John Raymond Kautz v. Doris Diane Kautz Berberich

03/18/2021
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
December 1, 2020 Session
JOHN RAYMOND KAUTZ v. DORIS DIANE KAUTZ BERBERICH
Appeal from the Circuit Court for Polk County
No. CV-11-059 J. Michael Sharp, Judge
No. E2019-00796-COA-R3-CV
This appeal concerns a divorce. John Raymond Kautz (“Husband”) sued Doris Diane
Kautz Berberich (“Wife”) for divorce in the Circuit Court for Polk County (“the Trial
Court”). The parties entered into a marital dissolution agreement (“the MDA”), which the
Trial Court approved in its final decree of divorce. Some years later, Wife filed a petition
pursuant to Tenn. R. Civ. P. 60.02 seeking relief from the judgment on grounds that
Husband failed to disclose certain assets. The Trial Court granted Wife’s motion.
However, after a subsequent hearing, the Trial Court found that while Husband later hinted
to Wife he had more assets than he disclosed, he actually had not concealed any valuable
assets not already known to Wife. The Trial Court reinstated the MDA with certain
amendments. Wife appeals. We decline to re-evaluate the Trial Court’s implicit credibility
determinations, and the evidence does not preponderate against the Trial Court’s finding
that Wife was aware of the valuable marital assets at the time the MDA was executed. We
affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed;
Case Remanded
D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which ANDY D. BENNETT
and THOMAS R. FRIERSON, II, JJ., joined.
Philip M. Jacobs, Cleveland, Tennessee, for the appellant, Doris Diane Kautz Berberich.
Laura M. Crawford, Ducktown, Tennessee, for the appellee, John Raymond Kautz.
OPINION
Background
In June 1996, Husband and Wife got married in Indiana. No children were born of
the marriage. Husband was a money manager who worked for Morgan Stanley and Wife
was a schoolteacher. In 2007, Wife filed a complaint for divorce, which later was
dismissed when the parties reconciled. A postnuptial agreement was executed as a result.
In April 2011, Husband filed a complaint for divorce of his own in the Trial Court. In
January 2012, following mediation, the parties agreed on a division of marital property;
the MDA was executed toward that end. Both parties were represented by counsel in this
process. In March 2012, the Trial Court entered a final decree of divorce based upon the
ground of irreconcilable differences and incorporating the MDA. The MDA included the
following provision regarding the parties’ retirement accounts:
11. WAIVERS OF ALL CLAIMS AGAINST ASSETS OF THE PARTIES:
Except as herein otherwise provided, each party may dispose of his or her
property in any way, and each party hereby waives and relinquishes any and
all rights which he or she may now have or may hereafter acquire under the
present or future pensions, Individual Retirement Accounts, bank accounts,
stocks, bonds, and any and all other property or assets which the other
presently owned or may hereinafter acquire, and each party hereby waives
and relinquishes all rights he or she may now have or hereafter acquire under
the present or future laws of any jurisdiction, to share in the marital
relationship, including without limitation dower, homestead, courtesy,
statutory allowances, widow’s allowances, right to pay an intestacy, right to
take against the will of the other, the right to act as administrator or executor
of the other’s estate, and each party will at the request of the other, execute,
acknowledge, and deliver any and all instruments which may be necessary
or advisable to carry into effect this mutual waiver and relinquishment of all
such interest, rights and claims.
In May 2012, Wife filed a petition for criminal and civil contempt against Husband
with respect to the sale of the marital residence. In September 2013, the Trial Court entered
an agreed order whereby Husband was to pay Wife $160,000 for her interest in the marital
residence. Ostensibly, the divorce was over.
In March 2016 the matter revived, as Wife filed a petition pursuant to Tenn. R. Civ.
P. 60.02 alleging Husband failed to disclose certain lottery winnings and requesting that
the MDA be set aside. The basis for Wife’s claim about lottery winnings was a highly
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antagonistic email sent to her by Husband back on March 19, 2012 wherein he stated, in
part:
A friend at Dean Witter years ago had a poster that proclaimed “Living well
is the best revenge!” How true.
