                      IN THE COURT OF APPEALS OF TENNESSEE
                                 AT KNOXVILLE

JAMES EDWIN HEATHFIELD v. DINA ROSE HAWKINS HEATHFIELD

                       Direct Appeal from the Circuit Court for Polk County
                              No. 3450 Lawrence H. Puckett, Judge



                       No. E1999-00604-COA-R3-CV - Decided May 25, 2000


This is a divorce case. The trial court granted the wife’s counterclaim for divorce and divided the
parties’ property. The wife appeals the court’s division of property, arguing that it inequitably
allocates substantially more property to the husband than to her.

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

SUSANO, J., delivered the opinion of the court, in which FRANKS and SWINEY , JJ., joined.

Randy G. Rogers, Athens, Tennessee, for the appellant, Dina Rose Hawkins Heathfield.

B. Prince Miller, Jr., Cleveland, Tennessee, for the appellee, James Edwin Heathfield.


                                                   OPINION

                                                 I. Background

          T he tri al co urt di ss ol v ed a s ix -y ea r m arri ag e. P rio r to th ei r N ov ember, 1992, marriage,
appellant D ina R ose H aw kins H eathfield (“W ife”) had been married three times, w hile appellee
J a m es E dw in H eathfield (“Husband”) had been married once. W ife had tw o children from her prior
marriages, o ne of w h o m l iv e d w i t h t he pa rt ie s d uri ng the initial years of their marriage. H usband
had n o chi ldren.

        A pproximately a year after their w edding, the parties separated for the first time. During this
separation, w hich lasted “a couple of m onths,” W ife f iled for div orce but the parties eventually
reconciled. A fter another year or tw o, the parties separated again for tw o or three months before
re co nc il in g . T he parties separated for the third and final time on M arch 13, 1998, and this action w as
comm enced three days later.1

          W hen the parties married, W ife ow ned a 1985 IRO C automobile and a catalog of about 50
s on g s that she had written. The song s hav e nev er generated income. Just prior to marrying
H usband, W ife had contracted to purchase a parcel of unimproved real property in M cM inn C ounty
(“the M cM inn C ounty property ”) for $15,000. She had made a dow n paym ent of $500 and had made
an unspecified number of monthly paym ents of $250 prior to getting married. H usband testified that
he also made some of the m onthly paym ents on the M cM inn C ounty property before their marriage.

       H usband entered the marriage w ith, among other things, (1) sev eral vehicles; (2) an airplane;
(3) a parcel of property in O hio; 2 (4) a parcel of property in P olk C ounty (“the Polk C ounty
property”), with a debt of approxim ately $42,000; (5) a job at which he earned a salary of close to
$55,000; and (6) a 401k worth $18,000.

        A s stated prev iously, the parties separated three times during their marriage and reconciled
tw ice. S ubsequent to the parties’ first reconciliation, H usband gav e W ife $10,000, w hich she used
to pay of f the remaining debt on the M cM inn property. W ife then conv erted her interest in the
M cM inn C ounty property into a tenancy by the entireties with H usband, and H usband did likewise
w ith respect to the Polk C ounty property. S hortly thereafter, the parties decided to build some
tow nhouses on the M cM inn C ounty property, and they sought and receiv ed a loan of $115,000 for
this purpose.

        D uring th e b ui ld in g of th e p roj ec t, th e con tra ct or a bsconded w ith approxim ately $50,000 paid
to him by the p arties . A short w hile late r, the parti es se parate d f or the s econ d tim e. F aced w ith an
obligation to pay back the original loan and a shortage of f unds w ith w hich to complete the project,
H usband endeavored to obtain extra financing to complete the project. H e re-financed the Polk
C ounty property, increasing the pre-marital debt of $42,000 to $100,000. H e also sold his interest
in the O hio property for approxim ately $22,000, borrowed $15,000 against his 401k, and borrow ed
approxim ately $20,000 from his fam ily. H e completed the townhouses w ith these funds.



