Session February 21, 2018
Appeal from the Circuit Court for Shelby County No.
CT-003516-13 Donna M. Fields, Judge.
a divorce case between parties who amassed a great amount of
wealth and lived an extravagant lifestyle for many years.
There are no minor children involved, and this appeal is
limited to the trial court's identification,
classification, valuation, and division of marital property,
the trial court's awards of alimony to Wife, and
Husband's convictions for several counts of criminal
contempt. One of the most salient issues raised by Husband on
appeal relates to the trial court's decision to use a
financial statement prepared by Husband in 2012 to value
several properties in the marital estate rather than the
certified appraisals that were prepared in the course of
litigation for the purpose of valuing the marital estate.
According to Husband, this resulted in the court grossly
overvaluing the marital estate. For the reasons stated
herein, we affirm the trial court's identification and
classification of marital property as well as the trial
court's findings and sentencing related to Husband's
criminal contempt. We vacate the trial court's valuation
and distribution of the parties' marital property and
awards of alimony. We remand the case to the trial court for
further proceedings consistent with this Opinion.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Court Affirmed in part, Vacated in part, and
N. Capparella, Nashville, Tennessee, for the appellant,
Stanley H. Trezevant, III.
Mitchell David Moskovitz and Adam Noah Cohen, Memphis,
Tennessee, for the appellee, Kisha Dean Trezevant.
Brandon O. Gibson, J., delivered the opinion of the court, in
which Frank G. Clement, Jr, P.J., M.S., and J. Steven
Stafford, P.J., W.S., joined.
BRANDON O. GIBSON, JUDGE
Facts & Procedural History
H. Trezevant, III ("Husband") and Kisha Dean
Trezevant ("Wife") were married in September 1990.
Two daughters were born of the marriage, both of whom reached
the age of majority before this case went to trial. Husband
has a degree in business management from the University of
Memphis and has been an extremely successful real estate
entrepreneur throughout the parties' marriage. Wife
obtained a GED at age seventeen and earned a degree in
creative literature during the parties' marriage. Wife
assisted Husband to some extent with his business ventures,
but she did not otherwise work outside the home.
August 15, 2013, Wife filed for divorce, alleging
irreconcilable differences and that Husband was guilty of
inappropriate marital conduct. In her complaint for divorce,
Wife sought a divorce from Husband, a division of the marital
estate, and awards of alimony, attorney's fees, and suit
Husband filed an answer and a counter-complaint for divorce
against Wife on February 21, 2014, agreeing that the parties
should be divorced based on irreconcilable differences, but
denying his own marital misconduct and alleging that Wife was
the party guilty of inappropriate marital conduct.
the marriage, Husband was very successful at his work, and
the parties amassed a tremendous estate. By virtue of this
success, the parties enjoyed an extravagant lifestyle. The
marital residence consisted of a 10, 500 square foot home
containing six bedrooms, nine bathrooms, and a five car
garage. In addition to their principal residence in Shelby
County, Tennessee, the parties also maintained several
vacation homes during their marriage, including properties in
the Cayman Islands, an expansive lake home, and a home in
Oxford, Mississippi. The parties took expensive international
trips to destinations such as France, Spain, Greece, the
Cayman Islands, and Jamaica. The family also enjoyed other
trips to the U.S. Open, the Grammy Awards, West Palm Beach
for diamond shopping, and Miami and New York to shop for
clothing. Husband and Wife were members of sporting and
social clubs in Memphis. The family drove luxury vehicles
such as Range Rovers, Land Rovers, Mercedes Benz
convertibles, and others.
material possessions amassed by the parties are the impetus
for both the protraction of the proceedings below as well as
for this appeal. As stated previously, Husband is in the real
estate business. He established Trezevant Enterprises, Inc.,
which became a real estate management, development, and
maintenance company and also does construction and leasing.
