                    IN THE COURT OF APPEALS OF TENNESSEE
                                AT NASHVILLE
                                           July 14, 2005 Session

                    ROBERT C. deJAEGER v. JENNIFER deJAEGER

                      Direct Appeal from the Circuit Court for Wilson County
                                No. 4227DV Clara Byrd, Judge



                     No. M2004-00529-COA-R3-CV - Filed September 12, 2005


The parties were divorced based on stipulated grounds. Husband appeals the award of property to
Wife. We reverse and remand.

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

DAVID R. FARMER , J., delivered the opinion of the court, in which ALAN E. HIGHERS, J. and HOLLY
M. KIRBY, J., joined.

Shawn J. McBrien, Lebanon, Tennessee, for the appellant, Robert C. deJaeger.

James L. Curtis, Nashville, Tennessee, for the appellee, Jennifer deJaeger.

                                                     OPINION

       The facts of this case are largely undisputed. The parties, Robert C. deJaeger (Husband) and
Jennifer deJaeger (Wife), were married on June 22, 1999, after a ten-year relationship. They
separated three and one-half years later. Both parties filed for divorce on April 1, 2003. Wife was
32 years of age; Husband was 43. No children were born of the marriage. Both parties are
employed. During the course of the marriage, the parties maintained separate accounts and paid their
own bills. The trial court entered a final decree of divorce in February 2004, declaring the parties
divorced pursuant to Tennessee Code Annotated § 36-4-129.1 It valued the marital estate at $84,000
and divided the estate equally between the parties. Forty-three thousand dollars ($43,000) of the

       1
           Tennessee Co de Annotated § 36-4-12 9 provides:

       (a) In all actions for divorce from the bonds o f matrimony or legal separation the p arties may stipulate
       as to ground s and/or defenses.
                  (b) The cou rt may, up on stipulation to or pr oof of any ground for divorce pursuant to §
       36-4-101, grant a divorce to the party who was less at fault or, if either o r both parties are entitled to
       a divorce, declare the parties to be divorced, rather than awarding a divorce to either party alone.
estate was equity in real property owned by Husband prior to the marriage. Husband appeals. We
reverse and remand.

                                           Issue Presented

       The issue as presented by Husband for our review is whether the trial court erred “in
determining the marital property of the parties.”

                                         Standard of Review

        We review the trial court’s findings of fact de novo, with a presumption of correctness. Tenn.
R. App. P. 13(d); Berryhill v. Rhodes, 21 S.W.3d 188, 190 (Tenn. 2000). We will not reverse the
trial court’s factual findings unless they are contrary to the preponderance of the evidence. Id.
Insofar as the trial court’s determinations are based on its assessment of witness credibility, appellate
courts will not reevaluate that assessment absent evidence of clear and convincing evidence to the
contrary. Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002). Our review of the trial court’s
conclusions on matters of law, however, is de novo with no presumption of correctness. Taylor v.
Fezell, 158 S.W.3d 352, 357 (Tenn. 2005). We likewise review the trial court’s application of law
to the facts de novo, with no presumption of correctness. State v. Thacker, 164 S.W.3d 208, 248
(Tenn. 2005).

                                                Analysis

         Before dividing marital property, the court must first classify the parties’ property as separate
or marital. Batson v. Batson, 769 S.W.2d 849, 856 (Tenn. Ct. App.1988); Tenn. Code Ann. §
36-4-121(a)(2001 & Supp. 2004). Separate property remains the property of the spouse who owns
it, but the court must divide marital property equitably. Sullivan v. Sullivan, 107 S.W.3d 507, 511
(Tenn. Ct. App. 2002). An equitable division of marital property must reflect consideration of the
factors enumerated in the Tennessee Code, including the duration of the marriage, the value of the
separate property held by each spouse, and the estate of each party at the time of the marriage. Tenn.
Code Ann. § 36-4-121(c)(1)(6)(7)(Supp. 2004). The Code expressly stipulates that fault is not to
be regarded in the division of property. Tenn. Code Ann. § 36-4-121(a)(1)(Supp. 2004). Trial courts
are vested with a great deal of discretion when classifying and dividing the marital estate, and their
decisions are entitled to great weight on appeal. Sullivan, 107 S.W.3d at 512. Accordingly, unless
the court’s decision is contrary to the preponderance of the evidence or is based on an error of law,
we will not interfere with the decision on appeal. Id.

