                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                    April 13, 2000 Session

                           DAVID RIVKIN v. LORI POSTAL

                   Appeal from the Chancery Court for Williamson County
                             No. 24930  Russ Heldman, Judge


                  No. M1999-01947-COA-R3-CV - Filed September 14, 2001


This appeal involves the financial aftermath of a short-lived nonmarital affair that ended badly. The
man filed suit in the Chancery Court for Williamson County seeking a partition of the jointly-owned
property and the return of his personal property. The woman responded with a counterclaim for
breach of promise to marry. Following a bench trial, the trial court divided the jointly-owned
property and awarded the woman $150,000 in damages on her breach of promise claim. Both parties
now take issue with the judgment. The man asserts that the evidence does not support awarding the
woman $150,000 or granting the woman such a large share of the jointly-owned property. The
woman takes issue with the reduction of her share of the property because of damage to the man’s
personal property while it was in her possession. We have determined that the evidence does not
support the trial court’s conclusion that a promise to marry existed or that the woman was damaged
by the failure of the marriage to take place. We have also determined that, with the exception of a
cedar chest belonging to the man’s grandmother, the manner in which the trial court divided the
parties’ jointly-owned property was proper.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed in Part
                                    & Reversed in Part

WILLIAM C. KOCH, JR., J., delivered the opinion of the court, in which WILLIAM B. CAIN and
PATRICIA J. COTTRELL, JJ., joined.

Mary Arline Evans and John Michael Garrett, Nashville, Tennessee, for the appellant, David Rivkin.

Grayson Smith Cannon, Goodlettsville, Tennessee, for the appellee, Lori Postal.

                                            OPINION

                                                 I.

        David Rivkin and Lori Postal met in April 1994 at a music convention in Memphis. Mr.
Rivkin was a successful, award-winning producer. Ms. Postal was a 28-year-old divorcée who was
living in Atlanta with her mother and stepfather. She sold bathing suits at wholesale and had also
started a record label. Ms. Postal was attending the Memphis convention to obtain a record contract
for a singer and a band that she represented. Even though Ms. Postal knew that Mr. Rivkin was
married and had three children,1 she welcomed his romantic advances. Within a short period of time,
they began living together at the Peabody Hotel in Memphis and later moved into a house Mr.
Rivkin bought in a Memphis suburb.

        In early 1995, Ms. Postal discovered she was pregnant with Mr. Rivkin’s child. Mr. Rivkin
suggested an abortion, but Ms. Postal did not agree. Their child was born in September 1995.
Shortly after their child was born, Mr. Rivkin sold the house in Memphis, and the parties moved to
Williamson County because they believed that Mr. Rivkin would have greater success as a producer
in the Nashville area. Mr. Rivkin was the parties’ sole source of support, and he was able to provide
an exceptionally affluent lifestyle for Ms. Postal and their child despite his continuing obligations
to his wife and children. He purchased a $420,000 home in Williamson County and horses for Ms.
Postal. He also hired a nanny for the child. Not surprisingly, Ms. Postal took to this lifestyle. She
did not work outside the home but rather spent her time raising the parties’ child, training her horses,
and entertaining her personal friends and Mr. Rivkin’s business associates.

        But all was not well with the parties. They entered counseling in an effort to save their
relationship. One of their problems stemmed from Ms. Postal’s concern that her family knew that
she was living with a married man and had given birth to his child. She insisted that Mr. Rivkin buy
her an engagement ring to enable her to save face with her family. When Mr. Rivkin did not
purchase a ring for her, Ms. Postal ordered a ring herself. Mr. Rivkin eventually paid for the ring
after Ms. Postal refused to return it and also permitted her to wear it in front of her family. Ms
Postal told her parents that she and Mr. Rivkin were planning to wed after he was divorced, and Mr.
Rivkin did not contradict her. However, the parties themselves never discussed specific wedding
plans.

        The parties’ relationship had disintegrated further by August 1996. Ms. Postal accused Mr.
Rivkin of sexually molesting their child, and the Williamson County Juvenile Court, at the insistence
of the Department of Human Services, ordered Mr. Rivkin to move out of the house and to stay away
from the child while the Department conducted its investigation. Despite her charges against Mr.
Rivkin, Ms. Postal continued to have sexual relations with him. Although Mr. Rivkin was
eventually cleared of all the molestation charges, Ms. Postal’s allegations irretrievably damaged the
parties’ relationship.

        Mr. Rivkin was finally divorced from his wife in March 1997. However, by this time, Mr.
Rivkin was no longer living in the parties’ house. He saw Ms. Postal on occasion and continued to
pay for all her living expenses, the mortgage on the house, the payments on her truck, and all of the
child’s expenses. One of their last meetings was Ms. Postal’s birthday in May 1997. On this


        1
            Mr. Rivkin had married M aryen Cukier Rivkin in Marc h 1977. He and Ms. Rivkin had separated in June
1993.

                                                       -2-
occasion, Mr. Rivkin asked Ms. Postal to return the “engagement” ring and to begin paying some
of her living expenses. Ms. Postal returned the ring, and approximately one month later, Mr. Rivkin
told her that their relationship was over and that he no longer wished to see her.

         When it became evident that their relationship had ended, neither party followed Emily
Post’s sage advice “to take the high road – and move on.”2 In September 1997, Mr. Rivkin filed suit
in the Chancery Court for Williamson County seeking a partition of the parties’ jointly-owned
property and the return of his personal property that was still in Ms. Postal’s possession. Ms. Postal
responded with a counterclaim seeking damages for breach of promise to marry. As a result of this
litigation, Mr. Rivkin stopped paying Ms. Postal’s living expenses and the mortgage on the house.
Ms. Postal was required to borrow money from her mother and father in order to stave off
foreclosure. Eventually, the parties agreed to sell the house and to place the proceeds in escrow.
Before the case came to trial, Ms. Postal’s father attempted to intervene in the lawsuit to recover the
money he had loaned his daughter.

