IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

August 15, 2023 Session

JENNIFER LYNN MORGAN ESPOSITO v. JOSEPH DIEGO ESPOSITO

Appeal from the Chancery Court for Campbell County

No. 2021-CV-22 Elizabeth C. Asbury, Chancellor

No. E2022-01784-COA-R3-CV

In this divorce action, the trial court entered an order in December 2021, according to the 

parties’ announced agreement, granting the parties a divorce on stipulated grounds and 

directing, inter alia, that the marital residence would be sold at auction and that any 

“marital personal property” upon which the parties could not reach an agreement prior to 

the auction would be “sold by the court when the [marital residence was] auctioned.” 

The court also memorialized the parties’ agreement that each would keep the vehicles in 

his or her possession and be responsible for debts incurred in each of their respective 

names. In an order entered in April 2022, the court confirmed that the marital residence 

had been sold at auction to the husband. Following a bench trial, the court found that, 

with the exception of two personal items belonging to the wife, the marital residence and 

“the contents located at the property” were all marital property; that the proceeds from 

“marital property located at the home” were included in the auction sale proceeds; and 

that the proceeds from the auction should be divided equally between the parties. The 

wife has appealed. Upon careful consideration, we affirm the trial court’s findings that 

the marital personal property located at the marital residence had been sold with the 

marital residence and that the auction sale price reflected the total valuation of both the

residence and personal property sold. We also affirm the trial court’s adoption of the 

parties’ agreement regarding vehicles and debts. However, we vacate the trial court’s 

classification of the marital residence as marital property and the court’s overall 

distribution of marital property. We remand for (1) further findings of fact and 

conclusions of law regarding classification of the marital residence and, if necessary, 

identification of any increase in value of the marital residence that resulted from the 

husband’s significant contributions during the marriage; (2) a limited evidentiary hearing 

to identify, classify, and value the parties’ bank accounts; and (3) reconsideration of the 

marital property distribution inclusive of the findings on remand and pursuant to the 

statutory factors provided in Tennessee Code Annotated § 36-4-121(c) (2021). 

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

Affirmed in Part, Vacated in Part; Case Remanded

12/12/2023
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THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which D. MICHAEL 

SWINEY, C.J., and J. STEVEN STAFFORD, P.J., W.S., joined.

Ben H. Houston, II, Knoxville, Tennessee, for the appellant, Jennifer Lynn Morgan 

Esposito.

Henry Daniel Forrester, III, Clinton, Tennessee, for the appellee, Joseph Diego Esposito.

OPINION

I. Factual and Procedural Background

The plaintiff, Jennifer Lynn Morgan Esposito (“Wife”), filed a complaint for 

divorce against the defendant, Joseph Diego Esposito (“Husband”), on January 26, 2021, 

in the Campbell County Chancery Court (“trial court”). The parties had been married in 

June 2012, and no children had been born to the marriage. Wife alleged the statutory 

ground of inappropriate marital conduct or, in the alternative, irreconcilable differences. 

At the time of the complaint’s filing, Wife was fifty-five years of age, and Husband was 

sixty-four. Wife alleged that Husband had exhibited “outrageous and harassing conduct” 

and requested that Husband voluntarily vacate the marital residence, stating that if he did 

not, she would “be forced” to seek his removal.

Concerning the parties’ financial arrangements, Wife averred in her complaint:

Throughout the marriage of the parties the parties have scrupulously 

kept their finances separate with respect to which as far as [Wife] is aware, 

there is no marital debt nor marital asset. The parties have resided in the 

home which was owned by [Wife] prior to the marriage of the parties and 

which is financed solely in her name, and [Husband] has made a few 

payments on the said dwelling over the years. Each party otherwise is 

possessed of their own separate personal property and separate debts.

The home to which Wife referred consisted of improved real property located on 

Hiwassee Drive in Jacksboro, Tennessee (“the Marital Residence”) and was titled solely 

in Wife’s name.

Husband filed an answer and counter-complaint on February 12, 2021, admitting 

that the parties had developed irreconcilable differences but denying all substantive 

allegations against him. In his counter-complaint, Husband alleged the statutory ground 

of irreconcilable differences or, in the alternative, inappropriate marital conduct. 
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Husband did not specify any allegations against Wife, and, apart from generally denying 

her description of their financial arrangements, did not aver specific financial details. On 

June 30, 2021, Husband filed a lien lis pendens regarding the Marital Residence in an 

amount not to exceed one-half of its current market value.

Wife filed a petition for a no-contact order of protection against Husband on July 

28, 2021, alleging that he had sexually assaulted her and “threatened to burn down the 

house.” On September 8, 2021, Husband filed an ex parte motion for exclusive 

possession of the Marital Residence and entry of a restraining order against Wife. 

Husband averred that the parties had appeared before the trial court for a hearing on 

Wife’s petition for an order of protection and had “entered into an Agreed Order” on 

August 25, 2021. According to Husband, the agreement had granted him possession of 

the Marital Residence on weekdays and Wife possession on weekends provided that she 

gave Husband forty-eight hours’ notice of her arrival. Husband alleged that he had 

arrived home on Labor Day weekend to find Wife in the Marital Residence without 

notice and that she had threatened him with a firearm, ultimately resulting in her arrest. 

Husband requested exclusive possession of the Marital Residence and a restraining order 

preventing Wife from coming onto the premises. 

Wife filed an answer to Husband’s motion for exclusive possession, 

acknowledging the existence of the agreed order but denying that the order required her 

to give notice of weekend occupancy.1 Wife concomitantly filed a motion requesting that 

the court order the Marital Residence sold “by auction immediately” and direct Husband 

to vacate the property.

Following a hearing conducted on November 17, 2021, the trial court entered an 

order on December 13, 2021, approving a partial agreement announced by the parties, 

which stipulated, inter alia, that the Marital Residence would be sold at auction with the 

proceeds to be paid into the trial court’s registry. Pursuant to the agreement, the court 

granted the parties a divorce on stipulated grounds and appointed Special Master Dennis 

Potter to conduct the sale of the Marital Residence. See Tenn. Code Ann. § 36-4-

121(a)(3) (Supp. 2023) (providing that a trial court has authority to order an auction sale 

of property when equitably distributing a marital estate). The court also ordered that 

Wife’s maiden surname of “Morgan” be restored to her, that each party keep the vehicle 

in his or her possession, that each party be responsible for debt incurred in his or her 

name, and that the parties have no contact with one another. Noting that Husband had 

current possession of the Marital Residence, the court allowed him forty-five days to 

vacate the property. The parties agreed to a date, December 4, 2021, when Wife could 

“retrieve her personal items and family heirlooms” from the Marital Residence. They 

 

1 The August 2021 agreed order is not in the appellate record.
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further agreed: “Parties[’] marital personal property may be divided by agreement; 

however if no agreement is reached same will be sold by the court when the property is 

auctioned.” The parties “reserve[ed] the right to further address the financial investment 

in the marital property to the court” and agreed that each would submit financial 

information concerning his or her investment in the Marital Residence and any “claim to 

more than fifty (50%) percent of the property sale proceeds.”

On December 20, 2021, attorney Joseph G. Coker filed an “Attorney’s Report on 

Title” regarding the Marital Residence. The record contains an advertisement for a courtordered online auction of the Marital Residence through Ayers Auction & Real Estate

Company. Although this advertisement was not admitted as an exhibit in the subsequent 

bench trial, it is in the appellate record and appears to have been an attachment to Mr. 

