                  IN THE COURT OF APPEALS OF TENNESSEE

                                  EASTERN SECTION
                                                                  FILED
                                                                  October 30, 1997

                                                                 Cecil Crowson, Jr.
                                                                  Appellate C ourt Clerk



MACK MULLINS,                               ) C/A NO. 03A01-9705-CH-00153
                                            )
                Appellant,                  ) HAMBLIN CHANCERY
                                            )
v.                                          ) HON. THOMAS R. FRIERSON, II,
                                            ) CHANCELLOR
LILLIAN J. MULLINS,                         )
                                            ) AFFIRMED AND
                Appellee.                   ) REMANDED




PAUL G. WHETSTONE, P.C., Morristown, for Appellant.

J. RANDALL SHELTON, Morristown, for Appellee.




                                      OPINION




                                                          Franks, J.




                In this divorce action, both husband and wife have raised issues on

appeal.

                The husband insists that it was improper for the Trial Judge to order the

husband to pay the wife’s COBRA insurance premiums and to pay a portion of her

attorney’s fees, since the parties had announced to the Court that the wife would not

seek alimony.

                The divorce case was tried on October 21, 1996, and the parties
stipulated grounds for divorce pursuant to T.C.A. § 36-4-129. The wife’s Counter-

Complaint initially asked for alimony in solido, alimony in futuro, and temporary

spousal support. The husband’s counsel in his Opening Statement informed the Court

that the parties had agreed that the wife would not seek alimony. Husband’s counsel

was aware that the wife was seeking attorney’s fees and objected to any such award.

In the Court’s Decree, the husband was required to pay COBRA premiums on behalf

of the wife for twenty-four months and to pay a portion of her attorney’s fees in the

amount of $500.00. The Chancellor also determined that the marital residence,

including the value of Lillian Mullins’ down payment of $18,000.00 was marital

property. The Chancellor determined that $60,000.00 of net equity existed in the

home and the wife was awarded the property, but she was required to pay $12, 969.00

to the husband for his interest.

              In awarding the COBRA payments, the chancellor “interpreted

counsel’s representations to mean that both parties waived any request for periodic or

in solido alimony, but the other issues of attorney’s fees and maintenance of COBRA

health insurance remained in a contested status”. The parties’ representations made at

trial lend support to the Chancellor’s interpretation.

              The appellant argues the Chancellor’s award of attorney’s fees was

improper because the issue of alimony was waived, and he notes that attorney fee

awards are treated as alimony. Gilliam v Gilliam, 776 S.W.2d 81, 86 (Tenn.App.

1988), and in deciding whether to award attorney’s fees, the trial court should

generally consult the same statutory factors used in determining alimony awards.

Houghland v. Houghland, 844 S.W.2d 619, 623 (Tenn.App. 1992); See Tenn. Code

Ann. §36-5-101(d)(1) (1996).

              The attorney for husband in his opening statement said: “The Court of

Appeals has opined time and time again that that’s just another form of alimony, and I


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don’t think that ought to apply if he’s not seeking alimony.” He also stated that “[W]e

will object to the payment of any attorney fees.”

              During trial, the wife testified as to the amount of fees incurred and her

inability to pay. She was cross-examined on this issue, and based on the conduct of

both parties, the Chancellor properly determined that the issue of attorney’s fees was a

contested issue for trial. The parties conduct demonstrates that the waiver was not

intended to apply to attorney’s fees. Accord, Dover v. Dover, 821 S.W.2d 593, 595

(Tenn.App. 1991). (A Court may award attorney’s fees for the spouse’s attorney who

acts to protect the party’s economic interest).

              The husband cites our opinion in Kemp v. Kemp, 1988 WL 116368 at

*3 (Tenn.App.) that COBRA coverage “is additional alimony”.

              The husband did not object when the wife requested COBRA coverage.

The husband testified that he had calculated the cost of providing COBRA coverage

and the wife testified that she was willing to give up some of her equity in other assets

to balance the COBRA coverage. The Chancellor properly concluded that this issue

remained contested. These issues are resolved against the husband.

              The wife questions the propriety of the distribution of the marital estate

by the Chancellor.

              The Chancellor properly determined that the wife’s premarital funds

were part of the marital estate. This jurisdiction “is a ‘dual property’ jurisdiction

because its divorce statutes draw a distinction between marital and separate property.”

Batson v. Batson, 769 S.W.2d 849, 856 (Tenn.App. 1988). The Chancellor

determined that the home, including the value of the wife’s pre-marital investment,

was marital property. The Chancellor said that “[b]y means of transmutation, a

rebuttal presumption has arisen that Mrs. Mullins intended a gift to the marital estate.”

The record supports the Chancellor’s determination that transmutation occurred.


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Several cases have applied the doctrine. Batson v. Batson, 769 S.W.2d 849 (Tenn.

App. 1988); McClellan v. McClellan, 873 S.W.2d 350 (Tenn. App. 1994); Barnhill v.

Barnhill, 826 S.W.2d 443 (Tenn. App. 1991).

              In this case, the property was placed solely in the wife’s name. An

integral part of the doctrine of transmutation is the intent of the parties. See Batson.

There is ample evidence to support the presumption that the wife intended the home

to be a gift to the marriage. The parties were cohabitating at the time of purchase.

Although cohabitation may not alone be sufficient to invoke transmutation, the parties

looked for a house together and jointly made the decision to purchase the home.

Moreover, the October 1, 1980 realty contract lists both parties as buyers, which

suggests the parties viewed the purchase as a joint enterprise. The parties apparently

believed that the Appellant’s previous bankruptcy would hinder obtaining financing if

his name was included as a purchaser. Thus, the Chancellor concluded that the wife’s

purpose in taking sole title to the home was not to keep it as separate property, but to

obtain financing more easily. The evidence does not preponderate against the

Chancellor’s finding.

              The wife also claims that the Chancellor erred in not dividing the

$3,762.00 cash value of the husband’s $50,000.00 American Income life insurance

policy. We can find no basis in the record to disturb the Chancellor’s awarding the

life insurance to the husband. See Kincaid v. Kincaid, 912 S.W.2d 140, 142

(Tenn.App. 1995); Loyd v. Loyd, 860 S.W.2d 409, 411 (Tenn.App. 1993). We

generally do not disturb a trial court’s division unless “the distribution lacks proper

evidentiary support or results from an error of law or a misapplication of statutory

requirements and procedures.” Thompson v. Thompson, 797 S.W.2d 599, 604

(Tenn.App. 1990). No such error appears in the record.

              The judgment of the Trial Court is affirmed and the cause remanded,


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with the cost of the appeal assessed one-half to each party.




                                          __________________________
                                          Herschel P. Franks, J.


CONCUR:




___________________________
Charles D. Susano, Jr., J.




___________________________
Hon. William H. Inman, Sr.J.




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