                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                                  August 28, 2014 Session

         LORETTA M. GAITHER v. MICHAEL DELEON GAITHER

                  Appeal from the Circuit Court for Hamilton County
                     No. 12D459      Jacqueline S. Bolton, Judge




                No. E2013-02681-COA-R3-CV - Filed October 13, 2014


This is a divorce action involving the proper classification and division of the parties’ assets.
The trial court found one asset, a baby grand piano, to be the wife’s separate property as it
had been a gift to her from the husband. All other assets were determined to be marital. The
most valuable asset was the parties’ marital residence, which was appraised at a value of
$475,000. Although the trial court awarded the marital residence to the wife rather than
ordering it to be sold, the trial court deducted twenty percent from the home’s equity value
for the associated costs had it been sold. The trial court subsequently fashioned a nearly
equal percentage distribution of the marital assets and debts, which included an allocation
of a portion of the equity in the home to the husband. The husband has appealed. We
determine that the trial court correctly classified the piano as the wife’s separate property.
We also determine that the trial court improperly deducted the costs associated with a
hypothetical sale of the marital residence from its equity value. We therefore modify the trial
court’s award of equity in the home to the husband to effectuate the trial court’s ostensible
overall percentage distribution. We affirm that equitable distribution in all other respects.
We decline to award the wife attorney’s fees on appeal.

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

T HOMAS R. F RIERSON, II, J., delivered the opinion of the Court, in which D. M ICHAEL
S WINEY, J., joined. C HARLES D. S USANO, J R., C.J., filed a concurring opinion.

Whitney Durand, Chattanooga, Tennessee, for the appellant, Michael Deleon Gaither.

Glenna M. Ramer, Chattanooga, Tennessee, for the appellee, Loretta M. Gaither.
                                          OPINION

                           I. Factual and Procedural Background

         This divorce action involves a twenty-eight-year marriage between Loretta Gaither
(“Wife”) and Michael Gaither (“Husband”). Husband is a medical doctor who at the time
of trial was age fifty-eight. Wife is a nurse anesthetist who at the time of trial was age fifty-
seven. The parties accumulated significant assets during the marriage, the most valuable
being their marital residence. The parties also amassed a sizeable amount of joint debt.

       According to the evidence in this cause, Wife’s annual gross earnings for the five
years prior to trial were:

       2007           $196,620
       2008           $113,314
       2009           $117,187
       2010           $132,497
       2011           $174,948

At the time of trial, Wife testified that she was earning $14,000 per month as an independent
contractor with an employer in Georgia. Husband presented his social security statement of
earnings for the past several years. Husband’s earnings in some years, even as recently as
2000, were almost nothing while in other years he earned nearly $200,000 in gross income
annually. At the time of trial, Husband testified that he had recently received a job offer in
North Carolina, where he would be making $185,000 per year.

        Both parties testified that they intended to continue their employment for the
foreseeable future. It was undisputed that Husband suffered from cardiomyopathy, requiring
the use of a pacemaker and an automatic implantable cardioverter defibrillator (“AICD”).
Husband explained that this medical condition caused him to leave private practice to reduce
stress and pursue work in the employ of other parties. Wife battled breast cancer when she
was thirty-eight years old but has not experienced a recurrence.

       Wife claimed that Husband had serious anger problems and was prone to fits of rage,
causing him to experience significant employment setbacks through the years. According
to Wife, they were forced to move numerous times due to Husband’s inability to maintain
employment. As Husband explained, he worked and supported Wife while she attended
school to become a nurse anesthetist. Wife likewise related that during her employment, she
supported Husband during his final two years of medical school.



                                               -2-
       Following a bench trial, the parties’ divorce was granted upon a stipulation of grounds
pursuant to Tennessee Code Annotated § 36-4-129. The trial court also entered the following
pertinent findings of fact and conclusions of law:

              Wife’s contentions at trial are that she was the primary wage earner as
       a nurse anesthetist. Though Husband is a physician, he has held numerous
       jobs throughout the marriage, some years making zero income and some years
       making as much as $97,000. Primarily though his income was in the $20,000
       to $30,000 range. Wife currently makes $168,000 a year. Wife contends that
       the majority of Husband’s insurance and retirement funds came from her
       earnings. Wife also contends that Husband has a serious anger problem which
       has detrimentally affected his employment as well as the parties’ marriage.

