# FILED April 3, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF AP PEALS OF TENNESSEE AT NASHVILLE

_______________________________________________________ ) BRIAN KEITH FEATHER , ) Franklin County Chancery Court

) No. 13,840 Plaintiff/Appella

nt. ) ) VS. ) C.A. No. 01A01-9704-CH-00183 ) ) DOLLY DEKRAFF

T FEATHER , )

) Defendant/Appellee. ) )

______________________________________________________________________________ From the Chancery Court of Franklin County at Winchester. Honorable Buddy D. Perry, Judge, Sitting by Interchange

Clinton S. Swafford , SWAFFORD, PETERS & PRIEST, Winchester, Tennessee Attorney fo

r Plaintiff/Appell

ant.
Lucinda E. Smith , DODSON, PARKER & BEHM, Nashville, Tennessee Attorney for Plaintiff/Appellee.

OPINION FIL

ED: AFFIRMED AS M

ODIFIED AND REMA

NDED FARMER, J. HIGHERS, J. : (Concurs) TOMLIN, Sr. J. : (Concurs)1 Husband has been designated the

appellant for pur

poses of this appea

l. This somewhat protracted litigation began in August 1993 when Brian Keith Feather (Husband) filed for divorce from Dolly deKrafft Feather (Wife). A divorce decree was entered by the chancery court in September 1994, which, inter alia , dissolved the fifteen year marriage of the parties and determined custody of their four minor children. Separate order s pertaining to th

e case
were en ter ed b y t he trial court in August and October, 1995, respectively. Both par ties appealed therefrom,

but this Court in April 1996, dete rmined that the pa

rties’ respective appeals were from
a nonfinal judgmen

t. Litigation t

hereafter con

tinued due to

the parties’ filings of various petitions for contempt, to

rehear and to modify custody. Af ter additional hearings, the trial court entered its fin al judgment in December 1996 from which both parties have appealed. 1 The primary iss ue s before us concern the trial court’s decisions regarding child custody and classification and

division of the marital estate. For the reasons hereinafter stated, we affirm as modified.

The parties married in Alabama in 1978. Husband thereafter received his Bachelor’s Degree in mechanical engine ering and they moved to Virginia to accommodate Husband’s newfoundemployment. Wife, at the time, was wor kin g on an Ed.D. degree with an emphasis on early childhood develop

ment. The parties

moved toTennessee i n 1986 in order for Husband to accept a better paying position. His current annual ea rnings are approximately $50,000.

Much of the controver

sy in this matter concerns the parties’ four children: Morgan, Rebecca, Daniel and John, ages 13, 11, 9 and 3, respect i vely, at the time of the original divorce hearing. Upon moving to Tennessee, the children were enrolled in the public school system as they became age appropriate. Through various achievement and IQ tests, the three older children have q ualifiedas gifted with a superior IQ range. When Morga n was enrolled in the sixth grade, he regula rly exp erienced migraine headaches resulting in many absences from school. The school system notified the parti

es that Morgan c

ould fail due to his many absences irrespective of the fact that he had the highest GPA in the school. This incident, alongwith the fact that the children were considered

gifted, led the parties to conclude that they should be home schooled. At the time of the hearing, Wife had home schooled the children for approximately one and one-half y

ears. The eldes

t child was also enrolled in a few classes at a local area community c ollege, Motlow.The proof presented at the original h

earing establi

shes that t he parti es disagree as how best to raise their children, in almost all respects: from education, discipline to religion. Husband testified that Wife actively kept him from participating in the home schooling of the children. He claimedthat he “was the only parent who really disciplined the children” and that “[Wife]
. . . regularly stated that children should do whatever they want. They should have complete freedom to explore creative pursuits.” Husband believed Wife’s lack of discipline detrimental to the children. He testified that he a nd his daughter’s relationship was somewhat strained and that she, whom he described as “rebellious,” had always been closer to her mother. He further described instances when Wife refused to allow the children to participate in the court ordered visitation. With respect to religion, Husband described Wife’s “goal” as to provide the children with a “broad

survey of a

ll the world’s religions.” He stated that Wife had attempted to pre vent th e children from attending church with him.

