### IN THE COURT OF APP EALS OF TENNESS EE AT KNOXVI LLE Fe br ua ry 23, 200 7 S es sio n

BRENDA J. W OODW ARD v. MICH AEL V. WO ODWARD

Appeal f rom the Circ uit Court for Ham ilton Coun ty No. 04D1684 L. Mar ie Williams, Judge

No. E2006-1110-COA- R3-CV- F ILED MAY 11, 2007

D. M I CH A EL S WI NEY , J

. , d i s s en t i n g.

I respe ct fu l l y

d i s s en tfr o mth e m aj o ri ty ’s Op i n i o naf fi rm i n g th e T ri al C o urt ’s d i vision of the mar ital property

. I take no issue with the Trial Court a nd the majority

conce rning what wa s marital prope rty

and what was sepa

rate proper

ty . Howeve r, I

res p ec t fu l l y

disag ree with the

ma jor ity ’s Op ini on

a s I be lie ve tha

t it , a s d id t

he T ri al Co urt , lar g e ly

ig no re s th e fa c t th a t th is i s a short term marr iag e, a ve ry short term marr iag e, and what is the court’ s g oal in such a situation.

As the majority

corr ectly notes, Batson v. Batson , 769 S.W .2d 849 (Tenn. Ct. App. 1988) cle arly

holds that the parties should “be restore d to their pre- marria g e fina ncial condition....” Batson , 769 S.W .2d at 859. Said a nother way , here Husband should leave this short term mar riag e, as close as possible, with what he broug ht into it; and Wi fe should leave this short term marr iag e, as close a s possible, with what she broug ht into it. Respectf ully
, while both the Trial Court and the majority let Wife leave , as close a s possible, with all of her proper ty she brought int o the marr iag e,
u n fo rt u n at el y , b o t ht h e T ri al C o u rt an d th e m aj o ri ty al s o l et W i fe l ea v e t h i s v ery s h o rt t ermm arri age with part of the pr operty

Husband brought into the marriag e.

Batson comes into p l ay when transmutation has occur red so that one spouse’s separ ate pr operty

become s m arital prope rty . I f transmutation neve r happe ns in a short duration marria g e, then Batson is unn e c e ssa ry a s th e pa rt ie s w ill have ke pt t

he ir pr e mari ta l se pa

ra te pr op e rt y separ ate a nd will be sent on their wa y with their separ ate pr operty . I t is only when tra nsmutation

occu rs as to on e sp ou se ’s pr op e rt y , h e re the Hu sb a

nd ’s , th a t Batson comes into play . The c lear holding of Batson is that even though transmutation has occ urre d, the par ties still will be returne d,

as nea r as possible, to the situation eac h would have be en in had the shor t duration marr iag e neve r taken plac e. The fac t that transmutation o f Hu s b and’s se parate prope rty had occ urre d does not neg ate the application of Batson , but rather trig g ers the a

pplication of Batson in this short duration marria g e.-2- Iwould reve rse a

nd rema nd with instructions to t h e T ri al Court to send the parties on their wa

y from this very short term marria g e with e ach rec eiving the prope rty that eac h broug ht into the marriag e. Ne ither the Tr ial Court nor the majority state any rea son why

the holdi n g of Batson should be ig nored in this ca s e. Whil e the major ity notes some diffe renc es in the fa ctual situation in Batson from our c urre nt case , these diff ering circ umstances in no way support a dec ision that Batson should not be applied. F or example, the majority notes that in Batson the husband’s ne t worth at the time of the marria g e was ten times the net worth of his wife and his annua l income was nine times that of his wife’ s. Here , the par ties started much more equal. The majo ri t y g ives no

rea son why

the husband in Batson sh ou ld b e a llo we d to le ave wi th a ll h is p re mari ta l pr op e rt y beca use he ha d much more tha n his wife to start with, wher eas he re H usband and Wife e ntere d the marria g e on a muc h m o re eq u al basis which somehow makes it appropr iate to pena liz e Husba nd, ignor e Batson, and let Wife l eave with more property than she would have had if the marr iag e neve r h a d t ak e np l a c e

. If

an yt h i n g , t h i s f

a c tu a l d i f f e r e n c e m ak e s i t

e v e nm o r e a

p p r o p r i a t e t o a

p p l y Batson in this case. Batson clea

rly holds the law in this State to be that in a short duration marr iag e, which this certainly

is, “it is appropriate to divide the proper ty in a way

that, as nea

rly as possible, place s the par ties in the same position they would have be en in had the ma rriag e neve r take n place .” Id

. W h i l e th e m a

j o r i t y i s c o r

r e c t t h a t W i f

e w a s n o t aw ar d e d o n e

- h a l f o f H u s b an d ’ s p r e m ar i t a l p r o p e rty, it is equally

as cle ar that Wife was awa rded a portion of Husband’s pr emar ital property , while being

a llo we d to re ta in one -h

un dr e d pe rc e nt o f h e r p re mari ta l pr op e rt y . H e re , H us ba

nd le ave s w ithle ss proper ty than he would have ha d if the marr iag e had ne ver taken plac e while Wife lea ves with more proper t y , h er s p lus a part of

Husband’s, tha

n she would have had if the ma rriag e had ne ver taken p l a c e

. I s e e n o r e a s o nw h y Batson should not be followed in this case , and so I would rema nd it for a division of the prope rty

so as to return, a s near ly

as possible, both Husband and Wife to their pre

marria g e prope rty

status.

___________________________________ D. MI CHAEL

SW I NEY, JUDGE