### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE Septem ber 7, 2000

Session
LOLA ANN NEU GEBAUER TAYL OR v. JAMES RUS SELL TAYLOR

Appeal from the Circuit Court for Rutherford County Nos. 40639 & 40939 Royce Taylor, Judge

No. M1999-02398-COA-R3-CV - Filed June 6, 2003

This appeal a

ris es fromthe dissolution of a four-ye ar marriage. The wife sought a divorce in the Circuit Court for Rutherford County bec ause of the husband ’s chr onic drun kenness, non-supp ort, andthreats o f violenc e. Following a be nch tria l, the court granted the wife a divorc e on the ground of inappro priate mari tal conduct. The trial court also divided the martial estate, ga ve the wife custody of the pa rties’ f our-y ear-ol d daugh

ter, and directe d the husba

nd to pay child supp ort. On thi s appeal, the husband asserts that the trial court er red in its classification and division of the marital property, that the tria

l court awarded an excessive amount of child support, and that the trial court erred by deny ing his request to place a portion of his child support in an educational trust fund. F or her part, the wife request s an a dditi onal awar d to de fray her l ega l expenses for t

his ap peal . We conclude that the trial court (1) correctly classified and d iv ided the marital e state, (2 ) proper ly sequestered a portion of the husband’s assets to assure the timely and regular pay

ment of his chi ld support, and (3) properly declined to establish an educational trust fund for the child. We also conclude that the tr

ial cour t erred by f ailing to direct the trial court clerk to return the remainde r of the sequestered funds to the husband when his child support obligation ceased. In addition, we decline to award

the wife her legal expenses for this appe al or to find that thisappeal w as frivo lous. Tenn. R. App.P. 3 Appeal as of Right ; Judgme nt of the Cir

cuit Cour

t Modified in P

art and Affirmed in Part
W IL LI AM C. K OCH , J R ., J., deliver ed the opinion of the

court, in which B EN H. C ANT RELL , P.J., M.S., and W IL LI AM B. C AIN , J., joined. Jim Wiseman, Murfreesboro, Tennessee, for the appellant, James Russell Tay lor. Charles Patrick Fly

nn, Brentwood, Tennessee, for the appe llee, Lola Ann Neug ebauer Tay lor.
OPINION
I.
Lola Ann Neugebauer met James Russell Tay lor in 1993 when he responded to her call for a tax i. Ms. Neugebauer was a thirty-year -old, recently

transplanted Texan who had never been married. Mr. Taylor wa s forty-two y ears old and had bee n married on ce. They began dating immediate

ly and soon thereafter

purchased

a house in Christiana together. They were married on June 11, 1994, and their only child was born on May 9, 1995.1 The reco rd is am biguo us with regar d to when th e parti es si gned thi s agreement . Ms. Taylor stat es in her

interrogatory responses that she si gned the agreement on the day before the wedding and that M r. Ta ylor signe d it twenty days lat er. Mr. Tayl or ins ist s that he signed it when Ms. T aylor did. The notary pub lic who authenticated the parties’ signa tures admitted that s he was not present when Ms. Taylor signed the agreement, t hat she did not

obser ve Mr. Tay lor sign it, and that

she not arized t

he agreement

as of the date pro vided b y Mr. T aylor. Notwithstand ing these irregularities, the tri al court determined that the agreement had been prop erly executed, and t he parties have not contested the point on this a ppe al. -2- Ms. Taylor did not

bring any substantial assets to the marr iage. However, even thoug h he was driving a taxi, Mr. Taylor ha d inherited several assets, including an antique collection valued at approximately $50,000 and a twelve-acre t ract of commercially

valuable real property

on the Shelby villeHighway

in Murfreesboro. At Mr. Tay lor’s insistence, the parties signed an antenuptial ag re em en t t o e ns ur e t ha t t he re al pr op er ty r em ai ne d w it h M r. Ta ylo r’ s f am il y. 1
Ms. Taylor had c ompleted one yea r of community colleg e in Texas before she move d to Tennessee. She obtained a job preparingtitle policies for a law firm in Murfreesboro, and by 1996, she hadbecome the general manager for a title agency in Rutherford County. By 1998, she earned more than $45,000 per ye ar. Mr. Taylor earned approximately $300 per week driving a t axi unti l he lost his drive r’s lic ense. Ms. Taylor kne w that Mr. Taylor used “a little bit of pot” when they were married but did not believe that he had a substance abuse pr oblem. All

this changed following the birth of the parties’ daughter in May 1995.
Mr. Taylor quit his job as a taxi driver approximately one month after

the birth o f the par

ties’ daughter because he had los t

his driver’s license. He worked only sporadically

during the remaining yearsof the marriage and used the money he earned to buy

himself alcohol, cigarettes, and d ru gs. He ceased

contribu ting tothe house

hold expens es and spe

nt very little time

at home – p

refer ring to spend his time

in local bars instead. Heoften came home in the middle of the night and awake ned Ms. Taylor and their da

ughter by yelling a t them in a drunken stupor. During 1996, the parties engaged in three transactions that are significant to the issues raised on th is appeal. On Januar y 25 , 1996, the

y e xecuted a deed convey

ing the C hristiana

propert y to thems elves as tenants by the e ntirety with a rig

ht of survivorship. On the same day , Mr. Tay lo r executeda quitclaim deed convey ing the twelve-acre

tract on the Shelbyville Hig hway to himself andMs . T ayl or as te na nt s b y th e e nt ir et y. On September 16, 1997, the parties sold 7.56 acres of the propert y on the Shelbyville Highwa y for $1 31,999. 03. They used a pproximately $30,000 of the proceeds to pay marital debts, e specially cr edit card bills, and they put the r emaining funds in a

joint savin gs accoun

t. They also listed the remaining four acres of the Shelby

ville Highway

property for sale at an asking price of $600,000.
The parties’ homeli fe c ont in ued to dec li ne. In September 1998, Ms. Taylor f iled a petition for a protect ive orde r in the Cir

cuit Court for Ruthe rford Cou nty describ ing three y ears of

domestic violence in which Mr. Taylor c ustomarily threatened and shoved her. She also alleged th at on September

