Tuttle v. Tuttle

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
MAY 2000 SESSION
VICKI DIANNE TUTTLE v. ROBERT EDWARD TUTTLE
A Direct Appeal from the Circuit Court for Coffee County
No. 1883D The Honorable L. Craig Johnson, Judge
No. M1999-01578-COA-R3-CV - Filed July 28, 2000
In a previous appeal, this divorce case was remanded to the trial court for a determination of
whether the parties had any marital property and, if so, for the trial court to make an equitable
division thereof. From the trial court’s final decree in compliance with the order of remand,
defendant appeals.
Tenn. R. App. P. 3, Appeal as of Right; Judgment of the Circuit Court Affirmed.
CRAWFORD , P.J., W.S., delivered the opinion of the court, in which HIGHERS , J., and FARMER , J.,
joined.
Robert E. Tuttle, Pro Se
No appearance by appellee.
MEMORANDUM OPINION1
This divorce case is before this Court for the second time. In Tuttle v. Tuttle, No. 01A01-
9512-CV-00546 (Tenn. App., Oct. 10, 1997, as modified Jan. 30, 1998), this Court affirmed the trial
court’s decree granting a divorce to plaintiff, Vicki Dianne Tuttle (Wife), from defendant, Robert
E. Tuttle (Husband). The trial court did not deal with the issue of division of marital property,
although defendant’s answer and counter-claim asserted that he was entitled to certain property as
1
Rule 10 (Court of Appeals). Memorandum Opinion. -- (b) The 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decided by memorandum opinion it shall be designated "MEMORANDUM OPINION," shall not
be published, and shall not be cited or relied on for any reason in a subsequent unrelated case.
his separate property and also was entitled to a division of marital property. This Court remanded
the case to the trial court for a determination of whether there is any marital property and, if so, to
value the property and equitably divide same.
On October 8, 1999, the trial court conducted an evidentiary hearing, and on October 12,
1999 entered a “Supplemental Final Decree” which, after detailing the multitude of pleadings filed
after remand, provides:
On the 8th day of October, 1999, this cause came on to be
further heard upon the aforementioned pleadings, testimony of the
Plaintiff and her daughter in open Court, statements and arguments
of counsel, from all of which the Court finds as follows:
1. That all of the Plaintiff’s personal property was accumulated prior
to the marriage and, therefore, constitutes her separate property
including but not limited to the following: household furniture,
Chevrolet Blazer subject to the indebtedness thereon, and Wal-mart
Profit Sharing Plan. Since this property is the separate property of
Plaintiff and the Defendant did nothing to enhance the value of same,
the property is not subject to division pursuant to T.C.A. § 36-4-121.
2. That the separate property of the Defendant was delivered to him
including a word processor, 13" color TV, stereo, various tapes and
CDs, watch, ring, and gold necklace.
3. That certain items including a 1947 Knucklehead Harley
Davidson, Craftsman tools, and the 1978 Ford Mercury Monarch
either never existed or were never in the possession of Plaintiff.
4. That the Plaintiff is responsible for the medical expenses incurred
in her name and there appears to be no marital debts to be
apportioned.
5. That counsel for Plaintiff has fulfilled his obligations concerning
this cause and is henceforth relieved of all responsibility for the
representation of Plaintiff.
IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED as
follows:
1. That all property including the household furniture, Chevrolet
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Blazer, and Wal-mart Profit Sharing Plan is the separate property of
the Plaintiff and is not subject to division pursuant to TCA § 36-4-
121;
2. That the separate property of the Defendant including a word
processor, TV, stereo, and various tapes and CDs, a watch, ring, and
gold necklace are his separate property and have already been
delivered to him.
3. That the other items alleged to have been in the possession of the
Plaintiff either do not exist or were never in her possession, but if the
Defendant can find said items, they are awarded to him.
4. That the Plaintiff is hereby ordered to be responsible for the
medical bills incurred on her behalf.
5. That A. Burton English, attorney for Plaintiff, is relieved of any
further responsibility for representation of the Plaintiff in this cause.
6. That the costs of this cause be adjudged against the Defendant for
which execution may issue after application of Plaintiff’s deposit on
said costs.
Husband appeals and presents two issues for review which, as stated in his brief, are:
1. Whether the property settlement awarded by the trial court was
both legal and equitable?
2. Whether the trial court giving plaintiff full control and possession
of defendant’s property is violating defendants rights under the equal
protection of the law and due process?
The first issue for review is fact-based. The record contains neither a transcript of the
evidence or a statement of the evidence, as provided for in T.R.A.P. 24. In Coakley v. Daniel, 840
S.W.2d 367 (Tenn. Ct. App. 1992), this Court, faced with a fact-based issue in the absence of a
transcript or statement of the evidence, said:
This issue is fact-based. Where the issues raised go to the
evidence, there must be a transcript. In the absence of a transcript of
the evidence, there is a conclusive presumption that there was
sufficient evidence before the trial court to support its judgment, and
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this Court must therefore affirm the judgment. McKinney v.
Educator and Executive Insurers, Inc., 569 S.W.2d 829, 832 (Tenn.
Ct App. 1977). This rule likewise applies where there is a statement
of the evidence which is incomplete. The burden is upon the
appellant to show that the evidence preponderates against the
judgment of the trial court. Capital City Bank v. Baker, 59 Tenn.
App. 477, 493, 442 S.W.2d 259, 266 (1969). The burden is likewise
on the appellant to provide the Court with a transcript of the evidence
or a statement of the evidence from which this Court can determine
if the evidence does preponderate for or against the findings of the
trial court. The appellant has failed to carry this burden. This issue
is without merit.
Id. at 370.
Although parties who choose to represent themselves are entitled to fair and equal treatment,
they are not excused from complying with applicable, substantive, and procedural law, and they must
follow the same substantive and procedural law as the represented party. Paehler v. Union Planters
Nat. Bank, Inc., 971 S.W.2d 393, 396 (Tenn. Ct. App. 1997); Irvin v. City of Clarksville, 767
S.W.2d 649, 652 (Tenn. Ct. App. 1988).
Husband’s first issue is without merit.
As to Husband’s second issue, we find nothing in the final decree awarding Wife possession
of Husband’s property. The trial court made a specific finding of fact that the majority of the
property was Wife’s separate property. The trial court further found that the various described
articles of personal property constituting Husband’s separate property had already been delivered to
Husband. Finally, the court found “that the other items alleged to have been in the possession of the
Plaintiff either do not exist or were never in her possession, but if the Defendant can find said items,
they are awarded to him.” We do not construe this language to be an award to plaintiff of
defendant’s personal property. As we noted in considering Husband’s first issue, in the absence of
a transcript or statement of the evidence, we must conclusively presume that there was sufficient
evidence before the trial court to support the trial court’s findings. See Leek v. Powell, 884 S.W.2d
118 (Tenn. Ct. App. 1994).
Husband’s second issue is without merit.
Accordingly, the final decree of the trial court is affirmed, and this case is remanded to the
trial court for such further proceedings that may be necessary. Costs of appeal are assessed against
the appellant, Robert Edward Tuttle, for which execution may issue, if necessary.
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______________________________________
W. FRANK CRAWFORD, PRESIDING
JUDGE, W.S.
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