IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

June 3, 2021 Session

CAROLYN DIANE LONG v. STEVEN LAWRENCE LONG

Appeal from the Probate and Family Court for Cumberland County

No. 2014-PF-4162 Larry Michael Warner, Judge

No. E2020-01350-COA-R3-CV

Following a bench trial in this divorce action, the trial court entered an order in October 

2018, granting the parties a divorce and distributing the marital estate. Upon the wife’s 

appeal, this Court vacated the trial court’s distribution of marital property and remanded, 

directing the trial court to make sufficient findings of fact and conclusions of law, 

pursuant to Tennessee Rule of Civil Procedure 52.01, concerning the classification and 

valuation of various real estate and real estate partnership assets. Following an 

evidentiary hearing on remand, the trial court entered a final order in September 2020. 

Noting that the parties had stipulated that the wife’s interests in a realty company and two 

property partnerships were separate property, the trial court found that the wife’s 

partnership interest in a fourth realty enterprise at issue was marital property and also 

found that several specific realty assets were marital property. The trial court determined 

its valuation of each property or property interest and, pursuant to the factors provided in 

Tennessee Code Annotated § 36-4-121(c), set forth what it found to be an equitable 

distribution of the marital property. Wife has appealed. Discerning no reversible error, 

we affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Probate and Family Court

Affirmed; Case Remanded

THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which D. MICHAEL 

SWINEY, C.J., and JOHN W. MCCLARTY, J., joined.

Eric J. Burch, Manchester, Tennessee, for the appellant, Carolyn Diane Long.

Daniel H. Rader, IV, Cookeville, Tennessee, for the appellee, Steven Lawrence Long.

OPINION

09/27/2021
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I. Factual and Procedural Background

The plaintiff, Carolyn Diane Long (“Wife”), and the defendant, Steven Lawrence 

Long (“Husband”), have been involved in this action since Wife filed a complaint for 

divorce in October 2014 in the Cumberland County Probate and Family Court (“trial 

court”). This matter initially came before this Court on appeal in Long v. Long, No. 

E2018-01868-COA-R3-CV, 2019 WL 3986281 (Tenn. Ct. App. Aug. 23, 2019) (“Long

I”). In Long I, this Court vacated the trial court’s division of marital property and 

remanded “with instructions to make sufficient findings of fact and conclusions of law as 

required by Tenn. R. Civ. P. 52.01,” specifically as to the trial court’s classification of 

Wife’s partnership interest in a partnership entity known as Pioneer Properties, the values 

of specific properties, and the trial court’s overall distribution of marital property. See 

Long I, 2019 WL 3986281, at *1, 9. This Court set forth the following factual and 

procedural background in Long I:

[Wife] and [Husband] were married for the first time in 1984. 

Following a divorce a year later, they remarried in 1987. Wife’s family 

was involved in real estate development and investment. In 1993, wife’s 

mother and stepfather created and funded a partnership entity known as 

“Pioneer Properties.” The partners were wife, her brother, sister, two 

stepbrothers, and her stepfather. Wife testified that the primary activity of 

Pioneer Properties was “buying land, subdividing it, and then selling it.” It 

is undisputed that neither husband nor wife contributed any funds to 

Pioneer Properties. When wife received distributions from the partnership, 

she deposited them into an account jointly held by the parties.

In 1988, while they were married, the parties acquired a property on 

George Smith Road. At that time, they were contemplating divorce and, 

according to wife, they “were separated for a long time.” Wife intended to 

move into the house on George Smith Road and live in it by herself. 

Husband executed a deed quitclaiming his interest in the George Smith 

Road property to wife in 1988. The parties reconciled and lived together in 

the house for several years. Later, they moved to another house and rented 

the George Smith Road property.

On October 31, 2014, wife filed her complaint for divorce. The only 

issues contested were the classification of two assets – wife’s interest in 

Pioneer Properties and the George Smith Road property – and the division 

of the marital estate. By agreement, the trial was bifurcated. At the first 

hearing on March 10, 2017, the trial court was asked to decide whether the 

two contested assets were marital or wife’s separate property. The parties 
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agreed that the interests held by wife in three other business entities, 

Pioneer Realty, Inc., Robinson Properties Family LP, and RLW Properties, 

were her separate property. No value for these three assets was presented 

to the trial court, and it did not find or set a value for any of them.

The only witnesses at the relatively brief first hearing were husband 

and wife. Wife argued that, notwithstanding the fact that the two contested 

assets were acquired during the course of the marriage, they were gifts to 

her and should be classified as her separate property. Husband argued that 

he made substantial contributions to the preservation and appreciation of 

the assets, and therefore their increase in value during the marriage should 

be classified as marital property. Additionally and in the alternative, 

husband argued that the assets were converted to marital property by 

operation of the doctrines of commingling and transmutation.

The only factual findings pertaining to the disputed assets in the trial 

court’s order following the first hearing are as follows:

That with regard to the home and real property on 

George Smith Road, in Cumberland County, titled solely in 

the name of the [wife]: The [husband] conveyed his interest 

in said real property to the [wife], by quitclaim deed in 1988; 

and the parties further exhibited an intent throughout the 

marriage that said real property would remain the [wife’s] 

sole and separate property.

That with regard to the parties’ interest in the 

partnership entity known as Pioneer Properties: This entity 

was a more fluid asset, with properties being bought and sold 

at various times throughout the marriage. The Court finds 

that this entity is marital property due to the fluidity of the 

asset and due to the fact that proceeds were regularly 

deposited from said partnership into a joint account of the 

parties.

(Numbering in original omitted).

The second hearing took place on August 17, 2018. The trial court 

heard testimony from the parties and a real estate appraiser. The parties 

agreed on the values of many, but not all, of the numerous marital real 
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estate assets. The only factual findings contained in the trial court’s final 

judgment state as follows:

That for at least 27 years of this 31 year marriage the 

wife treated all of the property the parties collectively owned 

as if it were owned equally by her and husband and that all of 

their property should now be divided equally.

Pioneer Properties is a real estate investment business 

owned and run by wife and her family, and it would not be 

feasible for husband to continue in that business relationship 

after the divorce.

(Numbering in original omitted).

The trial court awarded wife the entire interest in Pioneer Properties. 

Wife estimated the value of this asset to be $311,295.81. It does not appear 

from the record that husband proffered a written estimated value of the 

Pioneer Properties interest. During the second hearing, husband’s counsel 

argued that the value of wife’s interest was $429,527.50. To offset this 

award, the court awarded husband apartments on Old Mail Road that the 

parties agreed were worth $300,000; two parcels of land on Woodlawn 

Road worth $90,000, and a parcel on Rockledge Drive worth $3,000. The 

trial court further ordered several other real estate holdings to be sold and 

the proceeds split equally. The marital residence was ordered to be sold 

and the proceeds equally divided after payment of debts associated with the 

residence. The parties did not agree on the value of all these assets, 

including the marital residence. As noted, the trial court made no findings 

of fact regarding the value of any asset of the marital or separate estates. 

Consequently, it is difficult to state an accounting of the division of the 

assets with any certainty. As appendices to her brief, wife submits two 

charts showing her argument as to the division according to her values, and 

according to husband’s. Using wife’s values, she states that she was 

awarded property worth $622,147.08, and husband awarded property worth 

$641,851.27. Using husband’s values, wife states that the property was 

divided $659,109.58 to her, and $678,813.77 to husband. Wife timely filed 

a notice of appeal.

Id. at *1-2. 
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On appeal in Long I, Wife raised issues concerning whether the trial court had 

made sufficient findings of fact and conclusions of law and whether the trial court had 

erred by classifying her interest in Pioneer Properties as marital property. Id. at *2. 

Husband raised an issue concerning the trial court’s classification of the property located 

on George Smith Road as Wife’s separate property. Id. Because this Court in Long I

affirmed the “trial court’s judgment finding the George Smith Road property to be wife’s 

separate asset,” see id. at *9, the classification of that property was not at issue on 

remand. Concerning the trial court’s lack of sufficient findings, this Court stated in 

pertinent part:

[T]he trial court did not make a finding regarding the value of any of the 

assets, including those assigned to wife as her separate property, and those 

upon which the parties disagreed as to their value. The trial court’s order 

does not refer to Tenn. Code Ann. § 36-4-121(c), or make a finding 

regarding any of the factors prescribed therein.

Id. This Court vacated the trial court’s division of marital property and “remanded for 

appropriate findings of fact and conclusions of law pursuant to Tenn. R. Civ. P. 52.01.” 

Id.

