                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                                  August 31, 2010 Session

        DIANA (SCHUTTS) GILBERT v. DREW EDWARD GILBERT

                   Appeal from the Chancery Court for Knox County
                    No. 164520-2     F. Daryl Fansler, Chancellor




            No. E2009-02118-COA-R3-CV-FILED-SEPTEMBER 15, 2011


In this divorce case, the husband appeals the trial court’s division and valuation of the marital
estate. On appeal, the husband raises several issues and essentially argues that the trial court
should have restored the parties to their respective premarital situations due to the short
duration of the marriage. The wife also challenges the trial court’s division of the marital
estate. After an extensive review of the record, we find no error in the trial court’s division
and valuation of the marital estate in accordance with Tenn. Code Ann. § 36-4-121(a)(1).
Therefore, we affirm.

       Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
                             Affirmed; Case Remanded

J OHN W. M CC LARTY, J., delivered the opinion of the Court, in which H ERSCHEL P. F RANKS,
P.J., and D. M ICHAEL S WINEY, J., joined.

K.O. Herston, Knoxville, Tennessee, for the appellant(s), Drew Edward Gilbert.

Jerrold L. Becker, Knoxville, Tennessee, for the appellee(s), Diana (Schutts) Gilbert.

                                          OPINION

                              I. FACTUAL BACKGROUND

      Drew E. Gilbert (“Husband”) and Diana S. Gilbert (“Wife”) were married in April
1998. At the time of the marriage, Husband was 62 and Wife was 48. After approximately
seven years of marriage, Wife filed a Complaint for Divorce on June 28, 2005, to which
Husband filed a counterclaim.
        Wife brought liquid assets worth $119,490.17 into the marriage, including the
proceeds from the sale of her home, inherited funds, and money from an antiques business.
Wife also owned a 50% interest in a condominium located in North Carolina where her
mother resided until her death. After marrying Husband, Wife’s mother passed away, and
she inherited an additional 25% interest in the condominium, totaling a 75% interest in the
unit with her brother holding the remaining 25% interest. She deposited the assets into two
joint accounts after the marriage. Husband’s premarital assets were substantially greater than
Wife’s assets. Husband solely owned Eagle Realty Corporation (“Eagle Realty”) through
which he sold and developed real estate. He also owned a residence on Belcaro Drive in
Knoxville, Tennessee (“Belcaro Drive property”), two properties in Florida, and a one-half
interest in an Anderson County, Tennessee, property consisting of 99 acres that he shared
with his former wife, Gayle Gilbert.

        Several months prior to the marriage, Husband and Wife began renovating the Belcaro
Drive property. It was a collaborative effort in which Husband paid for the expenses related
to the renovation, and Wife selected the décor and fixtures. At the time of the marriage, the
appraised value of the property was $130,000, and after the parties separated, the fair market
value was $190,000 in April 2007.

       After the marriage, Husband formulated plans to develop the 99 acres in Anderson
County into the Emory Woods subdivision (“Emory Woods property”). Husband purchased
his former wife’s one-half interest in the property and then transferred the property by
quitclaim deed to Wife, titling the property in both of their names. A limited liability
company known as Emory Business Partners, LLC (“EBP”) was created, and an Articles of
Organization document was submitted to the Secretary of State. Initially, with the creation
of EBP, Wife owned a 99% interest and Eagle Realty owned the remaining 1%. The parties
then quitclaimed the Emory Woods property to EBP in October 2000. Wife also assumed
an active role in the development of Emory Woods. She was listed as the chief manager on
EBP’s formation documents, and she executed the land development loan for $600,000 from
First Century Bank, including a personal guaranty. The parties eventually shifted the
ownership interests in EBP, reducing Wife’s interest to 70% and increasing Eagle Realty’s
interest to 30%, in order to take advantage of tax benefits.

       The transfer of the Emory Woods property was one of several transfers in this case.
After failed business ventures, Husband transferred his separate property to Wife to avoid
a potential third-party creditor’s claims. Subsequently, Husband executed additional
quitclaim deeds, titling the Belcaro Drive property and the Florida properties in both his
name and Wife’s name. After a few years, Husband no longer feared a claim from the third-
party. Thereafter, he demanded Wife transfer the Belcaro Drive property and Emory Woods
property back to him, threatening to sue her for a $50,000 promissory note if she failed to

                                             -2-
comply.1 Fearing that Husband would call in the promissory note, Wife executed a quitclaim
deed transferring the Belcaro Drive property to Husband along with an Amended Operating
Agreement (“Agreement”) that reduced her 70% share in EBP to 10%. The Agreement
provided Eagle Realty with a 90% interest in EBP in exchange for the release of Wife’s
liability from the land development loan for Emory Woods. A year after executing the
Agreement, Wife remained personally liable for the loan. She subsequently sent a letter
revoking the transfer of her interest in EBP to First Century Bank.

