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02/17/94 DIANE BROOK OGLE v. ROCKY JAMES OGLE AND

February 17, 1994

DIANE BROOK OGLE, PLAINTIFF-APPELLEE
v.
ROCKY JAMES OGLE AND JAMES VON OGLE AND WIFE, MARGIE M. OGLE, DEFENDANTS-APPELLANTS



CIRCUIT COURT. SEVIER COUNTY. HON. W. DALE YOUNG, JUDGE

Sanders, Franks, McMurray

The opinion of the court was delivered by: Sanders

Sanders, Sr.J.

The pivotal issue on this appeal is whether or not the court was in error in holding the real property in dispute in this litigation "is equitably owned by Rocky James Ogle and Diane Brooks Ogle, as marital property." We hold it was not error, and affirm for the reasons hereinafter stated.

The Plaintiff-Appellee, Diane Brook Ogle, (Diane) and Defendant-Appellant Rocky James Ogle (Rocky) were married in October, 1988. In February, 1992, Diane filed suit against Rocky for divorce on grounds of inappropriate marital conduct. She asked for a divorce and an equitable division of marital property. By amendment, she also made James Von Ogle and wife, Marjorie Ogle (the Ogles) Defendants to the complaint and, as pertinent here, alleged: "Plaintiff further avers that she and her husband purchased real property from the defendants, James Von Ogle and wife, Marjorie Ogle, by land contract dated January 1, 1989, for $40,000.00, payable at $400.00 per month with balance of $38,501.00 as of January 1, 1992, a copy of which is attached as Exhibit A to this Complaint. Said land is situated in the Third (3rd) Civil District of Sevier County, Tennessee, which is titled in the names of the defendants, James Von Ogle and Marjorie Ogle, and being held in trust for the plaintiff and defendant. Said real property is more particularly described in Warranty Deed of record in Warranty Deed Book 254, page 458, in the Register's Office of Sevier County, Tennessee. A copy of said deed is attached as Exhibit B to this Complaint. That upon the hearing of this cause a fair and equitable division of same be made by this Honorable Court." Diane also attached a copy of a document written by Mrs. Ogle, which states as follows: Jan 1st 1989. (We have built and paid for a house for Rocky and wife Diane to live.) It is our will and desire that in the event of our deaths - should we both die simultaneously - we want it understood that our only son Rocky James Ogle should have the new house on Shields View Drive Lot 3 free and clear (Otherwise He pays $400.00 per month for 10 year.

"Husband /s/ James Von Ogle

"Wife /s/ Margie M. Ogle

/s/ "Woody Brackins

"Witness

/s/ "Aileen Ogle

"Notary Public 12-20-89

"The said lot - appraised at $12,000 will be deeded over when the ten years of payments are complete.

As of Nov. 15, 1989 Rocky and Diane Ogle have paid $4,540.00 on the House."

The Ogles, for answer, admitted Diane and Rocky had lived in the residence and paid $400 per month since January, 1989, but said "this is only to be construed and inferred by defendants as rent." They also said the document written by Mrs. Ogle, which was dated January 1, 1989, was not signed by James Von Ogle. They denied they held the property in trust for Diane and Rocky or that it was their marital property.

Upon the trial of the case, the court granted a divorce and made a division of the marital property. As pertinent here, the decree provided:

"In keeping with the Court's Memorandum, the Court finds as follows:

"1. The real property in dispute is equitably owned by Rocky James Ogle and Diane Brook ...


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