The marital estate included approximately 49 commercial and
residential properties. The procedural history of this case
is littered with volumes upon volumes of pleadings,
transcripts, and exhibits designed to identify, value, and/or
distribute the parties' wealth. Among other things, the
sheer size of the parties' estate, the complexities
involved in valuing commercial property, including
international property, and what the trial court found to be
Husband's deliberate attempts to hide assets, contributed
to the convoluted process of identifying, classifying,
valuing, and distributing the parties' marital estate in
this case. The trial court eventually determined the gross
value of the marital estate, excluding personal property,
trusts, and not accounting for debt, to be $44, 339, 611.00.
the pendency of the divorce, the parties engaged in a lengthy
seven-day hearing before a divorce referee regarding pendente
lite support for Wife. The divorce referee ordered, and the
trial court affirmed, that Husband should pay Wife $20,
000.00 per month in pendente lite support. Also prior to the
trial of this matter, the trial court held a separate hearing
on issues related to Wife's separate property. During the
marriage, Husband gave Wife several checks totaling $4, 221,
000.00. Wife claimed that this money was a gift to her from
Husband and, therefore, her separate property. The trial
actual divorce trial was held on September 12, 13, 14, 15,
16, and October 13 and 14, 2016. The trial court issued an
oral ruling from the bench on December 16, 2016. Thereafter,
the court conducted additional hearings to settle disputes
over the final decree of divorce. The final decree was
entered on March 1, 2017 ("Final Decree"). In the
Final Decree, the trial court reaffirmed its previous ruling
regarding Wife's separate property. The court denied
Husband's claims that certain assets were separate
property. The court declared the parties divorced pursuant to
Tennessee Code Annotated section 36-4-129, with both parties
acknowledging post-separation marital fault.
appraisers testified at trial - Todd Glidewell and Rip Walker
- regarding twenty of the more valuable properties in the
marital estate. Wife did not object to Mr. Glidewell or Mr.
Walker's appraisals or their testimony, nor did she
provide competing appraisals or expert testimony. She simply
relied on values of the property listed on a financial
statement created by Husband in 2012, which generally valued
the properties much higher than the appraisals. According to
Husband, Wife chose the appraisers and then right before
trial decided to rely on Husband's 2012 Financial
Statement for the value of several of the parties'
properties - particularly those properties that she requested
the court distribute to Husband. In the Final Decree, the
trial court divided the marital estate by creating a list of
the marital assets, assigning the court's determination
of that asset's fair market value less the debt on the
property, and stating whether each asset was awarded to
Husband or Wife. Husband complains that the court gave Wife
the properties with the un-inflated values. The parties did
not dispute the amount of debt on the properties. Therefore,
according to Husband, because the trial court used inflated
values from the 2012 Financial Statement for many of the
properties awarded to him, Husband asserts that the court
overvalued the property given to him in the divorce by more
than $24 million. To help balance the division of the marital
estate, which was divided $34, 204, 026.00 to Husband and
$10, 135, 585.00 to Wife, the trial court awarded Wife $7,
500, 00.00 in alimony in solido.
trial court also found that Husband dissipated marital assets
by transferring $2, 145, 131.00 to his attorney and friend,
Norman Klein, in the Cayman Islands. Husband contended that
Mr. Klein was his business partner in a real estate
transaction and that he was simply reimbursing Mr. Klein for
his portion of the sale of some real estate. Wife suggested
that Mr. Klein was holding the money for Husband until the
divorce was over. The trial court agreed with Wife and found
that Wife's portion of these funds would have been $1,
072, 565.50. Apparently, rather than requiring Husband to
reimburse Wife for this amount, the court decided that this
amount would operate to "offset" the sum of money
the court had determined to be Wife's separate property.
claimed at trial that her monthly expenses amounted to $32,
132.00, and that this was a reduced amount from what she was
accustomed to spending. The trial court awarded Wife alimony
in futuro in the amount of $25, 000.00 per month for the
first 72 months following the Final Decree, and $20, 000.00
per month for each month thereafter. Husband was also ordered
to pay $464, 890.92, which represented one half of Wife's
main issue in this case was Husband's multiple counts of
criminal contempt. On September 19, 2014, the trial court
entered a consent order granting Wife's petition for
civil and criminal contempt against Husband. Therein, Husband
agreed that he was in criminal contempt for executing an
option and sale agreement for Unit 305 of the Kisha
Condominium complex in the Cayman Islands. He also agreed
that he was in civil contempt for failing to comply with the
divorce referee's order and agreed to make purge payments
in the amount of $290, 000.00 and to pay a portion of
Wife's attorney's fees. On June 29, June 30, and July
1, 2015, the trial court held a hearing on the pending
matters related to additional petitions for contempt filed by
Wife. The court again found Husband guilty of criminal
contempt for failing to abide by court orders related to
turning over sums of money, and he was incarcerated on July
1, 2015. Husband was released on July 6, 2015, and ordered to
make a purge payment to Wife.
