Theresa A. Green v. William Phillip Green ( 2016 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
November 19, 2015 Session
THERESA A. GREEN v. WILLIAM PHILLIP GREEN
Appeal from the Circuit Court for Montgomery County
No. MCCCCVDV09240 Ross H. Hicks, Judge
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No. M2014-02278-COA-R3-CV – Filed January 29, 2016
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In this divorce case, the wife proceeding pro se appeals the division of marital property and
the trial court’s denial of her request for alimony. She also appeals the trial court’s award of
court costs. She elected not to file a transcript or a statement of the evidence. Because the
wife’s first two issues are factual in nature, the lack of transcript or statement of evidence
prevents us from reaching the substance of the issues raised by the wife. We find no abuse
of discretion by the trial court in assessing court costs. Accordingly, we affirm the judgment
of the trial court. We also find that the appeal is frivolous.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
W. NEAL MCBRAYER, J., delivered the opinion of the Court, in which ANDY D. BENNETT and
RICHARD H. DINKINS, JJ., joined.
Theresa A. Green, Clarksville, Tennessee, appellant, pro se.
Edward E. DeWerff, Clarksville, Tennessee, for the appellee, William Phillip Green.
MEMORANDUM OPINION1
I. PROCEDURAL HISTORY
This case is before us on appeal for the second time. See Green v. Green, No. M2011-
00840-COA-R3-CV, 2012 WL 2389607 (Tenn. Ct. App. June 25, 2012). On March 23,
2011,2 the Circuit Court for Montgomery County, Tennessee, entered a final decree of
divorce for Theresa A. Green (“Wife”) and William Phillip Green (“Husband”). Among
other things, the final decree distributed property and assigned responsibility for the payment
of various debts to Wife or Husband and awarded Wife alimony in futuro of $1,100.00 per
month beginning on April 1, 2011.
In the first appeal, Wife asserted that the trial court erred by “not mak[ing] an initial
determination as to what constitutes marital and separate property” and by “declining to
award the full amount of alimony in futuro that she requested.” Id. at *2. We “remand[ed]
the case for the trial court to classify the parties’ property and debt as either marital or
separate and to modify the division of marital property if necessary . . . .” Id. at *3. We also
vacated the award of alimony in futuro and remanded for a reconsideration of the nature and
amount of alimony awarded. Id. at *4-5.
On September 29, 2014, the trial court held a final hearing on the issues on remand.
The court’s order from the hearing reflects that the court considered “the testimony of the
parties, the listing of marital assets, other pleadings and the entire record, particularly the
prior Order of the Court deeming certain Requests for Admissions admitted, and imposing
sanctions on [Wife] for her refusal to properly respond to discovery.” On the property
division, the trial court determined that all the property divided between Husband and Wife
in its prior order constituted marital property. In doing so, the court apparently adopted the
position of Wife.3 The court also determined that, after considering the applicable statutory
factors, see Tenn. Code Ann. § 36-4-121(c) (2014), its original division of the property was
appropriate.
1
See Tenn. Ct. App. R. 10.
2
On June 13, 2011, the trial court entered an amended final decree of divorce, which modified the
March final decree of divorce by changing the percentages of stock awarded the parties.
3
The court’s order states “Wife identifies all the property . . . as being marital property.” In the first
appeal, Wife took the position that certain property divided by the trial court was actually separate property.
See Green, 2012 WL 2389607, at *3 (“Wife cites to testimony which indicates that certain property awarded
by the court—such as the real property located in St. Louis, Missouri, an Edward Jones account, and a portion
of the Southern Company stock—was owned by Wife before the marriage.”). The change in position might be
due to the fact that, several months after the remand, the trial court granted Wife’s counsel leave to withdraw
and, from that point on, Wife represented herself.
