# FILED

Novemb er 7, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk FRANKLIN THOMAS BURNS , ) ) APPEAL NO. PETITIONER/APPELLEE, ) 01-A-01- 9705-CH- 00218 ) v. ) ) MONTGOMERY BERNICE A. BURNS, ) CHANCERY ) NO. 96- 02-0146 RESPONDENT/APPELLANT. )

COURT OF APPEALS OF TENNESSEE MIDDLE SECTION AT NASHVILLE

APPEAL FROM THE CHANCERY COURT FOR MONTGOMERY COUNTY

AT CLARKSVILLE, TENNESSEE THE HONORABLE ALEX W. DARNELL, CHANCELLO R

CHRISTINE E. ZELLAR 218 South Second Street, Suite A Clarksvil le, Te nnessee 370 40 ATTORNEY FOR RESPONDENT/APPELLANT EDWARD ROBERTSON PO Box 871 Clarksvil le, Te nnessee 370 41-0871 ATTORNEY FOR PETITIONER/APPELLEE

AFFIRMED AND REMANDED

WALTER W. BUSSART, JUDGE-2- 

## O PINI ON
This is an appea l by responde nt/appel lant, Bernic e A. Burns (“Wif e”), from the order of the tri al court granting W ife and petitioner/a

ppellee, Franklin T

homas Burns (“Husband”), a divorce , divid ing the marital property, and granting temporary ali mony. W ife com

plains the c ourt erre d when it di vided the pa rties’ property

and awardedWife $ 400.00 alim ony per month f or six months . The f

acts out of whic h this matter arose are as fo llows.

Wife and Husband married on Decem ber 31, 1992. Prior to the marriage, Husband owned a motorcyc le, acr

eage in Arkans as with a rental hous e, twe nty-e ight
acres in Clarksville with a trailer, and twenty-tw o head of cattle. Husband also had money from VA e ducational benefits. After the mar riage, the part ies purchased a Yam aha four-wheeler. In

order to pu

rchase th e four-wheeler, Husband traded in t

he motor cycle and contri buted $2 ,700.00 fro m his VA e ducational benefits. Husband had made paym ents on the A

rkansas pr

operty mort gage for nine ye ars prior to the marriag e. He paid of

f the m ortgage ba

lance, a pproxim ately

$2,000.00, during the first year of t he ma rri age . Hu sb and made th e pa yment s wi th th e re nt al i nco me received from

his tenants . Ther

e is no evidence Wife b rought any property into the marriage.

The parties also acquired several item s during the marriage. T

hey purchased
aused Inter

national 464Tracto r

for $6,00 0.00. Husband clai med he paid for ha

lf of the tractor with pre-mar

ital funds. The parties also purchaseda 1974 Dodge motor home, a time share in the Sm okey Mountains, a 1992 Chev r olet Beretta, a 199 4 Chevrolet C-1500 tru ck, and va

rious furnishings.

Doctors diagnos ed Husband with cancer d uring th e marriage. Husban d sold the Arkansa s property

while unde

rgoing tre atment. Husba nd realiz ed $30,000. 00 from the sale of

the proper

ty and r einvested t

he mon ey intoa certif

icate of deposit. He designated the account as payab le on death and listed W

ife as the beneficiary. He also listed Wife as a joint m ember on the CD. H

usband purchased the CD because he wanted Wife t

o have the

proceeds if he died. Wife also had hea lth problem s. She has had Chrons disease since she was twenty-five, but her condition w as treat able and-3-

not serious at the time of the final decree.

Th e record contains little evidence of Wife’s em ployment history

or earnin g capa cit y. She testi fied she be gan workin g as a rea l estate a gent in ear

ly 19 96, bu t claimed she did not

hav e an y reg ul ar i nco me be cau se i t ta kes time to get esta blished. Husband te stified he

paid $1,254 .00 for he

r real e state tra

ining.

There is mor

e evidenc e of

Husband’s ear ning capa city. Each m onth Husban d receives a mil itary

retirem ent c heck i n the amount of $1 ,535. 00 an d a Vete ran’s Admi nistration

disability check

in the amount of $91.00. Husband also has seasonal emplo ym ent at Fort C ampbe ll, Kent

ucky where he e arns an ad dition $1000.00 a month from m

id-April through October.

