Sherita Michelle Polk v. Frank Edward Polk

07/16/2019
IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
June 18, 2019 Session
SHERITA MICHELLE POLK v. FRANK EDWARD POLK
Appeal from the Chancery Court for Madison County
No. 71535 James F. Butler, Chancellor
___________________________________
No. W2018-02052-COA-R3-CV
___________________________________
This appeal arises from a divorce between parties with no minor children. The husband
appealed raising numerous issues related to property division. He also challenges the
trial court’s denial of his request for alimony. The appellate record contains no transcript
or statement of evidence that complies with Rule 24 of the Tennessee Rules of Appellate
Procedure. Further the husband’s brief is woefully deficient. Because of the husband’s
failure to comply with the Tennessee Rules of Appellate Procedure and the Rules of this
Court, there is no basis upon which to conclude that the evidence preponderates against
the findings of the chancery court and the rulings based thereon. We affirm the judgment
of the chancery court and remand the case for further proceedings consistent with this
opinion.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
Affirmed and Remanded
CARMA D. MCGEE, J., delivered the opinion of the court, in which J. STEVEN STAFFORD,
P.J., W.S., and THOMAS R. FRIERSON, II, J., joined.
Frank Edward Polk, Jackson, Tennessee, Pro Se.
Mitchell G. Tollison, Jackson, Tennessee, for the appellee, Sherita Michelle Polk.
MEMORANDUM OPINION1
1
Rule 10 of the Rules of the Court of Appeals provides as follows:
I. FACTS & PROCEDURAL HISTORY
Frank Edward Polk (“Husband”) and Sherita Michelle Polk (“Wife”) were married
in 1992 and have no minor children. In 2014, Wife filed for divorce. Husband timely
filed an answer and counter-complaint.
After a period of discovery, several pre-trial motions, and an unsuccessful
mediation, the court held a four-day bench trial in 2017 and 2018. Each party was
represented by an attorney throughout the trial. The trial court issued a letter ruling and
filed the same with the clerk on September 11, 2018. An order of absolute divorce was
entered on October 15, 2018. The trial court declared the parties divorced pursuant to
Tennessee Code Annotated section 36-4-129. The court attached to the order a
spreadsheet which detailed the division of assets and debts for each party in a manner the
court deemed equitable.
Husband filed several post-trial motions, including a motion to contest the terms
of the order of absolute divorce, and he raises similar issues in this appeal. Wife filed a
motion for clarification of issues. The trial court heard the motions on November 5,
2018, and took the matter under advisement. The court issued separate letter rulings on
November 16, 2018, addressing all issues raised by Husband and Wife, except for
Husband’s request to “correct the address on the property division worksheet to read
244/246 Airways Blvd.” The court indicated it would reconsider the alimony issues in a
separate order. The letter rulings were memorialized in orders entered on December 10,
2018. A separate order on alimony was filed with the trial court on March 1, 2019, which
terminated the alimony award to Wife contained in the order of absolute divorce.
Husband timely filed a notice of appeal. Wife does not present any issues on appeal.
II. ISSUES PRESENTED
Husband presents the following issues, as quoted from his brief:
1. Whether the trial court’s amended final order on alimony filed March 1, 2019
reflects equitable consideration to the Appellant’s economic disadvantage that
would result from a failure to award him additional income producing marital
property and/or alimony for spousal support and relief.
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.
2
2. Whether the trial court can seize and withhold Appellant’s home insurance
proceeds and if $7,246.46 of Appellant’s home insurance proceeds, which was
awarded to Appellee to satisfy her request for attorney fees, be amended and
awarded to Appellant for recovering damages to the insured property.
2a. Whether the trial court may order Appellant to pay for a service that the
court asked Appellee’s attorney to do.
3. Is Appellant entitled to have an equitable share of Appellee’s IRA?
4. Whether Appellant should be awarded or credited for paying deficiency balance
on foreclosed marital home.
5. Whether Appellant is entitled to relief in the form of a reimbursement award for
the seizure of his rents by Appellee before the resolution of all actions, proper
notice and transfer of deeds.
6. Whether the marital debt, especially non-evidenced debt, should be removed from
the work sheet attached to the absolute order of divorce filed October 15, 2018.
7. Should the address for Appellant’s awarded marital property be corrected on the
work sheet attached to the absolute order of divorce filed October 15, 2018?
