CourtListener opinion 1075230

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IN THE COURT OF APPEALS OF TENNESSEE
 WESTERN SECTION

JAMES R. COZART, )
 ) FILED
 Plaintiff/Appellant, ) Shelby Circuit No. 154806 R.D.
 ) August 27, 1999
VS. ) Appeal No. 02A01-9810-CV-00285
 ) Cecil Crowson, Jr.
LYNN ANNE COZART, ) Appellate Court Clerk
 )
 Defendant/Appellee. )

 APPEAL FROM THE CIRCUIT COURT OF SHELBY COUNTY
 AT MEMPHIS, TENNESSEE
 THE HONORABLE JAMES R. RUSSELL, JUDGE

CHARLES A. SEVIER
SEVIER LAW FIRM, P.C.
Memphis, Tennessee
Attorney for Appellant

LEE ANN PAFFORD DOBSON
RIKARD & DOBSON, P.L.L.C.
Germantown, Tennessee
Attorney for Appellee

AFFIRMED IN PART, REVERSED IN PART,
MODIFIED AND REMANDED

 ALAN E. HIGHERS, J.

CONCUR:

W. FRANK CRAWFORD, P.J., W.S.

DAVID R. FARMER, J.
 This case concerns the divorce of James R. Cozart ("Husband") and Lynn Anne
 Cozart ("Wife"). Husband has appealed from the trial court's final decree of divorce and

from its disposition of Husband's subsequent motion to alter or amend. He alleges that the

trial court erred by failing to make an equitable division of marital assets under the

circumstances, including the trial court's treatment of certain contractual benefits that arise

from his employment as a Nationwide insurance agent, and including the trial court's

mandate that Husband pay for the cost of a new vehicle for Wife. He also alleged that the

trial court erred by requiring Husband to pay Wife rehabilitative alimony of $425 per month

for 30 months and, and by preventing Husband from borrowing against the cash value of

his life insurance policy. For the reasons hereafter stated, we affirm in part, reverse in part,

and modify as hereafter provided.

 FACTS AND PROCEDURAL HISTORY

 Husband and wife, who were both parties to prior marriages, were married in

October 1982 and separated fourteen years later in November 1996. They were ultimately

divorced in this action by a final decree of divorce on September 3, 1998 (sixteen years

after their marriage). Husband originally commenced this action by filing a complaint for

divorce on February 18, 1997, after which Wife filed an answer and counter-complaint on

March 12, 1997. As grounds for divorce, Wife's counter-complaint asserted, among other

things, that Husband had committed adultery, which was later stipulated by Husband.

 As of the time of trial, which was in July 1998, Husband's age was fifty-five, and

Wife's age was forty-one. Two children, ages eleven and seven, were born of the

marriage. The testimony presented at trial revealed that both parties are in general good

health, with the exception that husband is a diabetic, which limits his ability to obtain life

insurance coverage. Husband possesses a college degree, and Wife has a high school

diploma along with some college hours received toward a degree.

 At trial, the parties agreed that the fair market value of the parties' marital residence,

which was occupied by Wife, was $68,500. After taking into account a $41,015 mortgage,

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 the equity in the house at the time of trial was $27,485. Also, the parties agreed to a

division of personal marital property whereby Husband received personal property with a

total value of $8,590, and Wife received personal property with an total value of $6,867.00.

Husband had an IRA with a $37,174 value, and Wife had a 401k plan through her

employment at Behavior Technology valued at $1,640. Additionally, Husband had a life

insurance policy in the face amount of $123,940 with a present cash surrender value of

$11,819. He also had a term life insurance policy in the face amount of $20,000, though

this term policy had no cash value. Wife had a life insurance policy in the face amount of

$59,536 with a present cash surrender value of $9,536.

