### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE July 8, 2003 Session JAMES J. TATE, S R. v. GLENDABINGHAM TATE

Direct Appeal from the Chancery Court for Robertson County

No. 16148 Carol A. Catalano, Chancellor

No. M2002-01749-COA-R3-CV - Filed August 25, 2003
This appe al conce

rns the pr opriety of the trial court’s property division between divorcing parties. As part of its division of the marital property , the trial court ordered that

Husband transfer a home, which was his separate property , to Wife. The trial court also awarde d Wife $4,500.00 as her interest in a Mercedes automobile which the parties p

urchased for $15, 000.00. We affirm in part, reverse in part, and remand. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed in part; Reversed in part & Remanded
D AV ID R. F ARMER , J., delivered the opinion of the court, in which A LAN E. H IGHERS , J. and D ON R. A SH , S P
. J., joined. Christine Brasher, Springfield, Tennessee , for the appellant, Glenda Bingham Ta te. Grayson Smith Cannon, Goodlettsville, Tennessee, f or the appellee, James J. Tate, Sr. OPINION The parties married January 3, 1998, and separated in May of 2001. The matter was tried on April25, 2002, and the divorce decree was filed on June 19, 2002. Wife was g ranted a divorce based on Husband’s inappropriate marital conduct. Prior to the marriage Husband ow ned one parcel of real property referred to as the Valleywood

(“Valle yw ood”) re si den ce. Wife owned two parcels of real prope rty, the McClellan resid enc e (“McClellan”) a nd the Ar

rowwood (“Arro wwood”) residence. The parties j ointly purchased

the Guthrie (“Guthrie Court”) residence a fter their marriage. The tria l cour t’s divis ion of these properties forms part of the basis for this appea l.-2-

Mrs. Tate testifiedthat it wa s the inten t of the pa rties tha t they would sha

re equa lly in the cost of Guthrie Court. I n order t o accomp lish this, th

e partie s conceived a pla

n to sell the

ir respecti v e separa te property a

nd contribute the proceeds of the sales to the purchase of Guthrie Court. I n accordance

withthe plan, Mrs. Tate sold Arrowwood and invested the procee ds in Guthr

ie Court. Following the sale of Arrowwood by Mrs. Tate, the parties agreed to “swap” these properties betweenthemselve s wit

h Mr. Tate convey

ing Valleywood to Mrs. Tate and Mrs. Tate convey ing McClellan to Mr. Tat

e. Mrs. Ta

te argues that th

is “swap” resulted in Vall eywood becoming her separat e propert

y and McC lellan becoming Husband’s separate pr operty. Mrs. Tate

cites Tenn. Code Ann. § 36-4-121(b)(2)(B) in support of her c ontention , claiming that the p ropertie s in question were “[p]roper ty acquired in exchange for proper ty acquired be

fore the marriage[.]” Id . Husband argues that this is not th e c as e, an d t ha t t he re su lt of th es e t ra ns ac ti on s w as a t ra ns mu ta ti on of th e p ro pe rt y. The trial court found the Valley wood and McClellan properties to be separate property , and Guthrie Court to be marital property. This classifi cation notwithstanding, the court or dered Mr . Tate to transfe r the McCl ellan pr

operty to Mrs. Ta

te, leaving her

with both th

e McClell an and Va

lle y wood propert ies. Mr. Tate was awarded Guthrie Court. Mrs. Tate asserts that the trial court, having found the Valley

wood and M cCle ll an prope rties to be

separa te prope rty , erred in conside

ring the se properties in its division of the marital property.
Mrs. Tate also takes issue with the trial court’s divi sion of a Mer cedes automobile, which bothparties a

cknowle dge asa marita

l asset. Mrs. Tate

claims that the parties stipulated the value of the automobile to be $15,000.00. The trial court apparently valued the car at

