# FILED
July 22, 1998 Cecil W. Crowson Appellate Cou rt Clerk JEANIE DIANNE (WHITE) ) HANNAH, ) ) Plaintiff/Appellee, ) Appeal No. ) 01-A-01-9712-CV-00694 v. ) ) Sumner Circu

it GARY R. HANNAH; CARL ED ) No. 17178-C HANNAH and wife, DIANE ) CARROLL HANNAH, ) ) Defendants/Appel

lants. )

)

COURT OF APPEALS OF TENNESSEE APPEAL FROM THE CIRCUIT COURT FOR SUMNER COUNTY

AT GALLATIN, TENNESSEE THE HONORABLE THOMAS GOODALL, JUDGE

MICHAEL W. EDWARDS 177 East Main Street Hendersonville, T

ennessee 37075 ATTORNEY FOR PLAINTIFF/APPELLEE

ROBERT G. INGRUM Phillips & Ingrum 117 East Main Street Gallatin, Tenne ssee 37066 ATTORNEY FOR DEFENDANTS/APPELLANTS

REVERSED IN PART, MODIFIED IN PART, and REMANDED.

WILLIAM B. CAIN, JUDGE-2- 

# OPINION

Defendant/husband

and his fatherand stepmother appeal a divorce decree on issues of property rights, personal property values and amount of chi

ld support.
Plainti ff, J eanie Dianne (White) Hannah and defendant, Gary Ray Hannah were married May 18, 1991. Two children were born to the marriage, to-wit: Chelsea Alexandr ia Hannah born June 26 , 1990, and Collin Ray Hannah born January 24, 1994.

Defendant had one child by a previous marriage and at the time of the pro

ceedings herein wa

s p aying $ 75.00 per week for support of this child under proper court order.

DefendantsCarl Ed Hannah and wife, Diane C arroll Ha nnah are the father and stepm

other of Gary

Ray Hannah. On August

6, 1992, Carl Ed Hannah and wife, Diane Carroll Hannah purchased, by warranty

deed, property

located at 121 Mockingbird Hill Road in Hendersonv il le, Tennessee. Sim ultaneously, the

y executed a pr

omissory note and deed of trust encum

bering the property

in the amount of $ 30,000.00 to First American National Ban k . A mobile hom e was located on the

property and included within the deed and the deed of trust . Monthly pay ments on the note to the bank were $638 .76 for a period of five years.

This property was p

urchased for use

as a home by Jea

nie Dianne Hannah, GaryRay Hannah an d their children but ti

tle to the property

was held by Carl Ed Hannah a

nd Diane Carroll H

annah subject to the

deed of trust to First American National Bank. Neither Gary Ray Hannah nor Jeanie Dianne Hannah were in any way obligated on the debt to the bank.

An oral agreeme

nt was made am

ong all parties that G

ary Ray H annah, Jeanie Dianne Ha

nnah and their childr

en would live in the m

obile home, m

ake the monthly p ayments to First Ame rican Na tional Bank, p ay i n surance and-3-

property taxes and otherwise g enerally maintain the propert y. They would pay no rent and

if Gary Ray

Hannah and Jeanie D

ianne Hannah m

ade all paym

ents sufficient to discharge the mortgage indebtedness, Carl Ed Hannah and Dia ne Carro ll Han nah wo uld t hen d eed th e prop erty, i n fee s imple, to th em.
First payment on t

he deed of trust note was due Septem be r 15, 199 2 and a like payment due monthly thereafter , through and including

final paym

ent, due August 15, 1997. Gary and Jeanie Hannah m oved into the property

and made

certain of the payments to

the bank until November

1994 when these partie s separated for the first time and

simply stoppe

d making the m

ortgage paym

ents. By Apri

l 1995 withGaryand Jeanie Hannah h aving failed and ref

used to make pay

ments to the bank and the n ote being five pay ments overdue,

Carl Ed Hannah a

nd Diane Carroll Hannah paid off the loan balance to the bank in the a mou nt of $16,120.07.

After the payoff of the bank by Carl

Ed and Diane Han

nah, Gary an

d JeanieHannah reconcile d and moved back i

nto the Mockin gbird Hill Road property and lived rent free

with neither of the

m recognizing a

ny obligation to pay anything to Carl

Ed and Diane Han

nah. Gary a

nd Jeanie separated in 1997 and suit for divorce w

as filed by Jean

ie Hannah on July

24, 1997.

No issue is made on appeal as to the action of the trial court in grant

ing the divorce to Jeanie

Dianne Hannah nor

to the action of the trial court vesting custody of the two minor children in her.

The first issue

on appeal involves the disposition of the pr operty at 121 Mockingbird Hill Roa

d.

