IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
FILED
November 5, 1998
OTHA SMITH, )
) Cecil Crowson, Jr.
Plaintiff/Appellant, ) Appellate Court Clerk
) Appeal No.
) 01-A-01-9802-CH-00068
VS. )
) Giles Chancery
) No. 9074
MARJORIE SMITH, )
)
Defendant/Appellee. )
APPEALED FROM THE CHANCERY COURT OF GILES COUNTY
AT PULASKI, TENNESSEE
THE HONORABLE JIM T. HAMILTON, JUDGE
ROBERT D. MASSEY
P. O. Box 409
Pulaski, Tennessee 38478
Attorney for Plaintiff/Appellant
JOE W. HENRY, JR.
119 South First Street
Pulaski, Tennessee 38478
Attorney for Defendant/Appellee
AFFIRMED AS MODIFIED
AND REMANDED
BEN H. CANTRELL,
PRESIDING JUDGE, M.S.
CONCUR:
KOCH, J.
CAIN, J.
OPINION
Following an in camera proceeding, the trial court declared the parties
divorced, and awarded the real property at issue to the husband. The wife filed a
Motion to Alter and Amend, which resulted in a new hearing, and a new decree
whereby the real property was equally divided between the parties. The husband
claimed on appeal that the trial court erred in re-opening the case after his initial
decree. We affirm the trial court, but we amend its final order to make sure there is
no doubt that the parties have been legally divorced.
I. Marriage and Divorce
Otha Smith and Marjorie May married on November 16, 1993. During
the course of their brief marriage, they purchased a 35 acre piece of land, which was
titled in Mr. Smith’s name alone. The $5,000 down payment for the land was provided
by Marjorie Smith. When the mortgage note was renewed, her name was added to
the deed of trust. At some point, the parties added to their holdings by purchasing a
one acre tract, which was deeded in the names of both parties.
On October 11, 1995, Mr. Smith filed a complaint for divorce, stating as
grounds cruel and inhuman treatment, or in the alternative irreconcilable differences.
Ms. Smith answered, admitting that irreconcilable differences had arisen between the
parties, but denying that she had been guilty of cruel and inhuman treatment. She
also counter-claimed for divorce on the ground of inappropriate marital conduct.
The case was set for trial, but was continued several times because Ms.
Smith’s attorney believed that her psychological condition rendered her incapable of
testifying in open court. The hearing was finally scheduled for April 8, 1996. On that
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date, Ms. Smith’s attorney, Joe W. Henry Jr., approached Mr. Smith’s attorney, W.
Howell Forrester, and suggested that they avoid the acrimony of a trial, and submit
the issues to some form of Alternate Dispute Resolution.
The attorneys agreed to a procedure whereby the trial judge would hear
each of the parties separately in his chambers, without their attorneys being present,
and without limitation as to what could be discussed. The judge would then render
a decision based on their statements to him.
On April 24, 1996, the trial court issued an order declaring the parties
divorced pursuant to Tenn. Code Ann. § 36-4-129(b), and awarding the husband all
right, title and interest to the 36 acres. The wife was awarded the mobile home that
she had purchased and placed on the property, but was ordered to remove it within
thirty days.
On May 15, 1996, Ms. Smith filed a timely motion through her attorney
to set aside the judgment of the trial court. See Rule 59.02, Tenn. R. Civ. P. In the
alternative, she asked the court to alter or amend the judgment to make an equitable
distribution of the marital estate. Mr. Smith filed a response in opposition to the
motion. The response alleged that the parties had agreed that the trial court’s
judgment would be final, and that no change of circumstances had occurred to
warrant a change in the order.
On March 10, 1997, the parties scheduled a hearing on Ms. Smith’s
motion. On that day, Mr. Henry and Mr. Forrester agreed to waive the hearing on the
motion, and to retry the case instead. The trial court accordingly conducted a
complete trial, at which both parties testified.
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On March 21, 1997 the trial court entered a new order, based on the
hearing of March 10. The judge found that the 36 acre property was part of the
marital estate, and that both parties had contributed to its acquisition and
preservation. He accordingly ordered that the property be surveyed, and that it be
divided equally between the parties. W. Howell Forrester subsequently withdrew as
counsel for Mr. Smith, and Robert D. Massey was enrolled in his place. Mr. Massey
filed a Motion for Findings of Fact and Amendment of Judgment, which was denied.
This appeal followed.