Coker’s filing. On February 4, 2022, Husband filed a document entitled, “Defendant’s 

Financial Information Relative to His Investment in the Marital Property.” Husband 

claimed to have individually invested a total of $265,604.53 in the Marital Residence, 

and he attached copies of some checks made out to Wife and many receipts for home 

materials and repairs. 

On February 9, 2022, the special master filed a “Report of Sale” with the trial 

court, attaching and incorporating a “Contract for Sale of Real Estate” proffered by Ayers 

Auction and Real Estate Company. According to the special master’s report, the Marital 

Residence was sold on January 27, 2022, to Husband as “the last, highest and best bidder 

for the sum of $362,500.00 plus a 10% bidder premium in the amount of $36,250.00 for a 

total bid of $398,750.00.” The special master stated in part:

[I]n obedience to a Court Ordered Sale of real property at public auction 

rendered in this cause, and after due advertising, Ayers Auction and Real 

Estate Company, at the time and place fixed in their advertisement, to sell 

at public auction, on the terms specified in said Order, the real and personal 

property therein mentioned, described and ordered to be sold.

(Emphasis added.) The underlined phrase above was the only mention of personal 

property in the special master’s report, and neither the report nor the real estate contract 

itemized the price of any piece of personal property. The special master also noted that 

“[t]he bid remained open for the required ten days raise period with no additional bid 

being submitted.” He detailed sales expenses totaling $47,292.18, which included 

property taxes, Mr. Coker’s fee, the special master’s fee, and the auction company’s 

advertising and commission.

The trial court entered its “Final Judgment of Divorce Only” on February 22, 

2022, confirming the court’s prior grant to the parties of a divorce on stipulated grounds. 
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The court “reserved for future determination” “all other matters relating to the divorce 

itself and relating to property issues, debt issues, alimony issues, and other financial 

matters relating to the parties.”

On April 11, 2022, the trial court entered an “Order Confirming Sale of Property,” 

confirming and approving the special master’s report of the sale of “real property” and 

finding that “a commercially reasonable and fair price was obtained.” The court 

authorized the special master “to distribute the remainder of the proceeds to the parties 

herein, after payment of fees and expense, set out herein, after a proper distribution is 

determined by this court.” The court did not mention personal property in the order 

confirming the sale.

The trial court conducted a bench trial on September 13, 2022, concerning issues 

of property classification and distribution. No transcript of this proceeding is in the 

record, but following a subsequent hearing upon Wife’s statement of the evidence and 

Husband’s objections to her statement, the trial court entered an approved statement of 

the evidence pursuant to Tennessee Rule of Appellate Procedure 24. According to this 

statement, the parties and the special master were the only witnesses to testify during the 

bench trial. The primary points of dispute between the parties’ respective testimonies 

were (1) whether the Marital Residence should be classified as marital or separate 

property and (2) whether the personal property remaining at the Marital Residence had 

been properly sold and accounted for in the sale of the Marital Residence.

 

In a “Final Order Distributing Property,” entered on November 23, 2022, the trial 

court concluded that (1) Husband had contributed significantly to the purchase and 

mortgage payoff of the Marital Residence and had otherwise contributed to the home’s 

value such that the Marital Residence was marital property and (2) any marital personal 

property remaining in the home at the time of the auction had been properly sold pursuant 

to the court’s prior order and without a timely objection from Wife. Noting that the Clerk 

and Master Registry had $351,403.46 “from the sale of the residence and contents,” the 

trial court awarded “an equitable portion of $175,701.73,” or fifty percent, to each party. 

The court directed Husband to “make diligent search” for two Christmas items that Wife 

had indicated were at the Marital Residence and were Wife’s personal property. The 

court also ordered each party to be responsible for his or her own debts and attorney’s 

fees. Wife timely appealed.

II. Issues Presented

Wife presents four issues on appeal, which we have reordered and restated slightly 

as follows:
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1. Whether the trial court erred by classifying all proceeds from the 

sale of the Marital Residence as marital property.

2. Whether the trial court erred by failing to classify and divide at least 

$67,175.00 worth of personal property based on its conclusion that 

the personal property had been sold with the Marital Residence.

3. Whether the trial court erred by failing to identify, classify, and 

assign reasonable values to all of the parties’ assets prior to making 

an equitable division of the assets.

4. Whether the trial court erred by failing to properly consider the 

factors set forth in Tennessee Code Annotated § 36-4-121(c) when 

fashioning its equitable distribution of marital property.

III. Standard of Review

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

divorce, our Supreme Court has explained 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).
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Keyt v. Keyt, 244 S.W.3d 321, 327 (Tenn. 2007). 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.”).

The classification of property as either separate or marital is a question of fact “to 

be determined in light of all relevant circumstances.” Snodgrass v. Snodgrass, 295 

S.W.3d 240, 245 (Tenn. 2009). The valuation of a marital asset is also a question of fact. 

Kinard v. Kinard, 986 S.W.2d 220, 231 (Tenn. Ct. App. 1998). 

IV. Classification of Marital Residence

Wife contends that the trial court erred by classifying the entire amount of the 

proceeds from the sale of the Marital Residence as marital property. In particular, Wife 

argues that because the Marital Residence was titled in her name, the court should have 

found that $40,000.00 paid toward the down payment on the Marital Residence by 

Husband was repayment of a loan or, in the alternative, a gift to her from Husband prior 

to their marriage. Husband contends that the trial court properly found the Marital 

Residence to be marital property based on the doctrine of transmutation. However, the 

record contains no mention of transmutation, and the trial court did not mention the 

doctrine in its final order. Because we cannot discern by what theory the trial court found 

the Marital Residence to be marital property, we conclude that we must vacate the court’s 

finding and remand for further findings of fact and conclusions of law concerning 

classification of the Marital Residence. 

Regarding classification of property pursuant to a 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.
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McHugh v. McHugh, No. E2009-01391-COA-R3-CV, 2010 WL 1526140, at *3 (Tenn. 

Ct. App. Apr. 16, 2010) (internal citations omitted). 

The version of Tennessee Code Annotated § 36-4-121(b)(1) (2021) in effect when 

the instant complaint was filed provided the following in relevant part:2

(A) “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. . . .

(B)(i) “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;

* * *

(D) As used in this subsection (b), “substantial contribution” may 

include, but not be limited to, the direct or indirect contribution of a 

spouse as homemaker, wage earner, parent or family financial 

manager, together with such other factors as the court having 

jurisdiction thereof may determine[.]

In contrast, Tennessee Code Annotated § 36-4-121(b)(2)(A) (2021) defined separate 

property in pertinent part as “[a]ll real and personal property owned by a spouse before 

marriage . . . .” Additionally, as noted by Wife, Tennessee Code Annotated § 36-4-

121(b)(2)(D) (2021) provided that “[p]roperty acquired by a spouse at any time by gift, 

bequest, devise or descent” was separate property.

 

2 Effective March 31, 2022, the General Assembly has amended Tennessee Code Annotated § 36-4-

121(b) to, inter alia, add definitions of marital debt and separate debt within the definitions of marital 

property and separate property. See 2022 Tenn. Pub. Acts, Ch. 762, § 4 (S.B. 2385). Due to these 

additions, the numbering of the definitions quoted above has been amended to §§ 36-4-121(b)(2)(A), (B), 

and (D) for the relevant subsections of the marital property definition and § 36-4-121(b)(4)(A) and (D) for 

the relevant subsections of the separate property definition. The quoted passages have not substantively 

changed.
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Our Supreme Court has explained the “related doctrines” of transmutation and 

commingling as follows:

[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. . . . The 

rationale underlying these doctrines is that dealing with property in these 

ways creates a rebuttable presumption of a gift to the marital estate. This 

presumption is based also upon the provision in many marital property 

statutes that property acquired during the marriage is presumed to be 

marital. The presumption can be rebutted by evidence of circumstances or 

communications clearly indicating an intent that the property remain 

separate.

