McClellan v. McClellan

• Decision Date: 13 October 1993
• Citation: 873 S.W.2d 350
• Parties: Bettye Carol McCLELLAN, Plaintiff/Appellant, v. Fred Bass McCLELLAN, Defendant/Appellee.
• Court: Tennessee Court of Appeals

Page 350

873 S.W.2d 350

Bettye Carol McCLELLAN, Plaintiff/Appellant, v. Fred Bass McCLELLAN, Defendant/Appellee.

Court of Appeals of Tennessee,

Western Section,

at Jackson.

Oct. 13, 1993.

Application for Permission to Appeal

Denied by Supreme Court

Feb. 28, 1994.

David Hardee, Hardee & Martin, Jackson, for plaintiff/appellant.

Tom Murray, Jackson, for defendant/appellee.

FARMER, Judge.

In this divorce action, Wife appeals from the trial court's award of the marital residence to Husband.

Betty Carol McClellan ("Wife") and Frederick Bass McClellan ("Husband") were married on January 7, 1984. No children were born of the marriage although each has a child from a previous marriage. The parties separated in January 1991 and Wife filed a complaint for divorce on January 31, 1992 alleging cruel and inhuman treatment. Husband filed a counterclaim alleging inappropriate marital conduct and irreconcilable differences.

At the time of trial, September 1992, Wife was 41 and Husband was 43. Wife testified that when the parties first married, she worked as a computer operator. During the marriage, she attended computer and accounting classes at Jackson State Community College and earned her degree. She has worked as an accounts payable clerk, file clerk and paralegal trainee. She presently works as a bookkeeper earning a net income of $184.70 per week. Husband currently works at Jackson Utility Division (JUD) and Get-It-N-Go. Husband's affidavit of expenses lists his net monthly income at $1,198 from JUD and $280 from Get-It-N-Go. His monthly expenses are listed at $2,013.90.

The chancellor held that both parties were entitled to a divorce on grounds of inappropriate marital conduct. Husband was awarded the marital residence and its remaining indebtedness, ¹ his pension plan, ² any accounts in his name only and all personal property currently in his possession. Husband was ordered to pay the remaining indebtedness on his credit cards (Sears and Discover) and $222.40 to Dr. Staples. Wife was awarded any accounts in her name only and all personal property currently in her possession. ³ Wife was ordered to pay the remaining indebtedness to the Animal Clinic, Kisbers and the T.V.A. Credit Union. Wife was denied an award of alimony. ⁴

The sole issue on appeal is whether the trial court erred in failing to award at least one-half of the marital residence to Wife either as alimony or as a division of marital property. Husband contends that the residence is his own separate property. Alternatively, he asserts that even if the residence is marital property, the trial court did not err in awarding it to him. Wife valued the marital home at $60,000 and Husband stated a value of $55,000. A real estate broker valued it at approximately $55,000. The home is encumbered with two mortgages totaling approximately $50,000. The total monthly mortgage payment is approximately $500. Both Husband and Wife stated that the down payment for the home's purchase ($20,000) was made with funds inherited by Husband. Wife testified that the property is titled to "Frederick B. and Carol B. McClellan."

T.C.A. § 36-4-121(a) provides for the division of marital property only. Thus, it is incumbent upon the trial court to first classify the couple's property. Batson v. Batson, 769 S.W.2d 849, 856 (Tenn.App.1988). Although the record reveals no express classification by the trial court, we necessarily conclude that the chancellor determined the residence to be marital property. The final decree provides that "all right, title, and interest of [Wife] in and to the house ... is ... divested out of [Wife] and vested in [Husband] and said property shall be the [husband's] sole and separate property."

We find the record to support the trial court's classification of the property as "marital." Batson states:

Another panel of this Court recognized recently that separate property may become part of the marital estate if its owner treats it as if it were marital property. Professor Clark describes the doctrine of transmutation as follows:

[Transmutation] occurs when separate property is treated in such a way as to give evidence of an intention that it become marital property. One method of causing transmutation is to purchase property with separate funds but to take title in joint tenancy. This may also be done by placing separate property in the names of both spouses. The rationale underlying both 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 marital. The presumption can be rebutted by evidence of circumstances or communications clearly indicating an intent that the property remain separate.

2 H. Clark, The Law of Domestic Relations in the United States § 16.2, at 185 (1987).

Batson, 769 S.W.2d at 858.

Husband asserts that he agreed to have the property titled in both their names only under duress. Wife testified that she threatened to sue for divorce if the property was not also titled in her name. The court in Federal Deposit Ins. Corp. v. Ramsey, 612 F.Supp. 326 (E.D.Tenn.1985) defined duress as follows an unlawful restraint, intimidation, or compulsion of another to...