# FILED October 30, 19 97 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COURT OF APPEALS OF TENNESS EE

EAST ERN S ECTI ON

MAC K MU LLINS, ) C/A NO. 03A01-9705-CH-00153 ) Ap pellan t, ) HAMBLI N CHANCERY ) v. ) HO N. TH OM AS R. FR IERS ON , II, ) CH ANCELL OR LILLIAN J. MULLINS, ) ) AF FI RMED AND Appellee. ) REMANDED

PA UL G. W HE TS TO NE , P.C., M orristow n, for A ppella nt. J. RANDA LL SHE LTON , Morris town, for Appell ee.

O P I N I O N
Franks, J.

In thi s divorc e acti on, both hus band and wife have rai sed iss ues on app eal. The husband insi sts t hat it was improper for

the Tri al Judge to order the husband to paythe wife’ s COBR A insurance pr emiums and to paya porti on of her attorney’ s fees, since t

he parti es had announced t o the Court t hat the wife would not
se ek ali m on y. The divorce ca se was tri ed on October 21, 1996, and the parti es2

stipulated groun ds for divo rce pursua nt to T.C.A . § 36-4-12 9. The w ife’s Cou nterC om pl ain t in itia lly a sk ed fo r a lim on y in sol ido , al im on y in futuro , and temp orary spousal sup port. The h usband ’s counsel in h is Open ing Statem ent inform ed the C ourt that t he parti es had agree d that t he wife would not se ek ali mony. Husband’ s counsel
wa s aw are th at the wif e w as se ekin g atto rne y’s fee s an d ob jecte d to any su ch a wa rd. In the C ourt’s D ecree , the hu sban d w as req uired to pay CO BR A p remiu ms o n beh alf of the wife for

twenty -four months and to paya porti on of her attorney ’s fees in the amount of $500.00. The Chancellor also determined that the marital res idence, includi ng the val ue of Lill ian Mulli ns’ down payment of $18,000. 00 was marital property. The Chancellor determi ned that

$60,000.00 of

net equi ty existed in the home and the wife was awarded the property, but she was re quired to pay $12, 969.00 to th e hu sba nd f or h is inte rest.

In awarding t

he COBR A payments, the chancel lor “i nterpreted counsel’ s repre sentations t o mean that bot h parti es waived anyrequest for peri odic or in sol ido al imo ny , b utth e ot her is sue s of

atto rn ey ’s fee s a nd ma in te nan ce o f COBRA health insurance remained i n a contested stat us”. The parties ’ repr esentat ions made at tri al le nd support to the Chancell or’s i nterpretation.

The appellant argues the Chancell or’s award of attorney’ s fees was improper bec ause the i ssue of al imony was waived, and he notes t hat attorneyfee
aw ard s are treat ed a s alim ony. Gilli am v Gilliam , 776 S.W.2d 81, 86 (Tenn.App. 198 8), and in dec iding w hethe r to aw ard atto rney’s fe es, the tria l court s hou ld generallyconsult the same statut ory factors used in determining alimony awards. Houghland v. Houghland , 844 S .W.2 d 61 9, 623 (Ten n.A pp. 19 92); See Tenn. Code Ann . §36-5-10 1(d)(1) (199 6).

The attorney for

husband in hi s opening st atement s aid: “ The Court of Appeals has opi ned time and time again t hat that’s j ust anot

her form of al imony, and I3

don’t think that o ught to app ly if he’s not seeking alim ony.” He also stated that “[W ]e will obj ect t o the pay ment of any attorney fee s.”

During trial, the wife t esti fied as to the amount of fe es incur red and her inabil ity to pay . She was cross -examined on t his i ssue, and based on the conduct of both parties, the Chancellor properly determined that the is sue of attorney’ s fees was a contested issuefor trial. The parti es conduct de monstrates that the waiver

was not inten ded to ap ply to a ttorn ey’s fe es. Accord, Dover v. Dover , 821 S.W.2d 593, 595 (Tenn.App. 1991) . (A Court mayaward att orney ’s fees for the s pouse’s at torneywho acts to p rote ct the par ty’s ec ono mic inter est).

The husband cites our opi nion in Kemp v. Kemp , 1988 WL 116368 at *3 (Tenn.App.) that COBRA coverage “is addi tionalalimony ”.

