Jamie Treadwell v. Gary Thomas Lamb

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

January 19, 2017 Session

JAMIE TREADWELL v. GARY THOMAS LAMB

Appeal from the Circuit Court for Franklin County

No. 18018CV Thomas W. Graham, Judge

___________________________________

No. M2015-01391-COA-R3-CV

___________________________________

This appeal involves the financial aspects of a divorce, which ended a twelve-year

marriage. The trial court granted both parties a divorce, divided the marital estate, and

awarded Wife rehabilitative alimony for twenty-four months, provided she actively

pursued a teaching degree at Middle Tennessee State University. Wife filed a motion to

alter or amend the award of alimony to remove the education and vocation requirements.

The trial court denied the motion. Wife filed a motion pursuant to Tennessee Rule of

Civil Procedure 60.02 seeking relief from the trial court‟s order dividing the marital

estate due to Husband‟s alleged fraudulent withdrawals from the parties‟ marital stock

account. The trial court denied the motion. On appeal, Wife takes issue with the

educational and vocational requirements the trial court placed on the spousal support

award and with the trial court‟s division of the marital estate. She also appeals the trial

court‟s denial of her Rule 60.02 motion. We affirm the trial court‟s judgment in all

respects.

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

ANDY D. BENNETT, J., delivered the opinion of the court, in which FRANK G. CLEMENT,

JR., P.J., M.S., and W. NEAL MCBRAYER, J., joined.

Cynthia A. Cheatham, Manchester, Tennessee, for the appellant, Jamie Treadwell.

William A. Lockhart, Tullahoma, Tennessee, for the appellee, Gary Thomas Lamb.

OPINION

FACTUAL AND PROCEDURAL BACKGROUND

Jamie Treadwell Lamb (“Wife”) and Gary Thomas Lamb (“Husband”) married on

September 12, 1998. One child was born of the marriage.1

Husband had a bachelor‟s degree in computer science and worked as a software

engineer throughout the marriage. Wife had two years of college in pursuit of an

education degree. During the early years of the marriage, Wife first worked for a medical

equipment company and then worked in real estate after obtaining her real estate license.

She eventually stopped working when the parties‟ son was born in December 2000. The

couple acquired several real properties and operated an antique store during the course of

the marriage. Husband acquired substantial assets in employer-related investment

accounts.

Husband filed for divorce on September 17, 2010, alleging inappropriate marital

conduct and irreconcilable differences. Wife filed an answer followed by an amended

answer and counter-complaint for divorce on the same grounds as those alleged by

Husband. Wife sought alimony, attorney‟s fees, and an equitable division of the marital

estate.

The trial court heard the case on March 4 and March 11, 2013. The parties were

unable to agree on the classification of their assets. Their disagreements primarily

centered on three real properties located in Decherd, Tennessee: (1) 510 Spring Street,

(2) 403 Bennett Street, and (3) 508 Spring Street. Each will be discussed further in the

analysis section of this opinion. The trial court entered a final decree of divorce and

permanent parenting plan on December 3, 2010. An amended final decree of divorce was

entered on December 10, 2010. In the amended final decree, the trial court awarded a

divorce to both parties, established custody, ordered the sale of personal property and real

property, divided the marital estate equally between the parties, and awarded Wife

spousal support in the amount of $2,444 for twenty-four months, provided she pursued an

education degree from Middle Tennessee State University. Additionally, the trial court

found three assets to be Husband‟s separate property: (1) Jacobs/Vanguard Investment

Account, (2) 510 Spring Street, and (3) 403 Bennett Street.

Wife filed a motion asking the trial court to alter or amend the alimony award by

removing the vocational and educational requirements because she no longer wished to

become a teacher. The trial court denied the motion to alter or amend the alimony award.

Wife then filed a Tennessee Rule of Civil Procedure 60.02 motion alleging that Husband

1

The parties‟ child is still a minor. Custody is not an issue on appeal.

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fraudulently removed funds from a marital stock account. The trial court denied the Rule

60.02 motion, and Wife appealed.

Wife raises three issues on appeal. First, she contends that the trial court abused

its discretion by placing educational and vocational conditions on the spousal support

award. Second, she contends that the trial court erred in classifying certain pieces of real

property as Husband‟s separate property. Lastly, she argues that the trial court erred in

denying her Rule 60.02 motion. We shall address each issue in turn.

STANDARD OF REVIEW

We review a trial court‟s findings of fact de novo with a presumption of

correctness unless the evidence preponderates otherwise. TENN. R. APP. P. 13(d); Church

v. Church, 346 S.W.3d 474, 481 (Tenn. Ct. App. 2010). On the other hand, questions of

law are reviewed de novo and accorded no presumption of correctness. Langschmidt v.

Langschmidt, 81 S.W.3d 741, 744-45 (Tenn. 2002).

