### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE February 4, 1 999 Session
PAMELA LYNN LEWIS v. ANDR EW ROBERT FRANCES
Appeal from the Chancery Court for Williamson County No. 23448 Henry Denmark Bell, Chancellor

No. M1998-00946-COA-R3-CV - Filed March 7, 2001

In this divorce case, Husband appeals from the trial court’s decisions classifying , valuing , and dividing the parties’ property incident to their divorce and asserts that he is entitled to an awa rd much greater than t

he $250,000 gra

nted to him by t

he trial court. Wif

e alsoappeals the trial court’s classification and distribution of property, asserting that Husband was not entitled to any portion

of he r sepa rat e pro pert y and tha t th ere w as n o ma rit al p rop ert y. An add iti ona l is sue was rai sed by a pos t-j udgm ent rul ing b y a successor trial judge setting aside the order of the prior judge declaring the parties divorced. We affirm the divorce and reverse the award to Husband.

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

Affirmed in Part, Reversed in Part, and Remanded

P ATRICIA J. C OTTRELL , J., delivered the opinion of the court, in which W ILLI AM C. K OCH , J R ., and W ILLI AM B. C AIN , JJ., joined.
Fred C. Dance,

Nashville, Tenne

ssee, for the app

ellant, Andrew Ro

bert Frances. Sawnie R. Aldredg

e, Nashville, Ten

nessee, for the a

ppellee, Pamela L

ynn Lew is.

OPINION

Andrew Robert Frances (“Husband”) and Pamela Ly nn Lewis ("Wife") were

married on July 25, 1993, and Wife filed a petition for divorce twenty-three monthslater, in June of 199

5. The next three years wer

e spent in discover

y and other

pretrial matters

in this divorce litigation. At the time of the marriage, both worked in the music industry. Wife was a partner in Doy le-Lewis Management Inc., a firm which, at that time , managed one o

f the world's mos

t successful rec

ording artists. Husband operated a management company in California r elated to the recording industry.

When they entered into this short-lived marriage, bo th partie s were mature pe ople with establishedprofessional ca reers in the music

industry. B oth had accumula ted assets, but Wif

e’ s successhad enabled her to accumulate a substantial estate, primarily consisting of real property and-2-

investmentaccounts. As valued in the re cord, the premar

ital value of those

separate asset

s of Wife
was almost fifty times greater than the value of the premarital assets of H usband. During the marriage, both par ties maintained separate checking and investment accounts, filed separate tax ret urn s, a nd n ever hel d an y pro pert y joi ntl y.
Husbandasserts that the value of the marital estate subject

to distribution is $7.1 million, the value at the time of the hearing of Wife’s two major assets, her real proper tyand her investment accounts. Through a series of separate arguments, Husband argues that Wife’s investment accou

nts, in their entirety, as well as the real property, were converted to marital property and, alternatively, that any increase

in the value of Wife’s separate real property was marital property. Husband asserts that he should have been awarde d half of the marital estate, or approximately $3.5 million. He includes none of his separately owned property , or its increase in value, in the marital estate.

Wife insists that there was no marital proper ty and that her separate property remained separate. She also

asserts that Husband did not make a substantial contribution to the preservation
or appreciation of her separately owned property . Therefore, she argues, Husband was not entitled to any aw ard o f pr ope rty. She does not seek any por tion of Hus band’s inco me during th e marriage or the increase in value of his separate property.

The trial court deter

mined that the mari

tal estate was the

increase in

Wife’s net worth from the date of the marr

iage to the date

Wife filed for div

orce, an d calculated that increase to be $1.4 million. The court awarded Husband $250,000 as an equitable distribution of the mar ita l pr ope rty, reasoning that an equal divi si on of the increase in Wife's net worth during the marriage was inappropriate

due to the marriage's short duration, Husband’s lack of need, and Husband’s failure to contribute to the marriage. As a basis for the award, the trial court acknowledged evidence that Husbandwas a goodconversationali st, had been an as set at social gathe rings among Wife' s business associates, and had spent some time and energy on the renovation of Wife’s real property. The parties have focused their evidence and argument on the classification of the property at issue. Regardless of the size of the marital estate, however, the ultimate determination to be made in the distribution of

marital property

is whether

the distribution is equitable. With considerations of equity in mind, and as a background for our examination of the parties’ arguments, we must first review the facts of the parties’ situation.

I.

Prior to her marriage, Wife acquired two tracts of real property. The first, the Music Row properties,

consisted of five parcels, four of which Wife still owned at the time of the divorce. The second was a house and sixty-eight acres, the Harrison House, where the parties lived during their marriage. During the five mon ths between Wife’ s purchase of the se properties an

d the parties’ marriage, substantial renovations were undertaken, al l of which were pa id for by Wife . While Husbandte s tified that he assisted with these renovations, overseeing workers, writing checks (on Wife’s ac counts), etc., mos t of those efforts

took place befor

e the marriage

because the par

tie s wanted to move into the renovated house after the marriage.-3-

At some point, apparent ly prior to the marriage, Husband and Wife formed a " boutique" record label, North/South Records Incorporated, which was funded by a major label, an

d paid Husbandan annual sal ary of $100,000. Husband rec eived a total of $1 50,000 in salary from this
com pan y. The office of North/South was in one of the Music Row properties. Also in that building
was the office of W ife ’s c omp any. Wife testified that she agreed to s

et up North/South in o

rder to give Husband an opportunity for a career in Nashville. She also stated that the funding was available because of her reputation in the industry.