As to the trial court’s initial classification of Pioneer Properties as marital 

property, this Court stated in Long I:

Because wife acquired her partnership interest while the parties were 

married, the initial presumption is that it is marital property. Gant v. Gant, 

No. M2015-02160-COA-R3-CV, 2017 WL 417225, at *5 (Tenn. Ct. App., 

filed Jan. 31, 2017). “Wife, as the party seeking to rebut this presumption, 

has the burden of proving by a preponderance of the evidence that the asset 

is separate property.” Cox v. Cox, No. E2016-01097-COA-R3-CV, 2017 

WL 6517596, at *4 (Tenn. Ct. App., filed Dec. 20, 2017) (internal 

quotation marks omitted); Trezevant v. Trezevant, 568 S.W.3d 595, 609 

(Tenn. Ct. App. 2018). Wife testified that her interest in Pioneer Properties 

was a gift from her family to her alone, and that it was always intended to 

be separate. Husband argues that wife did not meet her burden in 

establishing it was a gift, because she presented “no other supporting 

documentation” and “no corroborating witnesses.” The trial court did not 

make a finding regarding whether wife met her burden to prove it was a 

gift, stating only that “this entity is marital property due to the fluidity of 

the asset and due to the fact that proceeds were regularly deposited from 

said partnership into a joint account.” Several possible inferences could be 

drawn from the trial court’s order. It may have implicitly credited wife’s 
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testimony that the asset was a gift, but found nevertheless that other factors 

militated in favor of classifying it as marital. Another possibility is that the 

trial court did not consider it a gift, and that was another factor requiring its 

marital classification. The absence of an explicit factual finding makes it 

impossible to tell with certainty.

Id. at *3. Husband argued in Long I, as he does in this appeal, that “any appreciation in 

value of wife’s partnership interest was properly classified as marital pursuant to Tenn. 

Code Ann. § 36-4-121(b)(1)(B)(i), because he ‘substantially contributed to its 

preservation and appreciation.’” Id. at *4. This Court determined that the trial court had 

“made no specific finding regarding whether husband made a substantial contribution to 

the preservation and appreciation of the Pioneer Properties interest.” Id. Noting the trial 

court’s finding that “the assets of the partnership were ‘fluid,’” this Court determined 

such finding to “implicate[], to some extent, the doctrines of commingling and 

transmutation which husband argued were applicable to convert wife’s partnership 

interest to marital property.” Id. at *5.

 

In vacating the trial court’s ruling that Wife’s interest in Pioneer Properties was 

marital, this Court directed the trial court on remand as follows:

On remand, the trial court is directed to consider and make specific findings 

regarding the value of the asset and whether: (1) the interest was a separate 

gift to wife, (2) husband made a substantial contribution to the preservation 

and appreciation of the asset, and (3) the doctrines of commingling and/or 

transmutation apply.

Id. at *6.

 

Upon remand, each of the parties respectively filed a brief with the trial court, 

Wife in December 2019 and Husband in January 2020. The trial court conducted an 

evidentiary hearing on June 5, 2020, hearing testimony from the parties; Wife’s mother, 

L.W.; and Wife’s brother, S.R. The transcript of this hearing demonstrates that at the 

close of each opening statement, each party’s counsel submitted written proposed 

findings of fact and conclusions of law to the trial court. Husband’s counsel also 

requested that the trial court make a credibility finding as to each party. During closing 

arguments, Wife’s counsel began and ended by requesting that the trial court review the 

parties’ briefs before making a ruling. At the end of his closing argument, Husband’s 

counsel asked that the trial court “review both proposed findings of fact and conclusions 

of law, but that – and then make your independent ones based on what the case law 

requires, but looking at the values and setting values on the property . . . .” The trial court 

then stated:
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Appreciate the preciseness of you gentlemen. I am going to review both 

briefs. I have slept a few times since we’ve had these hearings and I need 

to freshen up. So Court will be at ease. I’ll get that to you within ten days.

 On August 31, 2020, Wife filed a proposed “Order,” which is in the appellate 

record with a handwritten note across the top of the first page stating, “Judge signed 

competing order.” The “Final Order” entered by the trial court is date stamped as having 

been received by the trial court clerk and master on September 2, 2020, and undisputedly 

represents the trial court’s adoption of Husband’s proposed order. The trial court signed 

and entered the Final Order on September 2, 2020, with no handwritten additions other 

than the date of entry and no changes of any kind. Concerning the trial court’s adoption 

of Husband’s proposed findings of fact and conclusions of law, the Final Order stated:

Both parties have submitted proposed findings of fact and conclusions of 

law, which the Court has considered in making its ruling, which ruling is an 

independent determination of the Court. The Court has reviewed the 

transcript of the evidence in this matter, the entire file, and independently 

recalls the trial of this case. The Court has considered the arguments of 

counsel, including competing requests by each party for particular findings 

consistent with the evidence presented. Despite the competing requests 

from the parties, the Court has made an independent determination of its 

own, as reflected by this Order. Husband has further requested credibility 

findings.

From a review of the entire record in this cause, the evidence 

presented both by witnesses who testified and exhibits received into 

evidence, along with the arguments of counsel, the Court has made an 

independent deliberation and decision, and the Court makes the following 

findings of fact and conclusions of law[.]

In the penultimate paragraph, prior to the equal division of costs between the parties, the 

Final Order stated:

This constitutes the final order in this case. The Court notes that 

each party has submitted competing orders, along with competing findings 

of fact and conclusions of law. The Court has determined that this order 

correctly reflects the Court’s independent and reasoned judgment, and has 

signed this Order as the Court’s own order.
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In the final order, the trial court confirmed its prior ruling that Wife’s interest in 

Pioneer Properties was marital property, assigned a value to each of the properties not 

previously assigned a value, and set forth what it found to be an equitable distribution of 

the marital property. Regarding the parties’ credibility, the trial court stated in the final 

order: “The Court specifically credits Husband’s testimony as credible, and finds Wife’s 

testimony, particularly as to Pioneer Properties, to lack credibility.” The trial court also 

found that Husband was the “disadvantaged spouse” “[b]ased on the extremely lengthy 

marriage, where Wife routinely made more money than Husband.” The court directed 

each party to pay his or her own attorney’s fees.

In response to competing testimony concerning the value of Pioneer Properties at 

the time of the remand hearing, the trial court stated that it was relying on the opinion of 

a real estate appraiser, David Mainord, whose testimony and appraisal report concerning 

the Pioneer Properties office building property and adjoining parcel Husband had 

presented during the 2018 trial. Although it is unclear from the record that Mr. Mainord 

actually opined in either his testimony or his report concerning the value of Wife’s onethird interest in Pioneer Properties as a whole, Wife has not raised an issue on appeal 

concerning the trial court’s adoption of Husband’s valuation of this one-third interest in 

the amount of $429,527.59 over her valuation at $341,195.00. At trial, Mr. Mainord 

acknowledged that his opinion indicated higher values for the two properties than the 

county tax assessor’s values, and he stated that market value appraisals were generally 

higher in this regard. Husband’s valuation of the Pioneer Properties partnership interest, 

adopted by the trial court, appears to have been based in part on Mr. Mainord’s appraisal 

of the office building property and adjoining parcel. 

As the trial court noted, Wife had increased her valuation of the Pioneer Properties 

partnership interest between the 2018 trial and the remand hearing from $311,295.81 to 

$341,195.00. It is therefore undisputed that Pioneer Properties increased in value during 

the course of the proceedings. The trial court also made the finding in its final judgment 

that the value of Pioneer Properties “increased during the marriage, and that Husband’s 

substantial contributions contributed to the increase.” 

The trial court set forth values for ten properties it determined to be part of the 

marital estate. Including the Pioneer Properties partnership interest, the parties had 

submitted competing values for four of the marital properties as follows: 

 Pioneer Properties partnership interest, valued by Husband at $429,527.59 and by 

Wife at $341,195.00

 Marital Residence, valued by Husband at $375,000.00 and by Wife at $322,000.00

 Ownership interest in Stonecrest LLC, valued by Husband at $20,000.00 and by 

Wife at $9,750.00
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 Ownership interest in Caney Fork Properties, LLC, valued by Husband at 

$200,000.00 and by Wife at $136,325.00 

In each of the instances listed above, the trial court adopted Husband’s valuation. The 

properties with undisputed values, adopted by the trial court, were:

 Old Mail Road Apartments, valued at $300,000.00

 Woodlawn Road (two parcels, valued at $90,000.00 collectively)

 Lot 68 in Laurelwood, valued at $35,000.00

 Lot 17 in Deer Creek, valued at $25,000.00

 One-half ownership of three lots in Crossroads Village, valued at $14,000.00

 Rockledge Drive/Lake Pomeroy Division parcel, valued at $3,000.00

As to the value of the George Smith Road property, which the trial court confirmed as 

Wife’s separate property, the trial court did not assign a specific value. However, the 

court did find that “Wife’s separate interest in Pioneer Realty, RLW Partnership and 

Robinson Family Properties, LP, are valued at approximately five hundred thousand 

dollars ($500,000.00).” 

