                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                  August 19, 2005 Session

          JERRY LYNN SWIFT v. GALE JOANN (RITCHIE) SWIFT

                    Appeal from the Chancery Court for Stewart County
                         No. 02-11-001   Robert E. Burch, Judge



                  No. M2004-01501-COA-R3-CV - Filed December 27, 2005


This appeal involves the division of property upon divorce where there existed a valid Antenuptial
Agreement that included provisions governing such distribution. Because we find that the trial
court’s distribution was consistent with the terms of the agreement and supported by the record, we
affirm.

          Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
                                         Affirmed

PATRICIA J. COTTRELL, J., delivered the opinion of the court, in which WILLIAM B. CAIN and FRANK
G. CLEMENT , JR., JJ., joined.

Jerry W. Hamlin, Ashland City, Tennessee, for the appellant, Gale Joann Swift.

Mark A. Rassas, Julia P. North, Clarksville, Tennessee, for the appellee, Jerry Lynn Swift.

                                           OPINION

       Jerry Lynn Swift and Gale Joann Ritchie Swift were married September 26, 1997. It was his
second marriage and her seventh. They had known each other for a few years and had lived together
for some time before the marriage. Mr. Swift had been in the logging business in Stewart County
for many years, and he continued that business throughout the marriage. Ms. Swift did some part-
time work for Mr. Swift’s logging business both before and after the marriage.

        The day before their marriage the parties entered into an Antenuptial Agreement. The lists
of assets exchanged as part of the agreement’s execution show that Ms. Swift owned about $25,000
in household and personal goods, while Mr. Swift owned business assets including land, timber, and
equipment, as well as other assets, all totaling over $1,000,000.
       On September 12, 2002, Mr. Swift filed a complaint for divorce. In an agreed bifurcated
proceeding, the trial court first determined the validity of the Antenuptial Agreement. The trial court
ruled on the agreement was enforceable and binding.

       The parties stipulated as to grounds for divorce, and they were declared divorced. Trial was
held on the distribution of marital property. The trial court identified the property it deemed marital
and awarded some tracts of real property and sixteen horses to Mr. Swift along with all other
property in his possession. The court awarded Ms. Swift a 2000 Lincoln automobile, personal
items, and half of household items. The court also ordered Mr. Swift to pay a balance of
approximately $9,330 in credit card debt incurred by Ms. Swift after the parties’ separation.

       Ms. Swift has appealed from the final order distributing the property. Without going into
more detail about the basis of her appeal at this point, suffice it to say that she thinks she should have
gotten more property.

                                  I. THE ANTENUPTIAL AGREEMENT

       Ms. Swift does not appeal the trial court’s ruling that the Antenuptial Agreement is valid and
enforceable. Consequently, any review of the distribution of property must begin with the relevant
portions of that document:

        The parties agree that in the unfortunate circumstances that proceedings are brought
        for absolute divorce, divorce from bed and board, for separate maintenance or any
        other domestic remedy, then regardless of which party is granted relief, and
        regardless of fault, they will be bound by the terms of this Agreement and seek no
        other recourse from any Court. In such event the parties agree that:

        (A)     Separate Property.

                All Separate Property, as defined in this Agreement, including the
        appreciation and income thereof, will remain the Separate Property of the respective
        parties. Each party agrees he or she will assert no claim of any type or kind to such
        Separate Property of the other.

        (B)     Joint Property.

                All Joint Property will be divided so that each party receives one-half of the
        property or proceeds, if owned in equal shares, or receive the appropriate ownership
        share, if owned differently. If any party has contributed to the jointly held property
        with his or her Separate Property, he or she shall be credited with the value of that
        property before the Joint Property, or the proceeds thereof, are divided.