If awarded custody, Husband planned to place the children back in e

ither the public
or private (depending on his resources ) sch ool system. He believed that the home schooling had become “very detrimental” for the children and emphasized their lack of oppor tunity for socializing withother children. On cross-examination, Husband confirmed that the children were participating in soccer and karate classes and also attended a public school program, Excel, once a we ek.

Wife stated that she possessed one levelabove a master’ s degree in early childhood and elementary

education and ha

d completed sever

al course s concerning children’s learning disabilities. She disagreed that the children should return to the public school system, noting that Morgan was already taking college classe s and that placing him back in the eighth grade would be de trimen tal to him psychol ogically. She continued that

Rebecca has att

ention problems, po

ssibly AD D, and needed a different type program than the ty pical classroom setting. She believed the normal classroom environment inappropriate for Dan iel primarily because of his sp

eech impediment. She identified another reason as being that the children a re “all so academically above every body else . . . .”

Wife stated that the children were home schooled four hours per day

for 180 day

s a year. She explained that th ere is no structured time or setting regarding the children’s schooling and2 The parties’ eldest child also testified at this hearing and expressed a preference to reside

with his mother with v

isitation rights a

ccorded his fath

er. He further

indicated a desir

e to eliminate some of the visitation time with his dad “over the summer.”

3 The original divorce hearing was held February 8 and 11 and July 18, 1994. that sometimes she specifically teaches them and that at other times they are “on their own.” Much of the home schooling involves the children “just reading various things.”She described Husband
as “irresponsible” where the children were concerned and expressed concern for the youngest child’s safety while in the care of Husband, unless Morgan was also present. Wife denied disapproving of the children’s attending church, but stated that she had problems with the particu lar Presby terian Church they attend. She believes it important for her children to understand different religions and that one does not “have to follow any specific church’s rules to g et to Heaven.” 2

At a later hearing on t

he matter, 3 testimony wa s presented reg

arding the par

ties’ pers ona lty. Wife stated that there were presently fifteen horses on their farm. She purchased four during the marriage, in part, with money she inherited from her fa ther andten were bred on the farm (one other was a gift). The parties did not dispute that the care of the horses was primarily Wife’s
res pon sib ili ty. Husband testified that the marital residenc e was purchased in 1987 for $120,000. Th e parties made a do

wn payment o

f $40,000, with $16,

000 derived from t

he sale of th

eir prio r homein Virginia and $24,000 from monies Wife inherited fr om her father. Th

e parties also

testified that they had used a portion of Wife’s separate assets to pay marital debt, but disputed the exact
amou nt. Husband testified that the amount loaned to them was $10,000; it was Wife’s tes timon y that it was approximately $19,000 to $20,000.

The divorce decree

declar ed t he p art ies div orce d an d aw arde d th em j oin t cu sto dy, withWife receiving primary phy sical custody. Wife

was awarded child support and rehabilitative ali mon y. She also receiv ed the marital residence, which the court valued at $120,000 and the accompanying

indeb tedn ess of $84,000, leaving an equity of $36,000. However, the court found that
a portion of the down payment on the home ($24,000) was paid from Wife’s separa te pr ope rty, thereby reducing the equity to $12,000, which the court divided equally. The court found that the horses constituted marital property and awarded them to Wife. The court deter mined the equity

in the horses at $36,850, of which $11,000 was awarded to Husband and the remainder to Wife.4 The decr ee al so d eni es t wo p eti tio ns f or co nte mpt fil ed b y Wif e pri or t o it s en try.
5 The trial court’s order was entered August 11, 1995. Husbandreceived his

$10,000 401K plan and a life insurance policy with a cash surrender value of $800. The court order

ed Husband to rep

ay Wife the s

um of $19,000 and fu

rther found that “ [t]his indebtedness

was reduced by the

entire net amount

of the marital pro

perty that would have oth

erwise been awarded to

[Husband] leaving a balance owing by him to [Wife] in the amount of $15,200.00.” Husbandwas also ordere

d to repay c

ertain other mar

ital debt. Finally

, the court divided

the parties’ pers ona lty. 4

After

entry of the

decree, both pa

rties filed petitio

ns to rehear. Wife also filed a petition to m odi fy w ith respect to Husband’s visitation rights and two separate petitions for contempt. A hearing was held in April 1995. Wife testified that she req uested a chan ge in visitation because the children wanted to be with her and that they were freq uently bei ng left alone at Husband’s home while he participated in his own personal activities. Husband explained that he had left the children at hi

s homealone on occasions when he had gone to parties with his Sunday school class or on dates. He consider ed Morgan, age 1 4 at the tim e, capable of properly super vising th e other children. He denied any neglect of the children. He admitted

that he and his daughter Rebecca continued to have “a very diffic ult situ ation.” Bot h Morgan and R ebecca testi fied at the h earing. Rebecca expressed her pre

ference that sh

e have no visitatio

n with her father

. Morgan prefe

rred to spend the time when his father was not going to be at home with his mother.

