Marilyn Kay Anderson v. James Cephas Anderson ( 2019 )

08/16/2019
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
April 2, 2019 Session
MARILYN KAY ANDERSON v. JAMES CEPHAS ANDERSON
Appeal from the Circuit Court for Robertson County
No. 74CC2-2015-CV-233 Ross H. Hicks, Judge
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No. M2018-01248-COA-R3-CV
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This appeal arises from a divorce. All the issues pertain to the classification, valuation,
and equitable division of three large tracts of land. Husband acquired two of the tracts
before the marriage: a 197-acre tract and a 103-acre tract. Both of these tracts were used
in Husband’s farming operation before and during the marriage. During the marriage,
Husband and Wife built their marital residence on a portion of the 197-acre tract.
Husband acquired the third tract during the marriage but after the parties separated.
Wife’s name is not on any of the deeds. Wife contends that the tracts Husband owned
prior to the marriage transmuted into marital property. Alternatively, she contends their
appreciation in value during the marriage was marital property. Wife also contends the
third tract was marital property because Husband purchased it with marital funds from
their joint bank account during the marriage. The trial court classified the 197-acre tract
and the 103-acre tract as Husband’s separate property and held that none of the land
transmuted into marital property. The trial court also concluded that Wife was not entitled
to an interest in the appreciation of the properties because she did not substantially
contribute to their maintenance or increase in value. The trial court classified the marital
residence—that being the improvement but not any of the land associated with the
marital residence—as marital property. As for the tract Husband acquired during the
marriage, the court ruled that it was Husband’s separate property because Husband
purchased it with his separate funds. This appeal followed. Based on the parties’
treatment and use of some of the 197-acre tract on Highland Road as their marital
residence, it is evident that the parties intended for some portion of the land to transmute
into marital property. Therefore, we reverse the trial court’s determination that the entire
197-acre tract remained Husband’s separate property and remand for the trial court to
identify that portion of the land the parties treated and used as part of their marital
residence, classify that land as marital property, and determine its value. Based on this
change of classification, the trial court should also consider whether the change in value
necessitates a revision of the equitable division of the marital estate and, if so, enter
judgment accordingly. In all other respects, we affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed in
Part, Reversed in Part, and Remanded.
FRANK G. CLEMENT JR., P.J., M.S., delivered the opinion of the Court, in which D.
MICHAEL SWINEY, C.J. and W. NEAL MCBRAYER, J., joined.
Elizabeth A. Garrett and Trudy L. Bloodworth, Nashville, Tennessee, for the appellant,
Marilyn Kay Anderson.
Christopher J. Pittmans and Hollie L. Smith, Clarksville, Tennessee, for the appellee,
James Cephas Anderson.
OPINION
Marilyn Kay Anderson (“Wife”) and James Cephas Anderson (“Husband”) met in
1988. Husband lived in Robertson County, Tennessee, where he operated a farm on
Duer’s Mill Road. Husband owned the 103-acre tract of land jointly with his brother. In
1990, Husband expanded his farming operation by purchasing a 197-acre tract of land on
Highland Road. During this time, Wife lived in the Nashville area and spent her
weekends on the farm with Husband.
When the parties married in 1995, they moved into a trailer located on the 197-
acre tract of land on Highland Road. Husband added Wife to the farm’s credit line and
his previously separate checking account; however, he did not add Wife’s name to either
deed.
Wife worked as a medical project manager throughout the marriage and deposited
all her income into the joint account. Likewise, Husband deposited all his farming
income into the same joint account. The parties paid all their personal and business
expenses from the account, including payments for Husband’s $160,000 mortgage on the
Highland Road property.
In 2002, Husband and Wife purchased a tract of land on Eubanks Road, the deed
for which was titled to them jointly. In 2007, the parties moved into a house on the
Eubanks Road property while they built their marital residence on the Highland Road
property. The parties financed the new home with $250,000 in loans secured by the
jointly-owned Eubanks Road property. When construction was completed, the parties
moved into their new marital residence on the 197-acre Highland Road property.
In March 2015, the parties separated. That same month, the State of Tennessee
initiated an eminent domain action to condemn a portion of the Eubanks Road property
the parties owned jointly. In April 2015, the parties received an initial disbursement of
$320,000 from the State of which $158,000 was remitted to the mortgage company to pay
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off the loans for the construction of the marital residence. The balance of $162,000 was
deposited into the parties’ joint checking account on April 15, 2015.
Shortly thereafter, while separated and in anticipation of the divorce, although
neither party had filed a complaint for a divorce, Wife “equally divide[d]” the funds on
deposit in the joint account by withdrawing “her half”—approximately $96,000—and
depositing it in a separate account titled to her name only.