In setting forth what it found to be an equitable distribution of the marital 

property, the trial court awarded Wife’s interest in Pioneer Properties solely to her. The 

court awarded four properties solely to Husband: (1) the Old Mail Road Apartments; (2) 

the Woodlawn Road property; (3) the three lots in Crossroads Subdivision; and (4) the 

Rockledge Drive/Lake Pomeroy parcel. The court directed that three properties should 

be sold and the proceeds divided between the parties: (1) the marital residence, which 

was Lot 96 in the Laurelwood Subdivision (with mortgage debt to be paid before 

proceeds would be allocated to the parties); (2) Lot 68 in the Laurelwood Division; and 

(3) Lot 17 in the Deer Creek Subdivision. The court further ordered that the parties’ 

interests in Stonecrest, LLC (“Stonecrest”), and Caney Fork Properties, LLC (“Caney 

Fork”), would be equally divided between them. The court awarded to Wife $42,424.86 

from Husband’s portion of the sale of the marital residence to reimburse her for expenses 

she had paid during the pendency of the divorce. Wife timely appealed.

II. Issues Presented

Wife presents three issues on appeal, which we have restated slightly as follows:

1. Whether the trial court erred by adopting verbatim Husband’s 

findings of fact and conclusions of law such that it did not fashion its 

own independent analysis and judgment.
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2. Whether the trial court erred by finding that Wife’s partnership 

interest in Pioneer Properties was marital property.

.

3. Whether the trial court erred in its distribution of the marital 

property.

In his responsive brief, Husband has listed five “Issues Presented.” However, we 

determine that the first three issues listed by Husband are sub-issues appropriately 

addressed within Wife’s first issue concerning the trial court’s order. Additionally, we 

will address “specific questions” noted by Husband concerning the classification of 

Pioneer Properties within the second issue listed above.

III. Standard of Review

In a case involving the proper classification and distribution of assets incident to a 

divorce, our Supreme Court has elucidated the applicable standard of appellate review as 

follows:

This Court gives great weight to the decisions of the trial court in 

dividing marital assets and “we are disinclined to disturb the trial court’s 

decision unless the distribution lacks proper evidentiary support or results 

in some error of law or misapplication of statutory requirements and 

procedures.” Herrera v. Herrera, 944 S.W.2d 379, 389 (Tenn. Ct. App.

1996). As such, when dealing with the trial court’s findings of fact, we 

review the record de novo with a presumption of correctness, and we must 

honor those findings unless there is evidence which preponderates to the 

contrary. Tenn. R. App. P. 13(d); Union Carbide Corp. v. Huddleston, 854 

S.W.2d 87, 91 (Tenn. 1993). Because trial courts are in a far better position 

than this Court to observe the demeanor of the witnesses, the weight, faith, 

and credit to be given witnesses’ testimony lies in the first instance with the 

trial court. Roberts v. Roberts, 827 S.W.2d 788, 795 (Tenn. Ct. App.

1991). Consequently, where issues of credibility and weight of testimony 

are involved, this Court will accord considerable deference to the trial 

court’s factual findings. In re M.L.P., 228 S.W.3d 139, 143 (Tenn. Ct.

App. 2007) (citing Seals v. England/Corsair Upholstery Mfg. Co., 984 

S.W.2d 912, 915 (Tenn. 1999)). The trial court’s conclusions of law, 

however, are accorded no presumption of correctness. Langschmidt v. 

Langschmidt, 81 S.W.3d 741, 744-45 (Tenn. 2002).

Keyt v. Keyt, 244 S.W.3d 321, 327 (Tenn. 2007). Questions relating to the classification 

of assets as marital or separate are questions of fact. Stratienko v. Stratienko, 529 S.W.3d 
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389, 398-99 (Tenn. Ct. App. 2017) (citing Bilyeu v. Bilyeu, 196 S.W.3d 131, 135 (Tenn. 

Ct. App. 2005)). See Manis v. Manis, 49 S.W.3d 295, 306 (Tenn. Ct. App. 2001) 

(holding that appellate courts reviewing a distribution of marital property “ordinarily 

defer to the trial judge’s decision 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.”).

IV. Independent Judgment of the Trial Court

Wife contends that the trial court erred on remand by adopting verbatim 

Husband’s findings of fact and conclusions of law and thereby failing to fashion its own 

independent analysis and judgment. Husband asserts that in adopting the proposed order 

submitted by Husband, the trial court made sufficient findings of fact and conclusions of 

law and “simply found, exercising [its] own independent judgment, that the Husband’s 

position was correct.” Husband also asserts that Wife waived this issue by filing her own 

proposed order prior to the filing of Husband’s proposed order and by failing to file a 

post-trial motion objecting to the trial court’s adoption of Husband’s order. Upon careful 

review, we determine Husband’s waiver argument to be unavailing. We will therefore 

consider Wife’s issue concerning the independence of the trial court’s judgment as a 

threshold matter. 

Our Supreme Court has set forth the standard for a trial court’s practice of 

receiving and utilizing party-prepared findings of fact and conclusions of law as follows 

in pertinent part:

In the almost thirty years since Anderson [v. City of Bessemer City, 

N.C., 470 U.S. 564 (1985),] was decided, most courts have approved, but 

not recommended, the practice of trial courts receiving and using partyprepared findings of fact, conclusions of law, and orders as long as two 

conditions are satisfied. First, the findings and conclusions must accurately 

reflect the decision of the trial court. Second, the record must not create 

doubt that the decision represents the trial court’s own deliberations and 

decision.

Smith v. UHS of Lakeside, Inc., 439 S.W.3d 303, 315-16 (Tenn. 2014) (emphasis added). 

In vacating the trial court’s order granting summary judgment in Smith, the High Court 

stated:

In this case, the judicial act should have consisted not only of 

announcing a decision to grant part of [the appellant’s] motions for 

summary judgment but also stating the grounds for that decision. Because 

the record demonstrates that the trial court did not provide the basis for its 
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decision prior to the preparation of the draft orders, the grounds stated in 

the order cannot be attributed to the trial court.

Smith, 439 S.W.3d at 317. This Court has recently noted that “[a]lthough Smith involved 

summary judgment, this Court has previously applied the reasoning in Smith to 

proceedings not involving summary judgment.” Cunningham v. Eastman Credit Union, 

No. E2019-00987-COA-R3-CV, 2020 WL 2764412, at *4 (Tenn. Ct. App. May 27, 

2020) (citing as examples Deberry v. Cumberland Elec. Membership Corp., No. M2017-

02399-COA-R3-CV, 2018 WL 4961527, at *2 (Tenn. Ct. App. Oct. 15, 2018); In re 

Dakota M., No. E2017-01855-COA-R3-PT, 2018 WL 3022682, at *6 (Tenn. Ct. App. 

June 18, 2018); In re Colton B., No. M2017-00997-COA-R3-PT, 2017 WL 6550620, at 

*5 (Tenn. Ct. App. Dec. 22, 2007)). 

To reiterate what occurred procedurally in the case at bar on remand, each party 

submitted a brief to the trial court prior to the evidentiary hearing. These briefs are in the 

record on appeal, and neither appears to be a template for the trial court’s final order. 

The remand hearing transcript reflects that the parties each submitted proposed findings 

of fact and conclusions of law to the trial court at the beginning of the hearing; however, 

neither of these proposed findings of fact and conclusions of law is in the record. After 

the presentation of additional testimony and argument, the trial court stated orally at the 

close of the hearing that it was “going to review both briefs” and “get that [a ruling] to 

you within ten days.” The next indication of any activity in the record is Wife’s filing of 

a proposed order on August 31, 2020, closely followed by Husband’s filing of a proposed 

order received by the trial court on September 2, 2020. The trial court signed, dated, and 

entered Husband’s “Final Order” on September 2, 2020, with no modifications. We note 

that the final order includes four statements to the effect that the order is the product of 

the trial court’s “independent deliberation and decision.”

In response to Wife’s argument concerning this issue, Husband initially posits that 

the trial court in its final order made sufficient findings of fact and conclusions of law 

pursuant to Tennessee Rule of Civil Procedure 52.01, which provides in relevant part that 

“[i]n all actions tried upon the facts without a jury, the court shall find the facts specially 

and shall state separately its conclusions of law and direct the entry of the appropriate 

judgment.” The issue here, however, is not whether the final order contained sufficient 

findings of fact and conclusions of law but whether those findings and conclusions 

clearly represented the trial court’s own analysis and deliberations. Husband then argues 

that Wife waived this issue by filing her own proposed order first and by subsequently 

failing to file a “Rule 52 motion to make additional findings of fact” or a Tennessee Rule 

of Civil Procedure 59 motion to alter or amend the judgment. Wife counters that an issue 

questioning whether an order represents a trial court’s independent judgment cannot be 

waived. We agree with Wife on this point.
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As Wife points out, this Court recently rejected a similar waiver argument in 

Vaughn v. DMC-Memphis, LLC, stating that “we have often considered this issue in the 

absence of the argument being raised in the trial court.” No. W2019-00886-COA-R3-

CV, 2021 WL 274761, at *6 (Tenn. Ct. App. Jan. 27, 2021) (citing as examples Regions 

Commercial Equip. Fin., LLC v. Richards Aviation Inc., No. W2018-00033-COA-R3-

CV, 2019 WL 1949633, at *8 (Tenn. Ct. App. Apr. 30, 2019); Bertuccelli v. Haehner, 

No. E2017-02068-COA-R3-CV, 2018 WL 6199229, at *3 (Tenn. Ct. App. Nov. 28, 

2018); Koczera v. Steele, No. E2015-02508-COA-R3-CV, 2017 WL 1534962, at *7 

(Tenn. Ct. App. Apr. 28, 2017)).1 Similarly, in Highland Physicians, Inc. v. Wellmont 

Health Sys., 625 S.W.3d 262, 283 (Tenn. Ct. App. 2020), the plaintiff argued that the 

defendant had waived an issue concerning whether the trial court had entered a partial 

summary judgment order with substantially the same findings of fact and conclusions of 

law as in the plaintiff’s proposed findings and conclusions when the defendant had raised 

the issue only in a motion for extraordinary appeal. This Court determined the plaintiff’s 

“waiver argument to be unavailing” in part because it was unsupported by any authority. 