Snodgrass, 295 S.W.3d at 256 (quoting Langschmidt v. Langschmidt, 81 S.W.3d 741, 

747 (Tenn. 2002)).

As this Court has delineated:

Four of the most common factors courts use to determine whether 

real property has been transmuted from separate property to marital 

property are: (1) the use of the property as a marital residence; (2) the 

ongoing maintenance and management of the property by both parties; (3) 

placing the title to the property in joint ownership; and (4) using the credit 

of the non-owner spouse to improve the property. Accordingly, our court 

has classified separately owned real property as marital property when the 

parties agreed that it should be owned jointly even though the title was

never changed, or when the spouse owning the separate property conceded 

that he or she intended that the separate property would be converted to 

marital property.

Hayes v. Hayes, No. W2010-02015-COA-R3-CV, 2012 WL 4936282, at *12 (Tenn. Ct. 

App. Oct. 18, 2012) (quoting Fox v. Fox, No. M2004-02616-COA-R3-CV, 2006 WL 

2535407, at *5 (Tenn. Ct. App. Sept. 1, 2006)).

The trial court made the following findings of fact when classifying the Marital 

Residence:
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As for the real property and home, the Court does find that the 

property listed above, and the contents located at the property, is all marital 

property, and subject to an equitable distribution.

The Court does find that the property was purchased and deeded 

solely into the Wife’s name on March 31, 2008.

That [Wife] and [Husband] had [begun] dating approximately three 

to four years prior to the purchase of the home (approximately 2004 or 

2005).

The parties were engaged to each other at the time of purchase, and 

moved into the home together shortly after purchase.

The parties subsequently married one another on June 11, 2012.

The Husband provided $62,000.00 for the down payment of the 

purchase of the home in March 2008. There was discrepancy between the 

parties on the amount provided. The Wife testified that only $50,000.00 

was used at the time for closing, but does not dispute that the money came 

from the Husband. She testified that this was a loan from the Husband, but 

does not have any documentation to verify the same. The Husband testified 

that this was not a loan.

It was also presented to the Court that the Husband further provided 

another $60,000.00 to help pay off the mortgage on the home in 2018 that 

came from his Pension account. This was testified to by both parties.

Further, the parties provided conflicting testimony as to the 

mortgage payments from the date of purchase until the payoff of the home. 

The Wife testified she was solely responsible for the mortgage until 

approximately 2015, the Husband testified they always alternated mortgage 

payments but that he provided cash to the Wife for the payment. Neither 

party was able to produce banking records or documentation from prior to 

2015 due to the age of the records.

The Wife testified as well that she felt that the Husband had made 

substantial contributions to the residence. Both parties testified that 

substantial improvements had also been made to the home during the 

marriage. However, there was conflict as to who paid for the materials. 
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The testimony indicated both parties had worked and contributed to 

improvements on the home during the marriage.

In support of upholding the trial court’s classification on appeal, Husband 

maintains that “the Trial Court correctly concluded that the [Marital Residence] was 

transmuted into marital property.” Wife maintains that “by referencing the Husband’s 

substantial contributions to the [Marital Residence], the Trial Court appeared to be 

relying on Tenn. Code Ann. § 36-4-121(b)(2)(B)(i).” She thereby asserts that “while the 

Trial Court arguably had the discretion to determine that the increase in equity in the 

home that occurred during the marriage was marital property,” the trial court “exceeded 

its authority under the statute by determining that the equity that already existed in the 

home at the time of the marriage was marital property.” 

 

It is undisputed that the Marital Residence was titled in Wife’s name from the time 

of its purchase in March 2008 through the time of trial, that the parties began residing 

together in the Marital Residence shortly after the property was purchased, and that their

marriage did not take place until June 2012. By considering the down payment funds 

provided by Husband and the parties’ engaged status at the time of the home’s purchase, 

the trial court appears to have employed a transmutation analysis without ever identifying 

the doctrine of transmutation. On the other hand, the trial court also considered whether

each party had substantially contributed to the Marital Residence’s preservation and 

appreciation without directly referring to the statutory definition of marital property then 

codified at Tennessee Code Annotated § 36-4-121(b)(1)(B)(i) (2021).

In Lewis v. Lewis, No. W2019-00542-COA-R3-CV, 2020 WL 4668091, at *3 

(Tenn. Ct. App. Aug. 11, 2020), this Court found that the parties had “created confusion 

in the trial court by asserting claims and defenses based on the doctrine of transmutation 

and the statutory definition of marital property under Tenn. Code Ann. § 36-4-

121(b)(1)(B)(i) without distinguishing them.” Noting that the doctrine of transmutation 

and the statutory definition of marital property “are distinct in their purpose and 

requirements,” this Court explained:

“Common-law” transmutation is “founded upon principles of 

acquisition by gift [and] transforms the separate asset into a marital asset in 

its entirety,” Galligan v. Galligan, No. M2006-00833-COA-R3-CV, 2007 

WL 2295999, at *6 n.5 (Tenn. Ct. App. Aug. 10, 2007), while Tenn. Code 

Ann. § 36-4-121(b)(1)(B)(i) classifies only the “increase in the value” of a 

separate asset during the marriage as marital property “if each party 

substantially contributed to its preservation and appreciation.” Stated 

another way, under the common-law doctrine of transmutation, “[a]n asset

separately owned by one spouse will be classified as marital property if 
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the parties themselves treated it as marital property.” Trezevant v. 

Trezevant, 568 S.W.3d 595, 610 (Tenn. Ct. App. 2018) (emphasis added) 

(quoting Fox [v. Fox], [No. M2004-02616-COA-R3-CV,] 2006 WL 

2535407, at *5 [(Tenn. Ct. App. Sept. 1, 2006)]). By contrast, under the 

statutory definition of marital property, the increase in value during the 

marriage of a separate asset will be classified as marital property if the 

nonowner spouse contributed substantially to the asset’s preservation 

and appreciation. Tenn. Code Ann. § 36-4-121(b)(1)(B)(i). Thus, under 

the doctrine of transmutation, the entire asset may become marital 

property when the parties treated it as marital property, while under the 

statutory definition, only the increase in value resulting from the 

nonowner’s substantial contributions becomes marital property.

Lewis, 2020 WL 4668091, at *3. In Lewis, this Court limited its analysis to the doctrine 

of transmutation upon finding that the husband was “not entitled to relief pursuant to 

Tenn. Code Ann. § 36-4-121” because he “failed to prove that the Property increased in 

value due to his contributions” and because the husband had “not raise[d] the issue of 

whether he was entitled to relief pursuant to Tenn. Code Ann. § 36-4-121.” Id., at n.1.

