# FILED
December 5, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk 

## IN THE COURT OF APPEALS OF TENNESSEE MIDDLE SECTION AT NASHVILLE

JONI SMART HOLT, ) ) Plaintiff/Appellee, ) ) Sumner Chancery ) No. 93D -485 VS. ) ) Appeal N o. ) 01A01-9609- CH-00423 JACK SANDERS HOLT, ) ) Defenda nt/Appella

nt. )

APPEAL FROM THE CHANCERY COURT FOR SUMNER COUNTY

AT GALLATIN, TENNESSEE THE HONORABLE TOM E. GRAY, CHANCELLOR

For the Plaintiff/Appellee : For the D efendant/ Appellant : Rose Palermo Mary Ar line Evan s Nashville, Tennessee Nashville, Tennessee



## AFFIRMED IN PART; MODIFIED IN PART;

AND REMANDED

WILLIAM C. KOCH, JR., JUDGE-2- 

## O P I N I O N

This appeal involves the dissolution of a n ineteen- ye ar marriage. The wife filed suit for divorce in the Chancery Courtfor Sumner County but then suspended the proceedi ngs while t

he partie s attempte d to reconc ile. Th e effor ts proved fruitles s, and, followinga bench tr

ial, the trial cour

t granted t

he wife a divorce

on the grounds of adultery. The tria

l cour t also awa rded the wife custody of the parti es’ two children, divided the marital estate, and awarded the wife spousal support as well as additional funds for h er legal expenses. The husba nd takes iss ue on this appeal w ith the financial aspects of the divorce decree, including the division of the marital property, the long-term spousal support award, and the additional award to defray the wife’s legal expenses at tri al. Whil e the tria l court pro p erly divid ed the marital propertyand awar

ded the wi fe funds f

or her le gal expense s a t trial , we mod ify the spousal support aw ard to prov ide for r ehabilita tive alimo ny and for

reduce d longterm spousa

l support.
I.
Jack Sanders Holt and Joni Smart Holt were married in Nashville

in June 1976. Ms. Holt was twenty-two years old at the time; while Mr. Holt was twenty-o ne. The ir first child was bo rn in J anuary 1981. In August 1989 their second child was born withserious he alth proble ms. The boy unde rwent

two hear t surgerie s before his second bi rthday an d has also had several less sever e surgeries on his ears

.
Mr. Holt wa s employed a s the sales manager for Sande

rs Manufa

cturing Company throughout

most of the marriage. Ms. Holt also worked during most o f the marriag e but primar

il y during the earl y years. She was working a s a secretaryreceptio nist

in a Nashville law office at the time of the marriage and later worked in the child suppor

t division of the circu it court cl erk’s off ice. Sh e stopped w orking full-time after he

r first c hild was born b ut continued to work on a

part-time basis at alocal department store as a fragrance and cosmetic model. She also worked f or a shor ttime at a

day-car e facili ty and for a

nother retailer dur

ing the holida

y s eason . Ms. Holt stopped wor

king comple tely afte

r the birt h of the par

ties’ sec ond child. The parties continually disagreed over whetherMs. Holt should retur

n to work. Their relationship bec ame incr easingly strained as the years passed. They tried-3-

marital co unseling in la

te 1988, but

Mr. Holt eventual ly refuse d to continue the counseling. During this time, Ms. Holt began to suspect that Mr. Holt was having an extramarital affair

with a co -worker . The

parti es separa

ted from February t

hrough April 1993 . While their re lationship se emed to im prove aft er Mr. Holt ret

urne d home, Ms. Holt

filed for divorce in

October 1993. Foll owing anoth er unsucc essful reconcil iationattempt, Ms. Holt moved t o set aside the o rder of r econcilia tion and later fi led an amended divorc e complai nt.
Duri ng t he trial in January 1996, Mr. Holt conceded that he had committed adultery. In an Apr

il 8, 1996 order, the trial court granted Ms. Holt a divorce based on Mr. Holt’s adulte

ry. The trial court gave Ms. Holt custody of the parties’ children and ordered Mr. Holt to pay $1,494 per m onth in child support. The trial court awardedMs. Holt

fifty-f our percent of themarital estate, including the marital home, and awarde d Mr. Ho lt t he remaining property, including his stock in Sanders Manufact uring Company an d the parti es’ inter est in the D anwood