III. DISCUSSION
A. Transcript or Statement of Evidence
As an initial matter, we note that Husband proceeds pro se in this appeal.2 It is
well settled that pro se litigants must comply with the same standards to which lawyers
must adhere. Jackson v. Lanphere, No. M2010-01401-COA-R3-CV, 2011 WL 3566978,
at *3 (Tenn. Ct. App. Aug. 12, 2011). As explained by this Court:
Parties who decide to represent themselves are entitled to fair and equal
treatment by the courts. The courts should take into account that many pro
se litigants have no legal training and little familiarity with the judicial
system. However, the courts must also be mindful of the boundary between
fairness to a pro se litigant and unfairness to the pro se litigant’s adversary.
2
Husband was represented by counsel when he filed his answer and counter-complaint; however,
his attorney withdrew on February 8, 2016. New counsel filed a notice of appearance on March 7, 2016,
but subsequently withdrew on October 5, 2018, at the request of Husband.
3
Thus, the courts must not excuse pro se litigants from complying with the
same substantive and procedural rules that represented parties are expected
to observe.
Jackson, 2011 WL 3566978, at *3 (quoting Hessmer v. Hessmer, 138 S.W.3d 901, 903
(Tenn. Ct. App. 2003).
With the foregoing in mind, we turn to address the issues of Husband’s appeal.
Wife argues that Husband has waived all issues and his appeal should be dismissed for
failure to comply with the Tennessee Rules of Appellate Procedure. Our review of the
record identifies several deficiencies.
It is important to note that in order for us to conduct a meaningful review we have
to be able to review the specific findings of the trial court against the evidence. Kathryne
B.F. v. Michael B., No. W2013-01757-COA-R3-CV, 2014 WL 992110, at *7 (Tenn. Ct.
App. Mar. 13, 2014). The evidence we review is preserved in the record. Tennessee
Rule of Appellate Procedure 24 sets forth the requirements for the content and
preparation of the record. In reference to Rule 24 we have explained that “[t]he burden is
. . . 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.” Coakley v. Daniels, 840 S.W.2d 367, 370
(Tenn. Ct. App. 1992) (citing Capital City Bank v. Baker, 442 S.W.2d 259, 266 (Tenn.
Ct. App. 1969)).
If no transcript is available, Tennessee Rule of Appellate Procedure 24(c)
provides, in relevant part:
If no stenographic report, substantially verbatim recital or transcript of the
evidence or proceedings is available . . . the appellant shall prepare a
statement of the evidence or proceedings from the best available means,
including the appellant’s recollection. The statement should convey a
fair, accurate and complete account of what transpired with respect to
those issues that are the bases of appeal. The statement, certified by the
appellant . . . as an accurate account of the proceedings, shall be filed
with the clerk of the trial court within 60 days after filing the notice of
appeal.
Tenn. R. App. P. 24(c) (emphasis added).
Rule 24(f) sets out the appropriate steps for approval of the transcript or statement
of the evidence:
4
The trial judge shall approve the transcript or statement of the evidence and
shall authenticate the exhibits as soon as practicable after the filing thereof
or after the expiration of the 15-day period for objections by appellee, as
the case may be, but in all events within 30 days after the expiration of said
period for filing objections. Otherwise the transcript or statement of the
evidence and the exhibits shall be deemed to have been approved and shall
be so considered by the appellate court, except in cases where such
approval did not occur by reason of the death or inability to act of the trial
judge.
Id.
Here we have no transcript or helpful statement of the evidence reflecting what
occurred at the four-day trial.3 The purported statement of evidence filed by Husband,
which we have copied verbatim, states:
Comes now the Defendant, Frank Edward Polk, to serve notice that trial
court has no transcript and Defendent [sic] hereby provides this Statement
of Evidence for appeals case# w2018-02052-coa-r3-cv [sic]:
The issues being appealed went and continues before the Chancery Court of
Madison County, Tennessee wherein Plaintiff, Sherita Michelle Polk, filed
for divorce on February 27, 2014 and Defendant filed an answer and
counter complaint for divorce on March 11, 2014. An order for the hearing
on March 11, 2014 was entered on October 14, 2014. The court facilitated
the plaintiff attorney’s motions to prolong the divorce proceedings. At The
final hearing on May 21, 2018 a divorce was granted. Rulings for the
divorce were entered September 11, 2018 and the final decree entered
October 15, 2018. A post divorce hearing on November 5, 2018 was
addressed by letters containing modified and clarified rulings dated
November 16, 2018. The modifications were entrusted to the plaintiffs
attorney to submit as an order to be signed by the judge. I filed responses to
the letters on November 26, 2018 before they were submitted as orders to
be signed.
