                            IN THE COURT OF APPEALS OF
                               TENNESSEE AT JACKSON

MARY ANN QUINN,                            )   )


                                                   FILED
         Plaintiff/Appellant, ) Shelby Chancery No. D27744 ) VS.
                                    ) Appeal No. 02A01-9803-CH
                                    ) -2 R.D.
GREGORY M. QUINN,                   )       March 25, 1999
                                    ) 00089
         Defendant/Appellee.        ) Cecil Crowson, Jr.

               APPEAL FROM THE CHANCERY COURT OF SHELBY
              COUNTY AT MEMPHIS, TENNESSEE THE HONORABLE
                      FLOYD PEETE, JR., CHANCELLOR




MITCHELL D.
MOSKOVITZ LISA E.
CIRCEO Memphis,
Tennessee Attorneys for
Appellant


WENDY S.
DABBOUS Memphis,
Tennessee Attorney
for Appellee




AFFIRMED IN PART, REVERSED IN
PART AND REMANDED




                                                               ALAN E. HIGHERS, J.


CONCUR:
(. FRANK CRAWFORD, P.J.,
W.S. HOLLY KIRBY LILLARD, J.
      MaryAnnQuinn(“Wife” or “Appellant”) appeals thejudgment ofthetrial court which
ordered Gregory M. Quinn (“Husband” or “Appellee”) to pay for the parties’ minor child’s
private school tuition in monthly increments designated as alimony; ordered Husband to
pay a portion of Wife’s attorney fees; and classified the following property of the parties:
1. Amer. Express IDS Flexible Annuity Account ($58,775)
Husband 2. Charles Schwab Account ($54,190)
       Husband
3. Residence at 2368 Circle ($100,000)                                       40% Husband/60% Marital


                                 I. Factual and Procedural History


       Wife and Husband were divorced on February 3, 1998, after fourteen years of
marriage. Most of the issues of the divorce were agreed upon between the parties and
announced to the court prior to trial.


       In classifying the parties’ property as marital or separate, the trial court determined
that the American Express IDS Flexible Annuity Account (“IDS account”), and the Charles
Schwab Account (“Schwab account”) were Husband’s separate property. The trial court
further classified the parties’ residence at 2368 Circle as 60% marital and 40% Husband’s
separate property. The trial court ruled Wife and child should be allowed to reside in the
home until the child reaches the age of majority, with Husband paying 60% and Wife
paying 40% of the mortgage. At that time, Husband must pay to Wife one half of the
equity accrued during the marriage (approximately $6,000.00), and one half of the future
equity which will accrue in the home while Wife and child continue to reside there.


       At the time Husband inherited the Circle Avenue property it was valued at
$100,000.00 and Husband inherited a 25% interest. Husband purchased an additional
15% interest in the property from his siblings with funds he inherited from his father. The
parties then obtained a mortgage to purchase theremaining interest (60%) from
Husband’s siblings.
       Husband also inherited an investment account his father had maintained with
Schwab. After his father’s death, Husband was informed that he would have to re-title the
account into his own name. He then put the account in both his and Wife’s name. No
marital funds were ever deposited into this account, nor was any money ever withdrawn.


       Like the Schwab account, the funds used to open the IDS account were also
inherited by Husband from his father. The funds originally came from a First American
savings account which was owned by Husband’s father. The funds were then transferred
into a newly-opened joint account of the parties where they remained for less than one
month before being withdrawn to open the IDS account. The parties met jointly with Vera
Feldman, a financial advisor, to set up certain IDS accounts. Feldman testified that both
Husband and Wife have set up individual funds with money theyhad separately inherited.


Feldman verified that Wife had no control over the IDS account. Husband named Wife
as the beneficiary of the IDS account.

                                               2
       At trial, both parties agreed their son should remain in private school. Wife stated
that if she did not receive some form of financial assistance she would be unable to afford
private school tuition. Husband was ordered to pay $688.00 per month as child support
in accordancewith thechild support guidelines.Additionally, theCourt ordered that
Husband pay the private school tuition each year to Wife in the form of alimony.