ANALYSIS

(1)

Spousal Support Award

A. Rehabilitative Alimony

There are no bright-line rules for trial courts to follow when making spousal

support decisions. Owens v. Owens, 241 S.W.3d 478, 493 (Tenn. Ct. App. 2007) (citing

Manis v. Manis, 49 S.W.3d 295, 304 (Tenn. Ct. App. 2001)). “Trial courts have broad

discretion to determine whether spousal support is needed” as well as the nature, amount,

and duration of the support. Id.; see also Gorman v. Gorman, No. M2010-02620-COA-

R3-CV, 2011 WL 5599867, at *2 (Tenn. Ct. App. Nov. 16, 2011). A trial court‟s

decision to award spousal support is “factually driven and involves the careful balancing

of many factors.” Gonsewski v. Gonsewski, 350 S.W.3d 99, 105 (Tenn. 2011).

Consequently, appellate courts generally refuse to second-guess a trial court‟s decision

unless there has been an abuse of discretion. Id. “An abuse of discretion occurs when

the trial court causes an injustice by applying an incorrect legal standard, reaches an

illogical result, resolves the case on a clearly erroneous assessment of the evidence, or

relies on reasoning that causes an injustice.” Id. (citing Wright ex rel. Wright v. Wright,

337 S.W.3d 166, 176 (Tenn. 2011)). An appellate court‟s role is not to substitute its

judgment for that of the trial court, but rather to presume that the trial court‟s decision is

correct and to review the evidence “in the light most favorable to the decision.” Wright,

337 S.W.3d at 176.

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Tennessee law recognizes four types of spousal support: 1) alimony in futuro

(long-term support); 2) transitional alimony; 3) alimony in solido (lump sum alimony);

and 4) rehabilitative alimony. Tenn. Code Ann. § 36-5-121(d)(1); Gonsewski, 350

S.W.3d at 107. There is a legislative preference favoring rehabilitative spousal support

over long-term support. Tenn. Code Ann. § 36-5-121(d)(2); Owens, 241 S.W.3d at 493.

Despite this legislative preference, long-term or more open-ended support may be

awarded when warranted by the facts of the case. Riggs v. Riggs, 250 S.W.3d 453, 456

(Tenn. Ct. App. 2007) (citing Aaron v. Aaron, 909 S.W.2d 408, 410 (Tenn. 1995)). The

purpose of rehabilitative support is to facilitate the disadvantaged spouse in obtaining

additional job skills, education, or training so that he or she will become more self-

sufficient. Kinard v. Kinard, 986 S.W.2d 220, 234 (Tenn. Ct. App. 1998). By contrast,

the purpose of long-term spousal support is to “provide support to a disadvantaged

spouse who is unable to achieve some degree of self-sufficiency.” Id.

In determining whether to award spousal support, and in determining the nature,

amount, length of term, and manner of payment, courts consider the following factors:

(1) The relative earning capacity, obligations, needs, and financial

resources of each party, including, income from pension, profit sharing or

retirement plans and all other sources;

(2) The relative education and training of each party, the ability and

opportunity of each party to secure such education and training, and the

necessity of a party to secure further education and training to improve such

party‟s earnings capacity to a reasonable level;

(3) The duration of the marriage;

(4) The age and mental condition of each party;

(5) The physical condition of each party, including, but not limited to,

physical disability or incapacity due to a chronic debilitating disease;

(6) The extent to which it would be undesirable for a party to seek

employment outside the home, because such party will be custodian of a

minor child of the marriage;

(7) The separate assets of each party, both real and personal, tangible and

intangible;

(8) The provisions made with regard to the marital property, as defined in

§ 36-4-121;

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(9) The standard of living of the parties established during the marriage;

(10) The extent to which each party has made such tangible and intangible

contributions to the marriage as monetary and homemaker contributions,

and tangible and intangible contributions by a party to the education,

training or increased earning power of the other party;

(11) The relative fault of the parties, in cases where the court, in its

discretion, deems it appropriate to do so; and

(12) Such other factors, including the tax consequences to each party, as

are necessary to consider the equities between the parties.

Tenn. Code Ann. § 36-5-121(i). The two most important factors are the disadvantaged

spouse‟s need and the obligor spouse‟s ability to pay. Robertson v. Robertson, 76

S.W.3d 337, 342 (Tenn. 2002); Riggs, 250 S.W.3d at 457; Owens, 241 S.W.3d at 494.

The trial court awarded Wife spousal support in the amended final decree, which

stated in pertinent part:

ORDERED, ADJUDGED AND DECREED that the Defendant, Jamie

Lamb, receive alimony in the amount of $2,444.00 per month, provided

Defendant is actively pursuing and showing proper progress in a Teacher

Certification Program at Middle Tennessee State University for a period not

to exceed twenty-four (24) months.

Although the trial court failed to identify the type of alimony it awarded Wife, we believe

the duration of the support, in addition to the educational and vocational requirements,

indicate an award of rehabilitative alimony. Sommerville v. Sommerville, No. 01A01-

9502-CV-0007, 1995 WL 498943, at *2 (Tenn. Ct. App. Aug. 23, 1995) (“If the object of

the award is to allow a disadvantaged spouse to get back on his or her feet or to acquire

an education or a skill, the award may be rehabilitative.”).