In the final decre

e the trial court he

ld in part: (2) The Court finds the following marital estate: (a) REAL ESTATE : The house and lot located at 121 Mockingbird Hill Ro ad, Hend ersonv ille, Su mner Coun ty,-4- Tennessee, has a fair marke t value of Sixty-

four Thousand and 00/100 Dollars ($6 4,000.00). Th i s property is titl ed in the na me of the HUSBAND's parents, CARL E. HANNAH and wife, DIAN

E C. HANNA

H, and the Court finds that an agreement

was made between the parties th at the HUSBAND and WIFE would m

ake the mortga

ge payments a

nd once the house was paid off, it would be titled an d deeded i n their name s. Without the knowledg e of the WIFE, th e HUSBAND's parents paid the house of f in th e amount of Twenty-one Tho usand and 00/100 Dollar s ($21,00 0.00). Th e Court finds that the net equity which constitutes the marital es tate is Forty-three Thousand and 00/100 Dollars ($43,000.00). The Court finds that the b est interests of all

p arti es involved in this case would be served in placing the property located at 121 Mockingbi rd Hill Road, He nders onville, Sumner County, Tennessee, i n the hands of Mahailiah Hughes, Circuit Court Clerk, as special comm issioner to sell saidproperty and m

ake th e divi sion thereof based on this Court's Final Decree.

Afterwards,

as a part of the divi sion of the marital estate, the trial court granted $12,850.00

of the 121 Mockingbird Hill R oad equity to the hu sband and $30,150.00 thereof to the wife.

The evidence in the

case strongly preponderates against the action of the trial court. The

final judgment does not state the basis for the trial court holding and the evidence does not support either a resulting or construc tive trust
as asserted on appeal by appellee. It is undisputed that the property at all times belon ged to Carl Ed Hannah and Dia ne Carroll Hanna

h. An oral agree

ment between all parties provided bilateral obligations. Car l Ed and Diane Hannah provided t he means by

which the home was purchased and a ssumed all obligations to the bank. Garyand Jeanie Hannah a greed to make t

he mortgage payments,

together with pay

ing the taxes and upkee

p on the property,

during the five year term of the mortgage.Barely two years into the mortgage term Gary and J eanie H annah repudiated the ir oral obligation by

failing and refusing

to make the mortgage

payments.Since they we re not obligated to the bank on the mortgage debt the entirety

of this obligation fell

back on Carl Ed a

nd Diane Hannah. Five months passed with no payments on the mortgage debt an d n o indication

by either Gar

y or Jeanie Ha

nnah of any intent

ion to make

any further-5-

mortgage payments.Faced with this problem and bein

g the sole obligors on the note to the

bank, Carl Ed and Diane Han nah paid off the bala

nce of the note to t he bank. T he trial court found that the payoff at the bank was m

ade without Jeani e Hannah' s knowledge. This d etermination i s of no consequence.Jeanie well knew that b oth s he and Gary Hannah had breached the contract with Carl Ed and Diane Hannah b y refusing to p ay the mo rtgage installments after November

1994. Under this analysis, the payments ma de by Gary an d Jeanie amount to mere re ntal pa ym ents, j ustly compensating Gary's parents for Gary

and Jeanie 's use o f the pr operty.
After their recon ciliation, followi ng the payoff of

the mortgage indebtedness, Garyand Jeanie Hannah lived rent free on the property purchased by Carl Ed and Diane

Hannah. As such,

Gary and Jeanie became no more than gratuitous tenants of sufferance.

This charitable forbe

arance by Car

l Ed and Dia ne Hannah is the antithesis of the fraud, abuse of confidence, unconscionable conduct, artifice or concealment

necessary to j us ti fy a constructive trust. Rowlett v. Guth rie , 867 S.W.2d 732 (Tenn.Ct.App.199 3).

Since Gary and Jeanie Hannah abandoned and di savowed their obligation

to pay the m

ortgage payments as they becam

e due and thus left the

ir benefactors to pay off the m ortgage , t he most they could hope for would be a resulting trust pro ta

nto as to the amoun

t of money th

ey had actually

paid.
[7] Payment o

f a part of the consi

deration, undersuch circumstances that if the whole were paid a trust would result, creates a trust pro tanto , if the amount paid be definite or constitute

an aliquot part of th e whole consideratio n. But ageneral contributio

n is not sufficient to r

aise a resulti

n g trust. 2 Lawrenceon Eq.Jur. (1929 ed.) sec. 571; Pomeroy's Eq.Jur. (5th ed.), sec.1038, pp. 77-78; Perkins v. Cheair s, 61 Tenn. 194, 200-202; Haggard v. Ben s on, 3 Tenn.Ch. (Cooper's), 263, 278; Botsford v. B ur r, 1817, 2 Johns.Ch.,N.Y., 405, 410; Socol v. King, 36 Cal.2d 342, 223 P.2d 627; Annotati on, 42 A.L.R. 52. [8] To set up a resultin g t r ust by parol requi

res a-6- greater degree of proof than a mere preponderan ce of th e evidence. The evidence m ust b e clea r and convincing. Hoffner v. Hoffner, 32 Tenn.App. 98, 104, 221 S.W.2d

907; H unt v. Hunt, 169 Tenn.

1, 9, 80 S.W. 2d 666; W alker v

. Walker, supra; see other T ennessee cases cit

ed in Annotation, 23 A. L.R. 1513-14.

. . .

