a ny o th er al im on y in solido separa tely because she has now been give n assets and/or judgment that wi ll gi ve he r s om e l iq ui di ty. This Court cannot agree that a $12,942.90 differ ence in distribution of property can be justified by “attorney ’s fees” which are awar ded as a part of alimony
. Gilliam v. Gilliam,-6-

Tenn. Ap p. 1988, 77 6 S.W.2d 81; Raskind v. Raskind, 45 Tenn. App. 583, 325 S.W.2d 617 (1959).
The counter-complaint of the wife did pray for attorney ’s fee. Although no evidence is found in the record as to the amount of legal servic es rendered or the reasonable charges therefor, it is possible for a court to make a determination of the r easonable services which appear on the face of the record. Kahn v. Kahn, Tenn. 1988, 756 S.W.2d 685.

The record of the Trial Court and the briefs a nd argument before this Court justify at least $5,000 in legal fees which will be awar ded to the wife.
The elimination of the $15,000 timber proceeds will reduce the share of the wife by $7,500, which, together with the elimination of the $12,942.90 will reduce the amount of the wife’s share in the marital estate to the extent of $20,442.90.

Accord ingly , the judgment of $2 5,000 in fa vor of the wife and agains t the husba

nd is reduced to $4,557.10, and an award of $5,000 attorne y’s fee to the wife is added to the judgment. As modified, the judgment is affirmed. The costs of this appea l are taxed equally. That is, each party

shall pay one-ha

lf. The cause is remanded for nece ssary furthe r procee dings. Modified, Affirmed and Remanded.

_____________________________________ HENRY F. TODD PRESIDING

JUDGE, MIDDL

E SECTION CONCUR:

_____________________________________ SAMUEL L . LEWIS, JUDGE

_____________________________________ BEN H. CANTRELL , JUDGE