Philip Rene Julian v. Beverly Ann Julian

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON FILED September 30, 1998 ___________________________________________

PHILIP RENE JULIAN, ) Cecil Crowson, Jr. Appellate C ourt Clerk ) Appellan t, ) Shelby Circuit No. 1519 27-1 ) v. ) Appeal 02A01-9709-CV-00229 ) BEVERLY ANN JULIAN, ) ) Appellee. )

APPEAL FROM THE CIRCUIT COURT OF SHELBY COUNTY AT MEMPHIS, TENNESSEE

THE HONORABLE JOHN R. McCARROLL, JR., JUDGE For the A ppellant: For the Appellee:

Stuart Brian Breakstone James D. Pugh, Memphis, Tennessee Memphis, Tennessee

AFFIRMED AS MODIFIED

HERSCH EL P. FRAN KS, J.

CONCUR:

W. FRANK CRAW FORD, P.J., W.S.

ALAN E . HIGHERS , J.

OPINION

In this divorce action, the husband has appealed, raising issues about the value and division of the marital property, as well as an award of attorney’s fees to the wife.

The hus band first arg ues that the v aluations by the Trial Judge are in error, and that the division of the marital estate is inequitable. It is clear from the Trial Judge’s co mments a nd orders th at he intend ed to divide the marital esta te two-thirds to the wife and one-third to the husband, and according to the Trial Judge’s valuations, the wife was awarded $102,417.88, and the husband $51,208.93. The equity in the house, determined by the Court to be $23,174.33 was awarded to the wife. Evidence on the value of the equity differs. However, the Trial Judge assessed the credibility of the witnesses, and the evidence does not preponderate against the valuation established by the Trial Judge. T.R .A.P. Rule 13(d). Th e value of the wife ’s retirement savings with her employer was established at $81,789.00, with $1,294.05 treated as separate property. The wife began contributing to this plan before the parties’ marriage, and the evide nce does not prep onderate against the Trial Jud ge’s determina tion. T.R.A .P. Rule 13 (d). The ev idence sho wed that th e wife ha d a profit sharing plan with her employer, with a total value of $20,403.00. The Court found $6,491.00 to be separate property. However, the evidence indicates the plan was established d uring the m arriage. W e conclud e that the total am ount in the p rofit sharing plan at th e time o f the div orce w as mari tal prop erty.

The Court allocated $21,947.40 to the hu sband, which the C ourt described as American Courier Income. The record shows the parties formed that *3 company in order for the husband to have a permanent job, and while the wife had worked for that company, as well as the husband, she testified that over the years she had only drawn $900.00 out of the company. She further testified that the company had been created out of her funds by selling Federal Express stock, and that she had invested a total of $12,000.00 in the company. The record further shows that the company’s assets or accounts had been sold or transferred. Under the circumstances, we find no basis to disturb the Trial Judge’s allocation and evaluation of American Courier. However, since the stock was not mentioned by the Trial Judge, we believe it appro priate to vest all o f the sto ck ow ned by th e parties in the hu sband .

Tennessee Code Annotated §36-4-121 gives a trial court wide discretion to adjust and adjudicate the rights and interests of the parties in all jointly-owned proper ty. Pennington v. Pennington, 592 S.W.2d 576 (Tenn. App. 1979). The test for the pro priety of th e divisio n is wh ether the division is equita ble, not e qual. Ward v. Ward, 937 S .W.2d 931 (T enn. A pp. 199 6).

We find the division m ade by the T rial Judge is eq uitable und er the facts of this case. The wife owned a home when the parties married. According to her testimony, the husband brought into the marriage an old rusted-out Datsun automobile. She was gainfully employed at the time of the marriage and has continued in that employment, and in an effort to find employment for the husband, sold sto cks fro m her s tock sh aring p lan with her em ployer to c reate a b usiness for him . Subsequently, she sold her home and put $18,000.00 of the $21,000.00 equity realized from its sale as a downpayment for the present home, which she purchased in her name. However, in 1993 the home was refinanced, at which time the husband’s name was placed on the title. The other sizeable item in the marital estate, other than the house, was the wife’s retirement plan with her employer, which was generated throug h her ef forts an d emp loyment.

The action of the Trial Judge in reducing the marital interest in the Federal Express profit sharing plan, as noted, is against the preponderance of the evidence . Accordin gly, the amoun t of $6,491 .00 design ated as sepa rate property, w ill be included as marital property, and divided in accordance with the allocation ordered by the Trial Judge. In reaching his allocation, the Trial Judge ordered the wife to pay the husband $19,888.40. Following the same formula as to the amount added to the marital property, the husband is entitled to be paid an additional $2,163.77, or one-third of the value of the Federal Express profit sharing plan which was not included as marital property, for a total to be paid by the wife to the husband in cash in the amount of $22,04 2.17. The Trial Cou rt’s judgme nt in dividing the marital pro perty is affirmed, as modified.

Finally, the husband contends the Trial Court erred in requiring the husband to pay the wif e a portion o f her attorne y’s fees. It is noted th at a hotly contested issue in the Trial Court was the custody of the parties’ child, and a substantial amount of the wife’s legal expenses were incurred on this account. The record establishes that the wife had incurred attorney’s fees and expenses in an amount exceeding $12,000.00, and it further appears that she does not have the necess ary liquid a ssets to d efray all o f her leg al expe nses.

Courts in this State have long followed the policy of upholding the award of attor ney’s fee s by the T rial Cou rt, unless the aw ard resu lts in an “ injustice ”. In Connors v. Connors, 594 S.W.2d 672 (Tenn. 1980), the Supreme Court said:

We adhere to the long established rule of Holston National Bank v. Wood , 125 Tenn. 6, 14 0 S.W.31 (191 1), that this Court will not interfere with the allowance of attorney’s fees by the trial court unless we can see that som e injustic e has be en perp etrated. . . .

We find no b asis to disturb the Trial Court’s aw ard of a portion of the w ife’s attorney’s fees ag ainst the husba nd. See T.C.A . §36-5 -103(c ).

We affirm the judgment of the Trial Court, as modified, and remand for entry of judgm ent with the cost of app eal adjudg ed two-th irds against th e appellant, and one-third against the appellee.

__________________________ Herschel P. Franks, J.

CONCUR:

___________________________ W. Frank Crawford, P.J.

___________________________ Alan E. Highers, J.