As discussed above,

Wife’s prima

ry business activity was her part ownership of DoyleLewis, which managed

a very suc

cessful enterta

iner. Doyle

-Lewis’s maj or asset was its rig ht to receivemanagement commissions from th at artist, based u pon record sale

s. Doyle-L

ewis lost its management con tract with its most successful client around mid-1994, and the business was dissolved. Litigation ensued, which was settled in Oct ober of 1996, resulting in a substantial paym ent to W ife . Wi fe s tar ted oth er bu sin ess ven tur es r ela ted to t he m usi c in dus try.
North/South

was apparently not a successful venture. Durin g discovery in this divorce litigation, Wife learned

of some activities by Husband related to his operation of North/South which caused her to question his b

usiness practice

s. Shortly af

ter Wif e filed f or divorce, Husband, on behalf of North/South, su

ed t he major record company which had provided the funding f or North/South. Wife testified that she had asked Husband no t to bring such a suit, and had been
unawarethat he hadinitiated the litigation until she was contacted during the discovery

process in that lawsu it. Wif

e maintains that the litigation initiated by Husband had a negative effec t on her position in, and eventual settlement of, the lawsuit resulting from the dissolution of her partnership. The North/South lawsuit

was also eventually settled, but Husband was unable to document how the proceeds received

by North/South (approximately $100,000) were distributed. Wife received none of t hat mon ey.
Husbandmade few monetary contributions to the marriage. In fact, the record showed that the total amount of household expenses paid from Husband's checking account was $1,090. Wife providedevery t hing else. Husband held $97,801 in investment accounts at the beginning of the marriage, and by early 1998, his holdings in those accounts had doubled.

With regard to

Husband’s non-monetary contributions to the marriage, the recor d shows that Husbandmaintained an apa rtment and busines s interests in Calif ornia and spent a

great deal of t

ime there during the marriage. Wife testified that he was seldom in Nashville at

their home during the six months preceding her filing of the petition for divorce. Husband once supervised the installation of a security gate and occasionally cut some weeds at Wife's res id ence. While the record showed that Husband signed s

ome checks from Wife's accounts to cover improvements on her real pro pert y, the bulk of these improvements were done before the marriage. He admitted to smoking marijuana
on the grounds of her residence and at her

Music Row property

where his office

s were located,

in spite of h er re que st t hat he n ot d o so . At one poi nt i n th e ma rri age, Wif e req ues ted the y atten d marriage counseling. After attending three sessions, Husband refuse d to continue.-4-

While Wife admit ted that Hu sband's conversa tional skills had been an asset at social gatherings,

particularly among

their mutual acqu

aintances in the m

usic business, she also testified that Husband's business decisions were detrimental to her interests. During the litigation Wife faced in relation to her business, Husband provided little emotional support. He did not even stay in the
area.
At the time of the marriage, Wife possessed several inves tme nt accounts valued at $3,200,000. The greater p art of the trial a

nd, consequently

, the record bef

ore us were devo

ted to tracing various deposits, p ayments, an

d transfers thro

ugh Wife’s separ

ateaccounts. In 1994, Wife hireda financial manager

who consolidated her investment accounts into three new accounts. There is no real dispute that the purpose of the many exhibits a

nd long testimony

regarding th

e activity in these accounts was to demonstrate that

Wife deposited her

earnings durin

g the marriag

e into these accounts and transferre

d money amon

g them. The value of

Wife’s three investment accounts at the time of the hearing was $4,070,000.

Husbandreturned to Calif ornia before Wife filed

for divorce. The two parties had no further contact, except related to this litigation. Thus, although the divorce trial took place almost five years after the marriage, the parties separated after less than two y ears of marriage.

II. Upon the dissolution of a marriage, co u rts are called upon to divide the assets the parties
acc umulated during the marriage. Such decisions are very fact specific, and many circ umstance s surrounding the property, the parties, and the marriage itself play a role. However, the law provides
somegeneral guidelines to use. The task involves several steps, th e first being to determine whether an asset is subjec

t to division at all.
Tennessee, being a “dual pr operty” sta

te, recognizes t

wo dis tinct clas ses of property: (1) “marital property,” as defined in Tenn. Code Ann. § 36-4-121(b)(1); and (2) “separate

property,” as defined in Tenn. Code. Ann. § 36-4-121(b)(2). Batson v. Batson , 769 S.W.2d 849, 856 (Tenn. Ct. App. 1988). The distinc

tion is important becaus

e, in an action for divo

rce, only ma

rital property

is divided betweenthe parties. Tenn. Code Ann. § 36-4-121(a)( 1); Brock v. Brock , 941 S.W.2d 896, 900 (Tenn. Ct. App. 199 6). Separate property is not part of the marital estate subject to division. Cutsinger v. Cutsinger , 917 S.W.2d 238, 241 (Tenn. Ct. App. 1995). Accordingly, when it comes to dividing a divorcing couple’s property, t he courtsho uld ini tia lly i den tif y the sep arat e pro pert y, if any, belonging to each party

. Anderton v. Anderton , 988 S.W.2d 675, 679 (Tenn. Ct. App. 1998).

As a general stat

ement, separate property is that which was owned by one party before the marriage or given to one party during the marriage. Tenn. Code Ann. § 36-4-121(b)(2). It includes (1) property ow

ned by a spou

se before marr

iage, (2) prop

erty acqu ired in exchange

for property acquired before marriage, (3)income from and appreciation of property owned by a spouse before marriage, and(4) pr operty acq uired by a sp

ouse at any

time by gif

t, bequest, devise

, or descent. Tenn. Cod e An n. § 36- 4-1 21( b)( 2). Pro pert y acqu ire d by o ne p art y d uring the marriage with that-5-

party’sseparate pre marital funds is considered separate property. Tenn. Code Ann. § 36-4- 121(b)(2)(B) (separate property includes “prop erty acquired in exchange for property acquired before the marriage”); Wilson v. Moor e , 929 S.W.2d 367, 374 (Tenn. Ct. App. 1996). Likewise, inc ome received from a party’s

separate asset

s remains separa

te property

, as does any

increase in

value of separate property, unless each party substantially contributed to the preservation and ap preciation of the property during the marriage. Te nn. Code Ann. § 36-4-121(b)(2)(C).

