### IN THE COURT OF APP EALS OF TENNESS EE AT NAS HVILLE A ssi gne d on Br ie fs S ep te mb er 21, 200 7
SA RA H ELIZA BETH FE RGU SON v. JOHN NY WAY NE FE RGU SON

Appeal from t he Chancery Court for Lawr ence C ounty No. 11376-03 Jim T. Hamilton, Chancellor

No. M2005- 02468-COA-R 3-CV - Filed February 13, 2008

P AT R I C I A J. C OTTRE LL , P.J ., M. S. d iss e nti ng in p art

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Because I disagr ee w ith the majority’s conclusi on as to the cla ssification of some of the persona l property at issue in this appea l, I must dissent. It is undisputed that the boat and tra iler we re Hu s band’s se parate prope rty prior to the mar riage . Consequently, we must begin with the presumption that they should be cla ssified as his separ ate pro p er t y . Tenn. Code Ann. § 36- 4- 121(b) (2 ). T h ere fore , the burde n of proving that the pr operty ha d been tr ansmuted into marital property lay with Wife. Base d on the rec ord befor e us, I do not believe that Wife met that burden.

The trial c ourt’s orde r does not re flec t the basis upon which it awa rded the boat and tra iler to Wife. Conseque ntly, it i s for this court to r eview the re cord a nd deter mine on its own where the preponde ranc e of the evidenc e lies. The specific question is w hether Wife established conduc t by Husband re garding the boat so as to establish an intent on his pa rt to ma ke a gif t of the boat to the marital estate . Transmutation occ urs when the parties to a marria ge tre at prope rty in such a wa y as to evidence an intention that it become marital property. Langschmidt v. Lanschmidt , 81 S.W.3d 74 1, 74 7 ( Te nn . 2 00 2) . I n d e te rm ini ng wh e the r o the rw ise se pa rate pr op e rt y h a s bee n c on ve rt e d to
mari ta l pr op e rt y, c ou rt s lo ok to the int e nt a nda c tio ns of th e part ie s, a ndthe de te rm inatio n is depende nt upon the fac ts of an individual case

. Wi lso n v. Mo ore , 92 9 S.W .2 d 3 67 , 3 74 (T e nn . Ct

. Ap p. 19 96 ); Batson v. Batson , 769 S.W.2d 849, 858 (Tenn. Ct. App. 1988).

No ne of the us ua l or

mor e ob vio us ind ic e s o f a n in te nt t o g if t th e mari ta l est ate wi th separ ately owned property, such as taking title in joint names, is present here in. See W oodward v. Wo od war d , 240 S.W.3d 825, 829 (Tenn. Ct. App. 2007). I nstead, the ma jority relies primarily on Husband’s de position st atements re garding the boat, along with other items, wher ein he stated, “ As long a s w e w a s to g e th e r it w a s o u r s

. ” W h il e th a t s tate me n t may in d ic a te a n in te n t to s h ar e u s e of the boat during the ma

rriage , it does not, in my opinion, indica te an intent to transfe r owne rship. The qualifying condition of the parties being “together ” is inc onsistent with an intent tha t ow nership be
c on ve rt e d to jo in t. Add ition a lly , H us ba ndte sti fi e d th a t he pla c e d th e bo a t a ndtr a ile r w ith his daughter as collate ral for loans she m ade to him, indicating his exer cise of owner ship and his belief that he wa s the sole owner . It also indicates a lack of intent to gift the boat and tra iler to the marital estate. A ccor dingly, I would hold tha t the boat and trailer rema ined Husband’s separ ate pr operty a nd-2-

wer e, conse quently, not subject t o distribution as part of t he marital estate. In a ll other respe cts, I
concur with the majority opinion.

____________________________________ PAT RI CI A J . CO TT REL L, P.J ., M. S.