Una P. Irvin v. Ernest J. Irvin, II ( 2011 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
May 3, 2011 Session
UNA P. IRVIN v. ERNEST J. IRVIN, II
Direct Appeal from the Circuit Court for Montgomery County
No. MC-CC-CV-DV-09-0084 John H. Gasaway, III, Judge
No. M2010-01962-COA-R3-CV - Filed June 15, 2011
This is a divorce case in which Husband/Appellant appeals the trial court’s order. After a
thorough review of the record, we conclude that the trial court’s order is not final because
it fails to address Husband’s request concerning the sale of the marital residence. The order
is also deficient in that it: (1) is ambiguous and fails to resolve certain conflicts between a
mediation agreement and a stipulation entered by the parties; (2) fails to make the mandatory
findings as required by Tennessee Rule of Civil Procedure 52.01, and specifically fails to
properly value the marital property. We dismiss the appeal and remand for entry of a final
judgment, which resolves the ambiguities and is otherwise compliant with Tennessee Rule
of Civil Procedure 52.01.
Tenn. R. App. P. 3. Appeal as of Right; Appeal Dismissed and Remanded
J. S TEVEN S TAFFORD, J., delivered the opinion of the Court, in which A LAN E. H IGHERS, P.J.,
W.S, and H OLLY M. K IRBY, J., joined.
Donald N. Capparella, Nashville, Tennessee, for the appellant, Ernest J. Irvin, II.1
Lawrence J. Kamm and Stacey A. Turner, Nashville, Tennessee, for the appellee, Una P.
Irvin.
OPINION
Appellee Una P. Irvin (“Wife”) and Appellant Ernest J. Irvin, II (“Husband”) were
married in Fayetteville, North Carolina, on December 28, 1999. Two children were born to
the marriage; their respective dates of birth being September 28, 2001, and November 29,
2003. At the time of trial, Mr. Irvin was thirty-seven years old, and Ms. Irvin was thirty-
1
We note that Mr. Irvin was represented by Mr. Robert J. Martin at the trial of this matter.
three. Ms. Irvin graduated from East Carolina University in 2000 with a degree in family
community services. Mr. Irvin has a degree in science and economics. He is a Major in the
United States Army, and has over nineteen years’ experience with the military. Mr. Irvin has
been deployed many times during the course of the marriage, including five deployments to
Iraq, two deployments to Afghanistan, and one deployment to Kosovo and Bosnia.
On January 21, 2009, after nine years of marriage, Ms. Irvin filed a complaint for
divorce in the Circuit Court of Montgomery County. On January 23, 2009, Ms. Irvin filed
a motion for contempt against Mr. Irvin, alleging that he had removed Ms. Irvin’s name from
the parties’ joint checking and savings accounts in violation of the temporary injunction
provided under Tennessee Code Annotated Section 36-4-106(d). On February 3, 2009, Mr.
Irvin filed both his answer and counter-complaint for divorce as well as a response to the
motion for contempt. There is no order in the appellate record indicating whether the trial
court granted or denied Ms. Irvin’s motion for contempt.2
After Ms. Irvin filed her complaint for divorce, the parties continued to live together
in the marital residence. However, on February 19, 2009, Ms. Irvin filed a motion for
exclusive possession of the marital residence. On the same day, Ms. Irvin filed her answer
to Mr. Irvin’s counter-complaint for divorce, along with a sworn income and expense
statement. Mr. Irvin opposed the motion for exclusive possession of the marital residence
and also filed his own income and expense statement.
Ms. Irvin’s motion for exclusive possession of the marital residence was heard on
February 26, 2009. Although the hearing was held on February 26, 2009, the order was not
entered until December 7, 2009; no explanation is given in the record concerning the delay
in entry of this order. The order grants Ms. Irvin the sum of $2,500.00 per month in
temporary spousal support. However, the order states that no temporary parenting plan is
needed because the parties and the children still reside in the marital residence. Ms. Irvin’s
motion for exclusive possession of the marital residence was denied based upon the court’s
findings that no physical violence had occurred and that the parties were able to occupy their
separate spaces within the marital residence. Specifically, the trial court found that “counsel
for both parties admit that no physical violence has taken place at this time, such that would
warrant an order for exclusive possession of the marital residence.” The court further found
that the arrangement with Mr. Irvin living in the finished basement “worked well.” Mr. Irvin
was given one hour of uninterrupted time with the children per day.
According to the record, after the court denied her motion for exclusive possession
2
No issue has been raised on appeal concerning the alleged contempt. However, our rulings herein
do not preclude the trial court from re-visiting this issue on remand if necessary.
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of the marital residence, Ms. Irvin told her father, Jess Thompson, that Mr. Irvin scared her,
and that she was afraid he would “snap.” Ms. Irvin’s fears appear to be founded in her belief
that other soldiers were returning from the war with “post-traumatic stress.” Despite Ms.