filed another petition for civil and criminal contempt
against Husband on October 14, 2015. This petition was tried
in the final divorce trial, and the results thereof are the
subject of Husband's appeal in this matter. In this
petition, Wife generally asserted that Husband had been
hiding assets and manipulating appraisals of the marital
properties. According to Wife, Husband was deliberately
trying to deceive Wife and the court as to the value of the
marital estate. Wife again filed a petition on March 30,
2016, alleging that Husband was engaging in additional
contemptuous activity, including lying to Wife and the court
about his financial status and the amount of property taxes
owed on the parties' property. In the Final Decree, the
trial court found Husband guilty of nineteen separate
additional counts of criminal contempt. He was ordered to
serve 55 days in jail. This sentence has been stayed pending
timely filed a notice of appeal on March 31, 2017.
presents the following issues for review on appeal:
1. Whether the trial court erred in finding Trip's
Nurseries and the Nonconnah properties were marital property,
and for failing to order Wife to return Husband's
separate silver collection and account for the marital silver
2. Whether the trial court erred when it found $4, 221, 000
of cash transfers of marital property to Wife by Husband were
gifts and therefore Wife's separate property?
3. Whether the trial court erred in finding dissipation of
funds in Husband's transactions with Norman Klein where
(1) Wife introduced no proof of dissipation, and (2) the
proof overwhelmingly showed that Husband and Norman Klein had
a 50/50 partnership with respect to the Cayman Island
property that they sold?
4. Whether the evidence preponderates against the trial
court's valuation of Husband's share of the marital
estate where it overvalued Husband's share by relying on
an unsigned, unsworn, unaudited 4.5 year old financial
statement, rejecting the only expert proof in this case based
upon a great many far more recent certified property
5. Whether the awards of alimony in solido and alimony in
futuro should be reversed where (1) the division of marital
property must be reversed because of the gross over-valuation
of Husband's share of the marital estate, (2) the trial
court failed to consider the reduction in Husband's
ability to pay having lost the substantial income from
marital properties given to Wife, (3) the trial court failed
to consider the change in Wife's need based upon the
income from the property she received, and (4) Wife was found
by the trial court to have over $4.2 Million in separate
6. Whether the trial court's award of $464, 890.92 in
attorney's fees as alimony in solido should be reversed
where (1) the division of marital property should be
reversed, and (2) Wife did not lack sufficient funds to pay
her own attorneys?
7. Whether the trial court should reverse criminal contempt
counts against Husband where (1) the court failed to follow
the requirements for proper sentencing, and (2) there was not
proof of criminal contempt beyond a reasonable doubt?
presents the following additional issue, as restated, on
8. Whether Wife is entitled to her attorney's fees
incurred on appeal.
case was tried by the trial court without a jury. We
therefore review the trial court's findings of fact
de novo with a presumption of correctness unless the
evidence preponderates otherwise. Tenn. R. App. P. 13(d);
Armbrister v. Armbrister, 414 S.W.3d 685, 692 (Tenn.
2013). Also, because the trial court has the opportunity to
observe the demeanor of the witnesses and hear the in-court
testimony, we afford considerable deference to the trial
court's credibility determinations and the weight given
to oral testimony. Andrews v. Andrews, 344 S.W.3d
321, 339 (Tenn. Ct. App. 2010). We review the trial
court's conclusions of law de novo with no
presumption of correctness. Hyneman v. Hyneman, 152
S.W.3d 549, 553 (Tenn. Ct. App. 2003).
address Husband's issues on appeal in a different order
than he presented them in his brief. The process for
disposition of marital property in a divorce is (1)
identification of the parties' property, (2)
classification of the parties' property as marital or
separate property, (3) valuation of the property, (4)
distribution of the property, and then a determination of
whether an award of spousal support is warranted may follow.
