Hand v. Hand ( 1997 )

IN THE COURT OF APPEALS OF TENNESSEE
WESTERN SECTION AT NASHVILLE
MARQUIETTA AVONNE HEATON HAND, )
)
Plaintiff/Appellant, ) Humphreys Chancery No. 22-471
)
VS. ) No. 01A01-9607-CH-00325
)
JAMES THOMAS HAND, )
)
Defendant/Appellee. )
APPEAL FROM THE CHANCERY COURT OF HUMPHREYS COUNTY
AT WAVERLY, TENNESSEE
THE HONORABLE ALLEN W. WALLACE, CHANCELLOR
CLIFFORD McGOWAN, JR.
Waverly, Tennessee
FILED
JACK NORMAN, JR.
April 18, 1997
THOMAS F. BLOOM
Nashville, Tennessee
Cecil W. Crowson
Attorneys for Appellant
Appellate Court Clerk
DAN R. BRADLEY
Waverly, Tennessee
BARBARA G. MEDLEY
Lewisburg, Tennessee
Attorneys for Appellee
AFFIRMED
ALAN E. HIGHERS, J.
CONCUR:
W. FRANK CRAWFORD, P.J., W.S.
DAVID R. FARMER, J.
Plaintiff Marquietta Avonne Heaton Hand (the Wife) appeals the final decree of
divorce entered by the trial court which distributed the parties’ property and ordered the
Wife to pay the attorney’s fees of Defendant/Appellee James Thomas Hand (the
Husband). On appeal from the final decree, the Wife contends that the trial court erred in
three respects: (1) in failing to award the marital residence to the Wife; (2) in awarding the
divorce to the Husband based on the Wife’s inappropriate marital conduct; and (3) in
ordering the Wife to pay the Husband’s attorney’s fees. We affirm.
At the time of their marriage in 1979, the parties lived in Houston, Texas. Shortly
after the parties’ marriage, the Husband quit his job with Poole Drilling Company. Although
the parties knew beforehand that the job would require the Husband to work in Italy for
approximately one month, a dispute later arose between the parties regarding this job
requirement. The Wife informed the Husband that she could not accompany him to Italy
because she had to care for her mother, who had cancer and was undergoing
chemotherapy. Rather than go to Italy without the Wife, the Husband quit.
Instead of obtaining outside employment, the Husband went to work for the Wife on
a part-time basis remodeling houses on properties owned by the Wife in Texas. Although
the Wife minimized the Husband’s labor and other contributions towards the Texas
properties, the Husband testified that he performed extensive remodeling projects on the
houses, including wallpapering, painting, carpeting, tiling, carpentry, air-conditioning and
electrical work, landscaping, roofing, and other repairs. The parties allowed one of the
properties to be foreclosed, but the Wife, a licensed real estate broker, sold the other three
properties at substantial profits.
In January 1983, the parties decided to move to Tennessee to be closer to the
Husband’s family. The parties bought 109 acres of property in Humphreys County from
the Husband’s uncle for $50,000, and they proceeded to build a home on the property.
Although the Husband testified that he made some monetary contributions towards
acquisition of the property and construction of the home, the Husband acknowledged that
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the bulk of the parties’ new marital residence was acquired with funds from the Wife’s
mother and funds from the sale of the Wife’s Texas properties. Despite his relatively
modest monetary contributions, the Husband testified that he personally performed large
portions of the construction of the marital residence. Among other tasks, the Husband
testified that he sealed the outside walls; insulated the walls; partitioned the downstairs;
did plumbing, electrical, and duct work; installed windows, flooring, and exterior and interior
doors; and painted. As with the Texas properties, the Wife’s testimony minimized the
Husband’s labor and other contributions towards construction of the marital home.
During construction of the marital residence, which lasted about two years, the
Husband took care of the parties’ cattle, repaired fences around the property, and did other
part-time work. In 1985 or 1986, the Husband started his own electrical business, which
produced some income. The Wife went on jobs with the Husband, and she learned to help
install wiring. For the most part, however, the parties lived off of income produced by the
Wife’s assets.
