                  IN THE COURT OF APPEALS OF TENNESSEE
                               AT JACKSON


EDWIN CARROLL ELAM,                   )
                                      )
          Plaintiff/Counter Deft./    ) McNairy Chancery No. 7187
          Third Party Deft./Appellee, )
                                      ) Appeal No. 02A01-9812-CH-00362
VS.                                   )
                                      )
MARTHA PEARL (SWINEY) ELAM,           )

          Defendant/Counter Pltf./ )
                                      )       FILED
          Appellant,                  )
                                      )     August 30, 1999
CANDICE LOU GARRISON,                 )
                                      )    Cecil Crowson, Jr.
          Third Party Deft./          )   Appellate Court Clerk
          Appellant.                  )

         APPEAL FROM THE CHANCERY COURT OF McNAIRY COUNTY
                       AT SELMER, TENNESSEE
           THE HONORABLE DEWEY C. WHITENTON, CHANCELLOR

CHADWICK G. HUNT
REYNOLDS, REYNOLDS & HUNT
Savannah, Tennessee
Attorney for Appellants

CHARLES L. TROTTER, JR.
TROTTER & JACKSON, P.L.L.C.
Huntingdon, Tennessee
Attorney for Appellee




REVERSED AND REMANDED




                                                           ALAN E. HIGHERS, J.



CONCUR:

DAVID R. FARMER, J.

HOLLY KIRBY LILLARD, J.


      Martha Elam (“Wife” or “Appellant”) appeals the trial court’s order which awarded
Edwin Elam (“Husband” or “Appellee”) an undivided 1/3 interest in the 171-acre tract of real

property after deducting the sum of $24,750 (the value of Wife’s separate interest at the

time of inheritance), and awarded Husband an equitable lien on the 60-acre tract of land

(the “Homeplace”) for ½ of the undetermined value over $32,800. The trial court awarded

Wife an interest in the 171-acre property in the amount of $24,750 and a 2/3 interest in

value of said property over that amount. The trial court refused to set aside the conveyance

of the Homeplace tract from Wife to Wife’s daughter, Candice Garrison (“Garrison” or

“Appellant”), but made it subject to the equitable lien of Husband.



                              I. Factual and Procedural History



       The Elams married on August 4, 1966. Husband sued Wife for divorce on October

21, 1997. W ife filed her own complaint on October 30, 1997. Husband commenced a third-

party action on December 16, 1997 against Garrison to set aside a conveyance of marital

real estate from Wife to her daughter, Garrison. The Chancellor consolidated the cases

and tried them on May 8, 1998 without a jury.



       In 1986 Wife’s mother died testate. Wife inherited an interest in two pieces of real

estate at the heart of this litigation. One is known as the Homeplace, which includes a

house and 60 acres of land. The other is known simply as the 171-acre farm. Wife took the

Homeplace outright and inherited a ½ undivided interest with her brother in the 171-acre

farm. On October 2, 1987, Wife and Husband bought Wife’s brother’s ½ interest for $7,500

as tenants by the entirety.



       Upon stipulation of the parties, the agreed value of the Homeplace at the time of the

inheritance was $32,800. Husband worked on and improved the Homeplace, including the

surrounding acreage. The Elams took up residence at the Homeplace in 1996. Husband

testified that over $102,000 was spent in refurbishing the Homeplace and that in his

opinion the total value of the land and improvements was approximately $190,000. Mr.

Mark Alexander, a licensed appraiser, testified that based upon his survey of the



                                             2
Homeplace, the value of the home and improvements was $75,000 - $80,000.



       Wife conveyed the Homeplace to Garrison on September 16, 1997. Husband

moved the court to set aside the conveyance. The Chancellor overruled Husband’s motion

but awarded Husband an equitable lien upon the property for ½ of the undetermined value

over and above the $32,800 (the stipulated value at the time of inheritance). The

Chancellor ordered the property sold. On appeal, Wife contends that the trial court erred

in ordering the property sold without giving Wife an opportunity to buy out Husband’s

interest.



       Wife also inherited a ½ interest in the 171-acre farm pursuant to her mother’s will.