See Keyt v. Keyt, 244 S.W.3d 321, 328 (Tenn. 2007)
(noting that "[b]ecause the courts do not have the
authority to make an equitable distribution of separate
property, whether separate property should be considered as
marital is a threshold matter."). "Once property
has been classified as marital property, the court should
place a reasonable value on property that is subject to
division." Luplow v. Luplow, 450 S.W.3d 105,
109 (Tenn. Ct. App. 2014) (citing Edmisten v.
Edmisten, No. M2001-00081-COA-R3-CV, 2003 WL 21077990,
at *11 (Tenn. Ct. App. May 13, 2003)). After this valuation,
the trial court is to divide the marital property in an
equitable manner considering the statutory factors listed in
Tennessee Code Annotated section 36-4-121(c).
Luplow, 450 S.W.3d at 109-110. "The equitable
division of marital property is a fact-intensive inquiry
involving the careful weighing of the relevant statutory
factors." Brainerd v. Brainerd, No.
M2015-00362-COA-R3-CV, 2016 WL 6996365, at *5 (Tenn. Ct. App.
Nov. 30, 2016) (no perm. app. filed). The trial
court has broad discretion in fashioning an equitable
distribution of marital property, and an appellate court will
defer to the trial court's distribution unless it is
inconsistent with the statutory factors or lacks proper
evidentiary support. Baggett v. Baggett, 422 S.W.3d
537, 543 (Tenn. Ct. App. 2013).
Classification of Marital vs. Separate Property
begin our analysis with Husband's allegations of error
related to the classification of the parties' property as
either marital or separate property. The definition of
"marital property" includes the following:
"Marital property" means all real and personal
property, both tangible and intangible, acquired by either or
both spouses during the course of the marriage up to the date
of the final divorce hearing and owned by either or both
spouses as of the date of the filing of a complaint for
divorce, except in the case of fraudulent conveyance in
anticipation of filing, and including any property to which a
right was acquired up to the date of the final divorce
hearing, and valued as of a date as near as reasonably
possible to the final divorce hearing date.
Tenn. Code Ann. § 36-4-121(b)(1)(A). A party's
separate property, on the other hand, includes the following:
(A) All real and personal property owned by a spouse before
marriage . . .;
(B) Property acquired in exchange for property acquired
before the marriage;
(C) Income from and appreciation of property owned by a
spouse before marriage except when characterized as marital
property under subdivision (b)(1);
(D) Property acquired by a spouse at any time by gift,
bequest, devise or descent;
(E) Pain and suffering awards . . .;
(F) Property acquired by a spouse after an order of legal
Tenn. Code Ann. § 36-4-121(b)(2)(A)-(F). The
determination of what is marital and what is separate
property pursuant to Tennessee Code Annotated section
36-4-121 is a question of fact. Luplow, 450 S.W.3d
at 109. The trial court's classification of marital
property is, therefore, subject to the trial court's
sound discretion and will be given great weight on appeal.
Dunlap v. Dunlap, 996 S.W.2d 803, 814 (Tenn. Ct.
App. 1998) (citing Harris v. Corley, No.
01A01-9011-CH-00415, 1991 WL 66447, at *5 (Tenn.App. May 1,
1991)). "In accordance with rule 13(d) of the Tennessee
Rules of Appellate Procedure, the trial court's
classification and division of marital property enjoys a
presumption of correctness and will be reversed or modified
only if the evidence preponderates against the court's
first asserts that the trial court erred in finding that the
Trip's Nurseries business was marital property rather
than his own separate property. According to Husband, he
started and owned Trip's Nurseries before the marriage,
and he argues that there is nothing in the record to support
the theory that these assets were transmuted during the
marriage. At trial, Husband testified that, after college, he
worked doing landscaping and commercial property maintenance
services and started the Trip's Nurseries business in
1980, which was ten years prior to his marriage to Wife. To
the contrary, Wife contends that Trip's Nurseries was
purchased long after the parties were married and that
Husband did not meet his burden of proving that this was his
separate property. Moreover, Wife contends that Husband
actually abandoned this argument at trial.
issue of whether Trip's Nurseries was marital or separate
property, the trial court found as follows:
contended in his Rule 14 filings, and at trial, that a number of
Trip's Nursery's assets were his separate property.