 The parties agreed that the marital estate also included the "value" of the Cozart

Insurance Agency, which is a Nationwide Insurance agency that was founded shortly after

the parties moved to Memphis, Tennessee in 1983. Throughout the existence of this

business until shortly before the parties' divorce, both parties devoted considerable time

and effort to the development and operations of the business (though Wife began working

elsewhere at Husband's insistence at some point shortly before the parties' separation and

subsequent divorce). Husband became a Nationwide Insurance Company agent, and

while Wife became partially licensed as an insurance agent, her primary involvement with

the agency was administrative in nature.

 At trial, the parties agreed that the value of the Cozart Insurance Agency as a

marital asset should be based upon Nationwide's "Agent's Security Compensation Plan"

(hereafter "Security Plan"), which involves two benefits that accrue to Nationwide Insurance

agents (i.e., Husband) and that generally would be paid to an agent if the agent's "Agent

Agreement" with Nationwide is cancelled, whether by retirement, death, disability, or

otherwise.1 First, Nationwide's Security Plan includes an "Extended Earnings" benefit,

which represents the value of an agent's business on his books (referred to by the parties

as "book of business"). The amount of the Extended Earnings benefit is established by

1. In order to be eligible to receive the benefit payments, however, the Agent Agreement must not have been
cancelled because of the agent's "inducing or attempting to induce -- either directly or indirectly -- any
policyholder to lapse, cancel, or replace any insurance in force" with Nationwide.

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 Nationwide, and is based upon each prior year's insurance policy renewal service fees.

In 1998, the amount of Husband's Extended Earnings benefits was based only upon

renewal service fees that were received in 1997. At trial, the parties agreed that, in

accordance with Nationwide's valuation, the value of this benefit was $154,830.

 The second benefit that accrues to Nationwide Insurance agents (i.e., Husband)

under Nationwide's Security Plan is "Deferred Compensation Incentive Credits" (hereafter

"DCI Credits"). The amount of DCI Credits accumulated by an agent is equivalent to a

dollar amount that will be paid to the agent upon the cancellation of the agent's Agent

Agreement. Additional DCI Credits are earned by Nationwide agents each year and

accumulate until the agent reaches age 65. The DCI Credits benefit is not payable until

after an agent reaches age 50. If an agent elects to receive the DCI Credits benefit at any

time prior to age 60 for any agency cancellation not resulting from death or disability, the

amount of the benefit is subject to a discount factor. In this case, the parties agreed that

Husband's accrued DCI Credits totaled 133,423 at the time of trial. The monetary

equivalent to this amount, $133,423, will be paid to Husband after the cancellation of his

Agent Agreement with Nationwide, assuming such cancellation occurs after age 60. If

Husband had cancelled this Agent Agreement (i.e., terminated his Nationwide insurance

business) at the time of trial (at age 55), his DCI Credits would have been subject to a

discount factor that would have yielded a monetary sum equivalent to only 74.73 percent

of his total DCI Credits. In other words, the value of the DCI Credits at the time of trial was

$99,707 (133,423 x .7473).

 Both parties agreed at trial that, in order to reach an equitable division of marital

assets, Wife's share of the marital estate should account for a fifty percent interest in the

value of Husband's Nationwide Security Plan benefits (both Husband's Extended Earnings

and his DCI Credits) that had accrued as of the time of trial. The parties were not,

however, able to agree to any equitable arrangement whereby Wife would receive payment

for these benefits. At trial during direct examination by her attorney, however, Wife was

asked and answered the following with regard to the DCI Credits:

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 Q. All right. Now, you do understand, though, in the deferred
 compensation that truly is not paid out until he does retire or is disabled?
 A. Correct.
 Q. Okay. Are you willing to wait until those events happened just like a
 normal retirement plan?
 A. Yes, I am.
 Q. Are you asking him to pay you that at this time?
 A. No.

