                    IN THE COURT OF APPEALS OF TENNESSEE
                                AT NASHVILLE
                              Assigned on Briefs September 21, 2007

    SARAH ELIZABETH FERGUSON v. JOHNNY WAYNE FERGUSON

                       Appeal from the Chancery Court for Lawrence County
                          No. 11376-03    Jim T. Hamilton, Chancellor


                      No. M2005-02468-COA-R3-CV - Filed February 13, 2008


Husband appeals the award of certain items of personal property to Wife in a divorce action.
Husband and Wife lived together for many years prior to the marriage and acquired both personal
and real property during their cohabitation in addition to the property each owned individually.
Husband argues that there was no evidence to support a finding that items awarded Wife, specifically
a Corvette, a boat, and a trailer, could be considered marital property or the separate property of
Wife. Thus, Husband contends that the trial court erred in its distribution of assets. Finding no error
below, we affirm the judgment of the trial court.

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

ANDY D. BENNETT , J., delivered the opinion of the court, in which FRANK G. CLEMENT, JR., J.,
joined. PATRICIA J. COTTRELL, P.J., M.S., filed a dissenting opinion.

J. Daniel Freemon, Lawrenceburg, Tennessee, for the appellant, Johnny Wayne Ferguson.

Gary M. Howell, Mt. Pleasant, Tennessee, for the appellee, Sarah Elizabeth Ferguson.


                                       MEMORANDUM OPINION1

                                          I. FACTUAL BACKGROUND

         This appeal concerns the division of various assets following the parties’ decree of divorce.

         1
          This opinion is issued pursuant to Rule 10 of the Rules of the Court of Appeals of Tennessee, which provides
the following:
         This Court, with the concurrence of all judges participating in the case, may affirm, reverse or modify
         the actions of the trial court by memorandum opinion when a formal opinion would have no
         precedential value. W hen a case is decided by memorandum opinion it shall be designated
         “MEMORANDUM OPINION,” shall not be published, and shall not be cited or relied on for any
         reason in any unrelated case.

                                                         -1-
At issue is whether the trial court’s award of a Corvette and a boat and trailer to Wife was proper.
We affirm the judgment of the trial court.

        Sarah Elizabeth Ferguson (“Wife”) and Johnny Wayne Ferguson (“Husband”) lived together
for approximately seventeen years before marrying in 2001.2 During the marriage, Husband was
convicted of a felony and sentenced to imprisonment in federal prison. Wife filed for an absolute
divorce on May 5, 2003 based on Husband’s conviction and prison sentence.3 The court granted a
divorce pursuant to Tenn. Code Ann. § 36-4-129, finding “that the parties have agreed and stipulated
that grounds for divorce exist” and ordered that two parcels of real property be sold and the proceeds
be divided equally between Husband and Wife. A hearing to address the distribution of the parties’
remaining assets and debts was ordered to be scheduled at a later date.

       The hearing was held on July 5, 2005. Husband and Wife were the only witnesses.4
Thereafter, the trial court entered its order specifying the division of assets and debts on September
21, 2005. It stated, in pertinent part:

         2.        That [Husband] is awarded the Chevrolet pickup and the Buick
                   automobile.
         3.        That [Wife] is awarded the Chevrolet Corvette automobile, the Lincoln
                   automobile and the boat and trailer.
         4.        That the balance of the personal property of the parties is awarded to the
                   party in possession as of the date of this Order. . . .

Additionally, each party was ordered to pay the debts incurred in his or her individual name.
Husband thereafter filed a Motion to Rehear pursuant to Tenn. R. Civ. P. 59.02 claiming that certain
items awarded to Wife were owned by Husband before the parties’ marriage or were gifts given to
him by family before the parties’ marriage. Husband now appeals seeking a determination of
whether the trial court correctly applied Tenn. Code Ann § 36-4-121 to the case: specifically,
whether the trial court’s awarding Wife the Corvette and boat and trailer was proper. Wife argues
on appeal that the trial court’s award of the Corvette, the boat, and the trailer was justified as an
award of alimony in solido pursuant to Tenn. Code Ann. § 36-5-102.

                                            II. STANDARD OF REVIEW


         2
         W ife’s Complaint, Husband’s Countercomplaint, and the testimony of the parties indicate that they were
married on May 18, 2001. However, Husband asserts in his brief on appeal that the date of the marriage was actually
May 18, 2002.

         3
           Tennessee Code Annotated § 36-4-101(a)(6) states that “[b]eing convicted of any crime that, by the laws of
the state, is declared to be a felony, and sentenced to confinement in the penitentiary[,]” is cause for divorce.

         4
           Based on the joint stipulation of the parties and order of the trial court, the testimony given by Husband and
W ife in their respective depositions constitutes the Statement of Evidence on appeal and is stipulated to accurately reflect
the testimony and proof introduced at trial.

