                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                         JANUARY 20, 2005 Session

              STANLEY DAVID KAHN v. RANDA LIPMAN KAHN

                   Direct Appeal from the Circuit Court for Shelby County
                        No. CT-003684-01     Robert A. Lanier, Judge



                      No. W2003-02611-COA-R3-CV - Filed June 6, 2005


This appeal arises out of a divorce between the parties. In its decree, the trial court declared the
parties were divorced, divided the marital property and the debts of the parties, ordered the husband
to pay the entire balance of the guardian ad litem fees, named the wife the primary residential parent,
and ordered the husband to pay wife child support. The husband now appeals to this Court. For the
following reasons, we affirm in part, reverse in part, and remand for further proceedings.


  Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Affirmed in Part; Reversed in
                                   Part and Remanded

ALAN E. HIGHERS, J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., W.S,.
and HOLLY M. KIRBY , J., joined.

Richard A.Gordon, Memphis, TN, for Appellant

Caren B. Nichol and Blake W. Bourland, Memphis, TN, for Appellee

                                             OPINION

                                  Facts and Procedural History

         Randa L. Kahn (“Wife” or “Appellee”) and Stanley D. Kahn (“Husband” or “Appellant”)
were married on May 9, 1982. It was the first marriage for both parties. Husband and Wife adopted
two children during the marriage: Stephen D. Kahn (“Son”) (d.o.b. 6/28/1991) and Emily D. Kahn
(“Daughter”) (d.o.b. 6/3/1993). Though he has improved, Son previously exhibited behavioral
problems which resulted in his suspension from school on two occasions. He has been diagnosed
with attention deficit hyperactivity disorder and takes medication for this condition as well as
anxiety. At four and a half months old, Daughter was diagnosed with cancer and received treatment
at St. Jude Children’s Hospital. Husband and Wife alternated staying in the hospital with Daughter
while she received treatment.Daughter no longer suffers from cancer and excels in school.
        Wife holds a bachelor’s degree in public relations and graphic design. She is now employed
as a general manager for the Memphis Flea Market and earns approximately $65,000.00 per year.
Husband attended college but never graduated. He has since worked in the area of photograph
equipment repair. One such venture begun by Husband was a business called Stan’s Photos, an
unincorporated business. However, Husband ran up a debt of approximately $23,000.00 owed to
the IRS for failure to pay an employees’ withholding tax for the last three quarters before the
business was shut down.1 Though Husband’s parents gave Husband the money to pay off the debt
to the IRS, he did not do so. Additionally, during the marriage, Husband incurred a business loan
of $30,000.00 with Morgan Stanley. Since the closing of Stan’s Photos, Husband has created two
new businesses: Photo Applications, which offers the service of optical equipment repair, and
Graphic Applications, which concerns digital photography. Husband testified that thirty-five percent
(35%) of his gross sales are the profits from his business. Husband’s gross receipts were
$218,214.00 for 2001 and $199,000.00 for 2002.

        The largest asset of the marital estate is the marital residence, having a value of $220,500.00
with a mortgage of $95,621.00. Wife has paid the majority of house notes as well as the household
expenses such as utilities and telephone. After Wife filed her complaint for divorce, Husband was
ordered2 to pay the bills associated with the marital residence. When he failed to do so in a timely
manner each month, Memphis Light, Gas & Water threatened to cut off utility services to the home,
and the telephone was cut off on four occasions. Additionally, Husband’s grandmother gave
Husband a parcel of land located on Summer Avenue (the “Summer property”) around 1995 valued
at $30,800.00.3 Further, Wife has $60,796.03 in a 401(k) retirement plan.

       Wife filed her complaint for divorce on June 15, 2001, citing irreconcilable differences as
a ground for divorce.4 Husband answered and counter-claimed for divorce citing irreconcilable




         1
                  W e note that Husband admitted to attempting to use Daughter’s cancer history to overcome the debt
owed to the Internal Revenue Service.

