                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                               December 8, 2010 Session

                KRISTENE M. BREWER v. BOYD W. BREWER

                  Appeal from the Circuit Court for Franklin County
                      No. 17,278-CV      Buddy D. Perry, Judge


               No. M2010-00768-COA-R3-CV - Filed February 14, 2011


Former cohabitant brought this partition action with respect to real and personal property.
On appeal, the defendant argues that the trial court erred in dividing the real property and a
mobile home, in finding the motor vehicles to be jointly-owned property, and in dividing the
proceeds of a savings account equally between the parties. We have concluded that the trial
court erred in dividing the savings account, which is titled in the defendant’s name alone.
In all other respects, we affirm the decision of the trial court.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed in
                              Part, Reversed in Part

A NDY D. B ENNETT, J., delivered the opinion of the Court, in which P ATRICIA J. C OTTRELL,
P.J., M.S., and R ICHARD H. D INKINS, J., joined.

James C. Thomas, Winchester, Tennessee, for the appellant, Boyd W. Brewer, Sr.

Floyd Don Davis and Norris Arthur Kessler, III, Winchester, Tennessee, for the appellee,
Kristene M. Brewer.

                                         OPINION

                        F ACTUAL AND P ROCEDURAL B ACKGROUND

       Kristene Brewer and Boyd Brewer were married in the early 1980s and divorced in
1987. As part of the 1987 divorce, Mr. Brewer received the marital residence, located at 140
Liberty Road in Winchester, Tennessee; Ms. Brewer executed a deed to Mr. Brewer, and the
deed was recorded. Mr. Brewer assumed the remaining indebtedness on the property in the
amount of $10,000.00.
       The Brewers soon got back together, and they remarried in 1988. Ms. Brewer moved
back into the 140 Liberty Road home. The parties divorced again in 1993 but subsequently
resumed cohabitating at 140 Liberty Road. The Brewers did not remarry after the 1993
divorce. During their 30-year relationship, Mr. and Ms. Brewer lived together for all but
about two or three months; they raised three children and three grandchildren.

       The 140 Liberty Road house was destroyed by fire in December 1999. The
homeowner’s policy paid $63,000, and this money was used to purchase real property located
at 79 Liberty Road for $63,000. The deed to the 79 Liberty Road property, recorded at the
time of the sale in January 2000, transferred the property to “Boyd W. Brewer, Sr., and wife,
Kristene M. Brewer,” though the parties were not married at that time.

       About six years before the trial in this case, the parties purchased a double-wide
mobile home and placed it on the property at 140 Liberty Road. The evidence concerning
the personal property at issue will be discussed below.

       Ms. Brewer filed a partition action in December 2008. The matter was heard on July
7, 2009, and both parties testified. In an order entered on July 14, 2009, the trial court made
findings of fact and conclusions of law and divided the property in dispute. (Pertinent
portions of the order will be set out below.) The court denied Mr. Brewer’s motion to alter
or amend on March 9, 2010, and this appeal followed.

       Mr. Brewer argues that the trial court erred in three main respects: (1) when it ordered
that any excess contributions made by Mr. Brewer in the purchase of the 79 Liberty Road
property were offset by Mr. Brewer’s equity in the mobile home; (2) when it found the motor
vehicles to be jointly-owned property; and (3) when it divided the proceeds of a savings
account equally between the parties.

                                   S TANDARD OF R EVIEW

        This court reviews the findings of fact of the trial court de novo with a presumption
of correctness unless the evidence preponderates otherwise. Tenn. R. App. P. 13(d). The
trial court’s conclusions of law are reviewed de novo without a presumption of correctness.
Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993).




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                                         A NALYSIS

                              I. Real estate and mobile home

        The trial court ruled that the property at 140 Liberty Road with the mobile home
“should . . . be the sole property of Mr. Boyd Brewer Sr.” The court determined that the 79
Liberty Road property was jointly owned and should be auctioned off with the proceeds to
be equally divided between the parties. The main issue on appeal stems from the court’s
ruling that “the double wide mobile home and the equity therein on the 140 Liberty Road
property off-sets the excess contributions made by Mr. Boyd Brewer Sr. on the [79] Liberty
Road property.” Mr. Brewer avers that the trial court erred in finding any such offset
because the 140 Liberty Road property is his separate property and therefore is not subject
to partition.