                                                            -2-
        Our review is 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. 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.

       If the trial court made no findings of fact, an appellate court must conduct its “own
independent review of the record to determine where the preponderance of the evidence lies.”
Crabtree v. Crabtree, 16 S.W.3d 356, 360 (Tenn. 2000) (citing Brooks v. Brooks, 992 S.W.2d 403,
405 (Tenn. 1999)). A trial court’s division of the marital estate will not be disturbed on appeal
“unless 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).

        The trial court is charged with equitably dividing, distributing, or assigning the marital
property in “proportions as the court deems just.” Tenn. Code Ann. § 36-4-121(a)(1); Jolly v. Jolly,
130 S.W.3d 783, 785 (Tenn. 2004). Because separate property is not subject to division in actions
for divorce, a court must first classify the property at issue as either marital or separate. Smith v.
Smith, 93 S.W.3d 871, 876 (Tenn. Ct. App. 2002); Batson v. Batson, 769 S.W.2d 849, 856 (Tenn.
Ct. App. 1988). “Once classified, separate property is awarded to the party to whom it is separate
in nature, and the marital property is divided between the parties in an equitable fashion.” Denton
v. Denton, 33 S.W.3d 229, 231 (Tenn. Ct. App. 2000).

                                           III. ANALYSIS

        In its order, the trial court did not make express findings of fact regarding the classification
of the property it awarded to Husband and to Wife. Accordingly, we review the record to see where
the evidence preponderates. The crux of Husband’s argument is that the trial court misapplied
Tennessee Code Annotated Section 36-4-121 governing the equitable distribution of property in
actions for divorce.

       Tennessee Code Annotated Section 36-4-121(b)(2) defines “separate property” as:

       (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;



                                                  -3-
          (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.

Marital property on the other hand 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).

         Both Husband and Wife admit that none of the items at issue were purchased or acquired
during the marriage. Husband therefore argues that the Corvette, the boat, and the trailer should be
classified as separate property and should instead be awarded to him because there was no evidence
that Wife owned the items prior to the marriage and thus, the trial court had no basis for awarding
the items to her. On appeal, Husband admits there is some evidence by which to view the Corvette
as a gift to Wife; however, Husband argues that the boat and trailer were his separate property and
that there is no legal or factual basis to justify awarding the boat and trailer to Wife. Unless the court
somehow considered them a gift to Wife, Husband contends, there simply is no evidence supporting
this award. We disagree.

         Unfortunately, there is virtually no testimony regarding Husband’s and/or Wife’s use of the
boat and the trailer and there are conflicting accounts as to their whereabouts at the time of divorce.5
Husband owned the boat and trailer before he and Wife were married but Wife named them among
things the couple owned. Husband’s table submitted in accordance with Rule 7 of the Rules of the
Court of Appeals of Tennessee6 claims that there was no valuation of the property at issue anywhere
in the record (even though Husband said the boat was worth “forty-five”) and is of little help in our
analysis because no explicit classifications of any of the property were made.




          5
           Husband alleged the boat and trailer were being held by Husband’s daughter as a form of collateral for money
she pays for Husband’s expenses and to him while he is in prison. W ife claimed the boat and trailer were being stored
either in a barn or a storage building owned by Husband’s ex-wife.

         6
          In domestic relations cases where the issue(s) on appeal involve the classification of property and/or the
allocation of marital property, the party raising the issue shall include in their brief a table that “shall list all property and
debts considered by the trial court, including: (1) all separate property, (2) all marital property, and (3) all separate and
marital debts.” Tenn. Ct. App. R. 7 (2005).

                                                               -4-
What is helpful is the list Husband prepared at some point before May 19, 2004 of the items he was
claiming as his separate personal property in the divorce. This list was entered as an exhibit at trial.
Husband was very specific in the items he included. He listed several individual items of furniture,
household goods, decorative objects, and kitchen items among other personal belongings such as
clothes. As for larger items of personal property, Husband listed a riding lawn mower, a push
mower, and the 1994 Lincoln automobile. Husband did not, however, list the boat, the trailer, or the
Corvette. We believe this exhibit, created by Husband’s own hand, is strong evidence that the
parties considered the items at issue to be part of the marital estate.

        It appears that, prior to the marriage, Husband purchased two vintage Corvettes, a 1969
model and a 1984 model. When asked what property she felt was hers to take from the marriage,
Wife named the Corvette. She testified that “[Husband] had one for me and one for him” and when
Husband sold his, “[h]e said we would keep mine.” Husband sold the 1969 Corvette at some point
before the parties divorced.