Husband filed a complaint for absolute divorce on February 28, 1996. Wife filed an answe

r and counte

rclaim . The c ourt filed

an o rder on Se ptemb er 25, 1996 and ma de the foll owing findi ngs: 1. The part

ies wer e ma rried on D ecem

ber 31, 199 2. 2. The Wife was empl oye d at th e ti me of the marriage . The H usband was ret ired m ilitary with a se asonal j ob. 3. The Defenda

nt is now a real estate agent and has been for the year 1996. 4. There has bee n n o ap pre cia bl e ac cumu lati on of property values during the marriage. 5. The parties di d obtain duri ng the m arriage a four-wheeler, a used ractor [sic], a recreatio nal vehic le, time share int erest, all of wh ich t he Court esti mate d the enhanc ed value of $8,000. 6. The real est ate owne d by the Plaintif f was purc hased before the marr iage and has not sustained an appreciable increase i n value. The Plaintiff owned re al estate

in Arkansa s and paid

approxim

ately $2,000 in p a ym ents during t

he ma rriage a nd has subsequ ently s old said prop erty for $30,000 and purcha sed a cer tificate of deposit in both parties names in the am ount of $30,000. The time share interest that the parties own was purchased

for $8,00 0 and has a n et value a t the present ti me of $4,000. The court then ordered H

usband to pay W

ife $350.0 0 as alim

ony pendente lite for the month of August and reserve d ruling on all other issues pendi ng a

determ ination of Wife’s physical condition. On November 7, 1996, the court filed an opinion in which itheld Wi fe was entitled to $40 0.00 per m onth for six m

onths to balance the equities between the partie s. The c ourt filed the final decree o f divorce on Decem

ber 5, 1996

.-4-

The court ordered the parties divorced pursuant to Tennessee Code Annotated section 36-4-129(B), awarded eachparty the “ assets now

in his or her posses sion or under

his
or h er contr ol,” and a

warded W

ife alim ony of $ 400.00 per

month f or six m onths. Thereafter, Wife f

iled a tim ely not ice of app eal. T

here wa s no court r

eporter p resent atthe hearing so the parties filed an agre e d statement of the facts. W ife lists seven issues; however , these c an be narr owed to a r

eview of the court’ s di vision of the mari tal proper

ty and t he alim ony aw ard.
I. Division of Property

A. Classification of Property as Marital or Separate

Tennessee courts have the authority to divide marital pro per ty, no t separat e property. See T ENN
. C ODE A NN . § 36-4-1 21(a)(1) (1996). T hus, it is essential that courts pro per ly cla ssi fy pro per ty before dividin g it. See Batso n v. Bat son , 769 S.W. 2d 849, 856 (Tenn. App. 1988). Tennesse e CodeAnnotate d defines m arital a nd separate property as follow s: (b) For purposes of this chapter: (1)(A) "Marita

l property " mea

ns all rea l and perso na l pro perty , both tangible and intangib le, acqu ired by either or both spouses d

urin g t he cou rse of the marriage up to the date of the final divorce hea ring an d owned by either

or both spouses a s of the dat e of filin g of a com

plaint for divorce, except in t

he case of fraudule nt convey ance in an ticipation of filing, a nd including a

ny prop erty

to which a r

ight was a cquired up t

o the date of the fin al divorce hearing, and valued as of a date as near as reasonably possible to the final divorce hearing date. (B) "Marital property" includes incom e from , and

any increase in value during the m arriage

of, prope rty determ

in ed to be separa

te proper ty in accordance with subdivision (b)(2) if each par ty sub stantially contributed to its pres ervation a nd appreci ationand the value of vested pension, retirem

ent or othe

r fringe benefit r

ights accr

ued du ri ng the period of the marriage. (C) As used in this subsection, "substantial contribution" may include, but n ot be limited to, the direct or indirect contribution of a spouse as homema ker, wage ea

rner, pa rent or family financial manager, together withsuch other factors as the court having jurisdiction thereof may determine. (D) Pr operty shall be co nsidered m

arital pr operty as define d by this subsection

for the sole purpose

of dividing a ssets upon div orce and f or no other pur

pose; and (2) "Sep arate pr

operty " mea

ns: (A) All real and personal property owned by a spouse before m arriage;1 The par ties ag reed on t he following values: 1974 Motor