Id. 

Here, Husband essentially asks this Court to create a new tenet that an issue 

regarding a trial court’s verbatim adoption of a party-prepared order cannot be presented

on appeal unless it was first raised before the trial court in a Rule 52 or Rule 59 motion. 

This we decline to do. See generally Smith, 439 S.W.3d at 312 (“Because making these 

decisions is a ‘high judicial function,’ a court’s decisions must be, and must appear to be, 

the result of the exercise of the trial court’s own judgment.”) (internal citations omitted). 

In support of her argument that the trial court’s final order should be vacated and 

remanded for the trial court to “fashion [its] own findings and conclusions,” Wife relies 

in part on this Court’s decision in Cunningham. In determining that the final order in 

Cunningham, which had been entered following a bench trial in a probate action, should 

be vacated, this Court stated in relevant part:

[T]he transcript of evidence approved by the trial court reflects that the 

court made no oral rulings at the conclusion of the February 12, 2019 trial 

but instead took the matter under advisement, directing each party to submit 

proposed findings of fact and conclusions of law. The record is devoid of 

any direction provided to the parties by the trial court as to drafting their 

proposed findings of fact and conclusions of law. In its May 7, 2019 order, 

 

1

In Vaughn, this Court proceeded to consider the merits of the appellant’s claim upon concluding that 

neither the appellant’s “brief nor the materials that are included in the record create doubt that the written 

order is both an accurate reflection of the trial court’s order and a product of its independent judgment.” 

Vaughn, 2021 WL 274761, at *6. 
- 14 -

the trial court subsequently adopted nearly verbatim Executor’s proposed 

findings of fact and conclusions of law.

* * *

Based upon the record before us, we cannot determine that 

Executor’s proposed findings of fact and conclusions of law, adopted 

nearly verbatim by the trial court, represent the trial court’s own 

independent analysis and judgment.

Cunningham, 2020 WL 2764412, at *4-5.

In the instant action, the trial court also provided the parties with no direction at 

the close of trial regarding its decision as to the issues on remand and took the matter 

under advisement. Although the court appeared to state that it would render a ruling 

“within ten days,” it is undisputed that no ruling was forthcoming until the trial court 

rejected Wife’s proposed order and adopted Husband’s proposed order, which the court 

entered on the day it had been received by the court. Several statements were included in 

the final order to the effect that the order was the result of the trial court’s “independent 

deliberation and decision.” Although we respect the trial court’s endorsement of these 

statements, inasmuch as these statements were included in Husband’s proposed order and 

the trial court adopted the proposed order verbatim, we conclude that the inclusion of 

these statements does not assuage all doubt created by the record as to whether the final 

order was indeed the product of the trial court’s independent analysis and deliberations. 

See, e.g., Mitchell v. Mitchell, No. E2017-00100-COA-R3-CV, 2019 WL 81594, at *6-7 

(Tenn. Ct. App. Jan. 3, 2019) (determining, despite the inclusion of language in the partyprepared order that the trial court had reviewed all portions of the record and applicable 

authorities, that “the trial court’s verbatim adoption of Wife’s findings of fact and 

conclusions of law without any oral ruling or direction from the trial court raises the 

appearance that the court merely chose ‘between two provided options rather than 

fashioning a considered, independent ruling’”) (quoting Smith, 439 S.W.3d at 315)). We 

therefore determine that the record in this case creates some “doubt that the decision 

represents the trial court’s own deliberations and decision.” See Smith, 439 S.W.3d at 

316.

However, given the totality of the circumstances in this case, we find this Court’s 

exercise of its discretion in Highland Physicians, 625 S.W.3d at 283, and Huggins v. 

McKee, 500 S.W.3d 360, 366 (Tenn. Ct. App. 2016), to be instructive. In Highland 

Physicians, this Court, faced with a situation in which the trial court had entered a partial 

summary judgment order adopting a party’s proposed findings of fact and conclusions of 

law “almost verbatim,” determined the circumstances to be distinguishable from those in 
- 15 -

Smith because the trial court had not yet determined which party would prevail and more 

particularly because the order had “merely narrowed the issues for trial rather than 

concluding the proceedings.” Highland Physicians, 625 S.W.3d at 283. Declining to

vacate the partial summary judgment order, this Court concluded in this regard:

[H]ere, we determine that the trial court’s summary judgment 

procedure, although not ideal, does not require that the summary judgment 

order be vacated. We conclude that the circumstances of the case at bar are 

distinguishable from those found in Smith and its progeny. We further 

conclude that this case, which has been pending for several years and 

during which the parties have had the benefit of a lengthy jury trial, 

thousands of pages of pleadings filed, and a prior appeal, presents a proper 

case for this Court to exercise its discretion to consider the merits of the 

issues on appeal.

Id. at 284. We recognize that unlike the order at issue in Highland Physicians, the trial 

court’s order at issue here is a final one, concluding the proceedings. However, this case 

also has been pending for several years, and the parties have had the benefit of a full 

bench trial, a prior appeal, and an evidentiary hearing on remand. 

In Huggins, the matter was before this Court for the third time on appeal. 

Huggins, 500 S.W.3d at 362 (hereinafter, “Huggins III”). See Huggins v. McKee, 403 

S.W.3d 781, 788 (Tenn. Ct. App. 2012) (“Huggins I”) (affirming the dismissal of all 

claims against one defendant while reversing the dismissal of the plaintiff’s claims 

against the other defendant); Huggins v. McKee, No. E2014-00726-COA-R3-CV, 2015 

WL 866437 (Tenn. Ct. App. Feb. 27, 2015) (“Huggins II”) (vacating the trial court’s 

order dismissing the claims of the appellant, who was the substitute plaintiff, upon 

determining that the trial court had failed to explain its rationale for finding the claims to 

be moot). In Huggins III, the appellant argued that on remand following this Court’s 

vacation of the trial court’s order in Huggins II, the trial court had erred by entering an 

order granting summary judgment to the defendant appellee “without expressing its 

independent legal reasoning, in violation of the Tennessee Supreme Court’s ruling in 

Smith.” Huggins III, 500 S.W.3d at 365. The trial court had not rendered an oral ruling 

at the close of the summary judgment hearing and had taken the matter under advisement. 

Id. at 366. The appellee had then filed proposed findings of fact and conclusions of law, 

and the appellant had filed his own proposed order two weeks later. Id. Two days after 

the appellant’s filing of a proposed order, the trial court had sent an email to the 

appellee’s counsel, asking counsel to draft an order granting summary judgment to the 

appellee, “‘incorporating [the appellee’s] findings and conclusions[.]’” Id. 
- 16 -

Considering the appellant’s argument on appeal in Huggins III that the record did 

not support a determination that the trial court’s order was “the product of the trial court’s 

own independent legal reasoning and judgment,” this Court concluded: 

We agree that the trial court’s practice in this case is not fully 

compliant with either the letter or the spirit of Smith. To be sure, the better 

practice would have been for the trial court to either make an oral ruling or 

to draft its own order rather than adopting verbatim the proposed findings 

and conclusions of [the appellee]. We also realize, however, that this case 

has been awaiting resolution for nearly a decade and was previously 

remanded to the trial court because the trial court failed to offer an 

appropriate basis for its prior dismissal. As the Smith Court explained, 

“judicial economy supports the Court of Appeals’ approach to the 

enforcement of Tenn. R. Civ. P. 56.04 [i.e., “conduct[ing] archeological 

digs” to discern the basis for the trial court’s judgment] in proper 

circumstances when the absence of stated grounds in the trial court’s order 

does not significantly hamper the review of the trial court’s decision.” [439 

S.W.3d] at 314. Additionally, under similar circumstances, this Court has 

held that in the absence of evidence to the contrary, this Court will “assume 

that the order approved and entered by the trial court accurately represents 

the court’s reasoning.” In re Estate of Kysor, No. E2014-02143-COA-R3-

CV, 2015 WL 9465332, at *6 (Tenn. Ct. App. Dec. 28, 2015) (citing only 

pre-Smith cases to support this ruling). In the interest of providing the 

parties to this case a final resolution of the issues, we exercise our 

discretion to proceed to consider the merits of this appeal, but we caution 

litigants and trial courts that we may not choose to do so under similar 

circumstances in the future.