Irvin’s concerns, as found by the trial court, there was no history of violence on the part of
Mr. Irvin. Nonetheless, on March 19, 2009, Jess Thompson filed a Congressional Inquiry
with United States Senator Saxby Chambliss’s office, claiming that Mr. Irvin was “abusive
to the point of perhaps killing [Ms. Irvin] and/or his children.” As a result of these
allegations, Mr. Irvin was presumptively removed from the marital home on March 24, 2009,
by military order, until an investigation could be completed. Mr. Irvin’s battalion
commander escorted him from the marital home as a precautionary measure based upon a
mandatory seventy-two hour no contact order. Although an investigation found no basis for
the charges in the Congressional Inquiry, Mr. Irvin’s commander suggested that he not return
to the marital home in an effort to prevent further escalation of the situation. There is no
proof in the record to indicate that Mr. Irvin suffers from post-traumatic stress disorder. Mr.
Irvin was subsequently transferred by the Army to a new duty station in Alabama. Ms. Irvin
stayed in Clarksville.
On March 13, 2009, Mr. Irvin filed a proposed permanent parenting plan seeking to
be named as the children’s primary residential parent. On March 31, 2009, Mr. Irvin filed
a motion for injunction requesting that Ms. Irvin be enjoined and restrained from “continuing
to make spurious allegations to the Husband’s Chain of Command and/or Department of the
Army.” On March 31, 2009, Mr. Irvin also filed a motion to adopt his proposed temporary
parenting plan pending the final hearing. Therein, Mr. Irvin sought to be named the
children’s primary residential parent, pendente lite, based upon Ms. Irvin’s behavior.
Specifically, Mr. Irvin alleged that Ms. Irvin had spoken badly about him in front of the
children and had failed to encourage a relationship between Mr. Irvin and the children. Ms.
Irvin opposed Mr. Irvin’s motion and specifically refuted Mr. Irvin’s allegations. On April
29, 2009, Ms. Irvin filed her proposed temporary parenting plan, in which she sought to be
named primary residential parent and also alleged inappropriate behavior on Mr. Irvin’s part.
Specifically, Ms. Irvin asserted that Mr. Irvin was controlling to the point of abuse.
Based upon his allegations of inappropriate behavior, on May 11, 2009, Mr. Irvin
moved the court to allow the minor children to be evaluated by an expert of his choosing.
Ms. Irvin opposed this motion. These matters were heard on May 29, 2009. On June 29,
2009, the trial court entered its order on Mr. Irvin’s motion for injunction, his motion to have
the children evaluated, and his motion for entry of a temporary parenting plan. The June 29,
2009 order does not specifically grant or deny Mr. Irvin’s motion for injunction. However,
the order denies both his motion to have the children evaluated by his expert and his motion
for adoption of his proposed temporary parenting plan. Instead, the order appoints Dr. Janie
Berryman to independently evaluate the children and appoints Andrea Goble as guardian ad
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litem for the children. The order further names Ms. Irvin as the children’s primary
residential parent, pendente lite, and sets visitation for Mr. Irvin. The June 29, 2009 order
is sparse on findings of fact; however, the court does specifically state that:
The Court has considered the relevant factors enumerated in
[Tennessee Code Annotated Section] 36-4-404 and finds, for the
most part, that the parties are equally weighted with regard to
these factors. The Mother, however, has been the primary
caregiver for the minor children for the majority of their li[ves]
as Father has chosen, through his employment, to be away from
his children the majority of their li[ves]. Additionally, the
children have resided here in Clarksville for five years and the
Court finds that it is not in their best interest to relocate with
father to the state of Alabama at this time.... The Court finds
that the Father should have access to the children at all
reasonable times for visitation prior to his relocation to
Alabama.
On July 31, 2009, the parties filed a mediator’s report, which indicates that the parties
had reached a partial agreement as to the property settlement but that they could not agree
on a parenting plan. A Memorandum of Understanding (which is also referred to by the trial
court and the parties as the “mediation agreement”) was also filed with the trial court, along
with a “Stipulation” indicating how the settlement should be implemented. There is dispute
as to whether this “Stipulation” was properly entered into the record; we will discuss this
issue more fully below. Other portions of the parties’ settlement agreement later became the
subject of contested post-trial proceedings. Specifically: (1) how Mr. Irvin’s retirement
account should be divided, and (2) whether Ms. Irvin breached the settlement agreement by
not making timely mortgage payments. Both of these issues will also be discussed in more
detail below.
A final hearing on the issues of alimony, child support, and the parenting plan was
held on September 23, 24, and 28, 2009. Although the trial court made some findings from
the bench following the close of all proof, a final decree was not entered until May 27, 2010.
We note that the court’s findings from the bench were not incorporated into this decree.
On March 26, 2010, Mr. Irvin filed a motion to enforce the memorandum of
understanding and also moved the court to enter an order from the September 28, 2009
hearing. On March 30, 2010, Ms. Irvin filed her response to Mr. Irvin’s motion. Attached
to Ms. Irvin’s motion was a copy of the document titled “Stipulation.” There is no file stamp
on this “Stipulation.” In response, Mr. Irvin filed a notice of filing what purports to be a
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transcript of a ruling made by Judge Gasaway at the hearing on September 28, 2009;
however, we note that the proposed transcript is not certified by a court reporter. A hearing
was held on April 5, 2010. At this hearing, the court made no ruling but set the case for
further hearing, on April 27, 2010, to resolve any outstanding issues.