A trial court is supposed to make a threshold determination that a spouse is

economically disadvantaged in relation to the other spouse, as well as find that

rehabilitation is possible, before making an award of rehabilitative alimony. Gillespie v.

Gillespie, No. E2006-00734-R3-CV, 2006 WL 3732195, at *3 (Tenn. Ct. App. Dec. 19,

2006); see Kincaid v. Kincaid, 912 S.W.2d 140, 144 (Tenn. Ct. App. 1995). The trial

court failed to make a factual finding either that Wife was economically disadvantaged

relative to Husband or that she could be rehabilitated. Therefore, we must conduct an

independent review of the record to determine where the preponderance of the evidence

lies with regard to this issue. Crabtree v. Crabtree, 16 S.W.3d 356, 360 (Tenn. 2000).

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Wife was forty-seven years old at the time of trial, and there was no evidence

presented to indicate she had any health issues. At the time of the marriage, Wife worked

for a medical supply company earning $40,000 per year. She later obtained a real estate

license and worked in real estate. However, Wife spent ten years out of the workforce so

she could remain at home to raise the parties‟ child and assist in managing their antique

store and rental properties. At the time of trial, she worked part-time for a greeting card

store earning $300 per month. Wife has two years of college towards an education

degree and testified that she anticipated completing her college degree in two years. This

additional education can be expected to increase Wife‟s ability to earn more income than

she is currently earning. Wife testified that she could earn $40,000 per year as a teacher.

Husband, who was fifty-two years old at the time of trial, has a college degree and

works as a software engineer. Tax returns adduced at trial showed that Husband earned

$265,000 in 2010, $337,146 in 2011, and $204,541 in 2012. After conducting a thorough

examination of the record, we conclude that the evidence preponderates in favor of

finding that Wife is economically disadvantaged relative to Husband and that she can be

rehabilitated. In light of these facts and the relevant factors in Tenn. Code Ann. § 36-5-

121, we conclude that rehabilitative alimony is appropriate and consistent with the

legislative preference to rehabilitate the disadvantaged spouse whenever possible. see

Robertson, 76 S.W.3d at 339.

On appeal, Wife contends that the trial court abused its discretion by placing

educational and vocational conditions on the award of spousal support. We disagree. As

discussed above, trial courts are accorded broad discretion when making spousal support

decisions. Gorman, 2011 WL 5599867, at *2; Owens, 241 S.W.3d at 493. The

Tennessee Supreme Court stated in Isbell v. Isbell, 816 S.W.2d 735 (Tenn. 1991),

“Where rehabilitative support is awarded, it may be made subject to conditions imposed

by the court or agreed to by the parties.” Isbell, 816 S.W.2d at 739 (footnote omitted).

At the time of the Isbell decision, trial courts placed conditions on awards of

rehabilitative alimony in order to retain control of the award because rehabilitative

alimony awards were modifiable only if made subject to conditions or if they were not

for a sum certain over a set period of time. Id. at 739 n.1. Current Tennessee law,

however, grants trial courts control of an award of rehabilitative alimony for the duration

of the award. Tenn. Code. Ann. § 36-5-121(e)(2). While the current statute gives trial

courts control of rehabilitative alimony awards without requiring the awards be subject to

conditions, it does not prohibit trial courts from placing conditions on rehabilitative

alimony awards. Id.

It is not uncommon for a court to place conditions on a spousal support award,

such as termination upon remarriage of the recipient spouse, or termination upon failure

of the recipient spouse to meet certain requirements. Kuhlo v. Kuhlo, No. M2015-02155-

COA-R3-CV, 2016 WL 3537198, at *10 (Tenn. Ct. App. June 23, 2016) (perm. app.

denied Oct. 19, 2016) (“[A] condition for Wife receiving the transitional alimony is that

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Wife had to work to receive the extra ten percent by providing bookkeeping services . . .

pending the sale of the properties.”); Jackman v. Jackman, 373 S.W.3d 535, 538 (Tenn.

Ct. App. 2011) (“[T]rial court ordered Wife to undergo a vocational rehabilitation

evaluation and enroll in a displaced spouses program” and “stressed that Wife‟s failure to

do so could result in termination of her alimony award.”); Harris v. Harris, No. M2008-

00601-COA-R3-CV, 2009 WL 416007, at *4 (Tenn. Ct. App. Feb. 18, 2009) (“[A] court

may provide in its decree that transitional alimony will automatically terminate upon

remarriage of the payee . . . so long as such an agreement is incorporated into the

decree.”).

We note that the educational and vocational conditions the trial court placed on the

award of rehabilitative alimony reflect Wife‟s requests at trial. On direct examination,

Wife testified:

THE COURT: So how much longer do you have to get to a degree in

college?

THE WITNESS: I could probably, if I really put my nose to the

grindstone, finish in about a year and a half.

THE COURT: How many hours do you need?

THE WITNESS: I‟d have to go back and look, but I have – I‟m down to

the finish. I‟m pretty close. You know, and I say a year and a half, but,

you know, with Andrew and everything, probably two.

