                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                  November 19, 2013 Session

                STELLA MAY WELCH v. DONALD LEE WELCH

           Direct Appeal from the General Sessions Court for White County
                 No. 2012-CV-15766     Sam Benningfield, Jr., Judge


                 No. M2013-01025-COA-R3-CV - Filed January 10, 2014


This is a divorce action. Wife appeals the trial court’s judgment naming Husband primary
residential parent of the parties’ minor child and classifying real property as Husband’s
separate property. Wife also asserts the trial court erred in dividing the parties’ property
notwithstanding classification of the real property. We affirm the trial court’s classification
and division of property. We vacate the trial court’s judgment with respect to naming
Husband primary residential parent of the parties’ minor child and awarding the parties equal
parenting time, and remand the matter to the trial court to engage in a comparative fitness
analysis as required by Tennessee Code Annotated § 36-6-106, and for findings as required
by Rule 52 of the Tennessee Rules of Civil Procedure.

   Tenn. R. App. P. 3 Appeal as of Right; Judgment of the General Sessions Court
                  Affirmed in part, Vacated in part & Remanded

D AVID R. F ARMER, J., delivered the opinion of the Court, in which A LAN E. H IGHERS, P.J.,
W.S., and J. S TEVEN S TAFFORD, J., joined.

Randy S. Chaffin, Cookeville, Tennessee, for the appellant, Stella May Welch.

Richy L. Jenkins, Sparta, Tennessee, for the appellee, Donald Lee Welch.

                                 MEMORANDUM OPINION 1


       1
        Rule 10 of the Rules of the Court of Appeals of Tennessee provides:
       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. When 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       be designated “MEMORANDUM OPINION”, shall not be published, and shall not be cited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.
        This appeal arises from a divorce action filed by Stella May Welch (Ms. Welch)
against Donald Lee Welch (Mr. Welch) in the General Sessions Court for White County in
March 2012. The facts relevant to our disposition of this matter on appeal are largely
undisputed. The parties were married in June 2001; one child, J.W., was born of the
marriage in 2004. In her 2012 complaint, Ms. Welch alleged irreconcilable differences and
inappropriate marital conduct as grounds for divorce. Mr. Welch answered in May 2012,
denying allegations of irreconcilable differences and inappropriate marital conduct and
counter-claiming for a divorce based on inappropriate marital conduct. Following a hearing
on July 30, 2012, the trial court entered a temporary parenting plan granting Mr. Welch
parenting time from after school on Friday until Monday morning and stating that Ms. Welch
would be responsible for J.W. at all other times. Mediation resolved some issues, and the
matter was tried by the trial court in March 2013. The trial court awarded Mr. Welch a
divorce based on inappropriate marital conduct; found that the home in which the parties
resided during their marriage was Mr. Welch’s separate property and that transmutation had
not occurred; awarded the parties retirement accounts held in their individual names; and
awarded Ms. Welch the personal property which she requested during the litigation of the
matter. The trial court also found that Ms. Welch was entitled to an equitable division of the
appreciation in value of Mr. Welch’s real property in the amount of $30,000. Finally, the
trial court found that it was in the best interests of the parties’ child to share parenting time
equally, and determined that Mr. Welch should be named primary residential parent of J.W.
where Mr. Welch retained the home in which J.W. had resided most of his life. Mr. Welch
was ordered to pay retroactive child support to Ms. Welch in the amount of $2,526 for
February through July 2012, and prospective child support in the amount of $316.00 per
month. The trial court entered final judgment on April 23, 2013, and Ms. Welch filed a
timely notice of appeal to this Court.

                                       Issues Presented

       Ms. Welch presents the following issues for our review, as we reword them:

       (1)    Whether the trial court erred by classifying real property located
              on Eastland Road in Sparta as Mr. Welch’s separate property.

       (2)    Whether the trial court erred in its division of marital property
              notwithstanding the classification of property.

       (3)    Whether the trial court erred by naming Mr. Welch primary residential
              parent of the parties’ minor child.




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       (4)    Whether the trial court erred by awarding the parties equal parenting
              time.

                                          Discussion

        It is undisputed that the real property at issue in this case was owned by Mr. Welch
prior to the parties’ marriage, and that it was titled in his name only. Ms. Welch asserts,
however, that the trial court erred by failing to classify the property as marital property under
the doctrine of transmutation. She asserts that when the parties married, the property was
unimproved except for a barn, and that over the course of the marriage the parties constructed
a home - which is not yet fully finished - in part with marital funds. She asserts that she
worked to clear the land and assisted with the construction, that marital funds were used to
construct the home “up to the basement,” and that funds loaned to Mr. Welch by his father
were repaid, in part, with marital funds.