Gen eral ly, property th

at is acquired dur

ing the marriag

e by either

or both spouses and

still ownedby either or

both spouses when th

e divorce is gra

nted is classified as marital property and is, thus, subject to equitable division. Tenn. Code Ann

. § 36-4-121(b)(1 ). As stated above , income from separate property received during the marriage a

nd appreciation i

n value durin g the marriage of separate property is properly classifiedas marital property “if each party substantially contributed to its preservation and appreciation.” Tenn . Code Ann. § 36-4-121(b)(1)(B). Substantial contributions must be real and significant, but they need not be direct. Mahaffey v. Mahaffey, 775 S.W.2d 618, 623 (Tenn. Ct. App. 1989). Contributions are substantial if they enable the spouse who
own edthe property to retain it during the marriage. Id. Depending on the circumstances,

th e contribution of a spouse as home maker, wage e

arner, parent,

or family fi

nancial mana ger may be substantial,as well as other c ontributions t

he court may

determine. Tenn. Code Ann. § 36-4- 121(b)(1)(D).

Conductbetweenthe par ties can affec t the classificat

ion of the propert

y. For examp

le, if either spouse makes a gift

of separate pro

perty to the

marital estate, th

e property is transmuted into marital property. McClellan v. McClellan , 873 S.W.2d 350, 351 (Tenn. Ct. App. 1993); Batson , 769 S.W.2d at 858. A presumption of transmutation arises whena party use s separate funds

to purchase property but places the pro

perty in the

names of both spous

es. Wright-Miller v. Miller , 984 S.W.2d 936, 941 (Tenn. Ct. App. 1998); Barnhill v. Barnhill , 826 S.W.2d 443, 452 (Tenn. Ct. App. 1991). Transfer of title in previously separately owned prope rty to joint ownership also crea tes a presumption of a gift to the marital estate. Kincaid v. Kincaid , 912 S.W.2d 140, 142 (T

enn. Ct. App. 1995). Either of these presumptions can b e rebutte d with “evidence of circumstances or communications cle arl y ind ica tin g an i nte nt t hat the pro pert y re main separate.” McClellan , 873 S.W.2d at 351; Batson , 769 S.W.2d at 858.

Sim ila rly, either spouse can give his or her interest in marital property to the other spouse, making it separate propert y. Mose v. Mose , No. 01A01-9508-CH-00337, 1996 WL 76321 at *7. (Tenn. Ct. App. Feb. 23, 1996) (no Tenn. R. App. P. 11 application filed) (wife deposited her salary into separate savings account during marriag

e, and husband co

nsented to

her treating this account
as her own, effecting a gift to wife). C ourts will look to the intent and actions of the parties. Id .; Wilson v. Moore , 929 S.W.2d at 374 (aspouse cannot place marital property bey ond the reach of

the other spouse simply

by depositing it in a separate account). In such situations, the determination of whether property is

jointly or sep

arately he

ld depends upon the

circumsta

nces. La ngford v. Langford, 421 S.W.2d 632, 634 (Tenn. 1967).-6-

Whether an asset is separ

ate property

or marital proper

ty isa question of fac

t. Cutsinger , 917 S.W.2d at 241; Sherrill v. Sherrill , 831 S.W.2d 293, 295 (Tenn. Ct. App. 1992). Thus, a trial court’s classification decisions are entitled to great weight on appeal. Wilson v. Moor e , 929 S.W.2d at 372. These decisions will be presumed to becorrect unless the evidence preponderates otherwise, Hardinv. Hardin , 689 S.W.2d 152, 154 (Tenn. Ct. App. 1983), or unless they are based on an error of law. Mahaffey , 775 S.W.2d at 622.

The trial court is cha

rged with equita

bly dividin

g, distribu ting, 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 c

ourt is to make an e

quit able di vision of the marital property. The court is to consider seve

ral factors in its

distrib ution, inclu ding the duration of the marriage, the contribution to and dissipation of t he marital estate

, the value of the s

eparate property, a

nd the estate of each party

at the time

of the marriage. Tenn. Code Ann. § 36-4-121(c) (listingthe factors to be considered). The cou rt m ay con sid er an y oth er factors necessary in determining the equities betweenthe parties, Tenn. Code Ann. § 36-4-121(c)(11), except that division of the m

arital 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 ac hieved by

a mechanical application of the statutory factors, but rather by considering and weig hi ng 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 ne

cessarily
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 notrequire that each party receive a shar e of every piece of marital property

. King v. Ki

ng, 986 S.W.2d 216, 219 (Tenn. Ct. App. 1998); Brown v. Brown , 913 S.W.2d 163, 168 (Ten n . Ct. App. 1994).

The trial court’s go al in a divorce ca

se is to divide the ma

rital p ropert y in an essen tially equitable manner

, and equity

in such cases is de

pendent on the fa

cts of each

case. The fairness of
a particular division of property between two divorcing parties is judged upon its final resu lts. Watters v. W

atters , 959 S.W.2d 585, 591 (Tenn. Ct. App. 1997). Again, however, some general principles have been developed. Because dividinga marital estate is a process guided

by consider

ing all relevant factors, including those listed in Tenn. Code Ann. § 36-4-121(c) , in light of the f acts of a particular case, a trial court has a great deal of discretion concerning the manner in which it divides marital property. Smithv. 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 tria

l judge’s decisi

on unless it is inconsistent 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. Moor e , 929 S.W.2d at 372.

III.1 Husband argues that the real propert

y was converted f

rom separat e property

of Wife to ma

rital property

on the basis of

the the ory of “comming ling.” He asserts that marital property, W ife’s salary and Wife’s investment accoun ts, which Husban d claims be came ma rital proper ty due to commin gling, were used t

o pay off the debts

on the real prop erty. Husban d’s argument

must res t, howeve

r, on the related theor

y of transmut

ation. Sinc

e there is absolutely no ev idence that Wife or the couple tr

eated the real

property in a way

which would indi

cate an inte

ntion that

it bec ome marital property, H usband’s ar gument that W ife’s real prop erty is marital pro perty must fail. Batson , 769 S.W. 2d at 858.