THE COURT: This would be a degree in education?

THE WITNESS: Yes, sir. Early -- I‟d like to teach middle school. It‟s

probably two years. I mean, just for the benefit of a doubt.

Q. Have you looked into and been able to determine what the cost will be

for you to complete your degree?

A. I have, and I put that on that sheet. I just, like I said, I amortized it, you

know, based on the – like, a semester. It would be about 676, and I think

that included books for a semester.

....

THE COURT: Are you asking the Court to make an award of rehabilitative

alimony?

A. You know – and I don‟t expect [Husband] to raise me, but I would like

to get on my feet and start a career that I could, you know, take care of

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myself and our son, and, you know, so I could look forward to some

retirement at some point in my life.

Q. And your decision is to go into education?

A. Yes, sir.

Wife received what she requested from the trial court. Accordingly, we conclude the trial

court did not abuse its discretion by placing educational and vocational requirements on

its award of rehabilitative alimony.

B. Motion to Alter or Amend

Wife contends that the trial court abused its discretion by denying her motion to

alter or amend the award of rehabilitative alimony and argues the court subsequently

terminated her rehabilitative alimony. Wife filed her motion to alter or amend pursuant

to Tenn. R. Civ. P. 59.04. A motion to alter or amend a final judgment filed pursuant to

Rule 59.04 allows a trial court “to correct errors before the judgment becomes final.” In

re M.L.D., 182 S.W.3d 890, 895 (Tenn. Ct. App. 2005), and a trial court‟s ruling on the

motion “will be reversed only for an abuse of discretion.” Stovall v. Clarke, 113 S.W.3d

715, 721 (Tenn. 2003). Motions to alter or amend a judgment pursuant to Rule 59.04

may be granted “„(1) when the controlling law changes before a judgment becomes final,

(2) when previously unavailable evidence becomes available, or (3) when, for sui generis

reasons, a judgment should be amended to correct a clear error of law or to prevent

injustice.‟” Whalum v. Marshall, 224 S.W.3d 169, 175 (Tenn. Ct. App. 2006) (quoting

Bradley v. McLeod, 984 S.W.2d 929, 933 (Tenn. Ct. App. 1998)). The moving party

bears the burden of showing a basis for amending the judgment. Smith v. Smith, No.

M2007-02650-COA-R3-CV, 2008 WL 5158189, at *2 (Tenn. Ct. App. Dec. 8, 2008).

Because Wife did not allege that there was a change in the law or that previously

unavailable evidence had become available, her request for relief falls into the third

category: the judgment should be altered or amended to correct a clear error of law or

prevent injustice. The transcript of the hearing reveals that Wife requested that the trial

court alter or amend the award of rehabilitative alimony by removing the educational and

vocational requirements because she no longer desired to become a teacher. She testified

she had started working for a science center as an education director and grant writer, and

she desired to continue in that capacity. Wife argued there is no case or statute that

permits a court to determine the educational and vocational decisions of the recipient

spouse, “except as it pertains to a determination that the party has not made an effort to

rehabilitate herself after a certain period of time.” As discussed above, a trial court is not

prohibited from placing conditions on an award of spousal support, and it is not

appropriate for this Court to substitute our judgment for that of the trial court.

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After reviewing Wife‟s assertions regarding the educational and vocational

requirements, as well as the record, we conclude that Wife has failed to meet her burden

of showing the trial court abused its discretion in placing conditions on her award of

rehabilitative alimony. Therefore, we affirm the trial court‟s denial of Wife‟s motion.

Finally, Wife argues that the trial court erred when it terminated the award of

rehabilitative alimony. The trial court‟s order denying Wife‟s motion to alter or amend

did not terminate the alimony award. In its order, the trial court stated, “The Court

previously ruled that in order for [Wife] to receive alimony, she must be enrolled at

Middle Tennessee State University, fulltime, in the teaching program as the court has

previously ordered in the initial Amended Final Decree.” This language differs from that

of the amended final decree, which ordered that Wife was to receive alimony “provided

[Wife] is actively pursuing and showing proper progress in a Teacher Certification

Program at Middle Tennessee State University for a period not to exceed twenty-four

(24) months.” Wife contends that the change in language effectively terminated the

rehabilitative alimony award. At the motion hearing, however, Wife testified that she had

attempted to enroll in only one class during the year-and-a-half time period between the

amended final decree and the motion hearing. Because Wife failed to fulfill the

conditions placed on the alimony award as set forth in the amended final decree, the

alimony award terminated by its own terms. We conclude, therefore, that the change in

language did not constitute reversible error.

(2)

Husband‟s Separate Property

We turn now to the trial court‟s classification of three real properties as Husband‟s

separate property. Wife argues that the trial court erred by classifying these properties as

Husband‟s separate property and contends they should have been included in the marital

estate under the doctrine of transmutation.