         2
                 The trial court additionally ordered Husband to pay the bills for car insurance, pay W ife $400 per
month in additional child support, and pay one half of the children’s uninsured medical, dental, orthodontic, and
ophthalmic expenses.

         3
                  The testimony at trial revealed that Husband has had difficulty staying current on the property taxes
for the Summer property and that, at the time of trial, a tax lien existed on the property. At one point during the marriage,
W ife discovered that the Summer property was about to be auctioned for failure to pay property taxes and alerted
Husband before the property was sold. Further, in W ife’s 14(D) M emorandum, which was admitted into evidence, it
states that “Husband paid taxes on the [Summer] property from marital funds.” Husband argues that the Summer property
is separate property but does not appear to dispute that he used marital funds to pay the property taxes on the Summer
property.

         4
                   W ife later amended her complaint for divorce by adding inappropriate marital conduct as a ground.



                                                            -2-
differences and inappropriate marital conduct as grounds.5 On July 9, 2002, the parties entered into
a consent order appointing Patricia Worley the guardian ad litem for their children. After a hearing,
the trial court awarded the parties a divorce, divided the marital estate and debt, named Wife the
primary residential parent for Son and Daughter, ordered Husband to pay the entire balance of the
guardian ad litem fees in the amount of $4,154.00, and ordered Husband to pay child support in the
amount of $1,526.00 per month. Husband now appeals to this Court and presents the following
issues6 for our review:

         I.        Whether the trial court erred in its division of the marital estate; and
         II.       Whether the trial court erred when it ordered Husband to pay the entire balance of the
                   guardian ad litem fees.

For the following reasons, we affirm in part, reverse in part, and remand for further proceedings.

                                                 Standard of Review

        We review a trial court’s division of marital property de novo upon the record affording a
presumption of correctness to the trial court’s findings of fact. Dellinger v. Dellinger, 958 S.W.2d
778, 780 (Tenn. Ct. App. 1997) (citing Tenn. R. App. P. 13(d); Hass v. Knighton, 676 S.W.2d 554,
555 (Tenn. 1984); Dalton v. Dalton, 858 S.W.2d 324, 327 (Tenn. Ct. App. 1993)). A trial court is
given wide discretion in the manner in which it divides marital property, and we give its decisions
on appeal great weight. Id. (citing Wade v. Wade, 897 S.W.2d 702, 715 (Tenn. Ct. App. 1994);
Wallace v. Wallace, 733 S.W.2d 102, 106 (Tenn. Ct. App. 1987)). The trial court’s distribution of
marital property is presumed correct unless the evidence preponderates otherwise. Id. (citing Tenn.
R. App. P. 13(d); Wallace, 733 S.W.2d at 107).

        Additionally, we give the trial court broad discretion in the award of guardian ad litem fees.
Townsend v. Bingham, No. 02A01-9801-CV-00019, 1999 Tenn. App. LEXIS 226, at *18 (Tenn. Ct.
App. Apr. 6, 1999) (citing McKeehan v. McKeehan, No. 02A01-9407-CV-165, 1995 Tenn. App.
LEXIS 838 (Tenn. Ct. App. Nov. 21, 1995)). Absent a clear showing of an abuse of discretion on
the part of the trial court, we may not disturb the trial court’s award of guardian ad litem fees on
appeal. Id. at *18-19 (citing Salisbury v. Salisbury, 657 S.W.2d 761, 770 (Tenn. Ct. App. 1983)).




         5
                   Eventually, the parties agreed that grounds existed entitling them to a divorce.

         6
                  Though the parties, in their briefs, argue over whether the trial court erred in setting the amount of child
support owed by Husband to W ife, during oral argument, counsel for both parties conceded that this issue had been
settled below and, as such, the issue is no longer before this Court.

