                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                   October 10, 2002 Session

            MITZI GAY GREGORY BLAIR v. JOHN DAVID BLAIR

                      Appeal from the Circuit Court for Sumner County
                             No. 21496-C    C.L. Rogers, Judge



                     No. M2001-02790-COA-R3-C - Filed March 13, 2003


This divorce case involves issues of property classification and division regarding real property
purchased by Wife prior to the parties’ marriage and titled jointly in both Wife and Husband’s
names. The property became the marital residence where the couple lived during their marriage, but
the majority of payments on the house mortgage were made by Wife’s parents. Husband contributed
virtually nothing to the marriage and substantially dissipated the couples assets through gambling
and drug use. The trial court found the house to be marital property and divided the equity by giving
the first $75,000.00 to Wife, as her original contribution, then dividing the remaining equity between
the parties: 75% to Wife, 25% to Husband. Husband claims that half of the $75,000.00 down
payment was a gift made to him by Wife prior to the marriage and, thus, his separate property. We
affirm the decision of the trial court.

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

WILLIAM B. CAIN , J., delivered the opinion of the court, in which PATRICIA J. COTTRELL , J., and
JOHN A. TURNBU LL, SP . J., joined.

John R. Phillips, Jr., Gallatin, Tennessee, for the appellant, John David Blair.

Bruce N. Oldham and Sue Hynds Dunning, Gallatin, Tennessee, for the appellee, Mitzi Gay Gregory
Blair.

                                             OPINION

        The Parties, Mitzi Gay Gregory Blair (Plaintiff/Appellee), and John David Blair (Defendant/
Appellant), were married for 6 years and divorced on August 7, 2001. Plaintiff came into the
marriage with assets of around $100,000.00; Defendant came into the marriage with virtually no
assets. Prior to the marriage, Plaintiff purchased a home and titled it in the names of both Plaintiff
and Defendant as tenants in common. However, Defendant contributed nothing towards the home
purchase; while, Plaintiff contributed $75,000.00 of her separate assets as the down payment.
Defendant also made virtually no contribution toward the home mortgage, either before or during
the marriage, using his earnings primarily for drugs and gambling. In the first year after purchasing
the home, the mortgage payments were taken over by Plaintiff’s parents due to the parties’ financial
difficulties. The parties made no further payments themselves on the home mortgage.

         The trial judge found the home to be marital property and ordered it sold. He further returned
the first $75,000.00 of equity to Plaintiff and divided the remaining equity: 75% to Plaintiff, 25%
to Defendant. Said the court:

               2.     It is clear to the Court, based on the evidence, that the Husband has
       a very bad credibility problem.

               ....

               4.      The separate property of the Wife consists of the following: Dining
       Room table, chairs & hutch; antique bedroom suite; white iron bed; all Caroline’s
       bedroom furniture; antique chest; coffee table; dryer; leather recliner; kitchen table
       and chairs; refrigerator; entertainment center; sofa; 18" television; CD at Macon
       Bank; savings account at Macon Bank; any funds in the leasing account; and 500
       share of stock in First Independent Bank.
               5.      The separate property of the Husband consists of the following:
       antique pitcher and bowl.
               6.      Marital property consists of the television set in the den, the washer,
       the cherry bedroom set, the Sea Sprite boat, the 1994 Jeep Cherokee, the marital
       residence at 108 Jackson Drive, Hendersonville, Tennessee and the proceeds from
       the Tahoe on deposit with the Clerk of the Court.
               7.      The Court has considered all of the factors set forth in T.C.A. §36-4-
       11 and the evidence presented relative to an equitable distribution of the marital
       property. The number one factor is the duration of this marriage, which is short. The
       second factor is the contribution of each to the acquisition and dissipation of the
       marital property. The Court specifically finds that the Husband has greatly dissipated
       and greatly wasted assets of this marriage, regardless of where they came from,
       because of drugs. The Court further considered the condition of the estate that each
       brought into the marriage and the ability of each of these individuals for future
       acquisitions. Both of them, if put out in the middle of nowhere, can survive, as they
       are very talented people. The Husband is just making some very wrong choices. The
       Wife may have thought she was doing the right thing by her joint participation early
       on in these activities, but she can see now that those choices were wrong.
               8.      An equitable division of the marital personal property is as follows:
       The TV in the den, the washer, the computer, the paining of the daughter, the bakers
       rack, the two dogs, the china set and whatever is in her retirement account are
       awarded to the Wife. The cherry bedroom suite, the Sea Sprite boat and the 1994
       Jeep Cherokee are awarded to the Husband.



