# FILED
Ap ril 18, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk IN THE COU RT OF A PPEA LS OF TENN ESSEE WESTERN SECTION AT NA SHVILLE
MARQUIETTA

AVONNE HEA

TON HAND , )

) Plaintiff/Appellant, ) Humphreys C hancery No. 22-471 ) VS. ) No. 01A 01-9607-CH- 00325 ) JAMES THOMA

S HAND, ) ) Defendant/Appellee. )
APPEAL FROM THE CH ANCERY COU RT OF H UMPH REYS COUN TY

AT WAVERLY, TENNESSEE THE HONORABLE ALLEN W. W ALLACE, CHAN CELLOR
CLIFFORD McGOWAN, JR. Waverly, Tennessee JACK NORMA N, JR. THOMAS F. BLOOM Nashvil le, Tennessee Attorneys for Appellant
DA N R. BRA DLEY Waverly, Tennessee BA RBA RA

G. MEDLEY Lewisburg , Tennessee Attorneys for Appellee

AF FIRMED

ALAN E. HIGHERS , J.

CONCUR: W. FRA NK CRA

WFORD, P.J., W.S. DAVID R. FA RMER, J.2

Plai ntiff Marquiet

ta Avonne Heat on Hand (the Wife ) appeals the final decree of divorce entered by t he trial cour t which di stributed the p arties’ pr operty and or

de red the Wife to p ay the attor ney’s fees of Defendant/ Appellee James Thomas Hand (the Husband). On appeal from the final d ecree, the Wife contends that the tr ial court er red in three respects: ( 1) in failing to award the marital residence to the Wife; (2) in awar ding the divorce to th e Husband based on the W ife’s inappropriate marita l conduct; and (3) in order ing t he Wife to pay the Hu sband’ s attor ney’ s fees. We affirm.

At the time of their marriage i n 1979, the parti es lived in Houston, Texas. Shortly afterthe parties’ marriage, the Husband q uit his job with Pool e Drilli ng Company. Althou gh the parties knew

beforehan d that the job woul d require the Husband to work in Ital y for approximat elyone month, a dispute later arose between the parties regarding this j o b requirement. The Wife informed the Husband thatshe could not accompan y him to Italy because she had to care for her mother, w ho had c anc er and was undergoing chemotherapy. Rather than g o to Italy without the Wife, the Husband quit.

Instead of obtaining outs ide employment, the Husband w ent to work for the Wife on
a part-time basis remodeling houses on proper ties owned by the W ife in T exas. Alth ough the Wife minimized the Husband’s labor and other contributions towards th e Te xa s properties, the H usba nd te stif ied t hat h e per for med exten sive remodeling projectson the houses, including wallpaper ing, pain ting, carp eting, til ing, carpentry , air-condi tioning and electrical work, landscaping, roofing, and other re pairs. The parties all owed one of the propertiesto be foreclosed, but the Wife, a licensed real estate br oker, sold th e other three properties at

substantial p rofits.

In January 1983 , the parties decided to move to T ennessee to be cl oser to the Husband’s family. The parties bought 109 acres o f p roperty i n Humphreys County from the Husband’s unc le for $50 ,000, and t hey pr ocee ded to bu ild a h ome on th e pro pert y. Althou gh the Husband test ified that he made some monet ary contr ibutions towards acquisiti on of the property and constructi on of the home, the Husband ac knowledg ed that3

the bulk of the parties’ new marital residence was acquired with funds f rom the W ife’s mother and funds from the sale of the Wife’s Texas properties

. Despite his relatively modest monetary cont ributions, t he Husband testif ied tha t he pers onally pe rform ed large portions of the constructi on of t he marital re sidence. Among other tasks, the Husband testi fied that he sealed the outside walls; insulated th e walls; partitioned the downstairs; did plumbing, electrical, and duct work; installed windows, flooring, and exterior and interior doors; and painted. As w ith the Texas properties, the Wife’s testimon y min imi zed the Husband’s labo r and other cont ributions tow ards constru ction of the marit al home.
During constructi on of the marital residence, whic h lasted about tw o years, t he Husband took care of the par ties’ cattl e, repaired fences around the property , and did other part-time work. In 1985 or 1986, the Husban d started his own electrical business, which produced someinc ome. The Wife went on job s with t he Husband, and she learned to help install wiring. For

the m ost part , howeve r, t he pa rti es l iv ed off of income produced by the Wife’s assets.