2 Husband asserts that the Harrison House had a net e quity of $28,00 0 at the time o f the marriage, a nd the M usic Row properties had a negative net equity since their val

ue was $400,000 and t

he indebt

edness on t

hem was $510,000.
-7- It is undisputed that Wife acquired the real property involved in this appeal, the Music Row properties and the Harrison House, prior to the marriage. Although she borrowed money to finance the acquisition this real property, her accounts contained s ufficie nt funds to have en abled her to purchase the pro perty with out any fina ncing. Wife paid f

or significant r

enovations to both p

roperties,
someof which occurred

before the m arriage and some during it. She paid off the indebtedness on the properties during the marriage. Husband made no financial contributions toward the acquisition or improvement of Wife’s real property.

There is no question that the real property was Wife’s separate property before the marriag e. We think there is no real question tha t th e rea l pr ope rty r ema ins Wif e’s sep arat e pro pert y. 1 Husband claims that the increase in the net equity in the

real pro pert y dur ing t he m arri age i s ma rit al p rop ert y. Ess ent ial ly, he claims the entire current value of the properties as the net increase in equ ity, a nd values this equity at $3,067,000. 2

The statutory de

finitions set out abo

ve provide that inc

ome from and appr

eciation of prope

rty ownedby a spouse b

efore marriag

e is separate pr

operty, unle

ss each party substantially contributed to the preservation and appreciation of the property. Tenn. Code Ann. §§ 36- 4-12 1( b)(2)(C) and (b)(1)(B). "Our cou rts hav e con sis ten tly i nte rpr ete d th e ph ras e 'an y i ncrease in value ' as all inclusive." Cohen , 937 S.W.2d at 832 (citat ions omitted). This means increases in equity are viewed under the statute as increases in value. Id. at 833. The two prerequisites which must be met be fore a non-owne

r spouse may

claim an interest in the increased equity on separate property are clearly set out in the statute. First, the increase in e

quity (i.e., the reduc

tion in debt) must

have occurred during the marriage. Second, the non-owner spouse must have made a substantial contribution to the increase, i.e., reduction.

Id.

Husbandclaims that he made substantial contributions to the preservation and appreciation of Wife’s real property by: attem pting t o h ave a gate installed at the Harrison House, helping interview farm managers, cutting and burning weeds, “actually ” going to the county clerk’s office to get license plates for a farm truck, meeting with and supervising various people involved in the renovations,

and w riting and s igning checks drawn on Wife’s pr

operty acc

ount for various it

ems-8-

related to the pr operties. The testimony indicates that most of Husband’s activities related to the renovations occurred before the marriage. Wife disputes, through her own testimon y and tha t of others, that Husband spent much time or effort related to improvements in her real property or that he ever had any

responsibility

over those improve

ments.
The trial court’s findings on this issue are equivocal. In one part of its order, the trial court observed that Husband’s co

unsel spent “an ino

rdinate amount of time and effort on an unsuccessful attempt to prove that the value of wife’s real estate had increased in value during the course of the marriage due in part

to husband’s contribution.” However, the trial court later found that, “husband spent subs tantial ti me and energy in connection with improvement of wife’s real estate.” The trial court’s comments at the clo se of the hearing do not help to clear up the confusion. The court stated:

As to whether the husband, with respect to the real estate, made a

substantial material contribution, I would say that it – “substantial,” I don’t think has to be very much – andso I think I

probably wo

uldsay he made some contribution, assuming that I find what I don’t think

I’m going to, and I – I

know what the approximate value was, but Iwould say tha

t – that it’s not going to be a real element in this case because i t’ s going to come out in the wash upon the equitable possessions that his contribution was not very

much, not to say

that it wasn’t substa

ntial.

To the extent the trial court’s comments imply

that the substantia

l contribution stand

ard is less than “real and significant,” we disagree. Tenn. Code Ann. § 36 -4-121(b)(1)(

B); Mahaffey , 775 S.W.2d at 623. We are una bl e to find that Husband has demonstrated that he made any real or significant

con tri but ion s, d ire ctl y or i ndi rect ly, to the increase i n net equity i

n Wife’s real prope

rty or that his actions allowed Wife to retain the property, increase its value through improve ment, or increase its equit y through debt

reduction. Accordingly, we find that the increase in equity of Wife’s sep arat e rea l pr ope rty i s al so h er s epar ate pro pert y and not mar ita l pr ope rty.

IV.

Husbandalso maintains that all the money in Wife's investment accounts are marital assets, notwithstanding the fact

that those accoun

ts were set up and

funded prior to the

marriage. Beca

use Wife mad e depo sits into the accounts during the marriage from her income, which he claims as marital property, Hus band contends tha t the "commingling" of

assets transform

ed the separate accounts in their entirety into mari

tal assets. Thus, he

claims the $4,070,0

00 in the accounts

as of the hearing date as marital property. These accounts were valued at $3,200,000 at

the time of the marriage.

A great deal of time at trial, a grea t number of exhibits, and a large portion of Husband’s brief were devoted to demonstrating that Wife moved money among the investment accounts and betweenthe investment accounts and other accounts established solely in her name. The testimony andexhibits related to the deposits to, expenditures from and transfers among Wife’s various accounts is complicated. She had numerous investment accounts, twelve at the time of the marriage andthree after he

r financial mana

ger consolidate

d th em. In addi tion, she had a personal checking3 Husband do es not asser t that he is entitled to so me portio n of any increa se in the value o f Wife’s acc ounts during the marriage,

eliminating the ne cessity of a mo re specific description of deposits and expendi

tures. We note that the inc rease in Wife’s i nvestmen

t account

s during the marri

age was $870, 000.
-9- account, accounts for her real property, and var ious acc ounts for her businesses. Husband demonstratedthat Wife deposited m ost of her income from Doyle-Lewis into one or more of her accounts, checking or inv

estment. 3 The record reflects that Wife transferred money from the various investmentaccounts

to other accounts and eventually spent some of it for business purposes as well as for personal expenses. Commingling occurs when a spouse's separate property is inextricably mingled with marital property or the other spou se's pr operty. Hofer v. Hofer, No. 02A01-9510-CH-00210, 1997 WL 39503 at *3 (Tenn. Ct. App. Feb. 3, 1997) (no Tenn . R. App . P. 11 application filed). "If the separate property continue

s to be segregate

d or can be trac

ed into its product,

commingling does not occur." Id. (quoting 2 H OMER H. C LARK , J R ., L AW OF D OMESTIC R ELATIONS IN THE U NITED S TATES § 16.2 at 185 (2d ed. 1987)); Pope v. Pope , No. 88-58-II, 1988 WL 74615 at *3 (Te nn. Ct. App. July 27, 1988) (no Tenn. R. App. P. 11 application filed).

