Mahalet B. Girma v. Haile A. Berhe

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
March 1, 2016 Session
MAHALET B. GIRMA v. HAILE A. BERHE
Appeal from the Circuit Court for Rutherford County
No. 67187 J. Mark Rogers, Judge
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No. M2015-00586-COA-R3-CV – Filed March 30, 2016
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This is a divorce case. Wife appeals the trial court‟s order concerning the division of
property and award of various fees and expenses. Because the trial court did not enter an
order on Wife‟s motion for reimbursement of certain fees and expenses, the judgment of the
trial court is not final and appealable as of right. Accordingly, we dismiss the appeal.
Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed.
KENNY ARMSTRONG, J., delivered the opinion of the Court, in which J. STEVEN STAFFORD,
P.J., W.S., and ARNOLD B. GOLDIN, J., joined.
John D. Drake, Murfreesboro, Tennessee, for the appellant, Mahalet B. Girma.
Thomas F. Bloom, Nashville, Tennessee, for the appellee, Haile A. Berhe.
MEMORANDUM OPINION1
1
Rule 10 of the Rules of the Court of Appeals of Tennessee provides:
This Court, with the concurrence of all judges participating in the case, may affirm, reverse or
modify the actions of the trial court by memorandum opinion when a formal opinion would
have no precedential value. When a case is decided by memorandum opinion it shall be
designated “MEMORANDUM OPINION”, shall not be published, and shall not be cited or
relied on for any reason in any unrelated case.
Appellant Mahalet B. Girma (“Wife”) and Appellee Haile A. Berhe (“Husband”) were
married on May 30, 2009. The parties had only one face-to-face meeting prior to their
marriage and had conducted their courtship through various social media outlets. At the time
the parties were married, Husband worked in San Francisco, and it was the parties‟ intention
that Wife would move there from LaVergne, Tennessee. However, after the marriage, Wife
allegedly reneged on the plan to move and required Husband to find a job in Nashville,
Tennessee.
On July 17, 2010, the parties‟ first child was born. Husband continued working in
California but visited his wife and child in Tennessee every week or two. In July of 2011,
after two years of searching, Husband found a job at FedEx. He was scheduled to move to
Memphis so that he could begin his job on September 1, 2011. At that time, Wife was living
in LaVergne with her mother. Although Wife was initially excited about moving to
Memphis to live with her husband and children as a family, Wife‟s mother was not in favor
of the move. On July 21, 2011, the disagreement culminated in a verbal altercation between
Husband and Wife‟s mother. This resulted in Husband leaving Wife‟s house in LaVergne
and going back to California. Afterward, Wife prohibited Husband from seeing her or their
child for five months. Nonetheless, Husband started his job in Memphis on September 1,
2011; however, Wife refused to move from LaVergne. The parties‟ second child was born
on December 26, 2011. Following the birth of this child, Husband again tried to persuade
Wife to move to Memphis. Although Wife ultimately agreed to the move, over Husband‟s
objection, she insisted on bringing her mother to live with the family. Living with his
mother-in-law proved unworkable for Husband, and less than six months after moving to
Memphis, Wife returned to LaVergne with her mother and the parties‟ children.
On October 21, 2013, Wife filed for divorce on the grounds of irreconcilable
differences and inappropriate marital conduct. Based on Husband‟s alleged anger issues and
her allegations of physical abuse, Wife also sought an ex parte restraining order to keep
Husband from coming around her home. The ex parte temporary restraining order requested
by Wife was granted by the trial court on October 21, 2013. On November 25, 2013,
Husband filed an answer and counter-complaint for divorce also on the ground of
irreconcilable differences. On December 2, 2013, the parties entered into an agreed order
under which Husband would have supervised visitation with the children; the parties also
agreed to attend mediation. On December 11, 2013, Wife answered Husband‟s counter-
complaint; she also filed an amended answer on December 16, 2013.
On June 19, 2014, Husband filed a motion for a temporary restraining order against
Wife based on the alleged fact that she was residing with her ex-husband (this marriage was
dissolved in 2007). Husband allegedly discovered that Wife was residing with her ex-
husband when the children were involved in a car accident involving a vehicle driven by
Wife‟s ex-husband. Accordingly, Husband sought to restrain Wife from having her ex-
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husband or other unrelated male visitors in her residence in the presence of the children. The
court granted the temporary restraining order. On July 28, 2014, Wife sought to dissolve the
restraining order. By agreed order, the restraining order was dissolved on August 1, 2014.
On August 8, 2014, Wife filed a motion to recover funds from Husband in the amount of
$16,697.83 that she allegedly incurred when she purportedly moved from the LaVergne
residence to comply with the restraining order obtained by Husband. The trial court, in an
oral ruling, denied Wife‟s motion.
