Mitzi Gay Gregory Blair v. John David Blair

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

October 10, 2002 Session

MITZI GAY GREGORY BLAIR v. JOHN DAVID BLAIR

Appeal from the Circuit Court for Sumner County

No. 21496-C C.L. Rogers, Judge

No. M2001-02790-COA-R3-C - Filed March 13, 2003

This divorce case involves issues of property classification and division regarding real property

purchased by Wife prior to the parties’ marriage and titled jointly in both Wife and Husband’s

names. The property became the marital residence where the couple lived during their marriage, but

the majority of payments on the house mortgage were made by Wife’s parents. Husband contributed

virtually nothing to the marriage and substantially dissipated the couples assets through gambling

and drug use. The trial court found the house to be marital property and divided the equity by giving

the first $75,000.00 to Wife, as her original contribution, then dividing the remaining equity between

the parties: 75% to Wife, 25% to Husband. Husband claims that half of the $75,000.00 down

payment was a gift made to him by Wife prior to the marriage and, thus, his separate property. We

affirm the decision of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

WILLIAM B. CAIN , J., delivered the opinion of the court, in which PATRICIA J. COTTRELL , J., and

JOHN A. TURNBU LL, SP . J., joined.

John R. Phillips, Jr., Gallatin, Tennessee, for the appellant, John David Blair.

Bruce N. Oldham and Sue Hynds Dunning, Gallatin, Tennessee, for the appellee, Mitzi Gay Gregory

Blair.

OPINION

The Parties, Mitzi Gay Gregory Blair (Plaintiff/Appellee), and John David Blair (Defendant/

Appellant), were married for 6 years and divorced on August 7, 2001. Plaintiff came into the

marriage with assets of around $100,000.00; Defendant came into the marriage with virtually no

assets. Prior to the marriage, Plaintiff purchased a home and titled it in the names of both Plaintiff

and Defendant as tenants in common. However, Defendant contributed nothing towards the home

purchase; while, Plaintiff contributed $75,000.00 of her separate assets as the down payment.

Defendant also made virtually no contribution toward the home mortgage, either before or during

the marriage, using his earnings primarily for drugs and gambling. In the first year after purchasing

the home, the mortgage payments were taken over by Plaintiff’s parents due to the parties’ financial

difficulties. The parties made no further payments themselves on the home mortgage.

The trial judge found the home to be marital property and ordered it sold. He further returned

the first $75,000.00 of equity to Plaintiff and divided the remaining equity: 75% to Plaintiff, 25%

to Defendant. Said the court:

2. It is clear to the Court, based on the evidence, that the Husband has

a very bad credibility problem.

....

4. The separate property of the Wife consists of the following: Dining

Room table, chairs & hutch; antique bedroom suite; white iron bed; all Caroline’s

bedroom furniture; antique chest; coffee table; dryer; leather recliner; kitchen table

and chairs; refrigerator; entertainment center; sofa; 18" television; CD at Macon

Bank; savings account at Macon Bank; any funds in the leasing account; and 500

share of stock in First Independent Bank.

5. The separate property of the Husband consists of the following:

antique pitcher and bowl.

6. Marital property consists of the television set in the den, the washer,

the cherry bedroom set, the Sea Sprite boat, the 1994 Jeep Cherokee, the marital

residence at 108 Jackson Drive, Hendersonville, Tennessee and the proceeds from

the Tahoe on deposit with the Clerk of the Court.

7. The Court has considered all of the factors set forth in T.C.A. §36-4-

11 and the evidence presented relative to an equitable distribution of the marital

property. The number one factor is the duration of this marriage, which is short. The

second factor is the contribution of each to the acquisition and dissipation of the

marital property. The Court specifically finds that the Husband has greatly dissipated

and greatly wasted assets of this marriage, regardless of where they came from,

because of drugs. The Court further considered the condition of the estate that each

brought into the marriage and the ability of each of these individuals for future

acquisitions. Both of them, if put out in the middle of nowhere, can survive, as they

are very talented people. The Husband is just making some very wrong choices. The

Wife may have thought she was doing the right thing by her joint participation early

on in these activities, but she can see now that those choices were wrong.

8. An equitable division of the marital personal property is as follows:

The TV in the den, the washer, the computer, the paining of the daughter, the bakers

rack, the two dogs, the china set and whatever is in her retirement account are

awarded to the Wife. The cherry bedroom suite, the Sea Sprite boat and the 1994

Jeep Cherokee are awarded to the Husband.