In September 1993, the pa rties lear ned that t he Husband had heart disease and
cancer. The Husband first underwent by pass surger y for his hea rt condition, and he later had surgeryto remove a cancerous kidney and part ofthis bladder. Between surgeries, while the Husband was recuperatingat home, the W ife ins isted th at the Hu sband s ign a quitclaim deed conveying the Husband’s interest in the marital reside nce to the Wife. Both parties had adult chil dren from prev ious marriag es, and the Wife, convinced tha t the Husband would dieas a result of his illness , was conc erned aboutfuture estate problems. According to the Husband, the Wife stated that she “didn’t want to have any lawsuits like the pro bl em that Conway Twitty and all them were having .” Because the Husband was “under heavy medi cation” and di d not want to argue, the H usband gave in t o the W ife’s demands and execut ed the quitcl aim deed.

The Wife to ld a ver

y different stor

y concerni ng the Husband’ s executio n of the quitclaim deed. Accordi ng to the Wife, the conveyance took place as the result of a prior4

agreementbetween the par ties . In order

to induce the Wife to move w ith him to Tennessee and to acquir e the marital res idence, the Hus band allegedl y agreed that, when the Wife reached fifty-five yea rs of age, the H usband would quitclai m his interest in the property to the Wife . The Wife testified that, as additional considerati on for the conveyanc e, the Wife paid $68,439 out of her separatefunds to exting uish the parti es’ line of credit, w hich was secured by the marital residence.

After the Husband ret ur n ed home from h is last surgery, the parties’ relationship quickly dete rio rat ed. With in mo nths , theWife filed t his comp laint se eking a divorce on the grounds of inappropriate marital conduct and ir reconcilabl e differences, and the Husband counterclaimed.

In its final decree, the trial court distributed the parties’ vehicles, household furnis hings and appliances, and other personal property. The court awarded the marital residence, including the 109 ac r es on whic h the residencewas located, to the Wife; however, the court awarded the Husband a judgment li en against themarital residence in the amount of $125,000, one-hal f of the property’ s value. The court als o ordere d theWife to pay the Husband’s atto rney’ s fe es, in the a mou nt of $5,0 00, a s alim ony in solido

. The Wife was permi tted to retain her separate proper

ty, incl uding $9,000 i n cash, a$100,000 certificateof deposit w hich the Wife inherited from her mother , and several undeveloped parcels of land i n Texas w hich had a total value of approx imately $89,0 00.

On appeal, the Wife contends that the tr ial court er red in awarding the Husband a $125,000 judgment li en against the marital residence because (1) the proper ty was acquired prim arily w ith t he Wife’s separate funds, and (2) theHusband had executed a quitclai m deed convey ing all of hi s interest i n the property to the Wife.

As an initial matter, we must reject the W ife’s claim that the parties’ residen ce did not constitute marital property because it was acq uired primar ily w ith the Wife’s separate funds. At trial, it was undisputed that the majority

of the funds used to purcha se the marital5

residence came from the Wife’s m other and from t he sa le of the W ife’s properties in Texas. Before using these funds to purcha se the marital residence, however, t he Wife deposited a large por

tion of the funds intothe parti es’ joint checking account. Further, when the parties pu rchased the marital res idence, the property was titled in both parties’
names. Under these circumstances, the trial court did not err in concluding that, under the doctrine of transmutation, the marital residence consti tuted marital property. McCle llan v. McClell an , 873 S.W.2d 350, 351-52 (Ten n. A pp. 1993); Barnhill v. Barnhill , 826 S.W.2d 443, 452 (Tenn. Ap p. 1991).

As for the Wife’s second argument con cerning themarital residence, we conclude that the trial court did not err in refusi ng to reco gnize the quitcl aim deed execut ed by the Husband. As recently

stated by our

Supreme Court, “[f]or the purpos es of property divisi on in a divorc e, ‘[i]n the final analys is, the status of property d epends not on the st ate of its record title, but on the conduct of the parties.’” Cohen v. C ohen , 937 S.W.2d 823, 833 n. 12 (Ten n. 1996 ) (quoting Mondelli v. Howard , 780 S.W .2d 769, 774 (Tenn . App. 1989)).