On April 16, 2010, Mr. Irvin filed a motion to clarify the record, requesting the court
to mark, as “Exhibit A,” the Congressional Inquiry, which was allegedly “considered and
excluded by the court for reasons set forth in the transcript.” This motion further states that:
(1) “Counsel intended the Congressional Inquiry to be marked for identification purposes
only for the record”; (2) “after the trial was over, Husband’s counsel was given back the
Congressional Inquiry by a courtroom officer”; (3) “Court had been adjourned”; and (4)
“Counsel hereby requests that the Court mark the attached as an exhibit that the Court
excluded from evidence.”
At the April 27, 2010 hearing, the court ordered Mr. Irvin to pay Ms. Irvin the sum
of $42,500.00 in cash, with 10% interest accruing from September 30, 2009. Concerning the
motion to clarify, vis a vis the Congressional Inquiry, the transcript of the April 27, 2010
proceeding indicates that the court granted the motion from the bench and marked the
Congressional Inquiry for identification purposes only; however, there is no order in the
appellate record stating that the motion to clarify was granted.
Before a final order was entered, Ms. Irvin commenced an action in the General
Sessions Court of Montgomery County. On May 5, 2010, Ms. Irvin obtained an order of
protection against Mr. Irvin, pursuant to Tennessee Code Annotated Section 36-3-601, et seq.
In seeking this order of protection, Ms. Irvin acted ex parte and without assistance of
counsel, and no notice of the general sessions court proceedings was given to Mr. Irvin or
his counsel. Moreover, it appears that Ms. Irvin did not inform the general sessions court of
the pending divorce matter in the circuit court. Ultimately, the general sessions court found
that Ms. Irvin had misled the court by obtaining the order of protection for the improper
purpose of circumventing the rulings of the Circuit Court, which had awarded Mr. Irvin
summer visitation with the children. Had the order of protection gone unchallenged, it would
have prevented Mr. Irvin’s summer visitation. Mr. Irvin moved the general sessions court
to dismiss the order of protection, which had apparently been based upon Ms. Irvin’s
allegation that Mr. Irvin had choked the parties’ six-year-old son during a visit in May 2009.
At the hearing on Mr. Irvin’s motion to dismiss the order of protection, evidence was
adduced indicating that Ms. Irvin did not take the child to the doctor until the day after he
returned from visitation with Mr. Irvin. The emergency physician’s record indicates that the
doctor observed “no visible marks” on the child and that domestic abuse was not indicated.
The police and the Department of Children’s Services were both notified; however, no action
was taken. At the general sessions hearing, Ms. Irvin made new allegations of inappropriate
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physical contact by Mr. Irvin concerning the parties’ seven-year-old daughter. The general
sessions judge ultimately found that the allegations of sexual abuse were unfounded, and
specifically stated that “this is clearly a case of [Ms. Irvin] trying to use these children against
[Mr. Irvin].”
Six days before the entry of the decree, Mr. Irvin filed an expedited motion to enforce
the trial court’s order with regard to his summer vacation, alleging that Ms. Irvin had
obtained an ex parte order of protection “for the improper purpose of circumventing this
Court’s recent final decree of divorce.” Ms. Irvin filed a pro se pleading in the trial court
attempting to explain the ex parte order of protection. Therein, Ms. Irvin again asserts her
belief that Mr. Irvin suffers from post-traumatic stress disorder and that he “will continue to
hurt not only his children, [but also] myself given the chance,” as well as “others around
him.” Again, no evidence was presented to indicate any propensity for violence on the part
of Mr. Irvin.
A decree from the September 23, 24 and 28, 2009 and April 27, 2010 hearings was
entered by Judge Gasaway on May 27, 2010. The order provides, in relevant part, as follows:
[T]he Court finds as follows:
1. ...[T]hat Husband is guilty of inappropriate marital conduct
and that in weighing his conduct against that alleged of the
Wife, the Court finds that his conduct preceded and was more
egregious and damaging to the marriage and therefore, the
Husband’s Petition for Divorce is dismissed and the Wife is
awarded a divorce on grounds of inappropriate marital conduct.
2. That the Court adopts and incorporates the Memorandum of
Understanding entered into between the parties in mediation
dated July 28, 2009 (exhibit A) into this Final Decree as
resolving, by agreement, many property issues between the
parties.
3. That the Court considered the relative factors set out in
T.C.A. 36-6-404 wherein the Court found that the majority of
the factors listed weighed equally on the part of the Mother and
Father with regard to determining a parenting plan, however, the
Court finds that the Mother has been the primary caregiver for
the minor children for the majority of their li[ves] and has
exercised a greater responsibility for caring for the children’s
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daily needs due to the Father’s numerous and lengthy
deployments through his military service. Further, the court
finds that these children have lived in Clarksville, Tennessee in
a very stable and satisfactory environment for a significant
period of their lives and that the Father will be moving at least
one more time through his military service within a year of the
date of the final decree. Considering all of the factors, the Court
finds that the Wife, Una P. Irvin, should be the primary
residential parent of the parties’ minor chil[dren]....
4. That the parenting plan submitted by the Wife took into
account more realistically than the parenting plan submitted by
the Husband the day-to-day activities, given the distance
between the parties. While the Court realizes that there cannot
be a parenting plan that pretends to give each of these parents
meaningful time on a day-to-day basis, there has to be every
effort made so that Husband can have as much time with the
children as possible.