Apartments. Mr. Holt was ordered t

o pay Ms. H olt alimony i n the amount of $1,200 pe

r month until her death or rema rriage a nd an additio nal $5,612. 75 to defra y her lega l expenses.
II. T HE D IVISION OFTHE M ARITAL E STATE
We turn first to the manner in which the trial court divided the marital estate. Mr
. Holt insists that the division of the marital property is inequitable because Ms

. Holt receive d a larger

portion of

the estate and becaus e the trial cour t overvalue d the Danwood Apartments which were awarded to him. We conclude that the manne

r in which the t rial court divided the marital property is equita ble.
A. The Valuation of the Interest in t he Danwood Apartment s
The parties owned aten percent interest in the Danwood Apartments, a twelveunit apartment building located on Nashville’s Music Row. At trial, they introduced evidence consis ting of a 1986 finan cial stat ement valuing the enti

re apart ment building at $300,000 , another 1988 financ ial state ment valui n g the building at $350,000, subject to a

$185,000 mor

tgage, a nd a 199 5 sta tement valuing their ten1 The value of the parties’ ten percent interest was $28,500, while their shar e of the mortgage debt was $18,500. The value of their interest less their share of the mortgage debt is $10,000. -4- percent interest at$10,000. 1 The tria l court, adopting the

values in th e 1988 financial statement , found that the value o f the par ties’ inte rest in the apartme nt was $16, 500. Mr. Holt insists tha

t the tria l court shoul d have adopt ed the 1995 va

luation. Valuing mari tal pr operty is not an exact science. It is a question of fact that depends upon the proof offered by the p arti es. The parties ha

ve the burden of presentingcompetent va luation evidence, and they are bound by the evidence they present. See Wallace v. Wallace , 733 S.W .2d102, 107 (Tenn . Ct. A pp. 1987). In the face of conflic ting valuati on evidence, trial courts ma y place a value on the

property that is within the range of the values presente d by the eviden ce. See Brock v. Brock, 941 S.W.2 d 896, 902 (Tenn. Ct. App. 1996). Like other fact questions, a trial court’s decision concerning the valuation of ma r ital prope rty is entit

led to grea

t weight on appeal and will no t be second-guessed unless the evidence preponderates otherwise. See Brock v. Brock , 941 S.W .2d at 902; Smith v. Smith , 912 S.W .2d 155, 15 7(Tenn. Ct. App. 1995).
The trial cour

t’s valuat ion of the pa

rties’ interest

in the apar

tment buildi ng is within the range of the com

petent proof. We find no ba sis for sec ond-guessingthe trial court’s decision to base its valuation of this propert y on the parties’ 1988 financial statement. In the face of contra dictory evi dence, t

he trial c ourt’s valuation is consiste nt with the

nature of the proper

ty and its loc ation.
B. The Division of the Marital Estate
Mr. Holt also asserts th at the overall result of the divis ion of

the marit al estate is inequitable

because M s. Holt receive d a dispropor tionately l arger sha

re of the ir property. He argues that the size of the marital property award indicates that the trial courtmust have c onsidered t he relati ve fault of

the partie s, and that the

size of Ms

. Holt’s share of the marit al proper ty will be a disincent

ive for he

r to attem

pt to rehabilit ate he rself. We h ave determined that the manner in which the trial court allocated the marital property was essentially equitable.-5- Trial courts hav e broad disc retion in di viding mari tal proper ty and alloca

ting marital debt. See Fisher v . Fisher , 648 S.W .2d 244, 24 6 (Tenn. 1983); Wade v. Wade , 897 S.W. 2d 702, 715 ( Tenn. C t. App. 1994); Koch v. Koch, 874 S.W. 2d 571, 579 (Tenn. Ct. App. 1993 ). We customarily accord the trial court’s decisions great weight on appeal , see Wilson v. Moore , 929 S.W .2d 367, 372 (Tenn. Ct. App. 1996), and we will

decline to alter them unless they are incon sistent wi th the fac tors in Te nn. Code Ann. §36- 4-121(c) (1996) or a re unsuppor

ted by the evidence. See Brown v. Brown , 913 S.W. 2d 1 63, 168 (Tenn. Ct. App. 1994); Mahaffey v. Mahaffey , 775 S.W.2d 618, 622 (Tenn. Ct. App. 1989).
Trial courts mus t distrib ute marital property equitabl y. See Tenn. C ode Ann. § 36-4-121(a)(1). However, the distributio n need not be mathema tically eq ual to be equitable. See Cohen v. Cohen , 937 S.W .2d 823, 83 2 (Tenn. 1996); Ellis v. Ellis , 748 S.W.2 d 424, 427 (T enn. 1988) ; Herrera v . Herre ra, 944 S.W. 2d 379, 389 (T enn. Ct. App. 1996). In