1, 1998, Mr. Taylor thre atened to kill her in the presence of their daug hter. The trial court issued an ex parte order of protection on September 8, 1998, and when Mr. Tay lor failed to respond, entered an order of default awarding temporary custody of the par

ties’ daughter to Ms. Tay

lor. The order restrained Mr. Tay

lor from contact

with Ms. Ta

ylo r except a s needed

for visita tion with their child and directe d Mr. Tay

lor to pay $50.40 pe

r week a s child sup

port to the

clerk of the cour t.2 The dividi ng li ne between marit al and se parate proper ty f requen tly becomes blurr ed. Marital property can become separat e property when one spous e gives it to the o ther sp ouse
. Kinard v. Kinard , 986 S.W .2d 220, 232 (Tenn. Ct. App . 199 8); Hanover v. Hanover , 775 S. W.2d 612, 617 (Te nn. Ct. A pp. 1 989 ). On th e othe r hand , sepa rate p rop erty (con tinued ...) -3- Ms. Taylor filed suit for

divorce on November 23, 1998 after the parties’ daughter found drug paraphe rnalia in their home. She also filed a petition seeking to hold Mr. Taylor in contempt for failin g to pay the child support required by the order of protection. Because Mr. Taylor ha

d no known address at the time, the sheriff’s office served him with the contempt papers at a bar named Carney ’s. The tr

ial cour t therea fter co nsolidate d the divor ce and c ontempt c ases for trial.
At trial, the parties stipulated the grounds for divorce but contested the division of their proper ty. The trial court, sitting without a jury , granted Ms. Tay lor a divorce on the ground of inapprop riate marital conduct. In its division of the marital estate, the trial court classified both the Christianapro perty and the Shelbyville Highwa y property

as marital property . The trial court directed that the Shelbyville Highwa y pr oper ty be sold and that eac h party receive one-half of the net proceeds from the sale. The trial court also approved Ms. Tay lor’s proposed parenting plan th at gave her sole custody of the parties’ daughter and that oblig ated Mr. Taylor to pay $90 per week in c hild suppor

t. In light of Mr. Taylor’s track record for pay ing child support, the court directed 21% of his share of the capital gains from the sale of the Shelby ville Road p ropert y be

paid to Ms. Tay

lor as ch ild support. The trial court also directed that $50,00 0 of Mr. Taylor’s sha re of the proceeds from the saleof th e S he lb yvi ll e R oa d p ro pe rt y be deposited with the trial court clerk for the benefit of the parties’ child and authorized Ms. Taylor to withdra w $90 per week as child support. The trial court finally directed that any

funds being held by

the trial court clerk should bepaid over to the child on her eighteenth birthday . Mr. Taylor ha s appealed.
II. T HE C LASS IFI CATION AND D IVISION OF THE M ARITAL P ROPERTY
Mr. Taylor take s issue with the trial court’s decision to classify the Christiana property a nd the Shelbyville Road prop erty as marital property a nd the manner in which the court divided the parties’ marital e state. Specifically, he asser ts that the court’s classification decision runs afoul of the prenuptial agreement

and that t

he court awarded Ms. Tay lor an inequitably large share of the marital estate. We have determined that the manner in which the trial court classified

and divided the parties’ property

was legally

correct and equitable.

A. Dividing a marital estate necessarily begins with the classification of the parties’ property as either separa te or mar ital property. M iller v. Miller , 81 S.W.3d 771, 775 (Tenn. Ct. App. 2001); Anderton v. Anderton , 988 S.W.2d 6 75, 679 (Tenn. Ct. Ap p. 19 98 ). Te nn es se e i s a “d ua l p ro pe rt y” state. Smith v. S

mith , 93 S.W.3d 87 1, 875-76 (Tenn. Ct

. Ap p. 20 02 ). Ac co rd in gl y, property c annot be included in the marital estate unless it fits within the defini tion of “marital property ” in Tenn. Code Ann. § 36-4-121(b)(1)(A) (Supp. 2002). By the sa me token, “separate property ,” as defined in Tenn. Code Ann. § 36-4-121(b)(2), should not be included in t he marita l e state. 2 Becau se2 (.. .cont inu ed)
can beco me m arital pro perty w hen its o wner c omm ingles it with m arital pro perty and n o lon ger trea ts it as sepa rate pro perty. Langschmidt v. Langs chmidt , 81 S .W .3d 7 41, 7 47 ( Te nn. 20 02) ; Sm ith v. Sm ith , 93 S .W .3d a t 878 ; Batson
v. Batson , 769 S.W .2d 849, 858 (Tenn . Ct. App. 198 8). Even if property i s clearly separate, the i ncrease in the pro perty’s value during t he marri age and th e income f rom the propert

y may be co nsi de red marital property i f the
nonowner spous e cont

ribu ted s ubst anti all y t o the separ ate propert y’ s pre serv ati on and appreciation. Tenn. Code A nn. § 36 -4-12 1(b )(1)(B ); Cohen v. Cohen , 937 S.W .2d 823, 832 -33 (Tenn. 199 6). -4- propert y classification issues are questions of fact, Mitts v. M itts , 39 S.W.3d 142 , 144-45 (Tenn. Ct. App. 2000); Brown v. B rown , 913 S .W. 2d 16 3, 167 (Te nn. Ct. App . 1994), a

ppellate courts will review a trial court’s classification decisions using the familiar standar d of review in Tenn. R. App. P. 13(d).
Once a trial court has classified the property as either marital or separate, it should place a reasona ble value on each piece of property subjectto division. Edmisten v. Edmisten , No. M2001- 00081-COA-R3-CV, 2003 WL 21077990, at *11 (Tenn. Ct. App. May 13, 2003 ); Robertson v. Robertson , No. M1999-02103-COA-R3-CV, 2001 WL 459100, at *3 (Tenn. Ct. App. May 2, 2001) (No Tenn. R. App . P. 1 1 applica tion filed ). The pa

rties the mselves mu st come fo

rward with competent

valuation evidence. Kinard v. Ki nard , 986 S.W.2d a

t 231; Wallace v. W

allace , 733 S.W.2d 102, 107 (Tenn. Ct. App. 1987). When valuation eviden ce is conflicting, the court may place a value on the property that is within the range of the values presented by all the relevant valuation evidence. Watte rs v. W atters , 959 S.W.2d 585, 589 (Ten n. Ct. App. 1997); Brock

v. Brock , 941 S.W.2d 896, 902 (Tenn. Ct. App. 1996). Decisions regarding the value of marital property

are questions of fact. Kinard v. Ki nard , 986 S.W.2d at 231. Accordingly, they are entitled to great weight on appeal an d w il l n ot be se co nd -g ue ss ed un le ss th ey a re no t s up po rt ed by a preponderance of the evidence. Smith v. Smith , 93 S.W.3d a t 875; Ray v. Ray , 916 S.W.2d 469, 470 (Tenn. Ct. App. 1995).
Once the parties’ marital property has been classified and valued, the trial court’s goal is t o divide the marital property in an essentially equitable ma nner. Tenn. Code Ann. § 36-4-121(a)(1); Miller v. Miller , 81 S.W.3d at

