Lee Ann Polster v. Russell Joseph Polster ( 2023 )

12/08/2023
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
November 7, 2023 Session
LEE ANN POLSTER V. RUSSELL JOSEPH POLSTER
Appeal from the Chancery Court for Montgomery County
No. MC-CH-CV-DI-20-271 Ted A. Crozier, Chancellor
No. M2022-01432-COA-R3-CV
In the prior appeal of this case, a husband’s argument regarding the division of
assets/unconscionability of the marital dissolution agreement was deemed waived because
it was not raised in the trial court. The case was remanded for a determination of attorney’s
fees. The husband attempted to bring the issue up again on remand, and the trial court
refused to consider them. We affirm based on waiver and the narrow scope of the remand.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
ANDY D. BENNETT, J., delivered the opinion of the Court, in which FRANK G. CLEMENT,
JR., P.J., M.S., and W. NEAL MCBRAYER, J., joined.
John Terrance Maher, Clarksville, Tennessee, for the appellant, Russell Joseph Polster.
Steven C. Girsky, Clarksville, Tennessee, for the appellee, Lee Ann Polster.
OPINION
FACTUAL AND PROCEDURAL BACKGROUND
Russell Polster and Lee Ann Polster were divorced by a final decree entered in the
Chancery Court for Montgomery County on June 24, 2020; the final decree of divorce
incorporated the parties’ marital dissolution agreement (“MDA”). In a prior appeal, this
Court held that there was “nothing that could have led the court to conclude that [Mr.
Polster] had withdrawn his consent to the divorce or believed the MDA was invalid” and
that the “court had the authority to grant the parties an irreconcilable differences divorce.”
Polster v. Polster, No. M2020-01150-COA-R3-CV, 2021 WL 4167927, at *4 (Tenn. Ct.
App. Sept. 14, 2021), perm. app. denied (Jan. 12, 2022) (“Polster I”). We further held that
“[w]e will not . . . entertain [Mr. Polster’s] argument that the MDA was unconscionable,
as he raises that argument for the first time on appeal.” Id. at *7 (citing Barnes v. Barnes,
193 S.W.3d 495, 501 (Tenn. 2006)). We also noted, in footnote four, as follows:
In the context of making his unconscionability argument, Husband’s brief
makes passing reference to the MDA’s inequitable division of the parties’
assets, but he has not raised the division of assets as an issue on appeal. Thus,
pursuant to Rules 13(b) and 27(a)(4), (b) of the Tennessee Rules of Appellate
Procedure, we deem that issue to be waived. Even if he had properly raised
this as an issue, his brief contains no citations to evidence in the record
demonstrating the extent of the marital estate or values of the items it
contained, and the MDA is silent as to the values of much of the couple’s
real and personal property. The table Husband includes in his reply brief does
not comply with Rule 7 of the Rules of the Court of Appeals and merely
contains “[v]alues . . . provided by [Husband]” that are completely
unsupported by reference to the record. Importantly, as we ultimately
determine in this appeal that Husband has provided no valid defenses to the
enforcement of the MDA, that agreement must be enforced as written. “[O]ne
of the bedrocks of Tennessee law is that our courts are without power to make
another and different contract from the one executed by the parties
themselves.” Eberbach v. Eberbach, 535 S.W.3d 467, 478 (Tenn. 2017)
(citing Dubois v. Gentry, 184 S.W.2d 369, 371 (Tenn. 1945)).
Id. at *7 n.4.
Upon remand, the trial court entered an order on February 28, 2022, awarding Ms.
Polster $9,000.00 for attorney’s fees incurred on appeal. The order stated, “[t]his is a final
order and resolves any and all outstanding issues.”
On March 25, 2022, Mr. Polster filed a pro se “Motion to Present Testimony and
Evidence of Misconduct and Manipulation.” Mr. Polster’s motion sought to reopen
testimony in his divorce proceeding, repeating arguments related to the covid pandemic
that he made originally and on appeal, and ending his statement with “The law may have
been followed, but I don’t believe Justice was served.” Ms. Polster filed a motion to dismiss
and for attorney’s fees. The trial court held a hearing on the motions on April 22, 2022, at
which Mr. Polster testified, in part:
THE COURT: You’re content with letting it settle and end right here?
MR. POLSTER: I’m -- I’m sorry. I want to -- I will -- I will -- excuse me.
This is the end of the - - of the legal action, Judge.
On April 27, 2022, the trial court entered an order denying Mr. Polster’s motion,
finding, in relevant part, “[a]ll issues presented by Mr. Polster have been previously
reviewed at the Appellate and Supreme Court levels and cannot be reviewed again,” and
-2-
“[t]his matter is hereby DISMISSED on the basis that all issues presented by Mr. Polster
are res judicata.” The court also held that it would not award attorney’s fees to Ms. Polster
because “Mr. Polster acknowledged that he will not be filing any additional requests for
review . . . .”
On May 24, 2022, Mr. Polster filed a pro se motion entitled, “Pursuant to Rules 52
and 59 of TN Civil Procedure: Motion to Make Additional Findings of Fact and
Conclusions of Law for Unconscionability on Order of April 22, 2022.” Before the
hearing, Mr. Polster retained counsel. The trial court held a hearing on July 22, 2022, and
on August 16, 2022, the trial court entered an order dismissing Mr. Polster’s motion,
holding:
1. All issues presented by Mr. Polster have been previously reviewed at
the Appellate and Supreme Court levels and cannot be reviewed again.
2. Mr. Polster had been previously admonished over filing meritless
Motions and Petitions on res judicata and warned by this Court that attorney
fees would be awarded if another meritless Motion or Petition was filed.