       The trial court established a formula for the payment of Wife’s attorney fees. The
court held Husband was to pay one-half Wife’s attorney fees incurred prior to January 31,
1998, or $1,500.00, andone-halfWife’s attorney fees incurred since January31,1998, not
to exceed $2,500.00.


                                           II. Real Property


       The home at 2368 Circle Avenue was inherited by Husband and his siblings during
the course of the marriage when Husband’s father died in 1993. At the time Husband
inherited the property, it was valued at OneHundred Thousand Dollars ($100,000.00) and
Husband inherited a twentyfive percent (25%) interest. Husband purchased an additional
fifteen percent (15%) interest in the property from his siblings with funds he inherited from
his father. Husband and Wife then obtained a mortgage to purchase the remaining sixty
percent (60%) interest from Husband’s siblings. Husband,Wife andtheir minor son moved
into the house and the home was jointly titled in the parties’ names.


       Evidence at trial established that the Circle Avenue home had been in Husband’s
familyfor more than fifty years. Husband’s grandfather originally purchased the home and
raised his familythere. When he died, Husband’s father inherited the home and raised his
family in it. Husband wished to raise his son in the ancestral home before Wife filed for
divorce. When Wife requested Husband leave the home, Husband returned to theparties’
former residence on Choctaw Avenue which the parties still own. Husband testified he
wanted to minimize the disruption in his son’s life so he consented to Wife and child
remaining in the Circle Avenue home pending the divorce. Husband testified he never
intended to abandon his ancestral home.


       The trial court ruled that theforty percent (40%) interest in thehome which Husband
inherited or purchased with inherited funds is Husband’s separate property. The trial court
deemed the remaining sixty percent (60%) interest in the home to be marital property.
The court ruled that Wife and minor child should be allowed to continue to reside in the
home until the child reaches the age of majority. At that time, or if Wife chooses to move
prior to that time, Husband must pay to Wife one half of the equity which accrued during
the marriage and one half of the future equity which will accrue in the home while Wife


                                               3
and child continue to reside there. The court ordered Husband to pay sixty percent (60%)
and Wife to pay forty percent (40%) of the mortgage while Wife and minor child reside in
the home.


       At the outset of our discussion we note that in accordance with Tenn.R.App.P.
13(d), the role of this Court is to review the record made in the trial court de novo with
the presumption that the trial court's findings of fact are correct unless the
evidence preponderates otherwise. Thus, we will affirm the trial court's decision
unless there is an error of law affecting the result or unless the evidence
preponderates against the trial court's factual determinations. Campanali v.
Campanali, 695 S.W.2d 193, 194 (Tenn. App.1985) (citations omitted).


       Wife contends that the trial court erred in finding the Circle Avenue property to be
only sixty percent (60%) marital. Wife argues that the home was inherited by Husband
during the marriage, treated as the “family home,” and jointly titled. Wife asserts that the
home is marital property in its entirety pursuant to the equitable doctrine of transmutation,
and that the property should have been awarded to Wife.


       This Court addressed the doctrine of transmutation in the case of McClellan v.
McClellan, 873 S.W.2d 350 (Tenn. App. 1993).
              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 thenames of both spouses. 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. This presumption is based 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.
Id. at 351.
        In theMcClellan case,a husband and wife purchased a home using funds inherited
by the husband ($20,000.00) for the down payment. The property was titled in the names
of both parties. The trial court found the property to be marital and awarded the home to
the husband. The wife appealed the judgment asserting that she should have been
awarded at least one half of the marital residence. The husband argued that the trial court
should have found theresidence to be his separate property as he only agreed to have
the property titled in both their names because the wife threatened to sue for divorce if
the property was not also titled in her name. The Court of Appeals focused on the
husband’s testimony that he intended to have the house for the family and affirmed the
trial court’s finding that the property was marital. The Court also affirmed the award of the
property to the husband.


