                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                  December 7, 2000 Session

              JUDY HALL TRAVIS v. KENNETH D. TRAVIS, JR.

                    Appeal from the Chancery Court for Hamblen County
                      No. 98-615 Thomas R. Frierson, II, Chancellor

                                    FILED MARCH 16, 2001

                                 No. E2000-01043-COA-R3-CV


        This appeal from the Hamblen County Chancery Court questions whether the Trial Court
erred in finding that a portion of the value of the marital residence is the separate property of the
Appellee, Kenneth D. Travis, Jr.,and whether the Trial Court abused its discretion by allowing Mr.
Travis to claim the parties' minor children as dependents for federal income tax purposes, by failing
to award the parties joint custody of their minor children, and in setting Mr. Travis’s visitation
schedule. We reverse in part, affirm in part and remand for further proceedings, if any, consistent
with this opinion. We adjudge costs of the appeal against Judy Hall Travis and Kenneth D. Travis,
Jr. equally.

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

HOUSTON M. GODDARD , P.J., delivered the opinion of the court, in which CHARLES D. SUSANO JR.,
and D. MICHAEL SWINEY, JJ., joined.

C. Dwaine Evans, Morristown, Tennessee, for the Appellant, Judy Hall Travis.

Janice H. Snider, Morristown, Tennessee, for the Appellee, Kenneth D. Travis, Jr.

                                            OPINION


        This appeal arises from a suit for divorce brought by Plaintiff/Appellant, Judy Hall Travis,
against her husband, Defendant/Appellant, Kenneth D. Travis, Jr.

       Ms. Travis raises two issues on appeal which we restate as follows:

         1. Did the Trial Court err in finding that $17,275.87 paid by Mr. Travis's mother on the
parties' mortgage indebtedness was Mr. Travis's separate property which he should be repaid upon
sale of the house?
       2. Did the Trial Court abuse its discretion by allowing Mr. Travis to claim the parties' minor
children as dependents for federal income tax exemption purposes?

        In his brief Mr. Travis raises two additional issues which we restate as follows:

       1. Did the Trial Court abuse its discretion by failing to award the parties joint custody of their
minor children?

        2. Did the Trial Court abuse its discretion in setting Mr. Travis's visitation schedule?

       Ms. Travis filed her complaint for divorce in the Chancery Court for Hamblen County on
November 13, 1998. The judgment of the Trial Court, entered September 21, 1999, granted Ms.
Travis a divorce and awarded her sole custody of the parties' two minor children, Kyle and Lillie,
who were 12 and 15 years of age, respectively, at the time the divorce complaint was filed. The Trial
Court also ordered a visitation schedule for Mr. Travis and the two minor children.

       Additionally, the Trial Court ruled that Mr. Travis could claim both of the parties' minor
children as dependents for federal income tax purposes.

        The Trial Court also ordered that Ms. Travis be permitted to occupy the parties' residence
until the youngest child turns 18 years of age or graduates from high school, whichever is later, at
which time the residence is to be sold and Mr. Travis is to be paid $17,275.87, plus interest, from
the sale proceeds before equal division of the balance between the parties. The Trial Court's
adjudication that Mr. Travis should receive this initial payment of $17,275.87 was based on its
finding that Mr. Travis acquired this amount as an advance on his inheritance and that it is, therefore,
his separate property.

        On October 20, 1999, Ms. Travis moved the Trial Court for an amendment of findings and
judgment or, in the alternative, for a new trial. On the same date Mr. Travis moved the Trial Court
for an amendment of findings and judgment or, in the alternative, for a new trial. Both parties
motions were denied by order entered December 29, 1999. Thereafter, Ms. Travis filed this appeal.

       We review the findings of fact by the Trial Court de novo upon the record accompanied by
a presumption of the correctness of the findings unless the preponderance of the evidence is
otherwise. See Rule 13(d) of the Tennessee Rules of Civil Procedure.