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9. The House is already on the market and shall be sold. It can continue

to be privately listed until the parties come back to court and say that it just can’t

happen and they want something else done. The parties are tenants in common in

this property. If the property is sold, after payment of the mortgage and costs of sale,

the first $75,000.00 will be returned to the Wife as her original contribution. The

remaining proceeds will be divided 75% to the Wife and 25% to the Husband, which

represents the best approximation regarding contributions to the marriage and, more

importantly, dissipation of the assets.

....

It is, therefore, ORDERED, ADJUDGED and DECREED as follows:

....

4. The Wife is awarded the following marital personal property: The TV

in the den, the washer, the computer, the painting of the daughter, the bakes rack, the

two dogs, the china set; whatever is in her retirement account, the first $75,000.00

of the proceeds of the sale of the marital residence after payment of the mortgage and

the costs of sale and 75% (seventy five percent) of the remaining proceeds; 75%

(seventy five percent) of the Tahoe proceeds on deposit with the Clerk of the Court.

5. The Husband is awarded the following marital property: the cherry

bedroom suite (sic), the 1994 Jeep Cherokee, the Sea Sprite boat; 25% (twenty five

percent) of the proceeds of the sale of the marital residence after deduction of the

mortgage, the costs of sale, and the $75,000.00 allocation to the Wife; 25% (twenty-

five percent) of the Tahoe proceeds on deposit with the Clerk of the Court.

Defendant appealed the trial court’s decision claiming entitlement to a portion of the $75,000.00

returned to Plaintiff and alleging that half of that amount was a premarital gift made to him when

the home was titled in both parties names prior to marriage.

The standard of review in this matter is de novo with a presumption that the court’s findings

are correct unless the evidence preponderate against those findings.

We review the findings of fact by the trial court de novo upon the record of

the trial court, accompanied by a presumption of correctness of the findings, unless

the preponderance of the evidence is otherwise. Tenn. R. App. P. 13(d). Because the

trial judge is in a better position to weigh and evaluate the credibility of the witnesses

who testify orally, we give great weight to the trial judge’s findings on issues

involving credibility of witnesses. Gillock v. Board of Prof’l Responsibility, 656

S.W.2d 365, 367 (Tenn. 1983).

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In cases involving issues of classification and distribution of property, a trial

court’s decisions enjoy a presumption of correctness. Dunlap v. Dunlap, 996 S.W.2d

803, 814 (Tenn. Ct. App. 1998). Accordingly, a trial court’s division of the marital

estate should be presumed proper unless the evidence preponderates otherwise.

Lancaster v. Lancaster, 671 S.W.2d 501, 502 (Tenn. Ct. App. 1984).

Deneau v. Deneau, No. M2000-00238-COA-R3-CV, 2001 WL 177063, at *2-3 (Tenn. Ct. App. Feb.

23, 2001).

Defendant contributed nothing toward the initial purchase of the home while Plaintiff

contributed $75,000.00 for the down payment when the home was initially purchased. Plaintiff and

her parents also provided most of the money used to make payments on the property while Defendant

provided virtually no assistance with payments on the marital home, or any other expenses of the

marriage. Even though the property was titled in the names of both parties as tenants in common

prior to the marriage, Plaintiff testified that such was done only in anticipation of the marriage for

use as a marital residence. No evidence was introduced showing that any portion of the property was

intended as a personal gift to Defendant.

Further, after their marriage, the property became the marital home and was treated as marital

property by both parties. Due to the joint ownership, wife’s testimony, and treatment of the property

by both parties as marital property, the evidence does not preponderate against the court’s finding

that the home was marital property. The doctrine of transmutation can be applied to this situation.

Another panel of this Court recognized recently that separate property may

become part of the marital estate if its owner treats it as if it were marital property.

Professor Clark describes the doctrine of transmutation as follows:

[Transmutation] occurs when separate property is treated in such a

way as to give evidence of an intention that it become marital

property. One method of causing transmutation is to purchase

property with separate funds but to take title in joint tenancy. This

may also be done by placing separate property in the names of both

spouses. The rationale underlying both these doctrines is that dealing

with property in these ways creates a rebuttable presumption of a gift

to the marital estate. This presumption is based also upon the

provision in many marital property statutes that property acquired

during the marriage is presumed marital. The presumption can be

rebutted by evidence of circumstances or communications clearly

indicating an intent that the property remain separate.

2 H. Clark, The Law of Domestic Relations in the United States § 16.2, at 185 (1987).

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Batson v. Batson, 769 S.W.2d 849, 858 (Tenn. Ct. App. 1988). Plaintiff’s testimony clearly

indicates her intent to purchase a home for use as a marital residence, and this property was treated

by both parties as marital.

Once the property is classified as marital, the court may make an equitable division of the

property.