        1
         T he record is replete with each party’ s testimony regarding the misconduct of the other.
H usband testified as to W ife’ s alleged drug and alcohol abuse and inappropriate contact w ith another
m an. W ife testified as to sev eral instances of H usband’s intentional physical abuse and threats
against her and her daughter, including an i nc id en t o cc urri ng a few months bef ore the parties’ f inal
separation during w hich Husband broke W ife’ s nose. W ife’ s sole issue on appeal is “whether the
[trial] court made a fair and equitable div ision of the equities of the parties.” Fault cannot be
considered in m akin g a n equ itab le di v isio n of property , see T .C .A . § 36-4-121(a)(1)(1996).
T herefore, we hav e ignored the testimony regarding the allegations of f ault.
        2
            H usband owned this property as a tenant in comm on w ith one of his brothers.

                                                        -2-
           A fter the project was com pleted, the parties again reconciled. W ith the tow nhouses
completed, the parties were able to re-finance the M cM inn C ounty property . They used the ex tra
money they received to repay loans, including H usband’s loan from his fam ily and credit card debt.
A portion of the extra money w as used to buy W ife a tw o-carat dia m on d ri ng and some band
equipment. T he debt against the M cM inn property w as approximately $135,000 at the time of the
d iv o rc e h ea ri ng .

        D uring the course of the marriage, the great majority of the marital expenses w ere paid for
w ith the money H usband earned from his job as a marketing representative f or Zomba & Jiv e
R ecords. Husband’s salary av eraged approxim ately $65,000 for the years 1992 to 1997.

        W i f e earned very little m oney w orking outside the home. T he income she did earn -- a few
hundred dollars a few times ov er the six-y ear marriage -- was earned by cutting hair, selling horses
she and Husband bought to train and re-sell, selling leather crafts she had m ad e, o r se ll in g pro du ce .3
M uch of W ife’ s energy and time w as devoted to her attempts to establish a singing career. A t one
point, W i f e traveled to C hicago to perform, but the “tour” w as unsuccessful. The parties also built
a rehearsal hall in the guest house on the P olk C ounty property in an attempt to jum p-start W i f e’ s
singing career. These attempts w ere, how ev er, unfruitful.

         W i f e’ s cont ributi ons t o the ma rital h om e inc lude d som e w allp aperin g, p aint ing , landscapi ng ,
and helping to create a swim ming hole on the property. She also assisted H usband in hauling hay
and i n cle aring and c utti ng the w oods on th e M cM inn C ount y property .

         T he div orce hearing w as held on O ctober 9 and 13, 1998. The trial court granted W ife a
div orce and divided the parties’ property. T he follow ing schedule sets forth our understanding of
the trial court’s div ision of the marital property:




         3
        T his does not include the approximately $2,000 W ife collected as rental income from the
M cM inn C ounty property in 1997.

                                                          -3-
        A ssets and Debts                             T otal           H usband                    W ife

        M cM inn C ounty property -- net 4         $ 85,176              $ 42,588              $42,588
        Polk C ounty property -- net 5               99,081                99,081
        401k -- net 6                                71,180                71,180
        W ife’ s interest in 401(k)                                       <10,000>               10,000
        A irplane -- net7                             7,608                 7,608
        M iscellaneous
         personal property 8                        17,450                  5,200                12,250
        M iscellaneous debts9                      <15,715>                15,715 >

        T otal                                    $264,780              $199,942               $64,838