              At the time of trial however, Husband says he has a job offer in North
       Carolina where he will make $185,000.

              As to the parties’ home, Husband values it at the $600,000 range. Wife
       says the value is closer to $400,000. Husband concedes that at least $80,000
       to 100,000 worth of work is needed to improve the home before it could be
       sold. The house shall be appraised and Wife shall be allowed to purchase
       Husband’s interest in said home for the full appraisal value. Once the
       appraisal is done, Husband shall receive some equity which the Court will then
       determine.

              The remaining assets and liabilities are divided as follows:

              Asset Description            Marital Equity     To Wife      To Husband
        Thrift Savings Plan Invesco                  23,796                    23,796

        Invesco IRA                                  79,548                    79,548

        Pioneer Investments IRA                      12,554                    12,554

        Invesco IRA                                  85,051                    85,051

        Bon Secours Retirement                        1,962        1,962

        Anesthesiologist Associated                 341,083     341,083
        401(k)

        Old Line #[policy number]                     6,465        6,465



                                              -3-
Old Line #[policy number]               5,000         5,000

Old Line #[policy number]               1,177         1,177

Old Line #[policy number]               8,140         8,140

Liberty National #[policy               6,527                     6,527
number]

Old Line #[policy number]             11,805                     11,805

Old Line #[policy number]             10,299                     10,299

Old Line #[policy number]             12,904                     12,904

Old Line #[policy number]               9,051                     9,051

Furniture                     equally divided

Navy Federal Credit Union               5,000         5,000
Checking

Navy Federal Credit Union                      5          5
Money Market

Navy Federal Credit Union               2,000         2,000
Savings

USAA Bank Account -                     1,978                     1,978
checking

Timeshare Starwood Vacation                    0          0   Timeshare
Ownership

Piano - Baby Grand                       Gift         Piano

2000 Lexus ES300                        4,872                     4,872

2006 Lexus 430SC                        5,643         5,643



 Liabilities Description      Marital Equity       To Wife    To Husband
Credit Card USAA                       22,371                    22,371

Credit Card Navy Federal               10,115                    10,115



                                -4-
        (2) Credit Card(s) AMEX                       29,181       29,181

        Credit Card VISA                              28,000       28,000

        Exxon Mobile                                     400          400

        USAA HELOC                                    58,812

        NationStar Mortgage                           12,415

              Wife is restored to her maiden name of McGainey. Each of the parties
       shall pay their own attorney’s fees. Costs are taxed equally to both parties, for
       which execution may issue if necessary.

        Husband subsequently filed a motion asking the trial court to make additional findings
of fact regarding the value of the home and the final allocation of assets and liabilities, based
on the completed appraisal valuing the home at $475,000. Husband also requested that the
trial court amend its ruling regarding the piano and designate the asset as marital property.
Thereafter, the trial court entered a second order, which provides in pertinent part:

               The parties have now told the Court that the appraisal which the Court
       sought for the parties’ marital home resulted in a value of $475,000.00.
       Approximately $71,000.00 is owed on the mortgages, leaving a net equity of
       approximately $403,735.00. Deducting twenty percent (20%) for cost of sale,
       (if the parties had sold the house) the Court finds the net equity would have
       been $323,020.00. Based upon the former findings that the Court has made in
       its Memorandum Opinion of October 1, 2013, the Court ORDERS that the
       Husband’s share of that equity should be $150,000.00.

Husband timely appeals.

                                     II. Issues Presented

       Husband presents the following issues for our review, which we have restated slightly:

       1.     Whether the trial court erred by classifying the piano as Wife’s separate
              property.

       2.     Whether the trial court erred by awarding to Wife a greater portion of
              the net marital estate, including a greater portion of the equity in the
              marital residence.