The court denied the m

otion to reconsi

der , but modified the vi

sitation schedule

to allow less time to Husband by one weekend per month and ordered Husband to returnthe children to Wife during the time of their scheduled visitation if he planned personal act ivities that would exclude them. The court did not address Husba

nd’s alleged c

ontempt and reser

ved, for possible further hearin

g, the issue reg

arding pay

ment of the childre

n’s medical bills. 5

In June, Wife filed a petition to m odify custod

y to allow her to remove the children from Tennessee and relocate to Tucson, Arizona. The petition alleged that Morgan had rec eived an offer for admission to the

University o

f Arizona and that s

uch move was in the

best interests

of allfour

children. The petition requested that Wife be awarded sole custody. Husband responded that there had been no material change in circumstances to justify modification of the decree. He claimed that Wife’s petition was further example of her “vindict iv e actions” towards him. Husband requested that the court grant him more time with the children.

At the hearing, Husband testified that since the last hearing he had begun taking Rebecca to a Christian counselor. He stated that he hadattempted to explain Christian philosophy to his daughter, but denied making such negative comments to her as she was “going to hell.” He stated th at Morgan was doing “poorly” in school and had had to withdra w from two classes a t Motlow State Community College for failin g grades. He preferred that Morgan attend c lasses at Motlow suitable to his educational level rather than home schooling by Wife. He saw no advan tage in having his fourteen year old son attend college on a f ull time basis.

Wife confirmed that the University of Arizona has a program specifically for gifted children. She chose Tucson b ecause it would a

llow Morgan to at

tend college a

nd still b e able to socialize with other children of his ownage. She stated that there w ere no stude nts of Morga n’s age enrolledat

Motlow. She also believed it would benefit Morgan to be near his older sister, Wife’s adult daughter from a previous marriage, who resides there. She did not believe Morg an was traumatized by failing to complete two of the courses at Motlow and that he “has loved” going there where he maintains a B average. She admitted that she and the children had only once visited the Tucson area. She stated that there were also excellent programs for gifted children within

the public school system for her other children. She expressed a desire to place the c hildren b ack in public school but did not believe h er children coul

d receive adeq

uate schooling in

Tennesse

e. As f ar as visitation with their father, she suggested “Christmas and vacations.” She believed the children would “be happier not being with [their father].”

June Patton, a support te

am coordinator w

it h the Franklin County Board of Education responsible

for testing children in the school area, testified tha t she ha d had considerable contact withthe three older Feather children during the last seven or eight y ears. She believed they

could “abs olu tel y” benefit from the county educational sy stem. She stated that not all gifted children should begin school early or be promoted faster. She explained that if a child is intellectually gifted6 Both parties filed notices of appeal from this order. In April 1996, this Court entered an

order dismissing

the parties’ app

eal without prejud

ice inasmuch as th

e divorce decr

ee failed to address Wife’s claim for attorney’s fees and the Aug ust 11, 1995 order did not address the issue of Husband’s alleged contempt and expressly reserved anothe r issue. there are still

many other

factors to consid

er such as social

ization and the spec

ific child’s matur

ity level. She had observed

Morgan exhibit

considerable anxiety on

various occasions, including when he was being tested. She did not believe that it was wise to send Morgan to the Uni versity of Arizonabased upon her own w o rk with him. She explai ned, “Morgan is

a very, ve

ry bright c

hild

. . . But evenif you’re very . . . brig ht, you don’t skip five or six or seven grades. It’s . . . not a g ood thing to do. Soc ial ly it ’s a dis ast er. . . . It ’s a ski ng to o mu ch o f Mo rgan int ell ect ual ly . . . . it’s just too much pressure.”