II. Arbitration or Waiver?
The appellant argues that the trial court erred in re-opening the case
after issuing its decree of April 24, 1996. He contends that the procedure the parties
initially agreed upon amounted to a type of Alternative Dispute Resolution (ADR) akin
to binding arbitration, with the trial court acting as arbitrator. The appellant points out
that under the Uniform Arbitration Act, Tenn. Code Ann. § 29-5-301, et seq., an
arbitration award may not be modified or vacated except under circumstances not
present here. See Tenn. Code Ann. § 29-5-310, 313 and 314.
However, the proceeding conducted by the trial court differed in many
important respects from an arbitration of the sort which is governed by the Uniform
Arbitration Act. It appears to us that some of the provisions of the Act were adopted
as safeguards, to prevent parties from being victimized by the very finality that makes
arbitration the procedure of choice for certain types of disputes. Thus, an agreement
to arbitrate must be in writing, Tenn. Code Ann. § 29-5-302(a). Further, a party may
not waive his right to be represented by an attorney at any proceeding or hearing.
Tenn. Code Ann. § 29-5-307.
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In the present case, there was no written agreement to arbitrate, and the
attorneys have presented differing accounts as to the nature of the agreement they
reached. The appellant submitted the affidavit of Mr. Forrester, which was to the
effect that he and Mr. Henry had agreed that the decision of the judge following the
in camera proceeding would be final, and the “case would forever be concluded based
on his ruling.”
In response, Mr. Henry filed his own affidavit, in which he explained the
circumstances that led him to suggest that some method of ADR be used to decide
the case, but denied that he had ever agreed to waive his right to appeal an
unfavorable outcome. Ms. Smith also filed an affidavit, in which she stated that her
attorney told her that if the decision was adverse, the process of appellate review was
still available.
Insofar as the appellant is suggesting that the appellee has lost her right
to appeal as the result of a waiver, we must also reject that argument. Since the
opposing affidavits balance each other, we are obligated to find that Mr. Henry had
not waived his client’s right to appeal, for it appears to us that the greater burden of
proof must rest on the person claiming the waiver of a legal right, not on the person
attempting to exercise that right.
Mr. Henry also argues, correctly we believe, that Mr. Forrester
surrendered any objections he may have had to re-opening the case when he agreed
to forego the hearing on Mr. Henry’s motion to set aside the judgment, and to proceed
directly to a trial of the cause. This is borne out by a finding of the trial court in its
order overruling Mr. Smith’s Motion for Findings of Fact and Amendment of Judgment.
The Court finds that prior to the March 10th hearing, in
open court, everyone agreed, the parties as well as counsel,
that the prior hearing held in chambers between the Court
and the parties and the Court’s ruling based on that hearing,
would be held do novo (sic).
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III. Correcting an Oversight
As we stated above, the trial court’s order of April 24, 1996 declared the
parties divorced pursuant to Tenn. Code Ann. § 36-4-129(b). The order of March 21,
1997 divided the property, but did not mention divorce. The appellant argues that the
more recent order should be set aside because it is fatally deficient, and that a new
hearing should be ordered. He contends that the order of April 24 had been totally
superseded, and that the more recent order failed to deal with the primary issue
before the court -- the dissolution of a marriage. A necessary corollary implication is
that the parties are still married, and can no longer be considered to be legally
divorced.
While we do not fault the appellant’s attorney for using any wedge he
can find to attack the property division, it is apparent to us that the court’s failure to
mention the divorce was a mere oversight. The appellee’s Statement of the Evidence,
which was adopted by the court, reveals that the court not only heard evidence
relating to the property at issue in the trial of March 10, but also evidence as to the
viability of the marriage.
The evidence included testimony that Mr. Smith abused his wife
throughout the course of their marriage, including physical abuse so severe that an
ambulance had to be called, that he was a user of drugs, that he made threats with
firearms, and that he was involved sexually with young boys. No purpose can be
served by continuing a marriage under such circumstances. See Fox v. Fox, 676
S.W.2d 956, 958 (Tenn. 1984). While we believe that the parties have been validly
divorced, we direct the trial court to modify its order to reflect this fact, in order to
remove any possible doubts as to the dissolution of the marriage between the parties.
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IV.
The order of the trial court is affirmed as modified. Remand this cause
to the Chancery Court of Giles County for further proceedings consistent with this
opinion. Tax the costs on appeal to the appellant.
_____________________________________
BEN H. CANTRELL, PRESIDING JUDGE, M.S.
CONCUR:
_____________________________
WILLIAM C. KOCH, JR.,JUDGE
_____________________________
WILLIAM B. CAIN, JUDGE