        The first issue in this appeal is raised by Ms. Travis and contends that the Trial Court erred
in finding that $17,275.87 of the value of the parties' residence is attributable to an advance on Mr.
Travis's inheritance and that that amount should, therefore, be paid to him as his separate property
upon sale of the residence.

       Mr and Ms. Travis purchased their house in October of 1983. Mr. Travis's mother and
another individual, Paul Mayes, loaned the Travises $25,000.00 of the purchase price and, in return,


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the Travises executed a promissory note secured by a deed of trust on the property to Mr. Travis's
mother and Mr. Mayes in the amount of $25,000.00, plus interest.

        In February of 1988, after the death of Paul Mayes, Mr. Travis's mother wrote a check in the
amount of $17,275.87 to the Mayes estate in payment of the estate's one half share of the outstanding
balance then due on the Travises' note. In return, the note was assigned to Mr. Travis's mother. Mr.
Travis's testimony at trial indicates that it was at this time that his mother forgave the debt on their
residence:

         When Mr. Mayes passed away, his estate had to be settled so the note came due
         and payable because we hadn't really been paying on it. When the note come due
         and payable, Mom bought the note, and she paid it off and got us a clear title. I
         think the actual, with interest, was thirty-four thousand and something.

       Mr. Travis's mother also testified regarding forgiveness of the debt and her intention that it
serve as an advance on Mr. Mayes's inheritance:

         Then, when Mr. Mayes died, the Mayes' estate wanted their half of the note so
         then I had to write a check for $17, 275.87 to pay the estate's amount of that note,
         and then that left--- they signed the note over to me. But I told Kenny, all right,
         if you can't pay, we'll just use this as your inheritance, or as part of your
         inheritance.

        In 1989, or 1990, the Travises encountered difficulty with the Internal Revenue Service and,
for that reason, deeded their residence to Mr. Travis's mother. She remained the titled owner until
January 3, 1992, at which time, the property was transferred back to Mr. and Ms. Travis as joint
owners by warranty deed which was recorded in the Register's Office of Hamblen County on
December 9, 1996. There was no actual consideration for the transfer back to the Travises and the
deed was free of all encumbrances other than current taxes due.

        The Trial Court found that, since the subject property was jointly titled in the names of both
Mr. and Ms. Travis, a rebuttable presumption was created that Mr. Travis's mother's payment of the
mortgage indebtedness and subsequent transfer of fee simple title to the Travises constituted a gift
to the marital estate. However, the Trial Court further found that this presumption was rebutted by
sufficient evidence that Mr. Travis's mother intended that these transfers constitute an advancement
relative to Mr. Travis's inheritance and that $17,275.87 of the value of the property was intended to
remain Mr. Travis's separate property. Based upon these findings, the Trial Court determined that,
upon sale of the residence, Mr. Travis will be entitled to a credit in the amount of $17, 275.87, plus
interest.

        Our first task in this case is to identify the gift/advance on inheritance received from Mr.
Travis's mother. Although the Trial Court found that the gift from Mr. Travis's mother consisted of
payment of the mortgage indebtedness and subsequent transfer of fee simple title on the residence,


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we respectfully disagree that the payment of the mortgage indebtedness should be characterized as
a gift.

        A gift is "a voluntary transfer of property to another made gratuitously and without
consideration". See Dunlap v. Dunlap, 996 S.W.2d 803 (Tenn. Ct. App. 1998) citing Black's Law
Dictionary 619 (5th ed. 1979). As noted above, Mr. Travis 's mother testified that when she paid off
the half of the note belonging to the Mayes estate the note was assigned to her. She, thereby,
received valuable consideration and, therefore, her payment of the note was not a gift.

       It is our finding that the actual gift from Mr. Travis's mother was her forgiveness of the full
$34,551.74 mortgage indebtedness after the note was assigned to her, at which time, according to
Mr. Travis's testimony, she provided the Travises with clear title to the property.

