IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
April 20, 2006 Session
DONNA KAY BRISTER DAVIS
v.
JOHN W. DAVIS
An Appeal from the Circuit Court for Shelby County
No. CT-002379-02 Karen R. Williams, Circuit Judge
No. W2005-01304-COA-R3-CV - Filed November 27, 2006
This is a divorce case. After ten years of marr iage, the parties separated. Subsequently, their marital
home was destroyed in a fire. The husband then executed a quit claim deed on the home to the wife.
Consequently, the insurance proceeds on the home were paid to the wife, with none distributed to
the husband. Both parties then filed for divorce. During the trial, the husband testified that the wife
persuaded him to quit claim his interest in the home to her so that she could deal with the insurance
company and sell the land on which the home stood. The husband sought a share of the insurance
proceeds and the proceeds from the sale of the land. The wife alleged that the husband quit claimed
his interest in the home to her as a gift. At the conclusion of the divorce proceedings, the trial court
held, inter alia, that the home was a marital asset, despite the existence of the quit claim deed, and
granted husband a share of the proceeds from the insurance and the sale of the land. The wife
appeals. We affirm, finding that the evidence does not preponderate against the trial court’s
conclusion that, by executing the quit claim deed the husband did not intend to make a gift of his
interest in the property to the wife.
Tenn. R. App. P. 3; Judgment of the Circuit Court is Affirmed
HOLLY M. KIRBY , J., delivered the opinion of the Court, in which DAVID R. FARMER , J., joined, and
ALAN E. HIGHERS, J., dissented.
Edward M. Bearman, Memphis, Tennessee, for Plaintiff/Appellant Donna Kay Brister Davis.
William Neal Small, Memphis, Tennessee, for Defendant/Appellee John W. Davis.
OPINION
Plaintiff/Appellant Donna Kay Brister Davis (“Wife”) and Defendant/Appellee John W.
Davis (“Husband”) were married in Memphis, Tennessee, on January 13, 1992. This was the second
marriage for Wife and the third marriage for Husband. The parties had one child together and Wife
had a child from her previous marriage. They purchased a home together in Memphis. The parties
separated permanently on their tenth wedding anniversary, January 13, 2002, at which time Husband
moved out of the parties’ home. He took some of his personal items with him, but left many other
items behind.
In February 2002, about a month after the parties separated, a fire broke out at the parties’
marital residence. The house was completely destroyed. The home was insured. After the fire,
Husband executed a quit claim deed on his interest to the marital home and delivered it to Wife. The
parties vehemently dispute the purpose for Husband’s execution of the quit claim deed. Wife claims
that the deed was signed and delivered to her as a gift from Husband, who was relinquishing to her
any interest in the home, land, and proceeds. Husband claims that Wife duped him into signing the
quit claim deed based on Wife’s representation to him that the deed was necessary for Wife to sell
the land and handle the pending insurance claim on behalf of both of them.
On April 26, 2002, Wife filed a complaint for divorce in Shelby County, Tennessee. Wife
alleged irreconcilable differences as the ground for divorce. On June 27, 2002, Husband filed a
complaint for divorce as well. Husband’s complaint alleged that Wife had engaged in inappropriate
marital conduct.1
On January 31, 2003, Husband filed a petition for contempt against Wife. The petition
alleged that Wife had violated the automatic statutory injunction, issued pursuant to Tennessee Code
Annotated § 36-4-106, enjoining both parties from transferring, assigning, dissipating, disposing of,
or borrowing against marital property without the consent of the other party or the court. See T.C.A.
§ 36-4-106(d)(1)(A). Husband contended that Wife had received the insurance proceeds from the
fire and the proceeds from the sale of the land on which the house had stood, but failed to give
Husband his share of the proceeds.
A trial was held on the matter from May 3, 2004, to May 5, 2004. At the trial, both parties
wanted to be divorced, but differed as to the grounds for the divorce and the circumstances of their
separation. Wife testified that the marriage was strained because of Husband’s excessive drinking.
She said that, on their tenth wedding anniversary, she became frustrated because Husband had again
failed to pick his clothes up off the floor, so she picked them up and threw them out the front door.
Wife claimed that Husband then cleared out his closet and left.
In contrast, Husband testified that Wife had a volatile nature and was prone to violent
outbursts. He testified that, due to her emotional propensities, Wife had previously caused Husband
to be jailed for false reasons. He said that he finally left after Wife, in another outburst, threw all of
his clothes out of the house. A number of his personal possessions remained in the marital home
when it burned down a month after Wife threw him out. The house was a total loss.
1
The parties’ divorce petitions were filed in different courts, but were consolidated by order of Judge Karen
W illiams dated July 11, 2003.