* * *
5. The Court orders that the Husband was to pay unto the Wife
the sum of $42,500.00 in cash for her interest in the remaining
assets of the marriage and for various and other sundry items
stipulated between the parties and filed with the Court on
September 14, 2009 and enumerated to the Court on April 27,
2010. This cash payment to the Wife was due and payable by
the end of September, 2009. At that time, the Husband had paid
$2,500.00. The remaining balance of $40,000.00 accrued
interest at 10% per annum beginning October 1, 2009. The
Husband paid an additional $5,000.00 on this judgment on
January 27, 2010, for which he will be given credit on the full
judgment, with interest, as of the date of that payment. The
remaining balance will continue to accrue interest at 10% per
annum until paid in full by Husband. Additionally, the Husband
will not be given credit against this judgment for any mortgage
payments he made after September 28, 2009 and the remaining
balance of $35,000.00 will continue to accrue interest at 10%
per annum.
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* * *
9. That the Court approved the attorneys’ fees of the Wife’s
counsel as requested and awards a judgment to the Wife for
[$]16,620.00 in attorneys’ fees for which execution may issue.
The memorandum of understanding, which the parties entered following their July 28,
2009 mediation, was attached to the trial court’s order and was incorporated by reference
therein. The memorandum of understanding provides, in relevant part, as follows:
1. The Wife shall receive all interest in the [marital residence],
for which she will be financially responsible. She shall
refinance the mortgage or sell the house within three years of the
entry of the Final Decree of Divorce. As long as the Husband
is responsible on the mortgage, he shall have access to the
mortgage account, and if the mortgage becomes over sixty days
in arrears, he may make the delinquent payments, conditioned
on the house being immediately listed for sale, and that he will
be reimbursed from the proceeds of the sale for any payments
that he makes.
2. The Husband shall receive either the IRA or the Thrift
Savings Plan [“TSP”] that is closest to the face balance of
$36,000.00, as of the date of this agreement. This is to equalize
equity in the marital residence.
3. The Wife will receive twenty-five percent of the Husband’s
military retirement pension, based on a Major (04) with twenty
years of service at retirement. The Wife shall not receive any
disability that does not offset retirement, such as combat related
disability.
4. The remaining retirement account not used to offset equity in
the house (IRA or TSP) shall be divided equally by Qualified
Domestic Relations Order.
In paragraph five of the trial court’s order, supra, Judge Gasaway refers to a
stipulation reached by the parties and filed with the court on September 14, 2009. There is
only one document in the appellate record that is titled “Stipulation.” This document, which
appears several times in the record, provides, in pertinent part, as follows:
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1. That the parties have previously agreed to divide the marital
estate, pursuant to the Mediation Agreement;
2. In addition to receiving the marital home, two (2) vehicles,
and other items in the mediation agreement, the parties further
agree that the WIFE shall receive $42,500.00 as her share of the
remaining assets, of which $2,500 has been paid.
As noted above, there is some dispute in the record concerning this “Stipulation.”
Specifically, there is no file stamp on this document. Moreover, the “Stipulation” is not
made an addendum to the trial court’s order. The question, then, is whether the “Stipulation”
should be considered part of this appellate record. From our review of the entire record,
there is no other document that could be considered a stipulation between the parties other
than that titled “Stipulation.” This document is signed by the attorneys for both parties, but
the Certificate of Service is not dated by the certifying attorney. Although there is no
explanation in the record as to why this document was neither stamped “filed” nor made part
of the trial court’s order, there is no dispute that this “Stipulation” was presented to the court
on September 14, 2009. Moreover, both parties’ attorneys repeatedly allude to this document
in the transcript of the April 27, 2010 hearing. The better practice would have been for this
document to have been properly entered into the record via file stamp, or for the trial court
to have incorporated and attached it to its order. However, for the limited purpose of our
analysis, and particularly in light of the fact that the foregoing document is the only one in
the record that could be construed as the stipulation referred to by the court in its order, we
infer that the document titled “Stipulation,” and set out above, is a valid part of the appellate
record by virtue of the trial court’s reference to it in its order.
On June 25, 2010, Mr. Irvin filed a motion to alter or amend the decree, requesting
that, pursuant to Tennessee Rules of Civil Procedure 59 and 52.02 and “newly discovered
evidence,” the trial court amend the decree to name Mr. Irvin as the children’s primary
residential parent. Specifically, Mr. Irvin asserted that Ms. Irvin’s actions in obtaining the
ex parte order of protection, in the general sessions court, showed that the trial court had
erred in allegedly ignoring her previous attempts to obstruct Mr. Irvin’s relationship with the
children and had further erred in finding that Ms. Irvin would facilitate and encourage a close
and continuing relationship between Mr. Irvin and the children. Ms. Irvin opposed the
motion. By order of July 29, 2010, the trial court denied Mr. Irvin’s motion. Mr. Irvin
appeals and raises five issues for review as stated in his brief:
1. Whether the trial court erred in its enforcement of the
mediation agreement dividing the remaining retirement
accounts, when it ruled that all of the remaining payment should
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be in cash, contrary to the agreement’s specific reference that
such payment should be made using a Qualified Domestic
Relations Order?