                                               -5-
Wife presents the following additional issue:

       3.     Whether Wife should receive an award of attorney’s fees on appeal.

                                   III. Standard of Review

       In a case involving the proper classification and distribution of assets incident to a
divorce, our Supreme Court has elucidated the applicable standard of review as follows:

       This Court gives great weight to the decisions of the trial court in dividing
       marital assets and “we are disinclined to disturb the trial court’s decision unless
       the distribution lacks proper evidentiary support or results in some error of law
       or misapplication of statutory requirements and procedures.” Herrera v.
       Herrera, 944 S.W.2d 379, 389 (Tenn. Ct. App. 1996). As such, when dealing
       with the trial court’s findings of fact, we review the record de novo with a
       presumption of correctness, and we must honor those findings unless there is
       evidence which preponderates to the contrary. Tenn R. App. P. 13(d); Union
       Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993). Because trial
       courts are in a far better position than this Court to observe the demeanor of the
       witnesses, the weight, faith, and credit to be given witnesses’ testimony lies in
       the first instance with the trial court. Roberts v. Roberts, 827 S.W.2d 788, 795
       (Tenn. Ct. App. 1991). Consequently, where issues of credibility and weight
       of testimony are involved, this Court will accord considerable deference to the
       trial court’s factual findings. In re M.L.P., 228 S.W.3d 139, 143 (Tenn. Ct.
       App. 2007) (citing Seals v. England/Corsair Upholstery Mfg. Co., 984 S.W.2d
       912, 915 (Tenn. 1999)). The trial court’s conclusions of law, however, are
       accorded no presumption of correctness. Langschmidt v. Langschmidt, 81
       S.W.3d 741, 744-45 (Tenn. 2002).

Keyt v. Keyt, 244 S.W.3d 321, 327 (Tenn. 2007). Questions relating to the classification of
assets as marital or separate are questions of fact. Bilyeu v. Bilyeu, 196 S.W.3d 131, 135
(Tenn. Ct. App. 2005).

       Further, as this Court has previously held:

       Because Tennessee is a “dual property” state, a trial court must identify all of
       the assets possessed by the divorcing parties as either separate property or
       marital property before equitably dividing the marital estate. Separate property
       is not subject to division. In contrast, Tenn. Code Ann. §36-4-121(c) outlines
       the relevant factors that a court must consider when equitably dividing the

                                               -6-
       marital property without regard to fault on the part of either party. An equitable
       division of marital property is not necessarily an equal division, and §36-4-
       121(a)(1) only requires an equitable division.

McHugh v. McHugh, No. E2009-01391-COA-R3-CV, 2010 WL 1526140 at *3-4 (Tenn. Ct.
App. Apr. 16, 2010) (internal citations omitted). See also Manis v. Manis, 49 S.W.3d 295,
306 (Tenn. Ct. App. 2001) (holding that appellate courts reviewing a distribution of marital
property “ordinarily defer to the trial judge’s decision unless it is inconsistent with the factors
in Tenn. Code Ann. § 36-4-121(c) or is not supported by a preponderance of the evidence.”).

                                 IV. Classification of Property

       Husband posits that the trial court erred in classifying the piano valued at $24,000 as
Wife’s separate property. He argues that Wife failed to prove the piano was a gift and that
the monies supporting the purchase came from their joint funds. Wife asserts that the trial
court’s classification was correct because Husband admitted that the piano was his gift to
Wife. Upon our review of the evidence and record in this case, we agree with Wife.

        It is well settled that assets acquired during a marriage are presumed to be marital
property, and that a party desirous of disputing this classification has the burden of proving
by a preponderance of the evidence that the asset is separate property. See Owens v. Owens,
241 S.W.3d 478, 486 (Tenn. Ct. App. 2007). Therefore, our analysis of the proper
classification of this asset must begin with the presumption that it is marital property as it was
purchased during the parties’ marriage. This presumption can be rebutted, however, by
evidence of circumstances or communications clearly indicating an intent that the property
remain separate. See Batson v. Batson, 769 S.W.2d 849, 858 (Tenn. Ct. App. 1989). As this
Court has previously explained, the types of evidence sufficient to rebut the presumption are
found in Tennessee Code Annotated § 36-4-121(b)(2)(B)-(F) (2014):

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

       (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

                                                -7-
       (F) Property acquired by a spouse after an order of legal separation where the
       court has made a final disposition of property.