       Both Mr. and Ms. Travis agree that the doctrine of transmutation applies under the
circumstances in this case. That doctrine is set forth in the case of Batson v. Batson, 769 S.W.2d 849
(Tenn. Ct. App. 1988) at page 858 as follows:

                  [Transmutation] occurs when separate property is treated in such a way as
         to give evidence of an intention that it become marital property. One method of
         causing transmutation is to purchase property with separate funds but to take title
         in joint tenancy. This may also be done by placing separate property in the names
         of both spouses. The rationale underlying both these doctrines is that dealing with
         property in these ways creates a rebuttable presumption of a gift to the marital
         estate. This presumption is based also upon the provision in many marital
         property statutes that property acquired during the marriage is presumed marital.
         The presumption can be rebutted by evidence of circumstances or
         communications clearly indicating an intent that the property remain separate.

        While both Mr. and Ms. Travis agree that the presumption has been raised that the residence
is marital property, Mr. Travis contends, and the Trial Court found, that the presumption has been
rebutted to the extent of the value of the advance on inheritance received by Mr. Travis from his
mother.

        Although we agree that testimony in the record supports the finding that Mr. Travis’s
mother’s forgiveness of the mortgage indebtedness was intended as an advance on his inheritance
and a gift to him alone, we find no evidence of any action thereafter which manifested an intention
that any portion of the value of the residence was to remain Mr. Travis’s separate property.

        In order to rebut the presumption that property is marital property it must be shown, not only
that the property was originally one spouse’s separate property, but that, even though the property
may have been subsequently treated as marital property in some respects, the parties have also acted
in a manner which shows that the property actually remains the separate property of one spouse.



                                                 -4-
        In the case of Spina v. Spina, an unreported opinion of this Court, filed in Knoxville on
October 27, 1989, the husband inherited $40,000.00 from his mother's estate and the funds were
placed in a joint bank account belonging to the husband and his wife. Later, the $40,000.00 was
used to purchase a house which was titled in both parties' names as joint tenants. Subsequently, that
house was sold and the sale proceeds were used to purchase another house which was also jointly
owned. After citing the doctrine of transmutation, this Court stated the following:

          While we agree with the husband that when he initially received the money the
         proper characterization was separate, we do not agree that he acted in a manner
         consistent with the intention of keeping the funds separate. It is for this reason
         that we concluded that it was error to award the husband $40,000.00 as separate
         property from the sale of the home now occupied by the wife.

        The record in this appeal reveals that the promissory note was a joint debt and, therefore,
both Mr. and Ms. Travis were relieved of liability when the note was forgiven. The deed securing
the note was titled in the names of both Mr. and Ms. Travis and, as a result, when the note was
forgiven Mr. and Ms. Travis became joint owners of the property in fee simple. And, when the
property was transferred to Mr. and Ms. Travis in 1992, the deed designates Mr. and Ms. Travis as
joint owners. There is no evidence that the parties, either at the time of these transactions or at any
time thereafter, acted in a manner which would indicate that any portion of the value of the marital
residence was his separate property.

        In consideration of the above, we find that the Trial Court erred in finding that $17,275.87
of the value of the marital residence constitutes Mr. Travis's separate property which he should be
repaid when the residence is sold.

        The next issue we address questions whether the Trial Court erred in ordering that Mr. Travis
be entitled to claim the parties' minor children as dependents for federal income tax exemption
purposes.

        Ms. Travis contends that the Trial Court erred in granting Mr. Travis the right to claim the
children as dependents for tax exemption purposes because Mr. Travis did not request that the Court
award him the exemptions and because the Court did not consider the financial and tax equities of
the parties and gave no reason in its Memorandum Opinion for granting the exemptions to Mr.
Travis.