       Shortly before the parties separated, Husband purchased a property located on Essary
Drive in Knoxville (“Essary Drive property”). He purchased the Essary Drive property with
funds from a home equity line of credit for the Belcaro Drive property, for which both parties
were liable. Husband titled the property in the name of Eagle Realty. The appraised fair
market value of the Essary Drive property was $125,000.

        The trial court referred this case to a Special M aster for findings and
recommendations on property classification and value. After a hearing held on April 28-30,
2008, the Special Master summarized her findings in a Final Report. The parties submitted
their respective objections to portions of the Special Master’s findings for the trial court to
consider.2

        The case came for final hearing before the trial court on January 28, 2009. After
considering the evidence, the trial court divided the marital estate and entered a
Memorandum Opinion on February 13, 2009. The trial court modified its earlier opinion and
entered an Amended Memorandum Opinion on March 13, 2009. The court, incorporating
the earlier memorandum opinions, entered a Final Order on June 26, 2009. After considering
the evidence, the trial court determined the following assets comprised the marital estate:
(a) the appreciation of the Belcaro Drive property, (b) 70% ownership of EBP, (c) the Essary
Drive property, (d) the appreciation of the North Carolina condominium, (e) a life insurance
policy, (f) the Dublin Drive property,3 and (g) two Honda automobiles.

       Husband then filed a Motion to Alter or Amend Judgment, requesting the trial court
to amend the valuations of EBP and the Essary Drive property. The trial court granted the
motion in part regarding the value of EBP and denied in part regarding the value of the
Essary Drive property. This appeal subsequently ensued.


       1
           Wife signed a promissory note for a $50,000 loan made from EBP to Eagle Realty.
       2
           The trial court entered an order granting a divorce to the parties on November 3, 2008.
       3
           Wife’s residence.

                                                     -3-
                                         II. ISSUES

       Husband raises the following issues, which we restate:

       A. Whether the trial court erred in dividing the marital estate.

       B. Whether the trial court erred in finding that Husband’s separate property
       transmuted into marital property.

       C. Whether the trial court erred in determining that the Amended Operating
       Agreement should not be enforced.

       D. Whether the trial court erred in its valuation of the Essary Drive property.

       E. Whether the trial court erred in its valuation of the appreciation of the
       marital property.

Wife raises additional issues:

       F. Whether the trial court erred in awarding an interest in the North Carolina
       condominium to Husband.

       G. Whether the trial court erred in its valuation of the Emory Business
       Partners, LLC.


                              III. STANDARD OF REVIEW

        On appeal, we review the decision of a trial court sitting without a jury de novo upon
the record, accompanied by a presumption of correctness of the trial court’s findings of fact,
unless the preponderance of the evidence is otherwise. Tenn. R. App. P. 13(d); Bogan v.
Bogan, 60 S.W.3d 721, 727 (Tenn. 2001). A trial court’s conclusions of law are subject to
a de novo review with no presumption of correctness. Union Carbide Corp. v. Huddleston,
854 S.W.2d 87, 91 (Tenn. 1993). The classification of property as either marital or separate
property is a question of fact for the trial court. See Mitts v. Mitts, 39 S.W.3d 142, 144-45
(Tenn. Ct. App. 2000). Therefore, the trial court’s findings with respect to property
classification are reviewed de novo with a presumption of correctness below. Id. at 144. A
trial court is vested with broad discretion when exercising its duty to equitably divide marital
assets in a divorce proceeding. Flannery v. Flannery, 121 S.W.3d 647, 650 (Tenn. 2003).
Therefore, we will not disturb a trial court’s division of the marital estate on appeal “unless

                                              -4-
the distribution lacks proper evidentiary support or results from an error of law or a
misapplication of statutory requirements and procedures.” Thompson v. Thompson, 797
S.W.2d 599, 604 (Tenn. Ct. App. 1990).