So you enjoy your one-bedroom apartment, your sub-zero wind chills and
your stolen money while your precious belongings gather dust in storage.
Meanwhile, I’ll be enjoying my lakefront dream home, my bachelorhood and
my lottery winnings while your face fades in my rear-view mirror!
Have a great life.
In October 2016, Wife filed a motion to amend her Rule 60.02 petition to allege that
Husband also failed to disclose other marital assets, including a retirement account. The
matter was heard in June 2017. Wife, then age 70, and Husband, then age 75, testified.
Wife testified to the marital assets she contended Husband failed to disclose:
A. In this process I found that there was a BB&T account while we were
married that I did not know about. There are retirement account or accounts
that I did not know about. I did not know the value of his -- the one that I
did know about I didn’t know the value of. He admitted that he took money
from a life insurance policy that at that time I was the beneficiary of. He
took $6,000 out of that, the cash in that policy. I found that he lied on his
2011 taxes. We were married but separated. I filed married but separated;
he filed single. He lied in deposition about how he settled with me on that
$160,000. I believed that he had refinanced the house. He mentioned in
deposition that the money came from the sale of his now wife’s house, which
actually didn’t sell until 14 months after he settled with me. So again, that’s
another lie. The information that he supplied was not complete. There was
no information about how utilities, mortgage, improvements to the house,
cars, boats, and things like that were paid for.
***
Q. (By Mr. Jacobs) How much was deposited in the UBS account on or about
April 11th of 2013?
A. $311,415.25.
Q. Were you aware there was a UBS account, an IRA?
A. Yes, sir.
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Q. Did you know the value of that account?
A. No, sir.
Q. Did you know about a Northern Trust account?
A. Never.
Q. Did you know about a Morgan Stanley account?
A. No, sir.
***
Q. While I’m up here, did you know anything about any rental real estate or
partnerships that he had?
A. I believe that was, and I think the name of it is Everest Ridgewood or
Ridgewood Everest, I’m not sure, I knew about it.
Q. Is there any mention of that company or interest in that company in your
marital dissolution agreement?
A. No, sir.
***
Q. He has stated that his only lottery winnings was on December 28th of
2011 of three dollars. Do you believe that to be accurate?
A. I can’t tell if he won three dollars on December 28, 2011. That’s what he
stated in deposition. I can’t prove that or not prove it.
Q. Do you believe that’s the extent of his lottery winnings?
A. No, sir.
Husband, for his part, testified that he only won three dollars in the lottery. Husband
stated that “[i]n that e-mail, as I said previously, I was referring simply to the ironic fact
that I had won a big three dollars on the 28th of December.” When pressed on Wife’s
allegations that he concealed the existence or value of certain marital assets, Husband
testified:
Q. Do you have any proof to offer to the Court today you disclosed to Ms.
Berberich or any of her agents what was in your 401(k), IRAs, or pensions
at the time of your divorce?
A. Well, she certainly knew what was in the 401(k) and we got a statement
every year on the pension plan that showed the additional $300,000. She was
well aware of it for years.
Q. Do you have any proof of that?
A. I don’t know how I would prove it.
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Q. Do you have any correspondence from Mr. Painter to Mr. Brown that
says, These are the assets of the parties and this is how they should be
equitably divided?
A. The only thing I recall there is as we said, that we read earlier, that we
agreed her pension was hers and my pension was mine, period.
In September 2017, the Trial Court entered an order finding that Wife was entitled
to relief under Rule 60.02. The Trial Court found that Husband “fraudulently and
intentionally failed to disclose all of his financial assets prior to the execution of the MDA
and all subsequent settlement agreements.” The Trial Court, setting aside the MDA as it
related to the division of marital assets, stated that “[t]he parties shall submit to the court
for further proceedings to allow the court to make an equitable division of all of the
undisclosed assets that existed at the time of the final divorce decree and MDA.” The Trial
Court also awarded Wife her attorney’s fees.
