                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON

               DONNA KAY BRISTER DAVIS v. JOHN W. DAVIS

                                Circuit Court for Shelby County
                                       No. CT-002379-02


                  No. W2005-01304-COA-R3-CV - Filed November 27, 2006


                                    DISSENTING OPINION

        It is difficult for this member of the Court to believe that husband, who had been married
twice before, did not understand the effect of a deed or that he was “duped” by wife into conveying
his property. The more likely scenario is that husband was fearful that wife would gain an interest
in his business and that he agreed to convey the residential property in exchange for her acquiescence
not to seek such an interest.

        As noted by the majority, a conveyance of property between spouses creates a rebuttable
presumption of a gift. Denton v. Denton, 33 S.W.3d 229 (Tenn. App. 2000). Mr. Davis voluntarily
went to the office of wife’s attorney and signed the quitclaim deed. Mrs. Davis was not present. Mr.
Davis admitted at trial that he knew he was conveying title to Mrs. Davis. These facts do not support
the conclusion that husband was forced, pressured, or duped into signing a quitclaim deed.

        The majority places reliance primarily on the trial court’s factual findings and credibility
determination. Appellate courts place great weight upon the factual findings of the trial court unless
the preponderance of the evidence is otherwise. T.R.A.P. 13(d). We will not disturb a trial court’s
determination of credibility unless other real evidence compels a contrary conclusion. Haverlak v.
Memphis Aviation, Inc., 674 S.W.3d 297 (Tenn. Ct. App. 1984). Findings by the trial court,
therefore, are not absolute, but must yield to considerations of the preponderance of the evidence and
the effect of other real evidence. “The court reviews a trial court’s credibility assessments with
deference . . . In contrast, we independently assess documentary proof, such as depositions and other
records, without deference to the trial court [citation omitted].” Waller v. State of Tennessee, 2006
WL 2956515 (Tenn. Ct. App.). See also Wright Medical Technology, Inc. v. Grisoni, 135 S.W.3d
561, 593 (Tenn. Ct. App. 2001).

       In this case, there is other real evidence in the form of a document, namely, a quitclaim deed,
which apparently was executed both knowingly and voluntarily. I would find that the evidence
preponderates against the finding, and therefore, I respectfully dissent from the holding of the
majority.



                                       ALAN E. HIGHERS, JUDGE