Home $4000 Time Share $5500 1992 Ber etta $7400 1994 Truck $8300 1⁄2 Tractor $2500 Furniture $3400

TOTAL $31,100

-5- (B) Property

acquired in exchange

for prope rtyacquired before the marriage; (C) Inc ome f

rom a nd appr eciation of property owned by a spouse before marr iage ex cept wh en chara

cterize d as m arital pr

operty under subdiv ision (b)(1); and (D) Property acqui red by a spous e at any time by gift, bequest, d evis e or descent. Id. §36-4-121(b). Separate property, however, may become marital property under the doctri ne of tra

nsmuta tion. Thi s court has defined th e doctrine as follow s: [Transm utation] occurs when separate property is treated in such a way as to give evidence of

an intention that it becom e ma rital prop erty. One metho d of causingtransm utation is to purchas e propert y wit h separat e funds but to tak e title in jo int tenan cy. This may also be done

by plac ing separate property in th e names of both s pouses. T he rat ionale underly ing both these d octrines is that dea ling with pr

operty in these ways create s a rebutta

bl e presu mption of a gift to the marital estate. This presum

ption is base d also upon t he provision in many marital property statutes th at proper

ty acquired

during the marriage is presum ed mari tal. The pre sumpti on can be rebutted by evidence of circum stances or comm unications c learly

indicating an intent th at the prop erty rema in separate. See Batson , 769 S.W.2d at 85 8 (quoti ng 2 H. C LARK , T HE L AW OF D O MESTIC R ELATIONS IN THE U NITED S TATES §16.2, at 185 (1987)).

Th e parties do not dispute t he classif ication of most of the proper

ty. B oth agreed the motor hom

e, the ti me-s hare, th e 1992 Ber etta, the 1994 truck, one-half

the val ue of the tra

ctor, an d the furni ture wer e ma rital prop erty. Moreover , the par ti e s agreed the combined value of these i tems equaled $31 ,100.00. 1 The par ties also agreed the twenty-eight acres in Clarksville, Tennessee and the trailer were Husba nd’s sep arat e pro per ty. Theref ore, we do not addres s the class ification of these items

.
1. Certif icate of Deposit

The highest valued contested item is the cert

ificate of deposit. Wife contends-6-

the entire CD is marital pr operty under the doctrine of transmutation. To support her argum ent Wife c ites Barnhill v. B ar nhill , 826 S.W .2d 443 (T enn. App. 1991) and Batson v. Batson , 769 S.W.2d 849 (Tenn App. 1988). Husband responds that he couldnot have m

ade a gift of th e C D to the m

arriage because h e conditione d the delivery on his death

.
Before a court can classify property as mar ital prope rty ba sed on the theory

of transm utation, the courtmust find: 1) the separate property owner performed an ac t evid encing a n intent to create marital property and 2) the separate property owner failed to rebut the presumption of a gift to the maritalestate. See Batso n , 769 S.W .2d at858. The separate property owner may rebut the presumption by establishing that
one of the legal requirements of a gift is missing. “T

he formal requirem

ents of agift
are the intention

by the donor tomake

a present gift couple d with the delivery of the subject of the gif

t by w hich com

plete dom

inion and control of the property is surrendered by the donor.” Hanse l v. Hans el , 939 S.W .2d 110, 11 2 (Tenn. App. 1996) (em

phasis added). Thus, a

party may establish t

here wa s no intention

to ma ke
apresent gi ft to the

mar ria ge by sh owing an int ention that the proper

ty re main separate. See Batson , 769 S.W .2d at 858. In addition, the separate property owner may rebut the presumption by proving the delivery w as incomplete.

Itis undisputed

that the A

rkansas pr

operty was Husb and’s se

parate pr operty prior to the marriage. Moreover , it is undis puted that H usband paid

off the m ortgage short ly after the marria

ge with income derived from renting the property and that Husband used the pr

oceeds fr om the sale of the proper ty to purchase the CD. Fin all y, itis undis puted that Husband purchased the CD and listed Wife as a joint m ember. Thus , Husband performed an act, buying the CD in both parties’ names, which triggered the presum

ption of tra

nsmuta tion. The only

question remaining is whether Husband re butted t he presumptio n of a gift t o the marital est ate.