3. Ms. Polster is hereby awarded a judgment for $750.00 towards her
reasonable attorney fees to be paid forthwith by Zelle and for which
execution shall issue if necessary.
4. This is a final and appealable Order.
Mr. Polster appealed.
ANALYSIS
Mr. Polster wants to argue that that the MDA is unconscionable due to fairness and
equity issues. In Polster I, he attempted to raise unconscionability in the context of the
distribution of marital property, stating that, “The Marital Dissolution Agreement entered
into by the parties’ [sic], is not only inequitable, the contract is unconscionable.” His
argument was rejected by this Court because he had not raised unconscionability in the
trial court and because he had not raised the division of assets as an issue on appeal, thereby
waiving it.
Before delving into the merits of a matter, we must first consider whether issues are
properly before this Court. At oral argument, the Court quizzed Mr. Polster’s attorney
regarding whether the division of assets/unconscionability issue is proper to raise on
remand because of the waiver in Polster I and because of the scope of the remand. His
view seemed to be that a post-appeal, post-trial motion was sufficient to bring the issue of
-3-
division of assets/unconscionability to the trial court’s attention and to preserve the issue
for another appeal. We disagree.
An appellate court’s remand instructions must be followed. According to the
Tennessee Supreme Court,
“inferior courts must abide the orders, decrees and precedents of higher
courts. . . . [Otherwise] [t]here would be no finality or stability in the law and
the court system would be chaotic in its operation and unstable and
inconsistent in its decisions.” Barger v. Brock, 535 S.W.2d 337, 341 (Tenn.
1976) (quoted in State v. Irick, 906 S.W.2d 440, 443 (Tenn. 1995)).
Clark v. Clark, No. M2006-00934-COA-R3-CV, 2007 WL 1462226, at *8 (Tenn. Ct. App.
May 18, 2007).
It is to the interest of all that there be a constraint on unnecessary litigation.
Moreover, by remanding a case with limiting instructions when error exists
as to only certain issues, the courts maintain the integrity of rulings
previously made. Affording the trial court the latitude of [broadening the
scope on remand] would present a likely conflict [with] the prior rulings of
the trial court and this court. . . . It is for these and other meritorious reasons
that appellate courts have the power to remand cases with limiting
instructions to the trial courts.
Id. at *8 (quoting Melton v. Melton, No. M2003-01420-COA-R10-CV, 2004 WL 63437,
at *5 (Tenn. Ct. App. Jan. 13, 2004), perm. app. denied (Tenn. June 14, 2004)). Such orders
and mandates are controlling, and the lower court does not have “‘the authority to expand
the directive or purpose of [the higher] court imposed upon remand.’” Raleigh Commons,
Inc. v. SWH, LLC, 580 S.W.3d 121, 130 (Tenn. Ct. App. 2018) (quoting Silvey v. Silvey,
No. E2003-00586-COA-R3-CV, 2004 WL 508481, at *3 (Tenn. Ct. App. Mar. 16, 2004)
(quoting State v. Weston, 60 S.W.3d 57, 59 (Tenn. 2001)).
The remand in Polster I was narrow, expressly stated and repeated. In the summary
paragraph at the beginning of the opinion, we stated: “Upon our review, we affirm the
judgment of the trial court. We also award the wife her attorney’s fees for this appeal and
remand to the trial court for a calculation of those fees.” Polster I, 2021 WL 4167927, at
*1. At the end of the analysis we held: “we conclude that the MDA entitles Wife to recover
her attorney’s fees for defending the trial court’s judgment on appeal. We remand the
matter to the trial court for calculation of that award.” Id. at *10. In the conclusion, we
again stated: “The judgment of the trial court is affirmed, and the case is remanded for
proceedings in accordance with this opinion.” Id. The remand does not envision or permit
continuing litigation on the division of assets/unconscionability. Therefore, the trial court
could not take up that issue.
-4-
In addition, Mr. Polster’s unconscionability argument is based on the alleged
unconscionability of the division of assets. As footnote 4 of Polster I states, he did not raise
the division of assets on appeal and, therefore, the issue was waived. “This Court has held
that a party waives the right to seek appellate review in the second appeal of an issue not
raised in the first appeal.” LaFarge N. Am. v. Mills, No. W2020-00959-COA-R3-CV, 2022
WL 704279, at *3 (Tenn. Ct. App. Mar. 9, 2022) (citing Melton, 2004 WL 63437, at *3.
In other words, “[o]ne waives the right to appellate review concerning an issue that was
not, but could have been, raised in a previous appeal.” Clark, 2007 WL 1462226, at *8.
Thus, as the trial court determined1, the issues of division of assets/unconscionability
cannot be raised at this point in the proceedings.
CONCLUSION
The judgment of the trial court is affirmed. Costs of this appeal are assessed against
the appellant, Mr. Polster, for which execution may issue if necessary.
_/s/ Andy D. Bennett_______________
ANDY D. BENNETT, JUDGE
1
While the trial court phrased its ruling in terms of res judicata, we have determined it is more
appropriate to rule in respect to the waiver and remand language of Polster I. “We may affirm a judgment
upon different grounds than those relied on by the trial court when the trial court has reached the correct
result.” Basily v. Rain, Inc., 29 S.W.3d 879, 884 n. 3 (Tenn. Ct. App. 2000) (citing Cont’l Cas. Co. v. Smith,
720 S.W.2d 48, 50 (Tenn. 1986); Kaylor v. Bradley, 912 S.W.2d 728, 735 n. 6 (Tenn. Ct. App. 1995); Clark
v. Metro. Gov’t, 827 S.W.2d 312, 317 (Tenn. Ct. App. 1991)).
-5-