Wife and Husband purchased the other ½ interest from Wife’s brother for $7,500. Husband

later entered into a mining lease with Adamsville Sand and Gravel to excavate large gravel

deposits located on this tract. Husband testified that in his opinion the value of the 171-

acre tract was approximately $300,000. The appraiser testified the value of the land was

$180,000. The appraiser further testified that he was only licensed to appraise commercial

property up to $250,000 and that in his opinion the mineral rights would cause the value

of the property to exceed this amount.



       The court held that as a result of transmutation, Husband was entitled to an

undivided 1/3 interest in the 171-acre tract after deducting $24,750 (the stipulated value

of Wife’s interest at the time of inheritance). This property was also ordered sold if the

parties could not reach a settlement within 90 days from the entry of the order. Wife argues

that she should have been awarded her initial ½ interest in this property and an equal

share of the ½ interest purchased by Husband and Wife, resulting in 3/4 interest to Wife

and 1/4 interest to Husband. Husband argues that the trial court erred in awarding him a

1/3 interest in the property. Husband asserts he should have been awarded ½ interest in

the 171-acre tract after setting apart $24,750 for Wife’s separate interest.



                                   II. Property Division



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       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).



A. The Homeplace

       Wife inherited the Homeplace when her mother died in 1986. From the outset,

Husband worked on and improved the Homeplace, including the surrounding acreage. The

Homeplace house itself dated to 1909 and has historical significance, but Wife

acknowledged at trial it was not in good condition when she inherited it. Boards were

rotted, and the back porch was unusable. The porch was partially rotted and leaked. The

electrical wiring was antiquated.



       From the time Wife inherited the Homeplace, Husband built fences, repaired the

barn and built sheds. As soon as the tenants left in 1989 or 1990, the Elams began

rebuilding the house. Husband borrowed money to pay for the improvements on the

Homeplace. He firmed up parts of the flooring. He sheetrocked the walls. He put down

baseboards. He added new windows, new doors, new ceiling, new flooring, new trim and

replaced the siding. He rewired and replumbed. When the Elams sold their house at River

Heights in Crump, the Elams paid the mortgage and invested the $25,000 equity in the

Homeplace. After selling the house at River Heights, the Elams took up residence at the

Homeplace. Although the records were destroyed in a fire, Husband estimated he

ultimately spent $102,000 on the Homeplace house itself and another $25,000 on

improvements to the Homeplace grounds and the 171-acre farm.



       Prior to trial, and unbeknownst to Husband, Wife conveyed the Homeplace to her

daughter by a previous marriage, Candice Lou Garrison. Husband commenced a third

party action against Ms. Garrison to set aside a conveyance of marital real estate from



                                              4
Wife to Garrison.



       At trial, Husband testified that the Homeplace was worth, in his estimation, $190,000

($65,000 for the 60 acres of land, and $125,000 for the house and outbuildings). An

appraiser testified that in his opinion the Homeplace was worth $75,000. Wife did not offer

her personal opinion. Tax appraisal records were introduced which valued the Homeplace

at $32,800 at the time of inheritance in 1986.



       At the conclusion of the trial, the Chancellor found that there were no grounds for

setting aside the deed executed by Wife to her daughter, Appellant Garrison, which was

signed and delivered prior to separation. The trial court found that the Homeplace was

worth approximately $32,800 at the time of inheritance and had increased in value due to

improvements. The trial court found Husband to be entitled to ½ of the undetermined value

over $32,800 and awarded him an equitable lien on said property. The trial court then

ordered the property sold if no agreement was reached by the parties within 90 days.



       Wife argues that the Chancellor abused his discretion in ordering the sale in light

of the fact that neither of the original parties owns the property and the fact that the

Chancellor refused to set aside the conveyance. Wife also argues that the Chancellor is

forcing the sale of property that has been in the possession of Wife’s family for

generations. Wife asserts that if the Court had granted weight to the testimony of the

appraiser, it could easily have ordered Wife to pay ½ of the value over $32,800 to Husband

and allowed the inherited property to remain in the family. Wife testified at trial that she was

prepared to pay Husband for his interest in order to keep the property she had inherited

and which had long been in her family.



