      IN THE COURT OF APPEALS OF TENNESSEE
           MIDDLE SECTION AT NASHVILLE




MARY S. FENDLEY,                 )
                                 )
Plaintiff/Appellee,              )
                                 )    Montgomery Chancery
                                 )    No. 94-76-171
VS.                              )
                                 )    Appeal No.
                                 )    01A01-9509-CH-00418
MART G. FENDLEY,                 )
                                 )
      Defendant/Appellant.       )
                                                        FILED
                                                            July 2, 1997
                 APPEAL FROM THE CHANCERY COURT
                     FOR MONTGOMERY COUNTY       Cecil W. Crowson
                    AT CLARKSVILLE, TENNESSEE   Appellate Court Clerk

          THE HONORABLE THOMAS E. GRAY, CHANCELLOR



For the Plaintiff/Appellee:                For the Defendant/Appellant:

Jennifer D. Roberts                        Roger A. Maness
Dickson, Tennessee                         Marks, Shell, Maness & Marks
                                           Clarksville, Tennessee




                      AFFIRMED AS MODIFIED
                         AND REMANDED




                                      WILLIAM C. KOCH, JR., JUDGE
                               OPINION

      This appeal involves the classification of property in a divorce case. The
wife filed for divorce in the Chancery Court for Montgomery County after
seventeen years of marriage. Following a bench trial, the trial court declared the
parties divorced and awarded the wife custody of the four minor children. In its
division of the parties’ property, the trial court classified the parties’ home as
marital property and awarded it to the wife but classified the household furniture,
funds inherited by the wife, and a limited partnership interest in an athletic club
as the wife’s separate property. The husband takes issue on this appeal with the
allocation of the responsibility for the debt on the home, the classification of
separate property, and the overall distribution of the marital estate. We have
determined that the trial court should have allocated the debt secured by the home
to the wife and that the trial court correctly classified the disputed assets and
equitably distributed the marital estate.


                                            I.


      Mary S. Fendley and Mart G. Fendley were married in Clarksville in
August 1977. They moved to Memphis after the wedding to enable Mr. Fendley
to attend law school. Ms. Fendley worked as a contact lens technician while Mr.
Fendley attended law school. The parties returned to Clarksville in July 1980
after Mr. Fendley graduated from law school and completed the bar examination.


      Ms. Fendley’s grandmother died shortly before the parties returned to
Clarksville, leaving as part of her estate a fully furnished house at 411 Idaho
Springs Road. Ms. Fendley’s parents invited their daughter and son-in-law to
move into the house when they returned to Clarksville. The parties moved into
the house in August 1980 and lived there rent-fee until December 1982 when they
purchased the house and property for $40,000 from Ms. Fendley’s parents.


      The house on Idaho Springs Road was built in 1938 and needed extensive
repairs. The parties went to work immediately restoring and renovating the house.



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Throughout the marriage, much of the parties’ disposable income, as well as Ms.
Fendley’s inherited income, was spent on improvements to the property.


      Ms. Fendley received two inheritances during the marriage. On her twenty-
fifth birthday in 1982, Ms. Fendley received $26,000 from a trust established by
her grandparents. She used these funds to purchase an automobile for Mr.
Fendley, to pay the parties’ taxes, and to pay for some of the home improvements.
In 1990, Ms. Fendley received a second inheritance of $69,500. She deposited
these funds in a separate account in her own name and withdrew portions of the
funds during the marriage to purchase central heat and air conditioning for the
house, to purchase a boat from her father, and to purchase a truck. Ms. Fendley
also used $10,000 of these funds to purchase a limited partnership interest in one
of her brother’s business ventures called the Clarksville Athletic Club.


      Mr. Fendley’s law firm later merged with another firm that represented
Heritage Bank. In order to enhance his relationship with the bank and to obtain
other banking privileges, Mr. Fendley requested Ms. Fendley to withdraw her
inherited funds from her separate account at the Guaranty Federal Savings and
Loan Association and to deposit them in the Heritage Bank. Acting on the
understanding that the funds would remain her separate property, Ms. Fendley
withdrew approximately $29,000 from Guaranty Federal Savings and Loan and
deposited it in a joint account at the Heritage Bank. Notwithstanding their
agreement that the money remained Ms. Fendley’s separate property, Mr. Fendley
later withdrew funds from the account, without Ms. Fendley’s knowledge or
permission, to pay taxes and to fund individual retirement accounts.


