# FILED
June 18, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE

THOMAS OWENS, ) ) Plaintiff/Counter-Defendant ) Lawrence Chancery No. 7603-95 ) v. ) ) Appeal No. 01A01-9709-CH-00471 ANGELIA OWENS, ) ) Defendant/Counter-Plaintiff/ ) Appellee, ) ) v. ) ) JAMES R. OWENS and FERN O WENS, ) ) Defendants/App

ellants. )
APPEAL FROM THE CHANCERY COURT OF LAWRENCE COUNTY

AT LAWRENCEBURG, TENNESSEE

THE HONORABLE WI

LLIAM B. CAIN, CHAN CELLOR

For the Defendant/Counter-Plaintiff/Appellee For the Defendan ts/Appellants : David L. Allen J. Daniel Freemon Lawrenceburg, Tennessee Lawrenceburg, Tennessee

AFFIRMED

HOLLY KIRBY LILL

ARD, J.
CONCUR: W. FRANK CRAWFORD, P. J., W.S. ALAN E. HIGHERS, J

.OPINION

This is a divorce case

involving the divisio

n of marital prope

rty. During their

marriage, the husband and wife built a ho use on property ow

ned by the husband ’s parents. The trial court granted

a lien against the property in favor of the wife for half the value of the marital home. The husband’s parents appeal.

We affirm. Thomas Owens (“Husband”) and Angelia Owens (“Wi fe” ) were married in May, 1986. There were two childre

n born to the marriage . In 1988, Husband a nd Wife construc

ted a house locatedon property owned by Husband’s parents, James and Fern Owens (“Mr. and Mrs. Owens”). On September 21, 1995, Husband filed a complaint for divorce alleging ina ppropriate marital conduct or, in the alternative, irreconcilable differences. Wife answered the c omplaint and filed a counter-complaint

for divorce alleging identical grounds. Subs equently, Wife filed an amended counter-complaint

impleading Mr. andMrs. Owens alleging that they were unjustly enriched by the construction of the house on their property. Wife also alleged alterna ti ve theories of recovery including quasi-contract and quantum meruit
. During the trial, both Husband and Wife accused each other of i nap propriate marita

l conduct. Wife testified that Husb

and had abused he

r physically in the

past. She said that she le ft suddenly withthe parties’ two children in September 1995 because Husband struck her in front of the children and that one child was injured during the altercation. The trial court also heard evidence concerning the construction of the marital home on the property of Mr. and Mrs. Owens. Wife testified that she selected and bought most of the building materials, and that she assist ed in the construc

tion of th e house. Wif

e introduced into evidence receipts for building materials tha t she bought, in the amount of $4,785.98. Wife stated that she savedall of her cancelled checks but could not provide them to the trial court because the checks

were left at the house when shehad to leave quickly because of Husband’s abuse. Wife testified she could obtain cancelled checks from the bank only dating back six years to April 1990. Wife asserted that the house was nearly completed in Ap ril 199 0. Wife also testified that she borrowed $5,000 from her mother to

assist with constru

ction costs. Wife testified that her work on the house, her payme nt for building materials, and the monetary assistance from h er mother were b

ecause of her “understanding”

that the property

would be deeded to Husband and her upon completion of the house. She asserted that Husband represented to her that the house would be deeded to them when it was completed. She als o noted Mr. Owens’2

references to the house as “yo u all’s” and inter

preted these re

ferences t o mean t hat the house belonged to Husband and her. Husband denied at trial tha t Mr. Owens,his father, ever promised to convey the property at any time. Husband was employed by Mr. Owens and worked on the house at times when he was working for

his father. Husband was paid by his father in cash and acknowledged failing to report this income on the jo

int tax returns. Mr. Owens asserted that he never had any intention of deeding the property to his son and daughter-in-law and never made representations to that effect. It is undisputed that the house was constructed

from timber cut fr

om his land, and that some of the equipment used in constructing the house was owned by Mr. Owens. Mr. Owens claimed that he bought part of the materials for the house for cash and paid bills concerning the construction of the house in cash. Mr. Owens produced

no receipts for the purchase of building materials. Mr. Owens also testified that Husband and Wife paid him no rent for five years, the period of time in which they resided in the house. After listening to the te

stimony, t he trial court found the testimony of Husband and Mr. Owens to be not credible . The trial judge no ted the income tax

returns in which H

usband’s cash incomew as not reported, H usband’s evasive

ness and claimed i

gnorance about n

umerous basi

c issues, and Mr. Ow

ens’ propensity to

deal in cash tran

sactions: Mr. Thomas Owens [Husband ] appears to be either try ing to act ignorant

or is ig nora nt; and I don’t believe he is ignorant. He knows nothing. He answers no question dealing even with the date of his marriage with a straight for ward answer. It’s generally “I don’t know.” These people deal with cash. Mr. Jim Owens [Mr. Owens] is a cash dealer; cash, cash, cash. He likewise knows nothing.
The trial court held

