Forlines v. Forlines

WILLIAM H. FORLINES, III, )
)
Plaintiff/Appellee, )
) Appeal No.
) 01-A-01-9703-GS-00121
VS. )
) Sumner General Sessions
) No. 2475-G
PATRICIA A. FORLINES, )
Defendant/Appellant.
)
) FILED
September 24, 1997
COURT OF APPEALS OF TENNESSEE Cecil W. Crowson
MIDDLE SECTION AT NASHVILLE Appellate Court Clerk
APPEALED FROM THE GENERAL SESSIONS COURT OF SUMNER COUNTY
AT GALLATIN, TENNESSEE
THE HONORABLE BARRY R. BROWN, JUDGE
MICHAEL W. EDWARDS
177 East Main Street
Hendersonville, Tennessee 37075
Attorney for Plaintiff/Appellee
JAMES ROBIN McKINNEY, JR.
Suite 103
214 Second Avenue North
Nashville, Tennessee 37201
Attorney for Defendant/Appellant
AFFIRMED AND REMANDED
BEN H. CANTRELL, JUDGE
CONCUR:
TODD, P.J., M.S.
KOCH, J.
MEMORANDUM OPINION1
The appellant has appealed a judgment of the General Sessions Court
of Sumner County granting her a divorce and enforcing a property settlement
agreement. On appeal she asserts that (1) there is no pleading in the record whereby
she sought a divorce and (2) that the property settlement agreement was not
enforceable.
Although the lower court held two separate hearings in which oral
testimony was taken -- one on the validity of the property settlement agreement and
another on the divorce -- the appellant has not filed a transcript of the evidence from
either hearing.
With respect to the pleadings, the record shows that the appellant filed
a complaint for divorce in the Circuit Court of Sumner County on June 14, 1995, which
the husband opposed on the ground of improper venue (the husband was a resident
of Marshall County). The circuit court dismissed the wife’s complaint and the husband
then filed this action in the General Sessions Court of Sumner County. When the wife
moved the circuit court to reconsider the order of dismissal, the court overruled the
motion but ordered that the file be transferred to the general sessions court to be
consolidated with the husband’s case. Although the wife’s original complaint from the
circuit court does not appear in the record on appeal, the wife and the husband each
filed answers to the respective complaints.
1
Rule 10(b) of the Rules of the Court of Appeals reads as follows:
The Court, with the concurrence of all judges participating in the case, may
affirm, reverse or modify the actions of the trial court by mem orandum opinion when
a form al opinion would have no pre cedentia l value. W hen a case is decided by
mem orandum opinion it shall be designated “MEM ORAN DUM OPINION,” shall not be
published, and shall not be cited or relied on for any reason in a subsequent unrelated
case.
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It is, therefore, clear that the wife filed a complaint seeking a divorce, to
which the husband filed an answer. Although the wife’s complaint does not appear
in the appellate record, the lower court can hardly be faulted for granting her a divorce
under these circumstances.
The wife’s objections to the property settlement agreement are based
on allegations of fact, i.e., that the husband did not disclose all of his assets, and that
he obtained the wife’s signature by fraud, duress, and undue influence. The trial
judge held a separate hearing on these issues and declared the agreement to be
valid. Since the appellant has not preserved the evidence presented at the hearing,
we cannot reach the issues raised. See Sherrod v. Wix, 849 S.W.2d 780 (Tenn. App.
1992).
The appellee asserts that this is a frivolous appeal. We agree. See
Tenn. Code Ann. § 27-1-122. An appeal on factual issues without a transcript of the
evidence is a frivolous appeal. See McDonald v. Onoh, 772 S.W.2d 913 (Tenn. App.
1989).
The judgment of the lower court is affirmed and the cause is remanded
to the General Sessions Court of Sumner County for the enforcement of its judgment
and the assessment of damages for a frivolous appeal. Tax the costs on appeal to
the appellant.
________________________________
BEN H. CANTRELL, JUDGE
CONCUR:
_______________________________
HENRY F. TODD, PRESIDING JUDGE
MIDDLE SECTION
_______________________________
WILLIAM C. KOCH, JR., JUDGE
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