        In this case, Husband asserts the trial court erred in “determining the marital property of the
parties.” Husband’s brief, however, is dedicated to whether the trial court erred in awarding Wife
one-half the equity in real property owned by Husband prior to the marriage. Husband argues that,
although the parties resided on the property during and just prior to their marriage, he purchased the
real property before the marriage with the assistance of a loan from his father; the home was
constructed before the marriage; it was furnished with furniture from his business; and Wife did not


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make any substantial contribution to the property. He asserts he has been repaying the loan made
by his father and that Wife has not contributed to the increased value of the home. Husband’s
argument, as we perceive it, is that the trial court erred in classifying the real property as marital
property and dividing it equally between the parties.

         Wife, on the other hand, asserts that, although Husband purchased the property in May 1998,
before the marriage, the parties lived in the home before and during their marriage. She asserts that
the parties added a solarium, shed and patios, painted, and otherwise improved the property after the
marriage, although Husband asserts that he paid for these improvements. She further asserts she
initially paid Husband a house note of $500 per month, but later stopped these payments and paid
for all the household utilities and groceries. Husband denies these payments were made. Wife
further asserts that loan amounts paid by Husband to his father are “interest only,” and that the
principal has been deferred and would be forgiven should Husband’s father pass away. Wife asserts
that even if the property is Husband’s separate property, the appreciation in its value is marital
property.

       The Tennessee Code defines separate property as:

               (A) All real and personal property owned by a spouse before marriage,
       including, but not limited to, assets held in individual retirement accounts (IRAs) as
       that term is defined in the Internal Revenue Code of 1986, as amended;
               (B) Property acquired in exchange for property acquired before the marriage;
               © 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
               (F) Property acquired by a spouse after an order of legal separation where the
       court has made a final disposition of property.

Tenn. Code Ann. § 36-4-121(b)(2)(Supp. 2004). The Code additionally provides that

       “Marital property” includes income from, and any increase in value during the
       marriage of, property determined to be separate property in accordance with
       subdivision (b)(2) if each party substantially contributed to its preservation and
       appreciation, and the value of vested and unvested pension, vested and unvested
       stock option rights, retirement or other fringe benefit rights relating to employment
       that accrued during the period of the marriage.


Tenn. Code Ann. § 36-4-121(b)(1)(B)(Supp. 2004). Thus, an increase in the value of separate
property is deemed to be marital property “if each party substantially contributed to its preservation
and appreciation.” Id. If the trial court finds the non-owning spouse has substantially contributed

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to the preservation and appreciation of the value of separate property, it is within the court’s
discretion to consider the increase in marital property and to divide it accordingly. Powell v. Powell,
124 S.W.3d 100, 106 (Tenn. Ct. App. 2003). The Code defines substantial contribution as including,
but not limited to, the direct or indirect contribution of a spouse as homemaker, wage earner, parent
or family financial manager, together with such other factors as the court having jurisdiction thereof
may determine. Tenn. Code Ann. § 36-4-121(b)(1)(D)(Supp. 2004). Additionally, although the
duration of the marriage is but one of several factors for consideration by the court in dividing
property equitably, the short duration of a marriage carries more weight where the property was
acquired before the marriage and the non-owning spouse had little opportunity to contribute to the
appreciation of its value. Powell, 124 S.W.3d at 108.


        In this case, it is undisputed that the real property was owned by Husband before the marriage
and that Wife was never included on the deed. Further, it is clear from the record that the parties did
not combine their separate property or financial assets, but continued to be responsible for most of
their own expenses throughout the course of the marriage. Based on our review of the record ,
including the parties’ testimony, there was almost no sharing of expenses or intermingling of the
parties’ assets. The real property clearly was and remained Husband’s separate property. Further,
although Wife asserts she paid Husband rent-like house payments of $500 per month for a period
of time, even assuming, ad arguendo, that she did so, there is nothing in the record to indicate that
Wife made any substantial contribution to the preservation or appreciation of the value of the real
property.
                                              Holding
       In light of the foregoing, we reverse the award of one-half the value of the real property to
Wife. The evidence clearly preponderates in favor of a finding that the real property was Husband’s
separate property and that Wife did not make a substantial contribution to the increase in its value.
Because Tennessee Code Annotated § 36-4-121(c)(6) provides that the amount of property held as
separate property by each party is an element to be considered by the court in equitably distributing
marital property, we remand this action for reconsideration of the division of marital property
consistent with this opinion. Wife requests an award of attorney’s fees on appeal. We decline.
Costs of this appeal are taxed to the Appellee, Jennifer deJaeger.



                                                       ___________________________________
                                                       DAVID R. FARMER, JUDGE




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