Husband con ten ds h e reb utt ed t he p resu mpti on b y p roving that he could not have intended tomake a gift to the marriage

because h e conditione d the delive ry of the money

on his death

and a personcan not complete delivery of an intervivos gift contingent

on their de ath. Wife does not disput e that Hus bandplaced bot h name s on the CD because he was afraid he m ight die from cancer, but inter pret s this act2 Husband relies on Thompson v. Thompson , No. 03A01-9608-PB-00254, 1997 WL 9723

(Tenn. App . 19 97) to sup por t h er a rgu men t. It is the opinion of

this cour

t that this c ase is distingu ishable from the present case. The husband in Thompson owned a piece of property upon which he had begun to build a house prior to the marriag e. After the marriage, the husband executed a deed creating an estate by the entirety

between the husband and the wife. See Thompson , 1997 WL 9723, at *1. The parties completed the house approximately ten months after gettingmarried. Wit hin a yea

r of moving into the house, the wife filed for divorce. A t the he aring, the wif

e contended

the deed constituted a

gift to her of one-half interest in the proper ty and the interest wa s her se pa ra te pr op er ty. The husband countered that the deed ha d transf ormed hissepara

te prope rty into marital property. See id. at *2-3. The Thompson court concluded the languag e of the deed did nothing other than create an estate by the entirety and a

ffirmed the trial court. See id. at *3. The court did not addre ss a nd the par ties did not raise th

e transmu

tation issu e. The hu sband in Thompson , unlike Husband, was not arg uing tha t the prop erty

retained its sepa

rate na ture. Fo r these reasons the decision in Thompson is clearly distinguisha ble. -7- differentlytha n Hu sba nd. Wife a rgu es: “Appe lle e sp ecifical ly i ntended to create a right of s urvivors hip, showi ng an int ent to make a gift to the marriage.” 2

Both parties pr

esent inte resting ar gument s. We

address Husba nd’s argum ent first. The doctrine of transmutation rests on the prem is e that the donor spouse inte nded the proper

ty bec ome m

arital pr operty , not the do nee spouse’ s sepa rat e pro per ty. Wife’ s conclusion that Husba

nd intende d to gra nt her a r ight of surv ivorship and, therefore, to make a gift to the mar

riage is flawe d. To exp lain, had Husband given Wife a

right of sur

vivorship, he would ha

ve given her

the gift, not

the marriage. This conclusion i s substantia ted by t h e factthat Husband designated the CD as payab le to Wife

upon his death. There i s no evidenc e Wife or Husban d intended to
use the money f

or their j oint benefi t. In othe r words, if

anythi ng, Husba

nd intended that Wi fe have th e money as he r separa te proper ty af ter his dea

th.

Neverth eless, the burden is on Husband t o rebut the

presum ption of a gi ft to the mari t al estate create d by the purch ase of the CD in both part ies’ names. I t is th e opinionof this court that Husband has satisf ied that bur

den. Hus band argue s that he couldnot haveintended a giftto the marriage because t he deliver y of a gift could n ot have been conditi oned upo n his deat h. We agree with Hus band in p art. The “ intent” and “delivery” elements of a gi ft are exclus ive. See Hansel , 939 S.W. 2d at 112. A personcan intend to make a gift, but fail to ac tually

make the gift if he or she do es not relinquish c omplete control over the su

bject of the gift. Thus, Husband could have intended to make a gift to the marriage even if the deliverywas incom plete. D espite this flaw in H

usband’s argum

ent , he must still prevail because the conditional delivery con fir ms he did not re linquishcomplete dominion and control. Ther efore,-8-

t he delivery

was incom

plete. M oreover, as previou sly sta ted, the evidence r

eve al s Husband intended Wife to have the money only after his deat h from cancer, not before. He did not intend the partie s to use the m onies as a m

arital a sset. T

hus, Husband has also rebutted th e pr esu mp tion of a gif t to the marital e state by establ ishing that he did not intend to make a gift, the first formal requirement of a gift.

For the foregoing reasons, it is the opinion of t h is court tha t Husband successf ullyrebutted t

he presumption that he intended to make a gift to the marriage when he purcha sed the CDin both part ies’ na mes. It follows that

the CD purchased with Hus ban d’s s epa rate pro per ty rema ins his sep arat e pro per ty.