                                          IV. DISCUSSION

        Tennessee is a “dual property” state, and a trial court must identify all of the assets
possessed by the divorcing parties as either separate property or marital property before
equitably dividing the marital estate. See generally Tenn. Code Ann. § 36-4-121(a)(1)
(2005); see Snodgrass v. Snodgrass, 295 S.W.3d 240, 246 (Tenn. 2009). Separate property
is not subject to division. See Cutsinger v. Cutsinger, 917 S.W.2d 238, 241 (Tenn. Ct. App.
1995). In contrast, Tenn. Code Ann. § 36-4-121(c) outlines the relevant factors that a court
must consider when equitably dividing the marital property without regard to fault on the part
of either party.4 Tenn. Code Ann. § 36-4-121(a)(1). An equitable division of marital
property is not necessarily an equal division, and § 36-4-121(a)(1) only requires an equitable
division. See Robertson v. Robertson, 76 S.W.3d 337, 341 (Tenn. 2002).

       Tenn. Code Ann. § 36-4-121(b)(2) defines “separate property” as:


       4
           Tenn. Code Ann. § 36-4-121(c) (2005) provides:

       In making equitable division of marital property, the court shall consider all relevant factors
       including:
       (1) The duration of the marriage;
       (2) The age, physical and mental health, vocational skills, employability, earning capacity,
       estate, financial liabilities and financial needs of each of the parties;
       (3) The tangible or intangible contribution by one (1) party to the education, training or
       increased earning power of the other party;
       (4) The relative ability of each party for future acquisitions of capital assets and income;
       (5) The contribution of each party to the acquisition, preservation, appreciation, depreciation
       or dissipation of the marital or separate property, including the contribution of a party to the
       marriage as homemaker, wage earner or parent, with the contribution of a party as
       homemaker or wage earner to be given the same weight if each party has fulfilled its role;
       (6) The value of the separate property of each party;
       (7) The estate of each party at the time of the marriage;
       (8) The economic circumstances of each party at the time the division of property is to
       become effective;
       (9) The tax consequences to each party, costs associated with the reasonably foreseeable
       sale of the asset, and other reasonably foreseeable expenses associated with the asset;
       (10) The amount of social security benefits available to each spouse; and
       (11) Such other factors as are necessary to consider the equities between the parties.


                                                     -5-
       (A) All real and personal property owned by a spouse before marriage,
       including, but not limited to, assets held in individual retirement accounts
       (IRAs) as that term is defined in the Internal Revenue Code of 1986, as
       amended;

       (B) Property acquired in exchange for property acquired before the marriage;

       (C) Income from and appreciation of property owned by a spouse before
       marriage except when characterized as marital property under subdivision
       (b)(1);

       (D) Property acquired by a spouse at any time by gift, bequest, devise or
       descent;

       (E) Pain and suffering awards, victim of crime compensation awards, future
       medical expenses, and future lost wages; and

       (F) Property acquired by a spouse after an order of legal separation where the
       court has made a final disposition of property.

       Tenn. Code Ann. § 36-4-121(b)(2)(A) - (F) (2005). Marital property is defined as “all
real and personal property, both tangible and intangible, acquired by either or both spouses
during the course of the marriage up to the date of the final divorce hearing and owned by
either or both spouses as of the date of filing of a complaint for divorce. . . .” Tenn. Code
Ann. § 36-4-121(b)(1)(A) (2005).

       Separate property can become marital property due to the parties’ treatment of
separate property through the doctrines of commingling and transmutation. Smith v. Smith,
93 S.W.3d 871, 878 (Tenn. Ct. App. 2002). Commingling occurs when one spouse’s
separate property is “‘inextricably mingled with marital property or with the separate
property of the other spouse’” during the marriage. Id. (internal citations omitted).
Transmutation occurs when a spouse treats separate property “in such a way as to give
evidence of an intention that it become marital property.” Id. “The rationale underlying both
of these doctrines is that dealing with property in these ways creates a rebuttable presumption
of a gift to the marital estate.” Id. This “presumption can be rebutted by evidence of
circumstance or communications clearly indicating an intent that the property remain
separate.” Id.




                                              -6-
                              Division of the Marital Estate

        Husband argues that the trial court erred in dividing the marital estate and in finding
that his separate property transmuted into marital property. A great deal of the controversy
in this case centered on the division of EBP, which the trial court found to “comprise the
majority of the marital estate.” Husband asserts that in dividing the marital estate, the trial
court should have restored the parties to their respective pre-marital financial situations
because the marriage was of a short duration. He also claims that the trial court failed to
consider his post-separation contributions to the preservation of the marital property.
Husband cites Batson v. Batson, 769 S.W.2d 849 (Tenn. Ct. App. 1988) in support of his
position. In Batson, one of the factors that the court considered was the “parties were
married for only a little more than five years prior to their separation in June, 1985.” Id. at
860. As a result, the court determined that the parties should be restored to their pre-marital
financial conditions. Id. at 859.