Meanwhile, on July 1, 2014, the court appointed a special master, who approved both
Wife‟s request for pendente lite support and her proposed temporary parenting plan.
Specifically, Husband was ordered to pay $2,460 per month in child support and was
prohibited from visiting the children. The trial court granted Husband‟s motion to set aside
the special master‟s report and temporary parenting plan because his attorney had not
received notice of the hearing, which the special master held in Husband‟s absence.
Following a second hearing on September 8, 2014, the special master filed a report setting
Husband‟s child support obligation according to the Tennessee Child Support Guidelines and
establishing his right to parenting time with his children.
The final hearing on the divorce was held on November 18-19, 2014. By order of
January 5, 2015, the trial court declared the parties to be divorced pursuant to Tennessee
Code Annotated Section 36-4-129(b). The court denied Wife‟s request for alimony, noting
that Wife had an earning capacity of $57,324 per year. Concerning the property division, the
court found it equitable for the parties to retain their respective pension or retirement plans
and bank accounts. The trial court made minor modifications to the order and the parenting
plan on January 23, 2015, and on March 23, 2015 the trial court made additional
modifications to the parenting plan in response to Husband‟s motion to alter or amend. Wife
appeals.
Wife presents the following issues on appeal as stated in her brief:
1. The trial court erred by not granting the divorce to the Wife and
awarding attorney‟s fees.
2. The trial court erred in failing to divide the parties‟ assets.
3. The trial court erred in not awarding the wife reimbursement of fees
expended as a result of the Husband‟s restraining order forcing Wife
from her residence.
4. The trial court erred in not allowing the Wife a credit for additional
daycare expenses.
5. The trial court erred in allowing the Husband to take a credit for
transportation expenses.
6. Husband asks for attorney‟s fees on appeal.
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However, we do not reach the substantive issues due to procedural shortcomings in the
appellate record.
Analysis
Tennessee Rules of Appellate Procedure 13(b) requires this Court to determine
whether we have subject matter jurisdiction to adjudicate an appeal. Subject matter
jurisdiction concerns the authority of the court to hear a matter and cannot be waived.
Meighan v. U.S. Sprint Commc'ns Co., 924 S.W.2d 632, 639 (Tenn. 1996). 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. The subject matter jurisdiction of this Court
is limited to final orders, except as otherwise provided. Bayberry Assocs. v. Jones, 783
S.W.2d 553, 559 (Tenn. 1990).
Rule 3(a) of the Tennessee Rules of Appellate Procedure provides, in relevant part:
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 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.
Tenn. R. App. P. 3 (a).
As discussed above, on August 8, 2014, Wife filed a motion to recover funds, in
which she requested a judgment against Husband in the amount of $16,697.83. This motion
was denied by the trial court in an oral ruling dated September 19, 2014. However, no order
was ever entered on Wife‟s motion. Additionally, the trial court did not adjudicate this
motion in its final order, which was entered on January 5, 2015.
It is well settled that “the court speaks through its order[s] not through the transcript.”
In re Adoption of E.N.R., 42 S.W.3d 26, 31 (Tenn. 2001); Palmer v. Palmer, 562 S.W.2d
833, 837 (Tenn. Ct. App. 1977). “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.” Broadway Motor Co. v. Pub. Fire Ins. Co., 12 Tenn. App. 278, 280 (1930).
“We 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.” Steppach v. Thomas, 346
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S.W.3d 488, 522 (Tenn. Ct. App. 2011)(quoting Shelby v. Shelby, 696 S.W.2d 360, 361
(Tenn. Ct. App. 1985)). From the record, it appears that the trial court‟s ruling on Wife‟s
motion to recover funds was never reduced to an order. Indeed, in its order supplementing
the technical record, the trial court acknowledges that “[t]he [c]ourt provided and „oral
ruling‟ and neither counsel filed an order.” In the absence of an order, the transcript of the
ruling is inchoate and of no effect in conferring jurisdiction on this court under Tennessee
Rule of Appellate Procedure 3(a). Inasmuch as this appeal was taken from an order that was
not final, we lack subject matter jurisdiction. See Bayberry, 783 S.W.2d at 559 (“Unless an
appeal from an interlocutory order is provided by the rules or by statute, appellate courts have
jurisdiction over final judgments only.”).
For the foregoing reasons, the appeal is dismissed. This case is remanded to the trial
court for such further proceedings as may be necessary and are consistent with this opinion.
Costs of the appeal are assessed against the Appellant, Mahalet B. Girma and her surety, for
all of which execution may issue if necessary.
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KENNY ARMSTRONG, JUDGE
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