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Dudley v. Dudley9/28/2000
give special consideration to a spouse having physical custody of a child or children of a marriage" when awarding "the family home and household effects." Tenn. Code Ann. ยง 36-4-121(d).
Husband was awarded $15,000 to $16,000 in certificates of deposit. Wife received no corresponding liquid asset. The trial court specifically found that, despite her years of work, Wife had not been able to set aside any money for herself or for her family. Wife now has the responsibility to raise the two children, while Husband was ordered to pay only a small amount of child support . We find the trial court did not err in awarding the home and its contents to Wife. Husband failed to support his contention that the trial court included fault as a deciding factor in its ruling. Rather than perceiving this as a case in which "fault" was considered, we see this as a case in which the trial court relied upon the parties' contributions to the marriage when making the division of marital property. Under the facts of this case, we find no error in awarding the bulk of the marital estate to the spouse who has supported the family.
In addition to his specific and most significant complaint with the court's property distribution, i.e. the award of the marital home to Wife, Husband also claims that the trial court erred in two other ways which affect the comparative awards to the parties. First, without support from the record, Husband claims that the boat awarded to him was no longer owned by the parties at the time of the trial. The trial court, by awarding the boat to Husband, implicitly found that the boat was still owned at the time of the trial. Because we have no basis on which to disagree with the trial court, we must assume that the boat was indeed owned by the parties at the time of trial and was awarded to Husband.
Husband also argues that the trial court should have awarded him an interest in Wife's pension plan. It is generally true that the accumulation or increase of a pension during a marriage is marital property. See Cohen v. Cohen, 937 S.W.2d 823, 828 (Tenn. 1996). However, there is nothing in the record before us to indicate that such a pension plan exists. The trial court made no award and no mention of a pension plan for either party. Because the record fails to demonstrate the existence of a fund, we cannot say that the trial court erred in not awarding a portion of it to Husband. The court may distribute only those assets actually owned. See Brock v. Brock, 941 S.W.2d 896, 900 (Tenn. Ct. App. 1996) ("a court cannot divide and/or distribute what is 'not there'").
Husband has failed to demonstrate that the evidence preponderates against the trial court's distribution of the marital estate. Therefore, we affirm the trial court's award.
V. Conclusion
For the reasons stated above, we affirm the order of the trial court. This case is remanded to the trial court for such further proceedings as may be necessary. Costs are taxed to Husband, Bobby G. Dudley, II, for which execution may issue if necessary.
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