       We begin by examining the relevant factual findings of the trial court:

       The 140 Liberty Road, Winchester, Tennessee property was purchased during
       the first marriage. The house burned and the insurance proceeds were
       collected and used to purchase the 79 Liberty Road property where the parties
       resided until the separation occurred in March of 2009.

       The parties, after the cohabitation started in 1993, purchased a doublewide
       mobile home which is located on 140 Liberty Road, Winchester, Tennessee
       and both parties contributed to the payments of the mortgages on this property.

       The 79 Liberty Road property was purchased with insurance proceeds from the
       fire loss at 140 Liberty Road and there is a material dispute as to who paid for
       the insurance premiums that generated the insurance policy to purchase this
       property.

       The defendant, Boyd W. Brewer, Sr. in his testimony testified that the
       insurance proceeds were in his name only and he purchased the 79 Liberty
       Road property in Winchester, Tennessee. Mr. Brewer Sr. also testified that he
       purchased the property, took it to the lawyer to get the deed drawn and put his
       ex-wife, Kristene Brewer on the deed as a gift so that she would have some
       property to take care of her and the grandchildren.

       The parties purchased various amounts of personal property and various
       amounts of vehicles and motorcycles and 4-wheelers and all of these vehicles



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        were in Mr. Brewer’s name but the testimony is that both parties paid for them.
        Both parties paid for the maintenance and insurance on them.

       Mr. Brewer challenges the trial court’s finding that he put Ms. Brewer’s name on the
deed to 79 Liberty Road as a gift. Mr. Brewer testified that he put Ms. Brewer’s name on the
deed so that, “[i]n case I died or something, then she could take care of the grandkids.” He
emphasizes, however, that he later responded in the negative when asked if he decided to
make a gift of the property to Ms. Brewer. He stated again that he had the deed drawn with
Ms. Brewer’s name on it in order to make sure she had a home for their grandchildren.

       Because the parties were not actually married, the trial court ruled, and the parties
agreed, that Mr. Brewer and Ms. Brewer owned the 79 Liberty Road property as tenants in
common. There is generally a presumption that joint tenants have equal interests, but a
tenant who pays more than his or her share for the property may seek contribution to
compensate him or her. See Harris v. Taylor, No. W2004-02855-COA-R3-CV, 2006 WL
772007, at *3 (Tenn. Ct. App. Mar. 28, 2006).

        The trial court implicitly concluded that Mr. Brewer made a gift to Ms. Brewer of a
one-half interest in the 79 Liberty Road property.1 In order to establish an interest in property
by gift, a party must prove by clear and convincing evidence that the donor intended to make
a gift to the donee and that the donor delivered the property to the donee. Lowry v. Lowry,
541 S.W.2d 128, 130 (Tenn. 1976); Harris v. Taylor, 2006 WL 772007, at *4; Dunlap v.
Dunlap, 996 S.W.2d 803, 815 (Tenn. Ct. App. 1998). The language of the deed is evidence
of an intent to convey ownership, and the recording of the deed is evidence of delivery. See
Rivkin v. Postal, No. M1999-01947-COA-R3-CV, 2001 WL 1077952, at *11 (Tenn. Ct. App.
Sept. 14, 2001). Mr. Brewer’s testimony also supports the trial court’s finding of a gift since
his desire to have a place for Ms. Brewer to live with the grandchildren would only be
accomplished if Ms. Brewer was entitled to the property (by a right of survivorship) upon his
death.