Id. at 366-67.

As in Huggins III, we agree with Wife that the trial court’s practice in this instance 

was “not fully compliant with either the letter or the spirit of Smith.” See id. at 366. 

However, we are also somewhat persuaded by Husband’s request that “[f]or the sake of 

judicial economy and the finality for these parties,” this matter not be remanded for entry 

of a judgment more clearly reflecting the trial court’s independent deliberations. As 

Husband notes, this divorce has been pending for nearly seven years and has been 

previously remanded for the trial court to make specific findings of fact regarding, inter 

alia, the values of individual assets, the basis for determining that Wife’s partnership 

interest in Pioneer Properties was marital property, and the equitable distribution of the 

marital estate. Additionally, during oral argument in the instant appeal, Wife’s counsel 

stated that he would rely solely on the briefs concerning this issue and acknowledged that 
- 17 -

Wife “really [did not] want this case remanded.” Therefore, as in Huggins III, we 

exercise our discretion to consider the merits of this appeal “[i]n the interest of providing 

the parties to this case a final resolution” while also cautioning litigants and trial courts 

that this Court “may not choose to do so under similar circumstances in the future.” See 

id. at 366-67. 

V. Classification of Partnership Interest in Pioneer Properties

Wife asserts that the trial court erred by classifying her partnership interest in 

Pioneer Properties as marital property. She acknowledges that the fact that she obtained 

the partnership interest during the course of the marriage creates a statutory presumption 

that the interest is marital property. See Tenn. Code Ann. § 36-4-121(b)(1)(A)(2021). 

However, she argues that she carried her burden to rebut the presumption by presenting 

her testimony and the testimonies of her mother and brother to the effect that the interest 

was a gift. Wife also argues that the trial court erred by finding that any appreciation in 

value of the asset was marital and by finding that the doctrines of transmutation and 

commingling applied. Husband asserts that Wife did not meet her burden of rebutting the 

statutory presumption because she failed to prove that the partnership interest was a gift. 

Husband also argues that the trial court correctly found that appreciation in the 

partnership interest’s value was marital because he had made substantial contributions to 

the value of Pioneer Properties. Husband further argues that the doctrines of 

transmutation and commingling applied. Upon thorough review of the record and 

applicable authorities, we determine that the evidence does not preponderate against the 

trial court’s classification of the partnership interest in Pioneer Properties as marital 

property because Wife obtained the partnership interest during the parties’ marriage and 

failed to rebut the statutory presumption.

Regarding classification of property pursuant to divorce, this Court has previously 

elucidated:

Because Tennessee is a “dual property” state, a trial court must 

identify all of the assets possessed by the divorcing parties as either 

separate property or marital property before equitably dividing the marital 

estate. Separate property is not subject to division. In contrast, Tenn. Code 

Ann. § 36-4-121(c) outlines the relevant factors that a court must consider 

when equitably dividing the marital property without regard to fault on the 

part of either party. An equitable division of marital property is not 

necessarily an equal division, and § 36-4-121(a)(1) only requires an 

equitable division.
- 18 -

McHugh v. McHugh, No. E2009-01391-COA-R3-CV, 2010 WL 1526140, at *3 (Tenn. 

Ct. App. Apr. 16, 2010) (internal citations omitted). Issues regarding the classification of 

assets present questions of fact. See Stratienko, 529 S.W.3d at 398-99. Our review of the 

trial court’s ruling regarding a question of fact is de novo with a presumption of 

correctness. See Tenn. R. App. P. 13(d); Burress v. Shelby Cty., 74 S.W.3d 844, 846 

(Tenn. Ct. App. 2001).

Concerning the definition of “marital property,” Tennessee Code Annotated § 36-

4-121(b)(1)(A) provides in pertinent part:

“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, except in 

the case of fraudulent conveyance in anticipation of filing, and including 

any property to which a right was acquired up to the date of the final 

divorce hearing, and valued as of a date as near as reasonably possible to 

the final divorce hearing date.

Additionally, the version of Tennessee Code Annotated § 36-4-121(b)(1)(B) (2014) in 

effect when the instant complaint was filed provided in relevant part that marital property 

“includes income from, and any increase in the value during the marriage of, property 

determined to be separate property in accordance with subdivision (b)(2) if each party 

substantially contributed to its preservation and appreciation.”2 

In contrast, “separate property” is defined as:

(A) All real and personal property owned by a spouse before marriage, 

including, but not limited to, assets held in individual retirement 

accounts (IRAs) as that term is defined in the Internal Revenue Code 

of 1986 (26 U.S.C.), as amended;

(B) Property acquired in exchange for property acquired before the 

marriage;

 

2 Effective April 20, 2015, the General Assembly amended Tennessee Code Annotated § 36-4-

121(b)(1)(B) to add additional examples of marital property not pertinent here, resulting in the 

recodification of the language quoted above as § 36-4-121(b)(1)(B)(i). See 2015 Tenn. Pub. Acts, Ch. 

202, § 1 (S.B. 161).
- 19 -

(C) Income from and appreciation of property owned by a spouse before 

marriage except when characterized as marital property under 

subdivision (b)(1);

(D) Property acquired by a spouse at any time by gift, bequest, devise or 

descent;

(E) Pain and suffering awards, victim of crime compensation awards, 

future medical expenses, and future lost wages; and

(F) Property acquired by a spouse after an order of legal separation 

where the court has made a final disposition of property.

Tenn. Code Ann. § 36-4-121(b)(2) (2021) (emphasis added).

It is well settled that assets acquired during a marriage are presumed to be marital 

property and that a party desirous of disputing this classification has the burden of 

proving by a preponderance of the evidence that the asset is separate property. See

Owens v. Owens, 241 S.W.3d 478, 486 (Tenn. Ct. App. 2007). This presumption can be 

rebutted, however, by evidence of circumstances or communications clearly indicating an 

intent that the property remain separate. See Batson v. Batson, 769 S.W.2d 849, 858 

(Tenn. Ct. App. 1988); see also Dunlap v. Dunlap, 996 S.W.2d 803, 814 (Tenn. Ct. App. 

1998) (“Despite the fact that certain property may have been acquired during the 

marriage, a party may rebut any presumption that the property is marital by 

demonstrating that the property actually was a gift to that spouse alone.”).

Concerning the partnership interest in Pioneer Properties, this Court directed the 

trial court on remand to make specific findings regarding whether “(1) the interest was a 

separate gift to wife, (2) husband made a substantial contribution to the preservation and 

appreciation of the asset, and (3) the doctrines of commingling and/or transmutation 

apply.” Long I, 2019 WL 3986281, at *6. In determining that the partnership interest 

was marital property, the trial court stated in its final order:

The Court finds that ownership of Pioneer Properties and its status as 

separate or marital was a significantly disputed issue both in the original 

trial, on appeal, and as a large focus of the new evidence and testimony 

submitted on remand. Husband testified during the original trial and 

reaffirmed on remand and [in] additional testimony that he had made 

significant contributions to Pioneer Properties during the course of the 

marriage, including helping to establish values from various properties, 

evaluating property of members for consider[ation], and performing 
- 20 -

activities for the upkeep of property owned by Pioneer Properties. Wife 

testified that Wife’s parents were the originators of Pioneer Properties and 

gifted interest in the entity to their children, including the Wife, and that 

Husband did not substantially contribute to the value.

The Court further notes Wife’s admission that distributions from 

Pioneer Properties, over $70,000, were deposited into a joint bank account. 

Wife admits that these distributions were marital, claiming that they were a 

gift to the marriage. Wife did not produce evidence of payment of gift 

taxes or gift tax returns concerning the supposed gift by Wife’s parents, and 

both Wife’s mother [L.W] or brother [S.R.] had no information in response 

to Husband’s questions concerning gift taxes or gift tax returns. The 

absence of such evidence along with Wife’s evasive responses to questions 

by Husband’s counsel, the Court finds significant in connection with 

Wife’s burden of proving that this asset indisputably acquired during the 

marriage was separate rather than marital. The Court finds that Wife’s 

admitted treatment of the distributions as marital assets, supports 

Husband’s credible testimony that the asset itself was a joint asset, and the 

Court further finds Wife’s testimony lacks credibility.

The Court finds that Wife acquired the interest in Pioneer Properties 

during the marriage, and the Court notes the initial presumption that this 

asset is marital property. The Court further credits Husband’s testimony 

that he made significant contributions to Pioneer Properties during the 

course of the marriage, and finds this testimony credible. The Court finds 

that Wife’s testimony is less credible, and does not accept Wife’s testimony 

that the property was a gift to her alone, and further that the other factors 

including Husband’s contributions separately preponderate in favor of a 

finding that this asset is marital property. For either of these reasons, the 

Court finds that Wife has not carried her burden of proving by the 

preponderance of the evidence that this asset is separate property. The 

Court further makes the alternative finding that transmutation and 

commingling would apply, even if the asset had been separate, based on 

Wife’s affirmative acts to join the Husband in the business, to involve him 

and his substantial contributions to the business, and to share in the 

distributions, to the joint account, all as a marital asset. The Court therefore 

finds that Pioneer Properties is marital property, subject to division by the 

Court.

