                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                                January 15, 2015 Session

                CHRISTY L. GRIFFITH v. GLEN H. GRIFFITH

                  Appeal from the Chancery Court for Bradley County
                   No. 2013-CV-126   Jerri S. Bryant, Chancellor


               No. E2014-00892-COA-R3-CV-FILED-APRIL 14, 2015


This divorce case involves issues of property classification, valuation, and division. The
parties were married for fifteen years, with one child born of the marriage. At the time
the parties married, the husband owned an interest in his family‟s motorcycle dealership.
The husband inherited remaining interests in that dealership from his parents during the
marriage. At trial, the court found that the dealership was a separately owned asset that
became marital property by reason of transmutation. The trial court also made
determinations regarding the value of the dealership and the real property upon which it
operates. Following these determinations, the trial court rendered what it considered to
be an equitable division of the parties‟ marital assets. Husband has appealed. Because
we determine the trial court‟s classification and valuation of the dealership to be in error,
as well as the valuation of the business-related real property, we further determine the
overall distribution of marital assets to be in error. We vacate the trial court‟s judgment
with regard to those issues and remand for further proceedings. The balance of the trial
court‟s judgment is affirmed.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
                Affirmed in Part, Vacated in Part; Case Remanded

THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which CHARLES D.
SUSANO, JR., C.J., and D. MICHAEL SWINEY, J., joined.

Joshua H. Jenne, Cleveland, Tennessee, for the appellant, Glen H. Griffith.

H. Franklin Chancey, Cleveland, Tennessee, for the appellee, Christy L. Griffith.
                                                 OPINION

                                 I. Factual and Procedural Background

       The plaintiff, Christy L. Griffith (“Wife”), and the defendant, Glen H. Griffith
(“Husband”), were married in September 1998. One child was born to their marriage on
January 11, 2000.1 Following the parties‟ separation on May 1, 2013, Wife filed a
complaint for divorce on May 28, 2013. At the time of the divorce hearing, Wife was
forty-four years old while Husband was fifty-seven years of age.

       Husband owns a Kawasaki dealership in Cleveland known as Griffith‟s Kawasaki
(“the Business”), which has been owned by his family since before his birth. At the time
of the parties‟ marriage, Husband owned a one-third interest regarding the Business. He
subsequently inherited the remaining two-thirds interest upon the deaths of his parents in
2001. The parties own the real property upon which the Business is located, 150 Worth
Street (“Worth Street Property”), as tenants by the entirety. Following the deaths of his
parents in 2001, Husband inherited a fifty-percent interest in the Worth Street Property.
The remaining fifty-percent interest was owned by his uncle. The parties subsequently
obtained a joint loan to purchase the uncle‟s ownership interest, thereby acquiring title to
the Worth Street Property as tenants by the entirety. The installment payments relative to
the loan for the purchase of the Worth Street Property have been made by the Business.

       In addition to the Business and the Worth Street Property, Husband inherited from
his parents three vacant lots behind the Business. One of those lots was subsequently
sold to a third party. Husband retained ownership of the other two lots. In recent years,
Husband entered into an agreement to sell the Business to Mr. Tony Oglesby for
$225,000.00. That sale, however, was never consummated. Husband received earnest
money of $25,000.00, which he deposited into the Business‟s account and used for
expenses. He testified at trial that he considered the $25,000.00 earnest money deposit to
be a debt of the Business.

        Wife had worked for the Bank of Cleveland for twenty-two years at the time of
trial. Regarding her employment, she earned between $90,000.00 and $100,000.00 per
year for the past few years. Wife testified that she had the ability to work and earn this
level of income for many more years. Husband, by contrast, had never been employed
outside of the Business. Husband‟s earnings for the last four years averaged
approximately $8,000.00 per year, which he asserted was due to a downturn in the
economy and a reduction in the demand for recreational vehicles. By contrast, Wife
testified that Husband had, in previous years, earned approximately $400.00 to $500.00

1
    No issues are raised regarding co-parenting in this appeal.
                                                        2
per week from the Business. Since Husband‟s income had dropped, Wife was
responsible for paying the mortgage on the marital residence and most all other
household bills.