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         Antenuptial agreements are valid and enforceable in this state as long as they are entered into
freely, knowingly, and without duress or undue influence. Perkinson v. Perkinson, 802 S.W.2d 600,
603 (Tenn. 1990). Specific statutory authority exists for, and courts are bound by, an antenuptial
agreement concerning property owned by either or both spouses before marriage. Tenn. Code Ann.
§ 36-3-501. Additionally, parties may agree prior to marriage on the division at divorce of property
acquired during the marriage. Tenn. Code Ann. § 36-4-121(g); Perkinson, 802 S.W.2d at 603.
Courts are specifically authorized to incorporate such agreements on the division of property into
a divorce decree. Tenn. Code Ann. § 36-4-121(g). Where an antenuptial agreement is valid and
enforceable, having been shown to meet the prerequisites, the terms of that agreement regarding
distribution of property upon divorce will be applied instead of the statutory definitions of marital
and separate property or general principles regarding an equitable distribution. Perkinson, 802
S.W.2d at 603-04.

        Because the trial court’s holding that the Antenuptial Agreement between the parties was
enforceable has not been appealed, our task is to enforce the terms of the agreement in light of the
facts in the record. Antenuptial agreements are treated as any other contract, Minor v. Minor, 863
S.W.2d 51, 54 (Tenn. Ct. App. 1993). Consequently, the general rules regarding contract
interpretation apply.

        “The central tenet of contract construction is that the intent of the contracting parties at the
time of executing the agreement should govern.” Planters Gin Co. v. Fed. Compress & Warehouse
Co., Inc., 78 S.W.3d 885, 890 (Tenn. 2002). The purpose of interpreting a written contract is to
ascertain and give effect to the contracting parties’ intentions, and where the parties have reduced
their agreement to writing, their intentions are reflected in the contract itself. Id.; Frizzell Constr.
Co. v. Gatlinburg, L.L.C., 9 S.W.3d 79, 85 (Tenn. 1999). “The intent of the parties is presumed to
be that specifically expressed in the body of the contract . . . .” Planters Gin Co., 78 S.W.3d at 890.
Therefore, the court’s role in resolving disputes regarding the interpretation of a contract is to
ascertain the intention of the parties based upon the usual, natural, and ordinary meaning of the
language used. Guiliano v. CLEO, Inc., 995 S.W.2d 88, 95 (Tenn. 1999); Bob Pearsall Motors, Inc.
v. Regal Chrysler-Plymouth Inc., 521 S.W.2d 578, 580 (Tenn. 1975).

        Where the language of the contract is clear and unambiguous, its literal meaning controls the
outcome of contract disputes; but, where a contractual provision is ambiguous, i.e., susceptible to
more than one reasonable interpretation, the parties’ intent cannot be determined by a literal
interpretation of the language. Planters Gin Co., 78 S.W.3d at 890. In that situation, courts must
resort to other rules of construction, and only if ambiguity remains after application of the pertinent
rules does the legal meaning of the contract become a question of fact. Id. However, a strained
construction may not be placed on the language used by the parties to find or create ambiguity where
none exists. Id. at 891.

        The question of interpretation of a contract is a question of law. Guiliano, 995 S.W.2d at 95.
Therefore, the trial court’s interpretation of a contractual document is not entitled to a presumption
of correctness on appeal. Id.; Angus v. Western Heritage Ins. Co., 48 S.W.3d 728, 730 (Tenn. Ct.


                                                  -3-
App. 2000). This court must review the documents ourselves and make our own determination
regarding their meaning and legal import. Hillsboro Plaza Enters. v. Moon, 860 S.W.2d 45, 47
(Tenn. Ct. App. 1993).

        Ms. Swift’s objection to the trial court’s distribution of the parties’ assets deals with property
acquired after the marriage. In the Antenuptial Agreement, the parties contemplated that some
property acquired during the marriage would be jointly owned. They agreed as to how such joint
property would be distributed if they divorced. In pertinent part, the Agreement provides that each
party would receive one half of the property or proceeds from the property, but that the one-half
division would apply only to the value remaining after subtraction of the value of either party’s
separately owned property that was contributed toward the joint property.