      The parties had four children before they separated in July 1994. Ms.
Fendley filed for divorce in August 1994. Following a bench trial, the trial court
declared the parties divorced pursuant to Tenn. Code Ann. § 36-4-129(b) (1996),
awarded Ms. Fendley custody of the children, and directed Mr. Fendley to pay
$2,206 per month in child support. The trial court also awarded the parties their
personal property and determined that most of the antique furniture and
furnishings, the remainder of the funds Ms. Fendley inherited in 1990, and the
$10,000 investment in the Clarksville Athletic Club were Ms. Fendley’s separate

                                       -3-
property. The trial court classified the house on Idaho Springs Road as marital
property and awarded the house to Ms. Fendley.


                                        II.


      We need not tarry long with Mr. Fendley’s first issue with regard to the
allocation of the debt secured by the marital home. He asserts that the trial court
should have specifically allocated this debt to Ms. Fendley because she was
awarded the house that secured the debt. The trial court simply overlooked this
debt, and Ms. Fendley readily concedes that she should be responsible for it.
Accordingly, the final divorce decree should be modified on remand to reflect that
Ms. Fendley is responsible for the remaining indebtedness on the house and to
require her to hold Mr. Fendley harmless for this debt.


                                       III.


      Mr. Fendley’s principle argument is that the trial court erroneously
classified as personal property the remainder of Ms. Fendley’s inherited funds, her
investment in the Clarksville Athletic Club, and the antique furniture once owned
by Ms. Fendley’s grandmother, great aunt, and other members of her family. We
have determined that the trial court properly classified this property.


                                        A.


      Distributing the parties’ property is an integral part of every divorce case.
This property must be classified as either separate or marital property, and
property that does not fit the definition of “separate property” must be considered
to be “marital property.” Kendrick v. Kendrick, 902 S.W.2d 918, 924 (Tenn. Ct.
App. 1994). Tenn. Code Ann. § 36-4-121(b)(2) defines “separate property” as:
“(A) All real and personal property owned by a spouse before marriage; (B)
Property acquired in exchange for property acquired before the marriage; (C)
Income from and appreciation of property owned by a spouse before marriage
except when characterized as marital property under subdivision (b)(1); and (D)
Property acquired by a spouse at any time by gift, bequest, devise or descent.”

                                       -4-
       While the statutory definition of “separate property” focuses on the source
of the property, the courts must also consider the way that the parties have used
the property during the marriage because title alone is not necessarily controlling.
Langford v. Langford, 220 Tenn. 600, 604, 421 S.W.2d 632, 634 (1967);
Mahaffey v. Mahaffey, 775 S.W.2d 618, 624 (Tenn. Ct. App. 1989); Robinette v.
Robinette, 726 S.W.2d 524, 525 (Tenn. Ct. App. 1986). Otherwise separate
property can be transmuted into marital property if the parties treat it as marital
property and if there is no evidence that the spouse owning the property intended
that it remain separate. McClellan v. McClellan, 873 S.W.2d 350, 351 (Tenn. Ct.
App. 1993); Batson v. Batson, 769 S.W.2d 849, 858 (Tenn. Ct. App. 1988).


       Classifying property as separate or marital is a question of fact. Cutsinger
v. Cutsinger, 917 S.W.2d 238, 241 (Tenn. Ct. App. 1995); Sherrill v. Sherrill, 831
S.W.2d 293, 295 (Tenn. Ct. App. 1992). Thus, a trial court’s classification
decisions are entitled to great weight on appeal. Wilson v. Moore, 929 S.W.2d
367, 372 (Tenn. Ct. App. 1996). These decisions will be presumed to be correct
unless the evidence preponderates otherwise, Hardin v. Hardin, 689 S.W.2d 152,
154 (Tenn. Ct. App. 1983), or unless they are based on an error of law. Mahaffey
v. Mahaffey, 775 S.W.2d at 622.


                                              B.
                     THE FURNITURE AND HOUSEHOLD ITEMS


       Many of the furniture and furnishings in the Idaho Springs Road house can
be traced back to members of Ms. Fendley’s family. Most of Ms. Fendley’s
grandmother’s furniture remained in the house after she died in 1980.1 Even
though Ms. Fendley’s father inherited this property, he left much of it in the house
and permitted his daughter and son-in-law to use it. Later, in 1990, Ms. Fendley’s
father permitted Ms. Fendley to select other furniture and furnishings from the




       1
         This property included antique furniture and furnishings valued for insurance purposes
at approximately $47,000. The most expensive items included Chippendale dining room
furniture worth $25,800.

                                             -5-
property he inherited from an aunt who lived in Illinois.2 In addition, Ms.
Fendley’s mother passed along several items of personal property that had once
been in her family’s Louisiana plantation.3


       As so often happens with family heirlooms, Ms. Fendley’s parents did not
prepare formal written documents concerning their disposition of this property or
their wishes concerning its ultimate fate. They never specifically informed either
Ms. Fendley or Mr. Fendley that they gave them the property as a joint gift or
even that they had given the property to Ms. Fendley to do with as she pleased.
Ms. Fendley’s mother stated on several occasions during the marriage that she
reserved the right to take any of the furniture back if she ever had room for it. She
also instructed Ms. Fendley to make sure that her children eventually received
specific items of property. The parties and their children used the property and
specifically made sure that it was covered by their homeowner’s insurance policy.