addition, each par

ty need not receive a share of each piece of marital propertyin order f

or the divis ion to be equitabl e. See Brown v. Brown , 913 S.W .2d at 168.
As is usual in c ases of thi s sort, the parties pl aced diff

erent values on their marital property. The most signif icant diff erences involve the value of their i nterest in the Danwo od Apartme nts, the va lue of the m arital hom

e, and the

value of th e furnishings in the mar

ital home. Mr. Ho lt valued th e entir e marital estate at approxima

tely $407,126; while Ms. Holt valued it at $367,576. The trial court determined t he value of

part, but not all, of

the proper

ty. Ms. H olt recei ved th e marital home and fu rnishin gs, a mower, two individual r etireme ntaccounts, and the contents of her ch ecking account. Dependingon which pa rty’s valu es are use d, Ms. Holt’s share of the marital estate was worth bet ween $199,2 87 (or 54. 2% of the mari tal estate according to her valuation) and $240,087 (or 58.9% of the ma rita l estate acco rding to Mr. Holt’s val uation).
We have evaluated the overall effect of the trial court’s division of the marital estatein light of the factors in Tenn. Code Ann. § 36-4-121(c) and have determined that the division is equitable. The parties were marr ied for nin eteen yea rs. Dur ing this time, Ms. Holt focused muchof her atte ntion on her family an d thus her a bility to earn in come and acq uire capit al assets wi ll not be a s great as Mr. Ho lt’s. Ms
.-6-

Holt’s employment prospect s are als o more lim ited than Mr. Holt’s who has remained in the full-time work force throughout the marriage. Accordi ngly, we have no basi s to differ with the trial court’s division of the marital estate.
III. T HE A WARD FOR S POUSAL S UPPORT
Mr. Holt also take s issue with the trial court’s de cision to aw ard Ms. H olt $1,200 per month a s spousal suppo rt until her death or r

emarria ge . He asserts that Tennessee’s divorce statutes contain a preference for rehabilitative support and that Ms. Holt should receive rehabilitative support rather than long-term support. We agree Ms. Holt’s spousal support should be structured to provide h er an incentive to become mo re self- sufficie nt.
A.
Trial courts hav e broad dis cretion in setting th e amount a

nd duration

of spousal support. See Garfinkel v. Garfinkel , 945 S.W.2d 74 4, 748 (Tenn . Ct. A pp. 1996); Jones v. Jones , 784 S.W .2d 349, 352 (Tenn . Ct. App. 1989) . These decisions s hould be guided by the particular facts of each case and b y acareful balancing of the factors containe d in T enn. Code Ann . §36-5-10 1(d)(1) (Sup p. 1997). See Hawkins v. Hawkins , 883 S.W.2d 622, 625 (Tenn. Ct. App. 1994); Loyd v. Loyd , 86 0 S.W. 2d 409, 412 (T enn. Ct. App. 1993). T his court c ustomarily

declines t

o second-gue ss a trial court’s de cision conc erning spous al support unless the de cisionis not supported by the eviden ce or is c ontrary topublic polic y embo died in the applicable statutes. See Brown v. Brown , 913 S .W. 2d at 169; Ingram v. Ingram , 721 S.W .2d 262, 26 4 (Tenn. Ct. App. 1986).
Even though fault is a relevant consider atio n when set ting spousal s upport, these decisions are not

intended to be pun itive. See Brown v. Brown , 913 S.W.2d at 169; McClung v. McCl ung , 29 Tenn. App. 580, 584, 198 S.W.2d 820, 822 (1946). Rather, they are intended to assist the economically disadvantaged spouse to become self-suf ficient and, when economicrehabilitation is not feasible, to mitigate the harsh economic realities of divorce. See Brown v. Brown , 913 S.W.2 d at 169-70. The principal factors influencing spousal support decisions include the need o f the-7-

recipientspouse and th e abilityof the oblig or spouseto pay. See Crain v . Crain , 925 S.W.2 d 232, 234 (T enn. Ct. App. 1996) ; Hawkins v . Hawki ns , 883 S.W.2d at 6 25.
Ten n. C ode Ann. § 36-5-101( d)(1) re flects a prefer ence for temporar