2. Cattle

The record i n this case

reveals Husband ow ned twent y-tw o head of c attle pri or to th e mar ria ge a nd th ere wer e tw ent y-tw o h ead of c att le a t th e ti me of the divorce. The record a

lso revea ls that thes e were

not the sam

e twenty -tw o hea d of cattle as some h ad been sold

andborn from

the tim e of the marriage until the divorce. W ife argues the cattl e is m arital pro perty because s ome of

the animals are d

iffere nt and because the parties necessarily used marital funds to maintain the cattle.

Wife’s argum

ent i s without m

erit. F irst, w e know Hu sband cam e into the
marr iage with the cat tle and th e cattle were hi s separate p roperty. Thus, the heads of cattle which were not sold or b orn duri ng the m arriage are Hus band’s se

parate pro per ty. See T ENN
. C ODE A NN . § 36-4-121(b)(2)(A). The issue then becom es whether any increase in value of these sam e head of cattle was marital property as a result of each party ’s substa

ntial contr

ibution to the

preserva tion and appr

eciation o f the cattle

. See id. § 36-4-121(b)(1)(B). Wife asserts in her brief thatthe upkeep of the cattle n e cessitate d the expend iture of f unds. W ife does no t, howev er, cit e any evidence in the record establishing substantial contribution as defined in Tennessee Code Annotated section 36-4-121(b)(1)(C). Thus, it is the opinion of this court that the cattle which remaine d in Husband ’s posses sion from the tim e of the m arriage until the div orc e rema in h is s epa rate pro per ty.-9-

We now turn tothe cattle bor n during the marr

iage. W ife seems to argue that these cattle are marital pr

operty because they

were a cquired dur

ing the marri age. We
can not agree. It is the opinion of this court that the more appropria

te classif ication is as an appreciati on of sepa rate proper ty. See id. § 36-4-121(b)(2)(C). Moreover, because Wife has not established that this appreciation is marital property as a result of substantial

contributi on, we must conclude that it i s Hu sba nd’s sep arat e pro per ty.

Fin all y, we do not addre ss the issue of whethe

r the incom

e recei ved from

the sale of cattle

during the m

arriage is marital or separate property as neither party raised this issue below

or on appea

l. Theref ore, given the above

discussion, it is the opi nion of t his cou rt t hat the twen ty-t wo h ead of ca ttl e are Hus ban d’s s epa rate pro per ty.

3. Yamaha Four-Wheeler

The agreed statem

ent of the fact s provides a s follows w ith regar d to the fourwheeler: The partie s p urchased a Yam aha four- wheeler , which t he Husband valued at $3,000.00. The Husband testified that he hadtraded in amotor

cycle he had owned before the marriage. He further testified thathe had con tributed $2700.0 0 towards the purchase of the fourwheeler from his VA educationa

l benefits . The f

our-whe eler wa s in the possession

of the Hus band. Neither par ty s pecifica

lly as ked to be awarded the four-wheeler. The parties do not contest that the $2,700.00 contributed by Husband was his separate pro per ty.
Property acquired with separat e property remains se parate prop erty. See id. § 36- 4-121(b)(2)(B). Thus, it is the opinion of this court that $2,700.00 of the four

wheel er’s valu e is Husba nd’s sepa rate prop erty. While t

here is no evidence in the record regardin g the value of the m otorcy cle trade d in, it is r easonable to conclude thatthe trial

court foun d this to com

plete the $ 3,000.00 va

lue of the four-wheeler

and
awar ded it t o Hu sba nd a s se par ate p rop erty.

B. Equitable Division of Marital Property

A trial court’s division of marital property is entitled to greatweight on appeal,-10-

and this cour

t will not alter such distribution unless the evidence preponderates against it. See Barn hill , 826 S.W .2d at 449- 50; Batson , 769 S.W .2d a t 859. Wife prepared a chart f

or the purposes of appeal which revealed that the trial court awarded her thirteen p ercent of

the m arital pr

operty andHusband eighty-seven percent o f the marital property . It is he r contenti on that this d

ivision is ine quitable in light of th e factors listed in Tennessee Code Annotated section 36-4-121(c). We can not agree.