       After she filed for divorce, Ms. Fendley asserted that this property, as well
as the parties’ wedding gifts, gifts she had received from her mother, and
silverware she had obtained prior to the marriage, should be classified as her
separate property.4 Mr. Fendley countered by asserting that all the furnishings and
personal property in the Idaho Springs Road house, regardless of their origin, were
marital property because the parties had used them during the marriage and
because neither Ms. Fendley nor her parents had expressed an intent that this
property remain separate. The trial court classified most of the property once
belonging to members of Ms. Fendley’s family as Ms. Fendley’s separate property
but included the parties’ wedding gifts, the silverware Ms. Fendley had purchased
prior to the marriage, and other furnishings bought during the marriage as marital
property.




       2
        This property included antique furnishings valued at approximately $21,300 for
insurance purposes.
       3
        This property included a love seat, Nippon and Limogues cut glass, and an antique urn
valued at approximately $9,500 for insurance purposes.
       4
           The parties valued this property at approximately $133,725 for insurance purposes.

                                               -6-
      Mr. Fendley now insists that the trial court erred in its classification because
the doctrine of transmutation requires the furniture and furnishings to be classified
as marital property. We disagree. The sole fact that the parties used the property
during their marriage does not necessarily mean that Ms. Fendley’s parents or Ms.
Fendley herself intended to make a gift of this property to the marital estate. Ms.
Fendley and her parents stated categorically that the property was not given to the
parties jointly. Furthermore, the record contains evidence inconsistent with the
conclusion that Ms. Fendley’s parents gave them the property outright. Ms.
Fendley made statements throughout the marriage indicating that she had not
relinquished her right to control the ultimate disposition of the property.


      Passing down family heirlooms is a commonplace occurrence. Sometimes
it is accomplished with formality and ceremony, but more frequently, it is done
informally and privately between family members. Thus, the absence of formal
documents involving the disposition of this property is of little consequence to us
under the facts of this case. The trial court had the opportunity to observe the
parties and their witnesses as they testified and determined from this evidence that
Ms. Fendley and her family did not intend that the family heirlooms would
become marital property simply because Ms. Fendley and her family used them.
We have no basis, on these facts, to conclude that the trial court erred by
determining that the evidence demonstrated that Ms. Fendley and her parents
intended that this property would remain in their family.


                                         C.
                      THE REMAINING INHERITED FUNDS


      Mr. Fendley also asserts that the trial court should have classified the funds
Ms. Fendley deposited in their joint account at the Heritage Bank as marital funds.
Relying again on the doctrine of transmutation, he insists that the fact that Ms.
Fendley withdrew these funds from her own separate account and deposited them
in a joint account can only support the conclusion that she intended to relinquish
her control over these funds. The evidence does not support this argument.




                                        -7-
      Ms. Fendley received these funds by inheritance. She deposited them in a
separate account in her own name. She used part of the funds for family purposes
but intended to leave enough funds in the account to provide some assistance for
the children’s college education. Ms. Fendley maintained complete control over
these funds until Mr. Fendley convinced her that depositing them in another
account at Heritage Bank would further his business interests. Ms. Fendley
complied with Mr. Fendley’s request but only with the understanding that Mr.
Fendley would have no control over these funds even if they were in a joint
account. After Ms. Fendley discovered that Mr. Fendley had withdrawn a portion
of these funds without her permission, she deposited the funds in another separate
account.


      The mere fact that the funds were placed for a time in a joint account does
not require that they be considered marital property. Ms. Fendley’s account of the
use of these funds is largely undisputed and demonstrates that she never intended
to relinquish her control over these funds. Accordingly, we have no basis for
concluding that the evidence preponderates against the trial court’s conclusion that
these funds were Ms. Fendley’s separate property.


                                        D.
                       THE HEALTH CLUB INVESTMENT


      In his final classification issue, Mr. Fendley argues that the trial court
should not have classified the $10,000 investment in the Clarksville Athletic Club
as Ms. Fendley’s separate property because the parties treated the investment as
if it were marital property. We concur with the trial court’s conclusion that the
funds used for the investment remained Ms. Fendley’s separate property, even
though the parties treated the income from the investment as marital property, and
the entire family benefitted from the investment.