that Mr. a nd Mrs. Owens would be unjustly enriched by retaining the entire value of

the house on their property. The trial court valued the property, including the value of the land and the ho

use, at $45,000. Th

e trial court awarded W if e half of the value of the residence, $22,500, less $5,00 0, the value of one

acre of la

nd owned by Mr. and Mrs. Owe ns. Consequently, t he trial court gra nted a lien in favo

r of Wife in the su

m of $17,500 agains

t t h e property of Mr. and Mrs. Owens. From this order, Mr. and Mrs. Owens now appeal. On appeal, Mr. and Mrs. Owens assert that the trial court erred by granting Wife a lien against the property. Mr. and Mrs. Owen s argue they wer

e not unjustly

enriched at the expense of3

Wife, that the record shows that they contribut ed to the con struction of the house and that they should be credited for having permitted Husband and Wife to reside in the house rent free. Our review of this case is governed by Tennessee Rule of Appellate Procedure 13(d), which provides that review of findings of fact by the trial court shall be de novo upon the record of the trial court, accompanied by a presumption of correct ness of the factual findings, unless the evidence preponderates otherwise. Tenn. R. App. P. 13(d); see also Union Carbide Corp. v. Huddleston , 854 S.W.2d 87, 91 (Tenn. 1993). In support of their argument, Mr. and Mrs. Owens cite O’Brien v. O’Brien , 734 S.W.2d 639 (Tenn. App. 1987). The husband and wife in O ’Brien built a house on the property of the wife’s parents, Mr. and Mrs. Hicklen. O’Brien , 734 S.W.2d at 641. In O’Brien , there was an agreement among the parties that the property and additional land would be owned by the wife upon the death of Mr. and Mrs. Hicklen. Id. at 642. The husband and wife later divorced. Id. at 641. The Court found that the husband had a rea sonable expectation of r

esiding in the house

with his wife until her par

ents died, but that t

his expectation w

as waived when he

le ft his wife a nd the marital home. Id. at 642. The Court no ted that the termin

atio n of the marriage

was solely due to the husband’s misconduct. Id. at 643. It also observed that the husband did not expect to obtain an

owne rship i nterest in the house; rather his expectation was “the privilege of occupancy and the ultimate ownership by his wife.” Id. at 644. The Court refused to grant the husband equitable relief under the doctrine of

unclean hands, r

easoning that the h

usband abandone

d his wife and the h

ouse they shared, and was therefore precluded from obtaining e quit able relief regarding the house. Id. at 643. Wife, on the other hand, cites Housley v. Housley , in which this Court addressed the issue of the gran ting a lien o n the property of a third party when dividing marital property between a divorcing husband and wife. Housley v. Housley , No. 03A01-9509-C V-003 02, 1996 WL 36135 (Tenn. App. Jan. 31, 1996). In Housley , the husband and wife owned a modular home placed on property owned by the husband’s parents, Mr. and Mrs. Housley. Housley , 1996 WL 36135, at *1. The Courtordered the parties divorced, apparently without attribution of fault, and awarded the wife half of the value of the modular home and imposed a lien against the property of Mr. and Mrs. Housley in the same amount to protect the wife’s judgment. Id. *2. In sustaining the lien against the property, the Housley Court observed that the trial court had broad discretion in the adjudication4

of parties’ rights

and interests in the marital estate. Id. (citing Batson v. Batson , 769 S.W.2d 849 (Tenn. App. 1988)). The facts in this

case are more analogous to those in Housley than O’Brien . Unlike O’Brien , the divorce in this case is not solely the fault of Wife. See O’Brien , 734 S .W.2 d 642-43. Wife asserted in her testimony tha

t she left the ma

rital home suddenly because of Husband’s physical abuse of her and the injury to the parties’ child in the course of the confrontation between Husband and Wife. As in Housley , th e trial court in this case simply declared the parties divorced without attributing fault. In O’Brien , there was a clear agr eement among the p

arties that the wif

e would obtain ownership of the p

roperty upon the d

eath of her pare

nts. Id. at 642. In this case, Wife asserted that she had a reasonable expectation that the property would be deeded to both Husband and Wife upon completion of the house, and the trial cour t found that Wife’ s testimony was cre dible and discreditedthe testimony of both Husband and his father. The facts in the case at bar are similar to those in Housley ; indeed, they are more compelling than the facts in Housley , in that the home in this case is not a modular home that can be moved, but a h ome buil t on Mr. and Mrs. Ow ens’ property. See Housley , 1996 WL 36135, at *1. Under all of these circumstances,

the relief granted by the trial court in this case is both reasonable and appropriate. The decision of the trial court is affirmed. Costs a

re assessed aga

inst Appellants Jam

es R. Owens and Fern Owens, for which execution may issue if necessary.

HOLLY KIRBY LILLARD, J. CONCUR:

W. FRANK CRAW

FORD, P. J., W.

S.

ALAN E. HIGHERS, J.