2. Where the record showed that Ms. Irvin became more than
60 days in arrears on mortgage payments, and the mediation
agreement required the marital home should be immediately
listed for sale, did the trial court err by not enforcing the
mediation agreement?
3. Whether the evidence preponderates against the trial court’s
designation of Ms. Irvin as the primary residential parent for the
parties’ two children, where Ms. Irvin made false allegations of
child abuse and violence against Mr. Irvin, showing that she was
not able to foster a relationship between the children and their
father, and other factors showed it was in the child[ren]’s best
interest to be primarily parented by their father?
4. Whether the evidence preponderates against the trial court’s
finding of inappropriate marital conduct against Mr. Irvin?
5. Whether the trial court abused its discretion by awarding
attorney’s fees to Ms. Irvin?
Mr. Irvin has appealed the judgment of the trial court pursuant to Rule 3 of the
Tennessee Rules of Appellate Procedure. Although neither party raised the issue of whether
the order appealed is a final judgment, we are required to review the record sua sponte to
determine whether we have jurisdiction to adjudicate this appeal. See, e.g., State ex rel
Garrison v. Scobey, No. W2007–02367–COA–R3–JV, 2008 WL 4648359, at *4 (Tenn. Ct.
App. Oct. 22, 2008) (no perm. app. filed); Tenn. R. App. P. 13(b). Tennessee Rule of
Appellate Procedure 3(a) provides:
(a) Availability of Appeal as of Right in Civil Actions. In civil
actions every final judgment entered by a trial court from which
an appeal lies to the Supreme Court or Court of Appeals is
appealable as of right. Except as otherwise permitted in Rule 9
and in Rule 54.02 Tennessee Rules of Civil Procedure, if
multiple parties or multiple claims for relief are involved in an
action, any order that adjudicates fewer than all the claims or the
rights and liabilities of fewer than all the parties is not
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enforceable or appealable and is subject to revision at any time
before entry of a final judgment adjudicating all the claims,
rights, and liabilities of all parties.
Under certain circumstances, a judgment which adjudicates fewer than all of the
claims asserted by the parties may be made final and appealable pursuant to Rule 54.02 of
the Tennessee Rules of Civil Procedure. In order to enter judgment under Rule 54.02,
however, the trial court must make an explicit finding that there is “no just reason for delay”
and must expressly direct that a final judgment be entered. Tenn. R. Civ. P. 54.02. An order
is not properly made final pursuant to Rule 54.02 unless it disposes of an entire claim or is
dispositive with respect to a party.3 Bayberry Assocs. v. Jones, 783 S.W.2d 553, 558 (Tenn.
1990). In the absence of an order meeting the requirements of Rule 54.02, any trial court
order that adjudicates fewer than all the claims or the rights and liabilities of fewer than all
the parties is not final or appealable as of right. Id.
In his second issue, Mr. Irvin asks this Court to order the sale of the former marital
residence based upon “facts” stated in his affidavit, which was attached as Exhibit B to his
motion to enforce mediation. Although Mr. Irvin’s motion was filed on March 26, 2010, and
was heard and denied from the bench on both April 5 and April 27, 2010, there is no written
order reflecting the trial court’s denial of Mr. Irvin’s request to order the marital residence
sold.
Tennessee Rule of Civil Procedure 3 limits the jurisdiction of this Court to hear
appeals. Specifically, this Court only has jurisdiction over appeals by right from final
judgments entered in the trial court. Tenn. R. App. P. 3(a). Because there is no order in the
record to indicate that the trial court, in fact, ruled on the question of whether the marital
residence should be sold, Mr. Irvin asks this Court to rule in his favor based only upon the
transcript. It is well settled that a court speaks through its orders. Palmer v. Palmer, 562
S.W.2d at 837. In Cunningham v. Cunningham, No. W2006-02685-COA-R3-CV, 2008
3
We recently have noted that, even if a trial court's order includes the necessary language from Rule
54.02, a final judgment pursuant to the rule is not appropriate unless it disposes of a claim or party. We
stated, “[a] ‘claim’ denotes ‘the aggregate of operative facts which give rise to a right enforceable in the
courts.’” Chook v. Jones, No. W2008–02276–COA–R3–CV, 2010 WL 960319, at *3 (Tenn. Ct. App. Mar.
17, 20 10) (quoting Christus Gardens, Inc. v. Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C., No.
M2007–01104–COA–R3–CV, 2008 WL 3833613, at *5 (Tenn. Ct. App. Aug.15, 2008), no perm. app. filed
(quoting McIntyre v. First Nat'l Bank of Cincinnati, 585 F.2d 190, 191 (6th Cir.1978))). Accordingly, “‘a
complaint asserting only one legal right, even if seeking multiple remedies for the alleged violation of that
right, states a single claim for relief.’” Id. (citing Id. (quoting Liberty Mut. Ins. Co. v. Wetzel, 424 U.S. 737,
744, 96 S. Ct. 1202, 47 L. Ed. 2d 435 (1976))).
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WL 2521425 (Tenn. Ct. App. June 25, 2008), this Court explained:
A judgment must be reduced to writing in order to be valid. It is
inchoate, and has no force whatever, until it has been reduced to
writing and entered on the minutes of the court, and is
completely within the power of the judge or Chancellor. A judge
may modify, reverse, or make any other change in his judgment
that he may deem proper, until it is entered on the minutes, and
he may then change, modify, vacate or amend it during that
term, unless the term continues longer than thirty days after the
entry of the judgment, and then until the end of the thirty days.