        While it does appear that Mr. Travis never specifically raised the issue of dependency
exemptions, our reading of section 152 of the Internal Revenue Code convinces us that the matter
of dependency exemptions was, nevertheless, before the Court as an inevitable element of the child
custody issue in this case. Section 152 provides that when the parents are divorced the custodial
parent is generally entitled to claim the children as dependents for exemption purposes. Thus, when
a court makes a determination with respect to custody as did the Trial Court in the case sub judice
it necessarily makes a determination as to dependency exemptions.


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         Although, as stated, the custodial parent is generally entitled to claim the children as
dependents under the Internal Revenue Code, a court may, in its discretion, allocate the dependency
exemption to the non-custodial parent. See Barabas v. Rogers, 868 S.W.2d 283 (Tenn. Ct. App.
1993). In the case before us the Trial Court exercised its discretion and awarded the dependency
exemptions to Mr. Travis. In view of the fact that the Trial Court made no findings of fact with
respect to its judgment in this regard, it is our duty to review the record de novo to determine if there
is sufficient evidence therein to support the Trial Court's judgment. See Goodman v. Memphis Park
Comm'n., 851 S.W.2d 165 ( Tenn. Ct. App. 1993).

         Our review of the record reveals a clear disparity between the income of Mr. and Ms. Travis.
At the time of the divorce Ms. Travis was working part time and her gross earnings for the eight
months directly preceding the divorce totalled less than $4,000.00. By contrast, Mr. Travis was
receiving a gross income of approximately $2,800.00 per month at the time of the divorce.
Consequently, the dependency exemptions will be of great benefit to Mr. Travis and of relatively
little benefit to Ms. Travis.

        In addition, the record shows that, prior to the divorce, Mr. Travis was paying $660.00 per
month in child support and that, pursuant to the judgment of the Trial Court, he will now be
obligated to make child support payments in the amount of $700.00 per month. The record also
shows that Mr. Travis has voluntarily assumed other expenses with regard to his children in addition
to the child support payments and Ms. Travis testified that if the children ask for something that she
can't provide she directs them to their father. In consideration of the fact that Mr. Travis will be
responsible for a substantial portion of his children's expenses, it seems to us that he should be
allowed the dependency exemptions as a matter of equity.

       Based upon the foregoing, we find that the Trial Court did not abuse its discretion when it
awarded the dependency exemptions to Mr. Travis, there being sufficient evidence in the record to
support its decision.

        The final issues in this appeal are raised by Mr. Travis and assert that the Trial Court abused
its discretion by failing to award the parties joint custody of their minor children and by failing to
grant Mr. Travis a more liberal visitation schedule.

        A Trial Court has wide discretion in matters of custody and visitation. Jahn v. Jahn, 932
S.W.2d 939 (Tenn. Ct. App. 1996). In determining whether the Trial Court has abused its discretion
we follow the guidelines set forth in BIF, a Div. Of Gen. Signal Controls, Inc., v. Service Constr.
Co., Inc., an unreported opinion of this Court , filed in Nashville on July 13, 1988, which states:

         In order to ensure a rational standard of review, a trial court's discretionary
         decisions should be reviewed to determine: (1) whether the factual basis of the
         decision is supported by sufficient evidence; (2) whether the trial court has
         correctly identified and properly applied the applicable legal principles; and (3)
         whether the trial court's decision is within the range of acceptable alternatives.


                                                  -6-
        It is apparent from the record before us that both Mr. and Ms. Travis are loving parents who
are very much concerned with the well-being of their children. It is, however, our view that, unless
the parents of a child can maintain a cooperative and harmonious relationship with each other, they
cannot insure a stable environment which will promote the child's best interests. In child custody
and visitation cases the welfare and best interests of the child have always been the chief concerns
of the courts. See Luke v. Luke, 651 S.W.2d 219 (Tenn. 1983).