        The division of property in a divorce proceeding “begins with the identification of all
property interests,” followed by the classification of all “property as either marital or
separate.” Keyt v. Keyt, 244 S.W.3d 321, 328 (Tenn. 2007). Property acquired prior to a
marriage is separate property. Tenn. Code. Ann § 36-4-121(b)(2)(A); Malmquist v.
Malmquist, No. W2007-02373-COA-R3-CV, 2011 WL 1087206, at *24 (Tenn. Ct. App.
March 25, 2011). Transmutation “occurs when separate property is treated in such a way as
to give evidence of an intention that it become marital property.” Id. at 24 (citations
omitted). For example, property purchased with separate funds but titled in joint tenancy or
in the names of both spouses may be considered to have been transmuted to marital property.
Eldridge v. Eldridge, 137 S.W.3d 1, 13-14 (Tenn. Ct. App. 2002)(citation omitted). Dealing
with property in such ways creates a rebuttable presumption that the property has been gifted
to the marital estate. Id. at 14 (quoting Batson v. Batson, 769 S.W.2d 849, 858 (Tenn. Ct.
App 1988). This presumption may “be rebutted by evidence of circumstances or
communications clearly indicating an intent that the property remain separate.” Id. (quoting
id. (quoting 2 Homer H. Clark, The Law of Domestic Relations in the United States § 16.2
at 185)). The classification of property as separate or marital presents a question of fact
which must be determined in light of all the relevant circumstances. Snodgrass v. Snodgrass,
295 S.W.3d 240, (Tenn. 2009)(citations omitted). We review a trial court’s factual findings
de novo on the record, with a presumption of correctness for the trial court’s findings. We
will not reverse a trial court’s findings of fact unless the evidence preponderates against
them. Tenn. R. App. P. 13(d); Berryhill v. Rhodes, 21 S.W.3d 188, 190 (Tenn. 2000).

       As noted above, it is undisputed that the real property at issue in this case was owned
by Mr. Welch prior to the marriage, and Ms. Welch does not dispute that an original
construction loan was taken in Mr. Welch’s name only. It also is undisputed that the home

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remains unfinished, that the parties were unable to finance further construction through a
financial institution, and that Mr. Welch borrowed approximately $90,000 from his father to
continue construction. Upon review of the record, we note that Mr. Welch testified that the
parties used joint funds to construct the home “up to the basement,” that Ms. Welch helped
with construction of the home, that the funds he borrowed from his father were repaid, in
part, with funds earned by both parties when Ms. Welch was working outside the home; and
that there was no loan documentation indicating the outstanding balance of the loan. When
asked whether he would agree that Ms. Welch owned part of the property, Mr. Welch replied
“[p]art of the house, yes.” Mr. Welch also testified that it was the parties’ intent to reside in
the home for “the rest of [their] lives until [Ms. Welch] decided to go another way.”

        In light of the totality of the testimony in this case, it is clear that constructing a home
on 26-acres of unencumbered real property owned by Mr. Welch prior to the marriage was
a marital project, and that Ms. Welch contributed to the appreciation in value of the property.
We cannot say, however, that the evidence preponderates against the finding of the trial court
that the property remained Mr. Welch’s separate property. We affirm on this issue.

       We turn next to Ms. Welch’s assertion that, notwithstanding the trial court’s
determination that the real property is properly classified as separate property, the trial court
erred in failing to divide the parties’ marital property equitably. She asserts the trial court
erred by failing to award her at least 50 percent of the marital estate.

       Rule 7 of the Court of Appeals provides:

               (a) In any domestic relations appeal in which either party takes issue
       with the classification of property or debt or with the manner in which the trial
       court divided or allocated the marital property or debt, the brief of the party
       raising the issue shall contain, in the statement of facts or in an appendix, a
       table in a form substantially similar to the form attached hereto. This table
       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.

              (b) Each entry in the table must include a citation to the record where
       each party’s evidence regarding the classification or valuation of the property
       or debt can be found and a citation to the record where the trial court’s
       decision regarding the classification, valuation, division, or allocation of the
       property or debt can be found.

               (c) If counsel disagrees with any entry in the opposing counsel’s table,

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       counsel must include in his or her brief, or in a reply brief if the issue was
       raised by opposing counsel after counsel filed his or her initial brief, a similar
       table containing counsel’s version of the facts.

        We have repeatedly held that the failure to comply with Rule 7 waives issues relating
to the requirements of the Rule. E.g., Chambers v. Chambers, No. W2012-00068-COA-R3-
CV, 2013 WL 375403, at *2 (Tenn. Ct. App. Jan. 31, 2013); Butcher v. Butcher, No. W2011-
01808-COA-R3CV, 2012 WL 2107977, at *2 (Tenn. Ct. App. June 12, 2012); Forbess v.
Forbess, No. W2011-01105-COA-R3-CV, 2011 WL 6153607, at *6 (Tenn. Ct. App. Dec.
9, 2011), perm. app. denied (Tenn. Apr. 12, 2012). This Court does not have a duty to search
a trial court record to discern the valuation of the couple’s property. We previously have
stated that a table in compliance with Rule 7 is necessary to our consideration of property
division issues in a divorce case, and that the issue will be waived for failure to comply with
Rule 7. Id. (citation omitted). We accordingly find the issue waived in this case.