                              II. THE TRIAL COURT’S DIVISION OF PROPERTY

         Well before trial Mr. Swift filed a List of Property Subject to Division, in which he itemized
property he deemed joint property under the Antenuptial Agreement as well as making claims for
reimbursement for certain items.1 Closer to trial, he amended the list to reflect changed values due
to market changes. The property he identified as joint included four (4) lots in Holiday Shores, a
fifteen-acre tract of land identified as Leatherwood Pasture, and sixteen horses. He included a list
of household items and equipment that he valued at $2,525. It was Mr. Swift’s position that all the
joint or marital property listed was purchased solely with his separate money or property, and he later
testified to that. Consequently, he asserted, the property should be divided according to Paragraph
7(B) of the Antenuptial Agreement: his initial contribution to acquire the property should be
subtracted from the current value and any remainder divided equally. The values he assigned were,
in almost all cases, no greater than the original cost.

        Ms. Swift did not, prior to trial, dispute the list supplied by her husband or submit a list of
her own. At trial she presented and testified about a list of household items, including equipment,
appliances, and furnishings that she wanted in the property division. Mr. Swift was given the
opportunity to review the list, and he marked those items he disputed should be awarded to her. Ms.
Swift then testified about the marked items. Some she said belonged to her before the marriage;
some were gifts; and some she acknowledged were jointly acquired during the marriage. She also
sometimes set values as to particular items.

        At the close of the hearing, the trial court directed that Mr. Swift divide the disputed property
into two lists and that Ms. Swift choose one of the lists. In the final order, the court awarded Ms.
Swift all the undisputed property shown on the list she submitted at trial and “the items set out on
one of the two lists submitted to her, through counsel. The specific list shall be filed with this court.”



         1
           He claimed in that filing and at trial that the pendente lite support he paid under court order should be credited
to him since the Antenuptial Agreement provided that neither party would be entitled to any support. He also asked that
certain credit card debt be assigned solely to his wife.

                                                            -4-
        Neither party appeals the trial court’s division of the household property or the method used.
Generally, however, this court is required to review the trial court’s overall distribution of property,
including classification and valuation determinations, in order to provide appropriate appellate
review of the trial court’s duty to make an equitable division of marital property, but only marital
property. As to the disputed household items, the trial court made no classification or valuation
findings. The record before us does not include the final list of items awarded to Ms. Swift, as the
court ordered. Neither party has submitted a Tenn. R. Ct. App. 7 tabulation of the property. Under
this record, it is impossible to determine what the overall distribution of marital property was. In
many cases, that would require remand for specific findings.

         In this case, however, our task is not to determine whether the trial court made an equitable
distribution of the marital estate. Instead, the questions before us are whether the property was
correctly identified as joint property under the Antenuptial Agreement and, if so, whether it was
distributed in accordance with the relevant provisions of that Agreement. We review the trial court's
findings of fact de novo, with a presumption of the correctness of the factual findings of the trial
court, unless the evidence preponderates otherwise. Tenn. R. App. P. 13(d); Bogan v. Bogan, 60
S.W.3d 721, 727 (Tenn. 2001). Since neither party has directed us to any perceived error in either
the trial court’s determination that certain property was “joint property” under the agreement or in
the trial court’s distribution of that property as to any of the household items appearing on any of the
lists submitted, we must assume those items were correctly awarded.

         The next set of items acknowledged by Mr. Swift as marital property are the horses. Mr.
Swift provided a list of the horses with the purchase price and current value of each reflected. Prior
to trial, he amended the values and testified the value of the horses had decreased in the past few
months. He also presented a witness who had bought and sold horses in the area for many years and
who had sold Mr. Swift most or all of the horses at issue. The witness verified the amended values
and testified as to the recent decrease in values, especially for brood mares. The total purchase price
paid was $39,150, and the current value was $28,200.2 Mr. Swift testified he had purchased all of
the horses at issue with his separate funds. Ms. Swift disputed that to some degree, asserting that
she went with him to purchase some of the horses and that some of her money was also used in the
purchase price. Under the Antenuptial Agreement, Ms. Swift would be entitled to one-half the value
of the horses that exceeded the original amount of separate property contributed by Mr. Swift.
Although the trial court did not specifically find that Mr. Swift’s separate property was used to
purchase the horses, that conclusion could be implied, and the evidence supports that conclusion.
In any event, Ms. Swift does not contest the award of the horses to Mr. Swift or point to any error
in any particular decision by the trial court regarding the horses.