$9,000 and awarded wife one-half of this a

mount. Mrs. Tate

argue s that, onc e partie s stipulate to the value of a marital as se t, th e t ri al co ur t m ay n ot ar ri ve at a d if fe re nt va lu at io n w he n d iv id in g t he pr op er ty. Issues Appellant presents the following issues for review:
1. Wh et he r t he tr ia l c ou rt er re d i n i ts di vi si on of th e m ar it al es ta te by:
A. Including

the parties’ separa

te properties in the division of the ma ri ta l p ro pe rt y. B. Failing to consider the parties’ premarital status in a ma rriage of short duration.
C. Leaving

wife in a worse financial po sition than be fore the marri age while husband, who was at fault in the divorce was unjustly enriched.1 Bo th part ies , at vari ous s tage s of

the proceedings, stated that $15,000.00 was the purchase pr ice of the veh icle

. Hu sban d later r ecalled a pur chase price of $8 ,000 .00. Husba nd’ s tri al memor andu m, as amend ed, states the purcha se pric e as $15, 000.00. -3-

D. Failing to allow wife to admit evidence of the value of th e parties’ asse

ts pri or to [ the] m arri age in o rder fo r wife to de monstrate

that her separate real estate ha d increa sed i n value due to her efforts alone.
2. Whether

the trial court erred in placing a va lue on the Mercedes vehicle that was different than the value to which the parties ha d agreed. Standard of Review Our review o f a trial

court’sfinding s of fac t is de nov o upon the re cord of t he trial c ourt. Such review i s accomp anied by a presum ption of c orrect

ness of the tria

l court’sfinding s of fac t, unless the evidencepreponderates against such finding s. Tenn. R. App. P. 13(d); Brooks v. Brooks , 992 S.W.2d 403, 404 (Tenn. 1999). However, “[w]hile this court is bound by the findings . . . on questions of

fact whe never th ere is material evidence to support them, it is not bound by [the trial court’s ] determination as to the legal effect of those facts, no r is it bound by [the trial c ourt’s] determination of a mixed question of law and fa ct.” Watson v. United States Fire Ins. Co. , 577 S .W.2d 668, 669 (Tenn. 1979). Questions of law are reviewed de novo , with no pr esumption o f correctness. Nelson v. Wal-Mart Stores, Inc. , 8 S.W.3d 625, 628 (Tenn. 1999).
Mercedes
It is well settled that the determination of the val ue of a ma rita l asset is a

question o f fact. Kinardv. Kinard , 986 S.W.2d 220, 231 (Tenn. Ct. App. 1998). Accordingly , “a trial court’s decision withregard to the value

of a marital asset will be given great we ight on appeal.” Wallace v. Wallace , 733 S.W.2d 102, 107 (Tenn. Ct. App. 1987) ; Tenn. Rule App. P. 13(d). The trial court awarded Appellant $4,500.00 for her inter est in the Mercedes. App el lant claims the parties agreed that the value of the Mercedes was $15,000.00. Appellant arg ues that the award, therefore, should hav e been $ 7,500.00, or one-h alf of thi s stipulated value. A ppellant posits that once parties stipulate to the value of a marital asset 1 that the trial court may not arrive at a different valuation for purposes of property division.
We note initia

lly t hat “an equitable

propert y division is not neces sarily an equal one. It is not achieved by a mechanical application of the statutory f actors, but rather by

considering and weighing the most relevant factors in light of the unique facts of the c ase.” Batson , 769 S.W.2d 84 9, 859 (Tenn. Ct. App. 1988).2 W hile the McC lellan and Valleywood properties are separate properties we are still require d to c onsid er their

resp ective val ues i n fa shi onin g an equ it able divi sion of t he ent ire mari tal est ate. Tenn. Code Ann. § 36-4- 121(c)(6)(Supp . 2001). -4- The trial court, in delivering its findings of fact from the bench, determined that the parties paid $9,000 for the vehicle. The record, howeve r, does not support this finding. The record contains assertions by both parties that the purchase price of the auto was $15,000.00. Mr. Ta te testified that his wife informed him that, after his offer to buy the car for $4 ,500.00 was rejected, she had purchased

the vehicle for $8,000.00. The record is devo id of evid ence to support the $9,000.00 figurerelied o n by

the trial court asits basis f

or awar ding Mrs

. Tate $4,500.00. The evidence, which in this case

consists so lely

of the pa

rtie s’ testimony as to the val ue of the propert y, s upports a valuation of $15,000.00.
While Mrs. Tate

appare ntly believes that this valuation should invariably re sult in an award of $7,500.00 to her, we reiterate that the court’stask is to divide ma rital pro perty in an equi

table fashion and that “an equitable property division is not necessarily an equa l one.” Batson , 769 S.W.2d 849, 859 (Tenn. Ct. App. 1988). Accordingly , in light of Mr. Tate’s un-rebutted testimony that he had expended time and effort over the past year to get the car running, we find the awa rd of $4,500.00 to Appellant to be an equitable one. We, therefore, affirm t he awar d of $4,50 0.00 to Mrs