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In reconsidering the nature and amount of alimony previously granted Wife, the court
decided not to award Wife alimony. In reaching this determination, the court emphasized
Wife’s failure to respond to discovery propounded by Husband and its finding that Wife had
concealed certain assets. The court also noted the lack of evidence concerning Wife’s need
for alimony and changes in Husband’s ability to pay alimony. The court explained its
rationale as follows:
It has been alleged by Husband that Wife deliberately concealed assets from
him at the time of the divorce. The Court finds that Wife has failed to properly
respond to discovery concerning her failure to reveal those assets. She has
also failed to properly respond to other discovery. During the hearing on
September 29, 2014, Wife was asked why she had not revealed several specific
stock holdings at the time of the divorce. Her response was that she “had told
her attorney about it.” The Wife’s failure to respond to discovery in a timely
manner is the primary reason that it has taken so long to get this matter to final
hearing and has resulted in the Court deeming certain Requests for Admissions
admitted. While the case has been pending on remand, Husband has closed his
dental practice which was the most substantial asset he received in the property
division. Husband is 78 years old, is unable to continue working and has
limited income consisting primarily of Social Security benefits. Wife has
produced no current Income and Expense Statement and it has been
determined that the Income and Expense Statement she provided to the Court
originally was not accurate. Furthermore, Wife has admitted to concealing
assets from Husband as well as from the Court. After consideration of all the
factors listed at Tenn. Code Ann. § 36-4-121(i) and specifically the matters
enumerated herein concerning Wife’s delay and deception, the Court finds that
the Wife neither needs nor is the Husband able to pay alimony.
In this appeal, Wife raises three issues. As we perceive the issues,4 Wife argues that
the trial court erred in: (1) its division of the marital estate; (2) declining to award spousal
support; and (3) taxing costs on remand equally.
4
Wife’s brief appears to be a copy of the brief she used in her first appeal with portions removed and
interlineations. Husband urges us to dismiss the appeal on the basis that Wife’s brief fails to comply with
Tennessee Rule of Appellate Procedure 27. In this circumstance and given the record before us, we exercise
our discretion to suspend the briefing rules with which Wife failed to comply. See Tenn. R. App. P. 2.
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II. DISCUSSION
In non-jury cases, the trial court’s findings of fact are presumed to be correct unless
the evidence in the record preponderates against them. Tenn. R. App. P. 13(d). We review a
trial court’s conclusions of law de novo, with no presumption of correctness. Armbrister v.
Armbrister, 414 S.W.3d 685, 692 (Tenn. 2013); Rigsby v. Edmonds, 395 S.W.3d 728, 734
(Tenn. Ct. App. 2012).
As we have noted, “[t]he absence of either a transcript or a statement of the evidence
significantly ties the hands of the appellate court.” Chandler v. Chandler, No. W2010-
01503-COA-R3-CV, 2012 WL 2393698, at *6 (Tenn. Ct. App. June 26, 2012). In such
cases, there is a conclusive presumption that the factual findings set forth in the trial court’s
judgment are true and were adequately supported by the evidence presented at trial. Bank of
Am., N.A. v. Darocha, 241 S.W.3d 510, 512 (Tenn. Ct. App. 2007). Consequently, when the
issues raised on appeal turn on the facts presented at trial, the lack of a transcript or a
statement of the evidence is generally “fatal” to the appeal. Piper v. Piper, No. M2005-
02541-COA-R3-CV, 2007 WL 295237, at *4 (Tenn. Ct. App. Feb. 1, 2007).
In this case, both the first and second issues raised by Wife turn on the facts presented
at the final hearing following the remand from this Court. We give the trial court’s division
of marital property great weight on appeal. Kinard v. Kinard, 986 S.W.2d 220, 231 (Tenn.
Ct. App. 1998). We ordinarily defer to the trial court “unless the distribution lacks proper
evidentiary support or results in some error of law or misapplication of statutory requirements
and procedures.” Keyt v. Keyt, 244 S.W.3d 321, 327 (Tenn. 2007) (quoting Herrera v.