Those were as follows: Two (2) 2001 Chevy Vans; 2012 Land
Rover; New Holland Tractor; 2004 Ford F450; 2002 Ford F250;
Inventory; and Tools.
It is clear from Husband's very description of the assets
in question that they were acquired during the marriage.
Moreover . . . Husband testified at trial that he sold the
Trip's Nurseries business in 1998, during the marriage.
He later claimed to reacquire the business during the
marriage. Husband did not trace any funds from separate
property to evidence reacquisition of the Nursery. However,
the Court has awarded Trip's Nursery business to Mr.
Husband failed to meet his burden of proving that these
particular assets were acquired with separate funds.
Moreover, to the extent that Husband ever truly had a
separate property interest in any portion of these assets,
same has been transmuted into marital property. As set forth
in more detail above, all of the various properties owned by
the parties feed into and comprise Trezevant Enterprises,
Inc., Trip's Nursery. Based upon all of the foregoing,
all of the "Trip's Nursery" assets that Husband
claimed were his separate property are, in fact, marital
(Internal citations omitted.)
Tennessee Code Annotated section 36-4-121(b)(1)(A) defines
marital property as "all real and personal property,
both tangible and intangible, acquired by either or both
spouses during the course of the marriage, " when
Trip's Nurseries was acquired is of specific import. If
acquired during the marriage, the business and its assets
would presumptively be classified as marital property.
Husband asserts that the trial court incorrectly found that
he sold Trip's Nurseries in 1998, which would
have been during the parties' marriage. According to
Husband, he actually sold Trip's Nurseries in
1988 and reacquired it in early 1990 before his
marriage to Wife in September 1990. He therefore also
disputes the trial court's finding that he claimed to
have reacquired Trip's Nurseries during the marriage.
Finally, Husband argues that the trial court's finding
that any of his separate property had been transmuted is
merely conclusory and that there are insufficient factual
findings to support that theory.
review of the voluminous record confirms Husband's
assertion that he testified at trial that he sold the
business of Trip's Nurseries to a group of investors in
1988, rather than 1998. However, he does not make a
convincing argument on appeal for this Court to reverse the
trial court's finding that Trip's Nurseries is
marital property. We conclude that the evidence does not
preponderate against the trial court's decision to
classify Trip's Nurseries as marital property. Although
Husband testified that he reacquired some interest in the
business of Trip's Nurseries before the marriage, Wife
presented evidence that two of the properties owned by
Trip's Nurseries that Husband asserted were his separate
property, 7038 Poplar Avenue and 6993 Poplar Avenue, were
purchased long after the parties were married. Husband,
therefore, had the burden of proving that this was his
separate property, and the record is sparse at best on
Husband's efforts to establish this or trace Trip's
Nurseries' current assets to his separate property.
also argues that the trial court erred in concluding that if
Trip's Nurseries was ever his separate property, it had
been converted into marital property by virtue of
transmutation. [S]eparate property may be converted into
marital property by commingling or transmutation.
Langschmidt v. Langschmidt, 81 S.W.3d 741, 747
(Tenn. 2002). Our supreme court has explained how the
doctrines of commingling and transmutation work:
[S]eparate property becomes marital property [by commingling]
if inextricably mingled with marital property or with the
separate property of the other spouse. If the separate
property continues to be segregated or can be traced into its
product, commingling does not occur. . . . [Transmutation]
occurs when separate property is treated in such a way as to
give evidence of an intention that it become marital
property. . . . The rationale underlying these doctrines is
that dealing with property in these ways creates a rebuttable
presumption of a gift to the marital estate. This presumption
is based also upon the provision in many marital property
statutes that property acquired during the marriage is
presumed to be marital. The presumption can be rebutted by
evidence of circumstances or communications clearly
indicating an intent that the property remain separate.
