Van Adrian Barker v. Patsy Lou (Randolph) Sledd Barker - Concurring

• Court: Court of Appeals of Tennessee
• Decided: March 6, 1998
• Docket: 01A01-9704-CH-00192
• Status: Published

Opinion

VAN ADRIAN BARKER, ) ) Sumner Chancery Plaintiff/Appellant, ) No. 96D-72 ) VS. ) ) Appeal No. PATSY LOU (RANDOLPH) SLEDD BARKER, ) 01A01-9704-CH-00192 ) Defendant/Appellee. )

IN THE COURT OF APPEALS OF TENNESSEE FILED AT NASHVILLE March 6, 1998 APPEAL FROM CHANCERY COURT OF SUMNER COUNTY AT GALLATIN, TENNESSEE Cecil W. Crowson Appellate Court Clerk HONORABLE TOM E. GRAY, JUDGE

Bryce c. Ruth, Jr. 3210 Highway 31W P.O. Box 68 White House, TN 37188 ATTORNEY FOR PLAINTIFF/APPELLANT

William P. Jones 103 Bluegrass Commons Blvd. P.O. Box 738 ATTORNEY FOR DEFENDANT/APPELLEE

AFFIRMED AND REMANDED.

HENRY F. TODD PRESIDING JUDGE, MIDDLE SECTION

CONCUR: BEN H. CANTRELL, JUDGE

CONCUR IN SEPARATE OPINION: WILLIAM C. KOCH, JR., JUDGE VAN ADRIAN BARKER, ) ) Sumner Chancery Plaintiff/Appellant, ) No. 96D-72 ) VS. ) ) Appeal No. PATSY LOU (RANDOLPH) SLEDD BARKER, ) 01A01-9704-CH-00192 ) Defendant/Appellee. )

OPINION

In this divorce case, the husband Van Adrian Barker has appealed from the judgment of

the Trial Court declaring the parties to be divorced under TCA § 36-4-129, and dividing the

marital estate. The appellant presents only the following issue:

I. Whether the Chancellor erred in finding that the husband did not substantially contribute to the appreciation of the rental property owned by the wife, thereby denying the husband a share in that appreciation.

It appears that the only complaint of appellant is that the Trial Court failed to include in

the marital estate the appreciation during the marriage of a rental house at 139 Gail Drive. This

house was purchased by the wife in 1967 for $15,000.00, paying $1,100.00 cash and financing

the remainder. The wife lived in the house until 1974, when she moved out and rented it to

tenants. When the parties married in 1983, property was worth $48,000.00 and was rented for

$300.00 per month and was encumbered by a $7,500.00 mortgage. In 1996, when the divorce

suit was filed, the rent was $750.00 per month and was worth $82,000.00 subject to a mortgage

of $23,500.00 imposed on the property in 1994 to satisfy various debts of the parties. No

substantial improvements were made to the property during the marriage.

The evidence is controverted as to the contribution of the husband to the maintenance and

preservation of the property. It is uncontroverted that the husband’s work required extensive

travel away from home. The husband insists and the wife denies that the husband helped with

cleaning and maintenance.

-2- During the marriage the parties resided in another house which the wife owned before

the marriage and which the Trial Court included in the marital estate.

During the marriage the parties maintained a joint checking account in which all income

of both parties, including the rent, was deposited, and from which all expenses of the parties,

including expense of maintenance, mortgage, taxes and insurance on the rental house and

residence were withdrawn.

Property owned separately by spouses before this marriage is not generally considered

a part of the marital estate subject to division in a divorce proceeding. TCA § 36-4-

121(a)(b)(2)(A), Batson v. Batson, Tenn. App. 1988, 769 S.W.2d 849. The income from

separate property or increase in its value during the marriage may be considered a part of the

marital estate if the Court determines that the non-owning spouse contributed substantially to its

preservation and appreciation as a home maker, wage earner, parent, family financial manager

or other similar contribution. TCA § 36-4-121(b)(1)(B) and (2).

No evidence is cited or found to justify a reversal of the finding of the Trial Judge that

the husband did not substantially contribute to the preservation or improvement of the subject

property.

The husband insists that material contribution to the family living expenses by a non-

owning spouse is sufficient to entitle the non-owning spouse to participate in the income from

or increase in value of the non-owned property. This principle was applied to the non-owned

house used by the parties as their residence. The evidence accepted as credible by the Trial

Judge does not support the application of this argument of the husband to the non-owned rental

house.

The husband cites an unpublished authority which is distinguishable on the facts.

-3- The determination of credibility by a Trial Judge is given great weight on appeal. Town

of Alamo v. Forcum-James Co., 205 Tenn. 478, 327 S.W.2d 47 (1959); Barnhill v. Barnhill,

Tenn. App. 1991, 826 S.W.2d 443.

The judgment of the Trial Judge is affirmed. Costs of this appeal are taxed against the

appellant and his surety. The cause is remanded to the Trial Court for further necessary

proceedings.

CONCUR:

BEN H. CANTRELL, JUDGE

CONCUR IN SEPARATE OPINION: WILLIAM C. KOCH, JR., JUDGE

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