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                9.     The House is already on the market and shall be sold. It can continue
       to be privately listed until the parties come back to court and say that it just can’t
       happen and they want something else done. The parties are tenants in common in
       this property. If the property is sold, after payment of the mortgage and costs of sale,
       the first $75,000.00 will be returned to the Wife as her original contribution. The
       remaining proceeds will be divided 75% to the Wife and 25% to the Husband, which
       represents the best approximation regarding contributions to the marriage and, more
       importantly, dissipation of the assets.

               ....

               It is, therefore, ORDERED, ADJUDGED and DECREED as follows:

               ....

               4.      The Wife is awarded the following marital personal property: The TV
       in the den, the washer, the computer, the painting of the daughter, the bakes rack, the
       two dogs, the china set; whatever is in her retirement account, the first $75,000.00
       of the proceeds of the sale of the marital residence after payment of the mortgage and
       the costs of sale and 75% (seventy five percent) of the remaining proceeds; 75%
       (seventy five percent) of the Tahoe proceeds on deposit with the Clerk of the Court.
               5.      The Husband is awarded the following marital property: the cherry
       bedroom suite (sic), the 1994 Jeep Cherokee, the Sea Sprite boat; 25% (twenty five
       percent) of the proceeds of the sale of the marital residence after deduction of the
       mortgage, the costs of sale, and the $75,000.00 allocation to the Wife; 25% (twenty-
       five percent) of the Tahoe proceeds on deposit with the Clerk of the Court.

Defendant appealed the trial court’s decision claiming entitlement to a portion of the $75,000.00
returned to Plaintiff and alleging that half of that amount was a premarital gift made to him when
the home was titled in both parties names prior to marriage.

        The standard of review in this matter is de novo with a presumption that the court’s findings
are correct unless the evidence preponderate against those findings.

                We review the findings of fact by the trial court de novo upon the record of
       the trial court, accompanied by a presumption of correctness of the findings, unless
       the preponderance of the evidence is otherwise. Tenn. R. App. P. 13(d). Because the
       trial judge is in a better position to weigh and evaluate the credibility of the witnesses
       who testify orally, we give great weight to the trial judge’s findings on issues
       involving credibility of witnesses. Gillock v. Board of Prof’l Responsibility, 656
       S.W.2d 365, 367 (Tenn. 1983).




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               In cases involving issues of classification and distribution of property, a trial
       court’s decisions enjoy a presumption of correctness. Dunlap v. Dunlap, 996 S.W.2d
       803, 814 (Tenn. Ct. App. 1998). Accordingly, a trial court’s division of the marital
       estate should be presumed proper unless the evidence preponderates otherwise.
       Lancaster v. Lancaster, 671 S.W.2d 501, 502 (Tenn. Ct. App. 1984).

Deneau v. Deneau, No. M2000-00238-COA-R3-CV, 2001 WL 177063, at *2-3 (Tenn. Ct. App. Feb.
23, 2001).

        Defendant contributed nothing toward the initial purchase of the home while Plaintiff
contributed $75,000.00 for the down payment when the home was initially purchased. Plaintiff and
her parents also provided most of the money used to make payments on the property while Defendant
provided virtually no assistance with payments on the marital home, or any other expenses of the
marriage. Even though the property was titled in the names of both parties as tenants in common
prior to the marriage, Plaintiff testified that such was done only in anticipation of the marriage for
use as a marital residence. No evidence was introduced showing that any portion of the property was
intended as a personal gift to Defendant.

        Further, after their marriage, the property became the marital home and was treated as marital
property by both parties. Due to the joint ownership, wife’s testimony, and treatment of the property
by both parties as marital property, the evidence does not preponderate against the court’s finding
that the home was marital property. The doctrine of transmutation can be applied to this situation.

              Another panel of this Court recognized recently that separate property may
       become part of the marital estate if its owner treats it as if it were marital property.
       Professor Clark describes the doctrine of transmutation as follows:

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

       2 H. Clark, The Law of Domestic Relations in the United States § 16.2, at 185 (1987).




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Batson v. Batson, 769 S.W.2d 849, 858 (Tenn. Ct. App. 1988). Plaintiff’s testimony clearly
indicates her intent to purchase a home for use as a marital residence, and this property was treated
by both parties as marital.

       Once the property is classified as marital, the court may make an equitable division of the
property.