       Wife claimed that while Husband was inattentive to the Business, their marriage,
and their child, he instead spent inordinate amounts of time on other pursuits, including
gambling. Wife attempted to demonstrate at trial that Husband satisfied numerous
personal expenses through the Business while writing many checks from the Business‟s
account simply to cash. Wife also established that the deposits to the Business‟s account
did not comport with the Business‟s reported sales. Wife admitted that the Worth Street
Property had been appraised in 2012 at a value of $190,000.00, although she believed
that the value of a garage attached to that property should be added, such that the total
value of the Worth Street Property would be $240,000.00.

       The parties‟ marital residence was located on twenty acres of real property. The
premises were purchased from Husband‟s family in 2006 for $227,000.00. The home
and real property appraised in May 2012 for $300,000.00. Wife stated at trial that the
appraisal was disappointing as she believed the home to have been worth more. At the
appraised value, the home essentially maintained no equity.

       Upon the outset of trial, the parties, pursuant to local rule, presented a master asset
and liability list in which they purportedly stipulated as to the classification and division
of certain assets. The parties listed the Business as Husband‟s separate property. Wife‟s
counsel, however, asserted during his opening statement that there was an issue of
transmutation that would be addressed during the parties‟ testimony. Following the
presentation of proof, which included a large volume of testimony regarding the parties‟
respective contributions to the Business, Wife‟s counsel indicated in closing that she did
not intend to stipulate that the Business was Husband‟s separate property. Rather, her
intent was simply to list the Business and its value as a disputed asset, which Husband
claimed was his separate property.

       Upon the conclusion of trial, the court took the matter under advisement. In later
announcing its rulings from the bench, the court noted that the Business was stipulated on
the master asset list to be Husband‟s separate property; however, the court found that the
proof did not support a determination that the Business was Husband‟s separate property.
The court ruled that the Business was marital property by operation of transmutation,
based on Wife‟s direct and indirect contributions during the marriage. The court, inter
alia, awarded the Business to Husband in the overall division of marital assets.

      With regard to the $25,000.00 alleged debt owed to the potential buyer of the
Business, representing the buyer‟s earnest money deposit, the trial court stated:
                                              3
       The husband received $25,000.00 from Tony Oglesby as earnest money for
       a potential purchase of the Kawasaki business and which Husband
       deposit[ed] in the business checking account. The Court is unable to
       determine whether these funds are subject to repayment by the husband or
       the business. In any event, whether the funds represent an asset or a debt
       they are awarded to the husband as part of an equitable division of property.

       Further, regarding the Worth Street Property, the trial court determined its value to
be $240,000.00 based on Wife‟s expressed opinion of its value, notwithstanding the
$190,000.00 appraisal. The court divided all marital assets between the parties. In so
doing, the court awarded Wife one hundred percent of her retirement investments, which
included her 401(k) and bank stock. The court also ordered the marital residence to be
sold. Husband has appealed the trial court‟s classification, valuation, and division of
marital property.

                                    II. Issues Presented

       Husband presents the following issues for our review:

       1.     Whether the trial court erred in its classification of the parties‟ assets
              and debts.

       2.     Whether the trial court erred in its valuation and division of the
              marital estate.

       3.     Whether Husband should be awarded attorney‟s fees on appeal.


                                  III. Standard of Review

       As this Court has previously explained:

       Dividing a marital estate necessarily begins with the systematic
       identification of all of the parties‟ property interests. The second step is to
       classify each of these property interests as either separate or marital
       property. Tennessee is a “dual property” state. Accordingly, property
       cannot be included in the marital estate unless it fits within the definition of
       “marital property” in Tenn. Code Ann. § 36-4-121(b)(1)(A) (2005). By the
       same token, “separate property,” as defined in Tenn. Code Ann. § 36-4-
       121(b)(2), should not be included in the marital estate.
                                              4
      Questions regarding the classification of property as either marital or
      separate, as opposed to questions involving the appropriateness of the
      division of the marital estate, are inherently factual. Accordingly, the
      appellate courts review a trial court‟s decisions classifying property using
      the familiar standard of review in Tenn. R. App. P. 13(d).

Owens v. Owens, 241 S.W.3d 478, 485 (Tenn. Ct. App. 2007) (internal citations omitted).

      The value of marital property is also a fact question. See Wallace v. Wallace, 733
S.W.2d 102, 107 (Tenn. Ct. App. 1987). As this Court explained:

      a trial court‟s decision with regard to the value of a marital asset will be
      given great weight on appeal. In accordance with Tenn. R. App. P. 13(d),
      the trial court‟s decisions with regard to the valuation and distribution of
      marital property will be presumed to be correct unless the evidence
      preponderates otherwise.