Husband’s mother died in March of 2015. In her will, she granted Husband an
option to purchase the J. B. Anderson family farm for $150,000.1 Pursuant to the will,
Husband had only 90 days to exercise his option. Husband timely exercised his option
and purchased the J. B. Anderson family farm with $80,000 he withdrew from the
parties’ joint checking account on April 21, 2015, and a $70,000 loan he obtained in his
name only. The deed to the property was in Husband’s name only.
Wife filed her complaint for divorce on April 29, 2015, and Husband filed a
counter-complaint on June 26, 2015.
In September 2017, the State of Tennessee remitted an additional $489,000
payable to Husband and Wife in furtherance of the condemnation of the jointly owned
Eubanks Road property. In October 2017, the trial court entered an agreed order dividing
the award equally between the parties and stating that the funds “shall be deemed to be
each part[y]s’ separate property.”
The parties’ only daughter was an adult at the time of trial, and neither party
sought alimony. Thus, the issues at trial were limited to the classification, valuation, and
equitable division of the marital estate.2 Wife contended that Husband’s interests in the
Highland Road and Duer’s Mill Road tracts transformed into marital property during the
marriage under the doctrine of transmutation. In the alternative, Wife claimed the
properties’ increase in value during the marriage was marital property due to her personal
and financial contributions to the properties’ preservation and appreciation. As for the
Anderson Road tract, Wife argued that it was a marital asset because Husband purchased
it during the marriage with funds from the joint account. For his part, Husband contended
1
Husband had been working the land on Anderson Road, which was known as the J. B. Anderson
Farm, for several years pursuant to a lease with his mother.
2
The parties stipulated that the Eubanks Road tract was marital property, and Husband did not
dispute Wife’s valuation of that tract. The parties also stipulated as to the value of the farming equipment
and cattle. Neither party presented evidence regarding the farming operation as an ongoing business.
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all three tracts were his separate property. But Husband conceded that the marital
residence, which was located on the 197-acre Highland Road tract, was marital property.
Each party testified on their separate contributions, or lack thereof, to the marriage
and the farming operation. In addition, each presented an expert witness to testify on the
properties’ values and the reasons for their appreciation. Wife’s appraiser, Ben Bolinger,
attributed the land’s increase in value to the successful farming operation and soil quality.
He reasoned that soil productivity was important for buyers because the highest-and-best
use of the property was farming. Husband’s appraiser, Luther Bratton, attributed the
appreciation primarily to the passage of time.
In the final order entered on June 8, 2018, the court classified the marital residence
and a machine shed on the Highland Road tract as marital property, but it found the
underlying 197 acres of land remained Husband’s separate property. The court also
classified Husband’s interest in the 103 acres of land on Duer’s Mill Road as Husband’s
separate property. As for both tracts, the court reasoned, inter alia, that Husband used the
land primarily for his farming operation and Wife’s financial contributions were
unnecessary because the farming operation was successful. Additionally, the court found
that the properties’ increase in value during the marriage remained Husband’s separate
property. The court found that Wife’s testimony about her personal contributions to the
day-to-day farming operations was “substantially exaggerated or fabricated,” and the
primary factor in the properties’ appreciation was the passage of time. As for the
Anderson Road property, the court classified it as Husband’s separate property because
Husband purchased it with his share of the recently and equally divided bank account.
In valuing the properties, the court found Husband’s expert, Mr. Bratton, more
credible than Wife’s expert, Mr. Bolinger. The court noted that Mr. Bolinger valued one
property without visiting it and included a building on the Duer’s Mill tract where other
evidence suggested there was none. Using Mr. Bratton’s property values, the court valued
Husband’s separate property at $2.1 million and Wife’s separate property—which
comprised only her share from the condemnation proceeds—was worth $160,000.3
Considering the factors for equitable division of marital property under Tenn.
Code Ann. § 36-4-121(c), the court found both parties were in good physical and mental
health and had substantial income earning capacity. Because Husband’s separate property
3
Prior to trial, the parties stipulated that they “previously equally divided funds totaling
$321,816.52” which “represent the final settlement proceeds that the parties received in the [e]minent
domain matter concerning marital property owned by the parties.”
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was worth substantially more than Wife’s, the court found it was equitable to award Wife
a larger portion of marital property, including the majority of the liquid assets.
Accordingly, the court awarded 59% of the marital estate to Wife, valued at $866,950,
and awarded 41% of the marital estate to Husband, valued at $605,976. This appeal
followed.
Wife raises four issues on appeal, which we restate as follows:
(1) Whether the trial court erred in classifying the Highland Road tract
as Husband’s separate property;
(2) Whether the trial court erred in classifying the appreciation of the
Highland Road tract and the Duer’s Mill tract as Husband’s separate
property;
(3) Whether the trial court erred in adopting Mr. Bratton’s values for the
Highland Road, Duer’s Mill, and Anderson Road tracts; and
(4) Whether the trial court erred in classifying the Anderson Road tract
as Husband’s separate property.