       In light of the fact that Wife inherited this property from her family, and the property

has been in Wife’s family for generations, this Court is of the opinion that Wife should be

allowed to pay Husband his interest. Additionally, forcing the sale of the property will result

in harsh tax consequences due to the large capital gain which will arise from the sale.



                                               5
Tennessee Code Annotated §36-4-121(c) directs the court to consider tax consequences

as one of the relevant factors in making an equitable division of marital property. Tenn.

Code Ann. §36-4-121(c)(9).



       Husband contributed to the increase in value of the property and is entitled to ½ of

the increase in value as per the trial court’s order. The parties have not challenged the trial

court’s decision not to set aside the transfer to Garrison, and this Court will not address

that ruling. However, the increase in value of the property was part of the “marital pot” to

be divided between Husband and Wife by the trial court, and Wife shall be ultimately liable

for paying Husband his interest in cash. However, if payment is not made to Husband, the

property shall be sold, with Husband receiving his interest and Garrison, the owner of the

property, receiving the balance.



       For the above noted reasons, the trial court erred in ordering the Homeplace

property sold. Wife shall be given the opportunity to pay Husband the value of his interest

in the property. This matter shall be remanded to the trial court for a determination of value

of the Homeplace.



B. 171-acre Farm

       Wife also inherited a ½ interest in a 171-acre tract of land upon the death of her

mother. Husband and Wife then purchased the outstanding ½ interest in the property from

Wife’s brother for $7,500 as tenants by the entireties. At trial, tax appraisal records were

introduced which valued the property at $49,000 at the time of inheritance.

       The 171-acre farm as inherited by Wife was unimproved, but relatives of both Elams

adjoin the property. Husband negotiated a favorable written lease in late 1996 with

Adamsville Sand and Gravel Company to take advantage of the gravel deposits on the

property. The Elam’s 1997 U.S. Individual Income Tax Return reflects gravel royalties

received of $22,493. Besides the gravel lease, Husband cleared parts of the property as

needed, improved the roads on the farm and bushhogged the entire 171 acres annually.




                                              6
       At trial, Husband valued the 171-acre farm, including mineral rights, at $300,000.

Wife’s trial expert valued the 171-acre farm at $180,000 excluding mineral rights. The

expert testified that he was licensed to appraise property up to $250,000 and that, in his

opinion, the value of the property including mineral rights might exceed $250,000.



       The trial court found that Wife inherited a ½ undivided interest in the tract under her

mother’s will and Husband and Wife purchased the remaining ½ interest in said tract, all

of which is subject to a gravel operation. The trial court ruled that, after deducting the value

of ½ of the real estate value of $49,000 in 1986 ( $24,750), Husband was entitled to an

undivided 1/3 interest in the undetermined value of said land and gravel interest and Wife

was entitled to a 2/3 interest in the same. The trial court ruled that if the parties could not

divide the property according to his order within ninety days, the tract of land should be

sold and the proceeds divided as per the determined interest of each.



       On appeal, Wife contends that Husband is only entitled to a 1/4 interest in the

property, as his equal share of the ½ interest purchased by Husband and Wife from Wife’s

brother. Wife further contends that the trial court should not have ordered the property

sold, but should have allowed Wife to pay Husband for his interest in the property.

Husband contends that after subtracting the value of W ife’s share of the property at the

time of inheritance, Husband is entitled to ½ of the increase in value.



       As with the Homeplace property, we find that the trial court erred in ordering the sale

of the 171-acre farm. Due to the fact that this property was inherited by Wife and has been

in Wife’s family for generations, and due to the great tax liability which will be imposed on

the parties with such a large capital gain, the trial court should have allowed Wife to retain

the land and pay Husband for his interest. Wife testified that she believed she would be

able to borrow the necessary money to pay Husband and pay it back out of the gravel

operation. The trial court should have set a value for the property and allowed Wife the

opportunity to pay Husband the value of his interest in the property.




                                               7
       With regard to the division of the 171-acre farm, we first note that the ½ interest

purchased by Husband and Wife as tenants in the entireties is clearly marital and should

be divided equally between the parties. Additionally, absent proof of transmutation, the

value of Wife’s ½ interest at the time of inheritance ($24,750) is clearly Wife’s separate

property. What remains to be divided is the increase in value of Wife’s ½ interest.