A hearing was conducted in April 2018. The record contains no transcript from that
hearing. However, the record does contain a Statement of Evidence. According to the
Statement, Wife’s proof included the following:
1. The real property had a value of $320,000.00.
2. Based on the financial statements of the accounts from the date of
the parties divorce, the financial/retirement accounts between the parties had
the following values:
a. Husband’s IRA at UBS was $334,343.26.
b. Husband’s IRA at Northern Trust was valued at $365,654.00.
c. Wife’s IRA had a [marital] value of $23,180.00, the remaining
value of the asset is Wife’s separate property. The total value of the
Wife’s IRA as the date of the divorce was approximately $122,000.00.
This asset was accumulated during the 30 years the Wife was
employed in the State of Indiana. The Wife was married to Husband
for 5 of those years or 19.35%.
3. Wife testified that she did not know the value of Husband’s BB&T
account, Community Bank account, Southern Bank account or United
Community Bank account.
***
10. The Wife testified that she had a liability on her tax refund
resulting from failure of the parties to file a joint tax return and the Husband
filing an individual tax return and claiming to be divorced in the amount of
$1,925.00.
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11. The total disclosed assets following the June 30, 2017, hearing had
a value of $1,101,488.26 excluding Wife’s pension.
***
15. The marital estate that was awarded to Wife pursuant to the marital
dissolution agreement was as follows:
a. One-half interest in the real property at a value of $160,000.00 to
Wife.
b. A vehicle valued at $2,000.00.
c. Financial accounts valued at $23,180.00 excluding the value of her
pension.
d. Personal property valued at $4,930.00.
e. Liabilities of the following: Piano ($3,552.75), jukebox ($2,897.47)
and tax refund ($1,925.00) for total liabilities of (8,375.22).
16. Wife’s net marital estate had a value of $181,734.78 excluding the
value of her pension, and the Wife had separate property of $104,181.00.
17. The marital estate awarded to Husband pursuant to the [Marital]
Dissolution Agreement and based on the discovered assets was as follows:
a. One half interest in the Real property value of $160,000.00 to
Husband.
b. Personal property valued at $14,510.00.
c. Vehicle $2,000.00.
d. Financial accounts $334,343.26 in his IRA at UBS and $365,654.00
in an IRA at Northern Trust.
e. The Husband had no liabilities.
f. A tax refund for 2011 of $3,871.00.
g. Husband has cash value in a life insurance policy in the amount of
$31,000.00.
18. The net marital estate that Husband received was $907,507.26.
19. The Husband did have separate property in his two different
pensions or financial accounts. The Husband received 82.4% percentage of
the actual [marital] Estate.
20. The business interest/real estate partnership owned by Husband
was acquired before the parties marriage and is separate property or his
separate liability.
21. The Wife through her exhibit and testimony went on to pray for a
division of the assets that was an award of the [marital] estate, 60 percent
awarded to her and 40 percent of [marital] estate to Husband and requested
$470,782.96 from Husband’s two financial accounts with UBS, one of which
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was formerly with Northern Trust, to create an equitable division of the
[marital] estate.
Husband also testified at the April 2018 hearing. According to the Statement,
Husband denied that Wife had been unaware of any marital assets:
22. Mrs. Berberich was fully aware of the marital assets at the time of
the negotiation of the Marital Dissolution Agreement.
23. That assets that Mrs. Berberich claims were not disclosed, such as
an account with BB&T and Northern [T]rust Company, did not exist [at] the
time of the divorce.
24. The BB&T was created at the time of the parties’ separation in
2007 and was closed upon the parties’ reconciliation that same year and
monies left in that account at that time were deposited back into the parties
joint UBS account.
25. The BB&T account did not exist at the time of the parties’ divorce
action in 2012.
26. I did not have any kind of financial account with Northern Trust
Company, but rather Northern Trust Company was the administrator of his
Morgan Stanley Pension Plan.
