The Nam Es of The Hu Sband An D Wife. Th E Parties Also a Cquired Va Rious Hous Ehold

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE FILED January 27, 2000

Cecil Crowson, Jr. Appellate Court Clerk E1999-01326-COA-R3-CV SHARON DENISE RAY, ) C/A NO. 03A01-9906-CV-00230 ) Plaintiff-Appellee, ) BRAD LEY C IRCUIT ) vs. ) HON. LAWRENCE H. PUCKETT, ) JUDGE JOHN ALAN RAY, ) ) AFFIRMED AS MODIFIED, Defend ant-App ellant. ) AND REMANDED

JIMMY W. BILBO, LOGAN, THOMPSON, MILLER, BILBO, THOMPSON & FISHER, P.C., Cleveland, for Plaintiff-Appellee.

RAN DY S ELLE RS, Clev eland, for D efendan t-Appellan t.

O P I N IO N

Franks, J.

In this divorce action, both parties have appealed raising issues of classification of property and whether the marital property was equitably distributed.

The parties were married in 1991, and during the marriage acquired a duplex. A lot on Lak eview dr ive was g iven by the husband ’s sister and w as titled in the nam es of the hu sband an d wife. Th e parties also a cquired va rious hous ehold items, several vehicles, the husband’s 401(k) account, accounts at the Tennessee Valley Credit Union and First Citizens Bank, and cash in the amount of $7,000.00.

In the Final Decree, the Trial court held that $3,000.00 given by the father as a downp ayment on the duplex and the L akeview lot valued at $4,000.00 were the husba nd’s separa te property, a nd then es sentially divid ed the add itional prope rty equally .

Our review of the Trial Court’s determination is de novo upon the record, with a presumption of correctness of the Trial Court’s finding of fact, T.R.A.P. Rule 1 3(d). Hass v. Knighton, 676 S.W.2d 554, 555 (Tenn. 1984). Trial courts have *2 wide discretion in the manner in which marital property is divided, and their decision is given great w eight on appea l. Wade v. Wade, 897 S.W.2d 702, 715 (Tenn. Ct. App. 1994).

Before dividing the marital estate, the trial court must classify the parties’ p roperty as either m arital or se parate p roperty. Dunlap v. Dunlap, 996 S.W.2d 803 (T enn. C t. App. 1 998. The Trial Court found the gift of $3,000.00 from the Husband’s father to be the husband’s separate property. The money was used as a down payment on the duplex, which was titled in the names of both parties. The Court a lso foun d that the lot on L akevie w Dri ve to be the hus band’s separa te prop erty. The Tria l Court said: “ I’m going to find that the $4,000.00 piece of rea l estate is separate property. It’s his property, separate property. . . . It was in both names, but it’s really a gift from his sister.”

Tenness ee Code Annota ted § 36-4 -121(b)(2) (D) prov ides that sepa rate property includes gifts to either party. However, the record does not establish whether the gifts we re made solely to the h usband o r to the ma rriage, but assu ming the gifts were made solely to the husband, and were his property at the time of the gift, the doctrine of transmutation applies.

In Batson v. Batson, 769 S.W.2d 849 (Tenn. Ct. App. 1988), a husband purchased a house from his separate funds placing the title in his and his wife’s name, as tenan ts by the entirety . We h eld that th e prope rty beca me m arital pro perty. Accor d, Wright-Miller v. Miller, 984 S.W.2d 93 6 (Tenn. Ct. Ap p. 1998); McClellan v. McClellan, 873 S.W .2d 350, 35 1 (Tenn. C t. App. 199 3); Barnhill v. B arnhill, 826 S.W.2d 443, 452 (Tenn. Ct. App. 1991). In Wright-Miller, McClellan and Barnhill, the courts ru led that transm utation had occurred w hen sepa rate property was used to purchase a marital home, with the home being titled jointly to the parties as tenants by the entir ety. Also see H ardin v. H ardin, 979 S.W.2d 3 14 (Tenn. Ct. A pp. 1998).

In this case, the duplex where the parties resided was titled in the names of both husband and wife, which triggers the presumption that the marital home was marital property. See Batson, 768 S.W.2d at 858. The only proof offered by the husband to overcome the presumption was that the dow n payment on the house was a gift to him from his father and that the husband had made financial contributions and *3 improvements to the property. We conclude that the evidence does not rebut the presum ption an d prepo nderate s again st the Tr ial Cou rt’s findin g on thi s issue. T.R.A .P. Rule 13(d).

The other property a t issue is the lot given by the husb and’s sister. It too, was titled in the names of both parties and acquired during their marriage. Again, these facts trigger the presumption that it is marital property, and that husband had the burden o f showing the property was inten ded to rem ain his sepa rate property despite being titled jointly.

In Wright-Miller v. Miller, the husba nd had p urchased property w ith his separate funds, but titled the property in the names of himself and his wife, but he argued that the presumption created by titling the property in the names of both parties was rebutted, because the monies to purchase the lot and construct the house came from his corporation, and that it was not his intent to make a gift of one-half of the property to his wife. Also he paid the taxes on the property, and maintained the proper ty out of h is incom e.

The Wright-Miller Court said that the reasons offered by the husband were not dispositive, but were merely factors to be considered. The court reasoned, as the wife p roperly pointed out, that the “H usband c ould have titled the prop erty in his name on ly if he intended the property to re main sepa rate.” and concluded that husband had no t overco me the presum ption th at the pro perty w as in fac t marita l prope rty.

In this case, the wife testified that the lot was a gift from the husband’s sister and brother-in-law. Husband testified that his sister “felt obligated that she could give [him] some piece of property, because . . . when [he] was about 18 or so [his] dad bought five acres for [him] and [his] sister.” He testified that the title was placed in both names because “we just put everything in both of our names.” The evidence does not overcome the presumption created by the joint title. Accordingly, we hold that the lot awarded as separate property was marital property.

The Court’s property division gives each party essentially one half of the marital property. The husband argues that the distribution of marital property was not equitab le. He states th at “there w as no m ention at trial tha t Ms. Ray contributed to the acq uisition, p reserva tion, app reciation or dissip ation of the ma rital prop erty. *4 Likewise, there was absolutely no proof that Ms. Ray made any type of contribution as homemaker or wage earner, pursuant to the factors stated in T.C.A. 36-4-121 (c)(5).” He conclude s by asserting that he did a ll the work o n the prop erty and made “significant and substantial improvements toward the property” and that he is entitled to a grea ter portio n of the marita l prope rty.

While the husband was the primary wage earner, the wife also worked outside the home bringing in additional income. She also took care of the parties’ minor child and assumed the role of homemaker. The husband’s argument that he should be compe nsated for h is contribution s and labo r while den ying any s uch credit to the wife fo r her labors d oes not strike a responsiv e chord in e quity. Con sidering all the relevant factors, the Trial Court did not abuse its discretion by aw arding a nearequal d ivision o f the m arital pro perty.

Upon remand, the Trial Court is directed to divide the value of the additional $ 7,000.00 w e have de termined to be marital pr operty, betwe en the parties in the same manner as the Court has heretofore divided the marital estate.

The cost of the appeal is assessed to the husband.

__________________________ Herschel P. Franks, J.

CONCUR:

___________________________ Houston M. Godd ard, P.J.

___________________________ D. Michael Swiney, J.