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Givens v. Givens

Court of Appeals of Tennessee, Knoxville

September 29, 2017

MICHAEL LEE GIVENS
v.
TRISTINE ANN GIVENS

         Session April 20, 2017

         Appeal 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 Court's judgment.

         Tenn. 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.

          W. Gerald Tidwell, Jr. and Todd A. Davis, Chattanooga, Tennessee, for the appellee, Michael Lee Givens.

          D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which JOHN W. MCCLARTY and THOMAS R. FRIERSON, II, JJ., joined.

          OPINION

          D. MICHAEL SWINEY, CHIEF JUDGE

         Background

         Husband 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.

         Husband 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.

         Husband 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.

         Husband 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, 500.

         Husband 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.

         When 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."

         When 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.

         Husband 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 times."

         Husband 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.

         Husband 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.

         Husband 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 Wife's share.

         Husband 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 800."

         Husband 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.

         Wife 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 sold.

         Husband 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 investment.

         Husband 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.

         Husband 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.

         Husband 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.

         The 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.

         In 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." ...


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