Division of a marital estate begins with the identification of all of the parties‟

property interests. Owens, 241 S.W.3d at 485. Next, these property interests must be

classified as either separate or marital. Id.; Fox v. Fox, No. M2004-02616-COA-R3-CV,

2006 WL 2535407, at *2 (Tenn. Ct. App. Sept. 1, 2006). Decisions pertaining to the

classification of property as either separate or marital are intrinsically factual. Woodward

v. Woodward, 240 S.W.3d 825, 828 (Tenn. Ct. App. 2007). Consequently, a trial court‟s

classification of property as either separate or marital will not be disturbed unless it is not

supported by a preponderance of the evidence. See TENN. R. APP. P. 13(d); Owens, 241

S.W.3d at 485.

Separate property is defined as “[a]ll real and personal property owned by a

spouse before marriage[.]” Tenn. Code Ann. § 36-4-121(b)(2)(A). Conversely, marital

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property is defined as “all real and personal property, both tangible and intangible,

acquired by either or both spouses during the course of the marriage up to the date of the

final divorce hearing and owned by either or both spouses as of the date of filing of a

complaint for divorce[.]” Tenn. Code Ann. § 36-4-121(b)(1)(A). Only marital property

is subject to division upon the dissolution of a marriage. Tenn. Code Ann. § 36-4-121(a);

Smith v. Smith, 93 S.W.3d 871, 876 (Tenn. Ct. App. 2002).

The demarcation between separate and marital property is not always clear. If one

spouse gives property to the other spouse that might otherwise be considered marital

property, the gifted property becomes the recipient spouse‟s separate property. Kinard,

986 S.W.2d at 232. Conversely, separate property can become marital property by either

commingling or transmutation:

“[S]eparate property becomes marital property [by commingling] if

inextricably mingled with the marital property or with the separate property

of the other spouse. If the separate property continues to be segregated or

can be traced into its product, commingling does not occur . . . .

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

to give evidence of an intention that it become marital property . . . . The

rationale underlying 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 upon the provision in many marital property statutes

that property acquired during the marriage is presumed to be marital. The

presumption can be rebutted by evidence of circumstances or

communications clearly indicating an intent that the property remain

separate.”

Takeda v. Takeda, No. E2006-02499-COA-R3-CV, 2007 WL 4374036, at *3 (Tenn. Ct.

App. Dec. 17, 2007) (quoting Langschmidt, 81 S.W.3d at 747 (citations omitted)).

A. 510 Spring Street

The first disputed property we will address is the 510 Spring Street property. The

trial court classified this asset as Husband‟s separate property. Wife contends that, while

this asset was Husband‟s separate property at the time of the marriage, the asset

transmuted into marital property because the parties treated it as a marital property.

The parties used the 510 Spring Street property as their sole marital residence

throughout their twelve-year marriage. We have previously noted in regard to a marital

residence:

“A residence should not be classified as marital property simply because

the parties have lived in it. However, as a general matter, a marital

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residence acquired by the parties during the marriage and owned by the

parties jointly should be classified as marital property. Even a marital

residence that was . . . purchased using separate property should be

classified as marital property if the parties owned it jointly because joint

ownership gives rise to a rebuttable presumption that the property is

marital, rather than separate property.

However, as relevant as record ownership may be to the classification of an

asset, it is not always controlling. In the final analysis, whether a particular

asset is marital or separate depends on the conduct of the parties not the

record title of the asset . . .

Four of the most common factors courts use to determine whether real

property has been transmuted from separate property to marital property

are: (1) the use of the property as a marital residence; (2) the ongoing

maintenance and management of the property by both parties; (3) placing

the title to the property in joint ownership; and (4) using the credit of the

non-owner spouse to improve the property.”

Takeda, 2007 WL 4374036, at *3 (quoting Fox, 2006 WL 2535407, at *5).

Evidence adduced at trial shows that Husband purchased the property in 1984, and

he paid off the mortgage on the property prior to the marriage. Additionally, title to the

property remained in Husband‟s name only for the duration of the marriage. There is

little evidence concerning Wife‟s efforts to preserve or increase the value of this property.

In fact, the record shows that both parties allowed the property to fall into a state of

disrepair.2

The record shows that Husband used the property as collateral twice during the

marriage. The first time was for a $15,000 loan in 2003, and the second time was for a

$35,000 loan in 2007. Each time Husband used the property as collateral he used the

loan obtained to purchase one of the parties‟ rental properties, and both loans were paid

off during the marriage.3 Wife signed both deeds of trust connected to the two loans.

Wife contends that using the property as collateral and affixing her signature to the deeds

of trust transmuted the property into marital property.

In Sandford v. McKee, M2010-00562-COA-R3-CV, 2012 WL 4474177 (Tenn. Ct.

App. Sept. 27, 2012), Chas Sandford purchased a 63-acre farm with a house on it prior to

marrying Kristine Sandford. Sandford, 2012 WL 4474177 at *1. Mr. Sandford took out

2

The record includes pictures of the house showing a tarp over sections of the roof and poorly patched

plumbing.

3

The trial court classified the rental properties as marital property, and they are not disputed on appeal.