775. A divi sion of ma

rital pro perty is not rendered inequitabl e simply because it is not precisely e

qual, Robertson v. Robertson , 76 S.W.3d 337, 341 (Tenn. 2002), Cohen v. Cohen , 937 S.W.2d at 832, or because each party did not receive a

share of every

piece of marital pr op er ty. Manis v. M

anis , 49 S.W.3d 295, 306 (Tenn. Ct. App. 200 1) ; King v. King , 986 S.W.2d 216, 219 (Ten

n. Ct. App. 1998). Th

e fairness of the

trial cou rt’s app roach isinevitab ly r

eflected in its results. Bolin v. Bo l in , 99 S.W.3d 10 2, 107 (Te nn. Ct. App . 2002); Watte rs v. W atters , 959 S.W.2d at 591. Dividing a marital estate isnot a mechanical process but rather is g uided by considering

the factors in Tenn. Code Ann. § 36-4-121(c). Kinard v. Ki nard , 986 S.W.2d at 230. Trial courts have wide latitude in fashioning aneq ui ta bl e d iv is io n o f m ar it al pr op er ty, Fisher v. Fisher , 648 S.W.2d 244, 246 (Ten

n. 1983); Manis v. M

anis , 49 S.W.3d at 306, and appellate courts accord g reat weight to a trial court’s division of marital property. Wilso n v. Moore , 929 S.W.2d 367, 372 (Tenn. Ct. App. 1996); Edwards v. Edwards , 501 S.W.2d 283, 288 (Tenn. Ct. App. 1973). Thus, we will ordina rily defer to the trial court’s division of the parties’ marital estate unless it is inconsistent with the factors in Tenn. Code Ann. § 36-4-121(c) or is not supported by a preponderance of the evidenc e. Brown3 Paragr aph 2 of the agreement contained an identical provision regarding Ms. Ta ylor’s one-half i nterest i n the

house and l ot in Christ iana. -5- v. Brown, 913 S.W.2d at 168; Mahaffey v. Mahaffey, 775 S.W.2d 618, 622 (Tenn. Ct. App. 1989); Hardin v. Hardin, 689 S.W.2d 152, 154 (Tenn. Ct. App. 1983).
B.
Mr. Taylor first take s issue with the trial court’s dec ision to classify his interest in the Christianaproperty a

nd the Shelbyvi l le Highway property a s marital property. He insists that treating these intere sts as marital p roperty is inconsis tent with th

e partie s’ anten

uptial ag reemen t, which reflected

their intent to maintain the property they owned at the time of the

marriage as thei

r separa te property. He

also insists that the deeds the parties executed in 1996 and their joint use of the prop erty

do not prov ide a basisfor v ary

ing t he te rms of the a nten uptia l agreem ent. We disagree. Antenuptial agreements are statutorily favored vehicles for defining the status of prope rty separa tely owned by a spouse

prior to marriage. Tenn. Code Ann. § 36-3-501 (2001); Cary v. Car y , 937 S.W.2d 777, 7 81 (Tenn . 1996); Soloman v. Murrey , ___ S .W.3d ___, _ __, 20 02 WL

31319767, at *3 (Tenn. Ct. App. 2002). Properly neg otiated antenuptial agreements are enforc eable c ontract s, Wilson v. Moore , 929 S.W.2d a t 373, and thus should

be interpreted using the rules of construction ordinar ily applicable to other written contracts. Key v. Collins , 145 Tenn. 106, 109, 236 S.W. 3, 4 (1921); In re Estate of Wiseman , 889 S.W.2d 215, 217 (Tenn. Ct. App. 1994). The cardinal ruleof construction is that ant

enuptial agree ments should be cons trued to give effe ct to the p arties’ intentions as reflected in the agreements themselves. Sanders v. Sanders , 40 Tenn. App. 20, 30-31, 288 S.W.2d 473, 477-78 (1955).
The parties’ antenuptial agreement re flected their “mutual desire .

. . that the real pr operty now owned by ea

ch of the parties be and

remain th eir respec tive, sep arate p

ropertie s and unde

r their respective sole ownership and control.” To acco mplish this purpose, paragraph 1 of the ag reement provides , in part: Any real property , either n ow owned by the sa id JAMES RUS SE LL

TAYLOR (specifica

lly inc ludi ng a parcel containing 11.38 acres, more or less, on the Shelby vill e High way and a

n [sic] one-half (1⁄2) interest in a house and lot in Christiana, Tennessee.) or hereafter acquired by

him, with the proceeds of now owned pr op er ty, shallbe the separ ate pro per ty of th e sa id JA MES RUS SE LL TAYL OR. 3 Parag raph 3 pr ovides:
All property a

cquired by e

ither JAMES RUSSELL TAYL OR or LOL A A. NEUGEBAUER, or by both of them, after solem niz ation of the marriage, whether re al or personal, shall be jointly owned propert y of the pa rties as t enants by the entir ety , including all re

nts, issues, profits and proceeds of the property except, however, as above set forth.4 Co urts must const rue c ontr acts consi ste ntl y wi th t he l aw in exi ste nce at

the ti me th e cont

ract was s ign ed. Kee
v. Shelter Ins. , 852 S. W.2d 226, 228 (Te nn. 19 93) ; Robbins v . Li fe I ns. Co. , 169 Tenn. 507, 510, 89 S.W.2d 340, 341 (con tinued ...) -6- Parag raph 4 pr ovides:
Th is agreement shall become ef fective upon the solemnizat io n of the marriage between the pa rties and shall be null andvoid if the proposedmarriage fails to occur f or any reason. This ag

reemen t shall be modified by a subseque ntwritten agreement at any time JAMES RUS SE LL

