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increased earning power of the other party”. Tenn. Code Ann.
sec. 36-4-121(c)(3). It may also consider “The contribution of
each party to the acquisition, preservation, appreciation,
depreciation or dissipation of the marital or separate property,
including the contribution of a party to the marriage as
homemaker, wage earner or parent”. Tenn. Code Ann. sec. 36-4-
121(c)(5). The unequal division of the marital property in this
case, therefore, is inconclusive.
After examining all of the facts and circumstances, we
conclude that the $35,000 payment by petitioner to Tulay was part
of a property settlement. The MDA provides that the payment to
Tulay was made from petitioner’s retirement account, and there is
no indication anywhere in the document that it was for alimony.
The only evidence that the payment was intended as alimony is
petitioner’s and Mynatt’s testimony and petitioner’s handwritten
notes. It is not clear that the payment would not be due if
Tulay had died before it was made. See Rogers v. Commissioner,
supra. The written agreement is the final agreement of the
parties, and it leads to the conclusion that the $35,000 was
designated as a division of property. The payment does not
satisfy the requirement of section 71(b)(1)(D) and, therefore, is
not deductible by petitioner.
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