        The trial court heard the case without a jury in November 1998. In April 1999, the trial court
filed a memorandum concluding that Mr. Rivkin had breached his promise to marry Ms. Postal and
that Ms. Postal was entitled to $150,000 in damages. The trial court awarded the parties equal shares
of the remaining proceeds from the sale of the house and divided the other pieces of personal
property generally according to schedules submitted by the parties, except for Mr. Rivkin’s
grandmother’s cedar chest which was awarded to Ms. Postal. The court also reduced Ms. Postal’s
award by $2,000, representing the damage to Mr. Rivkin’s gold and platinum records that had been
in her possession, and dismissed Ms. Postal’s father’s motion to intervene.

        Both parties filed Tenn. R. Civ. P. 59.04 motions asking the trial court to address the 1993
GMC truck that had been overlooked in the memorandum opinion and judgment. The trial court
filed an order in August 1999 awarding the truck to Ms. Postal, and then vacated and re-entered the
order in October 1999 because neither of the parties had received its August 1999 order. On this
appeal, Mr. Rivkin takes issue with the $150,000 damage award and the division of the jointly-
owned property. Ms. Postal takes issue with the trial court’s decision to deduct $2,000 from her
judgment because of the damage to Mr. Rivkin’s gold and platinum records.

                                                         II.

        Thomas Hardy offended the Victorian opinionmakers of his day by suggesting in his 1896
novel Jude the Obscure that marriage was merely a contract that some persons entered into as
unwisely as they entered into other contracts. Many persons, other than clerics and literary critics,
sensed that Hardy had a point. Less than three-quarters of a century after the publication of Jude the
Obscure in book form, much of the polite squeamishness over Hardy’s suggestion had evaporated,



       2
           Emily P ost, Emily Post’s Wedding Etiquette 12 (Peggy Post ed., 4th ed. 2001).

                                                         -3-
and even the courts were openly characterizing marriage as a contract. See, e.g., Jambrone v. David,
156 N.E.2d 569, 571 (Ill. 1959); Diemer v. Diemer, 203 N.Y.S.2d 829, 834 (N.Y. 1960).

       Though some may still object to characterizing marriage as a contract, promises to marry
have been enforceable as contracts well before Hardy wrote about Jude Fawley and Susanna
Bridehead. See 1 Homer H. Clark, Jr., The Law of Domestic Relations in the United States § 1.1 (2d
ed. 1987) (“Clark”) (discussing the history of breach of promise to marry). The contract to marry
has been described as “essentially different from every other contract known to the law.” Lewis v.
Tapman, 45 A. 459, 461 (Md. 1900). Some courts have said that it “stands on a different footing
from the general commercial contract.” Minsky v. Satenstein, 143 A. 512, 514 (N.J. 1928).
Professor Williston points out that while ordinary contract principles “find special and peculiar
applications” to contracts to marry, such executory mutual promises are nevertheless subject for the
most part to the rules governing any other bilateral contract. 10 Samuel Williston, Treatise on the
Law of Contracts § 1289 (Walter H. Jaeger ed., 3d ed. 1967). As far as contracts go, one is just as
binding as the other. Attridge v. Pembroke, 256 N.Y.S. 257, 260 (App. Div. 1932).

        In England, before the founding of this country, questions touching on marriage and breach
of a promise of marriage were chiefly the province of the ecclesiastical courts. Lewis v. Tapman,
45 A. at 460; Lawrence M. Friedman, A History of American Law 202 (2d ed. 1985). Those courts,
however, lacked power to grant relief in breach of promise to marry cases other than to decree a
performance of the marriage on pain of spiritual punishment. Eventually, as marriage began to be
viewed as “largely a property transaction, entered into as much for material advantages as for reasons
of sentiment,”3 actions for breach of promise to marry found their way into the King’s courts where
the aggrieved parties could obtain what they actually wanted – money damages. Lewis v. Tapman,
45 A. at 460.

       The common-law action for breach of promise to marry made its way to the American
colonies along with most of the common law of England. Here, it started out as “a popular means
of soothing the sufferings of rejected love.”4 In time, however, it became subject to abuse.
Borrowing ideas from tort law, the courts began permitting juries to award punitive damages. Note,
Heartbalm Statutes and Deceit Actions, 83 Mich. L. Rev. 1770, 1773-74 (1985); Comment,
California Reopens the “Heartbalm” Action, 9 Stan. L. Rev. 406, 408 (1957). Most breach of
promise to marry actions were brought by women against men,5 and men’s fears of excessive
verdicts and their distaste for the scandal surrounding such suits gave women the power to wield the
cause of action almost as blackmail. 1 Clark § 1.1; Note, Heartbalm Statutes and Deceit Actions,
83 Mich. L. Rev. at 1776-77.


        3
            1 Clark § 1.1.

        4
            1 Clark § 1.1.

        5
          See, e.g., Poster v. Andrews, 182 Tenn. 671, 189 S.W.2d 580 (19 43); Goodner v. Goodner, 147 Tenn. 517,
249 S.W . 805 (19 23); Brown v. Odill, 104 Tenn. 250, 56 S.W . 840 (1900).

                                                      -4-
        By the 1930s, newspapers were publishing accounts of “spectacular ‘extortion and blackmail
rackets’” based on these claims. William B. Eldridge, Domestic Relations – Breach of Promise
Actions, 21 Tenn. L. Rev. 451, 451 (1950) (“Eldridge”). The publicity of the “unfounded suits,
perjury, and excessive verdicts at the hands of . . . seemingly ever gullible . . . [juries] armed with
unrestrained discretion” eventually prompted a movement to reform these claims. Eldridge, 21
Tenn. L. Rev. at 452. Beginning with Indiana in 1935, the states began enacting statutes aimed at
ending the perceived abuses associated with breach of promise claims. 1 Clark § 1.1; Note,
Heartbalm Statutes and Deceit Actions, 83 Mich. L. Rev. at 1770-71; Comment, California Reopens
the “Heartbalm” Action, 9 Stan. L. Rev. at 408.

        Many states abolished the cause of action altogether, prompting courts to jump on a
bandwagon of sorts that some thought went too far. It became increasingly evident that the
pendulum was swinging too far in the other direction. The barriers erected to correct one evil gave
legal protection to another. The courts, perhaps overzealous in their interpretation of legislative
intent, construed these statutes as prohibiting tort actions between formerly betrothed parties for
fraud and deceit . . ..6 Eldridge, 21 Tenn. L. Rev. at 452.