In accordance w ith this pr inciple, thi s court has r ef used to re cognize a quitclaim deed executed by a husband in favor of his wife under s imilar ci rcumstances. In Abney
v. Abney , 1991 WL 16255 (Tenn. App. 19 91), perm. ap p. denied (Tenn. Sept. 9, 1991 ), the wife insi sted that the husban d execute a deed convey ing to the w ife certain re al property which theparties formerl y held astenants by t he entireties . The husband recently had obtained a pilot’s licens e, and the wi fe asked him to execute the d eed “for liabil ity purposes” because she feared “ that the propert

y might b ecome a part of some future claim against her husband as a result of a future airplan e crash.” Abney , 1991 WL 16255, at **2- 3. This court r

efused t o g ive effect to the de ed, and affirmed the tri al court’s decision to divide the property b etween the par ties. Id

.

In the present cas e, in r efu sing to give effect to the quitclaim deed, th e trial court found tha t the parties did not intend for the Husband to make a gift of his in terest in t h e marital residence to the Wife. The trial court found that t he partiesinstead entered into the6

transaction in order toavoid any future disputes ov

er the Husband’ s estate in the event that the Husband died as

a result of

his illne ss. In lig ht of these findings , the trial court did not abuse its discretion in awarding the Husband a one-half interest i n the marital res idence.

We also affirm the trial court’s award of a di vorce to t he Husband on the g round of the Wife’s inappropriate m arital conduct. At trial, the issue of which party was at fault in causing the breakup of the mar riage was sharply disputed. Although both parties ag reed that the marriag e deteriorated rapidly after th e Husba nd returned home f rom his last
s u rgery, from there the parties’ the ories diverged. The W ife testified tha t, after his illnesses, the Husband becamehostile and di fficult to get al ong wit h, went for per iods as long as two weeks witho ut bath ing, and ref used to obtain gainfu l emplo yment eve n though doctors said he could return to work. The Husband, on the other hand, testified that, after he retu rned hom e fro m the hosp ital , the W ife “wa s a totall y different pers on” in that she became “real hat eful,” quit cooking for hi m, and refused to sl eep with hi m.

W here the de cis ion of t he trial cour t with r egard to a sp ecific issue hinges on the credibili ty

of the witnesses, the trial court’s decision is entitled to g reat weig ht in this court. “Any conflict in testimony requiring a determination of the credibilit y of a witness or witnesses

is for the tr ial court and b inding on the appellate court unless from other

real evidence the appellate court is compelled to con clude to the contrary.” Hudson v. C apps , 651 S.W .2d 243 , 246 (T enn. Ap p. 1983 ). In awardin g t he Hu sband a divor ce on the ground of inappropriate marital conduct, the trial court apparently believed the Husband’s version of the events l eading up to thedeteriorati on of the part ies’ marri age. Brewe r v. Brewer , 869 S.W.2d 928, 93 4 (Ten n. App. 1993). D espite the Wife’s testimony t o the contrary , we are not compelled to reach a different resul t.

Fina lly, we affirm the trial court’s award of attorne y’s fees to the Husband. The decision to award attorney’s fees in a divorce action r ests wit hin the sound dis cretion of the trial court, and on appeal, thi s court w ill not interfere w ith the trial court’s dec ision, absent
a showing of an abuse o f that discreti on. McCarty v. McC arty , 863 S.W.2d 716, 7227

(Tenn. App. 1992). In t he present case, the Husband was awarded some p ersonal property and a $125,000 judg ment lien agai nst t he marita l residence. The Husband, however, was not aw

arded any substantial, liquid assets, and he testif ied that, in order to pay his livingexpenses si nce the parties ’ separation, he had been forced to borr ow money from relatives. In contrast, the Wife, in addition t o being awarded the marital residence (subject to the Husband’s lien), was awarded separate property with a total value of almost $200,000. This property included $9,000 in cash, a $100, 000 certificate of deposit, and real property valued at appr oximately

$89,000. In light of thes e factors, as well as the trial court’s finding that th e Wife was at fault in the break up of the marriage, we concl ude that the court did not abuse its discretion in ordering the W ife to pay the Husband’s attorn ey’s fees in the amount of $5 ,0 00. Storey v . Storey , 835 S.W.2d 593, 597-98 (Tenn. App. 1992).

The judgment of the tr ial court i s hereby affirmed. Costs on appeal are taxed to the W ife , fo r which execu tion may is sue i f ne cess ary.

HIGHERS, J. CONCUR:
CRAWFORD, P.J., W.S.

FARMER, J.