Th e hu sba nd d id n ot o bjec t wh en th e w ife r equ este d C OB RA cov erag e. The husband test

ifie d that hehad calcul ated the cost of providing COBRA coverage and th e w ife testifie d that sh e w as w illing to g ive up som e of h er equ ity in other a ssets to balance the COBRA coverage. The Chancellor properl y concluded that this issue remained contested. These iss ues are resolved against the husband. The wif e que stions th e pro priety of th e distribu tion of the m arital estate by the Chan cellor.

The Chancellor

properl y determined that the wife’s pr emarit al funds were part of t

he marit al est ate. This jurisdi ction “ is a ‘ dual proper ty ’ jurisdi ction bec aus e its d ivo rce s tatut es d raw a dis tinct ion betw een ma rital a nd s epa rate p rop erty.” Batson v. Batson , 769 S.W.2d 849, 856 (Tenn.App. 1988) . The Chancell or determ ined th at the h om e, includ ing the value of the wif e’s pre -mar ital inves tmen t,
wa s m arita l pro per ty. The Ch anc ellor said that “ [b] y mea ns o f tra nsm utati on, a reb uttal pre sum ptio n ha s aris en th at M rs. M ullin s inte nde d a g ift to the m arita l esta te.” Th e rec ord sup por ts the Ch anc ellor ’s de term inati on t hat tr ans mu tatio n oc cur red
.4

Sev eral c ase s ha ve a ppl ied th e do ctrin e. Batson v. Batson , 769 S.W.2d 849 ( Tenn. Ap p. 198 8); McClellan v. McClellan , 873 S .W.2 d 35 0 (Te nn. A pp. 19 94); Barnhill v. Bar nhill , 826 S.W .2d 4 43 ( Te nn. A pp. 1 991 ).

In th is ca se , t

he pr ope rty was pl ac ed so le ly in th e wi fe ’s na me. An integ ral p art o f the doc trine of tr ans mu tatio n is th e inte nt o f the par ties. See Ba tson . There i s a mpl e ev id enc e t o su ppo rt th e pres umptio n that

th e wi fe i nt end ed t

he h ome to b e a g ift to the m arria ge. T he p artie s w ere c oha bitat ing at the time of p urc has e. Although cohabi tati on may not a lone be suffi cient to invoke t

ransmutation, t

he parti es loo ked for a ho use tog ethe r an d jo intly m ade the d ecis ion to p urc has e the hom e. Moreover, theOctober 1, 1980 realty cont ract l ist s both parties as buy ers, which sugg ests the parties v iewe d the p urch ase as a joint e nterpr ise. Th e partie s app arently believ ed tha t the A ppella nt’s pre viou s ban krup tcy wou ld hind er ob taining finan cing if his name was inc luded as a p urchaser. T hus, the C hancellor co ncluded that the wife’s purp ose in taking sole title to th e hom e w as no t to kee p it as se parate prop erty, but to obtain f inanci ng more easil y. The evidence does not preponder ate agai nst the Chancellor ’s fi nding.

The wife also cl aims that the Chancell or err ed in not di viding t he $3,762.00 c ash value of the husband’ s $50,000. 00 American Income li fe insur ance policy . We can find no basi s in the record to disturb the Chancel lor’ s awarding the life in sura nce to th e hu sba nd. See K incaid v. Kin caid , 912 S.W.2d 140, 142 (Ten n.A pp. 19 95); Loyd v. Loyd , 86 0 S
. W. 2d40 9, 41 1 ( Te nn . Ap p. 19 93 )
. We general ly do not dis turb a t rialcourt’ s divi sion unl ess “the dist ribution lac ks proper evidentiary suppo rt or results from an error of law or a misap plication of statutory requirements and proc edures. ” Thompson v. Thompson , 797 S.W.2d 599, 604 (Te nn.A pp. 1 990 ). N o su ch e rror a ppe ars in the r eco rd.

The judgment of the TrialCourt is affirmed and t he cause re manded,5

w ith th e c os t o f th e a pp ea l as se ss ed on e- ha lf t o e ac h p ar ty.

__________________________ Herschel P. Franks, J.
CONCUR:

___________________________ Charles D. Susano, Jr., J.

___________________________ Hon. W illi am H. Inman , Sr.J.