       At the time of the divorce, the parties held joint title to four lots in Holiday Shores which had
been logged and to one fifteen acre parcel of pasture known as the Leatherwood Property. Although
the Holiday Shores lots had not appreciated in value since the purchase, Mr. Swift disclosed that the


        2
          Additionally, M r. Swift had paid all expenses for care and feeding of the horses during the approximately
eighteen months between the parties’ separation and the trial, which he calculated at $128 per day.

                                                        -5-
basis of the lots had been reduced by $1,000 by the logging. Because he claims the lots were
purchased solely with his separate assets, he claims that only the $1,000 is subject to equal
distribution under the Antenuptial Agreement.

         The Leatherwood property was originally a forty-acre tract, but all but fifteen acres had been
sold during the marriage. Mr. Swift testified he purchased the property with his separate funds, but
that it was jointly held. Through the sale of parts of the original tract, he had recovered his original
investment. He acknowledged that the value of the remaining parcel was joint property subject to
equal division under the Antenuptial Agreement and valued the remaining tract at $22,500.

        Thus, according to Mr. Swift, the joint property subject to equal division under the
Antenuptial Agreement totaled $23,500 at the time of the divorce. Accordingly, each party would
be entitled to $11,750. However, Mr. Swift also argues that Ms. Swift’s share must be offset by the
value of the Lincoln Town Car she was awarded even though it titled solely in his name. He also
asserts that the credit card debt assigned to him but incurred by her should be considered in the
equation as well as the $6,600 in pendente lite support he paid that was not authorized by the
Antenuptial Agreement.

        Ms. Swift valued the Lincoln at $11,000 to $14,000 and testified that Mr. Swift brought the
car to her to use after their separation since she had no other mode of transportation. Mr. Swift
argues she depreciated the car by putting excessive mileage on it during her possession of it.3

       Mr. Swift argues the trial court’s division of property was more than equitable. Even though
he does not directly challenge the court’s division, he argues that it resulted in Ms. Swift receiving
more than she was entitled to under the Antenuptial Agreement. Ms. Swift does not directly dispute
the court’s decisions regarding the specific property and debts covered by the order.

       The trial court apparently accepted Mr. Swift’s itemization and valuation of joint property.
Our review of the evidence supports the same conclusion. However, the trial court awarded all the
land to Mr. Swift, and the value of that joint property, applying the Antenuptial Agreement’s
methodology, is $23,500. He was also required to pay $9,330.35 in credit card debt that the court
found was attributable to charges incurred following the parties’ separation.4 Ms. Swift was awarded
the Lincoln automobile, which we must assume the trial court treated as marital or joint property.




         3
             The proof indicates the car was driven 38,000 miles while she had it.

         4
           Although Mr. Swift argues that the debt he was required to assume should be credited in his favor in
consideration of the property division, he does not directly challenge the trial court’s allocation of that debt to him. We
do not need to consider whether that allocation was appropriate. However, we note that the Antenuptial Agreement
provides that each party shall be responsible for debts he or she contracted during the marriage and shall indemnify the
other for the payment of such debt. Since the Antenuptial Agreement deals with apportionment of debt upon divorce,
it would apply rather than general principles regarding the identification and allocation of marital debt.

                                                            -6-
        Under the Antenuptial Agreement, the only property subject to equal distribution was the
value of any joint property owned at the time of divorce after subtraction of either party’s
contribution to acquisition of the assets from his or her separate property. Because Mr. Swift set that
amount at $23, 500 for the land, and Ms. Swift offered no countervailing evidence, we accept that
amount. Because the court treated the Lincoln as joint property, its value, as determined by the
Antenuptial Agreement’s provisions, should have been included. There is little evidence from which
to determine that amount. However, the evidence supports a finding that Mr. Swift bought the car
with his separate funds and that it was paid for by the time of the divorce. It is reasonable to
conclude that its value has decreased since its purchase. Consequently, there is no amount to be
divided between the parties.