TAYLOR

commingles his separate property , or proceeds theref rom, with commu

nity propert y in ord er t hat JA MES RUS SE LL TAYLOR’S separate inte rest in community property may be determinedand preserved. Said agree ment may be m

odifie d, amended, or resc inded at a ny t ime afte r th e sai d m ar ri ag e b y a subseque nt written agree ment betw een the p arties. Paragraphs 5 and 6 state that the agreement does not preclude either Mr. Tay

lor or Ms. Taylor fr

om making gifts of their real or pe rs on al pr op er ty t o e ac h o th er . F in al ly, parag raph 9 pr ovides, in part:
Under no circumstances shall the following events, either individua lly or colle ctively , be cons idered e vidence of an inte

nt ion, eit herexp ressly or by

implication, or of an agreement, actual or im pl ie d, to ch an ge th e c ha ra ct er of su ch se pa ra te pr op er ty:

* * *

c. The commingling by either spouse of his or her separa te funds or separate property

with community fund s or commun ity propert y or with the

separa te funds or separate property of the other spouse so long as a written agreement as provid

ed in Paragr aph 4 h ereina

bove is en

tered in to prior to

said commi nglin g; d. Any oral stateme

nts by either spouse;

e. Any

written document b y e

ither spouse, othe

r than an express writ te n agreement as provided for in Para graph 4 hereinabove. These four paragra

phs contain three significant ambiguities that affe ct the outcome of this case.
The first amb iguity

is found in paragraph 3, which states that the property a

cquired by e

ither or both spouse s during

the marr iage a nd the in come or p roceeds from this property shall be considered

“jointly owned,” and, therefore, marital property . This paragraph, however, c ontains an exception preceded

by the following

vague phrase: “except, however , as abov e set for th.” As be st as we can d

etermine , consiste

nt with the

law in existe

nce whe n this ag reemen t was signed, 4 this4 (.. .cont inu ed) (19 36) ; Win ter v. Sm ith , 914 S.W .2d 5 27, 5 37 ( Te nn. Ct. A pp. 1 995 ).

5 Th ere ar e two r easo ns for o ur co nclusio n. First, it is con sistent with Tenn. Cod e Ann. § 36-4-121(b)(2 )(C). Second, the ex ception language in paragrap h 3 follows and appea rs to limit the scope of the ph rase “all rents, issues, pro fits and p roce eds o f the pro perty.”

6 Langschmidt

v. Langs chmidt , 81 S .W .3d a t 747 (Te nn. 20 02) ; Sm ith v. Sm ith , 93 S. W.3d at 878.
7 It is commonly accept ed that the part ies to a w rit

ten contr act may f

reel y cha nge t

he t erms of

the ir c ontr act by entering int o a subsequent writ ten cont ract. Simil arly , th e courts have note d that parties to a co ntract p ermitting only written ame ndm ents or chang es ma y, by their c ond uct, waiv e their righ t to insist on o nly written m odifica tions. Rea lty Shop, Inc. v. RR Westminster Holding, Inc. , 7 S.W .3d 5 81, 6 00-0 1 (T enn. C t. App. 1999). In addi tion, the courts may inf er a subs equent

modif icat ion t o a writ

ten contract

when th e parti es’ conduc t is suff icie ntl y inc onsis tent

withthe wr itten con tract to w arran t conc luding that the p arties inten ded to mod ify the terms of their ag reem ent. Southern C olo. MRI, Ltd. v. Med-Alli ance, Inc. , 166 F.3d 109 4, 10 99 ( 10th Cir. 19 99) ; Lau derd ale C oun ty Sch . Dist. v. En terprise Co nso l. Sch. Dist. , 24 F. 3d 671, 687 (5th Cir. 1994); Danforth Orthopedic Brace & Limb, Inc. v. Florida Health Care Plan, Inc. , 750 So. 2 d 77 4, 77 6 (Fla . Dist. C t. App . 200 0). -7- exception refers to theprovision in pa ra gr ap h 1 st at in g t ha t t he “p ro ce ed s o f n ow ow ne d p ro pe rt y” be lo ng in g t o M r. Ta ylo r p ri or to th e m ar ri ag e r em ai ne d h is se pa ra te pr op er ty. 5
The second ambiguity

is found in the second sentence of parag raph 4 requiring the parties to execute a“subsequent writte n agreement” w

heneve r Mr. Tay

lor “com mingleshis separ

ate pr op er ty, or proceeds ther efrom, with communi

ty propert y.” It is unclear

whether the purpo se of this agreement

is to preserve the continuingseparate character of commingled property

or to confirm that the parties intended t

he commingled pr

operty to become

marit al propert y. The most logica l and consistent interpre tation of t

his provis ion is that it require s the par ties to execute a

su bsequent writ ten agree

ment to pre serve the separ ate cha racter of comming

led prope rty . We arriv e at thi s conclusion for two reasons. First, the legal e ffect of commingling separate proper ty with marital propert y is to change separate property into marital pr op er ty. 6 Second, p aragr aph 9(c)specific ally recognizes the legal effect of comming

ling and states tha t comming ling will

not have the effect of changingseparate property into marital property “so long as a written agreement aspr ovided in Paragraph

4 hereinaboveis entered into prio r to said comming ling.” T

hus, commingling

of separ ate propert y or the proceeds from

separa te prope rty has the effect o f transf

orming e ither the propert y or the procee ds into mar

ital p roperty unless the pa rties have entered into a “subsequent written ag re em en t” to th e c on tr ar y. The third ambiguity

stems from the vague antecedent re ference of “said agreement” in the third sen tence of parag raph 4. It is difficult to determine whethe r “said agreement” re

fers to the antenuptial agreement itself or to the “su bsequen t written a greem ent” required by

paragraph 4 if the parties intend fo

r commingled sepa

rate pr operty to remain separate. Both the antenuptial agreement andthe “subsequent written agreement”are mentioned in the prece ding sentence. I n light of Paragraph

9(e), the most logical conclusi on is that the term “said agreement” re fers to the “subsequent

wr itte n agr eement” described in the second sentence of paragraph 4. All other references to the antenuptial agreement are couched in terms of

“[t]his agreement,” and paragr aph 9(e)’s refer

ence to “an expre ss written

agree ment” most

logica lly a ppears t o refer to the “subsequent written a greem ent” ra ther tha n the ante nuptial a greem ent. 7-8-