        Tennessee chose a middle course. Rather than abolish the common-law cause of action for
breach of promise to marry, this state chose to rein it in a bit. In 1949, the Tennessee General
Assembly passed an act which, according to its caption, was designed “to prevent certain injustices
in suits for damages for the breach of promise or contract of marriage.”7 This act circumscribes
breach of promise claims in four significant ways. First, Tenn. Code Ann. § 36-3-405 provides that
these claims could not be joined with other damage claims. Second, Tenn. Code Ann. § 36-3-401
requires that promises or contracts of marriage could only be established using either signed, written
evidence of the promise or contract or the testimony of at least two disinterested witnesses. Third,
Tenn. Code Ann. § 36-3-403 requires juries to consider the parties’ age and experience in calculating
damages.8 Finally, Tenn. Code Ann. § 36-3-404 prohibits awarding punitive damages in cases where
the alleged breaching party was over sixty years old. These statutes survive to the present day, and
thus this case is governed by their strictures.

                                                 III.
                            EVIDENCE OF THE CONTRACT OR PROMISE TO MARRY




          6
          Deceit actions for damages resulting from a fraudulent promise to marry have as their object compensating
a party for expenditures made in reliance o n the dec eitful prom ise. Note, Heartbalm Statutes and Deceit Actions, 83
Mich. L. Rev. at 1772 n.10.

          7
              Act of April 8, 1949, ch. 161, 1949 Tenn. Pub. Acts 486, now codified at Tenn. Code Ann. §§ 36-3-401, -405
(1996).

          8
           In fact, Tenn. Code Ann. § 36-3-403 specifically provided that “[a]ny previous marriage on the part of such
plaintiff shall b e conside red by th e court an d jury in m itigation of th e dama ges that m ight other wise be a llowed.”

                                                            -5-
       A suit for breach of promise or contract to marry follows the procedures generally associated
with other actions for breach of contract. Kaufman v. Fye, 99 Tenn. 145, 167, 42 S.W. 25, 30
(1897). Thus, the plaintiff has the burden of proving the existence of a contract, that is an offer of
marriage and an acceptance, along with consideration (which need only be a return promise to
marry). Weeks v. Mays, 87 Tenn. 442, 443, 10 S.W. 771, 771-72 (1889); Conn v. Wilson, 2 Tenn.
(2 Overt.) 234, 234 (1814); Clark § 1.2, at 6. The plaintiff must also prove the other party’s refusal
to marry or the disavowal of intent to perform. Crossett v. Brackett, 105 A. 5, 6 (N.H. 1918).

        Ms. Postal’s testimony alone is insufficient to prove the existence of a promise or contract
to marry. Tenn. Code Ann. § 36-3-402. To meet her burden of proof in this case, Tenn. Code Ann.
§ 36-3-401 requires her to present either “written evidence of such contract, signed by the party
against whom the action is brought” or with the testimony of “at least two disinterested witnesses.”
As best we can determine, the trial court concluded that Ms. Postal presented evidence of both sorts.
We have concluded that the trial court erred on both counts.

                                                    A.
                           Written Evidence of a Contact or Agreement to Marry

        We turn first to the “written evidence.” In March 1996, one month after he purchased the
Williamson County house, Mr. Rivkin executed a quitclaim deed conveying the property to himself
and Ms. Postal as joint tenants with right of survivorship. The trial court appears to have decided
that this quitclaim deed is the sort of written evidence that Tenn. Code Ann. § 36-3-401 requires.9
The quitclaim deed, however, falls far short of the mark.

         We presume that the Tennessee General Assembly intended to make a useful contribution
to the law governing breach of promise to marry cases when it enacted Tenn. Code Ann. § 36-3-401.
Accordingly, the statute must contemplate that any writing proffered to satisfy Tenn. Code Ann. §
36-3-401 must have real probative force with regard to the existence of both an offer to marry and
an acceptance. The writing must, in the language of Tenn. R. Evid. 401, make the existence of Mr.
Rivkin’s promise to marry more probable than it would be without the evidence.

        “It is obvious,” as one treatise puts it, “that not only are most engagements to marry arrived
at informally and without witnesses or written record, but in many instances there is no explicit

          9
           In its April 21, 1999 amended mem orandum, the trial court concludes that Tenn. Code A nn. § 36 -3-401 is
“definition ally unclear” and then states: “Does this mean a complete written contract or a writing supporting the
conclusion that a promise or contract of marriage exists? If the latter, then Mr. Rivkin’s Quitclaim Deed to Ms. Postal
renders moot a determination of whether the prom ise or contract has been proven by at least two ‘disinterested
witnesses.’ Therefore, consider ing all the fo regoing , the Cou rt will not plac e a constru ction on th e statute wh ich wou ld
be the most extreme deviation from common law or antique appellate decisions governing the breach of promise of
marriag e.” Ms. Posta l’s appellate brief chara cterizes the trial c ourt’s reaso ning as fo llows: “The trial co urt appea rs to
have interpreted the quitclaim deed executed by Mr. Rivkin shortly after the purchase of the Harpeth School Road
property, to possibly constitute the type of w riting called f or by the statute. . . . How ever, the trial c ourt did n ot elabora te
further on how it fo und the deed to sa tisfy the requ isites of the statute .”

                                                                 -6-
exchange of promises at all.” 1 Clark § 1.2. Accordingly, proof of an engagement would be
impossible if the plaintiff were required to produce evidence that at some specific moment the parties
formally exchanged promises and reduced these promises to writing. Tenn. Code Ann. § 36-3-401
is not intended to go that far. Rather, it calls for signed, written evidence that the parties were, by
mutual agreement, on the way to becoming husband and wife. Many kinds of writings would
suffice.10

        Mr. Rivkin testified that he gave Ms. Postal a joint tenant’s interest in the Williamson County
house as a way of making sure that their child would be provided for should something happen to
him. In his words, the quitclaim deed was executed “for the child, in the event something happened
to me; [so] that the child would have a house to live in.” If we discount this explanation because the
trial court stated that it “disbelieve[d] Mr. Rivkin and his denial of any agreement to marry Ms.
Postal,” we are left with no other direct evidence of Mr. Rivkin’s reasons for this conveyance. Ms.
Postal herself conceded that Mr. Rivkin never explained to her why he quitclaimed an interest in the
Williamson County property to her.

