# FILED

November 9, 1998 Cecil W. Crowson Appellate Cou rt Clerk 

## IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

CATHY P. McMANAMAY, ) ) Plaintiff/Appellee, ) Montgomery Chancery ) No. 97-01-0151 VS. ) ) Appeal No. CHARLES T. McMANAMAY, ) 01A01-9802-CH-00081 ) Defendant/Appel

lant. )



## CONCURRING OPIN

ION

The presiding judge has determined that this case should be remanded “to hear further evidenc e and to adjudge an e quitable division of the

marital esta

te.” His opinion does not explain why the cour t has been unable to “ascertain from the evidence in this record what an equitable

division of the ma

rital estate should be

” and does not provide directions to either the trial court or the partie s regarding the steps that should be taken on rem and. We have prepared

this separate opinion

to provide this information

.
One of the three issues Colonel McManamay raises on appeal concerns the trial court’s failure to consider as marital pr

operty the incr

ease in the value of three of Ms. McManamay’s investment accounts, two pieces of real property in Ms. McMana may’s n ame, and Ms.McManamay ’s civil service retirement.

When this oversight was first br ought to the trial c ourt’s attention on Decem ber 10, 1997, the trial court stated that it would not be “equitable” to award Colonel McManam

ay any inter estin the se assets because “Mr. McManamay was quoted in his deposition as having said, he didn’t care about Ms . McManam ay’s property, as I understood i t.” Later, in response to

Colonel McManamay ’s Tenn. R. C iv. P. 59 motio

n pointing out that he had never relinquished h is claim agains

t marital prope

rty being held by

Ms. McMana may, the trial court entered an order on February 27, 1998, concluding that itwould not

consider the apprec

iation in the value of these a

ssets as marita

l property-2-

because the parties had m

aintained their fina

ncial accounts sepa

rately d uring the marriage.

We ordinarily defer t

o atrial court’s deci sions with regard to the classification of property and the divis

ion of the marital e state unless they are incons istent wi th Tenn. Code Ann.§ 36-4-121(b), (c) or are not

supported by a

preponderance of t

he evidence. See Brown v. Bro wn, 913 S.W.2d 163, 168 (T enn. Ct. App. 1994); M ahaffey v. Mahaffey, 775 S.W.2d 618, 622 (Tenn. Ct. App . 1989); Har din v

. Hardin, 689 S.W.2d

152, 154 (Tenn. Ct. App. 1983). The trial court’s reasoning in this case reflects a

fundamental misunde

rstanding of the natur

e of marital prope

rty.

As defined in Tenn. C

ode Ann. § 36-4-121(

b)(1)(A) (1996),

“marital propert

y” includes personal property . . . acquired by either or both spouses

during the course

of the marriage up to the date of the final divorce hearing and

owned by either or both spouses as of the date of filing of a comp laint for divorce . .

. and valued as of a date as near a

s reasonably possible t

o the fi nal divorce hearing date. Based on this broad definition, a spouse’s income ea rned and re ceived during the marriage is marital propert

y, no matter whether t

he spouse receiving

it deposits it in
aseparate account

or in a joint accoun t. Thus, a spouse’s se parate financial

account is not, by definition, separate pro p erty. It follows that income deposite

d into a sepa rate account during the ma rriage must be tre

ated as marital pr

operty subject to distribution

in an equitable fashion. With this rule in mind, we turn to the property at issue on this appeal

.
Ms. McManama y is t he record owner of two tracts of rea

l property, one in Hudson, Kentucky and the othe r in Sharpsburg, Georgia. Ms. McManamay testified that her mother had conveyed the Hudson, Kentucky property to her and thatshe was holding the property in trust for her mother. She also conceded t hat the value of this propertyhad increased $10, 000 during th e marriage. While the trial cou rt did not specifically

address this pr operty, Ms. McMa namay’s testimony is uncontradicted. Accordingly, we find that the evi dence would

have supported a decision to exclude this property from the m

arital estate because Ms. McManam ay was holding

it in trust for her mother. The

trial court also dec

lined to treat the ap

preciation in value o

f the1 Ms. McManamay apparently use d the proceeds of the sale of one of the parties’ pontoon boats to purchase this property following the parties’ separation. She was awarded the pontoon boat as p ers ona l pr ope rty. -3- Sharpsburg, Ge orgia property as marital property because of the lack of evidence
conce rning the a ppreciation in the va lue of this property a

nd because the proper

ty “has no equitable value be yond that wh ich has already bee n considered in the d ist ribution

of the . . . personal prope rty.” 1 We have no basis to se cond-guess this determination.

Ms. McManamay also

had three separate financi al accounts, a 401(

k) account,
asavings account, an d an account with Put num Securities. Ms. McManama y deposited portions of her incom e into these accounts durin g the marriage, a

nd at the time of the divorce hearing, the 401(k) account had appreciated by $20,332.63; the Putnum Securities account had increased by $9,451.45; and the savings account had increased by $26,000. Ms. McM anamay testified w

ithout contradiction th

at $20,000 of the deposits to her savings account belonged to her mother and that she was holding these funds in trust.The appreciation in these accounts, with the exception of the funds attributed to Ms. McManamay’s mother, came from deposits of salary Ms. McManamay earned during the mar riag e, and, therefore, should have been classified as marital proper ty. Likewise, the increase in the value of Ms. Mc Manamay’s pension during the marriage should also have been classified as marital property.See Cohen v. Cohen , 937 S.W.2d 823, 830 (Ten n. 1996).

WhileTenn. R. App. P. 13(d) and 36(a) empower us to classify and

distribute marital property on appeal, we have determined that the presen t recor d does not contain sufficient evidenc

e to enable us to devise

an equitab le distribution of the pa rties’ marital property i n this case. Acco

rdingly, we must re

mand the case wit

h directions to the trial court to permit the parties to present additional evidence thatwill enablethe trial court to clas sify the parties’ se parate and marita

l property, to place a value on the marital prope rty, and t o divide the marital property equitably.The division need no t be precisely equal , see Cohen v. Cohen , 937 S.W.2d at 83 2; Ellis
v. Ellis, 748 S.W.2d 424,

427 (Tenn. 1988),

and each party is not

necessarily entitled to receive a share of e very piece of marital pr operty. See Brown v. Bro wn, 913 S.W.2d at 168.-4- We concu r with the pr esidi ng jud ge’s c oncl usio n that Colon el McM anama y
was not prejudiced by

the pace in which th

e trial court conduc

ted the hearing

of this case. We also concur that Ms. McManamay

was entitled to the d

ivorce and that the trial court did

not err in the classi

fication and distribu

tion of the apprecia

tion in the value of the Stratford Way property and the Eddyville, Kentuc ky property.

____________________________ WILLIAM C. KOCH, JR., JUDGE

____________________________ WILLIAM B. CAIN, JUDGE