27. I did not receive any substantial lottery winnings prior to divorce.
28. Mrs. Berberich was aware of my retirement benefits from Morgan
Stanley which I thought she waived any marital interest pursuant to the
Marital Dissolution Agreement and previously in the Postnuptial Agreement
executed on July 9, 2007, both times having been represented by counsel.
29. Full disclosure of the assets were made during the negotiation of
both of those agreements.
30. I believed each party would retain all rights to their own
retirement.
In June 2018, the Trial Court entered its Order Regarding Post Divorce Issues. In
sum, the Trial Court found that, while Husband had insinuated to Wife he concealed certain
marital assets of value from her, in reality, he had not. In its order, the Trial Court stated:
Based upon all of the proof, now before the court, regarding the extent of the
parties’ assets on the date that the parties entered into the initial marital
dissolution agreement (MDA), entered on March 19, 2012, and their
subsequent settlement agreement entered on 9/6/2013, the court finds that
there was no substantial or substantive asset that Mr. Kautz owned or had
possession or control of that Ms. Kautz Berberich was not actually aware of
at the time. However, due to statements made by Mr. Kautz and/or the
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actions of Mr. Kautz, which apparently was due to his anger and/or his
animosity toward Ms. Kautz Berberich, Mr. Kautz created the distinct
impression that he had substantial other assets. Specifically, Mr. Kautz made
reference to his lottery winnings. Furthermore, Ms. Kautz Berberich became
aware of a real estate partnership that Mr. Kautz is a partner in with what
now appears to be multiple other individuals. The reality is, based upon all
of the proof now before the court, that the real estate partnership has a
negative equity value of about $96,000.00 that Mr. Kautz is responsible for.
Had this information been made known to Ms. Kautz Berberich at the time
of the marital dissolution agreement, then some if not all of this extended
litigation could have, and should have been, avoided. The same is true with
regard to any actual lottery winnings, there is no credible proof before the
court that the lottery winnings were substantial, nor much of anything,
however, due to statements made by Mr. Kautz to Ms. Kautz Berberich, the
appearance was given to Ms. Kautz Berberich that there was possibly a
failure to disclose what was a substantial asset.
With regard to the BB&T and the Northern Trust Company accounts,
the proof is that Mr. Kautz failed to disclose that the BB&T account that was
created at the time of the parties’ separation in 2007 was in fact closed upon
the parties’ reconciliation later that same year, and that monies left in that
account at that time were then deposited back into the parties’ joint UBS
account. Had that full disclosure been made, again, some or all of this
litigation could and should have been avoided.
Ultimately, the court finds that Mr. Kautz did not make full disclosure
of all of the assets and/or the asset trail that would have avoided this
litigation. In fact, the court finds that for reasons known only to Mr. Kautz,
he appeared to lead and possibly even goad Ms. Kautz Berberich into
believing that there were other greater assets that he owned and/or had
possession of, and that she was losing out on certain assets. It now appears,
based upon the further proof, that there were no real substantial or other
additional assets. In fact, it appears that the real estate partnership is a
liability instead of an asset. It further appears that whatever lottery winnings
there were were minimal, and in fact Ms. Kautz Berberich was not able to
offer any credible proof that there were any lottery winnings of any
substance. The court finds that it is very unfortunate that these parties are
back before the court based upon such an apparent animosity between each
other that they continue to litigate what should have been fully and
completely settled by [their] settlement agreement executed 9/26/2013.
Based upon all of the above, the court amends it’s Final Order
reinstating the marital dissolution agreement because there were no real
assets of any substance that actually existed. However, given the statements
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and actions of Mr. Kautz, Ms. Kautz Berberich had every reason to believe
that there might be substantial assets, given the representations made by Mr.
Kautz.
The MDA is also amended to provide that Mr. Kautz’s actions in
filing the tax return as a single person were in fact fraudulent in that he was
not a single person. The court finds that the tax returns should have been
filed jointly, and therefore that return should be amended and filed jointly
based upon the parties’ marital status and apparent agreement at that time.