In the instant action, no mention is made of transmutation in Husband’s pleadings 

before the trial court, the statement of the evidence, or the trial court’s order distributing 

property. However, the trial court’s findings regarding the engaged status of the parties 

when Husband provided down payment funds for the Marital Residence’s purchase 

would seem to indicate a transmutation analysis. See, e.g., McCoy v. McCoy, No. E2012-

02698-COA-R3-CV, 2013 WL 5925900, at *5 (Tenn. Ct. App. Nov. 4, 2013) (affirming 

a finding of transmutation while considering that although the husband had purchased the 

marital residence “prior to the marriage and titled [it] in his name alone,” “the parties 

selected the house together while they were engaged for the purpose of living in it 

together once they were married”); Gorbet v. Gorbet, No. W2011-01879-COA-R3-CV, 

2012 WL 4847090, at *11 (Tenn. Ct. App. Oct. 11, 2012) (affirming a finding of 

transmutation while considering that although the marital residence “began as separate 

property [when] it was purchased by [the husband] prior to the marriage and [was] titled 

in his name only,” the parties “selected the house together, while they were engaged to be 

married, for the purpose of living in it together”). 

Wife asserts that Husband has waived his argument concerning the doctrine of 

transmutation on appeal because he did not raise it before the trial court. We are not 

convinced that Husband waived transmutation as a theory. First, when a court is faced 

with an argument that separately titled property is actually marital property, the doctrines

of transmutation and commingling are implied. See Langschmidt v. Langschmidt, 81 

S.W.3d 741, 747 (Tenn. 2002) (“In addition to the provisions of Tenn. Code Ann. § 36-4-
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121(b)(1)(b), courts in Tennessee have recognized two methods by which separate 

property may be converted into marital property: commingling and transmutation.”). 

Second, given that we have not been provided with a trial transcript on appeal, we find 

the statement of the evidence inconclusive as to whether the parties may have argued and 

tried transmutation by implied consent.3 See Tenn. R. Civ. P. 15.02 (“When issues not 

raised by the pleadings are tried by express or implied consent of the parties, they shall be 

treated in all respects as if they had been raised in the pleadings.”).

If the trial court intended to find that the Marital Residence had transmuted from 

Wife’s separate property to marital property, the result would be that the entire value of 

the Marital Residence would be marital property. See Lewis, 2020 WL 4668091, at *3. 

However, if the trial court did not intend to find that transmutation had occurred, it was 

error to find that the entire asset was marital property because “only the increase in value 

resulting from the nonowner’s [Husband’s] substantial contributions” would be marital 

property. See id. We therefore determine that this case must be remanded for the trial 

court to explain its findings of fact and conclusions of law more fully regarding the 

classification of the Marital Residence. See Tenn. R. Civ. P. 52.01 (“In 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.”).

If, on remand, the trial court finds that only the increase in value of the Marital 

Residence resulting from Husband’s substantial contributions is marital property, the 

amount of this increase in value must also be identified. Although it is undisputed that 

Husband made substantial contributions to the value of the Marital Residence, neither 

party has attempted on appeal to isolate the amount of increased value resulting from his 

contributions. Wife purchased the Marital Residence for $240,000.00, and it sold at 

auction, together with any personal property sold with it, for $362,500.00. Apart from 

the issue of valuation of the personal property sold at auction, which would have to be 

subtracted from the value of the Marital Residence, the trial court would need to identify 

the amount of the increase in value due to Husband’s substantial contributions. 

Neither of Wife’s arguments concerning Husband’s down payment on the Marital 

Residence serves to identify the amount of any increase in value of the Marital Residence 

resulting from Husband’s significant contributions during the marriage. Rather than 

identifying increased value, Wife posits that “[a]t a bare minimum,” $40,000.00 that 

Husband provided for the down payment should be classified as her separate property 

because it represented repayment of a loan she had made to Husband.4 In the alternative, 

 

3 Wife was represented by different counsel in the trial court than on appeal.

4 The trial court found that Husband had “provided $62,000.00 for the down payment of the purchase of 

the home in March 2008,” and Husband presented evidence of a wire transfer in this amount. However, 
- 14 -

Wife asserts that the down payment was a gift to her from Husband. Finding that Wife 

had failed to present any documentation of a loan, the trial court credited Husband’s 

testimony that the down payment did not constitute repayment of a loan. Wife did not 

testify that the down payment was a gift. On appeal, Wife simply argues that because 

Husband allowed the Marital Residence to be titled solely in her name, the down 

payment he provided, if not repayment of a loan, was a gift to her. 

For further consideration on remand, we note that the trial court and the parties 

have referred to Husband’s and Wife’s respective financial contributions to the Marital 

Residence as though all contributions made by each party were made from his or her 

separate property. Indeed, the parties do appear to have maintained separate bank 

accounts. Wife presented multiple bank statements and credit card statements, dated 

from 2015 to the time of trial, indicating that she maintained separate accounts in her 

name only, and Husband presented copies of some checks written to Wife from a 

separate bank account in his name only. However, although the parties have consistently 

referred to amounts paid by Husband or amounts paid by Wife, and Wife averred in her 

complaint that they had “scrupulously kept their finances separate,” the record is unclear 

as to whether the funds in each party’s separate bank account or in any retirement 

accounts remained separate property throughout the marriage. 

Notably, funds earned by either spouse during the marriage are marital property, 

see Tenn. Code Ann. § 36-4-121(b)(1)(A) (2021), and neither party disputes the trial 

court’s finding that both parties were employed at the time of trial. See Lewis, 2020 WL 

4668091, at *4 (“[A] spouse’s earnings are marital property, regardless of whether they 

are deposited into a joint or separate bank account.”). If, during the marriage, the parties

each deposited their respective earnings into their respective separate bank accounts, 

these funds earned during the marriage were nonetheless marital property under the 

statute. See id. Additionally, it is undisputed that the approximately $60,000.00 provided 

by Husband at the time of the mortgage payoff, at least $51,000.00 of which undisputedly 

went toward the payoff, was from his pension account. However, the record provides no 

information regarding whether Husband earned any portion of the funds in that pension 

account during the marriage. See Tenn. Code Ann. § 36-4-121(b)(1)(B)(ii) (2021)

(“‘Marital property’ includes the value of vested and unvested pension benefits, vested 

 

the court noted in its order that Wife had testified to the amount of the down payment as $50,000.00. The 

statement of the evidence approved by the trial court stated that Wife testified to the amount paid at the 

time of closing as $40,000.00. No explanation appears in the record or in the parties’ appellate briefs for 

the $10,000.00 discrepancy between the statement of the evidence and the trial court’s summary of 

Wife’s testimony in its order. On appeal, Wife consistently refers to the down payment amount as “at 

least $40,000.00.” 
- 15 -

and unvested stock option rights, retirement, and other fringe benefits accrued as a result 

of employment during the marriage.”). 

With the above considerations in mind, classification of the Marital Residence as 

separate or marital property is remanded to the trial court for additional findings of fact 

and conclusions of law pursuant to Tennessee Rule of Civil Procedure 52.01. On 

remand, the court should particularly address whether it reached its conclusion pursuant 

to the doctrine of transmutation or the statutory definitions of marital and separate 

property provided in Tennessee Code Annotated § 36-4-121. If the former, the entire 

value of the Marital Residence is marital property. See Lewis, 2020 WL 4668091, at *3.

If the latter, the court should identify only any increase in value of the Marital Residence 

that resulted from Husband’s significant contributions during the marriage as marital 

property. See id.