Based on our understanding of these provisions of the antenuptial ag reement, we construe the agreement to provide, expressly or by implication, that (1) The interest s in real property owned by ea

ch spouse when they

were married, and any pr oc ee ds fr om th is pr op er ty, re ma in ed th ei r s ep ar at e p ro pe rt y. (2) All property a

cquired by e

ither or both spouses during the marriage , except for the pr oc ee ds at tr ib ut ab le to th ei r s ep ar at e p ro pe rt y, b ec am e m ar it al pr op er ty. (3) Both

spouses were permitted to make gifts of their sepa rate property

to the other spouse. (4) Both

spouses c ould commingle the ir separate property

with marital property or

the other spouse’s separate property , and commingled property became marital propert y unless the parties first executed a written agree ment providing that the commingled pr op er ty w ou ld re ma in se pa ra te pr op er ty. (5) The spouses could amend the antenuptial agreeme nt with another

written agreement re fl ec ti ng th ei r i nt en t t o a lt er th e s ta tu s o f t he ir pr op er ty.
We will examine the part ies’ inte rest in the disputed p

ropertie s in light of

our const ruction o f their antenuptial agreement. First, with reg ard to the Christiana property , the evidence shows that the parties convey ed their separa te int erest s in t he pro perty to e ach ot her as t enant s by the en tiret y withou t sign ing a separa te ag re em en t r ef

le ct in g t he ir in te nt io n for th ei r i nt er es ts to re ma in th ei r s ep ar at e p ro pe rt y. These deeds pr ovide wr itten evid ence of their ag reemen t to commingle their

interests in the propert

y andto treat these interests as marital, as opposed to separate, property . In fact, they lived together i n the house for the remainder of their marria ge, and none of their conduct with reg ard to the prop erty reflec ts an intention on either party ’s part to treat their former individual interests in the property a s separate.
Si mi la rl y, Mr. Taylor

conveyed the Shelbyville Road property to himself and Ms. Taylor as tenants by t

he entir ety without fi

rst obtain ing an a greem ent that th

e p roperty

would re main his separa te property. The

deed provides definitivewritten evidence of his intent to make an inter vivos gift of an undivided one-half interest in the property to Ms. Taylor. The parties’ conduct following the conveya

nce is entirely c onsistent with this intent. Following the conveya nce, the parties jointly sold 7.56 acres of t

he pr op er ty a nd treated the proceeds of the sale as ma rital property by comming ling the

m with othe

r marita l funds and by

using the m for mar ital purpo ses. After considering the evidence in light of our c onstruction of the antenuptial agreement, we are unpersua

ded by Mr. Tay lor’s cla ims that hisinterest

in the Chri stiana pr

operty or the She

lby ville Road propert

y r emained a separ ateproperty intere st. Based on our construction of the antenuptial agree ment, we have concluded that the evidence suppor ts the trial court’s conclusionthat both the marital home in Christiana and the Shelbyville Roa d pr operty should be cla ssified as marital pr op er ty.8 The tri al court awarde d seve ral mari tal ass ets to Ms. Taylor , but gave Mr. Taylor

an of fse tt ing cash award for
one -half their val ue to be paid out of her share of t he proceeds of the sale of the Shelbyvi lle Highway propert y. The t otal amount of M r. Taylor’s equ ity interest i n these assets, not including hi s interes t in t he Putnam Investment Account whi ch
was othe rwise acco unted for, was $14,469. The trial court deducted the thr ee debts totaling $5,785 allocated to M r. Taylor and directed M s. Taylor to pay Mr. Taylor $8,684 [$14,469 - $5,78 5 = $8,68 4]. -9- C.
Mr. Taylor also take s issue with the trial cou rt’s dec ision to aw ard Ms. Ta ylo r approxima

tely one-half of the marital estate that included the remaining Shelby

ville Road property. He

asserts that the award to

Ms. Taylor is inordinately large in light

of the relative brevity

of the marriage. We find no error in the manner

in which the trial court divided the maritalproperty a nd allocated the marital debts.
Un fo rt un at el y, Mr. Taylor ove rlooked Tenn. Ct. App. R. 7 ( then designated as Tenn. Ct. App. R. 15) requiring app ellan ts in divorce cases raising issues involving the amount or disposition of marital property to provide a table depicting the manner in which the trial court divided the marital estate. We have prepared this table ourselves based on the tria l court’s order and its valuation of the ma ri ta l p ro pe rt y: Marital Property 8

Wife
Mar ita l home $ 68,000.00 1/2 Shelbyv

ille Hig hway proper ty 300,000.00 100 sha res Murfr eesboro Bancor p 1,250.00 Househ old fur nishi ngs 15,000.00 Niss an Ma xima 16,000.00 Putnam I nvestment A

ccount 8,633.33 SunTr ust savi ngs 274.63 SunTrust checking 1,469.19 Kemper account 1,979.88 Total Property $412,607.03 Husband
1/2 Marital hom

e equity 8 $ 3,500.00 1/2 Shelbyv

ille Hig hway proper ty 300,000.00 100 sha res Murfr eesboro Bancor p 1,250.00 1/2 Hou sehold furnish

ings equity 8 7,500.00 1/2 Nis san Maxima eq

uity 8 1,500.00 1/2 Put nam I nvestm ent Acc ount eq

uity 8 4,316.66 SunTrust savings equ

ity 8 245.00 1/2 Sun Trust che cking

equity 8 734.00 1/2 Kem per acco unt equ ity 8 990.00

$320,035.66
Marital Debt
Wife Home mortgage $ 61,000.00 Loan on Ma xima 13,000.00 Unsecured marital liabilities 9,570.00 Judgment for Mr. Taylor 8,684.00 Mr. Taylor’s share of Putn am Account 4,316.66
Debt $ 96,570.66 Wife’s Net Property $316,036.37 Husband
IRS 8 $ 500.00 Credit c ard 8 4,785.00 Hospital 8 500.00

