# FILED March 6, 1998 Cecil W. Crowson Appellate Cou rt Clerk VAN ADRIAN BARKER, ) ) Sumner Chancery Plaintiff/Appellant, ) No. 96D-72 ) VS. ) ) Appeal No. PATSY LOU (RANDOLPH) SLEDD BARKER, ) 01A01-9704-CH-00192 ) Defendant/Appellee. )

IN THE COURT OF AP PEALS OF TENNESSEE AT NASHVILLE APPEAL FROM

CHANCERY COURT OF SUMNER COUNTY AT GALLATIN, TENNESSEE HONORABLE TOM E. GRA Y, JUDGE

Bryce c. Ruth, Jr. 3210 Highway 31W P.O. Box 68 White House, TN 37188 ATTORNEY FOR PLAINTIF F/APPELLANT William P. Jones 103 Bluegrass Commons Blvd. P.O. Box 738 ATTORNEY FOR DEFENDANT/APPELLEE



### AFFIRMED AND REMANDED.

HENRY F. TODD PRESIDING JUDGE, MIDDL E SECTION

CONCUR: BEN H. CANTRELL, JUDGE CONCUR IN SEPARATE OPINION: WILLIA M C. KOCH, JR., JUDGE-2-

VAN ADRIAN BARKER, ) ) Sumner Chancery Plaintiff/Appellant, ) No. 96D-72 ) VS. ) ) Appeal No. PATSY LOU (RANDOLPH) SLEDD BARKER, ) 01A01-9704-CH-00192 ) Defendant/Appellee. )



## O P I N I O N
In this divorce case, the husband Van Adrian Barker has appealed from the judgment of the Trial Court declaring the parties to be divorced under TCA § 36-4-129, a nd dividin g the marital estate. The appellant presents only the following issue:

I. Whet her

the Chancellor erred in finding that the husband did not substantially contribute to the appreciationof the rental property owned by the w ife, thereby

deny ing the husband a share in that appreciation. It appears that the only complaint of appellant is that the Trial Courtfailed to include

in the marital estate the

appreciation dur

ing the marriag

e of a rental hous

e at 139 Gail Drive . This house was purchased b

y the wife in

1967 for $15,000.0

0, paying $ 1,100.00 cash

and financing the remainder. The wife lived in the house until 1974, when she moved out and r ented it to tenants. When the parties married in 1983, property was worth $48,000.00 and was rented for $300.00 per

month and was encumbered by a $7,500.00 mortgage. I n 1996, when the divorce suit was filed, the rent

was $750.0 0 per month and was wort h $82,000. 00 subject to a mortgage of $23,5 00.00 im

posed on the property in 1994 to satisfy various debts of the pa rties. No substantial improvements were made to the property during the marriag e.
The evidence is controverted as to the contribution of the husband to the maintenance and preservationof the property. It is uncontroverted that the husband’s w ork required

exten sive travel away from

home. The husband

insists and the wife denies that the husband helpe

d with cleaning and maintenance.-3- During the marriage the parties resided in ano ther h ouse which the wife owned before the marriage and which the Trial Court included in the marital estate. During the marriage the parties mainta ined a joint check

ing account in wh

ich all income o f both parties, including the rent, was deposited, and from which all expenses of the parties , including expense of maintena n ce, mortgage, taxes and insurance on the rental house and residence were withdrawn. Property owned separately by spouses be for e this marriage is not generally considered a part of the marital estate subject to division in a divorce proceeding. T CA § 36-4- 121(a)(b)(2)(A), Batson v. Batson , Tenn. App. 1988, 76 9 S. W.2d 849. The income from separate property or increase in its value during the marriag e may be considered a part of the marital estate if the Cour

t determines that t

he non-owning sp

ouse contributed s

ubstantially

to its preservationand appreciation as a home maker, wage earner, parent, family financ ial manager or other similar contribution. TCA § 36-4-121(b)(1)(B) and (2). No evidence is cited or found to justify a reversal of the find ing of the Tri al Judge that the husband did not s

ubstantially

contribute to the preservation or improvement of the subject pro pert y.
The husband insists that

material contrib

ution to the family

living expenses b

y a n onowning spouse is su

fficient to entitle the non-ow

ning spouse to par

ticipate in the income from or increase in

value of the non-owned property. This principle was applied to the non-owned house used by the parties as their residence. The evidence a ccepted as credible

by the Trial Judge does not support the application of this argument of the husband to thenon-owned rental house.
The husband cites an unpublished aut

hority which

is distinguishable

on the facts.-4- The determination of c

redibility by a Trial Judge is given great weight on appeal. Town of Alamo v. Forcum -James Co . , 205 Tenn. 478, 327 S.W.2d 47 (1959); Barnhill v. Barnhill , Tenn. App. 1991, 826 S.W.2d 443. The judgment of t

he Trial Judge is

affirmed. Costs of this appeal are taxed against the appellant and his surety. The cause is remanded to the Trial Court for further necessary proceedings. 

### AFFIRMED AND REMAND ED .

HENRY F. TODD PRESIDING JUDGE, MIDDL E SECTION

CONCUR:
BEN H. CANTRELL, JUDGE

CONCUR IN SEPARA

TE OPINIO

N: WILLIA M C. KOCH, JR., JUDGE