      The value of a marital asset is determined by considering all relevant
      evidence regarding value. The burden is on the parties to produce
      competent evidence of value, and the parties are bound by the evidence
      they present. Thus the trial court, in its discretion, is free to place a value
      on a marital asset that is within the range of the evidence submitted.

Wallace, 733 S.W.2d at 107 (internal citations omitted).

       Regarding the equitable division of marital property, our Supreme Court has
elucidated:

      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
                                            5
      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).

                    IV. Classification and Valuation of the Business

       Husband asserts that the trial court erred in its classification of the Business as
marital property because he owned a one-third interest in the Business before the parties‟
marriage and inherited the remaining two-thirds interest upon the deaths of his parents.
As Husband points out, Tennessee Code Annotated § 36-4-121(b)(2) (2014) defines
separate property in pertinent part as that owned by a party before marriage or acquired
by a party at any time by “gift, bequest, devise or descent.”

        Husband also contends that the trial court erred in determining that this asset had
been transmuted into marital property because (1) the parties‟ stipulated in the master
asset list that the Business was Husband‟s separate property, and (2) the proof did not
support that transmutation had occurred. With regard to this asset, the trial court stated:

             And it appears that the Kawasaki dealership was stipulated as being
      his separate property and I‟m not sure that‟s what the facts of this case bear
      out and that‟s one of the things that have puzzled me in how to deal with
      that because am I bound by their stipulations of that fact.

             The parties have been married for many years and I think that it‟s
      been through a big part of the wife‟s efforts that Mr. Griffith has been able
      to continue to operate the dealership. It‟s certainly with her efforts that
      they were able to purchase his two-thirds interest in that business and
      building.

             And there was certainly some sort of argument to be made that it
      may have transmuted to marital property but I have the stipulation that it
      was separate property. So I‟m not sure legally what that [provides] me to
      deal with this but I‟m going to try and give you what I think is the best way
      to divide these assets and these debts.
                                            6
      ***

              As far as husband‟s motorcycle shop is concerned, certainly I find
      that that has transmuted into marital property.

      ***

               And the Kawasaki dealership is stipulated as his separate property
      although I‟m taking that into consideration that he would probably not have
      that . . . business if it weren‟t for wife‟s ability to – if not directly contribute
      to that business, at least pick up the slack at home so that he could continue
      to keep his money from his business.

              I don‟t find his testimony about the value of the business or its cash
      flow to be credible. And I‟m not saying that I don‟t believe his testimony.
      I‟m saying that I don‟t think he is as strong of a business person to have a
      credible opinion about his business. I think that his deposits don‟t match
      his sales. I think he‟s taking cash from the business and running personal
      expenses through the business such that he probably doesn‟t have a good
      feel for either the value of the business or how to maximize profits from the
      business.

             But for those reasons and because I don‟t feel good about the value
      of the Kawasaki business and whether it was, in fact, separate property I‟m
      awarding that business to him.

        Husband initially argues that the trial court erred in ignoring the parties‟
stipulation in the master asset list that the Business was Husband‟s separate property.
Husband posits that stipulations “are binding on the parties as well as the court.” See
Bearman v. Camatsos, 385 S.W.2d 91, 93 (Tenn. 1964). Wife contends, however, that
there was no stipulation that this asset was Husband‟s separate property. Rather, Wife
states that her intent by listing this asset as Husband‟s separate property in the master
asset list was that Husband would be awarded this asset in the division. Wife states that
she never agreed that the asset should be classified as Husband‟s separate property, as
clearly shown by her testimony at trial regarding transmutation.

       As our sister court has explained: “A stipulation is an agreement between counsel
with respect to business before a court. Stipulations are favored and should be
encouraged and enforced by the courts, since they expedite the business of the courts.”
State v. Ford, 725 S.W.2d 689, 692 (Tenn. Crim. App. 1986) (emphasis in original)
                                               7
(quoting 83 C.J.S. Stipulations § 1). Further, “stipulations will be rigidly enforced by the
courts of this State.” Bearman, 385 S.W.2d at 93.

       Following our thorough review of the transcript in this matter, we agree with Wife
that there was no enforceable stipulation that this asset was Husband‟s separate property.
At the beginning of trial, the parties presented a master asset list to the court, which listed
the Business as Husband‟s separate property. Wife‟s counsel, however, offered during
his opening statement that there was a question regarding transmutation that would be
addressed through the parties‟ testimony.