        4
         T he trial court found the M cM inn C ounty p roperty to hav e a v alue of $220,000 and an
existing debt of $134,824, leav ing a net value of $85,176. T he court aw arded half of the net w orth
of the property to each party and aw arded W ife the right to live in o ne of the units. Each of the
parties was burdened with half of the debt.
        5
       T he trial court found the P olk C ounty property to hav e a v alue of $200,000 and a debt of
$100,919, leav ing a net v alue of $99,081. Husband w as ordered to pay the debt.
        6
           T he 401k had a v alue at the time of the hearing of $97,180. The court deducted $18,000 --
the v alue of the 4 01k a t the tim e of the m arriage -- f rom t his a mo unt. T he court further deducted
$8,000 to account for the outstanding debt ag ainst the 401k, a debt that w as assigned to H usband.
T his left a net amount in the marital estate of $71,180. The court then stated that it would hav e giv en
half of this amount -- $35,590 -- to W ife, but reduced that figure to account f or Husband being
forced to borrow some $58,000 against the Polk C ounty property in order to complete the tow nhouse
project on th e M cM in n C ou nt y pro pe rty . A cc ord in g ly , the tri al co urt ord er H usband to pay W ife
$10,000 and aw arded H usband the net amount of the 401k.
        7
        The airplane was found to have a value of $34,000 and a debt against it of $26,392. The
debt was assigned to Husband.
        8
         T he court aw arded each party half the v alue of a lost two-carat diamond ring, in the ev ent
the ring was later found or insurance proceeds were receiv ed for it. N o v alue is assigned for the ring
in the abov e schedule.
        9
         A l th ou g h the trial court orally decreed that W ife w ould be responsible for a dental bill of
$75, the trial court’s order assigned this bill to H usband. “A C ourt speaks only through its w ritten
judgm ents, duly entered upon its minutes. T herefore, no oral pronouncement is of any ef fect unless
and until made a part of a w ritten judgment duly entered.” S parkle L aundry & C leaners, Inc . v.
K elton, 595 S .W .2d 88, 93 (T enn. C t. A pp. 1979). Thus, the fig ure of $15,715 includes the dental
bill.

                                                       -4-
                                              II. Standard of Review

        S ince this is a non-jury case, our rev iew is de novo upon the record of the proceedings below.
T hat record comes to us w ith a presumption of correctness as to the trial court’ s f actu al f indi ng s, a
presumption that w e must honor unless the ev idence preponderates against those findings. R ule
13(d), T enn. R . A pp. P .

        W i f e’ s sole issue is “whether the court made a fair and equitable division of the equities of
the parties.” She “does not quarrel w ith property v alues,” but rather argues that the div ision is
inequitable because it giv es H usband a substantially g reater share of the marital assets than it giv es
to W ife. S he suggests that she be giv en the M cM inn C ounty property and be solely responsible for
the debt on that property. Husband argues that the trial court properly div ided the property in light
of the duration of the m arriage and the relativ e contributions of the parties to the marital estate.

                                                III. A pplicable L aw

         W hen ad dre ss in g th e p rop ert y of di v orc in g pa rti es , a c ou rt must f irst classify the property as
marital or sepa rate. B atson v. B atson, 769 S .W .2d 849, 856 (T enn. C t. A pp. 1988). Once classified,
the separate property is awarded to the party to w hom it is separate in nature, and the marital property
is div ided betw een t he pa rties i n an e quit able fa shio n. B rock v. B rock, 941 S.W .2d 896, 900 (T enn.
C t. A pp. 1996).

          “T rial courts hav e w ide l atit ude i n f ashi onin g a n equ itab le di v isio n of ma rital p roperty .”
B rown v. Brown, 913 S .W .2d 163, 168 (T enn. C t. A pp. 1994). Thi s must be done in acco rdance
w ith the statutory f actors found in T .C .A . § 36-4-121(c) (1996). M arital fault cannot be considered.
T .C .A . § 36-4-121(a)(1) (1996).

        “[A ]n equitable property div ision is not necessarily an equal one. It is not achieved by a
mechanical application of the statutory f actors, but rather by considering and w eighing the m ost
relevant factors in light of the unique facts of the case.” B atson, 769 S .W .2d at 859. A ppellate
courts are to defer to a trial court’s div ision of marital property unless the trial court’s decision is
inconsistent w ith the statutory f actors or is unsupported by the preponderance of the ev idence.
B rown v. Brown, 913 S.W .2d 163, 168 (T enn. C t. A pp. 1994).

