IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
FILED
June 18, 1999
Cecil W. Crowson
THOMAS OWENS, )
Appellate Court Clerk
)
Plaintiff/Counter-Defendant ) Lawrence Chancery No. 7603-95
)
v. )
) Appeal No. 01A01-9709-CH-00471
ANGELIA OWENS, )
)
Defendant/Counter-Plaintiff/ )
Appellee, )
)
v. )
)
JAMES R. OWENS and FERN OWENS, )
)
Defendants/Appellants. )
APPEAL FROM THE CHANCERY COURT OF LAWRENCE COUNTY
AT LAWRENCEBURG, TENNESSEE
THE HONORABLE WILLIAM B. CAIN, CHANCELLOR
For the Defendant/Counter-Plaintiff/Appellee For the Defendants/Appellants:
David L. Allen J. Daniel Freemon
Lawrenceburg, Tennessee Lawrenceburg, Tennessee
AFFIRMED
HOLLY KIRBY LILLARD, J.
CONCUR:
W. FRANK CRAWFORD, P.J., W.S.
ALAN E. HIGHERS, J.
OPINION
This is a divorce case involving the division of marital property. During their marriage, the
husband and wife built a house on property owned by the husband’s parents. The trial court granted
a lien against the property in favor of the wife for half the value of the marital home. The husband’s
parents appeal. We affirm.
Thomas Owens (“Husband”) and Angelia Owens (“Wife”) were married in May, 1986.
There were two children born to the marriage. In 1988, Husband and Wife constructed a house
located on property owned by Husband’s parents, James and Fern Owens (“Mr. and Mrs. Owens”).
On September 21, 1995, Husband filed a complaint for divorce alleging inappropriate marital
conduct or, in the alternative, irreconcilable differences. Wife answered the complaint and filed a
counter-complaint for divorce alleging identical grounds. Subsequently, Wife filed an amended
counter-complaint impleading Mr. and Mrs. Owens alleging that they were unjustly enriched by the
construction of the house on their property. Wife also alleged alternative theories of recovery
including quasi-contract and quantum meruit.
During the trial, both Husband and Wife accused each other of inappropriate marital conduct.
Wife testified that Husband had abused her physically in the past. She said that she left suddenly
with the parties’ two children in September 1995 because Husband struck her in front of the children
and that one child was injured during the altercation.
The trial court also heard evidence concerning the construction of the marital home on the
property of Mr. and Mrs. Owens. Wife testified that she selected and bought most of the building
materials, and that she assisted in the construction of the house. Wife introduced into evidence
receipts for building materials that she bought, in the amount of $4,785.98. Wife stated that she
saved all of her cancelled checks but could not provide them to the trial court because the checks
were left at the house when she had to leave quickly because of Husband’s abuse. Wife testified she
could obtain cancelled checks from the bank only dating back six years to April 1990. Wife asserted
that the house was nearly completed in April 1990. Wife also testified that she borrowed $5,000
from her mother to assist with construction costs.
Wife testified that her work on the house, her payment for building materials, and the
monetary assistance from her mother were because of her “understanding” that the property would
be deeded to Husband and her upon completion of the house. She asserted that Husband represented
to her that the house would be deeded to them when it was completed. She also noted Mr. Owens’
references to the house as “you all’s” and interpreted these references to mean that the house
belonged to Husband and her.
Husband denied at trial that Mr. Owens, his father, ever promised to convey the property at
any time. Husband was employed by Mr. Owens and worked on the house at times when he was
working for his father. Husband was paid by his father in cash and acknowledged failing to report
this income on the joint tax returns.
Mr. Owens asserted that he never had any intention of deeding the property to his son and
daughter-in-law and never made representations to that effect. It is undisputed that the house was
constructed from timber cut from his land, and that some of the equipment used in constructing the
house was owned by Mr. Owens. Mr. Owens claimed that he bought part of the materials for the
house for cash and paid bills concerning the construction of the house in cash. Mr. Owens produced
no receipts for the purchase of building materials. Mr. Owens also testified that Husband and Wife
paid him no rent for five years, the period of time in which they resided in the house.
After listening to the testimony, the trial court found the testimony of Husband and Mr.
Owens to be not credible. The trial judge noted the income tax returns in which Husband’s cash
income was not reported, Husband’s evasiveness and claimed ignorance about numerous basic
issues, and Mr. Owens’ propensity to deal in cash transactions:
Mr. Thomas Owens [Husband] appears to be either trying to act ignorant or is
ignorant; and I don’t believe he is ignorant. He knows nothing. He answers no
question dealing even with the date of his marriage with a straightforward answer.
It’s generally “I don’t know.” These people deal with cash. Mr. Jim Owens [Mr.
Owens] is a cash dealer; cash, cash, cash. He likewise knows nothing.