V. Classification and Valuation of Other Assets and Debts

Apart from classification of the Marital Residence, Wife raises two issues 

regarding the classification and valuation of other assets and debts: one concerning 

personal property that the trial court found was sold at auction with the Marital Residence 

and one more generally concerning the parties’ other assets and debts. As to the auction 

sale, Wife contends that the trial court erred by finding that the parties’ personal property 

was sold in conjunction with the auction of the Marital Residence. She thereby argues 

that the court erred by failing to classify individual items of personal property as separate 

or marital and by failing to assign each item a value. As to other assets, Wife contends 

that the trial court erred by failing to classify and assign values to the parties’ bank 

accounts, vehicles, and debts. Husband counters that the trial court properly incorporated 

the parties’ announced stipulations, as memorialized in the court’s December 2021 order, 

when classifying the parties’ assets and debts apart from the Marital Residence. Husband 

also posits that via the auction sale, the trial court properly valued the personal property 

sold with the Marital Residence through the purchase price obtained at auction. Upon 

thorough review of the record, we determine that with the exception of the parties’ bank 

accounts, the trial court did not err in its classification and valuation of the parties’ 

personal property and debts. However, although the record clearly indicates that the 

parties possessed bank accounts, the record is devoid of any stipulations or findings 

specific to those accounts. We therefore determine that the bank accounts must be 

identified, classified, and valued by the trial court on remand to facilitate an equitable 

distribution of the marital estate.

In its final order distributing property, the trial court referred to the stipulations 

announced by the parties during the November 2021 hearing and memorialized in the 
- 16 -

court’s December 2021 order.5 This Court has previously explained the following 

regarding stipulations in a divorce case as compared to a marital dissolution agreement: 

Tennessee public policy favors allowing divorcing parties to resolve 

their disputes by agreement. Long v. McAllister-Long, 221 S.W.3d 1, 8 

(Tenn. Ct. App. 2006). As a result, many divorcing parties resolve disputed 

issues by entering into a marital dissolution agreement. Id. To the extent 

that the obligations in a marital dissolution agreement retain their 

contractual character, they are binding on the parties like all other contracts 

once they are approved by the court. Id. at 8-9. Similarly, divorcing parties 

stipulate to facts that fall within the range of possibly true facts or to valid 

legal strategies. See Hyneman v. Hyneman, 152 S.W.3d 549, 555 (Tenn. 

Ct. App. 2003). A stipulation is “an agreement between counsel regarding 

business before the court which is entered into mutually and voluntarily by 

the parties.” Overstreet v. Shoney’s, Inc., 4 S.W.3d 694, 701 (Tenn. Ct. 

App. 1999). While narrower in scope than a marital dissolution agreement, 

a valid stipulation is binding on the parties and will be “rigidly enforced” 

by the courts like any other agreement. See Mast Adver. & Publ’g, Inc. v. 

Moyers, 865 S.W.2d 900, 902 (Tenn. 1993). In determining whether a 

stipulation is valid, courts should consider (1) whether the parties had 

competent representation of counsel, (2) whether extensive and detailed 

negotiations occurred, (3) whether the parties agreed to the stipulation in 

open court, and (4) whether the parties acknowledge their understanding the 

terms and that the terms are fair and equitable when questioned by the 

judge. Hyneman, 152 S.W.3d at 555.

Watts v. Watts, No. W2016-01189-COA-R3-CV, 2017 WL 2954685, at *6 (Tenn. Ct. 

App. July 11, 2017). Once divorcing parties have reached a valid agreement on property

issues and that agreement has been approved by the trial court, any issues to be decided 

by the trial court narrow to those still in dispute. See Tenn. Code Ann. § 36-4-121(g)(1)

(Supp. 2023) (“Nothing in this section shall be construed to prevent the affirmation, 

ratification and incorporation in a decree of an agreement between the parties regarding 

the division of property.”); see, e.g., Selitsch v. Selitsch, 492 S.W.3d 677 (Tenn. Ct. App. 

2015) (explaining that following approval of a proposed final decree that the parties’ 

counsel had submitted jointly upon an announced, negotiated agreement and multiple 

 

5

In its final order, the trial court specifically referred to its February 2022 order granting the parties’ a 

divorce on stipulated grounds following the November 2021 hearing. The court stated that “[a]s part of 

that order, the parties agreed to sell the real property, home, and contents . . . .” This stipulation regarding 

the sale of the Marital Residence and the other stipulations announced during the November 2021 hearing 

that were not related to grounds for divorce were actually memorialized in a separate order entered by the 

trial court on December 13, 2021.
- 17 -

revisions, the issue at hand was narrowed to a post-judgment motion concerning military 

retirement benefits); Dailey v. Dailey, No. E2019-00928-COA-R3-CV, 2020 WL 

3967843 (Tenn. Ct. App. July 13, 2020) (stating that after the parties had “agreed on a 

distribution of a majority of the marital property,” “a hearing was necessary concerning 

missing gold and silver that had been purchased during the marriage”). 

In its December 2021 order, the trial court stated that the parties had announced a 

“partial agreement on issues” and memorialized the agreement as follows:

1. [Wife] and [Husband] are awarded a divorce from each other upon 

stipulated grounds, restoring them to the rights and privileges of 

unmarried persons.

2. [Wife’s] . . . maiden name of “Morgan” [shall] be restored.

3. Parties[’] marital property located at . . . Hiwassee Drive, Jacksboro, 

Tennessee 37757 be sold by the court under its existing rules and the 

proceeds be paid into the registry of the court pending further orders 

of the court.

4. Dennis Potter be appointed as Special Master to conduct said sale.

5. [Husband] is in possession of the marital property and shall be 

allowed forty-five (45) days to vacate the property from November 

17, 2021.

6. [Husband] shall be responsible for all bills and costs associated with 

the residence until he relocates.

7. [Husband] shall not turn off the utilities and any costs associated 

with the residence, after he relocates, shall be paid from the sale 

proceeds.

8. Parties will agree to a date when [Wife] may go to the residence, 

with another person, and retrieve her personal items and family 

heirlooms; [Husband] may have a representative present; but the 

parties will not be in the residence at the same time. [Wife] shall 

retrieve her items on December 4, 2021 between 8:00 AM and 12:00 

noon.
- 18 -

9. Parties[’] marital personal property may be divided by agreement; 

however if no agreement is reached same will be sold by the court 

when the property is auctioned.

10. Each party shall keep the vehicles in their respective possession.

11. Each party, by and through their attorney shall submit their financial 

information, relative to their investment in the purchase of the 

residence to the other parties’ attorney; that each attorney shall 

submit to the court a summary, with relevant exhibits, of their 

client[’s] claim to more than fifty (50%) percent of the property sale 

proceeds.

12. Each party reserves the right to further address the financial 

investment in the marital property to the court.

13. Each party reserves the right to address any issue not herein

resolved, as may be appropriate.

14. Each party shall pay indebtedness in their respective names.

15. Neither party is entitled to COBRA benefits from the other.

16. The parties shall have no contact with each other, except through 

their attorney[s].

(Emphasis added.)

In its final order distributing property, the trial court made the following findings 

regarding the sale of the marital property during the auction: 

The Wife also testified at trial about concerns that the auction did 

not adequately represent her interests in the marital property located at the 

home that was also sold at auction per prior court order and asked the Court 

for a further offset of funds from the Clerk and Master Registry.

The prior Order entered by this Court stated that any marital 

property not divided or awarded by agreement would be sold at auction.
- 19 -

Further, the Wife never filed an objection prior to the auction, any 

motions, or any requests with the Court regarding any property located at 

the marital home.

The Wife also did not file an objection within ten (10) days after 

entry of the order confirming the sale of the home and contents.

There was also no testimony put forward before the Court to show 

that the marital property at the residence was not adequately advertised, or 

allowed to be shown [to] potential buyers prior to the auction.