$ 5,785.00 Husband’s Net Property $314,250.66-10-

The factors to be considered in dividing a marital estate are delineated in Tenn. Code Ann. § 36-4-121(c). Among these factors is the duration of the marriage, and this court has recognized that the duration of a

marriage is an impo

rtant co nsidera

tion when the marr iage ha s been re

latively short. We have statedthat parties to a marriage of re latively short

duration should, when practicable, be restored to their pre-divorce condition, not on ly with re ga rd to their property , McClellan v. McClellan , 873 S.W.2d 350, 352 (Tenn. Ct. App. 1993); Batson v. Batson , 769 S.W.2d at 859, but also with reg ard totheir

need for spousal support. Crain v. Cra in , 925 S.W.2d 2 32, 234 (Tenn. Ct. App. 1996). Ho wever, the dura tion of the

marriage does not trump all the other factors that may

be relevant in a particular case. Aswe have already noted, the process of dividing a marita l estate in an equita ble manne

r is not mec

hanical

. We have d etermined that the following factors are rele vant and should influence the trial court’s division of the marital estate in this case. First, the court allocated almost 95% of the marital debt – $96,570.66 – to Ms. Taylor. Second, the trial c ourt placed the parties’ child in Ms. Tay lor’s custody and, consistent with Tenn. C ode A nn. § 36-4 -121(d) , award ed her th e marita l home to enhancethe stability in the child’s life. Third, Ms. Taylor bec ame the primary breadwinner during the marriage, while

Mr. Tay lor did not contribu te signi ficantly

to the fina

ncial he alth

of the marri age and, if any

thing, di ssipated

assets. F ourth, Mr . Tay

lor rec eived a v aluable

antique collection valued at $50,000 as his separate property

. Based on thes e factors, and our consideration of the entire record, we have

determined that the manner in which th

e trial c ourt divid

ed the pa rties’ ma rital est ate is essentially equitable.
III. M R . T AYLOR ’ S C HILD S UPPORT O BLI GATION
Mr. Taylor ra

ises four issues regarding his child support obligation. First, he asserts that the trial court should not have considered his capital gains from the sa le of the Shelbyville Hig

hway propert y as income for

the purpose of calculating his child support obligation. Second, he takes issue wit h the amount of funds that the court sequestered to assure the pa yment of his child support obligation. Third, he

insists tha

t the court should have placed the sequestered ca pital gains in an educational trust fund. Finally, he a sserts that the trial court should have directed the clerk to return to him any of the proc eeds fr om the s ale of the Shelbyville Hig hway prope

rty remaining

in the clerk’ s possessi on when hi s child sup port oblig ation end s.

A.
Pr oviding an overview of the trial court’s decision reg arding Mr. Tay lor’s child s uppor t obligation will provide a context for addressing his specific points. Following the trial, it would have been evident to even the most casu al obser

ver that it was unli

kely that Mr. Taylor would pa y his child support in a timely and consistent manner. He had not done so prior to the trial and had accumulated

a $1,130.40 arrearage

. By the tim e of th e divo rce hear ing, he could no longer drive a taxibecause he had lost his driver’s license, and he was work

ing in a car w ash. His p oor work ethic andsubstance abuse made it likely that he would d

issipate any valuable assets tha t might come into his hands rather than using them to assure that his child rece ived the financial support she deserved. Ac co rd in gl y, the trial

court wa s faced

withtwo challenges with regard to Mr. Tay lor’s child support

–first, to arrive at the proper amount of the support; and second, to take appropriate steps to assure that this support would be paid over time.-11-

Turning f

irst to the amount of Mr. Taylor’ s child support obligation, the trial court determined t hat Mr. Ta

ylo r should pa

y $9 0 per we ek in chil d support. Then, to a ssure tha t t hi s support would be paid over time, the trial court directed Mr. Tay lor to pay into cour t a portion of his share of the marital estate and authorized Ms. Tay lor to withdraw $90 per

week fr om these f

unds. Under this arrangement, Mr. Tay lor was not required to pay child s upport di rectly to Ms. Tay lor unless the funds paid into court were depleted before

his child su

pport obli gation e

nded. To c

reate this fund, the

trial c our t ordered Mr. Tay lor to pay into court $50,000 of his share of the proceeds from the sale of the She

lbyville Hig

hway propert y a long with 21% of his share of the capital gains realizedon the sale of the property . The trial court also determined that the parties’ daug hter would be entitled to receive the balance of the funds rem aining in the trial court clerk’s hands on her ei gh te en th bi rt hd ay.
B.
Mr. Taylor first ar

gues that the trial court erred by treating his share of the capital gains from the sale of th

e Shelby villeHighway

property a s income for the purpose of determining the amount of his child supportobligat

ion. The s hort answ er to this a rgumen t is that the

trial cou rt did not b ase its assess ment of Mr . Tay lor’s inc ome on the se capit al gain s.
As a general

matter, all capital gains – even those rea lized from an isolated t

ransac tion – must be considered as gross income for the purpose of determining an obligor parent’s c hild sup por t obligation. Tenn. Comp . R. & Reg s. r. 1240 -2-4-.0 3(3)(a ) (1994) ; Brooks v. Brooks , 992 S.W.2d 403, 407 (Tenn. 1999). The only judicially crea

ted exception to this rule involves capital gains resulting from the sale of an asset to fund the division of property in a divorce case. Alexander v. Alexander , 34 S.W.3d 456, 464 (Tenn. Ct. App. 2000). The purpose of this exception is to prevent the “double- dipping”

that would

result if capital gains were considered both as a marital asset and as income.
Without question, Mr. Tay lor’s ca pital ga ins reali zed from th

e sale of the Shelby

ville Highway property c ould nothave been treated as part of his gross income for child support purposes because the trial court had ordered this property sold as part of the division of the marital estate. However, the trial

court did not calculate Mr. Tay

lor’s income based on these capital gains but rather on imputed incom e from these funds. The trial court explained its calculation of Mr. Tay lor’s income c learly

and succ inctly

as follow s:
It appears to methat he [Mr . Tay lor] is capable of earning up to $300 a week, a ccording to his own stateme nt in his inte

rroga tories and his testimonyhere to day, when h e is dr ivin g a cab. He’s earning minimum wage now. He is also capable of earning money from the value of this property [the Shelbyville Highwa

y propert y] wh en it is sold in so me am ou nt . A nd he co ul d p ay, cl ea rl y could p ay, the amount that is suggested by

the plaintiff of $360 a month, based upon those earnin gs and earnings that would be available to him from the sale of this property.9 W hile Mr. Tayl or has take n issue w ith the tri al court’s consideration of hi s share of the capit al gains f rom the sale of th e Shelbyv ill e Highway pro perty, he does not t ake di rect is sue w ith th e amount