        The Trial Court found that a harmonious and cooperative relationship no longer exists
between Mr. and Ms. Travis ,"as they were incapable of communicating as of the date of the trial,",
and determined that "joint custody will not promote and protect the interests of the children".
Although the record does not appear to show that the parties were "incapable of communicating as
of the date of the trial" the Trial Court's conclusion in this regard may well have been based on its
observation of the parties' demeanor during the trial. We do, however, find otherwise sufficient
evidence in the record to support the Trial Court's finding that a harmonious and cooperative
relationship no longer exists between Mr. and Ms. Travis. For example, Ms. Travis testified that she
and Mr. Travis would not get along once the divorce was over. Ms. Travis further testified that she
had been dominated by Mr. Travis for 20 years, that he will continue to dominate her after the
divorce and that she " will not be able to have much of a say so in my children".

        Although Mr. Travis maintains that he and Ms. Travis were "very diplomatic" during the year
of separation preceding their divorce, this may very well be his view of a relationship in which
absence of dissent was actually the result of his wife's willingness to stifle her true feelings
in an effort to avoid conflict. In fact, Ms. Travis testified that the custodial relationship worked
during the separation because she "was trying to get to the point where we had to come to court".

         Elsewhere, when questioned about whether he had a problem with his temper, Mr. Travis
testified that he had "hollered some", and confirmed that he had hit the walls and knocked a hole in
the wall. This testimony, in combination with Mr. Travis's attorney's characterization of Ms. Travis
as a "very kind hearted, very sweet lady", lends credibility to Ms. Travis's assertions that Mr. Travis
dominated her.

        The Trial Court's finding that a harmonious and cooperative relationship no longer exists
between Mr. and Ms. Travis was made after hearing and seeing the parties testify. The Trial Court
alone had the opportunity to observe the manner and demeanor of these witnesses and, for this
reason, the Trial Court's finding is entitled to great weight on appeal. See Tennessee Valley Kaolin
Corp. v. Perry, 526 S.W.2d 488 (Tenn. Ct. App.1974). We do not find that the evidence
preponderates against the Trial Court's finding.




                                                 -7-
        Based upon the Trial Court’s finding that a harmonious and cooperative relationship no
longer exists between Mr. and Ms. Travis, we agree with the Trial Court’s conclusion that this is not
an appropriate case for joint custody.

       In determining that Ms. Travis should be granted sole custody of the minor children, the Trial
Court appropriately considered the relevant factors among those set forth at T.C.A. 36-6-106, as
follows:

         In a suit for annulment, divorce, separate maintenance, or in any other proceeding
         requiring the court to make a custody determination regarding a minor child, such
         determination shall be made upon the basis of the best interest of the child. The
         court shall consider all relevant factors including the following where applicable:

                  (1) The love, affection and emotional ties existing between the parents and
         child;

                (2) The disposition of the parents to provide the child with food, clothing,
         medical care, education and other necessary care and the degree to which a parent
         has been the primary caregiver;

                  (3) The importance of continuity in the child's life and the length of time
         the child has lived in a stable, satisfactory environment; provided, that where
         there is a finding, under § 36-6-106(8), of child abuse, as defined in §§ 39-15-401
         or 39-15-402, or child sexual abuse, as defined in § 37-1-602, by one (1) parent,
         and that a non-perpetrating parent has relocated in order to flee the perpetrating
         parent, that such relocation shall not weigh against an award of custody;

                  (4) The stability of the family unit of the parents;

                  (5) The mental and physical health of the parents;

                  (6) The home, school and community record of the child;

                (7) The reasonable preference of the child if twelve (12) years of age or
         older. The court may hear the preference of a younger child upon request. The
         preferences of older children should normally be given greater weight than those
         of younger children;

                 (8) Evidence of physical or emotional abuse to the child, to the other
         parent or to any other person; provided, that where there are allegations that one
         (1) parent has committed child abuse, [as defined in §§ 39-15-401 or 39-15-402],
         or child sexual abuse, [as defined in § 37-1-602], against a family member, the
         court shall consider all evidence relevant to the physical and emotional safety of


                                                  -8-
         the child, and determine, by a clear preponderance of the evidence, whether such
         abuse has occurred. The court shall include in its decision a written finding of all
         evidence, and all findings of facts connected thereto. In addition, the court shall,
         where appropriate, refer any issues of abuse to the juvenile court for further
         proceedings;


                (9) The character and behavior of any other person who resides in or
         frequents the home of a parent and such person's interactions with the child.

