Philip Rene Julian v. Beverly Ann Julian ( 1998 )

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
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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.
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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 ).
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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.
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