Fox v. Fox, No. M2004-02616-COA-R3-CV, 2006 WL 2535407 at *4 (Tenn. Ct. App. Sept.
1, 2006) (referencing the statutory definition of “separate property” found in Tennessee Code
Annotated § 36-4-121(b)(2)(B)-(F)).

       In the instant action, Wife listed the piano as her separate property on the asset
statement she submitted at trial. According to Wife, she classified the piano as such because
it was purchased for her by Husband when the parties built the marital home. Wife related:

       Well, it was always known that I wanted a piano. That’s my hobby. Probably
       more than anything playing the piano is my hobby. So when we built the house,
       we built a house with a piano room. We said the first thing we would fill the
       room with would be my piano. So we went out and purchased that. And we
       were together when we purchased it.

      Husband testified that he bought the piano in 1990, purchasing it by utilizing a portion
of Wife’s bonus and paying the balance with his funds. Husband admitted that it was Wife
who desired the piano as he did not play the instrument. Further, Husband stated in two
unsworn pleadings that the piano was a gift from him to Wife.

        As previously explained, this Court must give considerable deference to the trial
court’s factual finding regarding the proper classification of an asset. See Keyt, 244 S.W.3d
at 327. Based upon the evidence presented, we conclude that the trial court did not err in its
classification of the piano as Wife’s separate property. Husband admitted that Wife wanted
the piano and that he purchased it specifically for her. A gift from one spouse to another
during the marriage is considered the donee spouse’s separate property. See Denton v.
Denton, 33 S.W.3d 229, 233 (Tenn. 2000); Batson, 769 S.W.2d at 859. The evidence
preponderates in favor of the trial court’s finding that the piano was a gift to Wife; therefore,
the trial court properly classified this asset as Wife’s separate property.

                         V. Equitable Division of Marital Property

       Husband contends that the trial court erred in its division of the marital estate.
Specifically, Husband asserts that the trial court improperly divided the equity in the marital
residence by only allocating $150,000 to him. The equity in this improved real property was
established to be the most significant asset in the marital estate.

       The trial court determined the value of the marital residence to be $475,000 based on

                                               -8-
an appraisal obtained by the parties following the trial. As the court deducted the debt
associated with the marital residence, the equity value was found to be $403,735. The court
deducted an additional twenty percent for costs associated with a sale of the home, had one
been accomplished. The “net equity value” was accordingly set at $323,020. From this “net
equity value,” the trial court awarded Husband $150,000.

        Husband posits that the trial court erred in deducting twenty percent for the cost of
selling the home, as there was no proof of such expense presented at trial. Wife asserts that
the trial court properly considered this cost in the event Wife was unable to purchase
Husband’s interest. It is undisputed, however, that (1) Wife had been approved for a loan to
purchase Husband’s interest, (2) the house was not listed for sale, and (3) no proof was
presented to support an expense of sale totaling twenty percent. According to Wife, she
wanted to retain the home as her sole property. She expressed no desire to sell the asset.

        We agree with Husband that the trial court erred in deducting twenty percent for the
costs associated with a possible sale of the home inasmuch as Wife made clear that she did
not intend to sell it. The parties had not listed the home for sale, and there was a dearth of
evidence regarding any potential costs that might be associated with selling the home. Wife
testified that she wished to keep and occupy the residence. The trial court granted her request,
awarding the home to her and awarding Husband a share of the “net” equity. In the absence
of ordering the home to be sold, however, the trial court had insufficient basis to reduce the
equity value by the cost of selling the home. Such a calculation resulted in an inequitable
windfall to Wife regarding the equity value of this asset awarded solely to her.

       As this Court has explained:

       The trial court’s goal in every divorce case is to divide the parties’ marital
       estate in a just and equitable manner. The division of the estate is not rendered
       inequitable simply because it is not mathematically equal, or because each party
       did not receive a share of every item of marital property. In the final analysis,
       the justness of a particular division of the marital property and allocation of
       marital debt depends on its final results.

Payne v. Payne, No. E2006-02467-COA-R3-CV, 2007 WL 2668588 at *4 (Tenn. Ct. App.
Sep. 12, 2007) (internal citations omitted). Further, the trial court is to consider the following
statutory factors in making an equitable distribution:

       (1) The duration of the marriage;

       (2) The age, physical and mental health, vocational skills, employability,

                                               -9-
       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)(A) 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;

       (B) For purposes of this subdivision (c)(5), dissipation of assets means wasteful
       expenditures which reduce the marital property available for equitable
       distributions and which are made for a purpose contrary to the marriage either
       before or after a complaint for divorce or legal separation has been filed.