of hi s chi ld s upport

obli gati on if we determi ne that

the t rial court’ s tr eatment

of hi s capit al gai ns was pr oper. Theref ore, the quest

ion of the amount

of Mr. Taylor’s child support obli gati on is not dire ctl y bef ore us . Howeve r, w e have concerns abou t the amoun t of the $90 per week child support award in li ght of our practicalassessment of t he income Mr. T aylor may actuall y be realizi ng from his share of the p roce eds fro m the sa le of the p rop erty.
A $90 per week child suppor t obl igat ion f or one c hil d ref

lect s t hat the obli gor par ent nets approxi matel y $1, 840 per mon th. Thus, in lig ht of Mr. Taylor’s test imony t hat he n ets approxi mately $1,118 per month at the car wash, the tri al cour t must ha ve de termin ed tha t M r. Ta ylor co uld ea rn an a dditio nal $7 22 p er mo nth fr om his shar e of the proceeds from the sale of the Shelbyvill e Highway property. Imputing this much additi onal income seems quite aggressive t aking into consideration: (1) t he tax consequences to Mr. Taylor from the sale of t he property, (2) the requir ement that he must dep osit into court $50,000 plus 21% of his shar e of the capital gains wit h the tri al court cle rk, and (3) the pre vailing ra te of return on fund s in the pres ent market . I t may be unr eali sti c to a ssu me th at Mr. Taylor can earn appr oximat

ely $8,700 per year f

rom inves tin g the f

unds th at are actual ly at his di sposal. However, we must leave thi s question to t he trial court bec ause M r. Ta ylor did not raise it on ap pea l. -12- This statement demonstrates that the trial court recognized that

Mr. Taylor’s total g

ross income was made up of two in

come stre ams. The f

irst was his earned income from his employ ment. The second was the income he could receive from the proceeds of the

sa le of th e S he lb yvi ll e H ig hw ay p ro pe rt y. The distinction between the capital gains themselves and the imputed income fr om the investmentof these capital gains is not only substantive butalso is also outcome-determinative. The Child Support Guidelines permit the court to include in its calculation of t he gro ss income of an obligor parent income imputed fro m valuabl e assetsand reso urces th at the pa

rent own s or contr

ols. Tenn. Comp. R. & Regs. r. 1240-2-4-.04(1)( f) (1 989) states that “[v]aluable assets and resources (expensive home or automobile which s eem i nappropriate for the income claimed by the obligor) of the obligor should be considered for the purpose of imputing income andincreasing the support award in any

case if the court finds that equity requires it.”
In one of our few decisions construing Tenn. C omp. R. & Regs. r. 1240-2-4-.04(1)(f), w e declinedto impute additional income to the obligor spouse because he

had not conceale d his income andresources and because “his lifesty le [had] absolutely nothing to dowith the setting of child support.” Alexander

v. Alexander , 34 S.W.3d at 466. Our refusal to invoke Tenn. Comp. R. & R egs. r. 1240-2-4-.04(1)(f) in that case wasnot intend ed to limit its application to cases in which the extent of an obligor spouse’s holdings re flects t hat he or

she is hiding income . In a ppropria te circumst ances, trial cou

rts may impute ad

ditional income to a

spouse when the spouse

owns valu able assets or resources that, for whatever reason, are not currently producing income. Accordingly , the trial court did not abuse its discretion or act inequitably when it decided to base its calculation of Mr. Taylor’s g

ross income, in part, upon the antic ipated income stream from his share of the proceeds of th e s al e o f t he pr op er ty. 9
C.
Mr. Taylor also complains that the trial court’s decision to sequester 21% of his share of the capital gains f

rom t he sale o f the Shel

byv ille Highway

propert y w as “inhe

rently inequita ble” bec ause the trial cou

rt had al ready sequeste red $50, 000 to assu

re the pa yme nt of his child suppor

t. We find this argumen t unco nvin cing.-13-

Tennessee’s trial courts have at their disposal a broad range of statutory

remedies to assure the pay ment of child suppor

t in circumstances such as this. The obligor spouse’s income is not the only source for child support pay ments. Tenn. Code Ann. § 36-5-102(a) (2001) permits th e courts to use the obligor spouse’s real and personal propert y to pay child supp ort. Similarly, Tenn. Code Ann. § 36-5-10 3(a)(1 ) permitstrial courts to enforce their child support orders by requiring the obligor parent t o post a bond or to provide sufficient personal surety in accordance with Tenn. Code An n. § 36 -5-101(

b). I n addition , Tenn. Co de Ann. § 3 6-5-103( a)(2) e mpowers t

rial cou rts to sequester income, rents, and

profits from

the obligor spouse’s real and personal prope rty to be used for the p ayment of child suppor t.
The Tennessee Supreme Cour t has cautioned against ordering lump sum child support pay ments unless required to address a child’s present and specific need. Hobbs v. Hobbs , 27 S.W.3d 900, 904 (Ten

n. 2000). Howeve

r, this holding involved a

lump sum child su

pport pay ment directly to the custodial spouse. It does not apply to a trial court’s decision to sequester income or propert y under Tenn. Code Ann. § 36-5-102(a), -103(a) (2) to assure that child support is paid.
In this case, the trial court did not order that 21% of Mr. Taylor’s sha

re of the capital gains be paid directly

to Ms. Taylor. Rather , the court directed that these funds be paid into court so that they would be available to meet Mr. Tay lor’s future child support obligation, whateve r it might be. This remedy pr

eserves the future flexibility re quiredby t

he Tenne ssee Supr

emeCourt in Hobbs v. Hobbs

. Ms. Taylor will only be able to dr

aw aga inst these funds con sistent wit

h Mr. Tay lor’s ch ild support obligat ion. The f

act that t hese funds are on

deposit with the c ourt will n ot interf ere with the trial court’s decision should it at some futur e time determine that Mr. Tay lor’s child support obligation should be modified.
If Mr. Tay lor’s obli gation t

o pay child support remains unchanged during the re mainder of his daught

er’s mino rity , his child

support pa

yme nts will amoun

t to approxima

tely $64,000. T

hese pay ments will be spread out over thi rteen y

ears, a nd it is inev

itable tha t the child ’s needswill increa se as she grows older. Accordingly , we decline to find that the trial court erred by sequestering 21% of Mr. Taylor’ s shar e o f the ca pital ga ins from th