The Clerk and Master testified at trial that all locks on the residence 

were removed and complete access was allowed through the home and the 

garage for anyone interested in viewing the home and contents prior to the 

auction.

As such, this Court finds that by prior order, the marital property 

located at the home was sold as part of the auction, and is included with the 

proceeds deposited in the Clerk and Master Registry.

The Court does order that [Husband] is to make diligent search for 

two personal items indicated by [Wife] to still be at the residence. Both of 

which were Christmas items, one described as an angel, and another as a 

Christmas figurine. If the items are found by [Husband], arrangements are 

to be made to have those items returned to [Wife] immediately.[6]

The Court finds that the Clerk and Master Registry currently has 

$351,403.46 from the sale of the residence and contents as stated above. 

Each party shall be awarded an equitable portion of $175,701.73 each.

(Paragraph numbering omitted.) We will address each of Wife’s issues concerning the 

classification and valuation of assets and debts in turn.

A. Personal Property Sold with Marital Residence

Wife argues that the trial court erred by adopting the auction sale price as inclusive 

of the personal property that had been located at the Marital Residence because she 

maintains that the personal property was not sold in the auction. In support of her 

 

6 Regarding the Christmas items, the trial court’s order distributing property actually states: “If the items 

are found by the Defendant, arrangements are to be made to have those items returned to the Defendant 

immediately.” The second use of “Defendant” in this sentence appears to be a typographical error.
- 20 -

argument, Wife points to a lack of reference to personal property in the “Special Master’s 

Report of Sale,” the trial court’s order confirming the sale, the contract for sale with 

Ayers Auction and Real Estate Company (“Ayers Contract”), and a brochure advertising 

the sale.

 

As Husband notes, the opening paragraph of the special master’s report stated:

The undersigned respectfully reports that, in obedience to a Court 

Ordered Sale of real property at public auction rendered in this cause, and 

after due advertising, Ayers Auction and Real Estate Company, at the time 

and place fixed in their advertisement, to sell at public auction, on the terms 

specified in said Order, the real and personal property therein mentioned, 

described and ordered to be sold. 

(Emphasis added.) 

In her reply brief, Wife acknowledges that the special master’s report referred to 

personal property, but she posits that the lack of reference to specific items, particularly 

items of “significant value,” “makes it clear that all of the parties’ personal property left 

at the [Marital Residence] was not sold with the residence at the auction held on January 

27, 2022.” During the September 2022 trial, Wife presented an exhibit entitled, “Value 

of Home Assets,” consisting of a list of items that Wife claimed were at the Marital 

Residence prior to the auction along with Wife’s valuation of each item. Among the 

items of higher value listed by Wife and noted specifically by her on appeal were a Sea 

Ray boat ($10,000.00), a riding mower ($2,500.00), and “[m]ultiple weapons” 

($5,000.00). Wife’s valuation of the personal property at the Marital Residence totaled 

$67,175.00. The trial court’s “Order Confirming Sale of Property” referenced the special 

master’s report and approved the sale as “commercially reasonable and fair” without 

expressly mentioning any personal property sold with the Marital Residence.

A copy of the Ayers Contract was attached to and incorporated into the special 

master’s report of sale. It consisted of one page with the heading, “Contract for Sale of 

Real Estate.” It indicated the buyer as Husband, the seller as the special master, and the 

“real estate” sold as the address of the Marital Residence. A total purchase price of 

$362,500.00 was reflected on the Ayers Contract plus a ten percent “bidder premium” to 

be paid by Husband as the buyer. Although the Ayers Contract did not mention personal 

property, the contract was in the record as a part of the special master’s report, which 

stated that the personal property had been sold with the Marital Residence.

Wife also refers to an auction brochure advertising the sale, which was attached to 

the “Attorney’s Report on Title” filed with the trial court in December 2021. The 
- 21 -

statement of the evidence indicated that “[a]t some point during the trial of this matter the 

Chancellor reviewed the color advertisement flyer from Ayers Auction and Realty.” On 

appeal, Husband asserts that this brochure should not be considered because it was not 

admitted as evidence at trial. However, because the brochure was reviewed by the trial 

court and was is in the appellate record certified by the trial court, we determine that we 

may review it. See State v. Bobadilla, 181 S.W.3d 641, 644 (Tenn. 2005); but see 

Layman v. Vanguard Contractors, Inc., 183 S.W.3d 310, 316 n.5 (Tenn. 2006)

(“explaining that although “a trial court’s reliance upon a document contained in the 

technical record may be sufficient to place the record into evidence,” “[t]he better 

practice . . . is to mark the document as a trial exhibit.”). Regarding personal property, 

the brochure stated: “Furniture to be sold from the house: 5 pc. log bedroom suite, desk 

w/chair, desk w/ chair (2 sets), and 48" tv.”

In its final order distributing property, the trial court addressed Wife’s testimony 

“about concerns that the auction did not adequately represent her interests in the marital 

property located at the home that was also sold at auction per prior court order.” The 

statement of the evidence summarized Wife’s pertinent testimony as follows:

 The Wife also testified that she went to retrieve her personal items 

and family heirlooms on December 4, 2021 . . . . She testified that while 

the doors to the house were open, the garage doors were locked and chained 

and she couldn’t locate certain items of value including three lawn mowers 

in the home. A list of items entitled Value of Home Items that included the 

Wife’s position as to the fair market value of various items of personal 

property acquired during the marriage that were left in the [Marital 

Residence] was admitted into evidence as Exhibit #4 during the Wife’s 

testimony. The value of these items of personal property acquired during 

the marriage totaled $67,175 according to the document prepared by the 

Wife that was admitted into evidence as Exhibit #4.

The Wife testified that while she had picked up some of her personal 

items from the residence, no agreement was reached regarding the division 

of personal property between her and her husband. Wife further testified 

that it was her understanding that if there was no agreement as to division 

of marital property that said property would be auctioned off with the 

home. The Wife testified that she asked for a five piece log bedroom suite, 

and a 48 inch television be removed from the auction. She did not ask for 

two desk with chair sets be removed and those were auctioned off with the 

property.

* * *
- 22 -

[Wife] testified that she had already taken her items of value out of 

the home.

(Paragraph numbering omitted.) According to the statement of the evidence, Husband 

“testified that the remaining personal property of the parties was located at the residence 

at the time of auction” including “the boat, lawnmower, and other items.” The special 

master “testified that he did not remember what personal property remained in the home 

at the time of the auction.”

Importantly, Wife acknowledged during her trial testimony her “understanding 

that if there was no agreement as to division of marital property that said property would 

be auctioned off with the home.” She further acknowledged that “she had already taken 

her items of value out of the home.” Considering the factors set forth in Watts

concerning the validity of stipulations, we determine that at the time the parties entered 

into the agreement memorialized in the December 2021 order, (1) both parties were 

represented by competent counsel; (2) Wife presented no evidence indicating that she had 

been denied the opportunity to negotiate, although the record is unclear as to the amount 

or duration of negotiations prior to the announced agreement; (3) the parties announced 

their partial agreement in open court, and (4) the parties acknowledged their 

understanding of the agreement terms during the September 2022 trial. See Watts, 2017 

WL 2954685, at *6.

We emphasize that Wife has not provided this Court with a transcript of the 

November 2021 hearing during which the parties’ partial agreement was announced. As 

this Court has previously clarified, “it is the appellant’s responsibility to provide this 

Court with a sufficient appellate record with which this Court can conduct a proper 

review of the trial court proceedings.” Dishon v. Dishon, No. M2017-01378-COA-R3-

CV, 2018 WL 3493159, at *9 (Tenn. Ct. App. July 20, 2018). Moreover, in the absence 

of a sufficient record, “we usually assume that the record, had it been preserved, would 

have contained sufficient evidence to support the trial court’s factual findings.” Id.