This court has held that “it is appropriate to divide the property in a way that,
as nearly as possible, places the parties in the same position they would have been in had the m arriage

never tak en place” when the m

arriage is of ashort du ration. Batson , 769 S.W. 2d at 859. W

ife does no tthe dispute the above holdin g, but arg ues this ca se is distinguisha

ble from Batson because the primary m arital a ssets in Batson were th e increase in the value

of separa te proper ty. W hile true, this fact

does not relate t o the court ’s above quoted holding . Instea d, the fa ct relat ed to the court’s decision that an equal division is not

appropria

te when th e evidence

reveals the p arties’ monetary contributio ns to the accum ulation of marital assets were not equal

. See id. at 859-60.

W ife also argues she is entitled to more than thirteen percent because h e r earning capacity

is le ss than Hus band’s. Again, we can no t agree. During the marriage, Husband pa

id for W ife’s r ea l estate t

raining. There i s evidence in the record that Wi fe has obta ined her r

eal esta te license

and has begu n to recei ve comm issions from

sales. H usband lives o ff of his r etirem ent incom e, disabi lity c heck, and seasonal employm

ent. There is no evidence in the record indicating that Wife is underem ployed. It is the opin ion of this court that Wife has failed to establish that her earning capac ity is l ess than Husband’s.

This was amar

riage of short durat

ion. The parties m arried on Decem ber 31, 1992, andHusband filed a com plaint for divorce on Februar

y 28, 1 996. Wi fe brought littleinto the marriage

andshould not be p ermi tted to wa lk away with a windfall. It is t he opinion of

this court t

hat the evi dence does not preponde rate aga in st th e determ ination of t

he trial c ourt as to e quitable div ision.

II. Alimony-11-

“App ellate

courts give

wide lat itude to tri al courts’ spousal suppor t an d maint enance de cisions. T

hese decisions a

re, how ever, su

bject toappellate review.” Crain v. Crain , 925 S .W.2d 23 2, 233 (Tenn . App. 1 996) (cita tion s omitt ed). We review atrial court’s decisions regarding spousal support pursuant to Rule 13(d) of the Tennessee Rules of App ellate Proce dure. See Jones v. Jones , 784 S.W .2d 349, 352 (Tenn. App. 198 9). Th us, we review findings of fact de novo upon the record
acc ompaniedby a presumption of corre ctness unless the preponderance o f th e evidence i s otherwis e. See T ENN
. R. A PP
. P. 13(d) (1997-98).

The tria l court fou nd as follow s: 1. Berni ce Burns does have a n imm ediate an d temp orary

need for some f unds. 2. Franklin

Burns is financially capable of making a m on thly payment to her. 3. There needs to be a balance

of t he equitie s in view of the disproporti onate ear

nings of the parties. 4. A paym

ent of $400. 00 per month to Ber nice Burn s for sixmonths would sati sfy the se requir emen ts. We have reviewe d the evide nce in the r ecord and find that it

does not preponde

rate against the finding s of thetrial court. Wife argues that she needs m ore money f

or a longerperiod of

time and Husban d can pay more . Althoug h the evide nce does sho w thatHusband could pay more, it does not show that Wife needs more. Of particular interest is the fact that Wife received the 1992 Beretta which w as paid for at t he t ime of the divorc e, but list s a car pa ym ent of $308. 53 on her monthly i ncome an expense statem ent. In addition , Wif

e claim s sh e needs $360.00 a month for food. The trial courtproperly

refused t

o award W

ife all t h e money she c laimed to need on her monthly incom e and expen se statem

ent. For the foregoing reasons, the decisi on of the trial court as to spousal support is aff irme d.

III. Conclus ion

Itis the opinio n of this court that the CD, cattle, and the Yamaha four-wheeler
are Husband’ s se para te property. W ife is entitled to thirteen percent of the marital p rop erty, and Husban d is entitle d to eighty -seven per cent of the

mar ital property
. Finally, the trial court’s aw ard of spousal support is proper.-12-

Therefore it follows that the de cision of th e trial cour t is affir med. On rem

and, the trial court shall enter an order in accordance with the above dec ision. Costs of appeal ar e taxed ag ainst resp ondent/appe llant, Be rnice A. Burns.

________ __________

_________

_ Walte r W. B ussart, J

udge Concur:

_________________

____________ Ben H. Cantrell , Judge

_________________

____________ Willia m C. Koch, Jr ., Judge