                                               4
       In the case at hand, Wife argues that the home was titled jointly, financed jointly,
and treated as a “family home.” Husband contends that although there is a rebuttable
presumption that he intended to make a gift to the marriage, McClellan also states that
the presumption can be rebutted by evidence of circumstance or communications clearly
indicating that the property remain separate. Although the McClellan court did not define
what those circumstances might be, Husband contends that the present case presents
an appropriate set of circumstances. Husband argues that a home which has been
in Husband’s family for over fifty years should be viewed differently than a home without
this designation which parties purchase together using inherited funds for the down
payment, as in McClellan.


       The evidence in this case preponderates against the trial court’s finding that the
home is forty percent (40%) separate and sixty percent (60%) marital. Although Husband
used his own funds to purchase 40% of the house on Circle Avenue, the home was jointly
titled in both Husband’s andWife’s names. The presumption that a gift to themarital estate
was intended can be rebutted by evidence clearly indicating an intent that the property
remain separate. There is no indication in the record that Husband ever treated the Circle
Avenue property as if it were his separate property. Based upon the status of the title of
theCircle Avenueproperty, and in theabsence of proofthat Husband clearlyintended that
the home would remain his separate property, we find that the home was marital property.


       Our statutes provide that in divorce cases thecourt shall equitablydivide
themarital property of the parties. Tenn. Code Ann. §36-4-121(a). An equitable
division however is

       notnecessarilyan equal one. Barnhill v. Barnhill, 826S.W.2d443, 456(Tenn.App. 1991).

              Trial courts are afforded wide discretionin dividing theinterests
              ofparties in jointly owned property. Accordingly, thetrial court’s
              distribution will be given great weight on appeal, and will be
              presumed to be correct unless we find the preponderance of
              the evidence is otherwise.
Id. at 449.


       Pursuant to Tenn. Code Ann. §36-4-121(c), trial courts are guided by many factors
in making an equitable division ofmarital property. Oneimportant factor is “the contribution
of each party to the acquisition, preservation, appreciation or dissipation of the marital or
separate property, including the contribution of a party to the marriage as homemaker,
wage earner, or parent.” (Tenn. Code Ann. §36-4-121(c)(5)). Under this factor and the
catchall provision, “Such other factors as are necessary to consider the equities between
the parties” (Tenn. Code Ann. §36-4-121(c)(10)), the trial court was able to factor in
Husband’s use of inherited funds to purchase forty percent (40%) of the home, and the
length of time the home has been in Husband’s family.

                                               5
         Although the Circle Avenue property became marital property under the doctrine
of transmutation, Husband’s use of inherited funds to purchase the home, and the fact
that the home has been passed down through several generations in Husband’s family,
are relevant to the equitable division of the property. The evidence does not preponderate
against the trial court’s division of the Circle Avenue property. While the property should
properly be classified as marital, the division of the property shall remain the same. Wife
shall be entitled to half of the equity which accrued during the marriage (approximately
$6,000) and half of the future equity which will accrue while Wife and child are residing
in the home, to be paid by Husband at the time Wife and child leave the home. The trial
court’s judgment regarding occupancy of the home, payment of mortgage, and sale of the
home shall also remain the same.




                                   III. IDS and Schwab Accounts


         WhenHusband’s fatherdied in 1993, Husband inherited an investment account with
Charles Schwab and a First American savings account. Initially, the Schwab account
remained in Husband’s father’s name until Husband was advised that the account must
be under a living person’s social security number. Husband testified that he retitled the
account into his and Wife’s name in an effort to protect Wife in case of Husband’s
untimely



death.


         Similarly, the IDS account was opened by Husband with funds inherited from his
father’s First American savings account. Like the Schwab account, Husband eventually
had to retitle this account or move the funds out of his father’s name. The parties opened
whatlater becametheFAIR account with First American Bank andHusband depositedthe
funds from his father’s First American account (approximately $50,000.00) into the joint
account in December of 1994. On January 30, 1995, Husband transferred the money out
ofthat account to American Express Financial Advisors to open theIDS account. Husband
opened the IDS account in his name solely and named Wife as beneficiary in the event
of his untimely death.