y, rehabilit ative support, as opposed to long-term support
. See Wilson v. Moore , 929 S.W.2 d 367, 375 (T enn. Ct. App. 1996) . This pr eferenc e does not c ompletely displace otherforms of sp ousal su pport. See Aaron v. Aaron , 909 S.W .2d 408, 41 0 (Tenn. 1995); Isbell v. Isbell , 816 S.W .2d 735, 73 9 (Tenn. 1991). T rial cour ts continueto have the

prerogat ive to determin e which type of spousa l support bes t fits the facts of

each par ticular c ase and

may, wh en appropr

iate, a ward a spouse several differe nt types of s upport.
B.
Ms. Holt is currently forty-three years old a nd is in rela

tively good he alth. She has a high sch ool dipl oma and has completed one year of co llege. S he worked steadilybefore a

nd during the

early years of the marriage and demonstrated that she couldfind emplo yment whe n she chose to work. She elected not to work

in order to care for the pa

rties’ c hildren w hile they w ere younge r, but the se children are now seventeen and nine ye ars old. Her young er son ’s medical problems have abated significa ntly, and the boyis now act ively involve d in sports a

nd other extracurricular activiti es.
Based on our exam

ination of the record, we have dete rmined tha

t Ms. Holt is acandidate

for reha bilitative support in orde r to enable her to become more selfsufficie nt. W e have also de termined that she shou ld receiv e some “c losing in money,” Aaron v. Aaron , 909 S.W.2d at 4 11, ove r a longer te rm. According ly, we modify the trial

c ourt ’s spousal s upport awa rd to provide

that Mr. Holt should continueto pay Ms. H olt $1,200 pe r month until

Decemb er 31, 1999

. Therea fter, t he amount of Mr. H olt’s spousa

l support sha

ll be reduce d to $800 per m onth unless Ms. Holt presents p roof satis factory t o the trial court that she has made serious, good faith efforts to rehabilitat e herself an d that her a bility to ea

rn income and to acc umulate capital as sets has n ot appreci ably impr oved.
IV.-8- T HE A WARD FOR L EGAL E XPENSES
We turn finally t o the ques tion of Ms . Holt’s lega l expense s. For his part, Mr. Holt asserts that the trial court should not have required him to pay Ms. Holt an additional $5,612.75. For her part, Ms. Holt insists that this court should require Mr. Holt to pay the legal expenses she incurred on this appeal. We have determined that the trial court properly awarded Ms. Holt the legal expenses she incurred at trial but that Ms. H olt should be r esponsible f

or her ow n legal exp enses for this appea

l.
Awards for legal expenses in a divorc e procee ding are c onsidered t o be awar ds for additional support. See Smith v. Smit h , 912 S.W .2d 155, 16 1 (Tenn. Ct. App. 1995); Kincaid v. Kincaid , 912 S.W.2 d 1 40, 144 (Tenn. Ct. App. 1995). They are warrantedwhen an e conomical ly disadvanta ged spouse la

cks the fun ds to pay his or her legal expe nses. See Herrera v. Herrera , 944 S.W .2dat 390; Brown v. Brown , 913 S.W.2 d at 170. T

hese awa rds, like other dec isions in div orce proc eedings, are discretionary with the t

rial cour t, and so th e appella

te courts w ill decline

to interfere withthe tr

ial court ’s decisio n unless the trial cour t has abuse d its discretion. See Garfinkel v. Garfinkel , 945 S.W .2d at 748; Smith v. Smith , 912 S.W .2d at 161.
Ms. Holt wil l be retur

ning to employment at the ag e of forty- three af ter having been away fr

omthe full- time job ma

rket for approxima

tely twenty years. The marital propertyshe rece ived is not li quid, and sh e will be required to use these

assets to support her as the

years go by. Accordingly, we concur with the trialcourt’s de cision to require Mr. Holt to pay her an additiona

l $5,612.7 5 to help def

ray th e legal expenses she incurred at

trial. We have de

termined, however , that Mr . Holt sho uld not be requir ed to pay any more of M s. Holt’ s legal exp enses and a ccordingly

deny her reque st for an a

dditional aw ard for he

r legal e xpenses on a

ppeal.
V.
We affirm the judgme nt as modified herein and remand the case to the trial courtfor further proce e dings consist ent with th

is opinion. We tax the

costs of thi s appeal in equal pr

oportio ns to Jac k Sanders Holt and his surety and to Joni Smart Holt for which execution, if necessary, may issue.-9- _________________ ___________ WILLIAM C. KOCH, JR., JUDGE
CONCUR:

_________________

________________ HENRY F. TODD, PRESIDING JUDGE MIDDLE SECTION

_________________

________________ SAMUEL L. LEWIS, JUDGE