Finally, with regard to attorney fees, the court finds that this litigation
would not have been made necessary but for the failure to properly and
truthfully disclose all of his assets and/or holdings to Ms. Kautz Berberich at
the time of the parties’ settlement agreement. Because of that, Ms. Kautz
Berberich was under the mistaken belief that there were likely other
substantial assets and/or accounts that existed at the time of the parties’ MDA
that were not properly disclosed to her nor to the court. The court believed
the same thing based upon the proof before the court in September of 2017.
Now, the court finds that in actuality this reasoning was based upon false or
misleading statements made by Mr. Kautz to Ms. Kautz Berberich in an
apparent attempt to antagonize her or for other reasons. Nevertheless, the
court finds that due to Mr. Kautz’s false statements and/or
misrepresentations, Ms. Kautz Berberich is entitled to her attorney fees and
costs in this matter. Otherwise, except as set out herein, the MDA is
reinstated except as amended herein.
In July 2018, Wife filed a motion to alter or amend. In February 2019, the Trial
Court entered an order denying Wife’s motion. In its order, the Trial Court stated:
In this court’s order of June 25, 2018, the court noted that with regard to the
BB&T and the Northern Trust Company accounts, the account created at the
time of the separation was in fact closed upon the parties’ reconciliation later
that same year. The court found that all of the monies left in that account at
that time were then deposited back into the parties’ joint UBS account. Based
upon this, the court finds that Ms. Berberich had full disclosure of all of Mr.
Kautz’s financial assets, even though the court understands, based upon Mr.
Kautz’s statements regarding his other various accounts and assets, why Ms.
Berberich believed that she did not have full disclosure. After having
considered all of the evidence that Ms. Berberich offered to the court in this
court’s re-hearing, after having given her the opportunity to present any and
all evidence that she had pertaining to all of the parties’ marital assets,
including but not limited to, the IRA with Morgan Stanley, as well as any JP
Morgan Chase accounts, UBS accounts and BB&T accounts, the court finds
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that there has been no evidence presented to the court that Ms. Berberich did
not have knowledge of all of the assets as well as knowledge of the extent of
all of Mr. Kautz’s accounts and assets.
After a further, thorough review of all the evidence before the court
in this matter, the court respectfully denies the motion to alter or amend, with
the exception that the court finds, subject to the mandates of it’s order, that
the end result of the MDA that the court reinstated was, and is, a fair and
equitable division of the parties’ marital assets. The court finds that there are
no further undisclosed financial accounts of Mr. Kautz that Ms. Berberich
has offered this court any proof or evidence of. The court finds that the
division of assets contained in the reinstated marital dissolution agreement
(MDA) is an equitable division pursuant to T.C.A. §36-4-121. Otherwise,
this court respectfully denies the petitioner’s motion to alter or amend, and
in all respects reaffirms it’s previous order. This is a final order.
Due to an issue with service, the February 2019 order was re-entered as a final order in
May 2019. Wife timely appealed from that order. The Trial Court also entered an award
of attorney’s fees and discretionary costs to Wife in the amount of $15,518.25.
Discussion
We restate and consolidate Wife’s three issues on appeal into the following two
dispositive issues: 1) whether the Trial Court erred in reinstating the MDA, as amended,
despite having found earlier that Husband fraudulently and intentionally failed to disclose
all of his financial assets; and, 2) whether the Trial Court erred in reinstating the MDA
when it resulted in an inherently inequitable division of the marital estate. In their briefs’
conclusions, both parties attempt to raise the issue of whether they should be granted an
award of attorney’s fees.
Our review is de novo upon the record, accompanied by a presumption of
correctness of the findings of fact of the trial court, unless the preponderance of the
evidence is otherwise. Tenn. R. App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn.