All documents at the trial court pertaining to the divorce and dissolution of
the marriage are subject to providing evidence.
3
Husband filed a “Notice of the Filing of Transcript and Statement of Evidence” on November
27, 2018. The record does not reveal whether the proceedings before the chancery court which are the
subject of this appeal were recorded by a court reporter. See Tenn. R. App. 24(b).
5
I am also submitting a copy of the following:
Exhibit la-Structural Damage Claim Policy provides evidence of the
estimated damage to property awarded defendant
Exhibit 2a-email from BancorpSouth shows evidence of defendant’s
submission of documents and effort to retain property at 310 Hatton
Exhibit 3a-Letter to Plaintiffs Attorney concerning submission of
documents for 310 Hatton loan shows evidence of defendant’s effort to
inform plaintiff to submit documents to extend balloon loan on property
Exhibit 4a-Tax payment receipt with correct address for property awarded
defendant.
The statement is signed by Husband and affirms under oath that he has “read the
foregoing Motion, and that the information contained ther[e]in is true and correct . . . .”
Given the clear inadequacy of the statement of evidence, we are left to believe that
it was never reviewed by the chancery court. We considered a similar situation in
Womble v. Womble, No. M2011-00605-COA-R3-CV, 2012 WL 5993735 (Tenn. Ct. App.
Nov. 30, 2012) stating:
Even assuming, without deciding that the Statement of the Evidence must
be “deemed approved” by the trial court’s inaction under Rule 24, we will
not consider it as a true and accurate description of what transpired in the
trial court if it is deficient on its face. Rule 24 provides expressly that the
statement of the evidence “should convey a fair, accurate and complete
account of what transpired with respect to those issues that are the bases of
appeal.” Tenn. R. App. P. 24(c). The rule contemplates that any disputes
over the accuracy of a proposed statement of the evidence will be resolved
by the trial court. This is for good reason, of course; the appellate court
cannot know what took place at trial apart from what is in the appellate
record. Where, however, the trial court has not taken action with respect to
a proposed statement of the evidence, this Court cannot accept the proposed
statement of the evidence blindly where a review of the rest of the record
shows plainly that it does not “convey a fair, accurate and complete account
of what transpired” in the trial court below.
Womble, 2012 WL 5993735, at *2.
6
In this case we only have the technical record, consisting of the pleadings and the
trial court’s order. We are left with nothing that would indicate what evidence was
actually presented at the trial. “This court cannot review the facts de novo without an
appellate record containing the facts, and therefore, we must assume that the record, had
it been preserved, would have contained sufficient evidence to support the trial court’s
factual findings.” Sherrod v. Wix, 849 S.W.2d 780, 783 (Tenn. Ct. App. 1992).
In further emphasizing the necessity of a complete record, the Tennessee Supreme
Court has explained,
Where the record is incomplete and does not contain a transcript of the
proceedings relevant to an issue presented for review, or portions of the
record upon which the party relies, an appellate court is precluded from
considering the issue. State v. Roberts, 755 S.W.2d 833, 836 (Tenn. Cr.
App. 1988). Absent the necessary relevant material in the record an
appellate court cannot consider the merits of an issue. See T.R.A.P. 24(b).
State v. Ballard, 855 S.W.2d 557, 560-61 (Tenn. 1993).
The lack of an adequate record hinders our ability to review the court’s factual
findings. See Tenn. R. App. P. 13(d). Without a transcript or a helpful statement of the
evidence, we have no choice but to presume that the evidence presented at trial was
sufficient to support the court’s judgment. See Coakley, 840 S.W.2d at 370; see also
Bishop v. Bishop, 939 S.W.2d 109, 110 (Tenn. Ct. App. 1996) (explaining that “[a]
partial evidentiary record would not exclude the possibility that other evidence tilted the
balance in favor of the [court’s] findings.”)
Because Husband failed to provide either a transcript of the evidence or a
statement of the evidence that complied with Rule 24 of the Tennessee Rules of
Appellate Procedure, there is no basis upon which to conclude that the evidence
preponderates against the findings of the chancery court and the rulings based thereon.
B. Appellate Brief Requirements
Husband’s failure to file a transcript or a complete statement of evidence is not the
only deficiency. Husband takes issue with the manner in which the trial court divided the
parties’ marital property. However, Husband’s brief does not contain a table, as required
by Rule 7 of the Rules of the Court of Appeals. This Rule provides, in relevant part:
(a) In any domestic relations appeal in which either party takes issue with
the classification of property or debt or with the manner in which the trial
court divided or allocated the marital property or debt, the brief of the party
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raising the issue shall contain, . . . a table in a form substantially similar to
the form attached hereto. This table shall list all property and debts
considered by the trial court, including: (1) all separate property, (2) all
marital property, and (3) all separate and marital debts.
