                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
                                      March, 2000 Session

       JOSEPH BLOUNT TURNER v. GLORIA JEAN WEISS TURNER

                      Appeal from the Circuit Court for Davidson County
                        No. 97D-2292     Marietta M. Shipley, Judge



                  No. M1999-00482-COA-R3-CV - Filed September 28, 2000




JUDGE SWINEY, dissenting


               I dissent from the majority’s decision to affirm and remand. Specifically, I disagree
with the majority’s affirmance of the Trial Court’s classification of the Sugartree residence as marital
property. The basis for my dissent here is the same as in my dissent in Dotson v. Dotson, 2000 WL
688576 (Tenn. Ct. App.).

                The majority’s determination that the transfer of the Sugartree residence from
Husband to Wife was not a gift is based upon the Trial Court’s determination of the credibility of
Wife and of Husband. I agree with the majority’s holding that the Trial Court is in the best position
to assess Husband’s and Wife’s credibility, and that the Trial Court’s credibility determination is
entitled to great weight on appeal. This being so, Husband’s testimony that he agreed to title the
property in Wife’s name for the sole purpose of protecting the property from a possible creditor of
his, as accepted by the Trial Court, was properly adopted by the majority.

                Where I part with the majority is its determination that this resolves this question and
makes the Sugartree residence marital property. Husband’s argument to the Trial Court, and to this
Court, is that he should be permitted to “transfer” the Sugartree residence to Wife to protect it from
a possible creditor, but in the event of a divorce treat this transfer as never having happened. It was
Husband’s intention that this transfer would protect the property from a possible creditor of
Husband. This was the purpose of the deed. This transfer was communicated to the world in
general, including Husband’s possible creditor. Husband should not now be allowed to argue that
the transfer to Wife was a sham and thereby given no effect.

                While not exactly on point, I believe this Court’s reasoning in Best v. Best, 773 S.W.
2d 260 (Tenn. Ct. App. 1989) is applicable. In Best, the husband had transferred property to his wife
prior to the divorce because, “at that time, my credit was real bad and I had a few tax problems.”
Id. at 261. As found by the majority, the reason for titling the property in Wife’s name only was to
shield the property from the threat of a lawsuit against a limited partnership in which Husband held
an interest. “When the action concerns the public as well as the litigants’ interest, the doctrine
assumes a greater significance since its application not only thwarts the wrongdoer ‘but averts an
injury to the public’.” Id. In Best, this Court found that the property transfer was done with a
fraudulent purpose. While Husband’s conduct in this case may not rise to the level of being
fraudulent, it was done for the stated purpose of thwarting a potential creditor from collecting
Husband’s debt. This being so, Husband is “. . . not entitled to be relieved of the consequences of
his acts . . ..” Id. “The courts have not looked favorably on transfers to hinder or defraud creditors
or to avoid payment of taxes.” Wright v. Quillen, 909 S.W. 2d 804, 812 (Tenn. Ct. App. 1995). In
Wright, this Court did not find that the husband had committed fraud, but only that the purpose of
the transfer of the property from husband to wife was to keep it out of the husband’s name. This is
the exact situation now before us. I would classify the Sugartree residence as Wife’s separate
property just as Husband and Wife held it out to the world as being.

                Husband, as did the husband in Dotson, has successfully recruited both the Trial
Court and the majority of this Court to create what could be called a “sort of” transfer. Husband
takes the position that if it was a creditor of his attempting to collect a judgment, the transfer to Wife
would be valid and the property protected from Husband’s creditor. However, if instead of
Husband’s creditor a divorce threatens, Husband has successfully convinced the Trial Court and this
Court to ignore the transfer and pretend it did not happen. I would hold that if either spouse purports
to transfer property as a gift to the other spouse for the stated purpose of shielding the asset from
current or potential creditors of the spouse, the transfer will be given full effect in any subsequent
divorce between wife and husband. In short, I would hold that the courts of this State will not be
used to facilitate a sham by treating such a transfer as a “sort of” transfer by holding it may be a
transfer when a creditor of the spouse threatens but is not a transfer if a divorce threatens.

               As I would classify the Sugartree residence as separate property of Wife, I believe it
would be necessary for the Trial Court to reconsider its division of what would then be the remaining
marital property. I would reverse and remand for a new division of the remaining marital property.




                                                         ___________________________________
                                                         D. MICHAEL SWINEY, JUDGE




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