          Thus, the only evidence we have regarding the significance of the deed is the deed itself.
Nothing within the four corners of the deed alludes to any promise or contract of marriage or to the
parties’ betrothed status. Executing quitclaim deeds is not only within the province of persons who
have agreed or contracted to marry the grantee named in the deed. Quitclaim deeds are commonly
used for business transactions between partners, conveyances between family members, cleaning up
a title for title insurance purposes, or gifts. Thus, in light of the ubiquitous nature of quitclaim deeds,
we decline to hold that an unexplained quitclaim deed between an unmarried man and an unmarried
woman, without much, much more, suffices as signed, written evidence of a promise of marriage
for the purpose of Tenn. Code Ann. § 36-3-401.

                                                    B.
                                  Testimony of Two Disinterested Witnesses

       Without a writing signed by Mr. Rivkin, Ms. Postal’s only remaining avenue for proving that
Mr. Rivkin promised to marry her consisted of presenting at least two disinterested witnesses who
could substantiate Mr. Rivkin’s promise. The requirement that a witness be “disinterested” is a
familiar legal concept.

                                                              1.

        Unlike today’s rules of evidence, the old common-law rules of evidence disqualified persons
from testifying if there was any concern that they were dishonest, that they did not fully appreciate
the sanctity of the oath, that they were biased either for or against one of the parties, or that they were

         10
           While n ot intende d to be an exhaus tive list, the follow ing signe d writing s might fit th e bill: an application
for a marriag e license, an attested petition to waive the age o r waiting re quirem ents for m arriage, correspondence
between the p arties, writing dealing w ith wedding a rrangeme nts, or pre-nuptial agree ments.

                                                             -7-
interested in the outcome of the proceeding in any way. 3 Spencer A. Gard, Jones on Evidence §
20:1 (6th ed. 1972) (“Jones on Evidence”). Thus, over one hundred years ago, Mr. Justice Brewer
wrote that “[i]t is familiar knowledge that the old common law carefully excluded from the witness
stand . . . those who were interested in the result; and this rule extended to both civil and criminal
cases. Fear of perjury was the reason for the rule.” Benson v. United States, 146 U.S. 325, 335, 13
S. Ct. 60, 63 (1892).

         By the end of the Sixteenth Century, parties in civil lawsuits were considered incompetent
to testify in their own cases. The principle rationale for their exclusion from the stand was the law’s
fear that their testimony would be untrustworthy. As unbelievable as it seems today, even criminal
defendants were disqualified for interest from testifying during their own prosecutions. Faretta v.
California, 422 U.S. 806, 850-51, 95 S. Ct. 2525, 2549 (1975) (Blackman, J., dissenting); Ferguson
v. Georgia, 365 U.S. 570, 574-75, 81 S. Ct. 756, 759 (1961). By the mid-Seventeenth Century, the
courts began to apply the disqualification rule to non-party witnesses. Ferguson v. Georgia, 365
U.S. at 573, 81 S. Ct. at 759.

         This blanket disqualification rule began to erode over time. In 1843, England abrogated the
rule in civil cases by statute. Ferguson v. Georgia, 365 U.S. at 575, 81 S. Ct. at 760. In this country,
many states, including Tennessee, also enacted statutes during Reconstruction doing away with the
common-law disqualification for interest rules. Shannon’s Code of Tennessee § 5596 (1896);
Donald F. Paine, Tennessee Law of Evidence § 151, at 170 (1974). Today nothing remains of the
old common-law rule debarring witnesses from testifying because of an interest in the proceeding.
Now all persons presented as witnesses must, as a general matter, simply meet the competency
requirements of Tenn. R. Evid. 601 through 603.

                                                            2.

       Superimposed on this general background are the unique evidentiary rules applicable to cases
involving claims for breach of promise or contract of marriage. At one time, the parties in these
cases, as in other civil proceedings, could not testify in their own behalf because they were
disqualified for interest. Lewis v. Tapman, 45 A. at 462. The English Parliament removed the
disqualification in breach of promise cases in 1869.11 The Tennessee General Assembly had
accomplished the same result one year earlier when it enacted the first of several statutes permitting




         11
            The preamble to the Evidence Further Amendment Act, 1 86 9 , 3 2 & 33 Vict. 6 8 (Eng .) states, in part,
“Whereas the discovery of truth in courts of justice has been signally promoted by the removal of restrictions on the
admissib ility of witne sses, and it is expedient to amend the law of evidence with the object of still further promoting
such disc overy . . .” Section 2 of the Act provides: “The parties to any action for breach of promise of marriage shall
be comp etent to give evidence in such action: Provided always, that no plaintiff in any action for breach of promise of
marriag e shall reco ver a verd ict unless his or her testimony shall be corroborated by som e other m aterial evide nce in
suppor t of such p romise.”

                                                           -8-
parties and interested persons to testify in civil cases.12 By necessary implication, these statutes
applied to actions for breach of promise or contract to marry.

        Permitting plaintiffs to establish their breach of promise claims with nothing more than their
own testimony was most likely one of the “allied evils”13 the Tennessee General Assembly set out
to address in 1949. The enactment of Tenn. Code Ann. §§ 36-3-401, -402, while not a full return
to the common-law rule disqualifying parties and interested persons as witnesses, was a studied step
back in that direction. As a result of these statutes, interested witnesses remain competent to testify,
which is more than what the common-law rule permitted. However, their testimony alone can never
carry the day. With reference to the plaintiff’s burden of proof, the testimony of parties and other
interested witnesses can only corroborate the testimony of at least two “disinterested witnesses” or
the written evidence of the promise to marry. Of course, any showing of interest on the part of a
witness will continue to affect the weight of the witness’s testimony. Creeping Bear v. State, 113
Tenn. 322, 326, 87 S.W. 653, 653-54 (1905).