. . . Referring to parol evidence to establish a result ing trust, Pomer

oy says: "It is set tled by a comple te unanimity

of decision that s u ch evidence must be clear, strong, u neq uivocal, unmist akable, and mu st establish the fact of the payment by the alleged beneficiary beyond a doubt. Wh ere the payment of a part only is claimed, the evidence must show, in th e same clear manner, the exact portio n of the whole price whi ch was paid. " (Italics supplied.) Pomeroy's Eq.Jur. (5th ed.), sec. 1040, pp. 82-84. Greene v. Greene , 38 Tenn. App. 238, 249-50, 272 S.W.2d 483, 488 (1954).

The proof in the case at bar d

oes not establish

any definite am

ount paid by Gary and Jean

ie Hannah, and cons idered as a whole, the evidence falls far short of the clear, strong , unequivocal and unm istakable testim

ony necessary

to establish a resulting

trust pro tanto
. Indeed, such seems to have been the conclusion of the trial court at the end of the trial: MR. INGRUM: Now does Your honor want to hear any proof from Mr. and Mrs. Hannah concer ning their ownershiprights and

what they've paid, or have you already decided -- THE COURT: No. They o wn the p ropert y.
The property at 121 M

ockingbird Hill Road belong s in fee simple to Carl Ed Hannah and wife, Diane Carroll Hannah. As such neither the property
nor the fair market rents paid for its use are to be co nsider ed as mari tal pro perty. The decision of the trial court holding oth erwise is reversed.-7- Appellant next takes issue wit

h the amount of c

hild support o rder ed below. The court found th a t the earning capac

ity of the appell

ant was far in
exc ess of the actual incom e reported by hi

m. The evide

nce does not preponderate

against this find ing of fact. T his co urt, however, do es take issue withthe calculation m

ethod the trial court

used. In ordering the support obligation, the court below appar ently consi dered a $2,2 80.96 net in come for an individual earning $3,000 gross. The court used this netfigure in calculat ing the support obligation of the appe llant. Although the p

roof below showed thatGary Ray Hannah was "self-em ploy ed," the trial j udge apparently imputed the earnings $3,000 wages as those of an em ployed individual.However, this court finds that in calculating the appellant's support obligation, the trial court failed to consider appellant' s prior support obligation

of $325 per month f

or the child of a prior marr

iage per the

Child Support Guidelines

. Tenn. Comp. R. & Re gs. r. 1240-2-4-.03 (1994). By subtr acting that $325 from

the monthly g

r os s, we arrive atthe appropriate net income of $1,955.96. This figure corresponds more closely with $627 per month child support, payabl

e at $146.00 per we

ek through the Registry of the

Circuit Court Cler

k's Office, plu s an add ition al 5% commission f

or a total of $153.30 p

er week. Appellant complains of the

allocation a nd valuation of ma rital property made by the

trial court.

First of all, since this c

ourt reverses the a

ction o f the tri al court allocatingthe property at 121 Mockingbird Hill Road as marital property, there is no division thereof

to be made. The valuation of the 1978 Ski Supreme boat
was valued by both par

ties at $2,500.00 but t

he value in the final decree is $5,000.0 0. The v alue of this item is set at $2,500.00 a

nd same is awa

rded to appellant. The value of the Kabota lawn mower is esta blished by the test

imony to be $600.00 but is valued at $3,500.00 in the fina

l decree. The

value thereof is $600.00 and same is awarded to appellant. The value of the GMC Jimm

y is not established by the

record but in the dec

ree is valued at$2,000.00. Regar dless of its value same is awa rded to appellee. The 1972 Nova is valu ed by the appellee between

$4,500.00 and $5,500. 00 and found by the trial court to have
avalue of $5,500

. 00. We award the 1972 Nova, what ever its value, to J

eanie-8-

Hannah. The tools of

the appellant are v

alued by the appe

llant at $1,000.00 a

nd by the appellee at $8, 000.00 but found by the decree to have a

$3,500.00 value. The tools are value

d at $3,500.00 and ar

e awarded to the a

ppellant.

All other property of any kind or character , regar dless of value, is awarded to appellee.

Itis necessary to comment briefly on the procedure used in the trial courtbringing about the fina l decree. At the

conclusion

of the hearing the trial judgeinstructed both counse l to submit th

eir propos als separately to the court without exc hang ing same. The result is that the trial court adopted the decree submittedby counsel for th e appellee, and the

first time tha

t counsel for the appellant was made

aware of the cont

ents thereof, wa

s when he receive

d a copy of the final decree. A motion to alter or amend was thereafter denied by the trial court. In many

respects the final

decree is sim

ply contrary

to the evidence in the case. This is a pr

ocedure which should

not be encouraged.

The judgment

of the trial court is reversed in part, modified in part, and remanded. C

osts on appeal are as sessed equally a gainst the parties.

___________

________ _____________

_ WILLIAM B. CAIN, JUDGE

CONCUR:

__________________________________ HENRY F. TODD, PRESIDING JUDGE

__________________________________ WILLIAM C. KOCH, JR., JUDGE