Additionally, each party seeks to recover his and her attorneys’ fees incurred on appeal.
ANALYSIS
“Dividing a marital estate necessarily begins with the systematic identification of
all the parties’ property interests.” Owens v. Owens, 241 S.W.3d 478, 485 (Tenn. Ct.
App. 2007) (citing 19 W. Walton Garrett, Tennessee Practice: Tennessee Divorce,
Alimony and Child Custody with Forms § 15:2 (rev. ed. 2004)). Once identified, these
property interests must be classified as either separate or marital property. Flannary v.
Flannary, 121 S.W.3d 647, 650 (Tenn. 2003). Because Tennessee is a “dual property”
state, see Smith v. Smith, 93 S.W.3d 871, 875–76 (Tenn. Ct. App. 2002)), only property
that fits within the definition of “marital property” can be included in the marital estate,
Owens, 241 S.W.3d at 485. Yet, as this court explained in Fox v. Fox,
The dividing line between marital and separate property frequently
becomes blurred. Marital property can become separate property when one
spouse gives it to the other spouse. Kinard v. Kinard, 986 S.W.2d 220, 232
(Tenn. Ct. App. 1998); Hanover v. Hanover, 775 S.W.2d 612, 617 (Tenn.
Ct. App. 1989). On the other hand, separate property can become marital
property either through commingling or transmutation. Even if an asset is
clearly separate property, the increase in the asset’s value during the
marriage and the income from the asset may be considered marital property
if the nonowner spouse contributed substantially to the asset’s preservation
and appreciation. Tenn. Code Ann. § 36-4-121(b)(1)(B); Cohen v. Cohen,
937 S.W.2d 823, 832–33 (Tenn. 1996); Harrison v. Harrison, 912 S.W.2d
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124, 127 (Tenn. 1995). Contributions to the preservation or appreciation of
a separate asset will be considered “substantial” if they are real and
significant. Mitts v. Mitts, 39 S.W.3d 142, 145 (Tenn. Ct. App. 2000);
Brown v. Brown, 913 S.W.2d 163, 167 (Tenn. Ct. App. 1994).
No. M2004-02616-COA-R3-CV, 2006 WL 2535407, at *3 (Tenn. Ct. App. Sept. 1,
2006) (footnotes omitted).
“Questions regarding the classification of property as either marital or separate , as
opposed to questions involving the appropriateness of the division of the marital estate,
are inherently factual.” Owens, 241 S.W.3d at 485 (citations omitted). Likewise,
questions relating to the valuation of property are issues of fact, id. at 486 (citing Kinard,
986 S.W.2d at 231), as is “[t]he resolution of conflicting expert testimony,” Martin v.
Norfolk S. Ry. Co., 271 S.W.3d 76, 85 (Tenn. 2008). Accordingly, the appellate courts
review a trial court’s decisions classifying and valuing the parties’ assets using the
familiar standard of review in Tenn. R. App. P. 13(d). See Owens, 241 S.W.3d at 485;
Stratienko v. Stratienko, 529 S.W.3d 389, 410 (Tenn. Ct. App. 2017).
Under Tenn. R. App. P. 13(d), we review a trial court’s determinations on issues
of fact “de novo upon the record.” Kelly v. Kelly, 445 S.W.3d 685, 692 (Tenn. 2014). We
presume the court’s findings are correct, “unless the preponderance of the evidence is
otherwise.” Id. “For the evidence to preponderate against a trial court’s finding of fact, it
must support another finding of fact with greater convincing effect.” State ex rel. Flowers
v. Tenn. Trucking Ass’n Self Ins. Grp. Tr., 209 S.W.3d 595, 599 (Tenn. Ct. App. 2006)
(citations omitted). Our review of a trial court’s determinations on issues of law is de
novo, with no presumption of correctness. Lind v. Beaman Dodge, Inc., 356 S.W.3d 889,
895 (Tenn. 2011).
I. CLASSIFICATION OF THE HIGHLAND ROAD PROPERTY—
THE MARITAL RESIDENCE, MACHINE SHED, AND FARMLAND
Wife contends that the 197-acre Highland Road tract became marital property
based on the legal principle of transmutation because the parties treated the property in
such a way as to evidence an intention that it become marital property. In particular, she
asserts that the parties used the Highland Road tract as the location for their marital
residence for twenty years; maintained and managed the property through physical labor
and financial contributions; and used Wife’s credit to obtain loans to build the marital
residence and keep the soil productive. In the alternative, she contends that the
appreciation of the farmland became marital property because she substantially
contributed to its appreciation through her role as a wage earner.