The trial court is charged with equitably dividing, distributing, or assigning the

marital property in “proportions as the court deems just.” Tenn.Code Ann. § 36-4-

121(a)(1). Thus, after the property is classified, the court is to make an equitable

division of the marital property. The court is to consider several factors in its

distribution, including the duration of the marriage, the contribution to and

dissipation of the marital estate, the value of the separate property, and the estate of

each party at the time of the marriage. Tenn.Code Ann. § 36-4-121(c) (listing the

factors to be considered). The court may consider any other factors necessary in

determining the equities between the parties, Tenn.Code Ann. § 36-4-121(c)(11),

except that division of the marital property is to be made without regard to marital

fault. Tenn.Code Ann. § 36-4-121(a)(1).

The court’s distribution of property “is not achieved by a mechanical

application of the statutory factors, but rather by considering and weighing the most

relevant factors in light of the unique facts of the case.” Batson, 769 S.W.2d at 859.

An equitable distribution is not necessarily an equal one. Word v. Word, 937 S.W.2d

931, 933 (Tenn.Ct.App.1996). Thus, a division is not rendered inequitable simply

because it is not precisely equal, Cohen v. Cohen, 937 S.W.2d 823, 832 (Tenn.1996);

Kinard v. Kinard, 986 S.W.2d 220, 230 (Tenn.Ct.App.1998). Similarly, equity does

not require that each party receive a share of every piece of marital property. King

v. King, 986 S.W.2d 216, 219 (Tenn.Ct.App. 1998); Brown v. Brown, 913 S.W.2d

163, 168 (Tenn.Ct.App.1994).

The trial court’s goal in a divorce case is to divide the marital property in an

essentially equitable manner, and equity in such cases is dependent on the facts of

each case. The fairness of a particular division of property between two divorcing

parties is judged upon its final results. Watters v. Watters, 959 S.W.2d 585, 591

(Tenn.Ct.App.1997).

Again, however, some general principles have been developed. Because

dividing a marital estate is a process guided by considering all relevant factors,

including those listed in Tenn.Code Ann. § 36-4-121(c), in light of the facts of a

particular case, a trial court has a great deal of discretion concerning the manner in

which it divides marital property. Smith v. Smith, 984 S.W.2d 606, 609

(Tenn.Ct.App.1997); Wallace v. Wallace, 733 S.W.2d 102, 106 (Tenn.Ct.App.1987).

Appellate courts ordinarily defer to the trial judge’s decision unless it is inconsistent

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with the factors in Tenn.Code Ann. § 36-4-121(c), or is not supported by a

preponderance of the evidence. Brown, 913 S.W.2d at 168; Wilson v. Moore, 929

S.W.2d at 372.

Lewis v. Frances, No. M1998-00946-COA-R3-CV, 2001 WL 219662 (Tenn.Ct.App. March 7,

2001). The trial court specifically found that the marriage was of short duration and that Defendant

wasted and dissipated most of the marital assets. The court also considered the assets each party

brought to the marriage. We find no evidence that the distribution of the equity in the marital

residence was not equitable. In fact, it appears that the trial court was most generous to Defendant

in this case.

However, even if the court were wrong in classifying the property as marital, this Court still

finds the overall effect of the trial court’s distribution to be equitable. Such was the finding by this

Court in Batson:

Both Dr. Batson and Mrs. Batson take issue with the manner in which the trial

court divided their property. They insist that the trial court erred in classifying

specific assets as either marital or separate property and that the distribution of the

marital estate was inequitable. We find that the trial court misclassified several

assets and failed to deal with others. However, we find that the overall effect of the

trial court’s distribution is equitable. Therefore, we affirm the trial court’s division

of the Batsons’ property subject to the modifications discussed below.

Batson, 769 S.W.2d at 854-55.

As is true in most cases involving divorce, classification of property and distribution of

property, this case is intensely fact-driven. The trial court found the marital home of the parties to

be marital property and the evidence does not preponderate against this determination. The trial

court found, and the evidence clearly establishes, that Defendant came into the marriage with

practically nothing and made infinitesimal contributions to the marital estate. The marriage survived

through the income of Plaintiff and massive contributions made by Plaintiff’s parents. Defendant

dissipated his own income and the marital estate because of his addiction to drugs and gambling.

He now seeks to claim that Plaintiff made a gift to him prior to their marriage by footing the bills

for a down payment on the soon-to-be marital home and that this gift survived his prolific dissipation

of property, to the accumulation of which he provided practically nothing. The trial judge did not

allow this to happen, and, as we find his judgment to be eminently correct, it is in all respects

affirmed. The case is remanded for such further proceedings as may be necessary.

Costs of the cause are assessed against Appellant.

___________________________________

WILLIAM B. CAIN, JUDGE

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