The doctrine of

commingling, like the related doctrine of transmutation, is based upon the rationale that: dealing with property in the se ways creates a

rebuttable pres

umption of a gift to

the marital estate. This presumption is based also upon the provi s ion in many marital property statute s that p roperty acquired during marriage is presumed marital. The pres umption can be rebutted by evid ence of circums tances or communi

cations clearly indicating an intent that the property remain separate.

2 C LARK , L AW OF D OMESTIC R ELATIONS § 16.2 at 185.

In Barnett

v. Barnett

, No. 01A01-9706-CV-00244, 1998 WL 122717 (Tenn. Ct. App. Mar. 20, 1998) (no Tenn. R. App. P. 11 applicationfiled), this court considered a commingling ar

gument, stating:

A somewhat similar situation was presented in Mose v. Mose , No. 01A01-9508-CH00337, 1996 WL 76321 (T enn. Ct. App. Feb. 23, 1996). In Mose , the Wife deposited her personal earnings into a

separate savings account. The Husband “always agreed” throughout

the marriage that “the income earned by the [w]ife was he rs to use as she desired.” During the divorce litigation, t he Husband attempted to list the Wife’s savings account, valued at $10,000, as a marital asset. This Court stated:

The $10,000 savings account should ordinarily be determined to b e marital property since the Wife acquired th is money during the marriage by saving her payr oll checks while employed outside the-10- home. However, the Husband consented to her treating this account
as her own property. This, in effect, was a gift from

Husband to Wife. Thus, it was never the in tention of either p

arty that thi

s a ccountbe jointly held.

In the case at bar, the uncontroverted evidence indicates that both parties agre e d before and during the ma

rriage to seg

regate their assets. As noted by

the trial court, bo th p arties were savvy business people who had been married twice before. The evidence supports the trial court’s finding that the parties’ bank accounts, investment accounts, and retirement accounts were all f unded by each of the parties’ own separate earnings and by their expr ess a greement. Therefore, the parties in effect granted gifts to each other. Consequently, the trial court did not err in declaring the

se acco unt s to be s epar ate pro pert y.
Barnett, 1998 WL 122717 at *3-4 (citations omitted). Throughout

their marriage, the parties herein deposited their separate earn

ings into separate accounts, none of which was jointly held. Th is conduct indicates an inten t by each spouse to disclaim any interest in money earned by the other, or, an intent to gift the earning spouse with the other spouse’s int

erest in income wh

ich would otherwise be marital. Husband d id not have acce

ss to Wife’s account

s. Wif e did n ot make any claim on Husband’s earnings during the marriage or expect Husband to contrib

ute to her lifestyle. Husband appears to have shared the expectation that his earnings would remain his separate property to spend as he pl eased. The part ies treated their separate property and

their income, whether from separately held investments or from employment efforts, as if there were an express agree ment that they would

hold that property

and income separately.

There is no evidence in this r ecord that the pa

rties ever intend

ed, or acted con

sistently with any intent, to give their premari ta l separate property to the marital estate. Husband does not even argue that such was the case. Instead, he contends that by the mere act of d epositing her inco

me into her separately

held, previously-existing accounts, Wife made a gift to the marital estate of the total amount of mo ney in her accounts. We decline to assign such intent to Wife in the face of her statements

to the contrary and the overwhelming evidence of mutual conduct indicating the opposite intent. Accordingly, we find that Wife’s investment accounts remained her separate property.

V.

We have concluded that a ll of Wife’s asse

ts indispute before us were her separate property. Thus, they were not subj ect to dist ribution. Non etheless, even if Husband were suc

cessful in his argument s that all Wife’s assets were marital property, or even if the trial court were corre ct i n holding that the increas

e inthe value of

Wife’s real pro

perty was marita

l property, Husba

nd would not necessarily b

e entitled to any sp

ecific portion, o

r any portion at al

l.-11-

In equitably distributing marital property, courts are guide d by a number of factors, including the duration of the marriage, the estate of eac h pa rty at the time of the marriage, and the contributions of each spouse to the acquisition, preservat ion, appr eciation or dissipation of the marital or s epar ate pro pert y. Tenn. Code Ann. § 36-4-121(c) . The court is specifically authorized to weigh “such other factorsas are necessary to consider the equities between the parties.” Tenn. Code Ann. § 36-4-121(c) (11).

The facts of this case

place it squarel

y within the principles established in Batson v

. Batson , that in marriage

s of short duration

, "it is appropria

te to divide the property

in a way tha

t, as nearly
as possible, places the parties in the same position they would have been in had the marriage never taken place." Batson , 769 S.W.2d at 859 (citations omitted). In such marriages, an important factor to consider is

eachspouse's contribution to the accumulation of assets during the marriage. Id . The significance

and value of a spouse's non-monetary contributions diminishes when the duration of a marriage is short and "cla ims by one spou

se to another spouse's separate property are minimal at best." Id. These

principles have been applied in a number of cases since Batson

. See, e.g., Barnhi ll , 826 S.W.2d at 449 (especially in marriages of short duration, an eq uitable division of marital property neednot be an equal one ); Derryberry v. Derryberry, No. 03A01-9801-CV-00023, 1999 WL 486863 at *3 (Tenn. Ct. App. July 13, 199 9) (no Tenn. R. App . P. 11 appli cation filed) (in a divorce ending an almost seven year marriage of mature parties, it was equitable that both part ies left the mar riage wit h assets reasona

bly comparable to

those with which the

y entered it); Terry v. Terry , No. E2000-00825-COA-R3-CV, 2000 WL 1349264 at *4 (Tenn. Ct. App. Sept. 20, 2000) (no Tenn. R. App. P. 11 application filed) (at the end of a short term marriage, husband was not entitled to share of increase in value of wife’s separat

e accounts, whe

re wife’s prema

rital assets

were greater, andhusband did not cont

ribute to the appreciation in value); Stafford v. Stafford , No. 01A01-9804- CV-00174, 1999 WL 79368 a t *3 (Tenn. Ct. App. Feb. 19, 1999) (no Tenn. R. App. P. 11 application filed) (after a seven year marr

iage in which wife

brought s ubst antial assets into the marriage, but husband did not, a division which placed the parties in the same position as they wou

ld have been if the marriage had not taken place was equitable).