       (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).

       This case involves a marriage of twenty-eight years. The parties are of similar age and
earning capacity. Both have experienced health issues but not to an extent that they are

                                               -10-
prevented from continuing in their employment. Each party contributed to the education and
increased earning power of the other, and both contributed to the marital estate as wage
earners. The parties would appear to possess equal ability to acquire assets in the future, and
neither was shown to have dissipated assets. Further, neither party possessed a significant
estate at the time of the marriage, and neither owned a significant amount of separate property
at the time of the judgment of divorce.

        Utilizing the “net equity value” of the marital residence of $323,020 as found by the
trial court, Wife was awarded a total of $549,495 in marital assets and $143,808 in marital
debts. Husband was awarded $408,385 in marital assets and $32,486 in marital debts.
Therefore, the trial court’s overall distribution awarded 52% of the marital estate to Wife and
48% to Husband. Considering the evidence presented in light of the applicable factors, we
find this nearly equal percentage distribution to be equitable. See Payne, 2007 WL 2668588
at *4. As noted previously, however, the trial court’s reduction of the equity value in the
marital residence by the costs of a hypothetical sale has resulted in a windfall to Wife of
$80,7151 in equity.

       As the trial court found, the actual equity value of the marital residence before
deduction of any sale costs is $403,735. Utilizing this number, the trial court’s award to
Husband of only $150,000 in equity would result in Husband receiving an overall distribution
of 44%, and Wife receiving 56% of the total marital estate. We determine that such a result
would be inequitable considering the evidence presented in light of the statutory factors.
Therefore, in order to effectuate the trial court’s ostensible overall distribution of 48% of the
marital estate to Husband and 52% to Wife, we modify Husband’s allocation of equity in the
marital residence to $188,000.2 As the trial court ordered, Wife will be allowed to retain the
marital residence as her sole property. She also will be solely responsible for payment of the
mortgage and home equity line of credit related to the residence. Wife shall pay to Husband
$188,000 in order to purchase his share of the equity in the home. The trial court’s division
of the marital estate is affirmed in all other respects.

                                        VI. Attorney’s Fees

        Wife has requested an award of attorney’s fees on appeal as she contends that all of the
issues appealed by Husband were within the trial court’s discretion. Having granted Husband


       1
           $403,735 minus $323,020 equals $80,715.
       2
         This greater allocation would result in Husband receiving a net estate of $413,899 and Wife
receiving a net estate of $448,402. The overall marital estate would be valued at $862,301. Therefore,
Husband would receive 48% and Wife would receive 52% of the total estate.

                                                 -11-
some relief, however, we determine that this is not an appropriate case for an award of
attorney’s fees on appeal. As this Court has stated:

      [I]t is in the sole discretion of this court whether to award attorney’s fees on
      appeal. As such, when this Court considers whether to award attorney’s fees
      on appeal, we must be mindful of “the ability of the requesting party to pay the
      accrued fees, the requesting party’s success in the appeal, whether the
      requesting party sought the appeal in good faith, and any other equitable factor
      that need be considered.”

Parris v. Parris, No. M2006-02068-COA-R3-CV, 2007 WL 2713723 at *13 (Tenn. Ct. App.
Sept. 18, 2007) (quoting Dulin v. Dulin, No. W2001-02969-COA-R3-CV, 2003 WL
22071454 (Tenn. Ct. App. Sept. 3, 2003)) (other internal citations omitted).

                                     VII. Conclusion

       For the reasons stated above, we modify the trial court’s allocation to Husband of
equity in the marital residence from $150,000 to $188,000. The trial court’s judgment is
affirmed in all other respects. We deny Wife’s request for an award of attorney’s fees on
appeal. This case is remanded to the trial court for enforcement of the judgment as herein
modified. Costs on appeal are taxed equally between the parties.




                                                   _________________________________
                                                   THOMAS R. FRIERSON, II, JUDGE




                                            -12-