                                                             -3-
                                        Marital Property Division

         Husband argues that the trial court erred when it determined that the Summer property
was “marital property”7 and in its division of the marital estate. To guide Tennessee courts in
making an equitable distribution of marital property, a trial court must consider the following
factors:

        (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 the 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 associated
        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.

Tenn. Code Ann. § 36-4-121(c) (2003). Further, the Tennessee Code defines “marital property” and
“separate property” as follows:

        (b) For purposes of this chapter:

        (1) (A) “Marital property” means all real and personal property, both tangible and
        intangible, acquired by either or both spouses during the course of the marriage up
        to the date of the final divorce hearing and owned by either or both spouses as of the
        date of filing of a complaint for divorce, except in the case of fraudulent conveyance
        in anticipation of filing, and including any property to which a right was acquired up


        7
                   Though the trial court did not make an explicit finding that the Summer property was “marital
property,” it adopted W ife’s Rule 14(d) Memorandum stating that the Summer property should be considered “marital
property,” and the trial court, in its final decree, “awarded” Husband the Summer property.

                                                       -4-
         to the date of the final divorce hearing, and valued as of a date as near as reasonably
         possible to the final divorce hearing date. In the case of a complaint for legal
         separation, the court may make a final disposition of the marital property either at the
         time of entering an order of legal separation or at the time of entering a final divorce
         decree, if any. If the marital property is divided as part of the order of legal
         separation, any property acquired by a spouse thereafter is deemed separate property
         of that spouse. All marital property shall be valued as of a date as near as possible
         to the date of entry of the order finally dividing the marital property.

         (B) “Marital property” includes income from, and any increase in value during the
         marriage of, property determined to be separate property in accordance with
         subdivision (b)(2) if each party substantially contributed8 to its preservation and
         appreciation, and the value of vested and unvested pension, vested and unvested
         stock option rights, retirement or other fringe benefit rights relating to employment
         that accrued during the period of the marriage.

         (C) “Marital property” includes recovery in personal injury, workers’ compensation,
         social security disability actions, and other similar actions for the following: wages
         lost during the marriage, reimbursement for medical bills incurred and paid with
         marital property, and property damage to marital property.

         (D) As used in this subsection, “substantial contribution” may include, but not be
         limited to, the direct or indirect contribution of a spouse as homemaker, wage earner,
         parent or family financial manager, together with such other factors as the court
         having jurisdiction thereof may determine.

         (E) Property shall be considered marital property as defined by this subsection for
         the sole purpose of dividing assets upon divorce or legal separation and for no other
         purpose; and assets distributed as marital property will not be considered as income
         for child support or alimony purposes, except to the extent the asset will create
         additional income after the division.

         (2) “Separate property” means:

         (A) All real and personal property owned by a spouse before marriage, including, but
         not limited to, assets held in individual retirement accounts (IRAs) as that term is
         defined in the Internal Revenue Code of 1986, as amended;

         (B) Property acquired in exchange for property acquired before the marriage;


         8
                  The parties do not argue that the income or increase in value of the Summer property is marital
property. Further, there is no evidence of any increase in value of the Summer property or that it produces income. The
focus of the argument is on whether the Summer property itself is “marital property.”

                                                         -5-
       (C) Income from and appreciation of property owned by a spouse before marriage
       except when characterized as marital property under subdivision (b)(1);

       (D) Property acquired by a spouse at any time by gift, bequest, devise or descent;

       (E) Pain and suffering awards, victim of crime compensation awards, future medical
       expenses, and future lost wages; and

       (F) Property acquired by a spouse after an order of legal separation where the court
       has made a final disposition of property.

Tenn. Code Ann. § 36-4-121(b) (2003) (emphasis added).

        In addition to the increase in value or income from separate property being considered
“marital property” pursuant to section 36-4-121(b)(1)(B) of the Tennessee Code, property falling
under the definition of “separate property” in section 36-4-121(b)(2) may be included in the
marital estate for equitable division purposes pursuant to the doctrine of transmutation. This
Court quoted the following definition of transmutation with approval:

       [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.