The evidence presented, including the marriage 's sh ort duration and H usband's failure

to contribute

to it, convinces us that no matter the size of the marital estate

, if one existed, th

e property neednot be divided equally and that the par ties shoul d, in large measure, be restored to their premarriage financial condition. Batson , 769 S.W.2d at 859. Even without an award of a share of any marital property, Husband’s separate asset s increased in

value during the ma

rriage by appro

ximately $100,000. Although he earned an annual salary of $100,000 during the marriage, he contributed only approximately $1,000 to the couple’s expenses. Nothing in the record demonstrates that Husband made a contribution to the marriage close to the amount awarded

him in the division of marital property. The couple’s living expenses were paid for almost exclusi

v ely by Wif

e; Husband mainta

ined his separate

assets and intere

sts in his business andap artment in Califor nia; Husband made

little effort to pr

eserve the marr

iage or to provide emotional support to Wife; and his actions were detrimenta l to Wife’s business interests. In lightof what the record shows Husband contributed, financially and otherwise, to the marriage and what he directly and

indirectly took from the marriage, including his salary at North/South, a portion-12-

of his living expenses , and a substantial i ncrease in his assets, we find that an equal distribution of any marital property would be inequitable. Husband brought much less th

an Wife into

this marriage of short duration, and contributed much less to the marriagethan Wife. To gra nt him the windfall he seeks would be ine

quitable. To affi

rm the trial court

’s award to him of $

250,000 would also,

in our opinion, be inequitable. While the increase in Husband’s separately owned accounts has not been claimed by Wife
as marital property, we recognize i ts award to

Husba nd in examining the parties’ post-marriage financial situation. Re sto ring the parties to their pre-marr

iage financial c

ondition is best accomplishedby awarding Wife all the property disputed as marital and awarding Husband only his separate property. Accordingly, the trial court’s award to Husband of $250,000 as his equitable share of marital property is reversed.

VI.

Wife contends that the trial court erred in refusing to admit a prenuptial agreement which she hadnot signed into evidence. T he record shows that Wife intende d to introduce the d

ocument to show the parties' inten

t to keep their property separate during the marriage. The trial court excluded the document on t he gro und that it constituted negotiations toward a settlement. In addition, Husbandobjected on the grounds that the copy offered di

d not include signat

ures of both

parties and includednotations the effect of which was not clear. Wife was apparently unable to authenticate the document and did not make an offer of proof.

Trial judges have broad discretion over the admissibility of evidence. Otis v. Cambridge Mut. Fire Ins. Co. , 850 S.W.2d 439, 442 (Tenn. 1992). T he doc ument's absence from the record precludes a close review of its relevance. Tenn. R. App. P. 13(c). Further, in her brief, Wife fails to specify how

the exclusion of this n

onbinding docume

nt harmed her ca

se. The error, i

f any, is an inappropriate

ground for reversal absent a sh owing that the issue was properly preserved and exclusion of

the evidenceharmed Wife. Tenn. R. App. P. 36(a) ; Scott v. Jones Bros. Constr., Inc., 960 S.W.2d 589, 594 (Tenn. Ct. App. 1997).

VII.

The issues raised by the parties in this case were supplemented by

an issue create

d by postjudgment ruling s of a s econd, or successor, judge who sua sponte determined that the original court’s gran t of div orce was voi d. S ome pro cedu ral back grou nd i s ne cess ary t o a n understanding of the issues raised. In Wife’s original petition for divorce, she alleged as gr ounds irreconcil

able differences and inappropriate marital conduct. Husband counter-claimed, seeking a divorce on the
samegrounds. Si nce the part ies were unab le to agr ee on distribution of property and execute a marital dissolution agre

ement, the irrec

oncilable diffe

rences allega

tions became irre

le v ant. Tenn. Code Ann. § 36-4-103(b).

At trial, the court permitted the parties to stipulate that they both would be granted a divorce withoutregard to fault pursuant to Tenn. Code Ann. § 36-4-129. The court specifically stated, “I4 The August 3 order dist ributing t

he parties’ property began wit h a statement

that a decree of absolut

e divorce had been previ

ously i ssued.
-13- think you can stipu

late that the divor

ce will be gran

ted to both parti

e s, period, under that statute.” The trial court issuedan order granting the divorce on June 5, 1998, prior to its order distributing the pro pert y. That order stated that the parties had announced in open court that they "stipulated to the needfor the divorce" pursuant to Tenn. Code Ann. § 36-4-129. Based on this stipulation, the trial court granted the

divorce to both pa

rties "without a fin

ding of fault."

Two months later, the original trial court entered its final order di st ributing the partie s’ property. 4 A few days later Husband filed a Notice of Appeal. After an unsuccessful motion to alter
or amend, Wife also appealed the distribution of property. Neither party appealed t he grant of divorce.

As a result of the retirement of the original trial judge, a new judge began presiding over the
case. When Husbandinitiated garnishment proceedings in an effort to enforce the judgment, Wife moved for

a stay of execution or enforcement of the judgment pending appeal, pursuant to Tenn. R. Civ. P. 62. The successor judge heard argument “to clarify the effect of the garnishment,” and in
an order entered later, sua sponte set aside the order g

ranting divorce a

s void ab initioon its face. The court found that "at no time did the parties stipulate grounds for divorce or stipulate that either party committed fault in the marriage." It concluded that the only stipulation that had been made
was a stip ul ation as to the need for a divorce. The court reasoned that Tennessee law require d a finding of fault in all non-irreconcilable differences divorce cases and that the failure to find fault rendered ineffective the divorce granted earlier. Based on that finding, the judge determined that the order dividing the property was not final because

it adjudicated fe

wer than all

the parties' cla

ims, in
essence ruling that the judgment then on appeal was not appealable. The judge then quashed the garnishment,

ordered the court

c lerk to file a supplemental record including his order, and in that order requested that

this court conside

r the order as a p

ost-judgment fac

t in determining whether the case should be remanded.

