               IN THE COURT OF APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                 June 30, 2015 Session

             IN RE ESTATE OF LINDA QUASNITSCHKA KIRBUS

                Appeal from the Chancery Court for Monroe County
                   No. 18079    Hon. Jerri S. Bryant, Chancellor


            No. E2014-02091-COA-R3-CV-FILED-SEPTEMBER 1, 2015


This is an estate case involving the division of two properties used as collateral to secure
a commercial note. When the decedent‟s beneficiaries sought to partition the properties,
her former husband objected, asserting that he assumed sole ownership of the properties
by fulfilling the note with proceeds from the decedent‟s life insurance policies.
Following a hearing, the trial court found that the beneficiaries were entitled to a 70
percent share of the properties. The former husband appeals. We affirm the decision of
the trial court as modified.

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

JOHN W. MCCLARTY, J., delivered the opinion of the Court, in which CHARLES D.
SUSANO, JR., C.J., and THOMAS R. FRIERSON, II, J., joined.

Wynne du M. Caffey, John T. Rice, and Gary T. Dupler, Knoxville, Tennessee, for the
appellant, Frank Kirbus.

Lewis S. Howard, Jr. and Erin J. Wallen, Knoxville, Tennessee, for the appellee, Blair
Quasnitschka, individually and as personal representative for the Estate of Linda
Quasnitschka Kirbus and Alex Quasnitschka.

                                        OPINION

                                  I.     BACKGROUND

        Frank Kirbus (“Husband”) and Linda Quasnitschka Kirbus (“Decedent”) were
divorced by final decree in Avon, Connecticut in June 2008. Decedent had two children
prior to the marriage that have attained the age of majority. No children were born of the
marriage. Husband and Decedent owned several parcels of real property at the time of
the divorce. The parcels at issue are Lots 426 and 1119 in Tennessee. The lots were used
as collateral to secure a commercial note in the amount of $688,619.94. The separation
agreement1 that was incorporated into the final decree of divorce provided as follows:

                                   Article V – LIFE INSURANCE

          [Decedent] will retain the [Husband] as primary beneficiary on her two life
          insurance policies, with face value of $850,000.00 combined, until lots 426
          and 1119, Rarity Bay, Vonore, TN are sold. [Husband] will retain
          [Decedent] as primary beneficiary on his $1,000,000.00 face value life
          insurance policy until both Rarity Bay lots cited above are sold, and until
          such time as [Decedent] is no longer a mortgagor or is in any way
          financially obligated to lot 130, Rarity Club, Jasper, TN.

          Upon said conditions being met, the parties are free to change beneficiaries
          on their respective policies.


                                     Article VI – REAL ESTATE

                                                    ***

          [Decedent] and [Husband] agree to share monthly expenses on lots 426 and
          1119 Rarity Bay, Vonore, TN. Upon the sale of each parcel the parties
          agree to share the proceeds of the sale as follows:

          [Decedent] will [receive] 70% of the net equity proceeds and [Husband]
          will [receive] 30% of the net equity proceeds. [Decedent] will also be
          given the CD Suntrust Account which is associated to the loans of said
          properties. [Decedent] will also receive the refund of the golf membership
          if and when said property sells. Said parcels shall be held jointly until they
          are sold. The parties agree to reduce the asking price of lot 426 from
          $595,000.00 to $545,000.00 and on lot 1119 from $339,000.00 to
          $289,000.00. Any further reductions in order to sell said properties shall be
          made between the parties. [Husband] will have sole ownership of lot 130
          Rarity Club, Jasper, TN. [Decedent] will execute all necessary deeds and
          documents to accomplish same and [Husband] will hold [Decedent]
          harmless from any and all mortgage payments on said property. Both


1
    In Tennessee, these agreements are referred to as marital dissolution agreements.
                                                      -2-
       parties agree to execute all necessary documents and deeds in order to
       effectuate the terms and conditions of the Settlement Agreement.

       Husband and Decedent enjoyed an amicable relationship following their divorce
until Decedent succumbed to cancer in October 2012. Shortly thereafter, Husband
obtained a copy of her death certificate and collected the proceeds from her two life
insurance policies. He used a portion of the proceeds to fulfill the commercial note on
Lots 426 and 1119 in the total amount of $435,781.08.