                  (10) Each parent's past and potential for future performance of parenting
         responsibilities, including the willingness and ability of each of the parents to
         facilitate and encourage a close and continuing parent-child relationship between
         the child and the other parent, consistent with the best interest of the child.


       After considering the above, the Trial Court made the following findings which we find to
be supported by the record:

       1. “Ms. Travis has been the primary caregiver for the children”.

       2. “Ms. Travis provides continuity in the children’s lives and the home is a stable, satisfactory
environment.”

        3. “Ms. Travis manifests an appropriate past and potential for future performance of
parenting responsibilities, including her efforts to encourage a close and continuing parent/children
relationship with Mr Travis.”

        4. “Ms. Travis is physically and emotionally healthy.”

       Based upon these findings, the Trial Court granted Ms. Travis sole custody of the minor
children

        The parties’ youngest minor child, Kyle, who was 13 years old at the time of trial, testified
that he would be happier living with his father and, as Mr. Travis correctly asserts, under T.C.A. 36-
6-106(7), a trial court is required to consider the reasonable preferences of a child 12 years of age
or older in making its custody determination. However, a child’s preference is not binding upon the
trial court, but is just one factor to be considered. See Hardin v. Hardin 979 S.W.2d 314 (Tenn. Ct.
App. 1998).

       The Trial Court concluded from the fact that the older minor child, Lillie, did not testify
regarding her preference that she is comfortable spending the majority of her time with Ms. Travis.
Therefore, the Court granted Ms. Travis custody of both minor children, recognizing the general rule


                                                  -9-
that it is not appropriate to separate siblings by custody order. See Rice v. Rice 983 S.W.2d 680
(1998). And, while Mr. Travis argues that the Trial Court was in error for presuming Lillie’s
preference from her failure to testify, it is our determination that the Court’s presumption was
reasonable, it being evident from the record that, during the parties' separation, Lillie was free to
spend time with each parent as she chose and, given that choice, she had been living with Ms. Travis
most of the time.

         Mr. Travis alternatively argues that the Trial Court should have awarded him more liberal
visitation with his minor children and contends that the visitation schedule set by the Trial Court was
contrary to the schedule adopted by Mr. and Ms. Travis during the time of their separation.

        As previously stated, the Trial Court has wide discretion in matters of visitation. In our view,
the Trial Court, in exercising its discretion, awarded Mr. Travis substantial time with his minor
children: every other weekend; Tuesday afternoons; two weeks in the summer; every other Easter,
Martin Luther King Day, President’s Day, Memorial Day, July 4 th, Labor Day, Columbus Day,
Veteran’s Day, Thanksgiving, Christmas Eve and Christmas Day; two weeks during the summer;
Father’s Day; and a part of each child’s birthday. In addition, the Trial Court granted Mr. Travis
other visitation at reasonable times as shall be mutually agreed upon by the parties.

         We feel that the evidence does not preponderate against the Trial Court’s decree regarding
visitation and we find no abuse of the Trial Court’s discretion.

        For the foregoing reasons the judgment of the Trial Court is reversed in part and affirmed in
part, and the cause remanded for such further proceedings, if any, as may be necessary and for
collection of costs below which are, as are costs of appeal, adjudged against Judy Hall Travis and
Kenneth D. Travis, Jr. equally.



                                               __________________________________________
                                               HOUSTON M. GODDARD, PRESIDING JUDGE




                                                 -10-
