                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                           Assigned On Brief, January 15, 2004

           DOROTHY SUE BRYANT v. DAMON EUGENE BRYANT

                      Appeal from the Chancery Court for Obion County
                        No. 23405    W. Michael Maloan, Chancellor



                     No. W2003-01906-COA-R3-CV - Filed April 28, 2004


This case involves an antenuptial agreement. Prior to their marriage, the husband and wife entered
into an antenuptial agreement which stated that each party waived his or her interest in any property
acquired after the marriage in the individual spouse’s name. After a nearly twenty-year marriage,
the wife filed for divorce. During the divorce proceedings, the wife argued that the antenuptial
agreement should not affect the trial court’s division of property acquired during the marriage. The
trial court enforced the antenuptial agreement, awarding all property held in the husband’s name to
the husband, regardless of whether it would otherwise have been classified as marital property. The
wife appeals. We affirm, finding that the wife waived her interest in the property under the
antenuptial agreement and that the evidence does not preponderate against either the enforceability
of the agreement or the trial court’s division of property.

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

HOLLY M. KIRBY , J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., W.S.,
and ALAN E. HIGHERS, J., joined.

James H. Bradberry, Dredsen, for the appellant Dorothy Sue Bryant.

Damon E. Campbell, Union City, for the appellee Damon Eugene Bryant.

                                            OPINION

       Plaintiff/Appellant Dorothy Sue Bryant (“Wife”) and Defendant/Appellee Damon Eugene
Bryant (“Husband”) were married on August 28, 1982. The day before their wedding, Wife and
Husband executed a Premarital Agreement (“Agreement”). The Agreement contained a typical
provision stating that separate property owned by each party prior to the marriage remained the
separate property of that party. In addition, the Agreement included a provision stating: “[Wife]
understands that she is waiving all interest in any hereinafter acquired property of [Husband] which
is acquired by any means in his individual name.” The Agreement had a similar provision as to
Husband, in which he waived any interest in property acquired by Wife in her name. Therefore,
under the Agreement, personal property acquired in the name of either Husband or Wife, even if
acquired with marital funds, was the separate property of the party in whose name it was acquired.

        The parties remained married nearly twenty years. During the course of the marriage, the
parties had two sons, born in 1983 and 1984. They acquired both real and personal property.
Numerous items purchased with marital funds were put in Husband’s name, with some put in Wife’s
name.

        Wife filed for divorce on February 4, 2002. Her complaint and amended complaint each
included a request for an equitable distribution of the marital property. In Wife’s affidavit of assets
and liabilities, she valued the marital assets at $229,238. Husband’s Answer maintained that the
division of property should be governed by the Agreement, and particularly the provisions regarding
the parties’ post-marriage acquisition of property. In his affidavit of assets and liabilities, Husband
separated all of the property acquired after marriage into either separate property under the
Agreement or marital assets. He categorized all property in his name as his separate property, and
property in Wife’s name as her separate property. He then valued the property owned in his name
at $109,500,1 and he valued Wife’s assets at $9,300. Husband categorized the remaining items as
marital property, and valued the marital estate at $83,850. Thus, there was a difference of $145,388
in the value the parties placed on the marital estate.

        The trial was held on April 30, 2003. The primary issue at trial was the effect of the
Agreement on the property division. Wife argued that the provision regarding the waiver of rights
in after-acquired property had no effect, even on property taken in the name of one spouse or the
other, because the property was acquired through the parties’ joint efforts and should be considered
marital property. Husband responded that both parties had freely entered into the Agreement and
should be bound by its terms, regardless of whether their property would otherwise be classified as
separate or marital property. In an oral ruling, the trial court held that the provision was enforceable:

                  [T]hese parties entered into a premarital agreement in 1982, and it’s
                  very clear that they settled their property rights and that paragraph 5
                  states that [Wife] understands that she is waiving all interest in any
                  hereinafter acquired property of [Husband] which is acquired by any
                  means in his individual name.