                                                          3.

           All this brings us to the precise question that appears to have perplexed the trial court in this
case – who is a “disinterested witness” for purposes of Tenn. Code Ann. § 36-3-401? To find the
answer, we begin with the statute itself. The term “disinterested witness” is a legal term of art of
long standing. Thus, we must give this term its technical meaning unless the context makes plain
that some other meaning was intended. State v. Smith, 893 S.W.2d 908, 929 (Tenn. 1994) (Reid, J.,
concurring & dissenting in part); Cordis Corp. v. Taylor, 762 S.W.2d 138, 139-40 (Tenn. 1988).
The language of law is as full of terms of art as any other mode of professional discourse. In this
context, “disinterested witness” happens to be such a term. Thus, as Justice Frankfurter once wrote,
“. . . if a word is obviously transplanted from another legal source, whether the common law or other
legislation, it brings the old soil with it.” Felix Frankfurter, Some Reflections on the Reading of
Statutes, 47 Colum. L. Rev. 527, 537 (1947).

        The concept of “disinterestedness” is commonly associated with a person’s ability to be
impartial. As applied to witnesses, a “disinterested witness” is one who has no right, claim, title, or
legal stake in the claim or matter at issue. Carlon Co. v. Board of Review, 572 N.W.2d 146, 150
(Iowa 1997). Thus, a “disinterested witness” does not stand to gain a benefit or suffer a detriment
as a result of the outcome of the case, Jones v. Larrabee, 47 Me. 474, 475 (Me. 1860) (separate
opinion by Goodenow, J.); Smith v. Stribling, 649 A.2d 1003. 1006 (Pa. Commw. Ct. 1994); State
v. Easterlin, 39 S.E.250, 251 (S.C. 1901); 1 Simon Greenleaf, A Treatise on the Law of Evidence
§§ 390, 395 (15th ed. 1892) (“Greenleaf”), and thus has no motivation based on personal or
pecuniary interest. Sands v. Prudential Prop. & Cas. Ins., 789 So. 2d 745, 748 (La. Ct. App. 2001).

         12
          Act of Mar. 13, 1868, ch. 75, 1867 -1868 Te nn. Pub. Ac ts 94; see also Act of Dec. 17, 1868, ch. 7, 1868-1869
Tenn. Pub. Acts 7; Act of Feb. 24, 1870, ch. 78, § 1, 1869-1870 Tenn. Pub. Acts 95.

         13
              Eldridge, 21 Tenn. L. Rev. at 452.

                                                          -9-
         Frequently, statutes and contracts require persons selected to place a value on property to
be “disinterested.” In this context, a disinterested appraiser is one who is impartial, unbiased, free
from partisanship, and able to do equal justice between the parties. Heller v. Hartz Mountain Indus.,
Inc., 636 A.2d 599, 605 (N.J. Super. Ct. 1993). Thus, as the Tennessee Supreme Court has noted,
the term “disinterested, as applied to appraisers, does not simply mean lack of pecuniary interest, but
requires the appraiser to be one not biased or prejudiced.” Hickerson & Co. v. Insurance Cos., 96
Tenn. 193, 203, 33 S.W. 1041, 1043 (1896).

        A pecuniary interest, of course, involves having a direct or indirect financial stake in the
outcome of the proceeding. See generally Tenn. Code Ann. § 39-16-101(3) (1997); Creeping Bear
v. State, 113 Tenn. at 325-26, 87 S.W. at 653 (comparing pecuniary interests to other potential
influences on a witness’ testimony). In determining whether pecuniary interest exists, the courts
look not at how great or how little money may be at stake but rather at the nature of the interest. 3
Jones on Evidence § 20:6. The pecuniary advantage or personal interest may be, in some cases,
indirect or removed. For example, a witness may not be considered disinterested if the witness
desires a certain outcome that could then be used in support of the witness’s own monetary claims
or as defenses against monetary claims in another action. 1 Greenleaf §§ 386, 404. Thus, a creditor
of one of the parties, who may be testifying with an eye toward a fund that he or she may later
pursue, may not qualify as a disinterested witness. 1 Greenleaf § 392.

                                                  4.

        Because we have already determined that the March 1996 quitclaim deed does not suffice
as written evidence of a promise to marry for the purpose of Tenn. Code Ann. § 36-3-401, Ms.
Postal’s breach of promise claim hinges on whether she produced at least two disinterested witnesses
to substantiate her claim that Mr. Rivkin had promised to marry her. The only witnesses she called
regarding this issue were her parents, Diana Schuyler and Barry Postal. While it is doubtful that a
claimant’s parent can ever be a disinterested witness in cases of this sort, Ms. Postal’s parents are
clearly not disinterested witnesses because at the time of trial they were also Ms. Postal’s creditors.

         Ms. Postal turned to her parents for financial support in 1997 when Mr. Rivkin stopped
supporting her. She borrowed money from Ms. Schuyler which she used to pay the mortgage, to pay
the utility bills, to purchase food, and to pay for her child’s school expenses. Ms. Schuyler also
loaned Ms. Postal $10,000 to enable her to purchase her current home. Ms. Schuyler testified that
she expects her daughter to repay her, and Ms. Postal testified that she intended to use her recovery
in this case to repay her mother.

        The story regarding Ms. Postal’s father is essentially the same. At the time of trial, he was
living with Ms. Postal and was apparently being supported by her. He had loaned his daughter
$8,500 to help her purchase her current home, and he also expected to be repaid. He even attempted
to intervene in this case to recover the money he had loaned his daughter. The last question put to
Mr. Postal by Mr. Rivkin’s lawyer was “Are you interested in whether you get your money back or
not, sir?” Mr. Postal’s answer was simple and direct: “Yes, I am.”

                                                 -10-
        It is plain that both Mr. Postal and Ms. Schuyler had immediate, outstanding financial claims
against their daughter when they testified in support of her breach of promise claim against Mr.
Rivkin. Each of them expected that their claims would be satisfied once Ms. Postal got something
out of this suit. Therefore, both had a financial interest in the outcome of this proceeding. In light
of these witnesses’ financial stake in the outcome, the trial court erred by concluding that they were
“disinterested witnesses” for the purposes of Tenn. Code Ann. § 36-3-401.