(quoting Tarpley v. Hornyak, 174 S.W.3d 736, 740 (Tenn. Ct. App. 2004)).

In its final order, the trial court found that “by prior order, the marital property 

located at the home was sold as part of the auction, and is included with the proceeds 

deposited in the Clerk and Master Registry.” We do not find that either the one-page 

Ayers Contract or the Ayers brochure was designed to be an authoritative list of the items 

that were located at the Marital Residence at the time of the auction.7 The special 

 

7 Wife also posits that because “real property being sold is not transferred to the new owner of real estate 

as part of a real estate transaction,” personal property could not have been sold with the Marital Residence 

at auction due to lack of mention of it in the Ayers Contract. In support of this postulate, she relies on 
- 23 -

master’s report indicated that the parties’ personal property had been sold as ordered in 

the trial court’s December 2021 order, and the trial court referenced the special master’s 

report in its subsequent order confirming the sale. On appeal, Wife posits that the 

parties’ agreement did not necessarily mean that their personal property would be sold in 

the same auction as the Marital Residence. However, we discern no error in the trial 

court’s reiteration in its final order of the parties’ previously stipulated agreement “to sell 

the real property, home, and contents located at [the Marital Residence]” and to sell “any 

marital property that had not been awarded to either party by agreement . . . with the 

above real property by auction through the Clerk and Master” (emphasis added). See, 

e.g., Barnes v. Barnes, No. M2012-02085-COA-R3-CV, 2014 WL 1413931, at *15 

(Tenn. Ct. App. Apr. 10, 2014) (“We decline the invitation to interpret the trial court’s 

orders any differently than the trial judge has done [her]self, especially given the fact that 

we have no transcript from the relevant hearings.”). 

Considering the parties’ announced and approved agreement, together with the 

trial court’s findings in its final order distributing property and the testimony summarized 

in the statement of the evidence, we conclude that the evidence preponderates in favor of 

the trial court’s finding that the marital property remaining with the Marital Residence 

had been sold in the auction. The evidence also preponderates in favor of the trial court’s 

finding that Wife had the opportunity to retrieve any items of personal property the 

parties had agreed were hers prior to the auction. Therefore, we find no error in the trial 

court’s classification of the personal property located at the Marital Residence. The trial 

court did note the exception of the two Christmas items that Wife testified were at the 

Marital Residence, and the court directed Husband to “make diligent search” for those as 

Wife’s separate property. Furthermore, inasmuch as the trial court determined that the 

auction sale was commercially reasonable, we discern no error in the trial court’s implied 

valuation of the Marital Residence and marital property located at the residence as the 

purchase price obtained of $362,500.00.

8

B. Classification and Valuation of Bank Accounts, Vehicles, and Debts

 

this Court’s decision in Keenan v. Foder, No. M2011-01475-COA-R3, 2012 WL 3090303, at *5-6 (Tenn. 

Ct. App. July 30, 2012). The issue in Keenan was “whether the disputed gate [was] a fixture to the land,” 

meaning whether it had “become part of the land to which it [was] attached” and had thus been sold with 

the land. Keenan, 2012 WL 3090303, at *6. We find Keenan to be inapplicable to the instant action 

inasmuch as no one is asserting that the parties’ items of personal property had become fixtures to the 

Marital Residence. The one-page Ayers Contract is simply not dispositive of this issue in light of the trial 

court’s orders.

8 Neither party has raised an issue concerning the amount of the funds available, $351,403.46, determined 

by the trial court to be held in the Clerk and Master’s Registry. 
- 24 -

Wife also asserts that the trial court “erred by failing to identify, classify, and 

assign reasonable values to all of the parties’ assets prior to making an equitable division 

of the same.” Apart from her argument regarding the personal property located at the 

Marital Residence, Wife’s argument concerning this issue specifically addresses the 

parties’ bank accounts, vehicles, and debts. In the December 2021 order, the trial court 

memorialized the parties’ agreement to each “keep the vehicles in their respective 

possession” and to each “pay indebtedness in their respective names.” Wife is correct in 

stating that there is no further information in the record identifying or valuing specific 

vehicles or debts. However, because the trial court approved and memorialized the 

parties’ announced agreement as to the vehicles and debts prior to trial and because the 

statement of the evidence indicates that neither vehicles nor debts were an issue at trial, 

we find no reason to disturb the trial court’s incorporation of the parties’ agreement as to 

these items in its final order distributing property. See Tenn. Code Ann. § 36-4-

121(g)(1).

In contrast, the trial court’s silence concerning the parties’ bank accounts is 

problematic. In the context of presenting evidence regarding their respective financial 

contributions to the Marital Residence, the parties presented exhibits at trial indicating 

that Husband and Wife each possessed at least one individually titled bank account. No 

information was presented, however, as to bank account balances at the time of trial or 

the possible existence of additional accounts. Moreover, as explained in a previous 

section of this Opinion, the record is unclear concerning whether any portion of funds in 

the individual bank accounts may have been earned during the marriage and would 

therefore be considered marital property. See Tenn. Code Ann. § 36-4-121(b)(1)(A)

(2021) (“‘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 . . . .”); Lewis, 2020 WL 4668091, at *4 (“[A] spouse’s 

earnings are marital property, regardless of whether they are deposited into a joint or 

separate bank account.”). The trial court did find in its final order that both parties were

employed at the time of trial, and we must assume that each party deposited at least a 

portion of his or her income earned during the marriage in some type of account.

The parties’ partial agreement, memorialized in the December 2021 order, did not 

address bank accounts. Moreover, the trial court made no findings identifying, 

classifying, valuing, or distributing the parties’ bank accounts in its order distributing 

property. See Tenn. R. Civ. P. 52.01 (“In 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.”). This being the case, we determine that 

Wife’s issue concerning proper identification, classification, and valuation of the parties’ 

bank accounts has merit. We therefore conclude that a remand is also necessary so that 
- 25 -

the trial court can receive evidence needed to identify, classify, and value the parties’ 

bank accounts with the values determined as nearly as possible to the November 23, 2022

date of the final judgment’s entry.

9

 

VI. Equitable Distribution of Marital Property

Wife posits that the trial court erred by distributing the marital estate without 

conducting a proper analysis of the factors provided in Tennessee Code Annotated § 36-

4-121(c). Reiterating her classification and valuation arguments while also asserting that 

this nearly ten-year marriage was of short duration, Wife argues that she should have 

been awarded a greater percentage of the marital estate to return her more closely to the 

financial situation she was in prior to the marriage.10 While acknowledging that the trial 

court did not expressly reference the statutory factors in its final order distributing 

property, Husband maintains that an analysis of the relevant factors based on the 

evidence presented at trial supports the trial court’s distribution of the marital estate. 

Having determined that this case must be remanded for the trial court to enter further 

findings of fact and conclusions of law regarding the Marital Residence and the parties’ 

bank accounts, we further determine that we must vacate the trial court’s division of the 

 

9 As noted previously, although it is undisputed that Husband provided funds for the mortgage payoff on 

the Marital Residence from a pension account, the record provides no information regarding whether 

Husband earned any portion of the funds in that pension account during the marriage. See Tenn. Code 

Ann. § 36-4-121(b)(1)(B)(ii) (2021). The record contains no further information regarding this retirement 

account or any other retirement account that may have been titled in either party’s name. Inasmuch as the 

record is devoid of evidence concerning retirement accounts and neither party has raised an issue 

regarding retirement accounts on appeal, we deem any issue regarding identification, classification, 

valuation, or distribution of retirement accounts to be waived. See Strategic Acquisitions Grp., LLC v. 