In denying the parties’ joint motion toalter or amend its order, the trial court reaffirmed and further explained its prior ruling, found that it ha d jurisdiction to enter its order setting aside the divorce, and again requested that this court consider the order as a post-judgment fact or otherwis

e in its consideration of the appeal. Another supplemental record was filed.

Bot h parti es contend that the new judge lacked jurisdiction to make a sua sponte determination of the validity of a final order that was the subject of an active appeal. We agree

. Generally, our courts abjure the notion that a ca

se ma y be pending in more than one court at the same time. Spence v. Allstate Ins. Co. , 883 S.W.2d 586, 596 (Tenn. 199 4). In fa ct, our Supreme Courtspecifically “decline[d] to adopt a rule that would allow a case to be pending in more than one court at a time.” Id. Thus, once a notice of appeal is filed

, jurisdiction lies in

the appellate court, andthe trial court loses jurisdiction. Id.; State v. Pendergr ass , 937 S.W.2d 834, 837 (Tenn.5 We are unper suaded by

the t rial court ’s re

lian ce on Tenn.

R. Civ. P. 54. 02 and Fox v. Fox , 657 S.W.2d 747 (Tenn. 1 983), as giv ing it authority to revise t he June 5 order at

any time. Apparen

tly, t he trial court deems the June 5 order to be interlocutory, si nce the original trial

court did not stat

e that it was final

pursuant

to Tenn. R. Civ. P. 54. 02. However, the requirem ents of that rule d eal with the app ealability of an order which does

not dispos e of al

l the clai ms involvedin a lawsuit. The June 5 ord er, granting the d ivorce, was n ot appea led. The A ugust 3 ord er, distributing th e property, was a final judgment which, togethe r with t he June 5 order

, dispose d of all iss ues in the cas

e. That order was appealed, but nei

ther p arty

appeale d the gr ant of divorc e. As set out above, once a judgment is appealed, the trial court loses ju risdic tion to amend, revise , or otherwise modify that judgment. Even if the June 5 order was interlocutory, the entire case was resolv

ed by the August 3 or

der. Rule 54.02 cannot be r ead to give a tr

ial court au

thority t o revise an order after t he judgment

becomes fi

nal or i s appealed.

6 Thirty days afte

r its entry, a t

rial cour t’s judgment

becomes final

unless a t

imely notic

e of appeal or

a specified post-trial

motion is f

iled. Pende rgrass, 937 S.W.2d at 837 ; Tenn. R. App. P. 4(b) (s pecifying c

ertain pos

t-tri al motions trial courts may consider). Aft er the judgm ent beco mes fina l, Tenn. R . Civ. P. 60 govern s the trial cour t’s authority to grant relief fr om a ju dgme nt. No R ule 60 m otion w as filed here in, and the trial court w ould have had no jurisdiction to consider such a m otion bec ause the ca se was on appeal. Star Truck & Trailer, Inc. v. J im Hawk Truck Trailers, Inc ., No. 02A01-611-CV-00267, 1997 WL 401954 at *10 (Tenn. Ct. App. Jul y 17, 1997) (no Tenn. R. App. P. 11 appli cation filed).
-14- 1996); State v. Moore , 814 S.W.2d 381, 382 (Tenn. Crim. App. 1991). Her e, the trial co urt's jurisdiction to amend the final order ended when the notice of appeal was filed. “Once the trial court loses jurisdiction, it

generally has no power to amend its judgment.” 5 Pendergrass , 937 S.W.2d at 837. In Spence , this general rul e was applied to a trial court’s jurisdiction to hea r even a Tenn. R. Civ. P. 6 0 motion, and the Court held, “a trial court has no jurisdiction to consider a Rule 60.0 2 motion during the pendency of an appeal.” Spence , 883 S.W.2d at 596. 6 Bec ause the trial court lacked jurisdicti

on, its December

18 order is void an

d lacks legal eff

ect.
This court, however, has jurisdiction to consider issues c

reated by the re

cord in this appea

l. Although the issue of the validity of the original trial court’s grant of divorce was not raised by the parties herein, we think

it prudent nonetheless to address that issue in the interest of finality between these litigants. Notwithstanding the successor judge's co n clusion to the contrary, the original trial court's failure to assign f

ault between the

parties did not dep

rive it of subject matter jurisdiction and
re nder the divorce decree void ab initio . Our Supreme Cour t recently addre

ssed the applicabl e standard for determining when judgments are void ab initio , holding:
[W]here the court has general jurisdiction of the subject matter and jurisdiction over the parties, and where the court's decree of divorce is no t "wh olly outside of the pleadings," a divorce decree will not be deemed void. It follows that absent such a prima facie void decree, a flaw in procedure will not render a decree void. Gentry v. Gentry , 924 S.W.2d 678, 681 (Tenn. 1996). Rel ying on a "most respe

cted auth ority on chancery procedure," the Court observed that all chancery court "decrees are presumed to be valid." Id. at 680 (quoting W ILLIAM H. I NMAN , G IBSON ' S S UITS IN C HANCERY § 228 at 220 (7th ed. 1988)). The Court further

stated:7 Coupled with the origin al tri al court ’s st

atement t hat the parties stipul ated to t he need for

divorce, the succ essor judge was apparen

tly con vinced t hat no fa ult was proved or appropr

iatel y sti pulated.We have the benefit of the record in this cause

and, as set

out above, are sat

isfied that sufficient evide nce was ad mitted to sup port a finding of inappro priate marital cond uct.
-15- [T]his presumption is conclusive against collateral a ttack, unless it af firmatively appears on the face of

the record itself: (1) that the Court had no general jurisdiction of the subject matter of the litigation; or (2) that the decree itsel f is who lly outside of the pleadin

gs, an d no binding consent thereto is shown in the record; or (3) that the Court had no jurisdic

tion of the party

complaining, in

person or by representation of interest; in which case it is void only as to such party or his privies. . . . A decree not prima facie

void is valid

and bindi ng, until it is either (1) reversed by the Supreme Court, or by the Cour

t of Appeals; or (2

) is set aside on a

complaint filed to impeach it.

