There is some discrepancy concerning the first name of the appellant. The trial record and official filings

1

indicate his name is “Harce,” while his brief has “Horace” in the style. We will use the name shown on the court records.

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

On-Briefs February 17, 2006

HORACE RAY RUNIONS v. MARY RUNIONS

A Direct Appeal from the Chancery Court for Henry County

No. 19058 The Honorable Ron E. Harmon, Chancellor

No. W2005-01954-COA-R3-CV - Filed May 19, 2006

In this divorce case, Appellant/Husband appeals from the trial court’s classification of certain real

property as marital property. The property at issue was Husband’s separate property prior to the

marriage. The property was sold to a third party during the marriage, and a deed of trust secured the

balance of the purchase price. The third party defaulted in the installment payments, and Husband

purchased the property at the foreclosure sale and received a trustee’s deed in his name only.

Husband asserts that the property is separate property under either T.C.A. §36-4-121(b)(2)(A) or

T.C.A. §36-4-121(b)(2)(B). The trial court concluded that the property was marital property under

T.C.A. §36-4-121(b)(1)(A). We affirm.

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

W. FRANK CRAWFORD, P.J., W.S., delivered the opinion of the court, in which ALAN E. HIGHERS,

J. and DAVID R. FARMER, J., joined.

James H. Bradberry of Dresden, Tennessee for Appellant, Harce Ray Runions

Robert W. Hawley of Paris, Tennessee for Appellee, Mary Runions

OPINION

Harce Ray Runions (“Appellant”) and Mary E. Runions (“Appellee”) were married on 1

December 23, 1983. Prior to the marriage, on September 9, 1978, Mr. Runions purchased real

property located at 118 Mimosa Drive in Martin, Tennessee (the “Weakley County Property”),

which is the subject of this appeal. At the time of the purchase, Mr. Runions paid $34,500.00 for

the Weakley County Property. By Warranty Deed dated June 24, 1999, “Ray Runions and Wife,
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Mary E. Runions” transferred titled of the Weakley County Property to Melvin Harlan. Both parties

signed this Warranty Deed. Mr. Harlan ultimately defaulted on his payments, and the Weakley

County Property was offered at a foreclosure sale. On or about April 6, 2001, a “Trustee’s Deed”

was executed, which reads, in pertinent part, as follows:

NOW, THEREFORE, the said Mark F. Gallien, acting as Trustee as

aforesaid, in the consideration of the premises and for the said sum of

SEVENTY THOUSAND SIX HUNDRED SEVENTY AND 91/100

($70,670.91) DOLLARS, to himin hand paid, has bargained and sold

and by these presents does hereby bargain, sell, transfer and convey

unto the said RAY RUNIONS, his heirs and assigns, the [Weakley

County Property]....

TO HAVE AND TO HOLD said land and premises, together

with all privileges and appurtenances thereunto belonging, to the said

RAY RUNIONS, his heirs and assigns, in fee simple, forever, and in

bar of all right of equity of redemption.

On December 4, 2001, Mr. Runions filed a “Complaint for Divorce” against Ms. Runions.

Ms. Runions filed her “Answer” on October 15, 2002. By Judgment entered on October 14, 2003,

Ms. Runions was granted an absolute divorce from Mr. Runions. The Judgment ordered, inter alia,

the Weakley County Property to be “sold and the proceeds of said sale...to be equally divided.” On

November 4, 2003, Mr. Runions filed a “Motion to Alter or Amend Judgment or in the Alternative

for a New Trial,” in which he stated that the Judgment “order[ed] a great deal of the property to be

sold, however, the marital interest of separate property was not provided for in the Decree.” 

By Order of August 3, 2004, the trial court ordered the Clerk and Master to proceed with the

sale of the Weakley County Property. On April 18, 2005, Mr. Runions filed another “Motion to

Alter or Amend,” in which he stated, in relevant part:

4. That the Final Decree contained a provision that a parcel of real

property located in Weakley County was a marital asset that it would

be sold and it would be divided equally.

5. That the Movant asserts that the property referred to in the

proceeding paragraph is property owned by him, prior to the

marriage, sold by him during the marriage, but was the result of a

foreclosure sale, which returned the property to the Movant.

6. That the Movant assert[s] the majority of the value of this property

as will be reflected by the sale of the property, is not a marital asset,

but is a separate asset that should be awarded to him.
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7. That the Movant assert[s] that the circumstances which resulted in

the inclusion of the language relative to this property was a mistake

in advertence or excusable neglect and pursuant to rule 59.04 is

subject to being modified.

On May 25, 2005, the Clerk and Master filed her report of the sale of the Weakley County

Property. The report indicates that the Weakley County Property was sold at auction to Harce Ray

Runions for the sum of $50,000.00. An “Order Approving Sale of Real Property” was entered by

the trial court on June 6, 2005. A “Final Order” was entered on July 20, 2005. In this Order, the trial

court specifically finds that “the proceeds of the sale of the Weakley County real prop[erty] are

totally marital assets and shall be divided according to this court’s order....”

On August 15, 2005, Mr. Runions filed his “Notice of Appeal” from the Order of July 20,

2005. On September 7, 2005, Mr. Runions filed a Notice stating that neither a transcript or other

verbatim recording of the trial court proceeding, nor a statement of the evidence, would be filed.

Mr. Runions raises one issue for appeal as stated in his brief: Whether a Residence, title to

which rested in the name of the Appellant at the time of marriage and at the time of divorce was

separate property, where the only disruption in his exclusive ownership was a sale and foreclosure

to a third party during a brief three (3) year period.

Because this case was tried by the court sitting without a jury, we review the case de novo

upon the record with a presumption of correctness of the findings of fact by the trial court. Unless

the evidence preponderates against the findings, we must affirm, absent error of law. See Tenn.