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Husband concedes that the structures the parties built on the Highland Road
farm—the marital residence and machine shed—are marital assets, but contends that the
underlying land remains his separate property.4
The trial court ruled that the two improvements the parties built on the Highland
Road tract during the marriage—the marital residence and machine shed—were marital
assets. The court based its ruling, in part, on the following:
20. Assets acquired individually by a party prior to marriage are
assumed to be that party’s separate property and the other party has
the burden of proving by a preponderance of the evidence that the
asset should be characterized as marital property instead. See Owens
vs. Owens, 241 [S.W.3d] 478, 485[–86] (Tenn. Ct. App. 2007).
21. It is undisputed that the Wife contributed her income to the parties’
joint bank account and that from the account in which both parties
contributed income, the parties built a residence on the Husband’s
separate property. During the marriage, a machine shed was also
built on the property. The Court determines that the marital
residence itself and the machine shed built during the marriage
are marital property. As the parties have also both conceded that
the Husband should receive this property, the Court will consider the
value of the [marital residence and machine shed] in equitably
dividing the marital property.
(emphasis added).
However, the court ruled that the 197 acres of land remained Husband’s separate
property based on the following:
4
In his appellate brief, Husband also contends that the marital residence was “located and
constructed” on property that was “in fact separate from the 197-acre farm tract.” The only citation to the
record to support this alleged fact is Trial Exhibit 25, which is the appraisal of Mr. Bratton. The exhibit
neither states nor implies that the marital residence was “located and constructed” on property that was
“in fact separate from the 197-acre farm tract.” In fact, the appraisal identifies the property as one tract, “a
197.35-acre improved farm located at 6771 Highland Road, Portland, Tennessee 37148. This tract of land
is improved with a residence, barns, and sheds.” The appraisal also values the marital residence at
$327,292 and the “land value” at $1,100,000. When combined with the other improvements on this
property, the total value is listed at $1,482,963.
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22. . . . . With the Court considering the marital residence separately
from the land, the Court determines that the land itself was primarily
used for the same farming operation the Husband was conducting
prior to the parties’ marriage. While the Court determines that the
Wife’s contribution of income to the joint account certainly assisted
the parties in the payment of their regular expenses, the testimony
also clearly shows that the Husband was able to make the payment
owing on his separate property prior to the parties’ marriage through
his farming operations and that he continued to operate as a
successful farmer after the parties’ marriage. It is the finding of this
Court that the Wife’s contribution to the parties’ living expenses
during the parties’ marriage did not act to transmute this separate
property from the Husband’s separate property to marital property.
The farm land was owned by the Husband prior to the marriage, and,
with the exception of the house which was constructed, was
primarily used for the same purpose both before and after the
marriage and was primarily farmed by the Husband with little input
from the Wife. While the parties’ joint account did pay off the
mortgage owing on the land, there was a substantial history of the
Husband making regular consistent payments on the mortgage prior
to marrying the Wife and the Court does not determine that this
property was transmuted into marital property, nor does the Court
determine that the Wife’s income was required for the mortgage to
be paid.
(Emphasis added).
Neither party objects to the determination that the marital residence and the
machine shed are marital assets. Wife, however, contends the entire Highland Road
tract—including the farmland—became marital property. As the foregoing reveals, the
trial court considered “the marital residence separately from the land,” and the court
focused its attention on whether Wife’s financial contributions were necessary to sustain
the farming operation. We have determined that the trial court should have focused its
inquiry on the intention of the parties in deciding whether any or all of the 197 acres
transmuted to marital property.
“[Transmutation] occurs when separate property is treated in such a way as to give
evidence of an intention that it become marital property.” Snodgrass v. Snodgrass,
295 S.W.3d 240, 256 (Tenn. 2009) (quoting Langschmidt v. Langschmidt, 81 S.W.3d
741, 747 (Tenn. 2002)). In determining intent, “the ultimate test is how the property was
treated by the parties.” Strickland v. Strickland, No. M2012-00603-COA-R3-CV, 2012
WL 6697296, at *17 (Tenn. Ct. App. Dec. 21, 2012). Factors include (1) the use of the
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property by the family or to support the marriage; (2) shared control, maintenance, or
management of the property; (3) titling the property jointly; and (4) use of the non-owner
spouses’ credit or separate funds to pay for or improve the property. Luplow v. Luplow,
450 S.W.3d 105, 114 (Tenn. Ct. App. 2014) (quoting Fox, 2006 WL 2535407, at *3); 2
John Tingley and Nicholas B. Svalina, Marital Property Law § 42:30 (2d ed.); see also
Woodward v. Woodward, 240 S.W.3d 825, 829 (Tenn. Ct. App. 2007) (use as marital
residence); McClellan v. McClellan, 873 S.W.2d 350, 352 (Tenn. Ct. App. 1993) (intent
to use as permanent family home); Kincaid v. Kincaid, 912 S.W.2d 140, 142 (Tenn. Ct.
App. 1995) (use of marital and non-owner spouse’s funds).