         O ne of the factors enumerated in T .C .A . § 36-4-121(c) is the duration of the marriage. If the
marriage is of relativ ely s hort duration, “it is appropriate to div ide the property in a w ay that, as
nearly as possible, places the parties in the same position they w ould have been in h ad th e m a rri ag e
nev er take n pla ce.” B atson, 769 S .W .2d at 859. W hen div iding the assets of a short marriage, the
spouses’ “contributions to the accumulation of assets during the marriage is an important
factor...[and] the signif icance and v alue of a spo use’ s non -m onet ary cont ributi ons i s dim inis hed....”
Id. (C itation omitted).


                                                          -5-
                                                    IV . A nalysis

        T his case is controlled by B atson v. Batson, 769 S .W .2d 84 9 (Te nn. C t. A pp. 1988 ). In
B atson, the parties w ere m arried f or sev en y ears and they , “[o]n sev eral occ asio ns, [] separated and
began div orce proceedings, only to dismiss them later.” Id. at 85 1, 853 . W e found, under the
circumstances in B atson, “that the Batsons’ marital property need not be div ided equally and that
the parties should, in large m easure, be restored to their pre-marriage financial condition.” Id. at
859. A ccordingly, w e modif ied the trial court’s judgm ent to allocate the marital property $397,404
to the husband and $21,165 to the wif e. Id. at 860. W e stated that “[t]he adjusted property div ision
leav es the parties with approxim ately the sam e net w orth they had prior to the ma rriage an d
preserves, in large measure, the relationship between their respective net w orths that existed [before
they w ere married.]” Id. at 861.

          In the instant case, H usband and W ife w ere married for only six years and during m uch of
that tim e the parties were separated and contemplating div orce. A t the time of their marriage,
H usband’s salary w as $53,400 and W ife earned income of an amount small enough to ex empt her
from filing a federal income tax ret urn . D uri ng th e m arri ag e, t he co up le pri m ari ly su pp ort ed
themselv es w ith H usband’s incom e. H usband contributed financially to W ife’ s v arious attempts to
earn money by , among other things, sing ing, selling crafts she had made, and by opening a beauty
salon. W ife’ s financial contributions to the marriage -- a few hundred dollars here and there over
a six-y ear period -- as w ell as her non-monetary contributions were relativ ely sm all. Thoug h she did
do some w allpapering, painting, landscaping, and other maintenance of the real property, most of
he r ti m e and en erg y w as sp en t i n a tt em pt in g , an d f ai li ng , to e st ab li sh a s in g in g career.

          W ith respect to the real property inv olv ed in this case, it is clear to us that the M cM inn
C ounty property and the Polk C ounty property w ere converted to marital property. Husband and
W i f e each intentionally transferred an individual interest in their respectiv e properties to the couple
as a tenancy by the entireties. This creates a rebuttable presumption of a g ift to the marital estate.
S e e K incaid v. K inc aid, 912 S.W .2d 140, 142 (T enn. C t. A pp. 1995). The ev idence in this case is
insufficient to rebut the resulting presumption that each spouse made a gift to the marital estate by
doing so. In any ev ent, the evidence is clear that H usband substantially contributed to the
preservation and appreciation of the M cM inn C ounty property by lev eraging other properties,
including his ow n sepa rate prope rty , to co mp lete the t ow nhou se proj ect. W ife’ s contribution to the
M cM inn C ounty property and to the improv ement of the P olk C ounty property, primarily in the form
of w allpapering and painting, is relatively insignif icant in importance.

        W e cannot say that the trial court’s div ision of the marital property giv ing H usband $199,942
and W ife $64,838 is inconsistent w ith the statutory factors or is unsupported by the preponderance
of the ev idence. W if e ent ered th e m arriage w ith a car, a catalog of songs that had not generated any
income, and title to a piece of property f or w hich she h ad ju st be gu n to p ay . S h e le av e s th e m a rri ag e
w ith $64,838. W e are of the opinion that the trial court’s div ision “leaves the parties with
approximately the same net w orth they had prior to the marriage,” B atson, 769 S.W .2d at 861.




                                                         -6-
                                           V . C onclusion

        T he judgment of the trial court is affirmed. T his case is remanded for enforcement of the
judgm ent and for collection of costs assessed below, all pursuant to applicable law . C osts on appeal
are taxed to the appellant.




                                                 -7-
