Caruthers v. Caruthers

• Court: Court of Appeals of Tennessee
• Decided: October 30, 1998
• Docket: 03A01-9712-PB-00539
• Status: Published

Opinion

IN THE COURT OF APPEALS AT KNOXVILLE

FILED October 30, 1998 JOSEPH R. CARUTHERS, ) CUMBERLAND PROBATE AND FAMILY ) COURT Cecil Crowson, Jr. ) C.A. NO. 03A01-9712-PB-00539 ourt Clerk Appellate C Plaintiff-Appellee, ) ) vs. ) ) HON. JAMES A. BEAN ) JUDGE ) DIANE L. CARUTHERS, ) ) Defendant-Appellant ) AFFIRMED AND REMANDED

M. JANE POWERS, The Powers Law Firm, Crossville, for Appellant.

SHARON SERRA, Crossville, for Appellee.

OPINION

McMurray, J.

This appeal is from a judgment in a divorce action heard in

the Probate and Family Court of Cumberland County. The appellant

challenges the trial court’s division of the marital estate, the

adequacy of her hearing before the court, and the trial court’s

award of $5,000.00 to the appellee for improvements to the

appellant’s separate property. We affirm the judgment of the trial

court. Before the trial which resulted in the judgment giving rise to

this appeal, the court entered a pretrial order pursuant to Rule

16.05, Tennessee Rules of Civil Procedure.1 The pretrial order

provides as follows:

Upon announcement of counsel for the parties that all interested persons have participated in a mediation session and that certain issues were resolved, with only one issue remaining unresolved. Therefore, it is hereby

ORDERED, ADJUDGED and DECREED, that the parties have resolved to stipulate grounds for divorce, pursuant to T.C.A. § 36-4-129; that there were no children born to this marriage; and that the parties have divided and distributed all separate and marital property. Having mediated and resolved these issues, this matter is set for final hearing on May 30, 1997, at which time the sole issue to be litigated is the plaintiff's claim against the defendant for $5,000.00 for the costs of improvements made to defendant's separate property.

ENTER this 6th day of May, 1997.

In accordance with the provisions of the pretrial order, a

hearing limited to the sole issue reserved for trial in the

pretrial order was held. The court resolved the issue in favor of

the plaintiff and entered judgment accordingly. Defendant now

appeals, presenting the following issues for our consideration:

A. The division of marital property by the trial court was not equitable and is contrary to the weight of the evidence introduced at trial.

B. The parties were not afforded a full and complete trial due to the time constraints imposed by the trial court as appellant was precluded from pre- senting full and adequate proof at the trial.

1 The pretrial order was approved for entry by the attorneys for both parties.

2 C. The trial court reached its conclusion in this cause concerning the division of the marital pro- perty based upon inadequate proof.

D. The trial court's award of $5,000.00 to the appel- lee for improvements he purportedly made to the appellant's separate property is without basis in law or the evidence presented at trial and is precluded by the statute of frauds.

The framing of the issues suggests that the appellant does not

grasp the significance and effect or purpose of a pretrial order.

Rule 16.05 provides as follows:

16.05. Pretrial Orders. — After any conference held pursuant to this rule, an order shall be entered reciting the action taken. This order shall control the subse- quent course of action unless modified by a subsequent order. The order following a pretrial conference shall be modified only for good cause shown. (Emphasis added.)

A pretrial order for all practical purposes supplants the

pleadings regarding the issues to be tried. "The parties are

bound by the issues reserved in the pretrial order and may not

later inject a new issue except in exceptional cases ... . ... If

defendant's counsel had desired to present issues at the trial

which were not contained in the pretrial order, he should have

asked for an amendment to the pretrial order." K a t h r y n N e u s p i c k l e

a n d L a r r y D . N e u s p i c k l e v . T h e C i t y o f K n o x v i l l e , T e n n e s s e e , 4 8

F . R . D . 4 4 1 ( 1 9 6 9 ) .

3 Three things are worthy of note. First, Rule 16 of the

Tennessee Rules of Civil Procedure, as applied here, basically

follows the Federal Rules. Second, this is not such an exceptional

case as to require the trial court to allow issues not contained in

the pretrial order to be addressed. Third, the attorney for the

appellant in this case made no effort to have the pretrial order

amended. The pretrial order is binding.

Further Rule 36(a), Tennessee Rules of Appellate Procedure

provides in pertinent part that "[n]othing in this rule shall be

construed as requiring relief be granted to a party responsible for

an error or who failed to take whatever action was reasonably

available to prevent or nullify the harmful effect of an error."

We believe that this principle is also applicable to this case.

Assuming for purposes of discussion only, and for no other reason,

that the trial court committed error, the appellant participated in

the acts which led the court into limiting the issues and then took

no action whatever to have the pretrial order amended.

As to the last issue, the evidence does not preponderate

against the findings and judgment of the trial court. Further, we

find no basis for the application of the statute of frauds.

As to the claim that appellant was not afforded a full and

complete trial due to the time constraints imposed by the trial

court, we find this issue to be without merit. No objection was

4 raised in the trial court nor was an offer of proof made or

permission requested to do so.

Furthermore, the appellant's challenge to the sufficiency of

her hearing before the trial court is waived for failure to raise

this issue at trial and for failure to cite any authority for her

argument or make reference to the record for facts relied upon.

See Court of Appeals Rule 6 and Tennessee Rules of Appellate

Procedure, Rule 27(a)(7).

The appellee has asked that we find this appeal to be

frivolous pursuant to the provisions of T.C.A. § 27-1-122. Upon

consideration, we are of the opinion that while it is questionable

as to whether appellant's appeal is sufficiently meritorious to

avert sanctions for a frivolous appeal, we, in our discretion,

decline to impose sanctions.

We affirm the judgment of the trial court in all respects.

Costs are assessed to the appellant and this case is remanded to

the trial court for such other and further action as may be

necessary to carry out the judgment of the court.

_______________________________ Don T. McMurray, Judge

CONCUR:

___________________________________ Houston M. Goddard, Presiding Judge

5 ___________________________________ Herschel P. Franks, Judge

6 IN THE COURT OF APPEALS AT KNOXVILLE

JOSEPH R. CARUTHERS, ) CUMBERLAND PROBATE AND FAMILY ) COURT ) C.A. NO. 03A01-9712-PB-00539 Plaintiff-Appellee, ) ) vs. ) ) HON. JAMES A. BEAN ) JUDGE ) DIANE L. CARUTHERS, ) ) Defendant-Appellant ) AFFIRMED AND REMANDED

JUDGMENT

This appeal came on to be heard upon the record from the

Probate and Family Court for Cumberland County, briefs and argument

of counsel. Upon consideration thereof, this Court is of opinion

that there was no reversible error in the trial court.

Costs are assessed to the appellant and this case is remanded to

PER CURIAM