Wife asserts that the trial court’s analysis was “flawed” in part because “[w]hether 

Husband contributed to the business and whether the distributions from the business were 
- 21 -

put into a joint bank account are completely separate issues from whether Wife has met 

her burden in proving the business is her separate property.” To the extent that Wife is 

arguing that Husband’s subsequent contributions to the value of Pioneer Properties and 

Wife’s deposit of distributions in a joint marital account should not affect an analysis of 

whether the partnership interest was originally a gift to Wife, we agree. We also confirm 

this Court’s previous determination in Long I that Wife’s deposits over time into a joint 

marital account of the $71,000.00 she had received in distributions from Pioneer 

Properties would not, “in and of itself,” have “transmute[d] the corpus of the asset into 

marital property” because the distributions always remained separate from the partnership 

interest itself. See Long I, 2019 WL 3986281, at *5 (citing Telfer v. Telfer, No. M2012-

00691-COA-R3-CV, 2013 WL 3379370, at *11 (Tenn. Ct. App. June 28, 2013); Luttrell 

v. Lutrell, No. W2012-02279-COA-R3-CV, 2014 WL 298845, at *5 (Tenn. Ct. App. Jan. 

28, 2014)). 

In Long I, this Court noted that in the original judgment then appealed from, the 

trial court had not made a finding “regarding whether wife met her burden to prove [the 

partnership interest] was a gift.” Long I, 2019 WL 3986281, at *3. Inasmuch as 

“[s]everal possible inferences could be drawn from the trial court’s order” finding that the 

partnership interest was marital property, this Court directed the trial court on remand to 

make specific findings of fact concerning whether the interest was a gift, whether 

Husband had contributed to the appreciation of the partnership interest, and whether the 

doctrines of commingling and transmutation would apply in this case to convert a 

separate property interest into a marital one. Id. at *3-6. 

However, upon the trial court’s determination on remand that Wife had failed to 

prove that the Pioneer Properties partnership was a gift, pursuant to Tennessee Code 

Annotated § 36-4-121(b)(2)(D), the trial court essentially found that Wife had failed to 

rebut the statutory presumption of marital property acquired during the marriage, 

meaning that the Pioneer Properties partnership interest had never been Wife’s separate 

property. Therefore, upon affirmation of this finding, any further analysis as to 

Husband’s contributions to the preservation and appreciation of the partnership interest 

would be relevant only as to the equitable distribution of the marital estate, which we will 

address in a subsequent section of this Opinion. See Tenn. Code Ann. § 36-4-121(c). 

Furthermore, any analysis of the doctrines of commingling and transmutation 

would be moot because such doctrines operate to transform separate property into 

marital. See Langschmidt v. Langschmidt, 81 S.W.3d 741, 747 (Tenn. 2002) (“In 

addition to the provisions of Tenn. Code Ann. § 36-4-121(b)(1)(b), courts in Tennessee 

have recognized two methods by which separate property may be converted into marital 
- 22 -

property: commingling and transmutation.”).3 As Wife indicates in subheadings within 

the argument section of her principal brief, questions of whether Husband made 

substantial contributions and whether the doctrines of commingling and transmutation 

should apply are only pertinent “[i]f this Court concludes that Wife did meet her burden” 

to prove that the partnership interest was a gift.

Concerning whether the partnership interest was a gift, we address at the outset a 

question raised by Husband as to the proper standard of review. Husband asserts that 

unlike other factual findings relative to classification of marital and separate property, 

Wife was required to prove by clear and convincing evidence that the partnership interest 

was an individual gift to her. Wife maintains that proof of a gift in the context of a 

divorce must only be proven by a preponderance of the evidence. Upon careful review of 

the applicable authorities, we agree with Husband to the extent that the elements required 

to prove that property was a gift must be established by clear and convincing evidence. 

See Trezevant v. Trezevant, 568 S.W.3d 595, 615 (Tenn. Ct. App. 2018) (“The party 

asserting that they acquired the property by gift has the burden of proving the essential 

elements of a gift by clear and convincing evidence[.]”). We note, however, that the trial 

court’s ultimate “classification and division of marital property enjoys a presumption of 

correctness and will be reversed or modified only if the evidence preponderates against 

the court’s decision.” See id. at 607 (quoting Dunlap, 996 S.W.2d at 814) (emphasis 

added).

“A gift is a ‘voluntary transfer of property to another made gratuitously 

and without consideration.’” Dunlap, 996 S.W.2d at 816 (quoting BLACK’S LAW

DICTIONARY 619 (5th ed. 1979) (emphasis in Dunlap omitted). In Trezevant, a divorce 

case, this Court explained the requirements for a party to prove that property was 

acquired as a gift as follows: 

The party asserting that they acquired the property by gift has the burden of 

proving the essential elements of a gift by clear and convincing evidence: 

(1) “the intention by the donor to make a present gift,” and (2) “the delivery 

of the subject gift by which complete dominion and control of the property 

 

3 As our Supreme Court explained in Langschmidt: 

[S]eparate property becomes marital property [by commingling] if inextricably mingled 

with marital property or with the separate property of the other spouse. If the separate 

property continues to be segregated or can be traced into its product, commingling does 

not occur. . . . [Transmutation] occurs when separate property is treated in such a way as 

to give evidence of an intention that it become marital property.

81 S.W.3d at 747 (quoting 2 Homer H. Clark, The Law of Domestic Relations in the United States § 16.2 

at 185 (2d ed. 1987)) (other internal citations omitted).
- 23 -

[was] surrendered by the donor.” See Hansel v. Hansel, 939 S.W.2d 110, 

112 (Tenn. Ct. App. 1997); Brewer v. Brewer, No. M2010-00768-COAR3-CV, 2011 WL 532267 at *3 (Tenn. Ct. App. Feb. 14, 2011).

Trezevant, 568 S.W.3d at 615. Although a guiding principle is that the testimony of a 

beneficiary is insufficient to establish an inter vivos gift, see Harris v. Taylor, No. 

W2004-02855-COA-R3-CV, 2006 WL 772007, at *4 (Tenn. Ct. App. Mar. 28, 2006), 

“‘[i]ntent is determined from the totality of the circumstances,’” see Trezevant, 568 

S.W.3d at 615 (quoting Harris, 2006 WL 772007, at *4).

Wife argues that testimony presented in this matter was sufficient to prove that her 

partnership interest in Pioneer Properties had been a gift to her and therefore her separate 

property. In Long I, this Court noted that Wife had testified during trial “that her interest 

in Pioneer Properties was a gift from her family to her alone, and that it was always 

intended to be separate.” Long I, 2019 WL 3986281, at *3. On remand, the trial court 

expressly found that Wife’s testimony, which she reiterated during the remand hearing,

was “less credible” than Husband’s when she maintained that her interest in Pioneer 

Properties was separate property because it constituted an individual gift from her parents 

in 1993. Husband argued in Long I “that [W]ife did not meet her burden in establishing it 

was a gift, because she presented ‘no other supporting documentation’ and ‘no 

corroborating witnesses.’” Id. 

In response, Wife presented testimony on remand from her mother (L.W.), who 

maintained that the partnership interest was intended as a gift to Wife individually from 

her parents and that for that reason, L.W. and her husband never included any of their 

children’s spouses in Pioneer Properties or in meetings concerning the business. Wife 

also presented testimony from her brother (S.R.), who when questioned regarding how 

Pioneer Properties originated, stated: “My dad put it together for our family trust.” The 

trial court found it significant, however, that L.W. and S.R. “had no information in 

response to Husband’s questions concerning gift taxes or gift tax returns.” When 

questioned regarding whether she and her husband had ever declared having given gifts 

of partnership interest on their income tax returns, L.W. stated: “I have no idea. I don’t 

remember back that many years.”

Wife acknowledges that she did not present any other proof, apart from her 

testimony and that of L.W. and S.R., that her partnership interest was a gift from her 

parents. During trial, Wife did present the original partnership agreement, dated April 

13, 1993, reflecting that it was an agreement among six partners, who were identified by 

name in the agreement and whom Wife explained were her stepfather, brother, sister, two 

stepbrothers, and herself. We note that although L.W. testified that Wife’s partnership 

interest was a gift to Wife from L.W. and her husband (Wife’s stepfather), L.W. was not 
- 24 -

actually a party to the 1993 partnership agreement. Wife testified that the partnership 

agreement was revised in 2002 after her stepfather died and S.R. had sold his interest. 