         Decedent‟s will provided for the descent of her interest in any real property to her
two sons, Blair and Alex Quasnitschka (collectively “Beneficiaries”). Blair Quasnitschka
(“Executor”) was also designated as the executor of the estate. Executor filed the will in
the State of Connecticut, Court of Probate, Simsbury Regional Court, District No. 9 (“the
Connecticut Court”). After a decree granting administration of probate was issued,
Executor filed a copy of the record from the Connecticut Court and a petition for probate
of the will as muniment of title to Lots 426 and 1119 in the Monroe County Probate
Court. The probate court entered an order finding that the will served as muniment of
title to Decedent‟s interest in Lots 426 and 1119.

        Beneficiaries then filed a joint petition in the Monroe County Chancery Court to
partition Lots 426 and 1119, alleging that they owned an undivided 70 percent interest in
the properties pursuant to the will and the separation agreement. They requested a
partition in kind, with title of Lot 426 passing to them and title of Lot 1119 passing to
Husband, who retained a 30 percent interest in the properties pursuant to the separation
agreement. Husband responded by denying that Beneficiaries were entitled to any
portion of the properties.

        Husband filed a counter-complaint, requesting a declaratory judgment establishing
that he was entitled to the entirety of the properties. He claimed that Decedent did not
have an equitable interest in the properties because the commercial note exceeded the fair
market value of the properties at the time of her death. He asserted that he assumed
equitable and actual ownership of the properties by fulfilling the note after Decedent‟s
passing. He alternatively argued that he was entitled to 70 percent of the amount paid to
unencumber the properties and 70 percent of the ongoing expenses associated with the
properties. Beneficiaries responded by asserting that the separation agreement provided
for the use of the proceeds from the life insurance policies to unencumber the properties
in the event of either party‟s untimely death.

      Prior to trial, the court ruled that it would “construe the documents executed in
Connecticut pursuant to Connecticut law and decide the real property and partition issues
under Tennessee law.” Executor acknowledged at trial that he used estate funds to pay
                                            -3-
Decedent‟s November and December payments on the note and to pay other property
expenses pursuant to Decedent‟s agreement with Husband. He recalled that Husband
later requested a copy of the death certificate to claim the proceeds from the life
insurance policies. Executor admitted that he asked Husband to document his intent to
use the proceeds to unencumber the properties and that he only provided Husband with
two copies of the death certificate after he received the requested documentation. He
claimed that Husband fulfilled the note as agreed. He stated that Husband never sought
assistance from him or the estate in fulfilling the note and never requested payment or
contribution in connection with the final payment of the note.

       Executor testified that Husband ignored his repeated requests to partition      the
properties pursuant to Decedent‟s will and the separation agreement and that           his
attempted communications with Husband became less than civil. He requested             fee
simple ownership of Lot 426 as a partition in kind of the properties. He opined that   Lot
426 was worth approximately 70 percent of the total value of the two properties.

       A portion of Husband‟s deposition testimony was read into the record at trial.
Husband stated that he and Decedent procured the life insurance policies to protect them
financially after they purchased Lots 426 and 1119. He said that he used some of the
proceeds from the life insurance policies to fulfill the note secured by the properties.

        Husband testified at trial that he and Decedent planned to build a home on Lot
1119 and to use Lot 426 as an investment property. He recalled that they listed the
properties for sale after they purchased a third lot. He acknowledged that he agreed to
the division of his interest in the properties as reflected in the separation agreement. He
provided that they alternated the payment on the note secured by the properties each
month and that Decedent reimbursed him for half of the property expenses each year
while they awaited the sale of the properties. He stated that he continued to remit
payments on the note following Decedent‟s passing and that he allowed Decedent‟s estate
to continue remitting her payments on her behalf. He claimed that he fulfilled the note
because he could not refinance the note, which was set to mature in December 2012. He
agreed to provide the requested documentation to Executor because he needed the death
certificates to claim the life insurance proceeds.

       Husband requested fee simple ownership of Lots 426 and 1119. He alternatively
requested contribution from Beneficiaries for their portion of the properties he
unencumbered and for expenses related to the properties. He agreed that he did not
request contribution from Beneficiaries immediately following his payment of the note.