        In the instant case, the trial court specifically addressed and rejected Husband’s
contention regarding Batson. The trial court found that the Batson holding was not
“completely applicable” to this case. The trial court, relying on Powell v. Powell, 124
S.W.3d 100, 107 (Tenn. Ct. App. 2003), noted that the majority of the marital estate in
Batson consisted of an increase in the value of the husband’s separate property during the
marriage. Id. Here, the parties were married for seven years before the divorce filing, and
as the trial court noted, Wife was “instrumental in protecting [H]usband’s one-half interest
in the ninety-nine plus acres that eventually became Emory Woods.” The trial court further
concluded:

       [Wife], by engaging in these various transfers resulting in the transmutation of
       [H]usband’s formerly separate property allowed him to defend against the real
       or perceived threat of creditors. Wife currently holds a 70% ownership share
       in the LLC [EBP]. Although the Court places less value on [W]ife’s
       contributions towards the development of the subdivision the Court does feel,
       as did the Special Master, that the parties initially entered into this
       development concept as a team. Wife did not have the development expertise
       that [H]usband did, but it appears that she did that which she was asked to do
       and did for a period of time attempt to participate in the development.

        After reviewing the record, we agree with the trial court. Contrary to Husband’s
assertions, the facts of Batson are distinguishable from the facts of this case. First, Husband
testified that he transferred the property to Wife. Second, Wife helped preserve the asset
after the transfer of the property. At trial, Husband testified, as follows:



                                              -7-
       Q: When you entered the marriage, Mr. Gilbert, the property that would
       become Emory Woods, that was your separate property, correct?

       A: Yes, sir.

       Q: It was owned by you?

       A: Yes, sir.

       Q: And it only became marital property – Mr. Becker makes a deal about it’s
       a marital asset. It only became a marital asset when you gifted it to Ms.
       Gilbert [Wife] on the advice of Mr. Howard, correct?

       A: Yes, sir.

By Husband’s admission, he “gifted” the property that comprised Emory Woods to Wife.
Titling the property in both his name and Wife’s name, the property transmuted into marital
property that was subject to equitable division by the trial court. Husband contends that the
trial court erred in finding that transmutation occurred and in dividing the marital property
because “the marital estate itself was chiefly comprised of an asset acquired many years
before he even met Wife.” Because Husband titled the Emory Woods property’s deed in
Wife’s name to protect it from creditors, he asserts that there was no intention to make
Emory Woods part of the marital estate. As explained in Batson,

       [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.

Batson, 769 S.W.2d at 858 (citing 2 H. Clark, The Law of Domestic Relation in the United
States § 16.2, at 185 (1987)); see also Sickler v. Sickler, No. 01-A-01-9710-CV-00571, 1999
WL 270186, at *4 (Tenn. Ct. App. M.S., May 5, 1999).



                                              -8-
        In Husband’s view, the evidence rebuts the presumption that he made a gift to the
marital estate. We disagree. The evidence demonstrates that the Emory Woods property
became marital property because of Husband’s treatment of it. Both Husband and Wife
testified that the property was titled in her name to protect it from Husband’s potential
creditors. Specifically, Wife testified at the Special Master’s hearing, as follows:

      Q: When Mr. Gilbert came into the marriage, did he have a piece of raw land
      in Anderson County?

      A: Yes, he did.

      Q: What were the two of you going to do with that piece of land?

      A: From the very beginning [Husband] talked about once he finished in
      Montgomery Cove that we would then develop that subdivision and the would
      be the last thing we would do, and then at that point in time we would just
      retire, enjoy life; travel.

      Q: And the source of your retirement funding was going to be what?

      A: In conjunction with what we thought that he would be receiving from
      Montgomery Cove would be the Anderson County subdivision.

      Q: What was the name of that subdivision to be?

      A: Well, it became Emory Woods subdivision.

      Q: Now, at some point did that land, that raw land that was titled to Mr.
      Gilbert, did it become titled in your name as well?

      A: Yes, it did.

      Q: And did the both of you then subsequently quitclaim your interest over to
      an LLC?

      A: Yes, we did.

      Q: What was the name of that LLC?

      A: Emory Business Partners, LLC.

                                           -9-
        Q: And did Emory Business Partners, LLC own the property known as Emory
        Woods subdivision?