2001). A trial court’s conclusions of law are subject to a de novo review with no
presumption of correctness. S. Constructors, Inc. v. Loudon County Bd. of Educ., 58
S.W.3d 706, 710 (Tenn. 2001). Regarding witness credibility, our Supreme Court has
stated:
When it comes to live, in-court witnesses, appellate courts should
afford trial courts considerable deference when reviewing issues that hinge
on the witnesses’ credibility because trial courts are “uniquely positioned to
observe the demeanor and conduct of witnesses.” State v. Binette, 33 S.W.3d
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215, 217 (Tenn. 2000). “[A]ppellate courts will not re-evaluate a trial judge’s
assessment of witness credibility absent clear and convincing evidence to the
contrary.” Wells v. Tennessee Bd. of Regents, 9 S.W.3d 779, 783 (Tenn.
1999); see also Hughes v. Metro. Gov’t of Nashville & Davidson Cnty., 340
S.W.3d 352, 360 (Tenn. 2011). In order for evidence to be clear and
convincing, it must eliminate any “serious or substantial doubt about the
correctness of the conclusions drawn from the evidence.” State v. Sexton,
368 S.W.3d 371, 404 (Tenn. 2012) (quoting Grindstaff v. State, 297 S.W.3d
208, 221 (Tenn. 2009)). Whether the evidence is clear and convincing is a
question of law that appellate courts review de novo without a presumption
of correctness. Reid ex rel. Martiniano v. State, 396 S.W.3d 478, 515 (Tenn.
2013), (citing In re Bernard T., 319 S.W.3d 586, 596-97 (Tenn. 2010)), cert.
denied, ––– U.S. ––––, 134 S.Ct. 224, 187 L.Ed.2d 167 (2013).
Kelly v. Kelly, 445 S.W.3d 685, 692-93 (Tenn. 2014).
We first address whether the Trial Court erred in reinstating the MDA, as amended,
despite having found earlier that Husband fraudulently and intentionally failed to disclose
all of his financial assets. In particular, Wife states that the Trial Court failed to account
for $600,000 in marital retirement accounts for which there was no specific provision in
the MDA, the result being a highly inequitable division of marital assets. According to the
Statement of Evidence, Husband testified among other things at the April 2018 hearing that
Wife was fully aware of the marital assets at the time the MDA was negotiated. This
implicates whether Husband’s testimony was credible, and we extend strong deference to
a trial court’s determination of witness credibility. Wife argues, however, that since the
Trial Court did not make any specific credibility determination, its conclusion is not
entitled to any deference on that basis. It certainly is preferable for trial courts to make
explicit credibility determinations, lest there be any ambiguity. Nevertheless, from time to
time, this Court has acknowledged implicit credibility determinations. See, e.g., In re H.S.,
No. M2019-00808-COA-R3-PT, 2020 WL 1428777, at *9 (Tenn. Ct. App. Mar. 20, 2020),
no appl. perm. appeal filed; In re Wyatt S., No. E2012-00539-COA-R3-JV, 2012 WL
5482215, at *9 (Tenn. Ct. App. Nov. 13, 2012), no appl. perm. appeal filed; Taylor v.
McKinnie, No. W2007-01468-COA-R3-JV, 2008 WL 2971767, at *4 (Tenn. Ct. App. Aug.
5, 2008), no appl. perm. appeal filed. To illustrate, if party (A) testified to (X), and party
(B) testified to contrasting account (Y), and the trial court’s order reflects that it believed
(Y) to be the case, then one can discern that the trial court credited party (B)’s testimony
rather than party (A)’s even if the court failed to make an explicit credibility determination.
Here, the Trial Court implicitly credited Husband’s testimony at the April 2018 hearing
notwithstanding its finding that Husband goaded Wife into believing he concealed certain
valuable assets. In any event, in view of the outcome, the Trial Court plainly did not credit
Wife’s testimony. We will not overturn a trial court’s credibility determination—be it
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implicit or explicit—absent clear and convincing evidence to the contrary. We find no
such clear and convincing evidence in this record.
Beyond the matter of the marital retirement accounts, the Trial Court found further
that Husband’s lottery winnings were of a trivial amount and his real estate partnership
actually had a negative value. The Trial Court also found “that there has been no evidence
presented to the court that Ms. Berberich did not have knowledge of all of the assets as
well as knowledge of the extent of all of Mr. Kautz’s accounts and assets.” The evidence
does not preponderate against the Trial Court’s factual findings, and we discern no
reversible error on this issue.