Cunningham, 2008 WL 2521425, at *5 (citing Broadway Motor Co., Inc. v. Fire Ins. Co.,
12 Tenn. App. 278, 280 (1930)). Consequently, “[w]e do not review the court’s oral
statements, unless incorporated in a decree, but review the court’s order and judgments for
that is how a court speaks.” Id. Because there is no order, not only is there no basis in the
record from which this Court could determine the grounds for the trial court’s decision, but
this Court also lacks jurisdiction for want of a final order. Tenn. R. App. P. 3(a). Because
the trial court has failed to adjudicate all of the claims, and has otherwise failed to comply
with Tennessee Rule of Civil Procedure 54.02, we conclude that the order appealed is not
final and consequently fails to confer jurisdiction on this Court under Tennessee Rule of
Appellate Procedure 3.
Our normal course, upon a finding that the order appealed is not final, is to dismiss
the appeal or to ask the appellant to show cause why we should not dismiss his or her appeal.
Although we lack jurisdiction in this case to adjudicate the issues raised, in the interest of
providing an efficient and cost effective avenue for meaningful and proper review by this
Court should the appeal be re-filed, we feel compelled to discuss the deficiencies in the trial
court’s order so that they may be addressed upon remand.
The procedural problems in this record are myriad; however, the most significant
shortcomings are two-fold. First, the trial court’s order is ambiguous. Second, the order fails
to make specific findings as required under Tennessee Rule of Civil Procedure 52.01. In
order to demonstrate these defects, we will take the unusual course of discussing some of Mr.
Irvin’s issues to assist the trial court on remand. However, based upon our lack of
jurisdiction, we cannot adjudicate these matters.
Ambiguities in the Trial Court’s Order
Mr. Irvin asserts as his first issue that the trial court erred in not entering a Qualified
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Domestic Relations Order (“QDRO”) as provided for in paragraph four of the memorandum
of understanding, which memorandum was incorporated into the trial court’s order. See
paragraph four of the court’s order. Mr. Irvin couches his argument as a contract issue, i.e.,
the court did not properly enforce the memorandum of understanding between the parties.
In her brief, Ms. Irvin contends that this is not an issue that sounds in contract; rather, she
argues that this issue is one that questions the trial court’s division of marital property.
However, in the current state of the record, the distinction between contract and division of
marital property is not ultimately dispositive. Rather, the resolution of this issue requires a
firm grasp and understanding of what, exactly, the $42,500.00 award encompasses.
As set out in full context above, the memorandum of understanding specifically states
that any remaining retirement account funds will be divided equally by a QDRO. Despite
adopting the memorandum of understanding as part of its order, there is no QDRO in this
record. Rather, the trial court orders that Mr. Irvin shall pay to Ms. Irvin the sum of
$42,500.00 in cash “for her interest in the remaining assets of the marriage and for various
and other sundry items stipulated between the parties and filed with the Court on September
14, 2009.” Having determined, for the limited purpose of our analysis, that the “Stipulation”
is properly before this Court, it provides only that, in addition to those items specifically
enumerated in the memorandum of understanding, Ms. Irvin “shall receive $42,500.00 as her
share of the remaining assets.” Consequently, the problem with the trial court’s order, the
memorandum of understanding, and the stipulation is that it is not clear from any of these
documents what, exactly, the $42,500.00 encompasses. If, as Mr. Irvin argues, it is in
satisfaction of the division of the retirement accounts by adopting the memorandum of
understanding (without apparent modification, but see below) as its order, the court should
have entered a QDRO.4 However, if the $42,500.00 is comprised of “various and other
sundry items” and/or “remaining assets,” which do not include retirement accounts, then the
award presents a question of whether the court made a reasonable division of the marital
property, and specifically whether the court erred in fashioning the award as a cash payment.
Although “[i]t is well settled that a trial court speaks through its orders,” Palmer v.
Palmer, 562 S.W.2d 833, 837 (Tenn. Ct. App. 1997); see also In re Adoption of E.N.R., 42
S.W.3d 26, 31 (Tenn. 2001) (“[T]he court speaks through its order, not through the
4
We note that, from the record, it appears that neither party presented a proposed QDRO to the trial
court in this case. “Typically, in Tennessee, a proposed QDRO is prepared by the parties' attorneys and
submitted to the trial court for approval and entry.” Jordan v. Jordan, 147 S.W.3d 255, 259 (Tenn. Ct. App.
2005). The better practice would have been for Mr. Irvin to present, with his March 20, 2010 motion to
enforce the parties’ mediation agreement, a proposed QDRO pertaining to the division of the retirement
accounts. The fact that no QDRO was filed, however, does not, ipso facto, constitute a waiver of this issue
on appeal because such an order “c[an] be entered at any time after judgment.” Id. (quoting Murphy v.
Murphy, No. 283727, 1995 WL 749598, *2 (Conn. Super. Ct. Dec. 1, 1995)).
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transcript.”), this maxim does not preclude this Court from reviewing a trial court’s
statements from the bench, nor does it preclude us from considering any other portion of the
record in determining the exact nature of a trial court’s ruling. See, e.g., Steppach v.