       Mr. Brewer relies heavily upon the case of Harris v. Taylor, in which the court
concluded that the donee did not prove that a gift had been made. Harris, 2006 WL 772007,
at *5. In that case, the only evidence was the deed and the donee’s denial of the donor’s
assertion that he had not made a gift. Id. at *4. In the present case, the testimony of Mr.
Brewer concerning his intentions in putting Ms. Brewer’s name on the deed supports the
court’s conclusion. In addition, the 79 Liberty Road property was purchased to replace the


        1
         In analyzing the applicable caselaw, the court noted that, in this case, “the person requesting the
major portion of the equity distribution from the property of these parties is the person who made a gift of
this property to the other co-owner.”

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140 Liberty Road property as the parties’ home after the fire, and Mr. Brewer chose to make
the ownership of the 79 Liberty Road property joint whereas he alone owned the 140 Liberty
Road property. This fact, too, supports an intention to make a gift to Ms. Brewer. On the
evidence in this case, we find no error in the court’s conclusion that Mr. Brewer made a gift
to Ms. Brewer of a one-half interest in the 79 Liberty Road property.

       Before reaching the equity offset issue, we must examine the status of the double-wide
mobile home placed on the 140 Liberty Road property. As quoted above, the trial court
expressly found that “both parties contributed to the payments of the mortgages on this [140
Liberty Road] property.” The court also found that both parties paid for the personal
property accumulated during their relationship. In its decree, the court ordered that the 140
Liberty Road property and the mobile home “should . . . be the sole property of Mr. Boyd
Brewer Sr.” Mr. Brewer interprets this language as a ruling that the 140 Liberty Road
property and the mobile home were Mr. Brewer’s separate property and thus must be
awarded to him (since separately owned property is not subject to partition). We disagree
with this interpretation.

        The classification of the real property at 140 Liberty Road is a distinct issue from the
classification of the mobile home, which constitutes personal property.2 Since the court
found that both parties contributed to the mortgages associated with the 140 Liberty Road
property and to the personal property amassed by the parties, the court implicitly found that
Ms. Brewer contributed to the purchase of the mobile home. This would make the mobile
home jointly-owned property, which the trial court then awarded to Mr. Brewer. This
interpretation is consistent with the court’s language that the mobile home “should” be Mr.
Brewer’s sole property and with its findings concerning the contributions of the parties to
that asset.

       We now examine the central issue raised by Mr. Brewer. He argues that the following
portion of the court’s decree is erroneous: “The Court specifically finds that the double wide
mobile home and the equity therein on the 140 Liberty Road property off-sets the excess
contributions made by Mr. Boyd Brewer Sr. on the [79] Liberty Road property.”

       The parties gave sharply conflicting testimony as to their respective contributions to
the 79 Liberty Road property. Ms. Brewer testified that she and Mr. Brewer essentially



        2
         Although for tax purposes the value of a mobile home may, under certain circumstances, be
attributed to the underlying land, the sale of a mobile home constitutes a sale of personal property and is
subject to the Uniform Commercial Code. Paskell v. Nobility Homes, Inc., 871 S.W.2d 481, 483 (Tenn.
1994); CMH Homes, Inc. v. McEachron, No. E2004-02189-COA-R3-CV, 2005 WL 2387153, at *4 (Tenn.
Ct. App. Sept. 29, 2005).

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pooled their income and paid all of the bills through his bank accounts. Over the years, there
were times when Ms. Brewer made more money and other times when Mr. Brewer made
more money.3 Ms. Brewer stated that both parties helped pay for the homeowner’s insurance
and for a new roof that was put on the house about five years before the trial. Mr. Brewer,
by contrast, testified that he paid the $2,650 for the new roof and that Ms. Brewer was
mistaken about giving him money to put into his checking account to pay the bills.
According to him, Ms. Brewer “has never give me a dime.”

       The law allows a joint tenant compensation for contributing more than his or her share
for improvements to the property that enhance its value, necessary repairs and maintenance,
and satisfaction of encumbrances. Broyles v. Waddel, 58 Tenn. (11 Heisk.) 32, 42-43 (Tenn.
1872); Parker v. Lambert, 206 S.W.3d 1, 5 n.2 (Tenn. Ct. App. 2006). The trial court
appears to have credited, at least to some extent, Mr. Brewer’s testimony that he made greater
contributions to improvements that enhanced the property’s value and/or to repairs and
maintenance. The court found, however, that Mr. Brewer’s excess contributions to the 79
Liberty Road property were offset by the court’s award to him of the mobile home and any
associated equity, half of which had belonged to Ms. Brewer.