         The trial court found both theIDS andSchwab accounts to be theseparate property
of Husband and awarded them to Husband. Wife contends that the IDS and Schwab
accounts are marital property under the doctrine of transmutation. The Schwab account
was jointly titled, giving rise to thepresumption that Husband intended to make a gift to the
marriage. The IDS account was funded with money from the joint FAIR account. Wife

                                               6
contends the commingling of the martial and separate property resulted in transmutation
of the IDS account.


       The Schwab account was jointly titled in the parties’ names. Under the doctrine of
transmutation, this creates a rebuttable presumption of a gift to the marital estate. As
spelled out in McClellan, the presumption can be rebutted by evidence of circumstances
or communications clearlyindicating an intent that theproperty remain separate.McClellan
at 351. Husband testified that he titled the Schwab account in both parties’ names in an
effort to protect Wife in case of Husband’s untimely death, as Husband is a police officer.
Husband testified that having recently been through the probate process with his father’s
estate, Husband felt this was the most reasonable and prudent thing to do.


       The jointly-titled Schwab account consists entirely of Husband’s inherited funds.
Wife stated that no funds had been withdrawn by either party since the account was put
in both parties’ names nor have any marital funds been deposited into the account.
Husband offered a plausible explanation for titling the account in both parties’ names. The
evidence does not preponderate against the trial court’s finding that the Schwab account
was the separate property of Husband.


       The IDS account was titled in Husband’s name only. The account was funded
entirely with money inherited by Husband. Wife’s only avenue for asserting that this
account be deemed marital property is the fact that the inherited money was transferred
out of Husband’s father’s account and into a joint account of the parties for a period of
one monthbefore it was transferred to theseparately titled IDS account. Wife asserts that
such commingling of marital and separate funds invokes the doctrine of transmutation and
the presumption that Husband intended a gift to the marital estate. The evidence does
not support this argument.


       While the inherited funds were briefly in the joint account, no marital funds were
depositedinto thejoint account nor were any funds withdrawn from theaccount. “The mere
fact that the funds were placed for a time in a joint account does not require that they be
consideredmarital property.”Fendley v. Fendley, No. 01A01-9509-CH-00418,1997 LEXIS
469, at *6 (Tenn. Ct. App. July 2, 1997).


       “A presumption arises that when deposits are made into a joint bank account
between spouses, the parties share a joint ownership in the funds on deposit. This
presumption, however, is rebuttable by either spouse wishing to show that the account
consists of his separate property only.” Mosher v. Mosher, No. 2, 1988 LEXIS 212, at *4
(Tenn. Ct. App. March 3, 1988) (citations omitted). While the funds used to open the IDS


                                              7
amount came out of the parties’ joint account, the funds in the account consisted of
Husband’s separate property. The circumstances here indicate Husband’s intent that the
property remain separate.


       Wife argues that the IDS account could not have been titled jointly. However, Vera
Feldman, American Express financial advisor, testified that Husband chose an annuity
which could have only one owner instead of requesting an annuity allowing both parties
to be listed as owners. Additionally, Husband stated to Feldman that thefunds for
theannuity were part of his inheritance.


       The brevity of the period in which the funds were placed in the joint account,
coupled with Husband’s titling the IDS account in his name only, evidenced Husband’s
intent that the funds remain his separate property. The evidence does not preponderate
against the trial court’s finding that the IDS account was Husband’s separate property.


       For all theabove stated reasons, thetrial court did noterr in holding that
theCharles Schwab account and the IDS account were the separate property of
Husband.


                                       IV. Private School Tuition


       The trial court ruled that Wife would be designated the primary custodial guardian
of the parties’ minor child and Husband would be responsible for the payment of child
support pursuant to the Department of Human Services Guidelines. The parties agreed
that thechild should continueto attend privateschool better to address his AttentionDeficit
Disorder. The trial court ordered Husband to pay for the child’s private school tuition and
designated Husband’s payment of tuition as alimony, deductible to Husband and taxable
to Wife. Wife contends that thetrial court erred in designating thepayment ofchild’s tuition
as alimony as it is exclusively for the benefit of the child and is thus, in the nature of child
support.


