April 20, 2017
from the Circuit Court for Hamilton County No. 12D1733 W.
Jeffrey Hollingsworth, Judge
Michael Lee Givens ("Husband") sued Tristine Ann
Givens ("Wife") for divorce. The case was tried,
and the Circuit Court for Hamilton County ("the Trial
Court") entered its order on January 12, 2016, inter
alia, granting a divorce and distributing the marital
property. Wife appeals raising issues regarding the
classification and distribution of the marital property. We
find and hold that the Trial Court erred in categorizing the
real property located on Taggart Drive ("Taggart")
as Husband's separate property. We, therefore, modify the
categorization of Taggart to reflect that Taggart is marital
property and remand this case for an equitable distribution
of the marital estate taking Taggart into account as a
marital asset. We affirm the remainder of the Trial
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Court Modified, in part; Affirmed, in part; Case Remanded
Elizabeth M. Hill, Chattanooga, Tennessee, for the appellant,
Tristine Ann Givens.
Gerald Tidwell, Jr. and Todd A. Davis, Chattanooga,
Tennessee, for the appellee, Michael Lee Givens.
MICHAEL SWINEY, C.J., delivered the opinion of the court, in
which JOHN W. MCCLARTY and THOMAS R. FRIERSON, II, JJ.,
MICHAEL SWINEY, CHIEF JUDGE
and Wife were married in December of 2002. No children were
born of the marriage. Husband filed for divorce in August of
2012. The case was tried over multiple days in November and
December of 2015. At the time of trial, Husband was 55 years
old, Wife was 61 years old, and the parties had been married
for thirteen years. Husband is employed as a real estate
broker. Husband has worked in real estate for twenty-seven
years. Wife is a teacher at an elementary school in the
Catoosa County school system in Georgia. Wife has been
teaching in Georgia for approximately thirty-six years.
testified at trial about Taggart explaining that Taggart is
rental property that he acquired in the summer of 1998, prior
to the marriage. Wife's name never has been on the deed
to Taggart. Husband and Wife never lived at Taggart.
testified that Taggart was rented prior to the marriage and
that it has remained rented during the marriage. Husband
receives income from the rental of Taggart. Husband testified
that Taggart generates $1, 130 in income per month. He
explained that Taggart is a duplex and that one of the units
rents for $530 and the other rents for $600.
stated that the purchase price of $78, 000 for Taggart was
financed 100 percent. At the time of the marriage, Husband
owed around $70, 000 on Taggart. Husband testified that the
value of Taggart as of the date of the marriage was $78, 000.
In 2004, Husband refinanced Taggart and borrowed $72, 000. At
that time, Wife signed a deed of trust to relinquish any
marital interest she had in that property. In 2012, during
the marriage, Husband paid off Taggart. Husband stated that
the value of Taggart at the time of trial was around $83,
testified that Wife made no payments on Taggart. Husband
stated: "They came strictly from the rental income. The
rent was like 560, and it paid for itself, so I doubled the
payments to pay it off quicker." When questioned further
about how he paid the mortgage on Taggart, Husband stated:
The rent. The rent was like five - - the payment's 560.
The rent was anywhere from 1, 000, then it raised to like 1,
130, so I would just take the rent and make the payment with
it. And then at one point I upped the payments up to 1, 130
to pay it off quicker. I paid it off in eight years.
Husband was asked if he paid Taggart off solely from the
rents, he stated: "No. I sold Dr. Heinsohn two houses in
2012. One closed in May, one closed in June. I took the money
from those and paid off the - - I think it was right at 29 to
$30, 000 off."
questioned, Husband admitted that he spent $33, 865 of his
income during the marriage remodeling Taggart. Husband
admitted that the taxes and insurance payments on Taggart
came from his income during the marriage. Husband also stated
that he paid the property taxes on Taggart, and that Wife
never did so.
testified that he managed Taggart. With regard to the
maintenance of Taggart, Husband stated: "[Wife] went
over one - - I think maybe two times when it came empty, we
planted some shrubs and done some mulch out front. And then
she actually cleaned the refrigerator out a couple of
also testified about real property located at St. Lucie Court
("St. Lucie Court"). St. Lucie Court was acquired
in April of 2010. Husband testified that St. Lucie Court is
owned 50/50 between Husband and another couple, the Messiers.
The deed to St. Lucie Court contains both Husband's and
Wife's names along with Lisa Messier's name. Husband
testified that $23, 000 from the home equity line on the
parties' marital residence, referred to by the parties as
Mountain Shadows ("Mountain Shadows"), was the
parties' portion of the purchase price of $157, 500 for
St. Lucie Court. Husband's understanding was that he and
Wife would get 50% and the Messiers would get 50% when St.
Lucie Court sold.
receives income from the rental of St. Lucie Court. Husband
testified that St. Lucie Court had been rented in the past,
but was vacant at the time of trial. Husband stated that the
mortgage payments for St. Lucie Court are paid by the renter
and "drafted out of the Blue and Gold account."
