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IN THE COURT OF APPEALS OF TENNESSEE
WESTERN SECTION AT NASHVILLE

FILED

November 9, 1995
Cecil Crowson, Jr.
Appellate Court Clerk


NANCY KAYE WHEELER POYNER, ) )
Plaintiff/Appellant, ) Humphreys Chancery No. 22-148 ) VS. ) Appeal No. 01A01-9503-CH-00116
)
ALDEN DENNIS POYNER, )
)
Defendant/Appellee. )

APPEAL FROM THE CHANCERY COURT OF HUMPHREYS COUNTY
AT WAVERLY, TENNESSEE
THE HONORABLE LEONARD W. MARTIN, CHANCELLOR


Ronald S. Buchanan
Hendersonville, Tennessee Attorney for Appellant

Jerry V. Smith
Dickson, Tennessee Attorney for Appellee

AFFIRMED IN PART, REVERSED IN PART AND REMANDED
ALAN E. HIGHERS, JUDGE
CONCUR:

W. FRANK CRAWFORD, P.J., W.S.
DAVID R. FARMER, JUDGE
This is a divorce case in which the Wife appeals the trial court's division of  marital property and the court's award of custody to the Husband.
I.
The pertinent facts are as follows.  The parties divorced after twelve years of marriage, during which time two sons were born of the marriage:  Stephen A. Poyner, born in 1983, and David E. Poyner, born in 1990. The Appellant, Nancy Kaye Wheeler Poyner ("Wife"),  filed for divorce in December of 1993, alleging that she was entitled to an absolute divorce based on the Husband's alleged physical abuse of both her and the children.     In his answer, Husband denied that he was the father of David Poyner, denied that Wife was entitled to a divorce, and counterclaimed for a divorce on the basis of Wife's inappropriate marital conduct and adultery. Both parties sought custody of the two children.
Prior to trial, the court ordered blood tests to determine the paternity of David Poyner. The results definitively excluded the possibility that Husband was David's natural father, although Wife repeatedly denied that she had committed adultery.  Despite the fact that the blood tests showed that he was not David's father, Husband continued to seek custody of both David and Stephen.  At the beginning of trial, the parties stipulated to grounds for divorce.  The Wife also withdrew her previous request for alimony.
The great bulk of testimony at trial was aimed at the custody issue. Most of the evidence presented concerned Wife's longstanding problems with anorexia and depression, which resulted in numerous hospitalizations and various side-effects from her medications.  In 1992, Wife's problem with anorexia became very serious and she was hospitalized.   At this time, Wife was not only depressed, but was also taking between 15 and 20 laxative pills a day to rid herself of food that she had consumed.   In the span of less than a year, Wife was hospitalized six times, and doctors prescribed over twenty
different anti-depressant medications in an attempt to treat her condition.  All of these
medications had various side effects, one of which caused Wife to suffer severe anxiety attacks.  Although alcohol was contraindicated with most of her medicine, Wife admitted that she drank alcohol on at least one occasion while taking these medications.  Her hospital records enlarged upon this admission, reflecting that she had abused alcohol with the medications several times.
Medical records compiled by various physicians and medical staff that treated Wife contained documentation of statements made by  Wife that she was planning to commit suicide or otherwise to harm herself.  Husband testified that Wife had attempted suicide on three occasions either by overdosing on her medication or by drinking alcohol with her medication. Wife, however, denied that she had ever contemplated suicide.  When asked by opposing counsel and the court about the discrepancy between her testimony and her medical records regarding her suicidal tendencies, Wife replied that the doctors had just "made it up."  In March of 1993, Wife had a car wreck  that occurred as a result of overmedication.  Wife also admitted to having smoked marijuana during the parties' marriage.
Wife's last hospitalization was in March of 1993.  Her treating physician, Dr. Ebert, stated in his deposition that since that time, her eating disorder was improving. Dr. Ebert thought that it was possible that the disorder would resolve completely.  
Wife presented evidence that Husband had whipped the older son, Stephen, in an excessive and abusive manner on several occasions.  She specifically mentioned one incident where Husband  repeatedly whipped Stephen with a belt.  When W ife tried to stop him, he pushed her down.  Husband did not deny that this incident occurred.  The following day, Wife had Husband arrested for child abuse.  At the time of the trial, no formal charges had been brought against Husband.
The trial court held that based upon the evidence of Wife's problems, Husband was
entitled to custody of both children.  The judge cautioned Husband about whipping the
children and recommended that he  read some books on disciplining children. The court also awarded Husband the marital residence and the majority of the parties' personal property.  In return, Wife was awarded $25,000 cash, along with certain items of personal property contained on a list that she had prepared.  
II.
Wife argues that the court's division of marital property was not equitable for several reasons.  First, she contends  that the court erred in electing not to award to her any of the increase in value of the marital residence.  Second, she takes issue with court's failure to award to her any of Husband's pension.  Finally, she contends that the court considered fault in its division of the marital property, which is impermissible under Tennessee law.
There are several fundamental principles of law to guide us through issues of division of martial property.  Of primary importance is the fact that trial courts have broad discretion in dividing the martial estate, and their decisions are afforded great weight on appeal. Fisher v. Fisher, 648 S.W.2d 244, 246 (1983).  Moreover, findings of the trial court are accompanied by a presumption of correctness, unless the evidence preponderates otherwise. Barnhill v. Barnhill, 826 S.W.2d 443, 459 (Tenn. App. 1991).  A trial court's division of property need not be equal to be equitable, Batson v. Batson, 769 S.W.2d 849, 859 (Tenn. App. 1988),  and as a general matter, courts will evaluate the fairness of a property division by its final results.  Thompson v. Thompson, 797 S.W.2d 599, 604 (Tenn. App. 1990).
We will first address the issue of whether Wife should have been awarded any of the increase in value of the marital residence.  
Tennessee is a "dual property" jurisdiction, which requires trial courts to first classify the parties' property as either separate or marital property before proceeding to an equitable division of the martial estate.  Batson, 769 S.W.2d at 856; Wade v. W ade, 897
S.W.2d 702, 713 (Tenn. App. 1994).  Accordingly, our initial inquiry must be whether the
trial court classified the residence correctly.
T.C.A.

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