Cox v. Cox, No. E2016-01097-COA-R3-CV, 2017 WL
6517596, at *4 (Tenn. Ct. App. Dec. 20, 2017) (no perm.
app. filed) (quoting Langschmidt, 81 S.W.3d at
747 (alteration in original) (quoting 2 Homer H. Clark,
The Law of Domestic Relations in the United States
§ 16.2 at 185 (2d ed. 1987)). There is sufficient
evidence in the record to support the trial court's
conclusion of transmutation of any of Trip's Nurseries
that might have ever been his separate property. Marital
funds were used to purchase the later-acquired properties
that comprised Trip's Nurseries, and all of the various
properties owned by the parties appear to have been under the
umbrella of Trezevant Enterprises, Inc., which was a marital
asset. Trip's Nurseries, like the parties' other
commercial properties, was held out as the parties' joint
property. "An asset separately owned by one spouse will
be classified as marital property if the parties themselves
treated it as marital property." Fox v. Fox,
No. M. 2004-02616-COA-R3-CV, 2006 WL 2535407, at *5 (Tenn.
Ct. App. Sept. 1, 2006).
trial, Husband argued that the following five properties,
referred to as the "Nonconnah Properties, " were
his separate property:
I. 0 Cherry Road
Titled: American Sign Co., GP
II. 0 Goodlett Memphis, TN 38118 3.09 acres (vacant land)
Titled: Stanley H. Trezevant, III . ...
III. 0 Goodlett Memphis, TN 38118 2.041 acres (vacant land)
Titled: Stanley H. Trezevant, III . ...
IV. 0 Nonconnah Circle Memphis, TN 38118 7.337 acres (vacant
land) Titled: Stanley H. Trezevant, III . ...
V. Vacant land near Perkins & I-240 Memphis, TN 38118
21.386 acres (vacant land)
Titled: Stanley H. Trezevant, III
trial court rejected Husband's contention that these were
his separate properties, finding the Nonconnah Properties to
be part of the marital estate:
Husband and each of his two (2) siblings inherited a 33.33%
interest in the "Nonconnah Properties" in 2007.
Because these properties were "worthless, " Husband
purchased brother and sister's interests in the Nonconnah
properties. The Quitclaim Deeds expressly reflect that, in
2011 and 2012, Husband paid consideration to his brother and
sister for the remaining 66.67% of these properties.
. . . .
There is no question that all of the equity in and to these
Nonconnah properties is all marital property. There is no
dispute that, during the marriage, the parties paid taxes on
these properties with marital funds. . . . Since, by
Husband's own admission, these properties were worthless
when Husband inherited and/or later purchased his interest in
and to same, the entire current values of the properties are
This Honorable Court likewise finds that any portion of this
real estate itself that may have, at one time, been
classified as Husband's separate property has since been
transmuted into marital property.
. . . .
In the present case, all of the various properties owned by
the parties feed into and comprise Trezevant Enterprises,
Inc. (hereinafter TEI), including these "Nonconnah
properties" at issue. The proof at trial reflected that
Husband never treated any of these properties as separate
property. To the contrary, the proof reflected that,
regardless of the nature of their acquisition, the parties
treated all of these properties as if they were jointly
owned. A 2005 TEI Corporation Annual Report . . . . reflected
that Wife was an officer in TEI. An email from Husband to
Neal Graham dated August 12, 2013 reflected that Wife was
still listed as secretary at that point.
Husband and Wife obligated themselves on notes, which were
secured by deeds of trusts, for certain of the TEI
properties. Husband has testified more than once that Wife
had full access to all of the bank accounts associated with
the various TEI properties.
. . . .
Based upon all of the foregoing, this Honorable Court
expressly finds that these "Nonconnah properties"
are marital property. Any portion of these Nonconnah
properties which may have legitimately been classified at one
time as Husband's separate property have been transmuted
into marital property.