        As the trial continued, both parties were questioned regarding their respective
contributions to the Business. At the conclusion of the proof, Wife‟s counsel insisted
during closing that Wife did not intend to stipulate that the Business was Husband‟s
separate property. Rather, her intent was simply to list the Business and its value as a
disputed asset that Husband claimed as his separate property. Having reviewed the
proceedings in their entirety, we do not find that the master asset list, which identified the
Business as Husband‟s separate property, constituted a stipulation of the parties regarding
the issue of classification of that asset.

       That being established, we note that the Business was clearly Husband‟s separate
property because he (1) owned a one-third respective interest before the parties‟
marriage, and (2) inherited the remaining two-thirds interest upon the deaths of both of
his parents in 2001. See Tenn. Code Ann. § 36-4-121 (a)(2)(A) and (D).2 We must,
therefore, determine whether the trial court properly classified the Business as a marital
asset on the basis of transmutation.

       Wife posits that it was only through her efforts that Husband was able to retain the
Business by the time of trial. She asserts that she performed bookkeeping services for the
Business, obtained loans against her 401(k) investment to pay the property taxes for the
Worth Street Property where the Business operated, and co-signed the loan to purchase
the outstanding interest in the Worth Street Property from Husband‟s uncle. Wife also
made indirect contributions during the marriage as a wage earner and homemaker. Wife
contends that all of these factors support the trial court‟s determination that transmutation
2
    Tennessee Code Annotated § 36-4-121 (a)(2) defines “separate property” as:

          (A) All real and personal property owned by a spouse before marriage . . . .

          ***

          (D) Property acquired by a spouse at any time by gift, bequest, devise or descent . . . .


                                                        8
occurred. We disagree.

      As our Supreme Court has explained:

      [Transmutation] occurs when separate property is treated in such a way as to
       give evidence of an intention that it become marital property. . . . The
       rationale underlying these doctrines is that dealing with property in these
       ways creates a rebuttable presumption of a gift to the marital estate. This
       presumption is based upon the provision in many marital property statutes
       that property acquired during the marriage is presumed to be marital. The
       presumption can be rebutted by evidence of circumstances or
       communications clearly indicating an intent that the property remain
       separate.

Langschmidt v. Langschmidt, 81 S.W.3d 741, 747 (Tenn. 2002) (citing HOMER H.
CLARK, THE LAW OF DOMESTIC RELATIONS IN THE UNITED STATES § 16.2 at
185 (2d ed.1987)). As Wife points out, this Court has also previously explained:

      Four of the most common factors courts use to determine whether real
      property has been transmuted from separate property to marital property
      are: (1) the use of the property as a marital residence; (2) the ongoing
      maintenance and management of the property by both parties; (3) placing
      the title to the property in joint ownership; and (4) using the credit of the
      non-owner spouse to improve the property. Accordingly, our court has
      classified separately owned real property as marital property when the
      parties agreed that it should be owned jointly even though the title was
      never changed, or when the spouse owning the separate property conceded
      that he or she intended that the separate property would be converted to
      marital property.

Fox v. Fox, No. M2004-02616-COA-R3-CV, 2006 WL 2535407 at *4 (Tenn. Ct. App.
Sept. 1, 2006) (internal citations omitted).

       In this case, the asset in question is an ongoing business operation, not real
property as in Fox. See id. However, even if the factors enumerated in Fox are applied
to the Business herein, there is no proof to support application of transmutation. Factor
number one is clearly inapplicable because the asset at issue is a business entity. Factor
number two does not support a theory of transmutation as the only act performed by Wife
to maintain the Business was to assist with certain bookkeeping tasks. Wife admitted that
Husband handled all day-to-day aspects of operating the business, including writing
checks, paying expenses, paying and managing employees, and generally keeping the
                                            9
business going. There was a dearth of evidence that Wife ever worked in or managed the
Business.

       With regard to factor number three, there was no proof that Wife‟s name was ever
placed on the Business, jointly or otherwise. Regarding factor number four, while there
was evidence that Wife used the strength of her credit to help Husband purchase his
uncle‟s interest in the Worth Street Property upon which the Business operated, the real
property was treated as a distinct and separate asset from the Business itself. There was
an absence of proof that Wife ever used her credit to aid or improve the Business.