                                                  C.

        In summary, we have concluded that Ms. Postal failed to carry the statutory burden of proof
placed on persons seeking money damages for a breach of promise or contract of marriage. Her own
self-serving testimony was insufficient. Tenn. Code Ann. § 36-3-402. She offered no written
evidence that this promise or contract ever existed, and she failed to produce the two disinterested
witnesses required by Tenn. Code Ann. § 36-3-401 to substantiate her claim. Accordingly, we find
that the evidence preponderates against the trial court’s finding that Mr. Rivkin had promised or
contracted to marry Ms. Postal.

                                              IV.
                                MS. POSTAL’S PROOF OF DAMAGES

        Mr. Rivkin also takes issue with the $150,000 damage award by asserting that Ms. Postal
failed to prove that she had been damaged by his refusal to marry her. This issue is now largely
academic in light of our conclusion that Ms. Postal failed to prove that Mr. Rivkin ever promised
or agreed to marry her. It would be anomalous to award damages for breach of contract in the
absence of proof of the existence of a contract. However, the issue merits some comment in light
of the unique nature of the damages in cases of this sort.

         Even though breach of promise of marriage claims are essentially contract claims, the
measure of damages is not the same as the customary measure of damages for breach of contract.
When it comes to damages, “the complexion of the action mysteriously changes from contract to
tort, with the corresponding broadening of the principles governing the damages which the . . . [fact-
finder] may impose.” 1 Clark § 1.4. Cases of this sort are all about the plaintiff’s character and
honor. By filing the suit, the plaintiff, usually a woman, “declares herself suitable for a wife, and
the mother of a family,” Weeks v. Mays, 87 Tenn. at 443, 10 S.W. at 771, and seeks to recover
damages for the harm done to her happiness, honor, and character. Goodal v. Thurman, 38 Tenn.
(1 Head) 209, 215 (1858). These damages are based upon (1) disappointment of reasonable
expectations of social, domestic, and material advantage from the promised marriage, (2) injury to
the plaintiff’s future prospects in life, (3) harm to the plaintiff’s affections, and (4) anguish and
mortification stemming from the rejection. Brown v. Odill, 104 Tenn. at 265-66, 56 S.W. at 844.

        Ms. Postal never articulated at trial exactly what specific social, domestic, and material
advantages she expected to derive from marrying Mr. Rivkin that she had not already obtained. Nor
did she testify about the injuries to her future expectations, her mental anguish and mortification, or

                                                 -11-
how not being married to Mr. Rivkin had destroyed her happiness, honor, and character. Simply
asserting that she “would certainly have gained such advantages” by a marriage is no substitute for
proof. Thus, in addition to failing to present sufficient evidence of the existence or a promise or
contract of marriage, Ms. Postal failed to present any evidence regarding the sorts of injuries that
would have entitled her to $150,000 in damages.

                                                V.
                       THE DIVISION OF THE PARTIES’ JOINTLY-OWNED PROPERTY

        The remaining issues involve the manner in which the trial court divided the parties’ jointly-
owned property. Mr. Rivkin takes issue with the trial court’s decision to award Ms. Postal a 1993
GMC pickup truck, a cedar chest that once belonged to his grandmother, and a share of the proceeds
from the sale of the parties’ Williamson County house. Ms. Postal complains that the trial court
should not have reduced her share of the jointly-owned property by $2,000 because of the damage
to Mr. Rivkin’s gold and platinum records before she returned them to him. We will consider each
of these issues in turn.

                                                             A.

        This case involves parties whose association is simply one of cohabitation rather than one
of marriage. Accordingly, the factors in Tenn. Code Ann. § 36-4-121 (Supp. 2000) and the other
principles governing the division of marital property are inapplicable. Martin v. Coleman, 19
S.W.3d 757, 761 (Tenn. 2000); Kohler v. Flynn, 493 N.W.2d 647, 649 (N.D. 1992).14 The principles
governing the division of jointly-owned property in cases such as this one are derived from the
statutes and legal precedents involving the partition of jointly-owned property.15

        Outside marriage, the right to insist on a division of property depends on common legal
ownership, not simply cohabitation. Kohler v. Flynn, 493 N.W.2d at 649. Accordingly, the first task
of the court is to identify the parties’ property and then classify each piece of property either as
belonging to one of the parties or as being jointly owned. Spafford v. Coats, 455 N.E.2d 241, 243-45
(Ill. App. Ct. 1983); Rissberger v. Gorton, 597 P.2d 366, 369-70 (Or. Ct. App. 1979). The court
should award each piece of separately-owned property to its owner, and then turn its attention to the
jointly-owned property. It is only the jointly-owned property that is subject to partition.




         14
            Because Mr. Rivkin and M s. Postal never held themselves out as married, any of the equitable principles
generally used to divide the property of ersatz hu sbands a nd wiv es likewise a lso have n o applica tion. See, e.g., Pickens
v. Pickens, 490 So.2d 872, 875-76 (Miss. 1986) (employing an implied partnership theory to divide a couple’s property);
Goode v. Goode, 396 S.E .2d 430 , 435-39 (W. Va . 1990) (d ividing a longtime couple’s property using theories of
implied c ontract an d constru ctive trust).

         15
              Tenn. Code An n. §§ 29-27-101, -219 (2 000).

                                                            -12-
        Partitioning the jointly-owned property should be consistent with the respective co-owners’
interests as shown by the evidence. Tenn. Code Ann. § 29-27-116. Even though joint owners are
entitled to a partition in kind, Helm v. Franklin, 24 Tenn. (5 Hum.) 404, 404-05 (1844), most
personal property is not subject to be divided in kind. Accordingly, partitions of jointly-owned
personal property will most often entail selling the jointly-owned property and then dividing the
proceeds of the sale consistently with the co-owners’ interests. Tenn. Code Ann. §§ 29-27-201, -
218(a). A partition of jointly-owned property need not be equal.