Thomas, No. W2010–00606–COA–R3–CV, 2011 WL 683932, *28 (Tenn. Ct. App. Feb. 28,
2011). As noted above, the gravamen of the issue of whether the trial court erred in not
entering a QDRO is whether the $42,500.00 encompasses a division of the retirement
accounts, or whether this amount is comprised of other marital assets not including
retirement accounts. The trial court’s order does not answer this question. Rather, it creates
an ambiguity concerning the award of the lump sum payment of $42,500.00.
Under one logical interpretation of the court’s order, we could conclude that the
$42,500.00 award does not include the retirement accounts. Because the order incorporates
the memorandum of understanding in paragraph four, and then goes on to award the
$42,500.00 in a separate paragraph (i.e., paragraph five), it would appear that any division
of property contained in paragraph five is not also contemplated in the memorandum of
understanding. Moreover, the language used by the court to describe the purpose of the
$42,500.00, i.e., “interest in the remaining assets of the marriage and for various and other
sundry items,” supports an interpretation that paragraph five of the order does not include the
retirement accounts that are settled in the memorandum of understanding.
On the other hand, we could logically conclude that the court’s award of $42,500.00
does include the retirement accounts. The memorandum of understanding states that the
“remaining retirement account not used to offset equity in the house (IRA or TSP) shall
be divided equally by Qualified Domestic Relations Order.” (Emphasis added). The trial
court’s use of “remaining assets,” in paragraph five of its order (supra), to describe the
$42,500.00 could logically be construed to refer to the remaining retirement account
referenced in the memorandum of understanding. Under this interpretation, the $42,500.00,
or at least a portion thereof, would refer to the retirement account (i.e., either the IRA or the
TSP), which would comprise (at least a portion of) the “remaining assets” of the marital
estate.
The fact that the first paragraph of the memorandum of understanding specifically
states that the parties were only “able to reach a partial agreement as to the division of
property” only functions to further confuse the matter. Moreover, the statement in the
“Stipulation” that Ms. Irvin is to receive “$42,500.00 as her share of the remaining assets,”
does not clarify whether this $42,500.00 includes any portion of the retirement accounts.
Instead, the “Stipulation” further complicates the question. If we interpret the stipulated
statement to include the retirement accounts, this interpretation would seem to be in direct
contravention of the court’s specific adoption of the memorandum of understanding, which
contemplates entry of a QDRO, as opposed to a lump sum payment, on the retirement
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accounts. On the other hand, because the “Stipulation” was not presented to the court until
September 14, 2009, which was after the July 28, 2009 memorandum of understanding was
reached, the “Stipulation” could be interpreted to be a modification of the memorandum of
understanding, wherein the parties stipulate to set aside the QDRO requirement in favor of
a lump sum payment. Paragraph five of the court’s order could then be construed as an
adoption of the parties’ stipulation, and paragraph four of the order could be understood to
be the court’s adoption of the memorandum as modified by the stipulation.
We do not wish to tax the length of this opinion with all of the permutations and
possible interpretations of the court’s order, the memorandum of understanding, and the
“Stipulation,” and specifically how these documents fit together to form the trial court’s
decision. Suffice to say that this task would be pure supposition based upon the ambiguities
created among and between these three documents. This is a problem that the trial court
seems to acknowledge in its statements from the bench following the April hearing:
You can take that mediation agreement and you can take that
stipulation and you still can’t tell me what they agreed to. You
can tell me your interpretation of it. You can tell me what you
think they meant to do. You can tell me how you think they
should have gone about it and what the wisest course would
have been. But you can’t tell me what they agreed to in terms
of the $42,500. And the reason you can’t is because nobody
can. Other than giving me what you think and Ms. Olsen telling
me what she thinks and Mr. Irvin telling me what he thinks and
Ms. Irvin telling me what she thinks, nobody can give me a
piece of paper that says it in clear, concise, unequivocal
language as to what the parties contemplated doing.
Although the trial court acknowledged the problem, it did not resolve the apparent
inconsistencies between the “Stipulation” and the memorandum of understanding in its own
order. This is the first problem with the trial court’s order.
Lack of Tennessee Rule of Civil Procedure 52.01 Findings
Tennessee Rule of Civil Procedure 52.01 requires that, “[i]n all actions tried upon the
facts without a jury, the court shall find the facts specially and shall state separately its
conclusions of law and direct the entry of the appropriate judgment.” This requirement is
mandatory regardless of whether a party requests these findings. The division of marital
property, including its classification and valuation are findings of fact. Woodward v.
Woodward, 240 S.W.3d 825, 828 (Tenn. Ct. App. 2007).
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The trial court’s order does not provide us with sufficient information to allow a
thorough and meaningful review of the judgment. As set out in full context above, the trial
court’s order makes broad statements such as “[H]usband is guilty of inappropriate marital
conduct and that in weighing his conduct against that alleged of the Wife, the Court finds that
his conduct preceded and was more egregious and damaging to the marriage”; and “the Court
considered the relative factors set out in T.C.A. 36-6-404 wherein the Court found that the
majority of the factors listed weighed equally on the part of the Mother and Father....”