The trial court held that Mr. and Mrs. Owens would be unjustly enriched by retaining the
entire value of the house on their property. The trial court valued the property, including the value
of the land and the house, at $45,000. The trial court awarded Wife half of the value of the
residence, $22,500, less $5,000, the value of one acre of land owned by Mr. and Mrs. Owens.
Consequently, the trial court granted a lien in favor of Wife in the sum of $17,500 against the
property of Mr. and Mrs. Owens. From this order, Mr. and Mrs. Owens now appeal.
On appeal, Mr. and Mrs. Owens assert that the trial court erred by granting Wife a lien
against the property. Mr. and Mrs. Owens argue they were not unjustly enriched at the expense of
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Wife, that the record shows that they contributed to the construction of the house and that they
should be credited for having permitted Husband and Wife to reside in the house rent free.
Our review of this case is governed by Tennessee Rule of Appellate Procedure 13(d), which
provides that review of findings of fact by the trial court shall be de novo upon the record of the trial
court, accompanied by a presumption of correctness of the factual findings, unless the evidence
preponderates otherwise. Tenn. R. App. P. 13(d); see also Union Carbide Corp. v. Huddleston, 854
S.W.2d 87, 91 (Tenn. 1993).
In support of their argument, Mr. and Mrs. Owens cite O’Brien v. O’Brien, 734 S.W.2d 639
(Tenn. App. 1987). The husband and wife in O’Brien built a house on the property of the wife’s
parents, Mr. and Mrs. Hicklen. O’Brien, 734 S.W.2d at 641. In O’Brien, there was an agreement
among the parties that the property and additional land would be owned by the wife upon the death
of Mr. and Mrs. Hicklen. Id. at 642. The husband and wife later divorced. Id. at 641.
The Court found that the husband had a reasonable expectation of residing in the house with
his wife until her parents died, but that this expectation was waived when he left his wife and the
marital home. Id. at 642. The Court noted that the termination of the marriage was solely due to
the husband’s misconduct. Id. at 643. It also observed that the husband did not expect to obtain an
ownership interest in the house; rather his expectation was “the privilege of occupancy and the
ultimate ownership by his wife.” Id. at 644. The Court refused to grant the husband equitable relief
under the doctrine of unclean hands, reasoning that the husband abandoned his wife and the house
they shared, and was therefore precluded from obtaining equitable relief regarding the house. Id.
at 643.
Wife, on the other hand, cites Housley v. Housley, in which this Court addressed the issue
of the granting a lien on the property of a third party when dividing marital property between a
divorcing husband and wife. Housley v. Housley, No. 03A01-9509-CV-00302, 1996 WL 36135
(Tenn. App. Jan. 31, 1996). In Housley, the husband and wife owned a modular home placed on
property owned by the husband’s parents, Mr. and Mrs. Housley. Housley, 1996 WL 36135, at *1.
The Court ordered the parties divorced, apparently without attribution of fault, and awarded the wife
half of the value of the modular home and imposed a lien against the property of Mr. and Mrs.
Housley in the same amount to protect the wife’s judgment. Id. *2. In sustaining the lien against
the property, the Housley Court observed that the trial court had broad discretion in the adjudication
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of parties’ rights and interests in the marital estate. Id. (citing Batson v. Batson, 769 S.W.2d 849
(Tenn. App. 1988)).
The facts in this case are more analogous to those in Housley than O’Brien. Unlike O’Brien,
the divorce in this case is not solely the fault of Wife. See O’Brien, 734 S.W.2d 642-43. Wife
asserted in her testimony that she left the marital home suddenly because of Husband’s physical
abuse of her and the injury to the parties’ child in the course of the confrontation between Husband
and Wife. As in Housley, the trial court in this case simply declared the parties divorced without
attributing fault. In O’Brien, there was a clear agreement among the parties that the wife would
obtain ownership of the property upon the death of her parents. Id. at 642. In this case, Wife
asserted that she had a reasonable expectation that the property would be deeded to both Husband
and Wife upon completion of the house, and the trial court found that Wife’s testimony was credible
and discredited the testimony of both Husband and his father. The facts in the case at bar are similar
to those in Housley; indeed, they are more compelling than the facts in Housley, in that the home
in this case is not a modular home that can be moved, but a home built on Mr. and Mrs. Owens’
property. See Housley, 1996 WL 36135, at *1. Under all of these circumstances, the relief granted
by the trial court in this case is both reasonable and appropriate.
The decision of the trial court is affirmed. Costs are assessed against Appellants James R.
Owens and Fern Owens, for which execution may issue if necessary.
HOLLY KIRBY LILLARD, J.
CONCUR:
W. FRANK CRAWFORD, P. J., W.S.
ALAN E. HIGHERS, J.
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