        Wife admits that the Corvette was never titled in her name and that she did not take
possession of it. However, Husband denied owning any interest in the 1984 Corvette at trial because
he borrowed money from his daughter to purchase the vehicle and had not yet paid his daughter
back. Husband claimed the Corvette was being held by Husband’s daughter as collateral for his
debt.7 Nonetheless, Wife says the 1984 Corvette was often kept at her house and that Husband told
her it was hers. Husband acknowledged that Wife drove the Corvette freely. The only testimony
regarding its maintenance was Wife’s statement that “we had a new motor put in” about six months
before Husband was imprisoned.

        Husband concedes Wife’s testimony suggests that the Corvette was a gift to Wife but argues
that the elements to perfect a valid inter vivos gift were not met. See Hansel v. Hansel, 939 S.W.2d
110, 112 (Tenn. Ct. App. 1996) (stating requirements of valid gift are intent by donor to make the
gift and delivery by donor of gift). We agree with Husband that no actual delivery of title to the
Corvette was made to Wife but as Husband points out, delivery may be actual or constructive. See
Collins v. Alexander, 260 S.W.2d 414, 420 (Tenn. Ct. App. 1952) (noting that delivery for valid gift
may be actual or constructive). Although the trial court did not expressly declare that the Corvette
was an inter vivos gift to Wife, we find there was sufficient evidence to support the trial court’s
decision to award it to her on that basis.

        Alternatively, we believe the evidence supports the award of the Corvette, as well as the boat
and trailer, based on a finding that the items were gifts to the marital estate. There are instances
where separate property can become part of the marital estate due to the parties’ treatment of the
separate property through the doctrines of commingling and transmutation. Smith v. Smith, 93


         7
           There are again conflicting accounts regarding the location and storage of the Corvette at the time of trial.
W hile Husband claimed that the Corvette at issue was being held by Husband’s daughter as collateral for his $6,000.00
debt, W ife indicated that the automobile was put in storage before Husband went to prison because he did not want it
to be confiscated by the authorities.

                                                          -5-
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. Transmutation occurs when separate property is treated 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 circumstances or
communications clearly indicating an intent that the property remain separate.” Id.

        Our review of the record, made in the absence of express findings of fact, reveals that the
evidence does not preponderate against the trial court’s distribution of the property at issue. With
respect to the Corvette, it appears the parties were jointly responsible for maintaining the vehicle and
that both had free access to and use of the vehicle. The testimony coupled with Husband’s own
exclusion of the Corvette from his list of separate property justifies the trial court’s classification of
the vehicle as marital property and its division of assets. Although there was virtually no testimony
regarding the parties’ actual use of the boat and trailer, when asked whether it was ever Wife’s boat,
Husband said, “her boat and her furniture and my furniture and all of that is like she always said,
ours. As long as we was together it was ours.” Husband’s testimony evidences an intent to treat the
boat and the trailer as marital property which is further supported by the exclusion of these items
from Husband’s own exhibit of claimed separate property. Husband presented no evidence to rebut
the presumption that he made gifts of the Corvette, the boat, and the trailer to the marital estate. As
previously noted, this Court will not disturb the trial court’s division of the marital estate “unless the
distribution lacks proper evidentiary support or results from an error of law or a misapplication of
statutory requirements and procedures.” Thompson, 797 S.W.2d at 604. We find no such errors
present.

        We disagree with Wife’s contention that the property awarded her was done so as a form of
alimony in solido. Wife points to the complaint for divorce, which includes her request for spousal
support among the general relief, as support for her position. However, the trial court never
mentioned the word “alimony” in either its decree of divorce or its order outlining the division of
assets. “Alimony in solido is an award of a definite sum of money, and the total amount to be paid
is ascertainable at the time of the award.” Finn v. Bundy, 2005 WL 418793, * 4 (Tenn. Ct. App. Feb.
22, 2005) (no Tenn. R. App. P. 11 app. filed) (citing Burlew v. Burlew, 40 S.W.3d 465, 471 (Tenn.
2001)). The determinative factor in deciding whether an award of alimony is in solido is the intent
of the parties or of the court as expressed in the final order. Id. (citing Bryan v. Leach, 85 S.W.3d
136, 145 (Tenn. Ct. App. 2001)). Because the court made no expression of intent to award the
Corvette, boat, and trailer as alimony, we decline to characterize these distributions as alimony.

                                           IV. CONCLUSION

        We affirm the trial court’s division of assets and the marital estate following the divorce of
Husband and Wife. We find the evidence is sufficient to support a finding that the Corvette, the
boat, and the trailer awarded Wife were in fact part of the marital estate and that the distribution of



                                                   -6-
assets was well within the discretion of the trial court. Costs of this appeal are assessed against the
Appellant/Husband, Johnny Wayne Ferguson, for which execution may issue if necessary.




                                                       ____________________________________
                                                       ANDY D. BENNETT, JUDGE




                                                 -7-