        Further, this Business was not treated by the parties in such a way as to evince an
intention that it become marital property. Husband never conceded that it was jointly
owned or should be considered a marital asset. As such, there was no gift to the marital
estate, and the Business remained Husband‟s separate property. The trial court therefore
erred in determining that the Business was transmuted to marital property based on the
evidence presented.

        Regarding the valuation of this asset, Husband also takes issue with the trial
court‟s treatment of the $25,000.00 “debt” owed by the Business to Tony Oglesby. Both
parties testified at trial that Mr. Oglesby and Husband entered into an agreement whereby
Mr. Oglesby would purchase the Business for $225,000.00. In furtherance of the
intended transaction, Mr. Oglesby remitted an earnest money payment to Husband in the
amount of $25,000.00, which Husband deposited into the account of the Business and
utilized to pay bills. Unfortunately, the proposed purchase of the Business was never
completed. According to Husband, this failure was due to prohibitive corporate
requirements that Kawasaki placed upon new dealership owners. Husband thus testified
that the Business was obligated to repay the $25,000.00 earnest money deposit to Mr.
Oglesby.

      As pertinent to this issue, the trial court explained in its memorandum opinion:

              The Tony Oglesby. I don‟t have any proof on that other than
      [Husband‟s] testimony that he‟s kept $25,000 that he lists as a debt and I‟m
      listing it as an asset that he has kept. I don‟t know where it is. I don‟t
      know if he‟s going to pay it back. I don‟t have proof that he owes it back.
      I don‟t have proof of why that deal fell through or that it may go through. I
      find that the testimony concerning that is shady at best and certainly doesn‟t
      clarify the legal status between Mr. Oglesby and the sale of the Kawasaki
      Business itself.



                                            10
In its written final judgment, the court addressed this item as follows:

       h)      The husband received $25,000.00 from Tony Oglesby as earnest
               money for a potential purchase of the Kawasaki business and which
               Husband deposit[ed] in the business checking account. The Court is
               unable to determine whether these funds are subject to repayment by
               the husband or the business. In any event, whether the funds
               represent an asset or a debt they are awarded to the husband as part
               of an equitable division of property.

       i)      The Kawasaki business, stipulated as Husband‟s separate property,
               is declared to have been transmuted to marital property and the same
               shall be and hereby is awarded to Husband. In light of the Court‟s
               findings set forth in above paragraph (h), the Kawasaki business is
               assigned a net value of $192,754.36.

The trial court therefore adjusted the value of the Business, which the parties stipulated to
be $225,000.00, to $192,754.36. The trial court ostensibly arrived at this amount by
adding the $25,000.00 earnest money deposit to the stipulated value of $225,000.00 and
then subtracting the other Business debts, which totaled $57,246.54.3 Thus, the trial court
treated the $25,000.00 earnest money deposit as an asset.

        Husband posits that the trial court erred in treating the $25,000.00 earnest money
deposit as an asset of the Business. We agree. Both parties testified at trial that Husband
received this earnest money deposit from a potential buyer of the Business. Further, both
parties testified that Husband deposited this money into the Business‟s checking account
and subsequently spent it on business-related expenses. While Husband was the only
person to testify that the money had to be repaid to Mr. Oglesby, and the trial court
considered Husband‟s testimony regarding this issue to be “shady at best,” such does not
provide a proper basis for adding the value of the $25,000.00 earnest money deposit to
the stipulated value of the Business. Undisputed were the circumstances that this money
had been received and spent. Had the court found the proof insufficient regarding
whether this amount was actually a debt, it should have simply disregarded it.

      Having concluded that the trial court erred in both the classification and valuation
of the Business, we further conclude that this case must be remanded for a proper
determination of the Business‟s value. We vacate the trial court‟s classification of the
Business as marital property due to transmutation as well as the trial court‟s
determination of the Business‟s value. We accordingly also vacate the court‟s overall
3
  We note that $250,000.00 minus $57,246.54 is actually $192,753.46. This apparent mathematical error
in the amount of 90¢ does not affect our analysis.
                                                   11
distribution of marital property. Upon remand, the trial court is directed to consider any
additional proof regarding whether the $25,000.00 amount constitutes a debt in order to
properly value the Business. See Wilkerson v. Wilkerson, No. W1999-01684-COA-R3-
CV, 2000 WL 633462 at *2-3 (Tenn. Ct. App. May 11, 2000) (affirming the trial court‟s
consideration of additional proof regarding the value and distribution of marital assets on
remand from this Court) (quoting First Tennessee Bank Nat’l Assoc. v. Hurd Lock and
Mfg. Co., 816 S.W.2d 38, 40 (Tenn. Ct. App. 1991) (“„[T]his court, in its original
opinion, envisioned and intended that the trial judge, on remand, take all action necessary
to do complete justice, including the reception of additional proof.‟”)). The court should
then adjust the equitable division of marital property to account for the re-classification
of the Business as Husband‟s separate property, which analysis will further require
consideration of the proper value of this separate property. See Tenn. Code Ann. § 36-4-
121(c)(6) (“In making equitable division of marital property, the court shall consider all
relevant factors including . . .[t]he value of the separate property of each party . . . .”).