By order entered October 5, 1995, the trial court denied the petition, finding no material change of circumstances to require modification. In ruling f rom the bench, the trial court noted that the petition ha

d more to do with getting Husband out of his children’s lives and not about the best interests of Morgan. 6

In May 1996, Wife filed a s

econd petition to

modify custody and visitation to allow her to relocate with the children to Arizona. The petition once more set forth the alleged acad

emic benefitsof such a move and additionally asserted that Hus

band’s behavior

toward the childr

en with respect to his views on discipline and religion were having a detrime

ntal impact on them.

Thereafter, Husbandfiled a petition for contempt for Wife’s alleged vi ola tion of the court ordered visitation. Wife responded by admitting that “technically ” she w as in contempt, but cited “extenuating circumstances.” After

a hearing, the trial court entered its judgment addressing those issues which had rendered its prior

rulings nonfinal

and denied Wife’s

petition to modify

. The court,however, modified its pri or o rder to a ward cus tod y of the two younger children to Husband, with visitation to Wife. The court specifical ly found that Wife had “intention

ally, malici

ously, and su

ccessfully alienated the two older child

ren from their

father, and it would be fruitless for the Court to attempt to change custody of [them].” The court additionally found Wife in con tempt for vio lation of its orders regarding visitation and confirmed the property settlement provisions in the divorce decree.
We perceive the i

ssues on appeal a

s follows:7 Although Wife raises the issue of whether she should have been awarded sole custody at the time of the original divorce decree, we are concerned with the trial c ourt’s final judgment onl y. I. Whether the tr ial co urt erred in awarding the appellee $24,000 .00 of the equity

in the marital home

where the home

wa s purchased

after marria

ge, the down-payment was made with funds from appellee’s inhe

ritance and fund

s f rom the sale of a previous marital ho me, the mortgage payments were made f rom appellant’s income and the property was titled in both husband and wife as ten ant s by t he en tir ety. II. Whether the trial court erre d in order ing the appellan t to repay the entire $19,000.00 that appellee withdrew from

her separate account to pay

joint marital oblig

ations and family

expenses. III. Whether the trial c

ourt erred in its

total division of marital assets and marital debts,

in cludi ng the apparent miscalculation that failedto give the appellant credi t for his stated equ

ity in the house of $6,000.00 and equity in the horses of $11,000. 00 since the appellee received the tot

al ownership of th

e house and the hor

ses. IV
. Whe ther the trial court was correct in denying the appellee’s petition to relocate the parties’ four children to Arizona. V. Whether

the trial court was correct in ultimately granting custody of th

e two young

er children to the

appellant.

Wife raises the additional issue of whether she is entitled to

attorney’ s fees incurred

in this appeal. 7

We first address the issue of child custody . The court in Musselman v. Acuff , 826 S.W.2d 920 (Tenn. Ap

p. 1991), states:

The scope of review

in custody ca

ses is de novo upon the record accompanied by

a presumption of c

orrectness, unle

ss th e preponderance

of evidence is otherwise. Hass v. Knigh ton , 676 S.W.2d 554 (Tenn. 1984). The paramount consideration in

a custody proceeding is the best interest of the child. When the issue before the Courtis whether to modify a prior custody order , it need not repeat the comparative fitness analysis that is appropriate at the time of the original cust ody [decre e]. See e..g., Bah v. Bah , 668 S.W.2d 663 (Tenn. App. 19 83). In stead, in a modification proceeding, the trial judge must find a material change in circumstances that is compelling enough to warr an t the dramatic remedy of changed custody
. See , Tenn. Code Ann. § 36-6-1 01(a); Woodard v. Woodard , 783 S.W.2d 188 (Tenn. App. 1989) ; Dailey v. Dailey , 635 S.W.2d 391 (Tenn
. App. 1981). Moreover, the burden is on the non-custodial parent to prove change

d circumstances
.
Musselman , 826 S.W.2d at 922.With res pect to W ife ’s p eti tio n to mod ify, she testified at the hearingthat the changes

that had occurred since the first petition to modify were Husb and’s strict reli gious views and h

is views on the children’s diets, the children’s health, particularly their headac hes, w hi ch she attributed in part to the stress b etween she and Husband, and the fact that the children were no longer in the county Excel programs offered by the public school system. Other changes were identified as her increased awareness of the educational opportunities ava ilable to t he children in Arizona and “[Husband’s] conti nual a buse o f the c hild ren.” In addition, she citedthe “child ren’s refusa l to go for visitation.” She commented, however, that “[a ] lot of it is just

the continuation of what he was doing before.”