However, the court does not specify what conduct, on Mr. Irvin’s part, was egregious and
damaging to the marriage, nor does the court specify which of the statutory factors were
dispositive in its award of child custody. In short, because of this lack of specificity, we are
unable to adequately review the record to determine in whose favor the evidence
preponderates.
Furthermore, the record on appeal contains little to no information concerning the
valuation of the marital assets. Although there are some account statements for the IRA and
the TSP, there is nothing in the record to prove the exact value of these assets. Moreover,
Mr. Irvin, as the Appellant, has failed to include, in his brief, a Tennessee Rule of Appellate
Procedure 7 Table. Tennessee Rule of Appellate Procedure 7 provides:
(a) In any domestic relations appeal in which either party takes
issue with the classification of property or debt or with the
manner in which the trial court divided or allocated the
marital property or debt, the brief of the party raising the issue
shall contain, in the statement of facts or in an appendix, a table
in a form substantially similar to the form attached hereto. This
table shall list all property and debts considered by the trial
court, including: (1) all separate property, (2) all marital
property, and (3) all separate and marital debts.
(Emphasis added).
In the recent case of Harden v. Harden, No. M2009-01302-COA-R3-CV, 2010 WL
2612688 (Tenn. Ct. App. June 30, 2010), this Court discussed the Rule 7 Table:
This Court has previously held where an appellant fails to
comply with this rule, that appellant waives all such issues
relating to the rule's requirements. This Court is under no duty
to search a trial court record in order to discern the valuation of
the couple's property. This Court has previously found issues
involving the valuation and division of property waived for
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failure to comply with Rule 7.
Id. at *8 (citations omitted).
In explaining the necessity of the Rule 7 Table, we further stated:
[I]t is essential that the parties comply with Rule 7 in order to
aid this Court in reviewing the trial court's decision. The table
required by Rule 7, allows this Court to easily and correctly
determine the valuation and distribution of the marital estate as
ordered by the trial court. Further, the Rule 7 table, allows this
Court to ascertain the contentions of each party as to the correct
valuations and proper distribution, as well as the evidence in the
record which the party believes supports its contention.
Consequently, a table, in full compliance with Rule 7, is vital as
this Court must consider the entire distribution of property in
order to determine whether the trial court erred. Moreover, this
Court is under no duty to minutely search the record for
evidence that the trial court's valuations may be incorrect or that
the distribution may be improper.
Id.
The lack of valuation of the marital property by the trial court is, perhaps, why Mr.
Irvin failed to include a Rule 7 Table in his brief. Due to the lack of specific findings of fact
concerning the valuation of much of the marital property, including the IRA and the TSP, we
are unable to determine whether the $42,500.00 encompasses the retirement accounts.
Moreover, as discussed above, the question of whether the “Stipulation” negates the parties’
prior memorandum of understanding concerning the QDRO remains.
Although Mr. Irvin has raised additional issues for our consideration, we do not reach
them due to our lack of jurisdiction resulting from the absence of a final judgment.5 Tenn.
5
We note that, among the issues Mr. Irvin seeks to raise on appeal are issues related to the Rule 59
motion that he filed seeking custody because of Ms. Irvin’s attempts to alienate him from the parties’
children by making false accusations of sexual abuse or threats of violence. See Keisling v. Keisling, 196
S.W.3d 703, 722 (Tenn. Ct. App. 2005) (false accusations of sexual abuse in a custody dispute can be a
“reprehensible tool” against an ex-spouse that is “remarkable for its brutal effectiveness”). Rule 59 motions
are appropriate only where a final order has been entered; in this case, as noted above, no final order was
ever entered. Therefore, the matter remains in the bosom of the trial court, and the issues raised in the Rule
(continued...)
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R. App. P. 3(a). Consequently, all issues are remanded to the trial court.
Ms. Irvin has asked this Court to award her attorney's fees incurred in defending this
appeal. An award of appellate attorney's fees is a matter within this Court's sound discretion.
Archer v. Archer, 907 S.W.2d 412, 419 (Tenn. Ct. App. 1995). In considering a request for
attorney's fees on appeal, we consider the requesting party's ability to pay such fees, the
requesting party's success on appeal, whether the appeal was taken in good faith, and any
other equitable factors relevant in a given case. Darvarmanesh v. Gharacholou, No.
M2004–00262–COA–R3–CV, 2005 WL 1684050, at * 16 (Tenn. Ct. App. July 19, 2005).
Considering all of the relevant factors in this case, and in light of our rulings herein, we
respectfully decline to award Ms. Irvin's attorney's fees in this appeal.
For the foregoing reasons, we dismiss the appeal and remand for further proceedings
consistent with this opinion. Costs of this appeal are assessed one-half to the Appellant,
Ernest J. Irvin, II, and his surety, and one-half to the Appellee, Una P. Irvin, for which
execution may issue if necessary.
_________________________________
J. STEVEN STAFFORD, JUDGE
5
(...continued)
59 motion can be considered by the trial court without a Rule 59 motion, until the trial court enters a final,
appealable order. See Cooper v. Tabb, No. W2009-02271-COA-R3-CV, 2010 WL 5441971, at *9 (Tenn.
Ct. App. Dec. 22, 2010), perm. app. denied (Tenn. May 25, 2011).
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