According to Wife, the partners in the revised 2002 agreement were Wife, L.W., Wife’s

sister, and Wife’s two stepbrothers. Wife subsequently testified that at the time of trial, 

Pioneer Properties had three partners: Wife, L.W., and Wife’s sister.

In the 1993 agreement, a section entitled “Contribution of Partners” reads as 

follows:

The partners herein own certain real and personal property that they 

wish to convey and contribute to the partnership. A complete list of all 

assets owned by the partnership as of the date of execution of this 

Agreement is attached hereto and made a part hereof as Exhibit “A” by 

reference.[4]

All partners agree that each individual partner has contributed equal 

amounts of either labor, expertise, personal property, or real property to the 

partnership and that each partner’s capital account is presently equal to all 

other partners capital account.

On its face, the 1993 partnership agreement reads as though each partner to Pioneer 

Properties, including Wife, “convey[ed] and contribute[d]” “certain real and personal 

property” upon execution of the agreement. 

Although Wife’s testimony and that of her mother and brother would indicate that 

Wife’s stepfather was the only one of the original six partners to contribute property to 

the partnership, the language of the partnership agreement explicitly states otherwise. As 

such, the partnership agreement does not support a finding that Wife’s interest in Pioneer 

Properties was a gift. See, e.g., Bewick v. Bewick, No. M2015-02009-COA-R3-CV, 2017 

WL 568544, at *8 (Tenn. Ct. App. Feb. 13, 2017) (determining that the husband had 

failed to establish that his ownership interest in a corporation was a gift from his father 

and stating: “[A]lthough Husband testified at trial that he did not pay anything for the 

interest he acquired in the Indiana LLC, we note that the company’s Operating 

Agreement clearly states otherwise.”).

In support of her argument that testimony alone should be sufficient to prove that 

the partnership interest was a gift, Wife relies on this Court’s decision in Telfer v. Telfer, 

No. M2012-00691-COA-R3-CV, 2013 WL 3379370 (Tenn. Ct. App. June 28, 2013). In 

Telfer, during the parties’ marriage, the wife’s father had “transfer[red] ownership of 

 

4

“Exhibit A” to the 1993 partnership agreement is not in the record and does not appear to have been 

included with the agreement when it was admitted as an exhibit at trial.
- 25 -

some of his assets to Wife through the creation of business entities, in order to avoid the 

payment of gift and inheritance taxes upon his death.” Telfer, 2013 WL 3379370, at *1. 

Based primarily on testimony presented by the wife and her father, the Telfer trial court 

found that the wife’s ownership interests in two companies had been gifts made to her 

individually from her father. Id. at *5. On appeal, the husband argued, inter alia, that the 

trial court had erred in this finding as to one of the two companies. Id. at *8. This Court 

affirmed the trial court’s finding that the ownership interest in the company at issue was a 

gift to the wife from her father. Id.5 

Although we recognize Wife’s point that testimony may be sufficient to establish 

interest in a company as an individual gift, see id., we find the situation in this case to be 

factually distinguishable from that in Telfer. Here, the trial court in its final order made 

an express credibility determination in declining to “accept Wife’s testimony that the 

property was a gift to her alone.” The trial court found that Wife’s responses to questions 

concerning the Pioneer Properties partnership interest had been “evasive,” and the court

was troubled by the lack of information concerning “gift taxes or gift tax returns” in 

L.W.’s and S.R.’s respective testimonies. Emphasizing that the trial court’s credibility 

determinations are afforded great deference on appeal, we discern no reason to disturb the 

trial court’s findings in this regard. See Keyt, 244 S.W.3d at 327 (“[W]here issues of 

credibility and weight of testimony are involved, this Court will accord considerable 

deference to the trial court’s factual findings.”). 

We therefore determine that Wife’s evidence offered in support of the Pioneer 

Properties interest as a gift was not clear and convincing. See In re Bernard T. 319 

S.W.3d 586, 596 (Tenn. 2010) (“Clear and convincing evidence enables the fact-finder to 

form a firm belief or conviction regarding the truth of the facts, and eliminates any 

serious or substantial doubt about the correctness of these factual findings.”) (internal 

citations omitted). The trial court did not err in finding that Wife failed to carry her 

burden of proving that the partnership interest in Pioneer Properties was a gift to her 

alone.

Having determined that the evidence preponderates in favor of the trial court’s 

finding that Wife failed to prove by clear and convincing evidence that the partnership 

interest in Pioneer Properties was an individual gift to her, we further determine that any 

additional analysis of whether the partnership interest could have been transformed from 

separate to marital property by Husband’s contributions to Pioneer Properties or by 

operation of the doctrines of commingling or transmutation is pretermitted as moot. The 

 

5 This Court ultimately determined in Telfer that despite the ownership interest in one company having 

been an individual gift to the wife, it was marital property because the parties’ marital funds had helped to 

preserve the company’s assets when the parties had paid federal income taxes on the wife’s interest 

without a corresponding distribution from the company to her. Telfer, 2013 WL 3379370, at *13. 
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trial court did not err in classifying Wife’s partnership interest in Pioneer Properties as 

marital property.

VI. Equitable Distribution of Marital Estate

Wife contends that the trial court’s distribution of the parties’ marital property was 

inequitable because the court did not properly consider the statutory factors provided in 

Tennessee Code Annotated § 36-4-121(c). Wife specifically argues that the trial court 

improperly considered her separate property under two different statutory factors. 

Although not directly addressing this specific argument, Husband contends that the trial 

court properly considered all of the factors and equitably distributed the marital property. 

Upon thorough review of the record in light of the statutory factors, we determine that the 

trial court properly considered the factors in fashioning what it found to be an equitable

distribution of the marital property. 

We note that although the values of some properties, including the Pioneer 

Properties partnership interest, the marital residence, Stonecrest, and Caney Fork, were 

disputed during the remand hearing, neither party has raised an issue on appeal 

concerning the trial court’s valuation of any property. In addition, the parties’ respective 

Tennessee Court of Appeals Rule 7 charts reflect identical amounts for individual 

properties as valued by the trial court. However, the parties differ in their mathematical 

calculations concerning the total of these values and the percentages distributed to each 

party by the trial court. Upon review, we determine that Wife’s calculations in her Rule 7 

chart are mathematically correct. She lists the trial court’s value for the total marital 

property awarded to Husband as $734,500.00 and for the total marital property awarded 

to her as $757,027.59, yielding a percentage distribution of 51% to Wife and 49% to 

Husband.6 In addition, the trial court adopted an undisputed valuation of Wife’s separate 

property, apart from the George Smith Road Property, in the total amount of 

$500,000.00.

The version of Tennessee Code Annotated § 36-4-121(c) (2014) in effect at the 

time the complaint in the instant action was filed provided:

(c) In making equitable division of marital property, the court shall 

consider all relevant factors including:

(1) The duration of the marriage;

 

6

In an apparent mathematical error, Husband calculates the trial court’s valuation of the total marital 

property awarded to him as $732,000.00 and of the total marital property awarded to Wife as 

$787,000.00, which would have yielded a percentage distribution of 52% to Wife and 48% to Husband.

 
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(2) The age, physical and mental health, vocational skills, 

employability, earning capacity, estate, financial liabilities 

and financial needs of each of the parties;

(3) The tangible or intangible contribution by one (1) party to the 

education, training or increased earning power of the other 

party;

(4) The relative ability of each party for future acquisitions of 

capital assets and income;

(5)(A)The contribution of each party to the acquisition, preservation, 

appreciation, depreciation or dissipation of the marital or 

separate property, including the contribution of a party to the 

marriage as homemaker, wage earner or parent, with the 

contribution of a party as homemaker or wage earner to be 

given the same weight if each party has fulfilled its role;

 (B) For purposes of this subdivision (c)(5), dissipation of assets 

means wasteful expenditures which reduce the marital 

property available for equitable distributions and which are 

made for a purpose contrary to the marriage either before or 

after a complaint for divorce or legal separation has been 

filed.

(6) The value of the separate property of each party;

(7) The estate of each party at the time of the marriage;

(8) The economic circumstances of each party at the time the 

division of property is to become effective;

(9) The tax consequences to each party, costs associated with the 

reasonably foreseeable sale of the asset, and other reasonably 

foreseeable expenses associated with the asset;

(10) The amount of social security benefits available to each 

spouse; and
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(11) Such other factors as are necessary to consider the equities 

between the parties.

In its final order, the trial court considered the statutory factors as they are 

provided in the current version of Tennessee Code Annotated § 36-4-121(c) (2021), 

rather than the version governing this action. However, because the only statutory factor 

added to the statute by a subsequent amendment was one the trial court found to be 

inapplicable to this case, the distinction is one involving the numbering of factors only 

and constitutes harmless error. Effective July 1, 2017, the General Assembly amended 

Tennessee Code Annotated § 36-4-121(c) by adding a new subdivision (10) addressing 

valuation of a “closely held business or similar asset” and renumbering the subsequent 

subdivisions. See 2017 Tenn. Pub. Acts, Ch. 309, § 1 (H.B. 348). The trial court’s 

reference below to the inapplicability of factors (10) and (11) therefore refers to a factor 

(10) that was not in effect when the instant action was filed and a factor (11) that refers to

the former factor (10) concerning social security benefits. We note that the record 

supports the trial court’s findings that the parties did not present evidence regarding the 

tax consequences associated with the sales of specific assets (factor nine) or social 

security benefits available to each spouse (factor ten). See Tenn. Code Ann. § 36-4-

121(c) (2014).