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The parties’ testimony also conflicted on the reasons for the Husband’s execution of a quit
claim deed to Wife of his interest in the marital home. Wife testified that, at the time she married
Husband, she had already been living in a home on four acres of property, subject to an $85,000
mortgage. Husband moved into that house with Wife. The parties sold that house and, with the
proceeds from that sale, purchased the home that eventually burned down.
After the parties’ marital home burned down, Wife testified, she had trouble dealing with the
insurance adjuster. When she asked for Husband’s help, she said, Husband told her that the house
was her problem and that he was too busy working to assist her, and he would not answer her calls.
She said that Husband told her that he just wanted to be rid of her. She testified that she suggested
to Husband that, if he wanted to wash his hands of his family obligations, he could quit claim the
house to her and keep his business and equipment. Wife testified that Husband agreed to this
arrangement. Consequently, Husband went to attorney Rhea Clift’s office, at Wife’s urging, and
executed the quit claim deed on April 12, 2002. The insurance proceeds totaled $1,014,376.58, and
the proceeds from the sale of the lot on which the house was situated totaled $84,999.91. Once the
insurance proceeds were paid, she said, Husband signed the checks and Wife deposited them into
the parties’ joint account. It was undisputed that, by the time of trial, Wife had spent all of the
proceeds. Among other things, she purchased a new home listed in her name only, a vehicle for her
son from a previous marriage, her son’s private school tuition, and computers and various electronic
items.
In Husband’s testimony, he flatly denied that he signed the quit claim deed as a gift to Wife.
He asserted that Wife represented to him that she needed the quit claim deed so that she could handle
the fire insurance claim and sell the land on which the house was located. Husband testified that
Wife instructed him to go to her attorney’s office to execute the document, and he let her handle the
insurance claim and the sale of the land. When Husband was not able to get Wife to give him any
of the funds from the insurance and the sale of the property, he contacted an attorney and filed for
divorce, unaware that Wife had already filed a divorce petition in another court. Husband insisted
that he never intended to relinquish any right to his marital share of the proceeds from the insurance
or the sale of the land.
On May 4, 2005, the trial court entered a final decree of divorce. In pertinent part, the trial
court made the following findings regarding the insurance proceeds from the destruction of the
marital home:
b. Insurance and land proceeds: During the course of the marriage, Wife sold the
home she brought into the marriage, paid off her existing loan and co-mingled the
proceeds with Husband’s funds or joint income to purchase the family home. On or
about January 13, 2002, Husband moved out of the family home. On February 22,
2002, prior to either party filing for divorce, this home, with all of its contents, was
destroyed by fire. An insurance claim was filed. Wife persuaded Husband to quit
claim the home to her on April 12, 2002. Two weeks later she filed for divorce.
Husband alleges that Wife said that she needed the quit claim deed so that she could
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sell the property. Wife takes the position that she was to get all of the insurance
proceeds and the proceeds from the sale of the land and Husband was to get his
business. The Court finds that this Quit Claim deed was executed as part of a scheme
to deprive Husband of his marital interest in the home and the contents. Eventually,
approximately $1.1 million in proceeds were received by Wife. Although this value
is probably lower than a fair market value, the Court accepts the total insurance
proceeds as the value of the home and contents. The Court finds that the home and
its contents were a marital asset.
Thus, the trial court credited Husband’s testimony and held that Husband’s execution of the quit
claim deed was not a gift to Wife, but rather was a result of Wife’s “scheme” to deprive Husband
of his property. After deducting the amounts used to pay off the parties’ first and second mortgages
on the home, an IRS lien on the home, homeowner’s insurance, and various taxes, the trial court
awarded each party a 50% interest in the balance. Each party’s share of the marital home was
$343,368.12. Ultimately, considering a number of other assets not relevant to this appeal, the trial
court awarded Husband $270,000 as his share of the marital estate. To secure the debt, the trial court
issued a lien in favor of Husband against Wife’s current home. The trial court concluded that Wife
had, “in an attempt to prevent Husband from receiving his share of the marital estate, converted all
of the liquid assets from the insurance claim and the sale of the land into realty and personalty prior
to the trial in this matter.” The trial court also found in favor of Husband on his contempt petition,
concluding that Wife had violated the trial court’s standing orders. Consequently, the trial court
ordered Wife to pay the court costs. From this order, Wife now appeals.
The only issue Wife raises on appeal is whether the trial court erred in finding that the marital
home remained a marital asset after Husband quit claimed his interest to her. Wife does not dispute
that the marital home was marital property at the time it was purchased and throughout the time the
parties both resided there. Rather, Wife argues that Husband’s execution of the quit claim deed was
a gift of marital property from one spouse to the other, and that consequently the house was Wife’s
separate property. Husband disputes the existence of a valid gift, arguing that the trial court correctly
found that he executed the quit claim deed not as a gift, but as a result of Wife’s scheme to retain for
herself all of the insurance and sale proceeds paid on the house.