        A: Yes, they did – it did.

        Q: Now, do you recall when the LLC was established?

        A: I believe it was July of 2000.

        Q: And at that time who were the owners of that LLC?

        A: Myself and Eagle Realty.

        Q: And do you recall what your percentage of ownership was of the entity?

        A: I had a 99 percent interest and Eagle Realty had a one percent interest.

Along with the above testimony, Wife assumed liability for the land development loan for
Emory Woods by signing as the sole guarantor, and she signed a promissory note for a
$50,000 loan from EBP to Eagle Rock. By taking on these financial liabilities, Wife
contributed to the preservation and development of this marital asset. Thus, we find that the
trial court properly found that the Emory Woods property transmuted into marital property.
Due to Wife’s contributions to protect the Emory Woods property, we find that the evidence
does not preponderate against the trial court’s division of the marital estate. Accordingly,
we affirm.

                                     Valuation of Marital Estate

        Husband and Wife respectively challenge the trial court’s valuation of various marital
assets. Husband asserts that the trial court erred in determining the value of the Essary Drive
property and the appreciation of the Belcaro Drive property. Husband contends that the fair
market value assigned to the Essary Drive property is incorrect because it represents a value
that does not include the $80,000 acquisition debt. Husband withdrew money from EBP to
pay the acquisition debt in violation of the statutory injunction set out in Tenn. Code Ann.
§ 36-4-106(d). He claims that the value of the Essary Drive property should now reflect that
debt considering the trial court ordered him to return the money he withdrew from EBP
during the injunction.5 Regarding the valuation of the Belcaro Drive property, Husband
        5
          Wife filed a Petition for Contempt after discovering that Husband made transfers of marital funds
in violation of the statutory injunction. After a hearing on the Petition, the trial court found that Husband
                                                                                                 (continued...)

                                                     -10-
argues that fairness requires that the valuation of the property should represent its value at
the date of separation instead of the date of divorce.6

       Wife argues that the trial court erred in including the $50,000 debt to Eagle Rock as
a part of the value of EBP. She asserts that the $50,000 debt represents money owed to
Gayle Gilbert after she sold her interest in the Emory Woods property to Husband. Wife
claims that the debt is Husband’s premarital debt that should not be included in the value of
EBP.

        The value of marital property is a question of fact. Owens v. Owens, 241 S.W.3d 478,
486 (Tenn. Ct. App. 2007). The trial court, as the fact finder, puts a value on a marital asset
that is within the range of the evidence presented. Wallace v. Wallace, 733 S.W.2d 102, 107
(Tenn. Ct. App. 1987). A trial court’s valuation and distribution of a marital asset will
therefore be given great weight on appeal and will not be overturned unless the evidence
preponderates against those findings or they are inconsistent with the factors outlined in
Tenn. Code Ann. § 36-4-121(c). Owens, 241 S.W.3d at 486; Kinard v. Kinard, 986 S.W.2d
220, 231 (Tenn. Ct. App. 1998); see also Inzer v. Inzer, No. M2008-00222-COA-R3-CV,
2009 WL 2263818, at *4 (Tenn. Ct. App. M.S., July 28, 2009).

       We find neither Husband’s nor Wife’s contentions concerning the trial court’s
valuation of the above-mentioned marital assets to be meritorious. The evidence in the
record does not preponderate against the trial court’s valuation of the marital assets.

                                  Amended Operating Agreement

       Husband argues that the trial court erred in holding that the Agreement was
unenforceable. The Agreement reduced Wife’s interest in EBP to 10%, and gave Eagle Rock
a 90% interest. The Special Master found that the Agreement was unenforceable because
Wife executed it under duress. On review, the trial court reversed the Special Master’s
finding, but the court held that the Agreement was unenforceable because Wife effectively
repudiated the Agreement.



        5
         (...continued)
had a “proclivity for transferring funds” without a credible purpose. The trial court determined that Husband
made those transfers in order to “avoid proper distribution of the marital estate.” Indeed, in distributing the
Essary Drive property, the trial court noted that “[t]his particular piece of property is a perfect example of
husband’s machinations with transactions dealing with marital and separate property.”
        6
          Under Tenn. Code Ann. § 36-4-121(b)(1)(A), “[a]ll marital property shall be valued as of a date
as near as possible to the date of entry of the order finally dividing the marital property.”