In September 1993, the parties learned that the Husband had heart disease and
cancer. The Husband first underwent bypass surgery for his heart condition, and he later
had surgery to remove a cancerous kidney and part of this bladder. Between surgeries,
while the Husband was recuperating at home, the Wife insisted that the Husband sign a
quitclaim deed conveying the Husband’s interest in the marital residence to the Wife. Both
parties had adult children from previous marriages, and the Wife, convinced that the
Husband would die as a result of his illness, was concerned about future estate problems.
According to the Husband, the Wife stated that she “didn’t want to have any lawsuits like
the problem that Conway Twitty and all them were having.” Because the Husband was
“under heavy medication” and did not want to argue, the Husband gave in to the Wife’s
demands and executed the quitclaim deed.
The Wife told a very different story concerning the Husband’s execution of the
quitclaim deed. According to the Wife, the conveyance took place as the result of a prior
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agreement between the parties. In order to induce the Wife to move with him to
Tennessee and to acquire the marital residence, the Husband allegedly agreed that, when
the Wife reached fifty-five years of age, the Husband would quitclaim his interest in the
property to the Wife. The Wife testified that, as additional consideration for the
conveyance, the Wife paid $68,439 out of her separate funds to extinguish the parties’ line
of credit, which was secured by the marital residence.
After the Husband returned home from his last surgery, the parties’ relationship
quickly deteriorated. Within months, the Wife filed this complaint seeking a divorce on the
grounds of inappropriate marital conduct and irreconcilable differences, and the Husband
counterclaimed.
In its final decree, the trial court distributed the parties’ vehicles, household
furnishings and appliances, and other personal property. The court awarded the marital
residence, including the 109 acres on which the residence was located, to the Wife;
however, the court awarded the Husband a judgment lien against the marital residence in
the amount of $125,000, one-half of the property’s value. The court also ordered the Wife
to pay the Husband’s attorney’s fees, in the amount of $5,000, as alimony in solido. The
Wife was permitted to retain her separate property, including $9,000 in cash, a $100,000
certificate of deposit which the Wife inherited from her mother, and several undeveloped
parcels of land in Texas which had a total value of approximately $89,000.
On appeal, the Wife contends that the trial court erred in awarding the Husband a
$125,000 judgment lien against the marital residence because (1) the property was
acquired primarily with the Wife’s separate funds, and (2) the Husband had executed a
quitclaim deed conveying all of his interest in the property to the Wife.
As an initial matter, we must reject the Wife’s claim that the parties’ residence did
not constitute marital property because it was acquired primarily with the Wife’s separate
funds. At trial, it was undisputed that the majority of the funds used to purchase the marital
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residence came from the Wife’s mother and from the sale of the Wife’s properties in
Texas. Before using these funds to purchase the marital residence, however, the Wife
deposited a large portion of the funds into the parties’ joint checking account. Further,
when the parties purchased the marital residence, the property was titled in both parties’
names. Under these circumstances, the trial court did not err in concluding that, under the
doctrine of transmutation, the marital residence constituted marital property. McClellan v.
McClellan, 873 S.W.2d 350, 351-52 (Tenn. App. 1993); Barnhill v. Barnhill, 826 S.W.2d
443, 452 (Tenn. App. 1991).
As for the Wife’s second argument concerning the marital residence, we conclude
that the trial court did not err in refusing to recognize the quitclaim deed executed by the
Husband. As recently stated by our Supreme Court, “[f]or the purposes of property division
in a divorce, ‘[i]n the final analysis, the status of property depends not on the state of its
record title, but on the conduct of the parties.’” Cohen v. Cohen, 937 S.W.2d 823, 833 n.
12 (Tenn. 1996) (quoting Mondelli v. Howard, 780 S.W.2d 769, 774 (Tenn. App. 1989)).