Similarly, the parties’ intent is central in determining whether an improvement has
become part of the land to which it is attached. See Hickman v. Booth, 173 S.W. 438, 438
(Tenn. 1915). To determine whether the parties intended an improvement to be annexed,
our courts “must look to the manner and strength of its attachment to the realty” and “the
difficulty and consequences of removing it.”5 Keenan v. Fodor, No. M2011-01475-COA-
R3-CV, 2012 WL 3090303, at *6 (Tenn. Ct. App. July 30, 2012). Courts also consider
the “use or purpose to which that part of the realty to which it is connected is
appropriated.” Fuson v. Whitaker, 190 S.W.2d 305, 306 (Tenn. Ct. App. 1945) (emphasis
in original) (quoting 22 Am. Jur., p. 715, § 3). Accordingly, we have recognized that
“buildings erected on land generally become part of the real property and are conveyed
with the land.” In re Estate of Ross, No. M2012-02228-COA-R3-CV, 2013 WL 3346717,
at *7 (Tenn. Ct. App. June 27, 2013); see also Foster & Creighton Co. v. Travelers
Indem. Co., 451 F.2d 1009, 1010 (6th Cir. 1971) (finding pilings became “a physical part
of the realty”); Dudzick v. Lewis, 133 S.W.2d 496, 497–98 (Tenn. 1939) (holding that
cabins became part of the land); First Nat. Bank of Rogersville v. Hawkins Cty.,
463 S.W.2d 946, 951–52 (Tenn. Ct. App. 1970) (holding sign passed to landowner when
affixed to land).
It is undisputed that the marital residence is a marital asset, and the parties
intentionally built and permanently affixed it to Husband’s separate property.6 Applying
5
“At common law the method of annexation seems to have been the criterion for determining
whether or not a fixture was personalty or realty.” Fuson, 190 S.W.2d at 306 (emphasis in original).
However, “[p]ractically all modern decisions have gotten away from this test and . . . the usual tests
applied are: ‘(1) Annexation to the realty, either actual or constructive; (2) adaptation or application to
the use or purpose to which that part of the realty to which it is connected is appropriated; and
(3) intention to make the article a permanent accession to the freehold.’” Id. (emphasis in original)
(quoting 22 Am. Jur., p. 715, § 3).
6
When the parties married, they moved a mobile home onto the property, which they used as
their marital residence for twelve years. Neither party is arguing that the mobile home became part of the
(continued . . .)
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the legal principle that buildings erected on land generally become part of the real
property, and recognizing that the parties intended for the marital residence to be a family
home, it is apparent the parties intended for the land, or at least that portion of the land
used in conjunction with the marital residence, to be marital property.7 See Araya v.
Keleta, 65 A.3d 40, 56 (D.C. 2013) (recognizing that a trial court may treat separate
property as “transformed” when “(1) the two items of property came to be used as one
property and (2) one or both properties would be destroyed or damaged or left with a
gaping deficiency or defect if the properties were separated” (footnotes omitted)).
Because the marital residence became part of the land, and conversely at least some of
the land became part of the marital estate, we respectfully reverse the trial court’s
determination that the entire 197-acre tract on Highland Road remained Husband’s
separate property.8
Therefore, we remand this issue so the trial court can identify the portion and
value of the land that became a part of the marital residence and estate.9 In making this
determination, the intent of the parties is the guiding principle. See Snodgrass,
295 S.W.3d at 256. To determine the parties’ intent, the trial court may consider, among
land. However, the evidence in this record, including the nature and extent of the affixation of the marital
residence to the land, and the size of the home constructed in 2012, proves that the marital residence was
permanently affixed to the land. See Assocs. Capital Corp. v. Cookeville Prod. Credit Ass’n, 569 S.W.2d
474, 477–78 (Tenn. Ct. App. 1978) (finding mobile home was affixed to the land).
7
Although it may be possible for a home built on a zero lot line in a major urban area to have no
accompanying land, a court could take judicial notice that a marital residence on farmland in rural
Robertson County would include some portion of the land surrounding the residence.
8
We recognize that we have disapproved the classification of improvements separately from land
in past cases concerning the valuation of property and attribution of post-marriage appreciation. See
Stinnett v. Ferguson, No. E2001-02031-COA-R3-CV, 2002 WL 445073, at *1 (Tenn. Ct. App. Mar. 22,
2002) (rejecting husband’s argument that he should be awarded the amount of money he invested into
constructing cabins on wife’s separate property); Denton v. Denton, 33 S.W.3d 229, 235 (Tenn. Ct. App.