        Under the Antenuptial Agreement, Ms. Swift was entitled to one-half of the $23,500
identified as by Mr. Swift, or $11, 750. She was awarded property worth, according to her
testimony, between $11,000 and $14,000. We conclude that the trial court’s division of the specified
property was consistent with the parties’ agreement as evidenced in the provisions of the Antenuptial
Agreement.

                                          III. MS. SWIFT’S ARGUMENT

        Ms. Swift’s objection to the trial court’s division of property does not relate to the specific
assets described above that were owned at the time of the divorce. Instead, her argument is more
general.

        As stated earlier, Mr. Swift was in the logging business for more than twenty years before
he married Ms. Swift and continued in that business during the marriage. As part of that business,
Mr. Swift frequently bought land with standing timber, cut the timber, had it sawn into lumber, sold
the lumber, and then resold the land. The intent in purchasing land was to re-sell it quickly after
timber was removed. He made many such transactions during the course of the marriage, and in
some situations had the land titled in both his and Ms. Swift’s names.5 In those cases, Ms. Swift
signed the documents transferring the land to the new buyers upon re-sale. Ms. Swift testified about
a few of these jointly-held properties. Her position was that “her” share of profits, if any, from the
sales was used to purchase other property. Essentially, she believed that the money that continued
to be used in sequential transactions was half hers.

       The proceeds from the land sales were deposited into Mr. Swift’s business account.6
Similarly, proceeds from the sale of timber logged off those tracts were also deposited in that
account. The business paid Ms. Swift $200 per week both before and during the marriage for her

         5
           He also bought numerous parcels in his name only, and there was no real explanation of why some were titled
jointly and some separately.

         6
           There were also references to another joint personal account, and M r. Swift testified that the business paid Ms.
Swift every week and also paid him, all out of the business account. It is difficult to determine precisely what accounts
the parties are referring to or what was paid out of each. Nonetheless, a general pattern was shown.

                                                            -7-
part-time work. She maintained a personal checking account and, although at some time she added
Mr. Swift’s name to that account, he never wrote any checks or made other withdrawals on it. There
was no testimony or other evidence as to the amounts at the time of the hearing in any of the
accounts referred to.

        Ms. Swift testified that it was not possible for her to give the court a number or value of what
she was entitled to. She has not been more specific on appeal.7 Her arguments are subject to several
interpretations.

        If Ms. Swift’s position is interpreted as an argument that she acquired some interest in the
business or its profits, we find no support for that argument in either the Antenuptial Agreement or
the facts in the record. Under the Antenuptial Agreement, Mr. Swift’s premarital business assets
remained his separate property, as did any income from those assets. The Agreement cannot be read
to give Ms. Swift any interest in the business or its profits, even if those profits were income
generated during the marriage. Ms. Swift did not dispute that the tracts of land she testified about
were bought for use in the business. Further, Ms. Swift did not prove the value of the business,
while Mr. Swift produced tax returns showing a decline in profits during the marriage.

        Another way to interpret Ms. Swift’s argument is that she is entitled to a share of the profits,
if any, generated by land titled in both names, even though the land was no longer owned by the
parties at the time of the divorce.8 In opening statements, that is the argument made by her attorney.
Essentially, he argued that when profits were made on land titled in both names, those profits were
marital property, but that Mr. Swift deposited those profits into his business account and used them
to invest in some other property. The attorney stated that evidence relevant to the acquisition of
assets and use of the proceeds from the sale of joint property would be presented. “What did they
earn off of those assets, off of that joint investment? Was his initial investment under the agreement
repaid? And, then, what happened with the profits?”