Batson v. Batson, 769 S.W.2d 849, 858 (Tenn. Ct. App. 1988) (quoting 2 H. Clark, The Law of
Domestic Relations in the United States § 16.2 at 185 (1987)). Though Wife argues that the Summer
property is marital property because she warned Husband of the possibility that the Summer property
would be sold at an auction for falling delinquent in property taxes and that marital funds were used
to pay the property taxes, there is no evidence in the record to support the finding that the Summer
property itself, as opposed to any increase in value, is “marital property” subject to equitable
division. The Summer property was in Husband’s name and given to Husband by his grandmother
as a gift. There is no evidence that the Summer property was intended to be “marital property.”
Further, we note that “[t]he determination of what is equitable must be viewed in light of all factors
set forth in Tenn. Code Ann. § 36-4-121, and the property division as a whole.” See Wilson v.
Wilson, No. E2002-01636-COA-R3-CV, 2003 Tenn. App. LEXIS 357, at *5 (Tenn. Ct. App. May
19, 2003) (emphasis added). Therefore, we hold that the trial court erred when it considered the



                                                 -6-
Summer property to be “marital property” and, as a result, remand this case for an equitable division
of the marital estate.9

                                             Guardian Ad Litem Fees

         Husband also argues that the trial court erred when it ordered him to pay the entire remaining
balance of guardian ad litem fees amounting to $4,154.00.10 As noted above, absent a clear showing
of an abuse of discretion, this Court will not reverse a trial court’s award of guardian ad litem fees.
Townsend v. Bingham, No. 02A01-9801-CV-00019, 1999 Tenn. App. LEXIS 226, at *18-19 (Tenn.
Ct. App. Apr. 6, 1999) (citing Salisbury v. Salisbury, 657 S.W.2d 761, 770 (Tenn. Ct. App. 1983)).
In this case, neither party alone sought the appointment of a guardian ad litem, but rather, both
parties entered into a consent order, appointing Patricia Worley and outlining the parameters of the
guardian ad litem’s powers and responsibilities. After reviewing the entire record, we cannot say
that the trial court abused its discretion when it ordered Husband to pay the remaining balance of the
guardian ad litem fees. Therefore, we affirm the trial court’s decision ordering Husband to pay the
entire balance of the guardian ad litem fees.

                                           Attorney’s Fees on Appeal

        Finally, during oral argument, counsel for Wife requested this Court award Wife her
attorney’s fees incurred on appeal. We have previously noted that it is inappropriate for this Court
to award attorney’s fees on appeal when both parties are partially successful. Houghland v.
Houghland, 844 S.W.2d 619, 623 (Tenn. Ct. App. 1992) (citing Baggett v. Baggett, 512 S.W.2d 292,
294 (Tenn. Ct. App. 1973)). Therefore, we decline to award Wife her attorney’s fees incurred on
appeal.

                                                     Conclusion

        For the reasons stated above, we affirm the trial court’s order requiring Stanley D. Kahn to
pay the remaining balance of the guardian ad litem fees. We reverse the trial court’s division of the
marital estate which included Stanley D. Kahn’s separate property and remand for an equitable
division of the marital estate. Costs of this appeal are taxed equally to Appellee, Randa L. Kahn, and
Appellant, Stanley D. Kahn, and his surety for which execution may issue if necessary.



                                                                  ___________________________________
                                                                  ALAN E. HIGHERS, JUDGE

         9
                   Though the evidence in the record indicates that the Summer property is “separate property” and not
subject to an equitable division between the parties, we note that, in equitably dividing the marital estate, a trial court
must consider “[t]he value of the separate property of each party.” Tenn. Code Ann. § 36-4-121(c)(6) (2003).

         10
                  Husband does not appear to challenge the reasonableness of the guardian ad litem’s fees.

                                                           -7-