(b) Each entry in the table must include a citation to the record where each
party’s evidence regarding the classification or valuation of the property or
debt can be found and a citation to the record where the trial court’s
decision regarding the classification, valuation, division, or allocation of the
property or debt can be found.
Tenn. R. Ct. App. 7.
This Court has repeatedly emphasized the importance of a Rule 7 table. Recently
in Jackson v. Jackson, No. M2018-00361-COA-R3-CV, 2018 WL 4896656 (Tenn. Ct.
App. October 9, 2018), we stated:
As we have explained in other cases involving the division of marital
assets, “‘in all cases where a party takes issue with the classification and
division of marital property, the party must include in its brief a chart
displaying the property values proposed by both parties, the value assigned
by the trial court, and the party to whom the trial court awarded the
property.’” Hopwood v. Hopwood, No. M2015-01010-COA-R3-CV, 2016
WL 3537467, at *6 (Tenn. Ct. App. June 23, 2016) (quoting Akard v.
Akard, No. E2013-00818-COA-R3-CV, 2014 WL 6640294, at *4 (Tenn.
Ct. App. Nov. 25, 2014)); see also Harden v. Harden, No. M2009-01302-
COA-R3-CV, 2010 WL 2612688, at *8 (Tenn. Ct. App. June 30, 2010);
Slaughter v. Slaughter, No. W2007-01488-COA-R3-CV, 2008 WL
1970491, at *2-3 (Tenn. Ct. App. May 8, 2008). Failing to comply with the
requirements of Rule 7 “results in waiver of ‘all issues relating to the rule’s
requirements.’” Hopwood, 2016 WL 3537467, at *6 (quoting Forbess v.
Forbess, 370 S.W.3d 347, 354 (Tenn. Ct. App. 2011)). As we noted in
Hopwood v. Hopwood, “[a]lthough we may suspend the requirements of
Rule 7 for ‘good cause,’ see Tenn. R. Ct. App. 1(b), we discern no such
cause to do so in this case.” Hopwood, 2016 WL 3537467, at *7.
Jackson, 2018 WL 4896656, at *7.4
4
In further explaining the necessity of the Rule 7 table, we have stated,
[I]t is essential that the parties comply with Rule 7 in order to aid this Court in reviewing
the trial court’s decision. The table required by Rule 7, allows this Court to easily and
8
Even if we were to excuse Husband’s failure to comply with Rule 7, we cannot
overlook Husband’s brief’s failure to substantially comply with Rule 27 of the Tennessee
Rules of Appellate Procedure. Rule 27, in relevant part, provides that the brief of the
appellant shall contain the following:
(6) A statement of facts, setting forth the facts relevant to the issues
presented for review with appropriate references to the record;
(7) An argument, which may be preceded by a summary of argument,
setting forth the contentions of the appellant with respect to the issues
presented, and the reasons therefor, including the reasons why the
contentions require appellate relief, with citations to the authorities and
appropriate references to the record (which may be quoted verbatim) relied
on. . . .
Tenn. R. App. 27(a).
Husband’s brief captions what he titles a statement of the facts. The statement is
merely a recitation of the procedural history of the case coupled with Husband’s
arguments regarding the alleged wrongdoings of the trial court. Further, Husband’s brief
fails to develop his arguments or cite relevant authority to support his positions as
required by Tenn. R. App. P. 27(a)(7). Husband does make reference to portions of
Tennessee Code Annotated that he deems relevant; he simply states the referenced code
section and provides no other explanations or authority. His meager references to
Tennessee Code Annotated are not sufficient to overcome the lack of citation to any other
authority. “Courts have routinely held that the failure to make appropriate references to
the record and to cite relevant authority in the argument section of the brief as required by
Rule 27(a)(7) constitutes a waiver of the issue.” Forbess, 370 S.W.3d at 355 (quoting
Bean v. Bean, 40 S.W.3d 52, 55–56 (Tenn. Ct. App. 2000)); see also Tellico Village
Property Owners Ass’n, Inc. v. Health Solutions, LLC, No. E2012-00101-COA-R3-CV,
2013 WL 362815, at *3 (Tenn. Ct. App. Jan. 30, 2013).
correctly determine the valuation and distribution of the marital estate as ordered by the
trial court. Further, the Rule 7 table, allows this Court to ascertain the contentions of each
party as to the correct valuations and proper distribution, as well as the evidence in the
record which the party believes supports its contention. Consequently, a table, in full
compliance with Rule 7, is vital as this Court must consider the entire distribution of
property in order to determine whether the trial court erred. Moreover, this Court is
under no duty to minutely search the record for evidence that the trial court’s valuations
may be incorrect or that the distribution may be improper.