       In making its ruling, the Chancellor ruled that after deducting $24,750, Husband as

a result of transmutation is entitled to an undivided 1/3 interest in the land and gravel

interest. The doctrine of transmutation was addressed by this Court 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 the names 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.



       While transmutation might apply to the situation at hand, the trial court made no

mention of the property being treated in such a way as to give evidence of an intention that

the property become marital. There was no evidence that the parties took title to Wife’s

inherited ½ interest in joint tenancy, and therefore no presumption of a gift to the marital

estate. Furthermore, under the doctrine of transmutation, the value of the property at the

time of Wife’s inheritance (Wife’s separate property) could become marital property by

transmutation. Yet, under the trial court’s ruling, the value of Wife’s ½ interest at the time

of inheritance remains her separate property, but the increase in value of her ½ interest

became marital property by transmutation. It is inconsistent for the parties to treat W ife’s

original ½ interest as separate property, while treating the increase in value of same ½

interest as marital property.



                                              8
       It is more logical to this Court, that the trial court was attempting to divide the

increase in value between the parties, as it did with the Homeplace. An increase in the

value of separate property constitutes marital property if (1) it occurred during the marriage

and (2) the non-owner spouse made some substantial contribution to the preservation and

appreciation of the separate property. Cohen v. Cohen, 937 S.W.2d 823, 833 (Tenn.

1996). In the case of Harrison v. Harrison, 912 S.W.2d 124 (Tenn. 1995), the husband had

an interest in a tract of farmland which was found to be his separate property. The 45.5-

acre tract of farmland increased in value from $7,000 at the time of the parties marriage

to $1,361,750 at the time of their divorce. The sole cause of the appreciation in value was

the construction of a interstate highway across a portion of the larger 125-acre tract. The

Tennessee Supreme Court found that, as the sole cause of the appreciation in value was

the construction of the interstate, the wife’s activities did not substantially contribute to the

preservation and appreciation in value of the property. Id. at 127. The increase in value

remained the separate property of the husband. Id.



       In the case at hand, Husband clearly contributed to the increase in value of the

property and is therefore entitled to some portion of the increase in value of Wife’s

separate ½ interest. In keeping with the trial court’s ruling on the Homeplace, Husband

would be awarded ½ of the increase in value of Wife’s separate ½ interest in the 171-acre

farm. Wife would be awarded the value of her separate property at the time of inheritance

($24,750), Husband and Wife would equally divide the increase in value of Wife’s separate

½ interest, and Husband and Wife would equally divide the value of the remaining ½

interest which was clearly marital property. Simply stated, after first deducting Wife’s

$24,750 interest, Husband and Wife would share equally in the value above that amount.



       However, it is unclear from the record how much of the increase in the value of the

171-acre tract is the result of Husband’s activities in keeping up the land and Husband’s

efforts in obtaining the gravel lease, and how much of the increase in value is due to

simple appreciation or inflation. The tract of land was valued at $49,000 in 1986 and is now

valued at $180,000 to $300,000.



                                               9
       On remand, the trial court should take evidence to determine what percentage of

the increase in value is due to Husband’s efforts in maintaining the property and in

obtaining the gravel lease, and what percentage of the increase in value is due to simple

appreciation or inflation. Any increase in value to which Husband contributed should be

treated as marital property and divided between Husband and Wife. Alternatively, If the trial

court wishes to treat the property as marital by way of transmutation, we see no reason for

the trial court to set aside the original value of Wife’s ½ separate interest before dividing

the property between the parties.



       For all the foregoing reasons, the trial court erred in awarding Husband a 1/3

interest in the 171-acre farm after deducting the original value of Wife’s separate ½

interest. The trial court also erred in ordering the property sold without first assessing the

value of the property and allowing Wife to buy out Husband’s interest.




                                      III. Conclusion



       The judgment of the trial court is hereby reversed and remanded for further

proceedings consistent with this opinion. Costs of this appeal are taxed to Appellee, for

which execution may issue if necessary.




                                                         HIGHERS, J.



CONCUR:




                                             10
CRAWFORD, P.J., W.S.




FARMER, J.




                       11