The trial court acknowledged that this result of the decision might be inequitable: “[Husband] has
a very substantial individual separate estate and [Wife] has virtually little, and I understand it may
not be fair, but it’s a contract, and it’s binding on the parties, and the Court has to give it full
meaning and effect.” The trial court observed that “[t]he marital estate, after considering the
premarital agreement, is relatively small in light of the separate holdings of the property.” The


         1
          This amount does not include the value Husband placed in his gun collection. His affidavit cites to a
separate appraisal for the value of the collection, but the appraisal is not in the record. W ife valued the collection at
$15,000. The asset’s value is not necessary for the disposition of this appeal.

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marital estate was divided and Wife was awarded $300 per month in alimony in futuro. From that
order, Wife now appeals.

        The only issue on appeal is whether the trial court erred in giving effect to the Agreement and
classifying all after-acquired personal property in one party’s name as the separate property of that
party, even if it was acquired with marital funds or by the parties’ joint efforts. In a divorce, the trial
court is charged with equitably dividing the marital property. Tenn. Code Ann. § 36-4-121(a)(1)
(2001 & Supp. 2002). In order to do this, the trial court must classify the parties’ property as either
marital or separate, as separate property is not subject to division. Dunlap v. Dunlap, 996 S.W.2d
803, 814 (Tenn. Ct. App. 1998). The trial court’s classification and division of the parties’ property
is reviewed de novo with a presumption of correctness, and will be reversed only if the
preponderance of the evidence is otherwise. Id. Likewise, we review the trial court’s decision
regarding the enforceability of an antenuptial agreement de novo with a presumption of correctness
under Rule 13(d) of the Tennessee Rules of Appellate Procedure. See In re Estate of Belew, No.
03A01-9807-CH-00206, 1998 WL 881863, at *4 (Tenn. Ct. App. Dec. 17, 1998) (citations omitted)
(“The Tennessee courts which have considered the fair and full disclosure issue have uniformly
determined it to be factually driven.”) However, because antenuptial agreements are treated as any
other contract, Minor v. Minor, 863 S.W.2d 51, 54 (Tenn. Ct. App. 1993), their interpretation is
considered a matter of law, subject to de novo review with no presumption of correctness. See Clark
v. Rhea, No. M2002-02717-COA-R3-CV, 2004 WL 63476, at *2 (Tenn. Ct. App. Jan. 13, 2004).

        In the statutes governing the distribution of marital property, marital property is defined in
part as “all real and personal property, both tangible and intangible, acquired by either or both
spouses during the course of the marriage up to the date of the final divorce hearing and owned by
either or both spouses as of the date of filing of a complaint for divorce.” Tenn. Code Ann. § 36-4-
121(b)(1)(A). Separate property is defined 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);
               (D) Property acquired by a spouse at any time by gift, bequest, devise or
        descent;
               (E) Pain and suffering awards, victim of crime compensation awards, future
         medical expenses, and future lost wages; and
               (F) Property acquired by a spouse after an order of legal separation where the
        court has made a final disposition of property.

Id. § 36-4-121(b)(2) (Supp. 2002). Thus, in general, personal property acquired by a spouse during
marriage is considered marital property, unless it fits the definition of separate property set forth in
subparts (B) through (F) above, regardless of the name listed on the title to the property.




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        The statute governing the distribution of marital property also contains a provision which
states, “Nothing in this section shall be construed to prevent the affirmation, ratification and
incorporation in a decree of an agreement between the parties regarding the division of property.”
Id. § 36-4-121(g)(1) (2001 & Supp. 2002). The statute continues: “Nothing in this section shall
affect validity of an antenuptial agreement which is enforceable under § 36-3-501.” Id. § 36-4-
121(g)(2).

