                     IN THE COURT OF APPEALS OF TENNESSEE
                                 AT NASHVILLE
                                 Assigned on Briefs February 21, 2006

                         VICKI LYNN FOX v. TERRY WAYNE FOX

                         Appeal from the Chancery Court for Putnam County
                               No. 02-268   Vernon Neal, Chancellor



                     No. M2004-02616-COA-R3-CV - Filed on September 1, 2006


PATRICIA J. COTTRELL, J., concurring.

        I concur in the results reached by the majority and agree with most of the reasoning.
However, I do not fully agree with the analysis used to determine whether the Carol Lane Property
and the Buffalo Valley Road Property were marital or separate. The analysis used by the majority
starts with the presumption that property acquired during the marriage is marital, relying on the
definition of marital property in Tenn. Code Ann. § 36-4-121(b)(1)(A). While the opinion
acknowledges in a footnote the definition of separate property that includes property acquired in
exchange for pre-marital separately owned property, Tenn. Code Ann. § 36-4-121(b)(2)(B), the
analysis fails to take that definition into account.1 Logically, that definition should also create a
“rebuttable presumption” that is equal in weight to the one used as the basis for the analysis herein.

        I see no basis for choosing one definition over another to establish a presumption that must
be rebutted, thereby creating shifting burdens of proof. Classification of property is a fact-intensive
inquiry, to be conducted using the statutory definitions as interpreted by case law. Under the facts
of this case, I agree with the conclusion reached by the majority because the parties treated the
property as marital. That is often the deciding factor where application of the statutory definitions
alone leads to unclear conclusions. That determination is simply a question of fact that can be
determined without resort to presumptions and shifting burdens.

                                                                  ____________________________________
                                                                  PATRICIA J. COTTRELL, JUDGE


         1
           Footnote 12 of the majority opinion states that the analysis begins with the presumption that property acquired
during marriage is marital, but that the presumption can be rebutted by proof it was acquired with pre-marital separate
property. At that point, the footnote states that the court will classify the property as separate. Of course, that analysis
leaves out the next step, which is proof that through his or her conduct, the party owning the separate property the parties
showed an intent to convert the property to marital. That is essentially how the majority’s analysis proceeded herein with
regard to the Carol Lane Property, except that the analysis omitted the step that recognized that the property was acquired
using Ms. Fox’s pre-marital assets. Consequently, there was no shifting of the burden as explained in footnote 12. In
any event, I do not agree that the analysis must begin with the presumption it was marital property.