R.App. P. 13(d). Furthermore, in the absence of a transcript or statement of the evidence, we must

conclusively presume that every fact admissible under the pleadings was found or should have been

found favorably to the Appellee. See Leek v. Powell, 884 S.W.2d 118 (Tenn. Ct. App. 1994); Lyon

v. Lyon, 765 S.W.2d 759 (Tenn. Ct. App. 1988).

T.C.A. §36-4-121(b)(1)(A) (2005) defines “Marital property,” in relevant part, as follows:

“Marital property” means all real and personal property, both tangible

and intangible, acquired by either or both spouses during the course

of the marriage up to the date of the final divorce hearing and owned

by either or both spouses as of the date of filing of a complaint for

divorce....

In the instant case, Mr. Runions asserts that the Weakley County Property is not marital

property under the above definition. Rather, he asserts that the property is separate property as

defined by the statute, to wit:

(2) “Separate property” means:
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(A) All real and personal property owned by a spouse

before marriage, including, but not limited to, assets

held in individual retirement accounts (IRAs)....

(B) Property acquired in exchange for property

acquired before the marriage;

T.C.A. §36-4-121(b)(2) (2005).

Whether an asset is separate property or marital property is a question of fact. Cutsinger v.

Cutsinger, 917 S.W.2d 238, 241 (Tenn. Ct. App. 1995); 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. Moore, 929 S.W.2d 367, 372 (Tenn. Ct. App. 1996). These decisions will be

presumed to be correct unless the evidence preponderates otherwise, Hardin v. Hardin, 689 S.W.2d

152, 154 (Tenn.Ct.App.1983), or unless they are based on an error of law. Mahaffey v. Mahaffey,

775 S.W.2d 618, 622 (Tenn. Ct. App. 1989).

There is no dispute that Mr. Runions owned the Weakley County Property prior to the

marriage. Consequently, if this property had not been sold, then same would certainly be separate

property under T.C.A. §36-4-121(b)(2)(A). However, when the property was sold to Mr. Harlan in

1999, there is no evidence in this record that either party retained any ownership of the Weakley

County Property. When Mr. Harlan defaulted on his payments, the record indicates that the Weakley

County Property became the subject of a public sale (i.e. there was no automatic reversion or right

of re-entry in either Mr. Runions or Ms. Runions). Rather, the Trustee’s Deed indicates that Mr.

Runions was the “last and highest bidder”. Although the Trustee’s Deed lists only Mr. Runions,

under T.C.A. §36-4-121(b)(1)(A), there is a presumption that property acquired during the marriage

by either or both spouses and still owned by either or both spouses when the divorce is granted is

classified as marital property and is, thus, subject to equitable division. However, this presumption

can be rebutted with "evidence of circumstances or communications clearly indicating an intent that

the property remain separate." McClellan v. McClellan, 873 S.W.2d 350, 351 (Tenn. Ct. App. 1993)

(citing Batson v. Batson, 769 S.W.2d 849, 858(Tenn. Ct. App. 1989)). In the instant case, there is

no evidence to show where the proceeds from the 1999 sale went, nor to show where the $70,670.91

used to purchase the Weakley County Property at the foreclosure sale in 2001 came from. 

Mr. Runions argues that the Weakley County Property is separate property as “property

exchanged for property acquired prior to the marriage.” T.C.A. §36-4-121(b)(2)(B). In his brief,

Mr. Runions’ specifically states:

At the time this sale [i.e. the 1999 sale to Mr. Harlan] took place the

deed was also executed by [Ms. Runions]; however, the derivation

clause on the deed states, “MaryRunions joins in this conveyance for

the purpose of conveying any marital interest she may have in the

[Weakley County Property]”.... [Mr. Runions] submits that this would

bring the property within the meaning [of] 36-4-121(b)(2)(B)
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“Property exchanged for property acquired prior to the marriage.”

This classically brings the note acquired by [Mr. Runions] at the time

he sold the property to Harlan into the status of separate property.

[Mr. Runions] simply reversed this transaction when he foreclosed on

the property. The note being property acquired in exchange for

property acquired prior to the marriage. When the note was

extinguished by the foreclosure, it simply reverted back to the

property acquired prior to the marriage, the real property. It is evident

by the trustee’s deed that the appellant sought to retain the separate

property status by taking the property from the trustee in his name

alone. 

As discussed above, there is no indication that Mr. Runions retained any interest in the Weakley

County Property upon the sale to Mr. Harlan, nor is there any indication that Mr. Runions received

any property in exchange for the Weakley County Property so as to satisfy the requirements of

T.C.A. §36-4-121(b)(1)(B) . Rather, from the 1999 Warranty Deed, it appears that Mr. Runions

transferred all of his interest in the property to Mr. Harlan. The fact that the Weakley County

Property ultimately fell into foreclosure under Mr. Harlan’s ownership does not reverse the

conveyance to Mr. Harlan. Mr. Runions ownership of the Weakley County Property was not

automatically reinstated at the point of Mr. Harlan’s default; rather, in order to secure ownership of

the property, Mr. Runions became a bidder at a public sale. The fact that only Mr. Runions’ name

is listed on the Trustee’s Deed is not dispositive on the question of separate versus marital property

because T.C.A. §36-4-121(b)(1)(A) makes no distinction between property purchased by either one

spouse alone or by both together. We have reviewed the record, and we find no evidence to rebut

the presumption that the Weakley County Property became marital property when purchased in 2001.

For the foregoing reasons, we affirm the Final Order of the trial court. Costs of this appeal

are assessed against the Appellant, Harce Ray Runions, and his surety.

__________________________________________

W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.