On appeal, the trial court’s factual findings are reviewed de novo on the record, subject to
a presumption of correctness, unless the evidence preponderates otherwise. Tenn. R. App. P. 13(d).
The trial court’s legal conclusions are reviewed de novo and are not entitled to any presumption of
correctness. See, e.g., Wells v. Tenn. Bd. of Regents, 9 S.W.3d 779, 783 (Tenn. 1999). As to the
trial court’s findings on the credibility of the witnesses, the trial court is specially qualified to
evaluate the credibility of witnesses by virtue of its ability to observe the demeanor of the witnesses
as they testify. Id. As a consequence, trial courts are accorded significant deference in resolving
factual disputes when the credibility of the witnesses is of paramount importance. Id.; see ARC
LifeMed, Inc. v. AMC-Tennessee, Inc., 183 S.W.3d 1, 24 (Tenn. Ct. App. 2005). “[A]ppellate
courts will not re-evaluate a trial judge’s assessment of witness credibility absent clear and
convincing evidence to the contrary.” Wells, 9 S.W.3d at 783 (citing Humphrey v. David
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Witherspoon, Inc., 734 S.W.2d 315, 315-16 (Tenn. 1987); Bingham v. Dyersburg Fabrics Co.,
Inc., 567 S.W.2d 169, 170 (Tenn. 1978)).
In considering the property division during a divorce proceeding, the trial court must first
classify the property as either separate or marital. Batson v. Batson, 769 S.W.2d 849, 856 (Tenn.
Ct. App. 1988). Property classified as “marital property” is then subject to an equitable division,
while separate property is not. Id. The manner of acquisition or disposition can affect the
classification of the property. For instance, Tennessee courts have construed the distribution of
martial property statute, Tennessee Code Annotated § 36-4-121(b)(2), “to mean that gifts by one
spouse to another of property that would otherwise be classified as marital property are the separate
property of the recipient spouse.” Batson, 769 S.W.2d at 856. In the instant case, Wife readily
admits that, absent the existence of the quit claim deed, the marital home would be classified as
marital property. Wife argues, however, that Husband’s execution of the quit claim deed converted
the marital home from marital property to Wife’s separate property. Accordingly, the operative
question in the instant case becomes whether Husband’s execution of the quit claim deed was a gift.
The burden of proving a gift is normally on the donee. Pamplin v. Satterfield, 265 S.W.2d
886, 888 (Tenn. 1954). However, a conveyance of property from one spouse to another creates the
rebuttable presumption of a gift. Denton v. Denton, 33 S.W.3d 229, 232 (Tenn. Ct. App. 2000);
Turner v. Turner, No. M1999-00482-COA-R3-CV, 2000 WL 1425285, at *7 (Tenn. Ct. App. Sept.
28, 2000). In Tennessee, two elements must be present for a court to find that a valid gift has been
made: (1) an intention by the donor to make a present gift; and (2) delivery of the gift, relinquishing
the donor’s control and dominion over the property. Lowry v. Lowry, 541 S.W.2d 128, 130 (Tenn.
1976); Dunlap v. Dunlap, 996 S.W.2d 803, 815 (Tenn. Ct. App. 1998). Thus, to overcome the
presumption of a gift, Husband was required to prove that one of these elements was not present.
In this case, the trial court recited the parties’ conflicting testimony on the circumstances
surrounding the execution of the quit claim deed. Clearly the trial court credited Husband’s
testimony that Wife misrepresented to Husband that execution of the quit claim deed to her was
necessary for her to be able to “take care of” the insurance claim and the sale of the land on which
the marital home was situated. It also credited Husband’s unambiguous denial of any intent to make
a gift to Wife of his interest in the proceeds from the insurance claim or the sale of the land. The
trial court concluded that Husband executed the quit claim deed not as a gift, but as part of Wife’s
“scheme to deprive Husband of his marital interest in the home and the contents.” In our review of
the appellate record, we see no reason to question the trial court’s assessment of the parties’ relative
credibility. Under these circumstances, the evidence fully supports the trial court’s implicit finding
that, in executing the quit claim deed, Husband did not have the intent to make a gift to Wife of his
marital interest in the proceeds from either the insurance claim or the sale of the land on which the
marital home stood. Thus, we affirm the trial court’s division of the property.
Finally, Husband requests an award of attorney’s fees and expenses for defending this appeal.
This motion is denied.
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The decision of the trial court is affirmed. The costs of this appeal are hereby taxed against
Plaintiff/Appellant Donna Kay Brister Davis, and her surety, for which execution may issue, if
necessary.
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HOLLY M. KIRBY, JUDGE
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