       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). Thus, after the property is classified, the court is to make an equitable
       division of the marital property. The court is to consider several factors in its
       distribution, including the duration of the marriage, the contribution to and
       dissipation of the marital estate, the value of the separate property, and the estate of
       each party at the time of the marriage. Tenn.Code Ann. § 36-4-121(c) (listing the
       factors to be considered). The court may consider any other factors necessary in
       determining the equities between the parties, Tenn.Code Ann. § 36-4-121(c)(11),
       except that division of the marital property is to be made without regard to marital
       fault. Tenn.Code Ann. § 36-4-121(a)(1).

              The court’s distribution of property “is not achieved by a mechanical
       application of the statutory factors, but rather by considering and weighing the most
       relevant factors in light of the unique facts of the case.” Batson, 769 S.W.2d at 859.
       An equitable distribution is not necessarily an equal one. Word v. Word, 937 S.W.2d
       931, 933 (Tenn.Ct.App.1996). Thus, a division is not rendered inequitable simply
       because it is not precisely equal, Cohen v. Cohen, 937 S.W.2d 823, 832 (Tenn.1996);
       Kinard v. Kinard, 986 S.W.2d 220, 230 (Tenn.Ct.App.1998). Similarly, equity does
       not require that each party receive a share of every piece of marital property. King
       v. King, 986 S.W.2d 216, 219 (Tenn.Ct.App. 1998); Brown v. Brown, 913 S.W.2d
       163, 168 (Tenn.Ct.App.1994).

               The trial court’s goal in a divorce case is to divide the marital property in an
       essentially equitable manner, and equity in such cases is dependent on the facts of
       each case. The fairness of a particular division of property between two divorcing
       parties is judged upon its final results. Watters v. Watters, 959 S.W.2d 585, 591
       (Tenn.Ct.App.1997).

               Again, however, some general principles have been developed. Because
       dividing a marital estate is a process guided by considering all relevant factors,
       including those listed in Tenn.Code Ann. § 36-4-121(c), in light of the facts of a
       particular case, a trial court has a great deal of discretion concerning the manner in
       which it divides marital property. Smith v. Smith, 984 S.W.2d 606, 609
       (Tenn.Ct.App.1997); Wallace v. Wallace, 733 S.W.2d 102, 106 (Tenn.Ct.App.1987).
       Appellate courts ordinarily defer to the trial judge’s decision unless it is inconsistent


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       with the factors in Tenn.Code Ann. § 36-4-121(c), or is not supported by a
       preponderance of the evidence. Brown, 913 S.W.2d at 168; Wilson v. Moore, 929
       S.W.2d at 372.

Lewis v. Frances, No. M1998-00946-COA-R3-CV, 2001 WL 219662 (Tenn.Ct.App. March 7,
2001). The trial court specifically found that the marriage was of short duration and that Defendant
wasted and dissipated most of the marital assets. The court also considered the assets each party
brought to the marriage. We find no evidence that the distribution of the equity in the marital
residence was not equitable. In fact, it appears that the trial court was most generous to Defendant
in this case.

        However, even if the court were wrong in classifying the property as marital, this Court still
finds the overall effect of the trial court’s distribution to be equitable. Such was the finding by this
Court in Batson:

                Both Dr. Batson and Mrs. Batson take issue with the manner in which the trial
        court divided their property. They insist that the trial court erred in classifying
        specific assets as either marital or separate property and that the distribution of the
        marital estate was inequitable. We find that the trial court misclassified several
        assets and failed to deal with others. However, we find that the overall effect of the
        trial court’s distribution is equitable. Therefore, we affirm the trial court’s division
        of the Batsons’ property subject to the modifications discussed below.

Batson, 769 S.W.2d at 854-55.

        As is true in most cases involving divorce, classification of property and distribution of
property, this case is intensely fact-driven. The trial court found the marital home of the parties to
be marital property and the evidence does not preponderate against this determination. The trial
court found, and the evidence clearly establishes, that Defendant came into the marriage with
practically nothing and made infinitesimal contributions to the marital estate. The marriage survived
through the income of Plaintiff and massive contributions made by Plaintiff’s parents. Defendant
dissipated his own income and the marital estate because of his addiction to drugs and gambling.
He now seeks to claim that Plaintiff made a gift to him prior to their marriage by footing the bills
for a down payment on the soon-to-be marital home and that this gift survived his prolific dissipation
of property, to the accumulation of which he provided practically nothing. The trial judge did not
allow this to happen, and, as we find his judgment to be eminently correct, it is in all respects
affirmed. The case is remanded for such further proceedings as may be necessary.

        Costs of the cause are assessed against Appellant.


                                                        ___________________________________
                                                        WILLIAM B. CAIN, JUDGE


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