Mullins v. Mullins ( 1997 )

IN THE COURT OF APPEALS OF TENNESSEE
EASTERN SECTION
FILED
October 30, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
MACK MULLINS, ) C/A NO. 03A01-9705-CH-00153
)
Appellant, ) HAMBLIN CHANCERY
)
v. ) HON. THOMAS R. FRIERSON, II,
) CHANCELLOR
LILLIAN J. MULLINS, )
) AFFIRMED AND
Appellee. ) REMANDED
PAUL G. WHETSTONE, P.C., Morristown, for Appellant.
J. RANDALL SHELTON, Morristown, for Appellee.
OPINION
Franks, J.
In this divorce action, both husband and wife have raised issues on
appeal.
The husband insists that it was improper for the Trial Judge to order the
husband to pay the wife’s COBRA insurance premiums and to pay a portion of her
attorney’s fees, since the parties had announced to the Court that the wife would not
seek alimony.
The divorce case was tried on October 21, 1996, and the parties
stipulated grounds for divorce pursuant to T.C.A. § 36-4-129. The wife’s Counter-
Complaint initially asked for alimony in solido, alimony in futuro, and temporary
spousal support. The husband’s counsel in his Opening Statement informed the Court
that the parties had agreed that the wife would not seek alimony. Husband’s counsel
was aware that the wife was seeking attorney’s fees and objected to any such award.
In the Court’s Decree, the husband was required to pay COBRA premiums on behalf
of the wife for twenty-four months and to pay a portion of her attorney’s fees in the
amount of $500.00. The Chancellor also determined that the marital residence,
including the value of Lillian Mullins’ down payment of $18,000.00 was marital
property. The Chancellor determined that $60,000.00 of net equity existed in the
home and the wife was awarded the property, but she was required to pay $12, 969.00
to the husband for his interest.
In awarding the COBRA payments, the chancellor “interpreted
counsel’s representations to mean that both parties waived any request for periodic or
in solido alimony, but the other issues of attorney’s fees and maintenance of COBRA
health insurance remained in a contested status”. The parties’ representations made at
trial lend support to the Chancellor’s interpretation.
The appellant argues the Chancellor’s award of attorney’s fees was
improper because the issue of alimony was waived, and he notes that attorney fee
awards are treated as alimony. Gilliam v Gilliam, 776 S.W.2d 81, 86 (Tenn.App.
1988), and in deciding whether to award attorney’s fees, the trial court should
generally consult the same statutory factors used in determining alimony awards.
Houghland v. Houghland, 844 S.W.2d 619, 623 (Tenn.App. 1992); See Tenn. Code
Ann. §36-5-101(d)(1) (1996).
The attorney for husband in his opening statement said: “The Court of
Appeals has opined time and time again that that’s just another form of alimony, and I
2
don’t think that ought to apply if he’s not seeking alimony.” He also stated that “[W]e
will object to the payment of any attorney fees.”
During trial, the wife testified as to the amount of fees incurred and her
inability to pay. She was cross-examined on this issue, and based on the conduct of
both parties, the Chancellor properly determined that the issue of attorney’s fees was a
contested issue for trial. The parties conduct demonstrates that the waiver was not
intended to apply to attorney’s fees. Accord, Dover v. Dover, 821 S.W.2d 593, 595
(Tenn.App. 1991). (A Court may award attorney’s fees for the spouse’s attorney who
acts to protect the party’s economic interest).
The husband cites our opinion in Kemp v. Kemp, 1988 WL 116368 at
*3 (Tenn.App.) that COBRA coverage “is additional alimony”.
The husband did not object when the wife requested COBRA coverage.
The husband testified that he had calculated the cost of providing COBRA coverage
and the wife testified that she was willing to give up some of her equity in other assets
to balance the COBRA coverage. The Chancellor properly concluded that this issue
remained contested. These issues are resolved against the husband.
The wife questions the propriety of the distribution of the marital estate
by the Chancellor.
The Chancellor properly determined that the wife’s premarital funds
were part of the marital estate. This jurisdiction “is a ‘dual property’ jurisdiction
because its divorce statutes draw a distinction between marital and separate property.”
Batson v. Batson, 769 S.W.2d 849, 856 (Tenn.App. 1988). The Chancellor
determined that the home, including the value of the wife’s pre-marital investment,
was marital property. The Chancellor said that “[b]y means of transmutation, a
rebuttal presumption has arisen that Mrs. Mullins intended a gift to the marital estate.”
The record supports the Chancellor’s determination that transmutation occurred.
3
Several cases have applied the doctrine. Batson v. Batson, 769 S.W.2d 849 (Tenn.
App. 1988); McClellan v. McClellan, 873 S.W.2d 350 (Tenn. App. 1994); Barnhill v.
Barnhill, 826 S.W.2d 443 (Tenn. App. 1991).
In this case, the property was placed solely in the wife’s name. An
integral part of the doctrine of transmutation is the intent of the parties. See Batson.
There is ample evidence to support the presumption that the wife intended the home
to be a gift to the marriage. The parties were cohabitating at the time of purchase.
Although cohabitation may not alone be sufficient to invoke transmutation, the parties
looked for a house together and jointly made the decision to purchase the home.
Moreover, the October 1, 1980 realty contract lists both parties as buyers, which
suggests the parties viewed the purchase as a joint enterprise. The parties apparently
believed that the Appellant’s previous bankruptcy would hinder obtaining financing if
his name was included as a purchaser. Thus, the Chancellor concluded that the wife’s
purpose in taking sole title to the home was not to keep it as separate property, but to
obtain financing more easily. The evidence does not preponderate against the
Chancellor’s finding.
The wife also claims that the Chancellor erred in not dividing the
$3,762.00 cash value of the husband’s $50,000.00 American Income life insurance
policy. We can find no basis in the record to disturb the Chancellor’s awarding the
life insurance to the husband. See Kincaid v. Kincaid, 912 S.W.2d 140, 142
(Tenn.App. 1995); Loyd v. Loyd, 860 S.W.2d 409, 411 (Tenn.App. 1993). We
generally do not disturb a trial court’s division unless “the distribution lacks proper
evidentiary support or results from an error of law or a misapplication of statutory
requirements and procedures.” Thompson v. Thompson, 797 S.W.2d 599, 604
(Tenn.App. 1990). No such error appears in the record.
The judgment of the Trial Court is affirmed and the cause remanded,
4
with the cost of the appeal assessed one-half to each party.
__________________________
Herschel P. Franks, J.
CONCUR:
___________________________
Charles D. Susano, Jr., J.
___________________________
Hon. William H. Inman, Sr.J.
5