        However, the attorney also acknowledged that, although he had been provided with
voluminous records from Mr. Swift’s business, it was impossible to reconstruct the transactions in
precise detail without testimony from an accountant, which he did not have. Counsel requested that
the court refer the financial matters to a special master with accounting skills to trace all the assets
acquired and disposed of during the marriage.9 The court did not then appoint a special master, but
rather took proof. In its final order, the trial court stated it did not believe a special master could


         7
          She requests that the case be remanded with instruction that the trial court include as marital property “all
property purchased in the names of both parties as well as all assets coming into the personal business account of the
husband” and that the court make a more even distribution of that marital estate.

         8
           The tracts Ms. Swift testified about were not owned by the parties at the time of the divorce and not subject
to division under either the Antenuptial Agreement or the statutes that would otherwise apply.

         9
          In arguing the need for testimony from other witnesses who had not been served with subpeonas, counsel stated
he was not asking for a continuance because the matter had already been delayed and his client needed to get the divorce.

                                                          -8-
specifically determine any profit received from any sales of property that had been held in joint
names because of the manner of operation of the business and, consequently, appointment of a
master would not be beneficial, “particularly since it had not been asked for previously, the first time
it was requested was during the trial in this cause.”

        Ms. Swift simply did not prove that profits were actually generated from the sale any
particular tracts of land that were titled jointly. The trial court found that Ms. Swift’s “claims for
interest in property that was acquired in joint names during the marriage, the majority of which had
previously been disposed of, only considered gross values and did not include costs and expenses
of business operations and therefore her values and claims were not supported in fact.” The evidence
does not preponderate against this finding that Ms. Swift failed to prove any profits were generated
from jointly titled property. Additionally, she did not prove how any such profits were used, whether
they still existed, or tie them to any subsequent transaction. There was similarly no proof as to the
value of Mr. Swift’s business, the balance in his business or other accounts, or the value of any other
property he owned at divorce. Consequently, this argument fails for lack of proof.

        On appeal, Ms. Swift argues most strongly that Mr. Swift’s treatment of his separate property
and the parties’ joint property resulted in commingling of those assets and transmutation of his
separate property, his business account specifically, into martial property subject to an equitable
division. She argues that proceeds from the sale of joint property were deposited in Mr. Swift’s
business account or in the marital account and that family expenses were paid from both accounts.
Ms. Swift argues that this commingling of marital property with separate property resulted in the
transmutation of both accounts into marital property.

        Not only does this argument suffer from the same lack of specific proof that any profits were
generated from jointly-held property, it is also inconsistent with the Antenuptial Agreement. While
the Agreement recognizes that the parties might acquire “joint property,” it also anticipates that
“joint property” may be owned in different shares. Any “joint property” held at divorce is to be
divided according to the appropriate ownership shares, but only after each party is credited with any
contribution from separate property made toward the jointly held property. These provisions are in
direct contradiction to the concepts of commingling and transmutation. The Antenuptial Agreement
established the methodology for division of property acquired during the marriage, and that is the
methodology that must be applied.

                                          IV. CONCLUSION

        The trial court’s division of property was consistent with the terms of the Antenuptial
Agreement and with the evidence in the record and is, therefore, affirmed. We note that even if the
usual rules of property division were applied, based on the record before us, we could affirm the
division ordered by the court. This was a marriage of relatively short duration, and the parties were
returned to essentially the same relative financial position they enjoyed prior to the marriage.
Throughout the marriage, Mr. Swift provided the financial support for the couple, paid or contributed
to the costs of Ms. Swift’s custody battle with a former husband, paid or contributed to child support


                                                  -9-
she owed, and provided financial support to members of her family. Ms. Swift’s only income was
the $200 per week she received from Mr. Swift’s company. The parties spent during the marriage
for mutual benefit, and there is no proof regarding exactly how much they owned at divorce.

       The judgment of the trial court is affirmed. Costs of this appeal are taxed to the appellant,
Gale Joann Swift.



                                                      ____________________________________
                                                      PATRICIA J. COTTRELL, JUDGE




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