Owens v. Owens

OPINION DENYING PETITION FOR REHEARING

WILLIAM C. KOCH, JR., P.J., M.S.

Ms. Owens has filed a timely petition for rehearing in accordance with Tenn. R.App. P. 39. She suggests that this court, in our March 29, 2007 opinion, (1) failed to equitably divide the marital estate, (2) failed to address her request for attorney’s fees on appeal, and (3) improperly denied her discretionary costs incurred at trial. While we have determined that the points raised in Ms. Owens’s petition do not require modification of the conclusions in our March 29, 2007 opinion, we have determined that the table illustrating our division of the marital estate on page 492 of the opinion should be revised to more accurately reflect our decision.

I.

In accordance with the parties’ agreement, the trial court’s division of the marital estate included an award to each party of household furnishings valued at $15,000. This division is accurately reflected in the first table that appears on pages 8 and 9 of the opinion. However, the award of $15,000 worth of household furnishings to Mr. Owen was not reflected in the table of the division of the marital estate as approved by this court. Therefore, the second table illustrating this court’s revisions to the division of the marital estate has been corrected in the body of the opinion.

Adding $15,000 to Mr. Owens’s side of the ledger necessarily results in a change in the net distribution to the parties. Rather than receiving 49.7% of the marital estate as determined by the trial court, Ms. Owens will now actually receive 49.2%. She insists in her petition for rehearing that awarding her 49.2% of the net marital estate is inequitable. We respectfully disagree.

Ms. Owens argues that awarding her only 49.2% of the net marital estate is inequitable under Robertson v. Robertson, 76 S.W.3d 337, 341 (Tenn.2002) and Crabtree v. Crabtree, 16 S.W.3d 356, 361 n. 4 (Tenn.2000).1 Both cases encourage trial and appellate courts to make provisions for a disadvantaged spouse through the division of the marital estate. Our division of the estate, particularly with regard to the marital debt, reflects our adherence to that concept. Mr. Owens is charged with repayment of substantially all of the marital debt, which consists of almost $300,000 in largely unsecured liabilities. Ms. Owens, on the other hand, is made responsible only for a $93,000 mortgage and for *499$81,024 in credit card debt that she incurred after her separation from Mr. Owens. As we have already explained, the division of the Owenses’ marital estate was made after careful balancing of the factors in Tenn.Code Ann. § 36-4-121(c), with particular attention paid to Ms. Owens’s age, contributions as a homemaker, and anticipated social security benefits. Therefore, we decline to rehear Ms. Owens with respect to the division of the marital estate.

II.

Ms. Owens also suggests that we failed to address her request for attorney’s fees on appeal. However, she overlooks the fact that she did not request attorney’s fees in her original appellant’s brief. It was not until she filed her reply brief that Ms. Owens mentioned that she would like to be awarded attorney’s fees incurred on appeal. A reply brief is a response to the arguments of the appellee. It is not a vehicle for raising new issues. Tenn. R.App. P. 27(c); Denver Area Meat Cutters & Employers Pension Plan v. Clayton, 209 S.W.3d 584, 594 (Tenn.Ct.App.2006). When drafting an appellant brief, it is incumbent upon the appellant to raise the issues for review, Tenn. R.App. P. 27(a)(4), and to state “the precise relief sought,” Tenn. R.App. P. 27(a)(8). Because an award of attorney’s fees generated in pursuing the appeal is a form of relief, the rule requires it to be stated. Killingsworth v. Ted Russell Ford, Inc., 205 S.W.3d 406, 411 (Tenn.2006). Because Ms. Owens failed to timely request attorney’s fees on appeal, we decline to “rehear” her on the matter.

III.

Finally, Ms. Owens takes issue with our decision to affirm the trial court’s decision to deny her request for discretionary costs. She against insists that she was the prevailing party at trial and that we erred as a matter of law in denying her that status. Ms. Owens’s claim does not find support in the law. Ms. Owens notes that the only published Tennessee Supreme Court opinion on the subject matter finds that the prevailing party is the one who successfully maintained a claim against another party. McReynolds v. Cates, 26 Tenn. (7 Hum.) 29, 30 (1846). She also points to McIntyre v. Traughber, 884 S.W.2d 134, 138 (Tenn.Ct.App.1994), in which this court determined whether a litigant was a “prevailing party” for the purposes of the Federal Civil Rights Act, 42 U.S.C.A. § 1988 (2003). To the extent that McIntyre v. Traughber is relevant for our present inquiry, it suggests that a party’s success must be more than technical if that party is to be considered to have prevailed.2

As we have previously discussed, Ms. Owens’s victories, such that they are, he primarily in convincing the trial court to choose a middle road between her and Mr. Owens’s valuations of marital property and in obtaining an alimony award in much the same way. Ms. Owens suggests that we should “compare how she fared ... to how [Mr. Owens] wanted her to fare,” and, from that, we should determine that she was the prevailing party at trial. This is an unworkable solution. Indeed, Mr. Ow*500ens could make the same argument in support of the theory that he is the prevailing party. Although parties to divorce actions may often consider themselves to be combatants in war, the court’s ultimate role in ending a marriage is to arrive at equitable treatment for both parties. As we noted in our March 29, 2007 opinion, such circumstances do not always make for clear “winners” and “losers.” The record in this case does not reveal a “prevailing party.” Even if it did, Ms. Owens has not demonstrated how the trial court can be said to have abused its discretion in denying her an award of discretionary costs. Accordingly, we decline to rehear her on the matter.

IV.

We deny Ms. Owens’s petition to rehear. However, we also direct that the table appearing on page 492 of our March 29, 2007 opinion be replaced by the revised table contained herein. We tax the costs of this petition for rehearing to Linda Alexander Owens and her surety for which execution, if necessary, may issue.

. In Crabtree v. Crabtree, the Tennessee Supreme Court held, among other things, that concurrent awards of rehabilitative and long-term alimony were not appropriate. Crabtree v. Crabtree, 16 S.W.3d at 360. However, the Tennessee General Assembly later amended Tenn.Code Ann. § 36-5-121(d)(4) (2005) to authorize alimony in futuro awards in addition to rehabilitative alimony awards. See Anderson v. Anderson, No. M2005-02029-COA-R3-CV, 2007 WL 957186, at *5 (Tenn.Ct.App. Mar.29, 2007).

. Ms. Owens also cites a memorandum opinion by the Supreme Court’s Special Worker’s Compensation Panel, Allen v. Jones, No. 02S01-9512-CV-00127, 1996 WL 631355, at *4 (Tenn. Workers’ Comp. Panel Aug. 21, 1996), motion for review denied (Tenn. Nov. 1, 1996), which reversed an award of discretionary costs because the trial court had awarded a co-defendant costs against another co-defendant, even though the co-defendants had not asserted claims against each other. This case merely reinforces the well-established idea that a prevailing party is one who successfully asserts a claim against another party-