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a mortgage on the property seven years into the marriage, and both Mr. and Mrs.

Sandford signed the deed of trust connected with this mortgage. Id. at *2. Mr. Sandford

obtained a home equity loan on the property six months later, using the house and 63

acres as security for the loan. Id. Mr. and Mrs. Sandford again both signed the deed of

trust. Id. Mrs. Sandford argued that her signature on the deeds of trust transmuted the

property into a marital asset. Id. at *3. We disagreed and stated:

We do not believe that Wife‟s signature on the Deeds of Trust has any

effect on her ownership interest . . . . It is not unusual for a bank, when

loaning money to one spouse who is the record owner of a piece of

property, to require the other spouse to sign a Deed of Trust to protect the

bank‟s interest in the property. . . . [T]he act of signing one or more Deeds

of Trust, without more, does not transfer any rights in the property to the

nonowner spouse that he or she does not otherwise have.

Id. at *6 (emphasis added).

In this case, Wife presented no evidence that she signed the note for either loan,

assumed liability for either note, or that she made any payments on either loan. The

evidence, therefore, does not preponderate against the trial court‟s classification of the

property as Husband‟s separate property, and we conclude that the property did not

become marital property as a result of transmutation.

B. 403 Bennett Street

We now turn to the second disputed property, the 403 Bennett Street property.

The trial court classified this property as Husband‟s separate property as well. Wife

asserts that the trial court erred because she contributed “sweat equity” to the property,

which transmuted it into marital property.

Husband purchased the property in 1996 and paid off the mortgage associated with

the property prior to the marriage by using an inheritance he received from his mother‟s

estate. The property served as one of several rental properties the parties managed during

their marriage. According to Wife, she contributed “sweat equity” towards the property

by managing the property, cleaning and repainting after tenants moved out, and digging a

ditch.

If property determined to be separate property increases in value during the

marriage, the appreciation will be classified as marital property “if each party

substantially contributed to its preservation and appreciation.” Tenn. Code Ann. § 36-4-

121(b)(1)(B); see also Keyt v. Keyt, 244 S.W.3d 321, 328-29 (Tenn. 2007); Summer v.

Summer, 296 S.W.3d 57, 62 (Tenn. Ct. App. 2008). The Supreme Court has stated the

following in regards to the contributions of a non-owner spouse:

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While these contributions may be either “direct” or “indirect,” Tenn. Code

Ann. § 36-4-121(b)(1)(D), they must satisfy two requirements. McFarland

v. McFarland, No. M2005-01260-COA-R3-CV, 2007 WL 2254576, at *6

(Tenn. Ct. App. Aug. 6, 2007). First, the contributions must be “real and

significant.” Id.; Brown [v. Brown], 913 S.W.2d [163, 167 (Tenn. Ct. App.

1994)]. “Second, there must be some link between the spouses‟

contributions and the appreciation in the value of the separate property.”

McFarland, 2007 WL 2254576, at *6; Landgschmidt, 81 S.W.3d at 746.

Whether a spouse made a “substantial contribution” to the preservation and

appreciation of separate property is a question of fact. Sherrill v. Sherrill,

831 S.W.3d 293, 295 (Tenn. Ct. App. 1992).

Keyt, 244 S.W.3d at 329.

In the present case, the trial court classified the 403 Bennett Street property as

Husband‟s separate property but made no findings of fact regarding an appreciation in the

value of the property during the parties‟ marriage. Examination of the record reveals

there was no evidence introduced at trial that the property increased in value while the

parties were married. In fact, Husband testified that every property he owned was in

“bad shape” and in need of “significant” financial investment. Because there was no

evidence adduced at trial that the property increased in value during the marriage, we

need not consider whether Wife‟s actions constituted a substantial contribution. The

evidence, therefore, does not preponderate against the trial court‟s classification of the

property as Husband‟s separate property.

C. 508 Spring Street

The final property in dispute is 508 Spring Street. This property is a triplex

located next door to the marital residence, and it generated rental income for the parties.

Husband acquired 508 Spring Street in 1996; however, Husband continued to make

payments on the loan connected to the property until six years after the parties married.

As a result, the trial court classified the property as marital property and awarded it to

Husband. The trial court awarded Wife $10,000 for her interest in the property.

On appeal, Wife argues that this property, like the two above, should have been

classified as marital property under the doctrine of transmutation. This argument is

without merit because the trial court classified the property as a marital asset and

included it in its division of the marital estate.4

4

Under the “Statement of the Case” section of Wife‟s brief, Wife raises the issue that the trial court erred

by failing to assign a value to the 508 Spring Street Property before dividing the marital estate. Wife does

not address this issue in the “Argument” section of her brief. Tennessee Rules of Appellate Procedure

27(a)(7) states that an appellant‟s brief shall contain:

An argument, which may be preceded by a summary of argument, setting forth . . . the

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(3)

Rule 60.02 Motion

After the trial court entered the supplemental order, which denied Wife‟s motion

to alter or amend the alimony award and incorporated by reference the amended final

decree of divorce, Wife filed a motion entitled “Petition for Finding of Fraudulent