The headaches Wife mentioned concern children Morgan a nd Joh n, although she admitted t hat Mor gan had endure d headaches pri

or to the filing of

the divorce petit

ion. She also believes they could be due in p art to allergies and sinus. She admitted that the older children had notvisited with their f

ather since Apr

il, but denied initia

ti n g or prompting such behavior and that the younger two had not visited with him since June. Wife admitted that she had refused to allow the children visitation with the ir father beca use of their headaches and stress. She believed the children should have a rel ationship with the ir father “as long as it’s not causing them serious problems”

but did not believe t

his a possi

bility. She claimed that Husband disapproved of the children’s ve getaria

n di ets and tha t hi s co nfl ict wit h th em o ver s uch had inc reas ed t rem end ous ly. She believed that Morgan had progresse

d academically

to the point that she was no longer qualified to teach him. She expressed concern that Husband’s strict religious beliefs were causing the children stress, including his comments to them that Wife was going to hell if she d id not ac cept Jesus. Fin all y, Wife stated that because of the children’s home s

chool status,the county had denied them eligibility for any of the gifted programs provided by its public school system. If allowed to move to Arizona, she intended to place the children back in public school and ret urn to work. S he continued to home school the children becau se the Franklin Co

unty school syste

m did not meet their needs. By

way of example, she noted that there were 17 advanced plac ement courses offered in the high schools in Tucson as opposedto two in the county. She believed Morgan ready for college on
a full time basis. She described Husband’s relationship with the children as “very bad” and that it had “gotten worse.” On cross-examination, Wife confirmed that Motlow would allow Morg

an to continue his cours

es there if he we

re also enrolled

in the county

school syste

m.Morgan testified that within the past year, his relationship with his dad had “declined” and “become more tense, more confr ontat ional.” He noted that Husband had made “negative references”

to him regarding his diet and that he exhibits hostilities toward his exploration of other religious thinkings. Educationally, Morgan did not believe his father was try ing to do what was best for him and that his remo

val f rom M otlow was indirectly due to his dad’s actions. He ceased visitation with his dad becau se he preferre

d being with his moth

er. As to f uture visitation, he

did not want to discontin

ue it completely

but preferred i

t be on a voluntary

basis on his part.
Rebecca, too, described he r relationship

with her father as “very bad.” She stated that she did not love her father; that he “belittles” her ; and tha t she did not like his stern stance on religionor his disciplinary methods toward her. She stated that her attitude toward her father had not changed in the past year.

Husbandtestified that his religious views had not changed within the preceding year othe r than the fact that he had “experienced steady spiritual grow th.” During their s chedule d visitation, he hadtaken the childre n to church on a regular basis. John and Daniel recently attende d two sessions of

a confirmation class. He believes the children enjoy attending c hurch. He admitted being “harsher” than

he would have like

d in disciplining th

e children, p articularly

the two oldest. As to the children’s diet, he just encourages them to eat healthy and is concerned about whether they receive enough nutrients. His relationship wi th Rebecca conti

nued tobe strained. He is prepared to care for

all four children, but admitted that custody of the two older children would be “very difficult” but he believed it “important.” If the children were allowed to move to Arizona, Husband believedthat he would

lose contact with

them and that Wife w

ould continue to att

empt to alienate themfrom him. Husband stated that on the days he had the children he would plan activities, such
as playing games, watching videos, or eating pizza, or as he described, “[j]ust family fun.” He has consulted physicians regarding John’s he adaches and gives him whatever medications are prescribed. When asked, “[h]ow frequently do you indicate to the children tha t someone, . . . was going to burn in hell . . . ?”, he replied:

I don’t often use those phr ases. My children have often focused on that when they have come back to kind of argumentati

vely talk to me about that. We may be tal king about something, acompletely different issue, and Morgan will say, does that mean that I’m going to burn in hell? And I say

, well, if you

don’t accept Chr

ist, there’s no alternative. But let me tell you the good story.
He agreed that Wife also took the children to his church as well as another local area c hurch.
After hearing

the evidence, th

e trial court made

the following fin

dings:

The p roof did not suppor t the allegation

in the Petitio

n t o Modify . . . t hat there h ad been a material change of circumstances justifying a modification of the Decree with regard to

custody since the Order previously entered on October 5 , 1995, denying such a Petition to Modify

based on similar a

llegations. The proof did not support the allegation of the mother that the father had been hostile to

ward the two older

children. There

is amply proof that Rebecca is hostile toward her father. . . .