      During the marriage, Ms. Fendley’s brother started the Clarksville Athletic
Club and offered Ms. Fendley and her sisters the opportunity to purchase limited
partnership interests for $10,000. The Fendleys decided that purchasing a limited
partnership would be a good idea because the entire family would receive a

                                        -8-
lifetime membership in the club. Mr. Fendley intended to borrow the money for
the investment, but Ms. Fendley decided to use her inherited funds in order to
avoid any further indebtedness. The partnership documents listed Ms. Fendley as
the sole limited partner; however, the membership cards and club’s report of
income listed both Ms. Fendley and Mr. Fendley as the “individual” partner.


      The parties reported the income from the investment on their joint tax
returns, and there is no dispute that they considered the income to be marital
property.   After the parties separated, Ms. Fendley liquidated the limited
partnership interest when she discovered that Mr. Fendley had withdrawn funds
from the account she was maintaining for her children’s college education. She
deposited the funds from the investment back into her children’s college education
account.


      Ms. Fendley’s decision to use a portion of her separate funds as an
investment to the benefit of her family is not tantamount to a decision to
relinquish all control over the funds. While the lifetime memberships and the
investment income were marital property, the funds as a matter of contract
between the club and Ms. Fendley remained under her control. Ms. Fendley
continued to exercise control over the funds and eventually liquidated the
investment and returned the funds to a separate account in her own name. Under
these facts, we have determined that the trial court correctly classified the funds
from the liquidated investment in the health club as Ms. Fendley’s separate
property.


                                         IV.


      As a final matter, Mr. Fendley asserts that the manner in which the trial
court divided the marital estate was inequitable because the parties’ circumstances
are “rather equal.” Instead of awarding Ms. Fendley 61% and Mr. Fendley 39%
of the marital estate, he insists that a more equal distribution would be appropriate.


      Trial courts have broad discretion in dividing marital estates. Tenn. Code
Ann. § 36-4-121(a) (1991); Fisher v. Fisher, 648 S.W.2d 244, 246 (Tenn. 1983).

                                         -9-
Accordingly, appellate courts customarily give great weight to their decisions
involving the classification and allocation of marital property. Wilson v. Moore,
929 S.W.2d at 372. We will ordinarily defer to the trial court’s decision unless it
is inconsistent with the factors in Tenn. Code Ann. § 36-4-121(c) or is
unsupported by a preponderance of the evidence. Brown v. Brown, 913 S.W.2d
163, 168 (Tenn. Ct. App. 1994); Mahaffey v. Mahaffey, 775 S.W.2d at 622;
Hardin v. Hardin, 689 S.W.2d at 154.


      The trial court’s goal in every divorce case is to divide the parties’ marital
property in a just and equitable manner. A division of property is not rendered
inequitable simply because it is not mathematically equal, Cohen v. Cohen, 937
S.W.2d 823, 832 (Tenn. 1996); Ellis v. Ellis, 748 S.W.2d 424, 427 (Tenn. 1988);
Kendrick v. Kendrick, 902 S.W.2d at 929, or because each party did not receive
a share of every piece of marital property. Brown v. Brown, 913 S.W.2d at 168.
In the final analysis, the justness of a particular division of marital property
depends on its final results considered in light of the pertinent factors in Tenn.
Code Ann. § 36-4-121(c). Thompson v. Thompson, 797 S.W.2d 599, 604 (Tenn.
Ct. App. 1990).


      The value of the parties’ entire marital estate is $243,946.26. The trial
court’s division of the estate awards property with a value of $148,569.02 to Ms.
Fendley and property worth $95,377.24 to Mr. Fendley. Accordingly, the trial
court has awarded Ms. Fendley 61% and Mr. Fendley 39 % of the marital estate.
We have determined that this division is equitable under the facts of this case.
Contrary to Mr. Fendley’s assertion, we do not find that the parties’ circumstances
are essentially the same.     Ms. Fendley helped Mr. Fendley complete his
professional educational while curtailing her own. As a result, Mr. Fendley is
better equipped to earn income and acquire capital assets than Ms. Fendley.
Based on the parties respective ages, employability, and earning capacities, we
have determined that the trial court’s division of the parties’ marital estate is
equitable.


                                        V.



                                       -10-
      We affirm the final divorce decree as modified herein and remand the case
to the trial court for the amendment of the final decree to provide that Ms. Fendley
is solely responsible for the payment of the remaining indebtedness secured by the
Idaho Springs Road property and for any other proceedings that may be required.
We also tax the costs of this appeal to Mart G. Fendley and his surety for which
execution, if necessary, may issue.




                                               ____________________________
                                               WILLIAM C. KOCH, JR., JUDGE

CONCUR:

________________________________
HENRY F. TODD, P.J., M.S.

________________________________
SAMUEL L. LEWIS, JUDGE




                                       -11-