We next address whether the Trial Court erred in reinstating the MDA when it
resulted in an inherently inequitable division of the marital estate. Wife cites to Tenn. Code
Ann. § 36-4-103(b), which pertains to divorces granted on the ground of irreconcilable
differences such as the divorce of this case:
(b) No divorce shall be granted on the ground of irreconcilable differences
unless the court affirmatively finds in its decree that the parties have made
adequate and sufficient provision by written agreement for the custody and
maintenance of any children of that marriage and for the equitable settlement
of any property rights between the parties. If the court does not affirmatively
find that the agreement is sufficient or equitable, the cause shall be continued
by the court to allow further disposition by the petitioner. If both parties are
present at the hearing, they may, at that time, ratify any amendments the court
may have to the agreement. The amended agreement shall then become a
part of the decree. The agreement shall be incorporated in the decree or
incorporated by reference, and such decree may be modified as other decrees
for divorce.
Tenn. Code Ann. § 36-4-103(b) (2017). According to Wife, the Trial Court had an
obligation to ensure that the division of marital assets in the MDA was equitable. Wife
asserts, and Husband does not dispute on appeal, that the MDA resulted in a roughly 82/18
division of marital assets in favor of Husband. In its order denying Wife’s motion to alter
or amend, the Trial Court explicitly found that the MDA, as amended, represented a fair
and equitable division of property. However, more to the point, this current round of post-
divorce litigation with these parties stemmed from Wife’s Rule 60.02 petition alleging
failure to disclose on Husband’s part. The success of Wife’s Rule 60.02 petition to set
aside the MDA years after entry of the final decree of divorce hinged not upon whether it
was an equitable division but could she prove, ultimately, that she lacked the benefit of full
disclosure when the MDA was executed. Having failed to prove that, Wife is left to argue
that the MDA was extremely unfair to her. Wife is seeking, long after the divorce was
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final, an agreement more favorable to her (at the April 2018 hearing, Wife requested a
60/40 division of assets in her favor) than the one she freely and knowledgably entered into
with the aid of counsel in 2012 (which apparently resulted in an 82/18 division in favor of
Husband)—a “do-over,” if one will. That is not a proper basis for Rule 60.02 relief. See
Higdon v. Higdon, No. M2019-02281-COA-R3-CV, 2020 WL 6336151, at *7 (Tenn. Ct.
App. Oct. 29, 2020), no appl. perm. appeal filed (“The parties agreed to a settlement, and
it was duly entered. We decline Wife’s request to re-open via a Rule 60.02 motion the
division of the marital estate on the basis of alleged inequitableness.”). We discern no
reversible error in the Trial Court’s declining to order a new division of the marital estate.
The final matter we address is that of attorney’s fees. The Trial Court awarded Wife
her attorney’s fees below on grounds that Husband’s misleading statements to Wife
sparked this litigation. On appeal, both parties request an award of attorney’s fees. Neither
party identifies this request as a distinct issue; they simply ask for attorney’s fees in their
brief’s conclusion almost as if in passing. “Courts have consistently held that issues must
be included in the Statement of Issues Presented for Review required by Tennessee Rules
of Appellate Procedure 27(a)(4). An issue not included is not properly before the Court of
Appeals.” Hawkins v. Hart, 86 S.W.3d 522, 531 (Tenn. Ct. App. 2001). This would-be
issue is waived. We decline to grant an award of attorney’s fees to either party. The
judgment of the Trial Court is affirmed in all respects.
Conclusion
The judgment of the Trial Court is affirmed, and this cause is remanded to the Trial
Court for collection of the costs below. The costs on appeal are assessed against the
Appellant, Doris Diane Kautz Berberich, and her surety, if any.
s/ D. Michael Swiney ______
D. MICHAEL SWINEY, CHIEF JUDGE
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