. . . . The proof sup ports t he allegations that the religious beliefs of the parents as taught to the children are differ ent. Their differences are having a detrimental impact on the children. The Court finds that the mother is not a cre dible witness. The Courtfurther finds tha

t the mother has wil

lfully and in

tentionally attempted to undermine the f ather’s relati

ons hip with the children, and her conduct has substantially contributed to the deterioration of the father’s relationship with the two older children.

. . . . There is proof

that the Tennesse

e school syst

e m is adequate for these children. The Court finds that the plan to move to Arizonais primarily

designed to unde

rmine the father

’s relationship with the children.

. . . . The mother admits that s he refused to all

ow the father to exercise his visitation privile

ges after June 12

, 1996, as allege

d in his Pet ition for Contempt. She made self-diagnosis that both Morgan an d John had stress

related headaches cau

sed by their

visitation with their father. . . . Proof

by both parties supported the allegation that the father had a very difficult time even talking with the childrenon the phone.

. . . .

. . . . it is the judgment of

the Court that

the mother intends

to deprive th e fat her of contact with the children and that she has deliberately

and intentionally attempted to alienate the children from their father, and the move to Arizona is designed to d e stroy any relationship the father might have with the children.Upon review of the reco rd, we conclude that a preponderance of the evidence

supports the trial court’s

findings on this iss

ue. Most telling, i

s Wife’s testimony

th at a lot of the circumstances on which she bases her position were merely a continuation “of what [Husband] was doi ng before.” We note also, somewhat curiously, this Court’s observation that some of the children’s testimonies regarding their father’s behavior were repetitive and , a t times, almost mim ick ing o f th at o f th eir mot her’ s te sti mon y.

As to the trial court’s decision to modify its prior order to grant custody of the two youngest children to Husband, we find the record supportive. Clearly, both part ies love th eir children but each has dra

stically dif

ferent views as t

o how the children

should be raised,

on almost every aspect of their lives. Unfortunately, the proof establishes that both parties have involved the children, even the youngest t o some extent, in their own acrimonious relationship. (From the record it appears that the 2 older children testified in almost every hear in g on the matter.)

It appears, however, that Wife is most at fault in this regard. We agree with the trial court that Wife has done littleto assist in the children’s relationship with their father and has succeeded in alienating the affections of the two

eldest tow

ard him. We

believe the record

supports a finding

that it is in their best interest to remain in the custody of Wife. As to the two younge st children, the record

does not lend itself to the conclusion that Wife would foster or fac ilitate any healthy relationship between themand their father. Husband presented testimony that he could adequately attend to the nee ds of these children, make a

rrangements

for their travel to and from school a nd provide a comf

ortable, if somewhat modest, living environment. The record does not indicate that the two youngest children willingly chose to cease visitation with their father. Conversely, it reflects that they enjoyed visiting withhim, especially participating in the church activities and that, most importantly, Husband very much wants a relationship with them. Therefore, it is the finding of this Court that their custody was properly awarded to Husband so that they can better come to know, love and r espect bot h their parents.

As to the is sues rega rding property distribution, Husband first asserts that the trial court’s classification of the $24,000, used a s a po rtion of the down payment on the marital home,
as Wife’s separate

property was error. He c

ontends that this

property became marital pursuant to the do ctrine of transmutation. The court in McClellan v. McClellan , 873 S.W.2d 350 (Tenn. App.1993), defines th e doctrine as fol

lows:
[Transmutation] occurs when sep arate property

is t reated i n such a way as to give evidence of an intention that it become marital pro pert y. One method of cau sing transmu

tation is to purchase property with separate funds but to take title in joint tena ncy . This mayalso be done by

placing separ

ate property

in the names of both spouses. The rationale underlying both these

doctrines is that dealing withproperty in these ways cre ates a rebuttable

presumption of a gift to the marital estate. This presumption i s ba sed also upon the provision in many marital statutes that property acquired

during the marriage is presumed marital. The presumption c an be rebutted by evidence of circumstances or communi cati ons clearly indicating an intent that the property remain separate. 2 H. Clark, The Law of Domestic Re la t ions in the United States § 16.2, at 185 (1987).