e sale of the Shelby

ville Hig hway propert y along with $50,000 of the proceeds from the sale.
D.
Mr. Taylor also asse

rts that if sequestering 21% of hisshare of the capital gains from the sale of the Shelbyville Highwa

y property

was justified, the trial court should have pla ced thes e funds in an educati onal trus t i n accordanc e with Tenn. Comp. R. & Regs. r. 1240-2-4-.04(3) (1997). Decisions establishing an educational trust fund are discretionary. Bryan v. Leach , 85 S.W.3d 136, 153 (Tenn. Ct. App. 2001). We have determined that the trial court’s denial of Mr. Tay lor’s request for an educational trust fund is consistent with the facts and the applicable law.
The educati onal trus tfund provisions in the Child Support Guidelines are triggered when the obligor parent’s net income exceeds $10,000 per month. While Mr. Taylor’s monthly income may exceed$10,000 in the month he receives the procee ds fr om the sale of the Shelbyville Hig hway pr op er ty, the record contains overwhelming evide nce that over time, h is r egular monthly income will never exceed $1,500. Thus, even taking the proceeds f rom the sale of the p roperty into consideration, Mr. Ta ylor’s av erage monthly income is not high e

nough to trigg er Tenn . Comp. R.-14-

& Regs. r. 1240-2-4-.04(3). I n addition, Mr. Taylor

never de monstrated that his $ 90-per- week ch ild support ob ligation was excessive in light of his daughter’s needs. Without such a showing, w e would be hard p ressed t o fault the trial court for declining to establish an educa tional trust fund. See Huntley v. Huntley , 61 S.W.3d 329, 337 (Tenn. Ct. App. 2001).
E.
Fi na ll y, Mr. Tay

lor asse rts t hat the trial court erred by failing to provide that the funds remaining in the trial court clerk’s hands on his daughter’s e ighteenth birthday

should be returned to him. We agree because the funds being held by the cler k are int ended to assure the pay

ment of Mr. Taylor’s c

hild support obligation. Onc e the obligation is discharged, the funds should be returned to him. See Price v. Price , No. M1998 -00840-C OA-R3-CV , 20 00 WL 192569, at * 9 (Tenn. Ct. App. F

eb. 18, 20 00) (No Tenn. R. Ap p. P. 11 applic ation filed); Lee v. Askew , No. 02A01- 9805-JV-00133, 1999 WL 142389, at *2 (Tenn. Ct. App. Mar. 17, 1999), perm. app. denied (Tenn. Nov. 1, 1999); Klemetstrud v. Klemetstrud , No. 02A01-9306-CV-00150, 1994 WL 556365, at *5 (Tenn. Ct. App. Oct. 12, 1994), perm. app. denied (Tenn. June 5, 1995). Accordingly , on remand, the trial court should modify its final order to provide that any funds re

maining in the hands of the trial cou rt clerk when Mr. Tay

lor’s ch ild suppor

t obliga tion cea ses shall r

evert to him.
IV.
As a final matter, Ms. Tay lor requests this court

to award her thelegal expenses she incurred on this appe al and to a ssess damages a gainst M r. Tay lor pursu ant to Tenn. Code Ann. § 27-1-122 (2000). We agree with the trial court’s decision to require Ms. Tay lor to pay her own l egal e

xpenses, and we decline to f

ind that thi s appeal

is frivolous. Spouses who are required to return to cour t to enfor ce their former spouse’s child support obligations may rec ove r th eir legal expenses. Tenn. Code Ann. § 36-5-103(c) . The purpose of permitting these awards is to protect and promote a child’s right to support. Accordingly , requiring parentswho frus trate ch

ild suppor

t ordersto underw

ritethe expense of vindicating a child support order is appropriate. Sherrod v. Wix , 849 S.W.2d 780, 785 (Tenn. Ct. App. 1992).
Whiledecision s rega

rding r equests f or lega l expe nses are discretionary , Placencia v. Placenc ia , 3 S.W.3d 497, 504 (Ten n. Ct. App. 1999), a

wards fo r these e xpenses inc

urred by a spouse to vindicat

e child support rights are becoming familiar a nd almost commonplace. Deas v. Deas , 774 S.W.2d 167, 170 (Tenn. 198 9); Sherrod v. Wix , 849 S.W.2d at 785. These a wards a re appr opriate when the parent seeking to defend or to enf orce a child support obligation prevails or when requiring the prevailing spouse to pay his or her legal expenses would inequitably reduce the am ount o f support the child receiv es. Richardson v. Richardson , 969 S.W.2d 931, 936 (Tenn. Ct. App. 1997). A spouse who is otherwise entitled to an award for leg al expenses should notbe prevented from collecting them simply

because he or sh e mightbe financially a ble to pay these f

ees. Gaddy v. Gaddy , 861 S.W.2d 236, 241 (Tenn. Ct. App. 1992).
Ms. Taylor cla

ims that Mr. Taylor filed this appe al only to delay andto cause her expense. She seeks frivolous appeal damages pursua nt to Ten n. Code Ann. 27-1-122 due to the perceived “bas eles s[nes s]” of Mr. Ta ylo r’s appe al. I

n light of the changes we

have mad

e to the tr ial co urt’s order, however , this appeal cannot be character ized as frivolous. Moreover, we will not award a-15-

party attorney’s f

ees as a punitive measure. Derrybe rry v. De rryberry , No. 03A01-9801-CV-00023, 1999 WL 4868 63, at * 6 (Tenn. Ct. A pp. July 13, 1999) (No Tenn . R. App. P. 11 application filed). Even if Mr. Taylor is “just plain mean,” Ms. Taylor’s income, the assets she received from the division of prope

rty , and the c

hild suppor

t ordered to be pai d to the clerk of the trial court indicates that leaving Ms. T ay lo r to pay her own fees will not deprive the child of the support to which she is entitled. Accordingly , we findno error in the tria l court’sdecision

to leave the partie s to pay their own attor ney ’s fees

. V.
We affirm the trial court’s judgment as modified herein and remand the case to the trial court for further procee din gs consistent with this opinion. We also tax the costs of this appeal in equal proportions to Mr. Taylor and his surety and to Ms. Tay lor for which execution, if necessary , may issue.

_____________________________ WILL IAM C. KOCH, JR., JUDGE