2000) (finding husband substantially contributed to a property’s preservation and appreciation when
“viewed as one piece of property”). Additionally, in Fox we reversed the trial court’s mixed-classification
of two properties when it arbitrarily classified the properties’ overall value as 25% marital and 75%
separate. 2006 WL 2535407, at *2–3; but see Arp v. Arp, No. 03A-019808-CV-00273, 1999 WL 427610,
at *2 (Tenn. Ct. App. June 18, 1999) (affirming trial court’s classification of property as 50% separate
and 50% marital). The present matter is distinguished from these cases in that there was evidence that the
Highland Road property served a dual purpose, as a farm and residence.
9
Our ruling, however, does not suggest that the entire 197-acre tract on Highland Road became
part of the marital residence and thus marital property.
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other relevant factors and evidence, the uses to which the various sections of the 197-acre
tract were put after the parties moved into the marital residence for use as their home.
See, e.g., Brown v. Brown, 784 So. 2d 464, 468 (Fla. Ct. App. 2001) (reversing trial
court’s mixed-classification of 54-acre tract underlying the marital residence when “[a]ll
fifty-four acres were fenced” and “[t]he family treated the entire parcel as the family
home and made use of all of it”).
As for the “machine shed,” the record fails to establish that the parties’ “treated”
or “used” the land associated with the machine shed as marital property. As noted earlier,
“[transmutation] occurs when separate property is treated in such a way as to give
evidence of an intention that it become marital property.” Snodgrass, 295 S.W.3d at 256
(quoting Langschmidt, 81 S.W.3d at 747). The parties’ intent is central in determining
whether an improvement has become part of the land to which it is attached, see
Hickman, 173 S.W. at 438, and in determining intent, “[t]he ultimate test is how the
property was treated by the parties.” Strickland, 2012 WL 6697296, at *17. Therefore,
the evidence does not preponderate in favor of a finding that the parties intended for the
land associated with the shed to become marital property.
Moreover, the evidence does not preponderate in favor of a finding that “the
manner and strength of [the machine shed’s] attachment to the realty” or “the difficulty
and consequences of removing it” made the land part of the machine shed or the machine
shed part of the land. See Keenan, 2012 WL 3090303, at *6. Although one of the
appraisals indicates that the machine shed was “permanently affixed” to the land, there is
no evidence in the record concerning “the manner and strength of its attachment to the
realty” or “the difficulty and consequences of removing it.” Id.
For the foregoing reasons, the evidence fails to establish that the parties’ treatment
and uses of the machine shed and/or the construction of the machine shed on Husband’s
separate property transmuted any portion of the land into marital property. Accordingly,
we affirm the determination that the machine shed is a marital asset and that the land
associated with the machine shed remains Husband’s separate property.
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II. APPRECIATION OF HUSBAND’S SEPARATE PROPERTY:
HIGHLAND ROAD FARMLAND AND DUER’S MILL ROAD FARMLAND
Wife also claims the increase in value of Husband’s separate property on Highland
Road and Duer’s Mill Road11 is marital property because her financial contributions
10
enabled Husband to retain the properties.12 For his part, Husband contends that Wife’s de
minimis contributions did not affect the appreciation in value of the properties; instead, he
contends the appreciation was market-driven and attributable to the passage of time.
Thus, Husband argues that Wife is not entitled to any share of the increased value of
these properties.
As noted previously, Wife’s appraiser, Mr. Bolinger, attributed both tracts’
increase in value to the successful farming operation and soil productivity. Conversely,
Husband’s appraiser, Mr. Bratton, attributed the properties’ appreciation to the passage of
time. The court found Mr. Bratton’s appraisals more credible than those of Mr. Bolinger
and, thus, found the appreciation of the properties was due primarily to the passage of
time. The court also found, inter alia, that Husband could have maintained the land
without Wife’s contributions because the farming operation was successful. In other
words, Wife’s financial contributions were unnecessary to preserve the properties.
Therefore, the court ruled that the increase in value remained Husband’s separate
property.
As the trial court correctly stated in its final order:
Tenn. Code Ann. § 36-4-121[(b)(1)(B)(i)] states that “marital property”
includes any increase in the value during the marriage of property
determined to be separate property if each party substantially contributed to
its preservation and appreciation. To be considered substantial, a spouse’s
10
Because we have remanded the trial court’s determination that the entire 197-acre tract on
Highland Road is Husband’s separate property, our analysis as to the Highland Road property pertains
only to the portion the trial court identifies as Husband’s separate property.
11
Wife does not appeal the trial court’s classification of the Duer’s Mill tract as Husband’s
separate property.
12
At trial, Wife claimed that her work in the farming operations substantially contributed to the
properties’ increase in value. The trial court, however, found Wife’s testimony on this issue was
“substantially exaggerated or fabricated.” On appeal, Wife relies only on her role as a wage earner to
show that she substantially contributed to the appreciation.
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contribution to the preservation and appreciation of the property must be
“real and significant.” Brown v. Brown, 913 S.W.2d 163, 167 (Tenn. Ct.