                          V. Valuation of Worth Street Property

       Husband further asserts that the trial court erred in its valuation of the Worth
Street Property. Husband provided no testimony at trial regarding the value of this real
property. On the master asset list, Wife valued this property at $240,000.00 while
Husband valued it at $190,000.00. During her testimony, Wife acknowledged that the
Worth Street Property was appraised in 2012 and assigned a value of $190,000.00.
According to Wife, this appraisal did not include the garage, which was also a component
of the Business property. Wife explained that when she reviewed the tax appraisal for the
garage, which was $50,000.00, she added this amount to the appraised value of
$190,000.00 to arrive at her total value of $240,000.00. Husband‟s counsel objected to
this testimony, however, based on the best evidence rule. See Tenn. R. Evid. 1002.
Counsel asserted that the tax appraisal should be produced; the court sustained that
objection. The tax appraisal was never introduced, and no further testimony was
presented on this matter.

       Husband now asserts that the trial court erred in accepting Wife‟s valuation of the
Worth Street Property. According to Husband, the $190,000.00 appraisal value included
the garage for which Wife added value, as evinced by the declaration on the first page of
the appraisal report stating that it includes lots “10 & 10.1.” Husband asserts that the
Worth Street Property “technically includ[es] two lots identified by map and parcel
reference as Lot 10 and Lot 10.01,” and that the rear lot, or lot 10, is the lot with the
garage referred to by Wife in her testimony. We note, however, that the parties presented
no evidence regarding this issue at trial. Although Wife did testify that the garage had a
separate tax appraisal, no tax records were introduced to demonstrate such fact. No
witness discussed whether the Worth Street Property was comprised of one or two lots.
                                             12
Moreover, the appraisal report also states, “This property is a 2 story commercial
building consisting of 5604 S/F per public records with a 1250 S/F BMT,” making no
mention of a garage. Thus, without additional explanation, we cannot determine whether
the respective appraisal included the garage, as Husband asserts, or whether the garage
value should be added, as Wife asserts.

       Having concluded that this case must be remanded for revaluation of the Business
and a proper division of marital assets, we vacate the trial court‟s determination of value
as to the Worth Street Property because we conclude that the evidence preponderates
against it. See Wallace, 733 S.W.2d at 107. Upon remand, the trial court is directed to
hear proof regarding the value of the Worth Street Property and whether the garage value
should be added accordingly. See Wilkerson, 2000 WL 633462 at *2-3.

                              VI. Attorney‟s Fees on Appeal

        Husband argues that he should be granted an award of attorney‟s fees on appeal.
He correctly notes that fee awards on appeal are within the discretion of this Court, with
the relevant factors to be considered being: (1) the ability of the requesting party to pay
fees, (2) the requesting party‟s success on appeal, (3) whether the requesting party sought
the appeal in good faith, and (4) any other equitable factors that need to be considered.
See Luplow v. Luplow, 450 S.W.3d 105, 120 (Tenn. Ct. App. 2014). Having considered
the record herein and the above factors, we determine that an award of fees on appeal is
not warranted in this case.

                                     VII. Conclusion

        For the reasons stated above, we vacate the trial court‟s classification of the
Business as marital property, as well as the trial court‟s valuation of the Business and the
Worth Street Property. We also vacate the trial court‟s overall division of marital assets.
The trial court‟s judgment is affirmed in all other respects. Costs on appeal are taxed
equally to the parties. This case is remanded to the trial court, pursuant to applicable law,
for further proceedings consistent with this opinion.




                                                  _________________________________
                                                  THOMAS R. FRIERSON, II, JUDGE



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