Herrera, 944 S.W.2d 379, 389 (Tenn. Ct. App. 1996)). Unlike the first appeal, Wife has
pointed us to no error of law or misapplication of the statutory requirements and procedures.
Her arguments center on the evidentiary support for the classification and valuation of the
property.
Much like the equitable division of a marital estate, “a trial court’s decision regarding
spousal support is factually driven and involves the careful balancing of many factors.”
Gonsewski v. Gonsewski, 350 S.W.3d 99, 105 (Tenn. 2011) (footnote omitted). Generally,
we do not “second guess” a trial court’s decision setting alimony “absent a manifest abuse of
discretion.” Robertson v. Robertson, 76 S.W.3d 337, 343 (Tenn. 2002). A trial court abuses
its discretion when it “causes an injustice by applying an incorrect legal standard, reaches an
illogical result, resolves the case on a clearly erroneous assessment of the evidence, or relies
on reasoning that causes an injustice.” Gonsewski, 350 S.W.3d at 105. The thrust of Wife’s
argument on spousal support is that the trial court erroneously assessed the evidence on
remand by determining she had no need for support and Husband had no ability to pay
support.
-4-
Given the nature of the arguments on appeal, Wife’s election not to file a transcript or
statement of evidence constrains us to affirm the trial court’s division of property and
decision not to award alimony. Although we recognize that Wife is a pro se litigant, we
cannot excuse her from complying with the same substantive and procedural rules imposed
on represented parties. Young v. Barrow, 130 S.W.3d 59, 63 (Tenn. Ct. App. 2003). The
appellant has the obligation to prepare a transcript “as is necessary to convey a fair, accurate
and complete account of what transpired with respect to those issues that are the bases of
appeal” or, absent that, a statement of the evidence. Tenn. R. App. P. 24(b), (c). Wife did
neither.
The third issue raised by Wife relates to the assessment of court costs. The trial court
awarded costs to be divided equally between the parties. The assessment of court costs lies
within the discretion of the trial judge. Noland Co. v. Crye, 726 S.W.2d 531, 532 (Tenn. Ct.
App. 1986). We find no abuse of discretion in the decision to award costs.
III. ATTORNEY’S FEES ON APPEAL
Husband asserts Wife’s appeal was frivolous, and he seeks an award of his attorney’s
fees as damages. Under Tennessee Code Annotated § 27-1-122 (2000),5 an appellate court
may award damages, including attorney’s fees, against an appellant if an appeal is frivolous
or taken solely for delay. The statute authorizing an award of damages for frivolous appeals
“must be interpreted and applied strictly so as not to discourage legitimate appeals.” See
Davis v. Gulf Ins. Grp., 546 S.W.2d 583, 586 (Tenn. 1977) (citing the predecessor to
Tennessee Code Annotated § 27-1-122).
We find this appeal to be frivolous. A frivolous appeal is one “utterly devoid of
merit,” Combustion Eng’g, Inc. v. Kennedy, 562 S.W.2d 202, 205 (Tenn. 1978), or that has
“no reasonable chance of success.” Davis, 546 S.W.2d at 586. An appeal has no reasonable
chance of succeeding when our “ability to address the issues raised is undermined by the
appellant’s failure to provide an adequate record.” See, e.g., Young, 130 S.W.3d at 67. Such
is the case here.
5
The statute provides as follows:
When it appears to any reviewing court that the appeal from any court of record was frivolous
or taken solely for delay, the court may, either upon motion of a party or of its own motion,
award just damages against the appellant, which may include but need not be limited to, costs,
interest on the judgment, and expenses incurred by the appellee as a result of the appeal.
Tenn. Code Ann. § 27-1-122 (2000).
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IV. CONCLUSION
For the foregoing reasons, we affirm the judgment of the trial court. We award
Husband his attorney’s fees and expenses incurred on appeal and remand this case for further
proceedings consistent with this opinion.
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W. NEAL MCBRAYER, JUDGE
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