App. 1994). There also must be some link between the non-owner spouse’s
contributions and the appreciation in the value of the separate property.
Langschmidt v. Langschmidt, 81 S.W.3d at 746 (Tenn. 2002).
(emphasis added). As used in Tenn. Code Ann. § 36-4-121(b), “‘substantial contribution’
may include, but not be limited to, the direct or indirect contribution of a spouse as
homemaker, wage earner, parent or family financial manager, together with such other
factors as the court having jurisdiction thereof may determine[.]” Id. § 121(b)(1)(D). We
agree with the trial court that Wife failed to show she substantially contributed to the
preservation and appreciation of the properties.
Wife claims that her role as wage earner enabled Husband to retain the property,
citing to Clement v. Clement for the proposition that “[a] contribution is substantial if it
enabled the spouse who owns the property to retain it during the marriage.” No. W2003-
02388-COA-R3-CV, 2004 WL 3396472, at *11 (Tenn. Ct. App. Dec. 30, 2004). In
Clement, however, we found the wife “devoted herself to the responsibilities of a
homemaker with [the husband]’s blessing,” thus enabling the husband “to spend much of
his time outside the home pursuing business interests, community involvement, and
recreational activities.” Id. Here, the trial court found Husband’s testimony credible
regarding the success of his business, which made Wife’s financial contributions
unnecessary to keep or maintain the land.
Even if Wife’s financial contributions substantially contributed to the preservation
of the properties, the plain language of Tenn. Code Ann. § 36-4-121(b) also required
Wife show that she contributed to the properties’ appreciation. See Harrison, 912 S.W.2d
at 126–27 (finding spouse’s assistance with care of cattle and payments on mortgage did
not transform the increased value in property into marital property when the sole reason
for the appreciation was the construction of I-24). The trial court accepted Mr. Bratton’s
explanation that the properties increased in value due to the passage of time rather than
the success of the farming operation. As discussed below, we find no reason to reverse
the trial court’s decision to credit Mr. Bratton’s appraisals over those of Mr. Bolinger.
The trial court found that the primary factor in the property’s appreciation was the
passage of time and that Wife’s de minimis contributions did not substantially contribute
to the maintenance of Husband’s separate properties; therefore, the court ruled that the
increase in value remained Husband’s separate property. We have determined that the
trial court applied the correct legal standards, and the evidence does not preponderate
against the findings upon which the court based its ruling. Accordingly, we affirm the
trial court’s classification of the appreciation in value of the farmland on Highland Road
and Duer’s Mill Road as Husband’s separate property.
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III. APPRAISALS FOR HUSBAND’S SEPARATE PROPERTIES
Wife also contends the trial court erred by accepting Mr. Bratton’s appraisals for
the Highland Road, Duer’s Mill, and Anderson Road properties. Wife asserts that
Mr. Bratton’s appraisals were flawed because he based them on “residential information”
and did not consider soil quality or farm productivity.13 Citing to Fickle v. Fickle, 287
S.W.3d 723, 729–31 (Tenn. Ct. App. 2008), Wife argues that a farm operation’s
continued profitability and soil quality increases the land’s value when its highest-and-
best use is farming. Respectfully, we find Wife’s reliance on Fickle is misplaced. Our
recognition that soil quality and profitability is relevant to the value of farmland was not
a mandate requiring that appraisals consider these criteria. See Willamette Indus., Inc. v.
Tennessee Assessment Appeals Comm’n, 11 S.W.3d 142, 149 (Tenn. Ct. App. 1999)
(rejecting plaintiff’s argument that a particular valuation method must be used to value
timberland); Green v. Arnold, 150 S.W.2d 1075, 1076 (Tenn. Ct. App. 1940) (“Land is
not a commodity of a fixed market value, no two acres being of the same intrinsic value;
market value . . . is a question to be determined by the [finder of fact] from their own
knowledge and the opinion of the witnesses as to the market value, taken in connection
with the other proven circumstances of value.”).
“[V]aluation evidence is inherently subjective,” Owens, 241 S.W.3d at 489, and
weighing competing expert opinions is a matter for the trier of fact, Brown v. Crown
Equip. Corp., 181 S.W.3d 268, 275 (Tenn. 2005). When an expert’s methodology is
patently flawed, courts can and should discount the expert’s opinion. Owens, 241 S.W.3d
at 488 (citing Clement, 2004 WL 3396472, at *9–10). That said, when the evidence
supports an expert witness’s testimony “and the trier of fact credits that testimony over
others, there is no basis to reverse the court’s findings.’” Estate of Fetterman ex rel.
Fetterman v. King, 206 S.W.3d 436, 445 (Tenn. Ct. App. 2006) (quoting Atkins v. State,
No. E2003-01255-COA-R3-CV, 2004 WL 787166, at *5 (Tenn. Ct. App. Apr. 14,
2004)).