Similarly, during cross-examination by Husband's attorney, Wife testified as follows:

 Q. In your request for half of the $90,000 approximately in the agent's
 incentive credit plan, you realize that there's no place to get that money from
 him until he draws it?
 ....
 A. Are you talking about the deferred comp, the DCIC?
 Q. Yes.
 A. Yes. I understand that he won't get that until he retires, and I'm willing
 to wait until he retires to get my share.

 Both parties also agreed, and the trial court ordered, that custody of the parties'

minor children would be awarded to Wife, with liberal and reasonable visitation to

Husband, and with child support set by agreement at $1,600 based upon Husband's

income as an insurance agent and based upon Tennessee's Child Support Guidelines.

 Ultimately, the trial court ordered, through its final decree of divorce and its

subsequent order disposing of Husband's motion to alter or amend, the following as to the

division of the parties' marital estate:

1. that the marital residence located at 1113 Colonial Rd., Memphis, which had an
 equity value of $27,485 (representing fair market value minus the outstanding
 mortgage debt), be awarded to Wife;2

2. that Husband sell an Airstream trailer, which had a value of $3,000 and was part of
 Husband's $8,590 of personal property, with the proceeds of such sale to be used
 "to repair whatever needs repairing at the parties' marital home, limiting said items
 in need of repair as described in the trial of this cause,[3] with the remainder of said
 proceeds, if any, to be awarded to [Husband]";

3. that Husband "obtain a new vehicle ... for ... Wife ... at no cost to her ... and that the
 notes on said vehicle shall be paid by the Insurance Agency until paid in full ...";4

2. Wife was required, however, "to hold [Husband] harmless and indemnify him from any debt or obligation
in connection with the ... marital residence."

3. Wife had testified that there existed several conditions at the parties' marital home that required repair, and
that the estimated cost to repair said conditions was $1,300. Accordingly, this "allocation" of marital assets
had the net effect of increasing Wife's share by $1,300, and reducing Husband's share by $1,300.

4. The trial court found, based upon Wife's testimony, that Wife was "in need of a reliable new vehic le." T his
finding was based upon the age and mileage of the van that she had been driving, the van's prior service
history, and the fact that the van's air-conditioning was not functioning and would be c ostly to repair.

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 4. that Wife transfer title to the van that was in her possession, which had an
 approximate trade-in value of $1,880 to Husband at the time when Husband
 furnishes Wife the new vehicle referred to above;

5. "[t]hat Wife's 401k Plan, having a value of $1,640, be awarded to her";

6. that Husband's $37,174 IRA "be divided equally between the parties via a Qualified
 Domestic Relations Order";

7. that a credit union account, having an approximate value of $1,500, be awarded to
 Wife; and

8. that Husband "assign one-half the value of his Extended Earnings Benefit with
 Nationwide and one-half the value of the DCIC Deferred Compensation Plan with
 Nationwide to [Wife], said value to be determined at the time of draw-down or at the
 time [Husband] elects to receive either the Extended Earnings Benefit or the
 Deferred Compensation Plan, or both, under the rules established by Nationwide.

As to the last item, which addressed Husband's Nationwide Security Plan benefits, the trial

court's final decree of divorce expressly stated, "The Court finds that [Husband] is not in

a financial position to pay [Wife] her percent of the value of either of [Nationwide's Security

Plan benefits] in installments; the proof was that he was disapproved for a loan prior to the

hearing on this divorce action."

 Aside from the trial court's division of marital assets, the trial court further ordered

Husband "to pay rehabilitative alimony to Wife ... of $425 per month for thirty months," and

"to pay ... one-half of ... Wife's attorney fees ... , or $3,668.48." The trial court further

ordered Husband "to maintain the life insurance coverage ... on his life in the present

amount of $123,940 and the separate life insurance policy on his life in the amount of

$20,000 through Nationwide, and he shall name his two minor children as beneficiaries on

both policies until he is no longer obligated to the Wife for child support for said children."

 On appeal, Husband's brief sets forth the following issues for this Court's review:

1. Whether the trial court erred in its "50 / 50\ division of Husband's Security Plan