                                                B.
                  The Proceeds from the Sale of the Williamson County Property

        We turn first to the proceeds from the sale of the parties’ property in Williamson County that
Mr. Rivkin purchased in February 1996 for $420,000. In March 1996, Mr. Rivkin quitclaimed the
property to himself and Ms. Postal as tenants in common with rights of survivorship. The parties
sold the property by agreement in August 1998, and the proceeds of this sale, after paying the
outstanding mortgage, amounted to $86,524.88. The trial court awarded Mr. Rivkin and Ms. Postal
equal shares of the proceeds. Mr. Rivkin now asserts that the trial court erred by awarding Ms.
Postal any interest in these proceeds because she failed to prove that he intended to give her an
interest in the property.

         A party seeking to establish an interest in property by gift must prove (1) that the donor
intended to make a gift to the donee and (2) that the donor delivered or transferred the property to
the donee. Dunlap v. Dunlap, 996 S.W.2d 803, 814-15 (Tenn. Ct. App. 1998); Arnoult v. Griffin,
490 S.W.2d 701, 710 (Tenn. Ct. App. 1972). Ms. Postal proved both donative intent and transfer
in this case. The language of the quitclaim deed itself 16 is evidence of Mr. Rivkin’s present intent
to convey ownership of the property to Ms. Postal. Cf. Denton v. Denton, 33 S.W.3d 229, 232-33
(Tenn. Ct. App. 2000) (holding that grant language in a deed is rebuttable evidence of donative
intent). The evidence that Mr. Rivkin caused the quitclaim deed to be recorded provides the
evidence of delivery. Smalling v. Terrell, 943 S.W.2d 397, 399 n.4 (Tenn. Ct. App. 1996); Mast v.
Shepard, 56 Tenn. App. 473, 479, 408 S.W.2d 411, 414 (1966).

        Mr. Rivkin’s attempt to undermine the legal significance of the quitclaim deed by asserting
that he did not understand the legal import of a quitclaim deed was too weak to rebut Ms. Postal’s
evidence. Jointly-owned real property may be partitioned in kind, or the proceeds from its sale may
be divided into equal shares. In light of the evidence that Mr. Rivkin gave Ms. Postal an undivided
one-half interest in the property by executing and recording the quitclaim deed in March 1996, the
trial court did not err by awarding each party an equal share of the proceeds of the sale of the
property.


         16
           The quitclaim deed recites, in part, “I, David B. Rivkin, Grantor, by these presents, do hereby quitclaim and
convey unto David B . Rivkin and Lori Postal, Grantees, their heirs and assigns, as joint tenants in common with right
of survivorship, all my right, title and interest in the following described property in Williamson County . . ..”

                                                         -13-
                                              C.
                                   The 1993 GMC Pickup Truck

         Mr. Rivkin also takes issue with the trial court’s decision to award Ms. Postal the 1993 GMC
pickup truck. Even though the truck was titled in both parties’ names, Mr. Rivkin complains that
he paid over $22,000 for the truck and that the trial court’s ruling shortchanged him of his interest
in the truck. We do not agree.

        Ownership is a purely legal concept. 3 Roscoe Pound, Jurisprudence 129 (1959). It
connotes a “bundle of rights” or legally protected interests with regard to specific property. Woods
v. M.J. Kelley Co., 592 S.W.2d 567, 570 (Tenn. 1980). Included in this bundle of rights are (1) the
right of possession, enjoyment, and use, (2) an unrestricted right of disposition, and (3) the right of
testamentary disposition. Gracey v. Maddin, 769 S.W.2d 497, 500 (Tenn. Ct. App. 1989); State ex
rel. Elvis Presley Int’l Mem’l Found. v. Crowell, 733 S.W.2d 89, 96-97 (Tenn. Ct. App. 1987); Ray
A. Brown, The Law of Personal Property § 1.5, at 6 (3d ed. 1975). Proof of ownership generally
involves evidence with regard to possession and exercise of one or more of the prerogatives in this
bundle of rights. Thus, ownership is a question for the trier-of-fact to determine from the evidence.

         To determine ownership of a vehicle, a trier-of-fact may consider and weigh evidence
relating to (1) the circumstances surrounding the vehicle’s purchase, (2) the registration of the
vehicle, (3) all aspects of insuring the vehicle, (4) all parties’ financial stake in the vehicle, (5) the
actual possession of the vehicle, (6) the responsibility for bearing the expense of operating,
maintaining, and licensing the vehicle, and (7) the ultimate right to control the vehicle, including the
right to make major decisions concerning the vehicle such as its use and restrictions on its use or the
sale or other disposition of the vehicle. Cunningham v. Department of Safety, No. 01A01-9509-CH-
00411, 1997 WL 266851, at *2 (Tenn. Ct. App. May 21, 1997) (No Tenn. R. App. P. 11 application
filed). Mere titling of a vehicle is not conclusive evidence of ownership. Smith v. Smith, 650
S.W.2d 54, 56 (Tenn. Ct. App. 1983); Polland v. Safeco Ins. Co., 52 Tenn. App. 583, 588, 376
S.W.2d 730, 732 (1963).

        The disputed 1993 GMC pickup truck was titled in both parties’ names. Mr. Rivkin made
the payments on the truck while he was living with Ms. Postal; however, the evidence is clear that
the truck was intended for Ms. Postal’s primary use. She drove it for her transportation and used it
in connection with raising and training horses. After the couple separated in 1997, Mr. Rivkin
stopped paying on the truck because he considered it to “her” truck and “her” responsibility. Ms.
Postal had exclusive possession of, use of, and responsibility for the truck while the parties were
living together and after the parties separated. Under these circumstances, each truck payment that
Mr. Rivkin made while the parties were still living together amounted to a gift to Ms. Postal.
Accordingly, we cannot say that the evidence preponderates against the trial court’s conclusion that
Mr. Rivkin gave the truck to Ms. Postal.