        Section 36-3-501 addresses the enforcement of antenuptial agreements. It provides: “[A]ny
antenuptial or prenuptial agreement entered into by spouses concerning property owned by either
spouse before the marriage which is the subject of such agreement shall be binding upon any court
having jurisdiction over such spouses and/or such agreement . . . .” Id. § 36-3-501. Such an
antenuptial agreement may be enforced only “if such agreement is determined, in the discretion of
such court, to have been entered into by [the] spouses freely, knowledgeably and in good faith and
without exertion of duress or undue influence upon either spouse.” Id. So long as this requirement
is met, its enforceability is not affected by the fact that the resulting distribution of assets to each
party is disproportionate. See Kahn v. Kahn, 756 S.W.2d 685, 692 (Tenn. 1988) (quoting Baker
v. Baker, 142 S.W.2d 737, 746 (Tenn. Ct. App. 1940)).

        Although the statute specifies property owned prior to marriage, Tennessee courts have held
“that the subject matter of prenuptial agreements is not limited to the disposition of property owned
by the parties before their marriage.” Soloman v. Murrey, 103 S.W.3d 431, 434 (Tenn. Ct. App.
2002) (enforcing provision of antenuptial agreement which resulted in the husband reimbursing the
wife for his share of the living expenses that arose during the marriage); see also Cary v. Cary, 937
S.W.2d 777, 781 (Tenn. 1996) (“Although this statute does not specifically govern antenuptial
provisions waiving or limiting alimony, it is persuasive evidence that antenuptial agreements are
favored and not repugnant to the public policy of this State.”).

         On appeal, Wife argues that, despite the Agreement, property obtained during the marriage
in the name of an individual spouse should be considered marital property and distributed equitably.
She argues that because she contributed to the acquisition, preservation and appreciation of many
of the items titled separately in Husband’s name, this property did not fit the statutory definition of
separate property and thus should have been considered marital property. In addition, she contends
that she could not have entered into the Agreement “knowledgeably” because the Agreement applied
to assets to be acquired in the future, thus rendering impossible full disclosure of the affected assets
at the time the parties executed the Agreement, and further because Wife was not represented by
counsel at the time it was executed. Moreover, Wife maintains that antenuptial agreements do not
apply to property fitting the “classical definition of marital property.”

         We first address Wife’s contention that she did not knowledgeably enter into the Agreement,
because she did not know what assets Husband would own in the future and because she was not
represented by counsel at the time the Agreement was executed. By enforcing the Agreement, the
trial court implicitly found that the parties entered the Agreement freely, knowledgeably and in good
faith, without duress or undue influence. See Tenn. Code Ann. § 36-3-501. Although representation


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by independent counsel is evidence that the parties entered the Agreement freely and knowledgeably,
it is not a prerequisite to such a finding. Randolph v. Randoph, 937 S.W.2d 815, 822 (Tenn. 1996).
The Agreement in this case is short and straightforward and clearly applies to property acquired by
the parties in the future. Under these circumstances, we cannot conclude that the evidence
preponderates against the trial court’s implicit finding that Wife freely and knowledgeably entered
into the Agreement.

        Wife also argues that the Agreement should not be applied to the property at issue because
it does not fit the statutory definition of separate property and because she contributed to the
acquisition, preservation and appreciation of the property. Under the terms of the Agreement in this
case, it does not matter whether the property fits the statutory definition of separate property or
marital property, or whether Wife contributed to the acquisition, preservation or appreciation of the
property. Under the explicit terms of the Agreement, regardless of how the property would be
classified, Wife waives all interest in any property acquired “by any means” in Husband’s name.
Although it leads to a harsh result in this case, under the circumstances, we cannot conclude that the
trial court erred in following the Agreement’s plain terms.

        The decision of the trial court is affirmed. Costs of this appeal are taxed against
Plaintiff/Appellant Dorothy Sue Bryant and her surety, for which execution may issue if necessary.



                                                       ___________________________________
                                                       HOLLY M. KIRBY, JUDGE




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