(Internal citations omitted.)
appeal, Husband alleges that the trial court erred in finding
the Nonconnah Properties to be marital property. We note,
however, that Husband devoted little of his brief to
developing this issue and he offers only a tenuous argument
in fact and law to support his position.
and his two siblings each inherited a 33.33% interest in the
Nonconnah Properties in 2007. At trial, Husband asserted
that, in 2012, his two siblings each gifted their 33.33%
interests in the Nonconnah Properties to Husband, thus giving
Husband full ownership of the Nonconnah Properties. As we
outlined above, a party's separate property includes
"[p]roperty acquired by a spouse at any time by gift,
bequest, devise or descent." Tenn. Code Ann. §
36-4-121(b)(2)(D). According to Husband, because he inherited
one-third of his interest and was gifted the other
two-thirds, his entire ownership interest in the Nonconnah
Properties should have been classified as his separate
property. As the party claiming that property acquired during
the marriage is separate property, Husband had the burden of
proof on this issue. See Owens v. Owens, 241 S.W.3d
478, 485-86 (Tenn. Ct. App. 2007).
trial court determined that Husband did not meet that burden.
With respect to the two-thirds interest Husband claimed he
was gifted from his siblings, the trial court looked to the
deeds transferring the property to Husband and found that the
deeds themselves stated that Husband paid consideration in
the amount $10.00 for each interest, thereby negating
Husband's assertion that these were gifts. On appeal,
Husband relies on his own testimony that he did not actually
pay anything for these properties. The trial court, however,
found Husband to have no credibility. Furthermore, the trial
court found that since, by Husband's own admission the
properties were worthless when he acquired them, "the
entire current values of the properties are marital
property" by virtue of Husband's use of marital
funds to contribute to the preservation and appreciation of
the property's interest. See Mahaffey v.
Mahaffey, 775 S.W.2d 618, 623 (Tenn. Ct. App. 1989). The
determination of what is marital and what is separate
property pursuant to Tennessee Code Annotated section
36-4-121 is a question of fact and is subject to the standard
of review in Tennessee Rule of Appellate Procedure 13(d).
Luplow v. Luplow, 450 S.W.3d 105, 109 (Tenn. Ct.
App. 2014); Dunlap v. Dunlap, 996 S.W.2d 803, 814
(Tenn. Ct. App. 1998) (citing Harris v. Corley, No.
01A01-9011-CH-00415, 1991 WL 66447, at *5 (Tenn.App. May 1,
1991)). The evidence in the record does not preponderate
against the trial court's findings on the Nonconnah
Properties, and we affirm the trial court's determination
that the Nonconnah Properties are marital property.
and Wife have been litigating the distribution of their
silver collection for more than four years, and they continue
to do so on appeal. On September 6, 2013, Husband filed a
motion to compel Wife to return personal property missing
from the parties' residence. Therein, Husband alleged
that Wife took several pieces of marital silver before
leaving the marital residence that she never returned. Wife
responded by admitting that she took various pieces of silver
from the home but that she did not do so surreptitiously, as
Husband suggested. The matter was heard on November 8, 2013,
and on November 20, 2013, the trial court ruled that Wife
must return any of Husband's separate silver that she had
in her possession. Further, if Wife kept any silver she took
from the marital residence, she must make a list of the same
and state why she believed it was not Husband's separate
trial, Husband contended that Wife had still not returned all
of the silver to which he was entitled. Wife testified that
she originally removed the items of silver from the marital
residence in order to host a party for her nephew's
birth. Wife listed all of the silver that she removed from
the home in her sworn answers to Husband's discovery
requests. Wife testified that, after the baby shower, she
returned the items that were Husband's separate property
to Husband's attorney at the time. According to Wife, the
items of marital silver she retained had been purchased
during the marriage or were given to the parties as wedding
Final Decree, the trial court found that Husband had not
carried his burden of proving that Wife kept any items of
silver to which she was not entitled. In that regard, the
trial court found as follows:
Husband dedicated a great deal of [time at trial] to the
allegations contained in his November 8, 2013 Petition to
Compel Wife to Return Items to Marital Residence. More
specifically, Husband contended that Wife had removed certain
marital silver, certain of Husband's alleged silver, and
certain of Husband's mother's jewelry.
Husband has failed to meet his burden of proving that Wife
removed and kept any of these items, including the alleged
separate family silver. At trial, some 3 years after Mr.
