Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Trezevant v. Trezevant

Court of Appeals of Tennessee, Jackson

April 25, 2018

KISHA DEAN TREZEVANT
v.
STANLEY H. TREZEVANT, III

          Session February 21, 2018

          Direct Appeal from the Circuit Court for Shelby County No. CT-003516-13 Donna M. Fields, Judge.

         This is 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.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed in part, Vacated in part, and Remanded

          Donald 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.

          OPINION

          BRANDON O. GIBSON, JUDGE

         I. Facts & Procedural History

         Stanley H. Trezevant, III[1] ("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.

         On 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 expenses.[2] 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.

         Throughout 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.

         The 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.

         During 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 court agreed.

         The 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.

         Two 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.

         The 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.

         Wife 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 attorney's fees.

         Another 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.

         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 appeal.

         Husband timely filed a notice of appeal on March 31, 2017.

         II. Issues Presented

         Husband 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 she took?
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 appraisals?
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 property?
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?

         Wife presents the following additional issue, as restated, on appeal:

8. Whether Wife is entitled to her attorney's fees incurred on appeal.

         III. Discussion

         This 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.[3] 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).

         We 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).

         1. Classification of Marital vs. Separate Property

         We 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:

         "Separate property" means:

(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 separation

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 decision." Id.

         A. Trip's Nurseries

         Husband 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.

         On the issue of whether Trip's Nurseries was marital or separate property, the trial court found as follows:

         Husband contended in his Rule 14 filings[4], 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. Trezevant.
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 property.

(Internal citations omitted.)

         Because 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.

         Our 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.

         Husband 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).

         B. Nonconnah Properties

         At trial, Husband argued that the following five properties, referred to as the "Nonconnah Properties, " were his separate property:

I. 0 Cherry Road
6.33 acres
Memphis, TN
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

         The 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 marital property.
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.)

         On 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.

         Husband 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).

         The 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.

         C. Marital Silver

         Husband 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 property.

         At 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 gifts.

         In the 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 to Husband.

         Husband 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.

         Husband 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 entitled.

         D. Gifts to Wife

         Husband 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

         According to Wife, the explanation for the checks/gifts is as follows:

A. November 1, 2007 - Check to Wife for $1, 250, 000.00
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, 000.00
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, 000.00
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, 000.00.
D. September 1, 2010 - Check to Wife for $200, 000.00
September 1 is the parties' wedding anniversary. On September 1, 2010, Husband gifted a $200, 000.00 check to ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.