                                           -4-
       Following the presentation of the above evidence, the trial court determined that
Beneficiaries were entitled to a partition of Lots 426 and 1119. The court stated, in
pertinent part,

       There‟s no language in the document that requires that in the event of either
       party‟s death this money is to be paid on the debts. But life insurance is
       there to protect the parties from the debt. The deadman statute prohibits
       testimony about her intent in this matter, and so I have to look at not just
       the real estate paragraph but the life insurance paragraph.

                                              ***

       Life insurance is for the purpose of protecting the party that remains alive.
       And that would be relying on the other party for help in payments of debts.
       Since this document did not address how the ownership would change, the
       Court can assume that the ownership did not change. The life insurance
       would be there to protect the debt but not to change the ownership.

Upon its receipt of the court-ordered appraisal, the court entered a final order of partition
in kind, providing that Beneficiaries were entitled to fee simple ownership of Lot 426 and
that Husband was entitled to fee simple ownership of Lot 1119 and a credit in the amount
of $5,500 to equalize the partition pursuant to the separation agreement. This timely
appeal followed.

                                        II.     ISSUES

       We consolidate and restate the issues raised on appeal as follows:

       A.     Whether the trial court erred in partitioning the properties.

       B.     Whether the trial court erred in denying Husband‟s claim for
       contribution.

                             III.   STANDARD OF REVIEW

       At issue in this case is the interpretation of the separation agreement between
Husband and Decedent. In terms of contracts, like the separation agreement at issue in
this appeal, Tennessee has long applied the doctrine of “lex loci contractus” when dealing
with contractual choice-of-law issues. Ellis v. Pauline S. Sprouse Residuary Trust, 280
S.W.3d 806, 814 (Tenn. 2009). “[T]his rule provides that a contract is presumed to be
governed by the law of the jurisdiction in which it was executed absent a contrary intent.”
                                              -5-
Vantage Tech., LLC v. Cross, 17 S.W.3d 637, 650 (Tenn. Ct. App. 1999). Accordingly,
we conclude that application of Connecticut law to this case on the substantive issues
before the court was appropriate when the separation agreement was executed in
Connecticut. However, “Tennessee‟s law governs the procedural aspects of this case
even if [Connecticut‟s] law governs the substantive issues.” Standard Fire Ins. Co. v.
Chester O’Donley & Assocs., Inc., 972 S.W.2d 1, 5 (Tenn. Ct. App. 1998).

       We review a trial court‟s findings of fact de novo with a presumption of
correctness unless the preponderance of the evidence is otherwise. Tenn. R. App. P.
13(d); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001). We review questions of law
de novo with no presumption of correctness. Whaley v. Perkins, 197 S.W.3d 665, 670
(Tenn. 2006).

                                   IV.    DISCUSSION

                                           A.

       Husband argues that the separation agreement was silent as to whether he was
required to apply the insurance proceeds to the commercial note, thereby providing
Beneficiaries with unencumbered property at no cost to them. He claims that reading
such a requirement into the contract was erroneous. Beneficiaries respond that the court
properly construed the agreement by interpreting the language in light of the situation of
the contracting parties and the circumstances present at the time of contracting.

     The general rules and principles guiding the construction of a contract in
Connecticut provide as follows:

      It is well established that a separation agreement that has been incorporated
      into a dissolution decree and its resulting judgment must be regarded as a
      contract and construed in accordance with the general principles governing
      contracts. When construing a contract, we seek to determine the intent of
      the parties from the language used interpreted in the light of the situation
      of the parties and the circumstances connected with the transaction . . . .
      [T]he intent of the parties is to be ascertained by a fair and reasonable
      construction of the written words and . . . the language used must be
      accorded its common, natural, and ordinary meaning and usage where it can
      be sensibly applied to the subject matter of the contract. When only one
      interpretation of a contract is possible, the court need not look outside the
      four corners of the contract. . . . Extrinsic evidence is always admissible,
      however, to explain an ambiguity appearing in the instrument. . . .

