Brewer v. Miller , 1984 Tenn. App. LEXIS 2690 ( 1984 )

TOMLIN, Judge,

dissenting.

I must respectfully dissent from the opinion of my colleagues. The rationale for my dissent can be better understood by a more thorough treatment of the facts in this cause, which have been supplied by a narrative statement of the proceedings filed pursuant to Rule 24(c) of the Tennessee Rules of Appellate Procedure, and approved by the chancellor.

In the decree of divorce, the chancellor awarded the defendant the custody of the parties’ minor daughter, then twelve years of age. While the majority opinion quotes a small segment from the property settlement agreement pertaining to the sale of the parties’ home upon remarriage of the wife, this portion of the property settlement agreement becomes more relevant when read in its entirety. Section 3 reads:

3. The parties own a residence located at 5720 Sanford Road, Knoxville, Knox County, Tennessee. It is agreed that parties shall remain as tenants in common of said property, each having an undivided one-half (V2) interest therein, and Wife shall have the right to live in said residence until the parties’ minor child reaches her 18th birthday, at which time the residence will be sold, and the net proceeds from the sale thereof shall be divided equally between the parties. Wife shall be responsible for paying the mortgage payment, Homeowner’s insurance premium, County and City property taxes on the residence until it is sold, and shall hold Husband harmless from any debt, expense, or obligation arising therefrom. In the event Wife remarries, her right to continue residing in the parties’ home shall terminate, and the residence shall be immediately sold and the net proceeds therefrom equally divided between the parties.

Thus, it can be seen that a major purpose of this agreement was to provide a home for the parties’ minor child. The sum of $225 per month was agreed upon as child support to be paid by the plaintiff to the defendant. However, the agreement provided that this sum was to be used by the defendant to pay the mortgage, homeowner’s insurance, and city and county property taxes on the residence.

The defendant and the parties’ minor child remained in the residence on Sanford Road until the defendant’s marriage to one Mr. Miller on October 16, 1981, when she moved into other property that they intended to purchase. The defendant’s petition for annullment brought in the Circuit Court of Knox County alleged that she separated from Mr. Miller three days following the marriage, and that the marriage was never consummated. The defendant sought the annullment of the marriage upon the grounds of fraud and misrepresentation on the part of Miller. In the judgment annulling this marriage, the court stated:

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the plaintiff’s marriage to the defendant is hereby annulled the same as if said marriage had never taken place, and said marriage is voided ab initio.

The statement of the evidence shows that the defendant tried on several occasions to move back into the home on Sanford Road, but was prevented from doing so by the plaintiff. However, she was successful in moving back in June, 1982. The proof is uncontradicted that the parties’ minor daughter had lived in the home on Sanford Road for her entire life, and that she was well settled in the high school and church in the section of Knoxville in which the home was located. A neighbor of the defendant who worked at the church attended by the parties’ daughter testified that the young lady was active in that church and attended services regularly.

The defendant testified that the parties’ daughter had wished to graduate from the high school which she was attending, and that it was her desire to remain in the home on Sanford Road until she graduated from high school. The parties’ daughter was sixteen years of age at the time of trial and will attain the age of eighteen in early 1985. She will graduate from high school in the spring of that year. The plaintiff conceded that his daughter was in the care and custody of the defendant, and that his daughter and the defendant had no place to reside other than in the residence on Sanford Road.

The court-approved statement of the evidence states as follows:

After argument of counsel, the Court made the decision that the relief sought in the original complaint in cause no. 74916, seeking immediate sale of the real property owned by the parties was denied, based upon the Court’s opinion that the parties’ property settlement agreement entered between the parties contemplated an intention that the parties’ minor child, Stacy Lee Brewer, would remain in the subject real estate until her 18th birthday, and that in the interest of the minor child, he would order that the house not be sold at this time but that the sale be postponed until the minor child reaches her eighteenth birthday. That the provisions of the final decree between Harry William Brewer and Hilda Faye Brewer requiring immediate sale of the real estate upon a marriage of Hilda Faye Brewer did not take effect. The Court further amended the final judgment for absolute divorce filed in case no. 66146 so that the same would read “in the event wife vacates the premises at 5720 Sanford Road for an interrupted (sic) period of thirty (30) days, except for medical reasons, the residence shall be immediately sold and the net proceeds therefrom equally divided between the parties.”

This case having been tried below by the chancellor alone, and the chancellor having made certain findings, our review of the finding of the trial court is de novo upon the record in the trial court, and is accompanied by a presumption of correctness, and absent an error of law, must be affirmed. Rule 13(d), T.R.A.P.

I agree with my brothers that there are no reported Tennessee cases on point. Therefore, we are not faced with any statutory or case law that would control the issue presented by this appeal. Absent this law, the issue really is whether or not the evidence in the record preponderates against the action of the chancellor. I am of the opinion that it does not, and that the chancellor was correct.

I agree with my brothers that Gordon v. Pollard, 207 Tenn. 45, 336 S.W.2d 25 (1960) is not dispositive of this case. I am also of the opinion that it needs no further castigation to go with the unjustified criticism given it by our Supreme Court in Davis v. Davis, 657 S.W.2d 753 (Tenn.1983), which case is in no way relevant and material to the issues in the case at bar.

The chancellor below was faced with a set of facts for which there was no applicable controlling law. That being the case, his judicial responsibility was to be equitable at the same time that he was being just. That he was. It can be safely said that when the parties’ entered into this property settlement agreement, and when the chancellor in the divorce decree approved it, it could not have been within the contemplation of the parties that what later happened would happen.

Although not a party to the domestic litigation, the real party in interest, whose rights and interests the chancellor below sought to protect, was the parties’ sixteen-year-old daughter. Because of a technical mistake that another court of record had rendered a nullity, the father of this minor child sought to dispossess her of the only home that she had ever known. She will lose it soon enough when she reaches her majority. With that I have no quarrel.

The chancellor was dealing with a particular type of contract that he should have treated and did treat differently than he would have an ordinary agreement between two adults — a marriage contract. The rights eminated from a marriage contract — and a divorce is simply a negative aspect of a marriage contract — are inescapably intertwined with public policy. The chancellor decided this litigation based upon the facts presented and the equity of the case. Accordingly, I would affirm the decree of the chancellor.