McClellan , 873 S.W.2d at 351 (quoting Batson v. Batson , 769 S.W.2d 849, 858 (Tenn. App. 1988)). Husbandargues that while he ackno wledgedat trial that the $2 4,000 came from Wif

e’s separate funds, he did not testify “that the parties had agreed eig htyearsago that the down -payment w

ould remain sepa rate.” Husb and’s test imony on this issue refle cts the fol lowing:

A She had the intent she s tated of keeping

that property

separate from me. Q All right. Because it has rel ev ance under the rules we’ve t alked about, I’ll just ask you specifically , did you agree with your wife that that $24,0 00 f

rom her inheritance would be considered a part of h er s epar ate pro pert y? A Yes, I agr

eed to that. Q Did

you have any such ag

reement with regard to the $16,000 or so equity out of the house you sold? A No.

We conclude that the record supports the trial court’s finding that the $24,000 remained Wife’s sep arat e pro pert y.

Husbandnext questions wheth er the trial cour

t erred in ordering him

to repay Wife funds she withdrew from her separate account to pay joint marital

obligations in an amount totaling $19,000. He admittedsuggesting that she use her inheritance as a loan to them to pay off such debtbut testified that the actual amount used from her separate funds was $10,000. Wife, on the other hand, testified that the amount she had contributed from her separate funds was $19,000 to $20,000. She further testified:

THE CO URT: I s it your testi mony that any

time you paid

a bill, family bill, with that money you had an agree ment with your husband that you woul

d be reimbursed f

or that? THE WITNES S: Tha t’s basically what the agree

ment was, that I would handle making th

ese paymen

ts to get our financial

shape back so that we would not b

e paying s

o much interest. THE COURT: So you expected not to use any of y our personal funds for family a

ffairs. THE WITNESS: No, sir.

Wife also presented various checks representing such “loans” and stated that “[o]thers were direct transfers from my account to the joint account and some were overdraft protection ones.” Based on the evidence prese

nted, we cannot sa

y that it preponderates against the trial court’s fin

ding in this regard.

Fin all y, Husband argue s that the trial cou

rt erred in its tota

l division of marita

l assets and debt. He takes issue with the fact that he never received his determined equity in the marital homeor the horses. It is quite clear from review of the re cord that his equity in these assets was considered

in reducing his debt to Wife ($24, 000 separate property regarding purchase of marital homeand $19,000 for payment of other marital obligations). Husband further questions the trial court’s award to Wife of a n additional $15,20

0 and contends tha

t it was an “apparent
m iscalculation. ” We must agree on this point as we are unable to discern from the record why Husbandis indebted to W ife for thi s additional amount. We, therefore, modify the trial court’s judgment to the exte

nt that it obligate

s Husband to repay

these funds.

We further find no merit in Wife’s contentionthat the trial court incorrectly valued the horses or treated the increase in value as marital property . Wife testified tha t she originall y purchased

four horses for $17,750 and had bred ten on the farm. One horse purchased for $1,250 died. Husband testified that the horses had a present value of

$52,000. Husband a

lso testified that,while

Wife was primarily responsible for caring for the horses, he did the majority of fence repair and other genera

l repairs as nee

ded, built an additi

on to th e barn and drove the horses to various shows. The valuation of an asset is a question of fact and the trial court’s valua tion is pr esumed correct on appeal. Smith v. Smith , 912 S.W.2d 155, 157 (Tenn. App. 1995).

We decline to awar

d Wife her attorne

y’s fees in

curred in this app

eal. It resul

ts that the judgme nt o f th e tr ial cou rt i s af fir med , as mod ifi ed, and thi s cau se r ema nde d fo r any f urthe r necessary proceedings. C

osts are assesse

d equally ag

ainst the parties.

____________________________________ FARMER

, J.

______________________________ HIGHERS, J. (Conc

urs)

______________________________ TOMLIN, S

r. J. (Concurs)