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Kahn v. Kahn6/6/2005
d in the marital estate for equitable division purposes pursuant to the doctrine of transmutation. This Court quoted the following definition of transmutation with approval:
[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.
Batson v. Batson, 769 S.W.2d 849, 858 (Tenn. Ct. App. 1988) (quoting 2 H. Clark, The Law of Domestic Relations in the United States § 16.2 at 185 (1987)). Though Wife argues that the Summer property is marital property because she warned Husband of the possibility that the Summer property would be sold at an auction for falling delinquent in property taxes and that marital funds were used to pay the property taxes, there is no evidence in the record to support the finding that the Summer property itself, as opposed to any increase in value, is "marital property" subject to equitable division. The Summer property was in Husband's name and given to Husband by his grandmother as a gift. There is no evidence that the Summer property was intended to be "marital property." Further, we note that " he determination of what is equitable must be viewed in light of all factors set forth in Tenn. Code Ann. § 36-4-121, and the property division as a whole." See Wilson v. Wilson, No. E2002-01636-COA-R3-CV, 2003 Tenn. App. LEXIS 357, at *5 (Tenn. Ct. App. May 19, 2003) (emphasis added). Therefore, we hold that the trial court erred when it considered the Summer property to be "marital property" and, as a result, remand this case for an equitable division of the marital estate.
Guardian Ad Litem Fees
Husband also argues that the trial court erred when it ordered him to pay the entire remaining balance of guardian ad litem fees amounting to $4,154.00. As noted above, absent a clear showing of an abuse of discretion, this Court will not reverse a trial court's award of guardian ad litem fees. Townsend v. Bingham, No. 02A01-9801-CV-00019, 1999 Tenn. App. LEXIS 226, at *18-19 (Tenn. Ct. App. Apr. 6, 1999) (citing Salisbury v. Salisbury, 657 S.W.2d 761, 770 (Tenn. Ct. App. 1983)). In this case, neither party alone sought the appointment of a guardian ad litem, but rather, both parties entered into a consent order, appointing Patricia Worley and outlining the parameters of the guardian ad litem's powers and responsibilities. After reviewing the entire record, we cannot say that the trial court abused its discretion when it ordered Husband to pay the remaining balance of the guardian ad litem fees. Therefore, we affirm the trial court's decision ordering Husband to pay the entire balance of the guardian ad litem fees.
Attorney's Fees on Appeal
Finally, during oral argument, counsel for Wife requested this Court award Wife her attorney's fees incurred on appeal. We have previously noted that it is inappropriate for this Court to award attorney's fees on appeal when both parties are partially successful. Houghland v. Houghland, 844 S.W.2d 619, 623 (Tenn. Ct. App. 1992) (citing Baggett v. Baggett, 512 S.W.2d 292, 294 (Tenn. Ct.
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