Premier Parking of Tenn., LLC, No. E2019-01631-COA-R3-CV, 2020 WL 2595869, at *4 n.1 (Tenn. Ct. 

App. May 22, 2020) (“[A]rguments not raised in the trial court cannot be raised for the first time on 

appeal.”).

10 Wife correctly notes that in Jackman v. Jackman, 373 S.W.3d 535, 546 (Tenn. Ct. App. 2011), this 

Court determined that the trial court had not abused its discretion by finding that the parties’ marriage, 

which “lasted approximately ten years,” inclusive of nearly four years between the parties’ separation and 

entry of the final decree, was of “short duration.” This determination in Jackman was in the context of an 

alimony analysis wherein the trial court had considered statutory alimony factors and awarded what it 

considered to be a “‘sizeable amount for a short term marriage.’” Id. at n.4. We recognize, however, that 

whether a marriage was of relatively short duration requires a factual analysis unique to each situation and 

is one of many factors to be considered in distributing the marital estate. See Tenn. Code Ann. § 36-4-

121(c); Batson v. Batson, 769 S.W.2d 849, 859 (Tenn. Ct. App. 1988) (determining the parties’ sevenyear marriage to be of short duration and holding that “[i]n cases involving a marriage of relatively short 

duration, it is appropriate to divide the property in a way that, as nearly as possible, places the parties in 

the same position they would have been in had the marriage never taken place.”).
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proceeds from the auction sale and remand for the trial court to consider its findings on 

remand and the relevant statutory factors in dividing the marital estate.

The version of Tennessee Code Annotated § 36-4-121(c) (2021) in effect when the 

instant complaint was filed provided that “[i]n making equitable division of marital 

property, the court shall consider all relevant factors,” including the following:11

(1) The duration of the marriage;

(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 

 

11 Effective March 31, 2022, the General Assembly has amended Tennessee Code Annotated § 36-4-

121(c) to add the following factor as subdivision -121(c)(13):

The total amount of attorney fees and expenses paid by each party in connection with the 

proceedings; whether the attorney fees and expenses were paid from marital property, 

separate property, or funds borrowed by a party; and the reasonableness, under the factors 

set forth in Rule 1.5 of the Tennessee Rules of Professional Conduct, and necessity of the 

attorney fees and expenses paid by each party[.]

See 2022 Tenn. Pub. Acts, Ch. 762, § 6 (S.B. 2385). Because the complaint in this case was filed prior to 

the effective date of the amendment, the added subdivision is not applicable here. See, e.g., In re Braxton 

M., 531 S.W.3d 708, 732 (Tenn. Ct. App. 2017).
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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) In determining the value of an interest in a closely held business or 

similar asset, all relevant evidence, including valuation methods 

typically used with regard to such assets without regard to whether 

the sale of the asset is reasonably foreseeable. Depending on the 

characteristics of the asset, such considerations could include, but 

would not be limited to, a lack of marketability discount, a discount 

for lack of control, and a control premium, if any should be relevant 

and supported by the evidence;

(11) The amount of social security benefits available to each spouse; and

(12) Such other factors as are necessary to consider the equities between 

the parties.

This Court has previously recognized the “mandatory nature of the language” in 

the statute, which provides that the trial court “‘shall’ [distribute marital property] ‘based 

on the factors set forth in subsection (c).’” See Hill v. Hill, No. E2021-00399-COA-R3-

CV, 2023 WL 3675829, at *12 (Tenn. Ct. App. May 26, 2023) (quoting Tenn. Code Ann. 

§ 36-4-121(c)). See also Brown v. Brown, 913 S.W.2d 163, 168 (Tenn. Ct. App. 1994) 

(“Trial courts have wide latitude in fashioning an equitable division of marital property.

Their decisions must be guided by the factors in Tenn. Code Ann. § 36-4-121(c).”) 

(internal citation omitted); Swafford v. Swafford, No. E2017-00095-COA-R3-CV, 2018 

WL 1410900, at *2 (Tenn. Ct. App. Mar. 21, 2018) (“Tenn. Code Ann. § 36-4-121(c) 

outlines the relevant factors that a court must consider when equitably dividing the 

marital property[.]”) (quoting McHugh v. McHugh, No. E2009-01391-COA-R3-CV, 

2010 WL 1526140, at *3 (Tenn. Ct. App. Apr. 16, 2010)).
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In its final order, the trial court did not undertake an analysis of the statutory 

factors when distributing the marital estate. Although the court did make some findings 

of fact that corresponded to certain of the statutory factors, such as the court’s findings

that “both parties [were] able bodied, employed and not in need of alimony,” the court’s 

order does not demonstrate a properly reasoned analysis of the applicable factors in this 

case. We note particularly that although the court memorialized the parties’ agreement 

that personal property remaining at the Marital Residence was marital and would be sold 

with the residence, it is undisputed that the parties did not agree on how the resulting 

proceeds of the auction sale would be equitably divided between them. The court simply 

determined that each party would be awarded “an equitable portion of $175,701.73,” or 

approximately half of the sale proceeds. 

We therefore determine that the trial court’s distribution of the marital estate must 

be vacated and remanded with instructions for the trial court to “‘make specific findings 

of fact and conclusions of law in accordance with Tennessee Code Annotated § 36-4-

121(c) and Tennessee Rule of Civil Procedure 52.01.’” See Hill, 2023 WL 3675829, at 

*15 (quoting Leonard v. Leonard, No. W2018-02235-COA-R3-CV, 2020 WL 1515951,

at *3 (Tenn. Ct. App. Mar. 30, 2020)). As instructed previously in this Opinion, the trial 

court’s findings on remand should include reconsideration and explanation of the theory 

on which classification of the Marital Residence is based. Additionally, the court’s 

findings should include the identification, classification, and valuation of the parties’ 

bank accounts as nearly as possible to entry of the final order on November 23, 2022.

VII. Conclusion

For the foregoing reasons, we affirm the trial court’s findings that the marital 

personal property located at the Marital Residence had been sold with the Marital 

Residence and that the auction sale price reflected the total valuation of both the 

residence and personal property sold. We also affirm the trial court’s adoption of the 

parties’ agreement regarding vehicles and debts. However, we vacate, for insufficient 

findings of fact and conclusions of law, the trial court’s classification of the Marital 

Residence as marital property and the court’s overall distribution of marital property. We 

remand this case to the trial court for (1) further findings of fact and conclusions of law 

regarding classification of the Marital Residence, and if necessary, identification of any 

increase in value of the Marital Residence that resulted from Husband’s significant 

contributions during the marriage; (2) a limited evidentiary hearing to identify, classify,

and value the parties’ bank accounts as nearly as possible to entry of the final order on

November 23, 2022; (3) reconsideration of the marital property distribution inclusive of 

the findings on remand and pursuant to the statutory factors provided in Tennessee Code 

Annotated § 36-4-121(c) (2021); and (4) collection of costs below. Costs on appeal are 
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taxed one-half to the appellant, Jennifer Lynn Morgan Esposito, and one-half to the 

appellee, Joseph Diego Esposito. 

s/ Thomas R. Frierson, II____________ 

THOMAS R. FRIERSON, II, JUDGE