                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT KNOXVILLE
                                  November 15, 2005 Session

             DONNA LYNAE WATSON v. HAROLD GUY WATSON

                    Appeal from the Chancery Court for Grainger County
                      No. 04-019 Telford E. Forgety, Jr., Chancellor



                No. E2005-00369-COA-R3-CV - FILED DECEMBER 27, 2005


This is a divorce case. The parties, Donna Lynae Watson (“Wife”) and Harold Guy Watson
(“Husband”), ultimately stipulated to the existence of grounds for divorce and reached an agreement
pertaining to the disposition of much of their marital property. A bench trial was held to resolve the
parties’ disputed issues, which, among other things, included the issue of how the marital real
property should be disposed of in the overall division of the parties’ marital property. The trial court
awarded the marital real property to Wife, subject, however, to the mortgage on the property;
Husband appeals this action by the trial court. We affirm.

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

CHARLES D. SUSANO , JR., J., delivered the opinion of the court, in which HERSCHEL P. FRANKS, P.J.,
and D. MICHAEL SWINEY , J., joined.

Johnny V. Dunaway, LaFollette, Tennessee, for the appellant, Harold Guy Watson.

Mark A. Cowan, Morristown, Tennessee, for the appellee, Donna Lynae Watson.


                                              OPINION

                                                   I.

       The parties were married on November 22, 2000. Prior to their marriage, they maintained
two separate residences. Husband owned a mobile home on one acre of land in Grainger County,
while Wife owned a house and barn on eight acres of land in Madisonville. After deciding to get
married and determining that they should purchase a house together, Wife sold her Madisonville
property, clearing a net of $30,000 in equity. Husband sold his mobile home for $2,500.
        In May, 2001, the parties jointly purchased 12.23 acres of land in Grainger County from
Husband’s uncle. At one time, this property had been a part of a 150-acre tract owned by Husband’s
grandmother; however, since the grandmother’s ownership, several portions of the larger tract had
been sold to individuals outside of Husband’s family. Wife made the $29,000 down payment on the
parties’ 12.23 acres out of the $30,000 from the sale of her Madisonville property. Husband did not
contribute any funds to the down payment on the property.

         The parties used their newly-acquired property as collateral to obtain a loan to finance the
building of their marital residence. After the house was built, Wife primed and painted its interior.
Both parties assisted in the general maintenance of the real property, i.e., the mowing and clearing
of the land, the feeding of Wife’s horses, etc. The household bills were paid out of the parties’ joint
checking account, which consisted of both parties’ wages. The parties resided in the marital
residence for approximately two years.

        On August 22, 2003, after two years and nine months of marriage, Wife filed for divorce on
various grounds. As a part of her allegations pertaining to divorce, she also alluded to the provisions
of Tenn. Code Ann. § 36-4-129(b).1 Husband’s answer and counterclaim stipulated the existence
of divorce grounds, cited irreconcilable differences, and alleged inappropriate marital conduct on the
part of Wife. The trial court entered a final judgment of divorce, citing § 36-4-129(b) and noting the
parties’ agreed division of several items of marital property. The judgment went on to reserve
several disputed issues, including the disposition of the marital real property and the associated
mortgage. At the time of the divorce, the parties’ interest in the marital real property amounted to
a net equity of $40,000, representing a gross value of $115,000 subject to a mortgage of $75,000.

       A hearing was held on the disputed issues of spousal support, the payment of court costs and
attorney’s fees, and the disposition of the marital real property and mortgage, certain farm
equipment, and Husband’s pension. The trial court’s order, as it pertains to each issue, is set forth
below:

                    Wife is awarded the parties’ marital residence2 and shall be solely
                    responsible for the debt on it. She shall make a good-faith effort to
                    refinance the property to relieve Husband of the current mortgage.


         1
             Tenn. Code Ann. § 36-4-129(b) (2005) provides as follows:

                    (b) The court may, upon stipulation to or proof of any ground for divorce pursuant
                    to § 36-4-101, grant a divorce to the party who was less at fault or, if either or both
                    parties are entitled to a divorce, declare the parties to be divorced, rather than
                    awarding a divorce to either party alone.


         2
           The marital real property, i.e., the house and the acreage, originally included the one acre upon which
Husband’s premarital mobile home had been located. Prior to the hearing, W ife executed a quitclaim deed transferring
any interest she had in that one acre to Husband.

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               Husband shall quitclaim his interest in the property to Wife within 30
               days after the entry of this order. Within that same timeframe,
               Husband shall give Wife all his keys and garage-door openers to the
               house, giving Wife advance notice so she can be present when the
               keys and openers are delivered.

               Husband is awarded the parties’ tractor and related farming
               implements.

               Husband is awarded all his pension and retirement benefits. Wife’s
               interest in them is divested from her and vested in Husband.

               No spousal support is awarded to either party.

               Each party shall pay his or her own attorney’s fees.

               Neither party is awarded discretionary costs.

               Court costs shall be taxed equally to the parties . . . .