Id.
Here, the original trial court clearly had jurisdiction over the subject matter of this action, a suit for divorce. The

parties do not cont

est the trial court's jurisdiction over their persons. See Dixie Sav. Stores, Inc. v. Turner , 767 S.W.2d 408, 410 (Te nn. Ct. App. 1988) (objections to personal jurisdiction are waivable). Both appeared in person and by pleadings. Nor was the decr ee wholly outside the pleadings. On the contrary, it was the primary relief sought, and was agreed to by both parties. The order declaring the parties divorced was sign ed by counsel for both parties. Bec

ause personal and subject matter jurisdiction were extant and the decree of divorce

was not wholly outside the pleadings, the

decree was not prima facie void.

In Gentry , the Supreme Court held that absent a prima facie void decree, "a flaw in procedure will not render a dec

ree void." Gentry, 924 S.W.2d at 681. The divo rc e decree under attack in Gentry was entered after a hearing held fewer than the statutorily mandated ninety (90) days after the filing of the complaint. Tenn. Code Ann. § 36-4-103(c). The Court charac terized the fail

ure to satisf y the waiting period as a mere procedural flaw which had no effect on the decre e's validity. Gentry, 924 S.W.2d at 681.

We are of the opinion that any error which may appear in the p hrasing used in the order declaring the parties divor ced is, at most, a me

re procedural f

law. The succes s or trial court’s objection to the order arises from the original trial judg e’s use of the phrase “without a finding of fault.” 7 Unlike the successor judge, however, we do not construe that phrase

as indicating that no fault had been proved, by evidence at trialor by stipulation of the parties. Rathe

r, we construe it t

o mean that the orig

inal trial court di

d not assess fault o

r apportion it betw

een the parties.
Tenn. Code Ann. § 36

-4-129 provides:
(a) In all actions for divorce from the bonds of matrimony or l egal s eparation, the parties may stipula

te as to grounds an

d/or defenses.-16-

(b) The court may, upon stipulation to or proof of any ground for divorce pursuant to § 36-4-101, grant a divorce t o the party who wa

s less at fault,

or if either or bo

th parties are entitled to a

divorce, declare the parties to be divorced, rather than awarding a divorce to either party alone.

In Varley v. Varley, 934 S.W.2d 659, 665 (Tenn. Ct. App. 1996), this court held that Tenn. Code Ann. § 36-4-129(b) permitted the trial court to grant a divorce to the party who was less at fault or, if either or both par

ties are entitled

to be divorced, declare the parties to be divorced, rather than awarding a divorce to either party alone. It found that "[a]lthough the statute allows for the awarding of the divorce to

the party 'less at

fault,' there is c

ertainly no requirement of a written finding by the trial court that both parties were at fau lt or wh ich party was less at fault." Varley , 934 S.W.2d at 665.

In this case, the tria l court heard evi

dence sufficie

nt to prove that Hus

band had been gui

lty of inappropriate

marital conduct. Due to the stipulation, the trial primarily focused on the division of marital property. However, evidence of the cause of the p

arties' marital difficulties was admitted at the hearing where relevant to issues of each party’s contribution to the marriag e. Wife testified that Husband's prolonged absences and marijuana addiction damaged the mar riage. She c laimed that Husbandsmok ed so much m arijuana that it a ffected his memor

y and damag

ed his ability

to communicate. Without reciting all the shortcomings testified to, weobserve that Wife also testified that Husbandrefused to f ully particip ate in marri age counseling, and that his conduct damaged her business rel ati ons hip s. T hus , pr ior to i ts e ntr y o f the order gr anting the divorce, the original trial court had heard

evidence suffic

ient to support a fin

ding of inapprop

riate marital co

nduct.

In addition, at the time of the hearing, the parties had no minor children and had lived apart for more than two years, providing grounds under Tenn. Code Ann. § 36-4- 101(15), which does not require a deter

mination of which pa

rty was at f

ault.

The statute clearly a

llows a court to

simply declare the parties divorced rather than award the divorce to one party

and removes any requirement that the court det

ermine and assign

relative fault. While the statute makes sucha

declaration dependent upon the entitlement of either or both parties to a divorce, it

allows that entitlement to be demonstrated thr ough proof or stipu

lation. Here, bot

h parties alleged fault gr

ounds, inappropri

ate marital condu

ct, and we would

be reluctant to determine that the words used by the parties to express their stipulation that such grounds existed were not legally sufficient since neither party has contested the declaration of divorce and

the statute provides
no further guidance. Mackie v. Mack ie , No. 01A01-9810-CV-00536, 1999 WL 675134 at *2 (Tenn. Ct. App. Sept. 1, 1999) (no Tenn. R. App. P. 11 application filed) (wife unsuccessfully argued the stipulation did not “rise to the level of dignity envisioned by the statute” ). In any event, the trial court heard enough evidence to determine that the parties had grounds for divorce.

VIII.-17-

To summarize, we reverse the trial court's ord er setting aside th e divorce decr

ee and its finding that all the issues were not adj udicated in this case. We reverse the award to Husband of $250,000 as his share of marital property, because the evidence preponderates against the trial court’s findin g that there was a marital esta te of $1.7 million, a

nd find that Husban

d failed to demonstrate

Wife’s assets or

their increase

in value were ma

rital property. I

n addition, we find

it would be inequitable to award Husband any share of a marital estate even if the increase in the value of Wife’s propert

y valu e was determined to be marital property. This case is remanded for any further proceedings nec

essary and consi

stent with this o

p inion. The costs of this appeal shall be taxed against Husband, for which execution may issue if necessary.

____________________________________ PATRICIA J. COTTRELL, JUDGE