       As Professor Clark has stated "[t]he purpose of alimony is to care for the wife's
needs after divorce . . .” H. Clark, Law ofDomestic Relations § 14.9(4) (1968). Tennessee
courts have consistently held that need is one of the most important factors in the award
of alimony, with thesole purpose ofalimony being to provide for a disadvantaged spouse's
needs after divorce. Lancaster v. Lancaster, 671 S.W.2d501, 503 (Tenn. Ct. App. 1984);
Aleshire v. Aleshire, 642 S.W.2d 729, 733 (Tenn. Ct. App.1981). Tennessee Code
Annotated §36-5-101(d), sets out the factors the court must consider in setting alimony,
and the does not mention special education needs of children.

                                                8
       While the child support amounts set forth in the Guidelines do not include private
school tuition, the Guidelines provide for the upward adjustment of child support for
extraordinary educational expenses:
              (1) Since these percentage amounts are minimums, the court
              shall increase the award calculated in Rule 1240-2-4-.03 for
              the following reasons:
              (c) Extraordinary educational expenses and extraordinary
              medical expenses not covered by insurance shall be added
              to the percentage calculated in the above rule.
Tenn. Comp. R. & Regs. tit. 10, ch. 1240-2-4-.04-.04(1)(c) (1994).
In Dwight v. Dwight, 936 S.W.2d 945 (Tenn. App.1996), this Court found that private
school tuition is not to be considered as a portion of child support under the Guideline
percentages and that child support can be adjusted upward for private school tuition. Id.

at 950.


       Husband points to the case of Smith v. Smith, No. 01-A-01-9705-CH-00216, 1997
LEXIS 733 (Tenn. App. October 29, 1997) as support for his position that a minor child’s
private school tuition may be properly designated as alimony. In Smith, the Court of
Appeals held that the trial court was within its discretion in ordering a reduction in alimony
when part of thealimony had originally been awarded to help Wife pay for theminor child’s
private school tuition and minor child was later enrolled in public school.


       Although the Smith case is certainly one instance of a trial court classifying tuition
as alimony, theissue on appeal was nottheproprietyof that classification, butwhether the
trial court erred in decreasing the alimony award upon the child’s enrollment in public
school. The Court of Appeals found that the trial court did not abuse its discretion in
reducing the alimony award. The issue in Smith was not whether the tuition should have
been classified as child support versus alimony. However, the Court of Appeals did make
mention of this issue:
              We believe that both parties would concede that Tenn. Code
              Ann. §36-5-101(d), which sets out the factors the court must
              consider in setting alimony, does not specifically mention
              special education needs of the children, and that such needs
              are addressed in the provisions for deviation from the child
              support guidelines found in Tenn. Rules & Regs. 12-2-4-
              .04(1)(c).
Smith at *5-6.
Ultimately, the Court in Smith did not rule upon the propriety of classifying private
tuition as alimony and is therefore not controlling in the case at hand.


       Husband’s payment of tuition is clearly for the benefit of the minor child. While
private school tuition is not to be considered as a portion of child support under the
Guideline percentages, theChild Support Guidelines andTennesseecase lawprovide that
child support can be adjusted upward for private school tuition. Furthermore, the factors

                                               9
to be considered by the court in setting alimony make no mention of special education
needs ofminor children. The privateschool tuitionis clearlychild support andthetrial court
abused its discretionin designating Husband’s payment of the minor child’s privateschool
tuition as alimony.


         TennesseeCodeAnnotated§36-5-101(e)(1) requires thetrial court,whendeviating
from the Child Support Guidelines, to make a written finding that the application of the
Guidelines would be unjust or inappropriate. Although the trial court found that the parties’
minor child should continue to attend Catholic High School, the finding was not in the
context ofchild support, andis insufficient to constitutea written finding that theapplication
of the Guidelines is inappropriate in this case.1Accordingly, this case is remanded for
additional written findings consistent with this opinion.


                                                        V. Attorney Fees


         The trial court established a formula for the payment of Wife’s attorneys’ fees. The
court held that Husband was to pay one half of Wife’s attorneys’ fees incurred prior to
January 31, 1998, or $1500.00, and one half of Wife’s attorneys’ fees incurred since
January 31, 1998, not to exceed $2500.00. Wife incurred total attorneys’ fees and suit
expenses of $7,522.05 at the time of trial.