In distributing the marital property, the trial court set forth its consideration of the 

statutory factors as follows:

Tennessee Code Annotated § 36-4-121(c)(5) that both parties served 

as wage earners. Although the Wife did make more money than the 

Husband. It should be noted that the Husband pursued work in the ministry 

as well as his full-time work and had the Wife’s blessing to do so.

Tennessee Code Annotated § 36-4-121(c)(6) the Wife has a separate 

interest in Pioneer Realty; RLW Partnership; and Robinson Family 

Properties LP, and the George Smith Road [property].

Tennessee Code Annotated § 36-4-121(c)(7) that the Wife owned a 

house on George Smith Road. That was the only testimony as to the estate 

at the time of the marriage.

Tennessee Code Annotated § 36-4-121(c)(8) at the time of division 

the wife is still working for her family business and will continue to do so. 

The husband is working for a factory in Crossville and that is very physical 

work.
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The Court finds there was no significant testimony as to T.C.A. § 

36-4-121(c)(9) & (10) & (11).

Tennessee Code Annotated § 36-4-121(c)(12) that the Court found 

separate property in this matter to be the George Smith Road house, which 

was awarded to the Wife; furthermore, the Wife’s separate interest in 

Pioneer Realty, RLW Partnership and Robinson Family Properties LP, are 

valued at approximately five hundred thousand dollars ($500,000.00).

For the reasons previously stated, the Court finds and concludes that 

Pioneer Properties is a marital asset.

The Court further finds and concludes that Wife has substantial 

separate assets, and that Husband has less ability to accumulate assets based 

on his physically demanding work history.

(Paragraph lettering omitted.)

Although the trial court began its express consideration of statutory factors with 

factor (5), the court did make findings of fact concerning factors (1)-(4) in a preceding 

section of its final order that we deem to be supportive of the court’s equitable 

distribution of the marital property. As to factor one, the court found that the parties had 

an “extremely long-term marriage.” We agree, noting that even setting aside the parties’ 

first marriage and considering only the second marriage through the date of the 

complaint’s filing, the parties were married for twenty-seven years. Regarding the 

parties’ relative age, health, employability, and financial needs (factor two), the trial court

stated the following:

The Court finds that the parties have similar vocational skills as they 

have both been realtors; however, their work history is vastly different as 

the wife has primarily worked for the family business. The wife became a[] 

realtor in 1987 and later a broker. The husband became a[] realtor in 1993 

and was active until 2014. The Husband also worked over the course of the 

marriage at Crossville Ceramics and Dana and Stonepeak Ceramics. The 

Court finds that though both Husband and Wife worked, Wife made more 

money over the course of the marriage. Husband, at the Wife’s blessing, 

worked in ministry since 1987 with pastoring churches and also doing jail 

ministry and a printing ministry which he helps transport these books of the 

bible to different part[s] of the country for distribution. The husband has 

had other jobs that always made lower income than the Wife. Based on the 
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extremely lengthy marriage, where Wife routinely made more money than 

Husband, the Court finds that Husband is the disadvantaged spouse.

Wife has not raised an issue concerning the trial court’s finding that Husband was the 

economically disadvantaged spouse, and the record supports this finding.

As to factor three, particularly the tangible or intangible contributions by one party 

to the increased earning power of the other, in its analysis of the Pioneer Properties 

partnership interest, the trial court found on remand that Husband had made substantial 

contributions to the appreciation of Pioneer Properties, which the parties do not dispute 

had increased in value significantly since its inception in 1993. Although Wife asserts 

that Husband’s contributions were not significant, the trial court credited Husband’s 

testimony, finding that he had contributed to Pioneer Properties by “helping to establish 

values from various properties, evaluating property of members for consider[ation], and 

performing activities for the upkeep of property owned by Pioneer Properties.” 

Wife presented a cancelled check reflecting that Husband had been paid $375.00 

in November 2007 for mowing property owned by Pioneer Properties, and she asserts 

that Pioneer Properties could have hired anyone to perform many of the tasks performed 

by Husband. However, the fact remains that Husband performed these tasks, including 

offering his opinion as to the value of properties, often without compensation other than 

the increased value of the partnership interest. Additionally, factor four, the relative 

ability of each party to make future acquisitions, is implicated by the trial court’s finding 

at the close of its analysis that “Wife has substantial separate assets, and that Husband has 

less ability to accumulate assets based on his physically demanding work history.”

In considering the remaining applicable factors, the trial court emphasized the 

parties’ relative contributions to the marriage as wage earners, the value of Wife’s 

separate property, and the relative economic circumstances of the parties at the time of 

the final judgment. Wife argues that the trial court overemphasized the value of her 

separate property by considering it under factor six and also as an additional factor

“necessary to consider the equities between the parties.” See Tenn. Code Ann. § 36-4-

121(c)(11)(2014). Wife offers no authority, and our research has revealed none, to 

support her contention that it is reversible error for the trial court to reconsider a factor 

already listed when considering “[s]uch other factors as are necessary to consider the 

equities between the parties.” See id. Moreover, the balancing of statutory factors is not 

a mathematical equation but a wholistic analysis. As this Court has previously explained 

with regard to a trial court’s distribution of marital property:

The approach to dividing a marital estate should not be mechanical, 

but rather should entail carefully weighing the relevant factors in Tenn. 
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Code Ann. § 36-4-121(c) in light of the evidence that the parties have 

presented. Flannary v. Flannary, 121 S.W.3d [647,] 650-51 [(Tenn. 

2003)]; Tate v. Tate, 138 S.W.3d 872, 875 (Tenn. Ct. App. 2003); Kinard v. 

Kinard, 986 S.W.2d [220,] 230 [(Tenn. Ct. App. 1998)]. Trial courts have 

broad discretion in fashioning an equitable division of marital property,

Jolly v. Jolly, 130 S.W.3d 783, 785 (Tenn. 2004); Fisher v. Fisher, 648 

S.W.2d 244, 246 (Tenn. 1983), and appellate courts must accord great 

weight to a trial court’s division of marital property. Wilson v. Moore, 929 

S.W.2d 367, 372 (Tenn. Ct. App. 1996); Batson v. Batson, 769 S.W.2d 849, 

859. Accordingly, it is not our role to tweak the manner in which a trial 

court has divided the marital property. Morton v. Morton, 182 S.W.3d 

[821,] 834 [(Tenn. Ct. App. Aug. 15, 2005)]. Rather, our role is to 

determine whether the trial court applied the correct legal standards, 

whether the manner in which the trial court weighed the factors in Tenn. 

Code Ann. § 36-4-121(c) is consistent with logic and reason, and whether 

the trial court’s division of the marital property is equitable. Jolly v. Jolly,

130 S.W.3d at 785-86; Gratton v. Gratton, No. M2004-01964-COA-R3-

CV, 2006 WL 794883, at *7 (Tenn. Ct. App. Mar. 28, 2006) (No Tenn. R. 

App. P. 11 application filed); Kinard v. Kinard, 986 S.W.2d at 231.

Owens, 241 S.W.3d at 490. See Manis, 49 S.W.3d at 306 (holding that appellate courts 

reviewing a distribution of marital property “ordinarily defer to the trial judge’s decision 

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.”).

In the case at bar, although the trial court’s distribution of marital property is not 

exactly mathematically equal with a 51-49 ratio in Wife’s favor, we determine that it is 

equitable based on consideration of the statutory factors. In response to Wife’s argument, 

we do not find that the trial court overemphasized Wife’s separate assets, especially when 

coupled with the trial court’s finding that she had the greater ability to earn future income 

and acquire future assets. We determine that the manner in which the trial court weighed 

the factors contained in Tennessee Code Annotated § 36-4-121(c) was consistent with 

logic and reason and that the result to these parties was equitable. As such, we conclude 

that the trial court’s distribution of marital property did not lack proper evidentiary 

support and did not result in an “‘error of law or misapplication of statutory requirements 

and procedures.’” See Keyt, 244 S.W.3d at 327 (quoting Herrera v. Herrera, 944 S.W.2d 

379, 389 (Tenn. Ct. App. 1996)). We therefore affirm the trial court’s equitable 

distribution of marital property.

VII. Conclusion
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For the foregoing reasons, we affirm the judgment of the trial court in its entirety. 

We remand this case for enforcement of the judgment and collection of costs below. 

Costs on appeal are taxed to the appellant, Carolyn Diane Long.

s/ Thomas R. Frierson, II____________ 

THOMAS R. FRIERSON, II, JUDGE