. Tate for her inte rest in the Merced es. Real Property McClellan and Valleywood Properties Appellant properl y notes that, f

or purpos es of pro

perty division, s eparat

e propert y includes “[p]roper ty acquired in exchange for proper ty acquired be

fore the marriage[.]” Tenn. Code Ann. § 36-4-121(b)(2)(B)(Supp. 2001). In the present case, the trial court found that “McClellan Drive , which was a residence formerly owned by Mrs. Ta

te, was transferred to Mr. Tate” in order “that both parties would have equal valuein the Guthrie Court residence[,]” and that, excepting the equities of the situation, “this would . . . be Mr. Tate’s separate property . . . .” The court further found that the Valleywood

Dr iv e r es id en ce “i s [ Mr s. Ta te ’s ] s ep ar at e p ro pe rt y. . . .” The trial court’s classification of these properties as separate proper ty was correct. Both properties were “swapped” for the other and, accordingly , are rightfully viewed as “[p]roperty a

cqui red in exch ange for property acquired before the marr iage[,]” Tenn. Code Ann. § 36-4-121(b)(2)(B )(Supp. 2001). As such, neither propert y should hav e been included in the marit al estate and subjec ted to di vi si on. It was, therefore, error for the trial court

to order Mr. Tate to transfer the McClellan Drive property, whic

h the court correctly determined was his separate property , to Mrs. Tate. Accordingly , the trial court’s order that Mr. Tate transfer the McClellan property to Mrs. Tate is reversed. The McClellan property is Mr. Tate’s separate property

and the Valleywood re sidence is Mrs. Tate’s separate property and, as such, neither is subject to division. 23 Neither p arty disputes this. -5-

Guthrie Court Property The Guthrie C ourt prop erty was acq uired by the part ies shortl y a fter the ir marriage and is, therefore, ma ri ta l p ro pe rt y. 3 As such, t his property is subject to equitable division using the crite

ria found at Tenn. Code Ann. § 36- 4-121( c )(1)-( 11). I n the pre sent cas e, this tas k is greatly simplified by the effor ts of t he pa rtie s to eq

ualiz e their respect ive contributions to Guthrie Court via the aforementioned

propert y tr ansfer s. With regard to the intent of the parties, the trial court stated that “Mr. and Mrs. T ate have

testif ied how they adju sted w hat eac h oth er owne d prio r to th e marri age so that this Guthrie Court property could be bought with each

of them having thesame invested.” We agree that this w as the inte

ntion of the partie s at the time of the transactions in question. Ac co rd in gl y, as the parties themselves took steps to ensure that each had an equa l in vestment in Guthrie Court, ne ither ca n now be he ard to assert

that an equal division of Guthrie Court would be inequitable. As such, the trial court’s award of Guthrie Court to Mr. Tate is reversed. The prop erty is to be sold and, after the outstanding mortgag es are p aid, the proc eeds ar e to be div

ided equa lly betweenthe part

ies. This notonly

results in an equita ble divisio n of the pr

operty , but also c omports with the intent of the parties. In view of our ruling, sub-issues 1B - D are prete rmitted. Conclusion We affir m the tria l court’saward o f $4,500. 00 to Mrs. T ate as r eprese nting he r intere st in the Merc edes. We r

everse the awa rd of the transfe r of the M cClellan

residence, fro m Mr. Tate to Mrs. T ate, as thi s pro

pert y i s sep arat

e pro pert y a nd, a s suc h, is n ot sub

ject to division . We reverse the award of Guthrie Court to Mr. Ta te and order said residence to be sold with the proceeds of the sale to be divided equally between the parties. We remand the cause f or further proceedings not inconsistent with this opinion. The costs of this appeal are taxed one-half to the Ap pe ll ee , J am es J. Ta te , S r. , a nd on e- ha lf to th e A pp el la nt Gl en da Bi ng ha m T at e, an d h er su re ty, for which execution, if necessary , may issue.

___________________________________ DAVID R. FARMER, JUDGE