                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
                           Assigned on Briefs September 21, 2007

    SARAH ELIZABETH FERGUSON v. JOHNNY WAYNE FERGUSON

                    Appeal from the Chancery Court for Lawrence County
                        No. 11376-03   Jim T. Hamilton, Chancellor



                   No. M2005-02468-COA-R3-CV - Filed February 13, 2008


PATRICIA J. COTTRELL, P.J., M.S. dissenting in part.

       Because I disagree with the majority’s conclusion as to the classification of some of the
personal property at issue in this appeal, I must dissent. It is undisputed that the boat and trailer were
Husband’s separate property prior to the marriage. Consequently, we must begin with the
presumption that they should be classified as his separate property. Tenn. Code Ann. § 36-4-
121(b)(2). Therefore, the burden of proving that the property had been transmuted into marital
property lay with Wife. Based on the record before us, I do not believe that Wife met that burden.

        The trial court’s order does not reflect the basis upon which it awarded the boat and trailer
to Wife. Consequently, it is for this court to review the record and determine on its own where the
preponderance of the evidence lies. The specific question is whether Wife established conduct by
Husband regarding the boat so as to establish an intent on his part to make a gift of the boat to the
marital estate. Transmutation occurs when the parties to a marriage treat property in such a way as
to evidence an intention that it become marital property. Langschmidt v. Lanschmidt, 81 S.W.3d
741, 747 (Tenn. 2002). In determining whether otherwise separate property has been converted to
marital property, courts look to the intent and actions of the parties, and the determination is
dependent upon the facts of an individual case. Wilson v. Moore, 929 S.W.2d 367, 374 (Tenn. Ct.
App. 1996); Batson v. Batson, 769 S.W.2d 849, 858 (Tenn. Ct. App. 1988).

        None of the usual or more obvious indices of an intent to gift the marital estate with
separately owned property, such as taking title in joint names, is present herein. See Woodward v.
Woodward, 240 S.W.3d 825, 829 (Tenn. Ct. App. 2007). Instead, the majority relies primarily on
Husband’s deposition statements regarding the boat, along with other items, wherein he stated, “As
long as we was together it was ours.” While that statement may indicate an intent to share use of
the boat during the marriage, it does not, in my opinion, indicate an intent to transfer ownership. The
qualifying condition of the parties being “together” is inconsistent with an intent that ownership be
converted to joint. Additionally, Husband testified that he placed the boat and trailer with his
daughter as collateral for loans she made to him, indicating his exercise of ownership and his belief
that he was the sole owner. It also indicates a lack of intent to gift the boat and trailer to the marital
estate. Accordingly, I would hold that the boat and trailer remained Husband’s separate property and
were, consequently, not subject to distribution as part of the marital estate. In all other respects, I
concur with the majority opinion.



                                                       ____________________________________
                                                       PATRICIA J. COTTRELL, P.J., M.S.




                                                 -2-