                                           -6-
Isham v. Isham, 972 A.2d 228, 180-81 (Conn. 2009) (citations and internal quotation
marks omitted) (emphasis added). The Supreme Court of Connecticut further provides,

       Contract language is unambiguous when it has a definite and precise
       meaning . . . concerning which there is no reasonable basis for a difference
       of opinion. . . . The proper inquiry focuses on whether the agreement on its
       face is reasonably susceptible of more than one interpretation. It must be
       noted, however, that the mere fact that the parties advance different
       interpretations of the language in question does not necessitate a conclusion
       that the language is ambiguous. A court will not torture words to import
       ambiguity where the ordinary meaning leaves no room for ambiguity. . . .
       Similarly, any ambiguity in a contract must emanate from the language
       used in the contract rather than from one party‟s subjective perception of
       the terms. Finally, in construing contracts, we give effect to all the
       language included therein, as the law of contract interpretation . . . militates
       against interpreting a contract in a way that renders a provision superfluous.

Id. at 180-81.

       The agreement specifically required Husband and Decedent to designate the other
party on their respective life insurance policies until the properties were sold. The
agreement also provided that Decedent was entitled to a 70 percent share of the net equity
proceeds when the properties were sold. Without adding to or detracting from the
agreement, we agree with the trial court that the language used indicates that the parties
intended to protect each other from the commercial note by maintaining individual life
insurance policies. The agreement did not anticipate a change of ownership if and when
either party unencumbered the property by using the proceeds from one of the life
insurance policies. Husband essentially requests the addition of a new term into the
contract, namely that he acquired ownership of the properties by unencumbering them.
While the parties may have added this term had their attention been called to that
possibility, we may not add the term at this stage in the proceeding given the absence of
any language in the agreement supporting the requested interpretation. Accordingly, we
affirm the trial court‟s partition in kind of the properties.

                                             B.

       Husband alternatively requests relief in the form of contribution because he paid
more than his share of the debt as a result of Decedent‟s passing. Beneficiaries respond
that Husband is not entitled to relief when the separation agreement provided for the
discharge of the debt through the use of the proceeds from the life insurance policies.
Beneficiaries alternatively respond that he waived any claim of contribution by failing to
                                             -7-
file a claim in either estate proceeding and by failing to request contribution following his
payment of the commercial note.

       Tennessee law governs this issue. A review of the record reveals that Husband
specifically requested equitable relief in his counter-complaint for a declaratory
judgment. Indeed, he requested “70% of the amount paid to unencumber the lots,
equaling a total of $305,046.76, and 70% of all the ongoing expenses associated with said
lots.” Accordingly, this issue is not waived.

       The right to contribution, now statutorily recognized by Tennessee Code
Annotated section 47-3-116(a), was founded upon equitable principles. Thompson v.
Davis, 308 S.W.3d 872, 880-81 (Tenn. Ct. App. 2009). The right to contribution only
applies where the „“parties share a common obligation or liability, but one party has paid
more than its proper share of the obligation.”‟ Id. at 881 (quoting First Nat’l Bank of
Chicago v. Cumberland Bend Investors, L.P., No. M2000-00001-COA-R3-CV, 2002 WL
31835693, at *4 (Tenn. Ct. App. Dec. 19, 2002)). Here, Husband shared a common
obligation with Decedent, namely the commercial note that secured the two properties at
issue in this appeal. The parties intended to protect each other from the commercial note
by maintaining individual life insurance policies. Husband remitted more than his proper
share of the obligation by fulfilling the note in its entirety. While we agree that
Husband‟s fulfillment of the note did not enact a change of ownership in the properties
secured by the note, he is entitled to contribution from Decedent‟s estate based upon his
payment of Decedent‟s share of the debt and ongoing expenses.

       With all of the above considerations in mind, we affirm the trial court‟s partition
in kind of the properties but modify the court‟s judgment to reflect a lien on the property
awarded to Beneficiaries for Husband‟s payment of Decedent‟s share of the debt and
expenses. We remand this case to the trial court for a hearing to determine the amount
paid by the Husband on the Decedent‟s share of the debt and the expenses. This amount
will be the amount of the lien.

                                   V.      CONCLUSION

       The judgment of the trial court is affirmed as modified. The case is remanded for
such further proceedings consistent with this opinion. Costs of the appeal are taxed to the
appellee, Blair Quasnitschka, individually and as personal representative for the Estate of
Linda Quasnitschka Kirbus and Alex Quasnitschka.


                                                  _________________________________
                                                  JOHN W. McCLARTY, JUDGE
                                            -8-