       Overall, we find no error in the trial court’s ruling regarding the two pieces of real
property on Liberty Road and the mobile home.

                                               II. Vehicles

      The trial court was asked to partition three cars, a motorcycle, and three four-
wheelers. After concluding that both parties paid for these vehicles and that both parties paid
the maintenance and insurance, the trial court ordered that the vehicles be sold and the
proceeds divided equally. Mr. Brewer argues that the trial court erred because all three cars
and the motorcycle were titled in his name and the proof showed that one of the four-
wheelers was paid for and titled to him.

       Under well-established Tennessee law, the titling of a vehicle does not conclusively
determine ownership. Rivkin, 2001 WL 1077952, at *11; Smith v. Smith, 650 S.W.2d 54, 56
(Tenn. Ct. App. 1983). Rather, “the intention of the parties, not the certificate of title,
determines the ownership of an automobile.” Smith, 650 S.W.2d at 56. Ownership is an
issue of fact. Cunningham v. Dep’t of Safety, No. 01A01-9509-CH-00411, 1997 WL
266851, at *2 (Tenn. Ct. App. May 21, 1997). The trier of fact may consider and weigh the
evidence regarding the following:



       3
           After a work injury, Mr. Brewer was unable to work for over a year.

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       (1) the circumstances surrounding the vehicle’s purchase, (2) the registration
       of the vehicle, (3) all aspects of insuring the vehicle, (4) all parties’ financial
       stake in the vehicle, (5) the actual possession of the vehicle, (6) the
       responsibility of bearing the expense of operating, maintaining, and licensing
       the vehicle, and (7) the ultimate right to control the vehicle and to make major
       decisions concerning the vehicle such as its use and restrictions on its use or
       the sale or other disposition of the vehicle.

Id. (footnotes omitted); see also In re Estate of Carter, No. W2009-01765-COA-R3-CV,
2010 WL 1404419, at *4 (Tenn. Ct. App. Apr. 8, 2010).

        In this case, as Mr. Brewer points out, there was a sharp disagreement in the testimony
of the parties as to who paid for and maintained the vehicles. It is clear, however, that the
trial court credited the testimony of Ms. Brewer over that of Mr. Brewer regarding the
vehicles because the court found that both parties paid for and maintained the vehicles. We
“give great weight to the trial court’s assessment of the evidence because the trial court is in
a much better position to evaluate the credibility of the witnesses.” Boyer v. Heimermann,
238 S.W.3d 249, 255 (Tenn. Ct. App. 2007). The evidence does not preponderate against
the trial court’s finding that both parties contributed to the purchase and maintenance of the
vehicles. We find no error in the trial court’s decision to order the proceeds from the sale of
the vehicles to be divided equally.

                                           III. Savings account

       The court did not make any specific factual findings with regard to the savings
account in Mr. Brewer’s name, but decreed that the money in the account (approximately
$6,000) should be divided equally between the parties. We have concluded that the trial
court erred in dividing the savings account.

       We start with a review of the evidence regarding the savings account at issue, an
account at Citizens Community Bank opened on March 6, 2009, by Mr. Brewer in his name
alone and into which he deposited money from his other accounts.4 The testimony of the
parties is equivocal. While she initially testified that she contributed to the savings
transferred to the account at issue, Ms. Brewer subsequently explained her position that she
was entitled to an interest in Mr. Brewer’s savings account because it was her income that
made it possible for him to save money:




       4
           The parties did not have any joint bank accounts after their second divorce.

                                                     -7-
       Well, if I didn’t work, . . . , Boyd couldn’t have saved what he did save. I
       mean, it took both of us to work, and I feel like I worked just as much as him,
       but I had my own–well, I didn’t contribute to his savings. I did mine.