                                                 D.
                                           The Cedar Chest

                                                  -14-
         Finally, Mr. Rivkin asserts that the trial court erred by awarding Ms. Postal a cedar chest that
had belonged to his grandmother. Mr. Rivkin brought the chest from Minnesota when the parties
began living together. When asked during the trial why she wanted this chest, Ms. Postal replied:
“It’s just because I can store stuff in it, but it is Mr. Rivkin’s.” In light of the undisputed evidence
that the chest belonged to Mr. Rivkin, the trial court should have returned it to him. Accordingly,
we reverse the portion of the judgment awarding the cedar chest to Ms. Postal. On remand, the trial
court should enter an order directing Ms. Postal to return the chest to Mr. Rivkin forthwith.

                                               E.
                The Off-set for Damage to Mr. Rivkin’s Gold and Platinum Records

        Ms. Postal takes issue with the trial court’s decision to reduce her share of the proceeds from
the sale of the Williamson County property by $2,000 to compensate Mr. Rivkin for the damage to
his gold and platinum records before she returned them to him. She asserts that this reduction was
improper because (1) Mr. Rivkin did not request it in his pleadings, (2) Mr. Rivkin did not prove that
she caused the damage to the awards, and (3) the amount of the off-set is purely speculative.

        Mr. Rivkin left a number of items of personal property in the Williamson County house when
the juvenile court ordered him to move out. Among this property were several awards, including
a framed multi-platinum record plaque and a golden reel tape award. After Mr. Rivkin moved out,
Ms. Postal and her mother removed the awards from the wall where they were hanging and laid them
on the floor in anticipation that professional movers hired by Mr. Rivkin would soon remove them
from the house. According to Ms. Postal, the parties’ child defaced the awards while they were on
the floor. Ms. Schuyler then put the awards in the garage where they were further damaged by her
daughter’s pets. The trial court observed the awards and described them as “all marked up and
damaged” and “defaced very badly.”17 After Mr. Rivkin testified that these awards could not be
repaired or replaced, the trial court deducted $2,000 from Ms. Postal’s share of the proceeds from
the sale of the house to compensate Mr. Rivkin for the damage.

         Mr. Rivkin’s August 1997 complaint for partition and to recover his personal property did
not specifically request monetary relief for the damage to his gold and platinum records. However,
it is not altogether clear that Mr. Rivkin knew that his awards had been damaged when he filed his
complaint. The complaint did contain a prayer for general relief, and courts may properly grant
whatever relief a prevailing party has proved that it is entitled to. Tenn. R. Civ. P. 54.03; Aaron v.
Aaron, 909 S.W.2d 408, 412 (Tenn. 1995). Ms. Postal did not object to the trial court’s
consideration of the damage to Mr. Rivkin’s awards, and both Ms. Postal and Mr. Rivkin presented
evidence regarding the matter. Accordingly, even though Mr. Rivkin’s complaint did not
specifically pray for this relief, we have concluded that the parties tried the issue by consent.




        17
             The trial co urt added that “I’m looking at them, an d the cou rt is not happ y with w hat it sees.”

                                                            -15-
        Ms. Postal also insists that the trial court should not have reduced her share of the house sale
proceeds because Mr. Rivkin failed to prove that she caused the damage to his awards. However,
even if the trial court believed Ms. Postal’s explanation of how the awards were damaged, the fact
that she did not deliberately damage the awards would not necessarily relieve her of responsibility.
As the bailee of Mr. Rivkin’s property, Ms. Postal was required to use diligence and attention
commensurate with the value of the property. Pennington v. Farmers’ & Merchants’ Bank, 144
Tenn. 188, 194, 231 S.W. 545, 547 (1921). The facts of this case support a conclusion that Ms.
Postal did not exercise reasonable care by removing Mr. Rivkin’s irreplaceable awards from the wall
and leaving them where they could be damaged by children and pets.

        Finally, Ms. Postal asserts that the off-set is inappropriate because it is speculative. It is a
basic principle of damage law that damages are too speculative to be awarded only if the existence
of damage is uncertain, not merely when the amount of damage is uncertain. Church v. Perales, 39
S.W.3d 149, 172 (Tenn. Ct. App. 2000); Jennings v. Hayes, 787 S.W.2d 1, 3 (Tenn. Ct. App. 1989).
The evidence required to support a damage award need only establish the amount of the damages
with reasonable certainty. Overstreet v. Shoney’s, Inc., 4 S.W.3d 694, 703 (Tenn. Ct. App. 1999).
The amount of damages is a question of fact. Spence v. Allstate Ins. Co., 883 S.W.2d 586, 594
(Tenn. 1994). Thus, following a bench trial, we review the record to determine whether the trial
court adopted the wrong measure of damages or whether the evidence preponderates against the
amount of damages the trial court awarded. Beaty v. McGraw, 15 S.W.3d 819, 829 (Tenn. Ct. App.
1998).

        Ms. Postal cannot claim that the existence of Mr. Rivkin’s damage is speculative. After all,
the evidence is undisputed that Mr. Rivkin’s awards were damaged and that they were damaged
while they were in Ms. Postal’s possession. In addition, the trial court examined the awards and
remarked that they were damaged and defaced. Thus, the only colorable argument Ms. Postal can
make is that Mr. Rivkin failed to prove that damage to his awards was worth $2,000. While Mr.
Rivkin did not place a dollar amount on the damage to his gold and platinum records, he testified
that they could not be replaced. In light of this testimony which stands unrefuted, we have
concluded that the evidence does not preponderate against the trial court’s decision that Mr. Rivkin
has suffered $2,000 in damages and that this amount should be deducted from Ms. Postal’s share of
the proceeds from the sale of the Williamson County property.

                                                  VI.

        For the reasons stated herein, we have determined that the trial court erred by awarding Ms.
Postal $150,000 on her breach of promise claim and by awarding Ms. Postal the cedar chest that had
belonged to Mr. Rivkin’s grandmother. Accordingly, we reverse these portions of the judgment and
remand the case to the trial court for the entry of orders consistent with this opinion. We tax the
costs of this appeal in equal proportions to David Rivkin and his surety and to Lori Postal for which
execution, if necessary, may issue.



                                                 -16-
_____________________________
WILLIAM C. KOCH, JR., JUDGE




 -17-