(Paragraph numbering in original omitted). Husband filed a Motion for New Trial and/or to Alter
or Amend the Judgment, contending that the weight of the evidence entitled him to ownership of the
marital real property. The trial court denied Husband’s motion. He now brings this appeal.

                                                   II.

       Husband states his sole issue on appeal as follows:

               Did the [t]rial [c]ourt err and/or reach an unjust result in its division of
               marital assets by awarding the real estate to [Wife] as opposed to
               awarding the real estate to [Husband] and allowing him to pay [Wife]
               in cash the net equity value of the property?

Husband’s issue suggests that he does not contest the propriety of Wife receiving the net equity in
the marital real property as much as he objects to her, rather than him, getting that property. He feels
that it would be more appropriate to “deliver” the net equity to Wife in the form of cash rather than
by granting her ownership of that property subject to the mortgage. He wants the asset and is willing
to assume the debt. As can be seen, Husband’s sole issue does not attack the overall division of
marital property as being inequitable.




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                                                 III.

        Our review of this non-jury case is de novo upon the record with a presumption of correctness
as to the trial court’s factual findings, “unless the preponderance of the evidence is otherwise.”
Tenn. R. App. P. 13(d). The trial court’s conclusions of law are not accorded the same deference.
Brumit v. Brumit, 948 S.W.2d 739, 740 (Tenn. Ct. App. 1997). The trial court has broad discretion
in dividing marital property, and accordingly, its judgment should be given great weight on appeal
and presumed proper unless the evidence preponderates otherwise. Batson v. Batson, 769 S.W.2d
849, 859 (Tenn. Ct. App. 1988). The trial court can only be found to have abused its discretion when
it “applie[s] an incorrect legal standard, or reache[s] a decision which is against logic or reasoning
that cause[s] an injustice to the party complaining.” State v. Shirley, 6 S.W.3d 243, 247 (Tenn.
1999) (quoting State v. Shuck, 953 S.W.2d 662, 669 (Tenn. 1997)). This standard does not permit
the appellate court to substitute its judgment for that of the trial court. Myint v. Allstate Ins. Co.,
970 S.W.2d 920, 927 (Tenn. 1998).

________________________




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                                                          IV.

                                                           A.

         In a divorce case, the trial court is charged with the task of making an equitable division of
the marital property and debt without regard to fault. Tenn. Code Ann. § 36-4-121(a) (2005). The
trial court is under no obligation to divide the parties’ marital property equally, but rather equitably,
for “[t]he division of the estate is not rendered inequitable simply because it is not mathematically
equal, or because each party did not receive a share of every item of marital property.” King v. King,
986 S.W.2d 216, 219 (Tenn. Ct. App. 1998) (citation omitted). In dividing marital property, courts
are required to allocate interest in a manner consistent with the relevant statutory factors set forth in
Tenn. Code Ann. § 36-4-121(c).3 Brown v. Brown, 913 S.W.2d 163, 168 (Tenn. Ct. App. 1994).

        An equitable property division “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. Furthermore, “[i]n cases involving a marriage of relatively
short duration, it is appropriate to divide the property in a way that, as nearly as possible, places the



        3
            Tenn. Code Ann. § 36-4-121(c) (2005) provides as follows:

                  (c) 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 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 associate
                  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-
parties in the same position they would have been in had the marriage never taken place.” Id.
(citation omitted).

        After hearing testimony from both parties in this case, the trial court stated the following with
respect to its decision as it pertained to the marital real property:

                Both [p]arties want this land. Both [p]arties are pretty passionate
                about wanting this land. I understand from the standpoint of both
                [p]arties why they are passionate. The husband has family
                surrounding this piece of property. The wife sold her piece of
                property to move to this piece of property. And the wife provided
                twenty-nine thousand dollars in down payment in order to buy the
                piece of property. Both [p]arties have worked on the piece of
                property. Both [p]arties have put their heart and soul in it. But, the
                bottom line is I cannot give the property to both [p]arties. Both
                [p]arties can’t have it. You can’t chop a house in two. So under
                these circumstances I’ve already told you that I did not deem it
                appropriate to order the property put up and sold. And so the only
                thing I’m left with is to awar[d] it to one or the other. And in this
                case the Court deems it appropriate to award it to the wife.

         Husband contends that the trial court abused its discretion when it awarded the marital real
property and mortgage to Wife because, according to Husband, the court made “the duration of the
marriage the all-encompassing and determinative factor.” He argues that the court failed to consider
other important and relevant statutory factors. He further argues that the trial court simply ignored
his contribution to the acquisition, preservation, and appreciation of the marital real property. See
Tenn. Code Ann. § 36-4-121(c)(5). He points to the fact that it was a member of his family who sold
the property to the parties; provided initial assistance in digging the house foundation; and cleared
the property of brush. He highlights the fact that, since his income was twice that of Wife’s income,4
he contributed more to the payment of the household bills during the marriage. He further argues
that, “[s]ince [he] had family members in the area and since the property once belonged to a larger
tract which had long been in the family, the [t]rial [c]ourt should have awarded the marital home to
[Husband] with the provision that he would pay [Wife] for her portion of the equity therein.” See
Tenn. Code Ann. § 36-4-121(c)(11).