         Wife contends that given the comparative needs of the parties and their ability to
pay their attorneys, the trial court should have required Husband to pay all of Wife’s
attorneys’ fees. Husband argues that as Wife received half of the parties marital assets,
alimony, child support andhas considerable amount ofseparate property, Wife clearlyhas
adequate funds from which to pay her attorney’s fees. Husband contends this holding
should be reversed and each party ordered to pay their own attorney’s fees.


         The trial court has wide discretion in determining the amount, if any, of attorney's
fees to be awarded. Crouch v. Crouch, 53 Tenn. App. 594, 605; 385 S.W.2d 288, 293
(1964). At the conclusion of a divorce case, if the wife is without sufficient resources
properly to compensate her attorney, and if the financial provisions made for the wife by
way of alimony, periodic or in solido, do not include the means out of which counsel fees
can reasonably be paid, the court is authorized to grant to the wife additional alimony for
the purpose of enabling her to pay her attorney. Palmer v. Palmer, 562 S.W.2d 833, 839
(Tenn. App. 1977); Ligon v. Ligon, 597 S.W.2d 310 (Tenn. App. 1979); and Ligon v.


1
         We note, however, that a written finding that the child had a special disability and that he has
particularly benefitted from private school education in the past, will satisfy the requirement. See Quarry
v. Quarry, No. 02A01-9111-CH-00262, 1992 WL 141796, at *2 (Tenn. App. June 25, 1992).

                                                             10
Ligon, 556 S.W.2d 763 (Tenn. App. 1977). Thus, this Court will not disturb the trial court's
decisionregarding attorneys' fees unless thedecisionis notsupportedby a preponderance
of the evidence.




       The right to an allowance of legal expenses is not absolute. It is conditioned upon
a lack of resources to prosecute or defend a suit in good faith. This rule is to enable the
wife, when destitute of means of her own, to obtain justice and to prevent its denial. Fox
v. Fox, 657 S.W.2d 747, 749 (Tenn.1983).


       In the final decree of divorce, Husband was ordered to pay to Wife the sum of
Fourteen Thousand Nine Hundred Forty-Four Dollars ($14,944.00) to effectuate an equal
division of the parties’ retirement/pension accounts and the sum of One Thousand Five
hundred Dollars ($1,500.00) as Wife’s share of the 1978 Harley motorcycle sold by
Husband during thedivorce proceedings. Wife was awarded onehalfoftheFirst American
Bank FAIR account balance of Seventeen Thousand Ninety-Three Dollars ($17,093.00).
Wife was awarded the exclusive use of the home on Circle Avenue with Husband being
ordered to pay sixty percent (60%) of the mortgage and Wife forty percent (40%).
Additionally, Wife retained separate property totaling in excess of Sixty Thousand Dollars
($60,000.00).


       The trial court assessed costs against Husband andordered Husband to pay a total
sum of Four Thousand Dollars ($4,000.00) to Wife for attorneys’ fees, leaving Wife to pay
thebalance ofThreeThousandFive Hundred Twenty-Two Dollars ($3,522.05). This Court
is of the opinion that Wife has received sufficient resources to compensate her attorneys
for any remaining fees and expenses incurred on her behalf. Taking into account both the
property settlement and the relative income levels of the parties, it does not appear to us
that the evidence preponderates against the decision of the trial court.


       Wife also contends that Husband should be required to pay the reasonable
attorneys' fees for Wife on appeal. This Court is of the opinion that this case does not
require an award to Wife for attorneys' fees on appeal. As we have stated in our
discussion of attorneys’ fees above, Wife has adequate financial resources with which
to compensate her attorneys.


                                           VI. Conclusion


       The judgment of the trial court is affirmed in part, reversed in part, and remanded
for a written finding required on the child support guideline deviation issue. Costs on

                                              11
appeal are taxed to appellant.




                                      HIGHERS, J.


CONCUR:



CRAWFORD, P.J., W.S.



LILLARD, J.




                                 12