                                                     -11-
       Particularly, the trial court noted that the Agreement outlined the transfer of ownership
in EBP “for and in consideration of one hundred (100%) percent release of liability by First
Century Bank.” Nevertheless, Wife remained liable on the development loan for over two
years after executing the Agreement. For that reason, the trial court held that Husband “did
not perform within a reasonable time and [W]ife, prior to the debt being extinguished,
repudiated the Agreement.”

       In Husband’s view, the evidence preponderates against the trial court’s conclusion that
he failed to perform within a reasonable time. He argues that the Agreement was not a
contract where time was of the essence. He also claims that Wife failed to effectively
repudiate the Agreement because she communicated her repudiation to a third party after
Husband began performance of his obligations.

       On the other hand, Wife contends that the trial court erred in reversing the Special
Master’s finding that she acted under duress in executing the Agreement. Wife claims that
Husband threatened to sue her for the $50,000 promissory note from EBP to Eagle Rock, and
she executed the Agreement to “ward off that threat.” Wife asserts that this court must
decide whether she is entitled to a 70% interest in EBP if we fail to find that duress was
present when she executed the Agreement. She further argues that the trial court should have
awarded more than 35% because of her substantial contributions to the development of
Emory Woods.7

        We reject both Husband’s and Wife’s contentions. Regarding Husband’s assertions,
a straightforward reading of the Agreement defeats his argument. The Agreement provides:

        Diana S. Gilbert hereby agrees to assign all of her Membership Interest (with
        the exception of Ten (10) percent which she shall retain) in Emory Business
        Partners, LLC to Eagle Realty Corporation for and in consideration of one
        hundred (100) percent release of liability by First Century Bank on the land
        development loan to Emory Business Partners, LLC.

As the trial court observed, if the intent of the Agreement was to release Wife from liability
for the development loan, then the reduction of Wife’s interest in EBP would have been
contingent on “extinguishment of the debt” or when “the note is paid.”

        7
         Wife also contends that she is entitled to 50% of the appreciated value of the Belcaro Drive property
instead of the 25% awarded by the trial court. Wife concedes that Husband paid for the renovation of the
home, but points out that it was her “vision” resulted in the appreciated value. In reviewing the record, we
do not find that the trial court erred in its division of the appreciated value of the Belcaro Drive property.
Husband owned the property prior to entering the marriage, and the evidence does not preponderate against
Wife’s award in light of her contributions.

                                                    -12-
        In determining a reasonable time for performance of a contract that is silent on the
issue, a court must look to the nature and purpose of the contract and the situations of the
parties. Minor v. Minor, 864 S.W.2d 51, 54 (Tenn. Ct. App. 1993). We determine that a
reasonable time for performance had passed for Husband’s complete performance of the
contract. To adopt Husband’s argument leads to an inequitable result. By Wife executing
the Agreement, Husband immediately received the benefit for which he bargained for – an
increase of ownership interest in EBP. However, he expected Wife to wait over two years
to receive the benefit for which she bargained – a release from liability on the land
development loan. Considering the nature and the purpose of the Agreement, we hold that
the time for performance expired.

      Turning to Wife’s contentions, the trial court properly found that Wife’s 70% interest
in EBP was marital property subject to division. We find nothing in the record to support
Wife’s assertion that she is entitled to more than the 35% interest she was awarded in EBP.
Thus, we affirm.

                             North Carolina Condominium

       Wife takes issue with the trial court’s decision to award 25% of the appreciated value
of the North Carolina condominium to Husband. She contends that Husband did not make
any direct financial contributions to the condominium and cites Langschmidt v. Langschmidt,
81 S.W.3d 741, 746 (Tenn. 2002).

        From our review of the record, we find nothing to suggest that the evidence
preponderates against trial court’s award to Husband. We find Wife’s reliance on
Langschmidt to be misplaced because the record demonstrates that funds from the joint
checking account paid expenses related to the condominium. The record includes an exhibit
outlining the amount of marital funds that were applied to the mortgage payments and upkeep
of the condominium. Because marital funds contributed to preservation and appreciation of
the condominium, the condominium became marital property subject to equitable division.
Therefore, finding no error in the trial court’s decision, we affirm.




                                            -13-
                                     V. CONCLUSION

       The trial court’s division and valuation of the marital estate is affirmed in its entirety.
Costs of this appeal are taxed 75% to the appellant, Drew Edward Gilbert, and 25% to
appellee, Diana (Schutts) Gilbert. We remand this cause to the trial court for collection of
costs.




                                                      _________________________________
                                                      JOHN W. McCLARTY, JUDGE




                                               -14-