        Our analysis of this case in the context of the most relevant statutory factors set forth in Tenn.
Code Ann. § 36-4-121(c) – the duration of the marriage, the parties’ contribution to the property, the
economic circumstances of each party (including other property distribution between the parties),
and even Husband’s family ties to the property – convinces us that the trial court did not abuse its
discretion in awarding title in the parties’ marital real property to Wife. Each of the parties clearly


        4
          The record reflects that Husband’s annual income during the marriage was approximately $75,000. Wife
earned approximately $35,000 per year.

                                                     -6-
possess substantial equities, be it sweat, monetary, familial, or need-based, in the marital real
property. Simply stated, however, the evidence does not preponderate against the award to Wife in
the overall division. Therefore, we cannot say that the trial court’s decision to award this property,
subject to the mortgage, to Wife, as opposed to Husband, was against logic or reasoning.

                                                  B.

        As a side argument, Husband attempts to find error in the trial court’s treatment of Wife’s
down payment contribution. He contends that the trial court improperly treated the contribution as
“separate property” because, so his argument goes, it found that she was automatically entitled to
$29,000 of the marital estate’s $40,000 in equity. Husband points to the following discussion by the
trial court to support his contention:

               There is some testimony really conceded that [Wife] provided some
               twenty-nine thousand dollars ($29,000.00) of what would have been
               her separate money. Money derived from an asset that she owned
               prior to the marriage. And she provided it as part of the down
               payment for the property that the [p]arties built their house upon,
               which is now at issue before the Court.

               The evidence here is the [p]arties have not disputed this, neither side,
               they agree that the value of the house and the marital property is a
               hundred and fifteen thousand dollars ($115,000.00) and the mortgage
               is approximately seventy-five thousand ($75,000.00). That leaves a
               difference of forty thousand dollars ($40,000.00) in equity. Of the
               forty thousand dollars in equity [Wife] is certainly one way or another
               entitled to get her twenty-nine thousand dollars ($29,000.00) back.
               Because that’s twenty-nine thousand dollars that she owned prior to
               the marriage and really the husband has made no issue about that.
               He’s conceded that [Wife] provided some money, some separate
               money. And he’s not really made a big issue about that. And
               correctly so on his part, I think. Because she is entitled to get it back.

Husband further cites Smith v. Smith, No. M2003-02242-COA-R3-CV, 2004 WL 2094508, at *3
(Tenn. Ct. App. M.S., filed September 20, 2004), stressing the idea that “the task before the [trial]
court is to make an equitable division of the marital property, not to repay either spouse exactly for
amounts they may have contributed.” Id. We agree with the proposition as stated in Smith.
Equitable division of marital property does not necessarily equate to the strict repayment of each
parties’ contribution. See Tenn. Code Ann. § 36-4-121(c).

        With all due respect to Husband, however, his argument that the trial court treated Wife’s
contribution as “separate property” severely misses the mark and confuses the issue. The trial court
did not find that Wife’s down payment on the purchase of the property automatically entitled her to


                                                  -7-
the repayment of $29,000 out of the net equity in this piece of marital property. The trial court held
that the property, subject to the mortgage, was a part of the net marital estate, subject to equitable
division under Tenn. Code Ann. § 36-4-121. It then determined, after evaluating the factors with
respect to how to divide marital property, that Wife, primarily in recognition of her contribution to
the acquisition of the property, was equitably entitled to the net equity in the property. See Tenn.
Code Ann. § 36-4-121(c)(5); Smith, 2004 WL 2094508, at *1-*3. Simply stated, the court found,
we believe correctly, that the subject real property was a marital asset; that the most significant
contribution to the present value of the net equity was Wife’s initial contribution of $29,000; and that
Wife should receive the net equity by way of ownership of the marital real property, subject to the
mortgage, as a part of the overall equitable division of the net marital estate. Given the facts of this
case, we cannot say that the court below abused its discretion in its disposition of the marital real
property and the subject debt or in the overall division of the net marital property.

                                                  V.

        Wife requests an award of attorney’s fees on this appeal, arguing entitlement to such an
award because of her “very limited means,” the fact that Husband’s income is more than double her
income, and because this is the third time she “has had to defend what is essentially an equal
property division.” Wife presented the same basic argument for attorney’s fees at the court below.
The trial court determined that, because this was not a case for alimony given the property division,
the short duration of the marriage, and Wife’s ability to earn an adequate income, attorney’s fees
were not appropriate. We agree with the trial court’s approach. Accordingly, we also find that this
is not an appropriate case for an award of fees for professional services rendered on appeal. We
therefore decline to award such fees.

                                                  VI.

       The judgment of the trial court is affirmed. This case is remanded to the trial court for
enforcement of its judgment and for collection of costs assessed below, all pursuant to applicable
law. Costs on appeal are taxed to the appellant, Harold Guy Watson.



                                                        _______________________________
                                                        CHARLES D. SUSANO, JR., JUDGE




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