In accordance with this principle, this court has refused to recognize a quitclaim
deed executed by a husband in favor of his wife under similar circumstances. In Abney
v. Abney, 1991 WL 16255 (Tenn. App. 1991), perm. app. denied (Tenn. Sept. 9, 1991),
the wife insisted that the husband execute a deed conveying to the wife certain real
property which the parties formerly held as tenants by the entireties. The husband recently
had obtained a pilot’s license, and the wife asked him to execute the deed “for liability
purposes” because she feared “that the property might become a part of some future claim
against her husband as a result of a future airplane crash.” Abney, 1991 WL 16255, at **2-
3. This court refused to give effect to the deed, and affirmed the trial court’s decision to
divide the property between the parties. Id.
In the present case, in refusing to give effect to the quitclaim deed, the trial court
found that the parties did not intend for the Husband to make a gift of his interest in the
marital residence to the Wife. The trial court found that the parties instead entered into the
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transaction in order to avoid any future disputes over the Husband’s estate in the event that
the Husband died as a result of his illness. In light of these findings, the trial court did not
abuse its discretion in awarding the Husband a one-half interest in the marital residence.
We also affirm the trial court’s award of a divorce to the Husband on the ground of
the Wife’s inappropriate marital conduct. At trial, the issue of which party was at fault in
causing the breakup of the marriage was sharply disputed. Although both parties agreed
that the marriage deteriorated rapidly after the Husband returned home from his last
surgery, from there the parties’ theories diverged. The Wife testified that, after his
illnesses, the Husband became hostile and difficult to get along with, went for periods as
long as two weeks without bathing, and refused to obtain gainful employment even though
doctors said he could return to work. The Husband, on the other hand, testified that, after
he returned home from the hospital, the Wife “was a totally different person” in that she
became “real hateful,” quit cooking for him, and refused to sleep with him.
Where the decision of the trial court with regard to a specific issue hinges on the
credibility of the witnesses, the trial court’s decision is entitled to great weight in this court.
“Any conflict in testimony requiring a determination of the credibility of a witness or
witnesses is for the trial court and binding on the appellate court unless from other real
evidence the appellate court is compelled to conclude to the contrary.” Hudson v. Capps,
651 S.W.2d 243, 246 (Tenn. App. 1983). In awarding the Husband a divorce on the
ground of inappropriate marital conduct, the trial court apparently believed the Husband’s
version of the events leading up to the deterioration of the parties’ marriage. Brewer v.
Brewer, 869 S.W.2d 928, 934 (Tenn. App. 1993). Despite the Wife’s testimony to the
contrary, we are not compelled to reach a different result.
Finally, we affirm the trial court’s award of attorney’s fees to the Husband. The
decision to award attorney’s fees in a divorce action rests within the sound discretion of the
trial court, and on appeal, this court will not interfere with the trial court’s decision, absent
a showing of an abuse of that discretion. McCarty v. McCarty, 863 S.W.2d 716, 722
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(Tenn. App. 1992). In the present case, the Husband was awarded some personal
property and a $125,000 judgment lien against the marital residence. The Husband,
however, was not awarded any substantial, liquid assets, and he testified that, in order to
pay his living expenses since the parties’ separation, he had been forced to borrow money
from relatives. In contrast, the Wife, in addition to being awarded the marital residence
(subject to the Husband’s lien), was awarded separate property with a total value of almost
$200,000. This property included $9,000 in cash, a $100,000 certificate of deposit, and
real property valued at approximately $89,000. In light of these factors, as well as the trial
court’s finding that the Wife was at fault in the breakup of the marriage, we conclude that
the court did not abuse its discretion in ordering the Wife to pay the Husband’s attorney’s
fees in the amount of $5,000. Storey v. Storey, 835 S.W.2d 593, 597-98 (Tenn. App.
1992).
The judgment of the trial court is hereby affirmed. Costs on appeal are taxed to the
Wife, for which execution may issue if necessary.
HIGHERS, J.
CONCUR:
CRAWFORD, P.J., W.S.
FARMER, J.
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