Harden, 2010 WL 2612688, at *8 (citations omitted).
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The issues of property division and alimony are not unusual issues. There are
numerous cases, secondary sources and other authorities on the issues in Tennessee.
However, Husband failed to cite any of these authorities to support his arguments. We
again recognize Husband’s pro se status and this Court’s liberty to suspend the
requirements of the Rules in a given case for “good cause.” See Tenn. R. App. P. 2; Tenn.
R. Ct. App. 1(b). However, we find no such cause in the present case. In order for us to
conduct a meaningful review in this case we would have to construct the argument for
Husband, choosing the correct standard of review and citing relevant authority. We have
addressed this issue in Murray v. Miracle, 457 S.W.3d 399 (Tenn. Ct. App. 2014) stating,
We are not unmindful of Plaintiffs’ pro se status and have attempted to give
them the benefit of the doubt whenever possible. Nevertheless, we cannot
write Plaintiffs’ brief for them, and we are not able to create arguments or
issues where none otherwise are set forth. Likewise, we will not dig
through the record in an attempt to discover arguments or issues that
Plaintiffs may have made had they been represented by counsel. To do so
would place Defendants in a distinct and likely insurmountable and unfair
disadvantage as this Court would be acting as Plaintiffs’ attorney.
Id. at 402.
Additionally, Rule 6 of the Tennessee Rules of the Court of Appeals requires an
appellate brief to contain a written argument in regard to each issue on appeal, with a
statement of the alleged erroneous action of the trial court, as well as a specific reference
to the record where such action is recorded. The Rule further provides:
No complaint of or reliance upon action by the trial court will be
considered on appeal unless the argument contains a specific reference to
the page or pages of the record where such action is recorded. No assertion
of fact will be considered on appeal unless the argument contains a
reference to the page or pages of the record where evidence of such fact is
recorded.
Husband’s brief contains no such citations. Therefore, he has also failed to comply with
this Rule.
The Tennessee Supreme Court has held “that it will not find this Court in error for
not considering a case on its merits where the plaintiff did not comply with the rules of
this Court.” Bean, 40 S.W.3d at 54-55 (citing Crowe v. Birmingham & N.W. Ry. Co., 156
Tenn. 349, 1 S.W.2d 781 (1928)). Based upon Husband’s substantial non-compliance
with the Tennessee Rules of Appellate Procedure and the Rules of this Court we deem all
10
issues to be waived, except for Husband’s assertion that one parcel of property awarded
to him was incorrectly identified on the trial’s court’s property division sheet.
Husband and Wife agreed at oral argument that Husband was awarded a duplex
located on “Airways Blvd” and the house number was incorrectly identified on the trial
court’s property division sheet attached to the order of absolute divorce.5 Based upon
the concession of both parties, we remand this case to the trial court for the limited
purpose of correcting the record to accurately identify the property located on “Airways
Blvd.”
Lastly, Wife requested at oral argument and within the conclusion section of her
brief that she be awarded her attorney’s fees incurred on appeal. Wife did not identify a
request for attorney’s fees incurred on appeal as a distinct issue in her brief.
“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).
Exercising our discretion, we decline to award Wife her attorney’s fees incurred
on appeal. We consider this issue to be waived because it was not separately raised in the
statement of the issues section of her brief. See Rigsby v. Rigsby, No. E2014-02095-
COA-R3-CV, 2015 WL 7575075, at *7 (Tenn. Ct. App. Nov. 25, 2015) (“Because
Mother did not raise the issue of attorney’s fees on appeal in her statement of the issues,
we determine this issue to be waived.”)
IV. CONCLUSION
For the aforementioned reasons, the decision of the chancery court is affirmed and
remanded. Costs of this appeal are taxed to the appellant, Frank Edward Polk, for which
execution may issue if necessary.
_________________________________
CARMA D. MCGEE, JUDGE
5
The property division sheet attached to the order of absolute divorce entered on October 15,
2018, identifies the property as “245/246 Airways Blvd.” The remainder of the record identifies the
property as “244/246 Airways Blvd.”
11