Husband testified that he does not pay anything on St. Lucie
Court, but that he did when they first bought it because they
were not charging as much in rent.
testified that he planned to list St. Lucie Court for sale
per his agreement with the Messiers as soon as the Trial
Court allowed. He stated that the present market value of St.
Lucie Court is the tax appraisal of $217, 000. Husband plans
to list the property for $220, 000. Husband testified that
the payoff on St. Lucie Court is $104, 000. When asked how
much he expected to receive from the sale of St. Lucie Court,
Husband stated: "You'd take out probably 15 to 20,
000 of closing costs, commissions, so it would probably get
you netted somewhere around that 200 mark down, so probably
about 80 to 90, 000 equity is what I'm guessing."
Husband hopes to receive around $50, 000 as his and
testified that Wife never paid the mortgage on St. Lucie
Court. The St. Lucie Court mortgage payment is auto-drafted
from an account the parties referred to as the Blue and Gold
account ("Blue and Gold Account"). Husband stated
that the mortgage on St. Lucie Court is "right at
testified that he and Tommy Messier began a partnership to
"flip houses" in May of 2010. Husband referred to
this partnership as the Blue and Gold Partnership ("Blue
and Gold"). Husband stated that St. Lucie Court is not
related to Blue and Gold even though St. Lucie Court money is
deposited into the Blue and Gold Account. Husband testified
that they purchased and sold two houses using Blue and Gold.
Husband testified that they have not purchased a house since
2010 with Blue and Gold.
loaned Husband $30, 000 to put into Blue and Gold, and Tommy
Messier put in $25, 000. Husband testified, however, that
Wife was not a partner of Blue and Gold. Husband testified
that Wife loaned the money as an investment, and the
arrangement was that she would be repaid when the houses
admitted that Wife is owed $30, 000 from Blue and Gold.
Husband stated that there was "[r]ight at 41, 000"
in the Blue and Gold Account at the time of trial. Husband
stated that he has not repaid Wife because the Blue and Gold
Account was frozen due to the pending divorce. Husband
testified that the Messiers already have pulled $27, 500 from
the Blue and Gold Account as a return or refund on their
proposed splitting with Wife any excess amount remaining in
the Blue and Gold Account after Wife is repaid the $30, 000,
and repairs are made to St. Lucie Court in order to sell it.
Husband explained that St. Lucie Court was not rented at the
time of trial so the money in the Blue and Gold Account will
cover payments for a while, and then Husband and the Messiers
will have to put money into St. Lucie Court. Husband
anticipates getting $200, 000 in equity from St. Lucie Court.
When questioned, Husband acknowledged that a portion of the
money from the sale of St. Lucie Court is Wife's money.
was questioned about the home equity line of credit
("HELOC") on the parties' marital home,
Mountain Shadows. He was asked about the purpose for the
HELOC, and he stated it was "[t]o remodel homes. And a
lot of those draws was on the two years [sic] taxes on St.
Lucie, Sylvan Drive, Bermuda, and putting a roof on,
that's what these were used for." Husband admitted
that Wife never drew on the HELOC and that he is the only one
who drew money from the HELOC. Husband was asked if he told
Wife each time he drew on the HELOC, and he stated: "No.
She knew I took stuff out to pay bills sometimes, or to buy
something and pay it back." Husband admitted that the
HELOC monies were "both our monies." At the time of
trial, the balance owed on the HELOC was $30, 453.13.
insisted that Wife knew he was refinancing the marital home.
The HELOC had $30, 453.13 drawn from it from December 30,
2010 until shortly after the divorce was filed. Husband
admitted that he pulled all of this money out, Wife never
took money from the HELOC. When asked, Husband could not say
where that money went. He stated: "Probably to pay those
taxes that I told you about on St. Lucie, Sylvan and
Bermuda." When questioned further, Husband admitted that
only $17, 000 went to pay bills associated with the rental
properties or the 'flip' properties. Husband was
asked where the remaining $20, 000 went, and he stated:
"It could have been to pay bills." Husband admitted
that after he filed for divorce in August of 2012, he
continued to pull money from the HELOC. In December of 2012,
Husband took $3, 000 from the HELOC. In February of 2013, he
took $2, 500. During the rest of the pendency of the divorce,
Wife froze the HELOC.
balance on the HELOC in August of 2012 was $25, 000. Husband
filed for divorce in August 2012. Husband was asked if he
drew another approximately $5, 000 from the HELOC during the
pendency of the divorce, and he stated: "It was probably
for taxes, I'm guessing." Husband was asked if he
told Wife he was drawing this money, and he stated: "She
knew. She told me no, and that's where the money would
come from." Husband admitted that he had attempted to
draw more money from the HELOC during the divorce and
discovered that Wife had frozen the HELOC.
2005, Husband purchased a 2002 Jaguar for around $44, 000. He
testified that the present value of the Jaguar was $4, 896.
Husband admitted that it was his idea to purchase a Jaguar,
but he stated that Wife "was in on wanting [a
convertible], too, . . . ." Husband admitted that he
cannot use the Jaguar for business because it is a two
seater, and he needs to transport clients. He stated:
"It's just a fun car." ...