       We next turn to Ms. Welch’s assertion that the trial court erred by naming Mr. Welch
primary residential parent of J.W. where J.W. suffers from spastic cerebral palsy and other
medical conditions; where she is a licensed practical nurse and has been J.W.’s primary care-
giver; where Mr. Welch works a night shift from 11:00 PM until 7:00 AM and spent little
time with J.W. prior to the parties’ separation. Ms. Welch acknowledges that Mr. Welch
loves J.W. and has spent more time with him since the parties separated, but contends that
the parenting schedule set by the trial court would result in Mr. Welch’s parents being J.W.’s
primary care-givers.

        We review the trial court’s determination of child custody under an abuse of discretion
standard, affording the trial court great deference. E.g., Herrera v. Herrera, 944 S.W.2d 379,
385 (Tenn. Ct. App.1996). This deferential review is premised on the assumption that the
trial court first considered the best interests of the child in making the custody determination
and did not act arbitrarily. Id. at 386. Although we will not disturb the trial court’s
determinations absent an abuse of discretion, the trial court’s discretion is not without limit
and its determinations must be based on the evidence and appropriate legal principles.
Hogue v. Hogue, 147 S.W.3d 245, 251 (Tenn. Ct. App. 2004).

       The trial court is required to engage in a comparative fitness analysis of the parents
when naming a primary residential parent. Gaskill v. Gaskill, 936 S.W.2d 626, 630 (Tenn.
Ct. App. 1996). When so doing, it must consider the factors outlined by the legislature as
codified at Tennessee Code Annotated § 36-6-106.2 Id. We review the trial court’s


       2
           The trial court must consider, where applicable,
                                                                                    (continued...)

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determination of the facts regarding the comparative fitness of the parents de novo,
presuming those findings to be correct unless the evidence preponderates otherwise. Tenn.
R. App. P. 13(d); In re Clark, No. W2005-01687-COA-R3-JV, 2007 WL 152537, at *10
(Tenn. Ct. App. Jan. 22, 2007)(citing see In re C.K.G., 173 S.W.3d 714, 732 (Tenn. 2005)
(citing Hass v. Knighton, 676 S.W.2d 554, 555 (Tenn.1984))).

        Upon review of the record, we observe that the trial court appears to have named Mr.
Welch primary residential parent based solely on the fact that Mr. Welch would reside in the
house which has been J.W.’s home for most of his life. However, the trial court also found
that a shared parenting schedule is in J.W.’s best interest, and fashioned a parenting schedule
awarding the parties approximately equal parenting time, notwithstanding that it is
undisputed that J.W. has considerable care needs and Ms. Welch has been his primary care-
giver. There is nothing in the record transmitted to this to indicate that the trial court
conducted a comparative fitness analysis as required by Tennessee Code Annotated § 36-6-
106(a). The trial court made no factual findings with respect to the factors provided by the
Code to support its judgment regarding parenting issues. Accordingly, we must remand this
matter to the trial court to conduct a comparative fitness analysis consistent with section 36-


       2
        (...continued)
                (1) The love, affection and emotional ties existing between the parents . . . and the
       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 . . .;
                (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)(A) The reasonable preference of the child, if twelve (12) years of age or older;
                (B) The court may hear the preference of a younger child on 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 . . .;
                (9) The character and behavior of any other person who resides in or frequents the
       home of a parent . . . and the person's interactions with the child; and
                (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 both
       of the child’s parents, consistent with the best interest of the child.

Tenn. Code Ann. § 36-6-106(a) (Supp. 2013).

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6-106(a), to name a primary residential parent and to fashion a parenting schedule consistent
with its comparative fitness analysis, and for findings consistent with Rule 52 of the Rules
of Civil Procedure.

                                          Holding

       In light of the foregoing, we affirm the judgment of the trial court with respect to
issues of property classification and division. We vacate the trial court’s judgment with
respect to primary residential parent status and parenting time, and remand this matter for
further proceedings consistent with this Opinion. In light of J.W.’s medical needs and the
heightened need for consistent and constant care, the trial court’s July 26, 2012, temporary
parenting plan will remain in force, provided that J.W. will remain domiciled in White
County, pending final resolution of the matter. Costs on appeal are taxed one-half to the
Appellee, Donald Lee Welch, and one-half to the Appellant, Stella May Welch, and her
surety, for which execution may issue if necessary.




                                                   _________________________________
                                                   DAVID R. FARMER, JUDGE




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