Transfers of Marital Assets in Anticipation of Divorce and for Contempt of Court

through Violation of the Statutory Restraining Order.” In the pleading, Wife alleged that

Husband fraudulently withdrew approximately $388,000 from the parties‟ marital stock

account. According to Wife, the withdrawals began in 2009, prior to Husband filing for

divorce, and continued through 2014. Wife contended in the pleading, and on appeal,

that these withdrawals were fraudulent because Husband made them for “the sole purpose

of depleting the marital estate.” Accordingly, Wife filed the motion seeking relief from

the trial court‟s prior order dividing the parties‟ marital property, specifically the marital

stock account, to reflect the unauthorized withdrawals made by Husband.5 The trial court

denied Wife‟s motion; it found that Husband‟s withdrawals were “reasonable and

necessary” because the trial court had previously ordered him to make payments “in the

natural course of business in maintaining the parties‟ marital assets.”

Wife‟s petition states that it is brought under Tennessee Rule of Civil Procedure

60.01, which provides relief when the judgment or order shows on its face that it contains

errors caused by oversight or omission. TENN. R. CIV. P. 60.01; Jerkins v. McKinney,

533 S.W.2d 275, 280 (Tenn. 1976). Wife points to no such error. Consequently, the trial

court properly construed the motion under Rule 60.02, which provides in pertinent part:

On motion and upon such terms as are just, the court may relieve a party . .

. from a final judgment, order or proceeding for the following reasons: (1)

mistake, inadvertence, surprise or excusable neglect; (2) fraud (whether

heretofore denominated intrinsic or extrinsic), misrepresentation, or other

misconduct of an adverse party; (3) the judgment is void; (4) the judgment

has been satisfied, released or discharged, or a prior judgment upon which

it is based has been reversed or otherwise vacated, or it is no longer

equitable that a judgment should have prospective application; or (5) any

contentions of the appellant with respect to the issues presented, and the reasons therefor,

including the reasons why the contentions require appellate relief, with citations to the

authorities and appropriate references to the record (which may be quoted verbatim)

relied on[.]

We conclude that Wife‟s failure to comply with the Rules of Appellate Procedure waives the issue for

review. Bean v. Bean, 40 S.W.3d 52, 55 (Tenn. Ct. App. 2000).

5

The trial court determined the division of the parties‟ marital property, including the stock account at

issue on appeal, in the amended decree for divorce. The amended decree was incorporated by reference

into the supplemental order, from which Wife sought Rule 60.02 relief.

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other reason justifying relief from the operation of the judgment. The

motion shall be made within a reasonable time, and for reasons (1) and (2)

not more than one year after the judgment, order or proceeding was entered

or taken.

The disposition of a motion under Rule 60.02 of the Tennessee Rules of Civil

Procedure is within the sound discretion of the trial judge. Henderson v. SAIA, Inc., 318

S.W.3d 328, 335 (Tenn. 2010). Accordingly, appellate courts defer to a trial court‟s

decision to either grant or deny relief pursuant to Rule 60.02, and we will uphold these

decisions absent an abuse of discretion. DeLong v. Vanderbilt Univ., 186 S.W.3d 506,

511 (Tenn. Ct. App. 2005).

Relief under Rule 60.02 is an exceptional remedy that allows a court “„to alleviate

the effect of an oppressive or onerous final judgment.‟” Black v. Black, 166 S.W.3d 699,

703 (Tenn. 2005) (quoting Killion v. Dep’t of Human Servs., 845 S.W.2d 212, 213 (Tenn.

1992)); see also Dockery v. State, No. M2006-00014-COA-R3-CV, 2007 WL 2198195,

at *2 (Tenn. Ct. App. July 23, 2007). Our Supreme Court has described Rule 60.02 as an

“„escape valve from possible inequity that might otherwise arise from the unrelenting

imposition of the principle of finality imbedded in our procedural rules.‟” Henderson,

318 S.W.3d at 336 (quoting Thompson v. Firemen’s Fund Ins. Co., 798 S.W.2d 235, 238

(Tenn. 1990)). A party seeking relief under Rule 60.02 must prove by clear and

convincing evidence that it is entitled to relief. Id. This is a heavy burden because clear

and convincing evidence is evidence “„in which there is no serious or substantial doubt

about the correctness of the conclusions drawn from the evidence.‟” Furlough v.

Spherion Atlantic Workforce, LLC, 397 S.W.3d 114, 128 (Tenn. 2013) (quoting Hodges

v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992)). Additionally, a party who

seeks Rule 60.02 relief on the ground of fraud must provide clear and convincing

evidence of conduct that amounts to:

[A]n intentional contrivance by a party to keep complainant and the Court

in ignorance of the real facts touching the matters in litigation, whereby a

wrong conclusion was reached, and positive wrong done to the

complainant‟s rights.