Trezevant's first allegation of theft on the part of Mrs.
Trezevant, Mr. Trezevant presented a new, never before seen,
list of purported missing silver and his value of each. Mr.
Trezevant is a real estate expert. He has no expertise in
personal property values. The list is not admissible as
competent proof. Mrs. Trezevant returned a number of items of
silver to Mr. Trezevant at the time of trial, which she had
been holding at the Court's direction to protect those
items for Mr. Trezevant. Husband's November 8, 2013
Petition shall be dismissed at Husband's cost. Each party
shall keep the silver in their respective possession. To the
extent that Wife has two candelabras, Wife shall provide one
argues on appeal that this Court should remand the matter of
the silver with an instruction to the trial court to require
Wife to account for the silver she has taken and not
returned. However, the evidence in the record does not
preponderate against the trial court's finding that
Husband failed to prove that Wife retained any silver to
which he was entitled. Wife testified that she returned all
items of silver that were Husband's. The trial court had
the opportunity to observe the demeanor of the witnesses and
hear the in-court testimony regarding the marital silver, and
we must afford considerable deference to the trial
court's credibility determinations and the weight that
the court gave to the oral testimony presented. See
Andrews v. Andrews, 344 S.W.3d 321, 339 (Tenn. Ct. App.
2010). Whether to believe Husband or Wife on this point is
within the trial court's discretion. Our review of the
record does not preponderate against the trial court's
finding that Husband failed to prove Wife had taken and kept
any of his silver. We, therefore, affirm the court's
holding regarding the parties' silver collection.
also argues that it was reversible error for the trial court
to reject Husband's testimony regarding the value of the
silver. We agree with Husband to the extent that it was error
to find Husband incompetent to testify as to the value of his
own personal property. See Tenn. R. Evid. 701(b);
Head v. Head, No. M1009-01351-COA-R3-CV, 2010 WL
3853291 (Tenn. Ct. App. 2010) (citing Crook v. Mid-South
Transfer & Storage, Inc. 499 S.W.2d 255, 260 (Tenn.
Ct. App. 1973) (citing McKinnon v. Michaud, 260
S.W.2d 721 (Tenn. Ct. App. 1953) ("stating it is
permissible for an individual to testify as to the value of
his or her personal property even though he or she does not
qualify as an expert")). However, we conclude that this
error was harmless in light of the foregoing conclusion
affirming the trial court's determination that Husband
failed to prove Wife kept any silver to which he was
Gifts to Wife
claims that the trial court erred in finding that the
following transfers of funds he made to Wife were gifts and
her separate property:
A. November 1, 2007 - $1, 250, 000.00
B. February 23, 2010 - $1, 000, 000.00
C. February 23, 2010 - $1, 000, 000.00
D. September 1, 2010 - $ 200, 000.00
E. January 27, 2011 - $ 546, 000.00
F. September 27, 2011 - $ 200, 000.00
G. December 24, 2012 - $ 25, 000.00
to Wife, the explanation for the checks/gifts is as follows:
A. November 1, 2007 - Check to Wife for $1, 250,
Husband received approximately $14, 500, 000.00 in net
proceeds from the sale of five properties in October 2007.
Weeks later, Husband gifted $1, 250, 000.00 of those proceeds
to Wife on November 1, 2007. Wife testified that Husband told
her that he wanted to give her $1, 000, 000.00 and an extra
$250, 000.00 so that she could buy some jewelry.
B. February 23, 2010 - Check to Wife for $1, 000,
February 23 is Wife's birthday. On February 23, 2010,
Husband gave Wife a check for $1, 000, 000.00 as a birthday
gift and told her she looked like a million dollars.
C. February 23, 2010 - Check to Wife for $1, 000,
Immediately after gifting Wife the aforementioned $1, 000,
000.00 check, on Wife's birthday in 2010, Husband gave
wife a second check for $1, 000, 000.00 as a birthday gift.
He told her that saying she looked like a million dollars was
too cliché, so he gifted her a total of $2, 000,
D. September 1, 2010 - Check to Wife for $200,
September 1 is the parties' wedding anniversary. On
September 1, 2010, Husband gifted a $200, 000.00 check to