Ms. Brewer went on to testify that she contributed to her own savings account at SunTrust.

      Mr. Brewer testified that he transferred money from his other accounts into the
savings account at issue on March 6, 2009, the day after his deposition was taken, because
Ms. Brewer still had computer access to his other accounts. He denied that Ms. Brewer ever
gave him money.

       Ms. Brewer relies on two theories to justify the trial court’s division of the savings
account: partnership principles and the equitable concept of a resulting trust. The partnership
theory is without merit because, under Tennessee law, partnership principles have only been
recognized by the courts with respect to business relationships. See Martin v. Coleman, 19
S.W.3d 757, 761 (Tenn. 2000); Bass v. Bass, 814 S.W.2d 38, 41 (Tenn. 1991); Story v.
Lanier, 166 S.W.3d 167, 178 (Tenn. Ct. App. 2004). In Martin, a case involving a couple
who stayed together for sixteen years after their divorce, our Supreme Court declined to find
that an implied partnership (with respect to a business) could extend to retirement benefits
accumulated by one partner:

       To hold that these retirement benefits are available as partnership assets would
       require this Court to expand the concept of implied partnership beyond the
       business relationship now conceded by the parties. In essence, we would be
       required to hold that unmarried couples may create an implied partnership
       simply by their continued cohabitation. We decline to do so.

Martin, 19 S.W.3d at 761-62. In light of this precedent, the partnership theory fails in this
case.

         The equitable device of a resulting trust is used by courts to prevent unjust
enrichment. In re Estate of Nichols, 856 S.W.2d 397, 401 (Tenn. 1993). The device allows
a court to “reach an interest in property belonging to one person yet titled in and held by
another.” Smalling v. Terrell, 943 S.W.2d 397, 400 (Tenn. Ct. App. 1996) (quoting Wells
v. Wells, 556 S.W.2d 769, 771 (Tenn. Ct. App. 1977)). The principle underlying a resulting
trust is that “a trust follows or goes with the real consideration, or results to him from whom
the consideration actually comes; that the owner of the money that pays for the property
should be the owner of the property.” Smalling, 943 S.W.2d at 400 (quoting Livesay v.
Keaton, 611 S.W.2d 581, 584 (Tenn. Ct. App. 1980)). A resulting trust is generally imposed



                                              -8-
“in accordance with the actual or assumed intention of the parties.” Burleson v. McCrary,
753 S.W.2d 349, 352-53 (Tenn. 1988).

        A resulting trust and its terms must be proven by more than a preponderance of the
evidence: “clear, cogent, and convincing” evidence. St. Clair v. Evans, 857 S.W.2d 49, 51
(Tenn. Ct. App. 1993). While a resulting trust is generally proven by parol evidence,
“[o]rdinarily, the testimony of a single, interested witness would not be sufficient to establish
a trust by clear, cogent and convincing evidence.” Id.; see also Story, 166 S.W.3d at 184.

        In the present case, the trial court did not state that it was imposing a resulting trust,
and none of its findings support the existence of such a trust. While some of Ms. Brewer’s
testimony suggests that she contributed to Mr. Brewer’s savings account, she subsequently
stated that she felt entitled to part of the account because her income made it possible for him
to save and that she had made deposits in her own savings account. Mr. Brewer flatly denied
any contribution by Ms. Brewer. Moreover, the testimony of one interested witness–Ms.
Brewer–is not sufficient to prove a resulting trust. See St. Clair, 857 S.W.2d at 51. We must
conclude, therefore, that this theory does not justify the trial court’s partition of the savings
account.

      The trial court erred in dividing Mr. Brewer’s savings account, which should be
considered his separate property.

                                         C ONCLUSION

        The trial court’s decision is reversed with respect to the savings account but affirmed
in all other respects. Costs of the appeal are to be taxed equally to both parties, for which
execution may issue if necessary.

                                                         ______________________________
                                                              ANDY D. BENNETT, JUDGE




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