Duncan v. Duncan, 789 S.W.2d 557, 563 (Tenn. Ct. App. 1990) (quoting 11 C. Wright &

A. Miller, FEDERAL PRACTICE & PROC. § 2861 (1973)).

Guided by the foregoing principles, we now examine the proof Wife provided in

support of her Rule 60.02 motion. The only proof Wife provided in support of her claim,

in both the motion and at the hearing on the motion, consisted of the stock account‟s

monthly statements, which showed withdrawals from the account. Wife presented no

evidence that Husband concealed these withdrawals, or that he secreted the funds into

another account. Husband testified that he made the withdrawals because he paid the

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marital debts and expenses associated with the parties‟ rental properties from the stock

account.

One of the withdrawals Wife relied on in support of her motion totaled $18,250.

According to Wife, this withdrawal demonstrated that Husband made the withdrawal for

his own benefit because it equaled the amount the Final Decree for Divorce ordered

Husband to pay Wife as payment for the difference in the value in the parties‟ cars and

for Wife‟s interest in the 508 Spring Street property. Wife, therefore, contends that

Husband paid her with her own funds.

The trial found that Husband did not pay Wife with her own money, and the

evidence does not preponderate otherwise. For example, Husband testified at the hearing

on the motion that the Fidelity stock account from which he paid Wife the $18,250 was

separate from the Fidelity stock account at issue. Husband testified that the stock account

referenced by Wife‟s motion was a checking account, whereas the stock account from

which he paid Wife the $18,250 was a vested stock account. Wife‟s half of the vested

stock account remained untouched. The stock account statements alone are insufficient

to meet Wife‟s burden by clear and convincing evidence. Accordingly, we conclude that

the trial court did not abuse its discretion in denying Wife‟s Rule 60.02 motion.

In connection with the trial court‟s denial of Wife‟s Rule 60.02 motion, Wife

argues that the trial court erred by precluding discovery related to the motion. Prior to

filing the Rule 60.02 motion, Wife scheduled a deposition of Husband. Husband filed a

motion for protective order pursuant to Tenn. R. Civ. P. 26.02 and 26.03 to prevent the

deposition, which the trial court granted.

Decisions concerning discovery issues “rest within the sound discretion of the trial

court.” Benton v. Snyder, 825 S.W.2d 409, 416 (Tenn. 1992). Therefore, we apply the

abuse of discretion standard when reviewing a trial court‟s decision to grant or deny

discovery requests. Johnson v. Nissan N. Am., Inc., 146 S.W.3d 600, 604 (Tenn. Ct. App.

2004). The Tennessee Rules of Civil Procedure favor discovery of any relevant

evidence, unless the evidence is privileged or subject to protection. TENN. R. CIV. P.

26.02(1); Duncan, 789 S.W.2d at 560. Tennessee Rule of Civil Procedure 26.03 permits

a trial court to limit discovery; however, the party opposing discovery has the burden of

proving with more than conclusory statements and generalizations that limitations are

necessary “„to protect a party or person from annoyance, embarrassment, oppression, or

undue burden or expense.‟” Id. at 561 (quoting TENN. R. CIV. P. 26.03). If a party

seeking to limit discovery fails to support its request with specific facts, a trial court

should deny the request. Id. Moreover, a trial court should “„balance one party‟s need

for information against the injury that would allegedly result if disclosure is compelled,‟”

In re NHC – Nashville Fire Litig., 293 S.W.3d 547, 563 (Tenn. Ct. App. 2008) (quoting

Ballard v. Herzke, 924 S.W.2d 652, 658 (Tenn. 1996)), and it should consider the

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availability of less burdensome methods for obtaining the requested information.

Duncan, 789 S.W.2d at 561.

In his motion, Husband claimed a protective order should be issued because the

discovery Wife sought via deposition was “unreasonably cumulative or duplicative or is

obtainable from some other source that is more convenient, less burdensome or less

expensive[,]” and because Wife had abundant opportunity via other discovery in the case

to acquire the information sought. The trial court agreed and granted Husband an order

of protection precluding all discovery related to Wife‟s petition concerning the fraudulent

transfers. The evidence in the record does not preponderate against this decision. At the

hearing on the motion, Husband‟s counsel informed the trial court there had been several

rounds of discovery in the case and the stock account statements that were at issue had

been produced previously. Moreover, the record reveals that Wife‟s counsel acquired the

stock account statements prior to the hearing concerning Husband‟s withdrawals from the

stock account, which is evidenced by Wife‟s counsel using those stock account

statements in support of the Rule 60.02 motion. We also note that Wife had the

opportunity to cross-examine Husband about the alleged fraudulent transfers during the

hearing on the Rule 60.02 motion. We find that Wife had sufficient opportunity to obtain

the information she sought through prior discovery and conclude the trial court did not

abuse its discretion in denying Wife‟s request for additional discovery related to her Rule

60.02 motion.

CONCLUSION

The judgment of the trial court is affirmed in all respects. Costs of appeal are

assessed against appellant, Jamie Treadwell, for which execution may issue if necessary.

_________________________

ANDY D. BENNETT, JUDGE

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