Wife did not object to Mr. Bratton’s opinion when he offered it on direct
examination, and she later cross-examined Mr. Bratton on his methodology. Thus, the
court determined the credibility of Mr. Bratton’s opinion based on the testimony elicited
by the parties. “Where the issue for decision depends on the determination of the
13
The trial court overruled Wife’s objection to admitting Mr. Bratton as an expert witness on the
basis that he was certified only as a residential appraiser. Wife did not challenge Mr. Bratton’s
qualifications on appeal.
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credibility of witnesses, the trial court is the best judge of the credibility and its findings
of credibility are entitled to great weight.” Tenn-Tex Properties v. Brownell-Electro, Inc.,
778 S.W.2d 423, 426 (Tenn. 1989).
We have reviewed the testimony of Mr. Bratton, and we find no basis for
completely discounting his opinion on the properties’ value or the reason for their
increase in value. Nevertheless, because we have reversed the trial court’s classification
of the Highland Road property, on remand the trial court must revise its valuation of
Husband’s separate property and the portion of the land on Highland Road that
transmuted into marital property. Accordingly, although we find no error in the trial
court’s decision to credit Mr. Bratton’s opinion over that of Mr. Bolinger, we remand this
issue for a revision of the value of Husband’s separate property and the marital estate.
IV. THE J. B. ANDERSON FARM PROPERTY
Finally, Wife contends the trial court misclassified the Anderson Road tract as
Husband’s separate property because Husband acquired the property before the parties
divorced with marital funds from their joint bank account. Husband counters, arguing
Wife took “her half” of the funds in their joint checking account after they separated,
leaving the remaining half as his separate property.
It is undisputed that the Anderson Road tract had served as the Anderson family
farm for years, and Husband’s parents intended for Husband to receive this land. Further,
the parties stipulated that Husband’s parents placed an option in their wills so Husband
could purchase the property for an amount per acre that was substantially below market
value. The deadline for exercising this option, however, would have passed before
Husband and Wife were divorced. Electing to purchase the property before the divorce
was final, Husband obtained a loan of $70,000 from the bank and withdrew $80,000 from
the parties’ joint checking account to fund the purchase price of $150,000. Additionally,
it was undisputed that Husband promptly paid off the loan through separate inheritance
funds received from the settlement of his mother’s estate.
Moreover, it is undisputed that the funds Husband withdrew from the joint account
were a portion of the $162,000 in proceeds received in March 2015 from the partial
condemnation of the Eubanks Road property, which the parties owned jointly. Thus, the
funds were a marital asset. Significantly, however, it is undisputed that Wife divided the
funds as the marriage was ending, made “her half” of the condemnation proceeds her
separate property, and intended that the remaining funds be “Husband’s share” of the
condemnation proceeds and his separate property.
Based on these facts, the trial court determined that the $80,000 Husband used to
exercise his option on the Anderson Road tract were Husband’s separate property.
Therefore, the trial court concluded, “it is clear that the [Anderson Road] property should
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be deemed to be the Husband’s sole and separate property for which the Wife has no
interest.”14 We agree. Therefore, we affirm the determination that the Anderson Road
tract is Husband’s separate property.
V. ATTORNEY’S FEES
Both parties ask for an award of attorney’s fees on appeal. Whether to award
attorney’s fees incurred on appeal is a matter within this court’s sole discretion. Shofner
v. Shofner, 181 S.W.3d 703, 719 (Tenn. Ct. App. 2004). In determining whether an award
for attorney’s fees is warranted, we consider, inter alia, the ability of the requesting party
to pay his or her own attorney’s fees, that party’s success on appeal, whether that party
has acted in good faith, and whether an award of attorney’s fees is equitable. Id. (citing
Parchman v. Parchman, No. W2003-01204-COA-R3-CV, 2004 WL 2609198, at *6
(Tenn. Ct. App. Nov. 17, 2004)). Considering the foregoing, we have determined that
neither party is entitled to attorney fees on appeal.
IN CONCLUSION
We reverse the trial court’s determination that the entire 197-acre tract on
Highland Road remained Husband’s separate property and remand for the trial court to
identify that portion of the land the parties treated and used as part of their marital
residence, classify that land as marital property, and determine its value. Based on this
change of classification, the trial court should also consider whether the change in value
necessitates a revision of the equitable division of the marital estate and, if so, enter
judgment accordingly. In all other respects, we affirm the judgment of the trial court.
Costs of appeal are assessed against the parties equally.
________________________________
FRANK G. CLEMENT JR., P.J., M.S.
14
The trial court valued the Anderson Road property at $509,500. The trial court also stated in its
final order, “It is further undisputed that the Wife took no steps to contribute to any appreciation in this
property during the parties’ marriage as the property was obtained after the parties separated.” Wife does
not dispute this finding.
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