Forlines v. Forlines

• Court: Court of Appeals of Tennessee
• Decided: September 24, 1997
• Docket: 01A01-9703-GS-00121
• Status: Published

Opinion

WILLIAM H. FORLINES, III, ) ) Plaintiff/Appellee, ) ) Appeal No. ) 01-A-01-9703-GS-00121 VS. ) ) Sumner General Sessions ) No. 2475-G PATRICIA A. FORLINES, )

Defendant/Appellant. ) ) FILED September 24, 1997

COURT OF APPEALS OF TENNESSEE Cecil W. Crowson MIDDLE SECTION AT NASHVILLE Appellate Court Clerk

APPEALED FROM THE GENERAL SESSIONS COURT OF SUMNER COUNTY AT GALLATIN, TENNESSEE

THE HONORABLE BARRY R. BROWN, JUDGE

MICHAEL W. EDWARDS 177 East Main Street Hendersonville, Tennessee 37075 Attorney for Plaintiff/Appellee

JAMES ROBIN McKINNEY, JR. Suite 103 214 Second Avenue North Nashville, Tennessee 37201 Attorney for Defendant/Appellant

AFFIRMED AND REMANDED

BEN H. CANTRELL, JUDGE

CONCUR: TODD, P.J., M.S. KOCH, J. MEMORANDUM OPINION1

The appellant has appealed a judgment of the General Sessions Court

of Sumner County granting her a divorce and enforcing a property settlement

agreement. On appeal she asserts that (1) there is no pleading in the record whereby

she sought a divorce and (2) that the property settlement agreement was not

enforceable.

Although the lower court held two separate hearings in which oral

testimony was taken -- one on the validity of the property settlement agreement and

another on the divorce -- the appellant has not filed a transcript of the evidence from

either hearing.

With respect to the pleadings, the record shows that the appellant filed

a complaint for divorce in the Circuit Court of Sumner County on June 14, 1995, which

the husband opposed on the ground of improper venue (the husband was a resident

of Marshall County). The circuit court dismissed the wife’s complaint and the husband

then filed this action in the General Sessions Court of Sumner County. When the wife

moved the circuit court to reconsider the order of dismissal, the court overruled the

motion but ordered that the file be transferred to the general sessions court to be

consolidated with the husband’s case. Although the wife’s original complaint from the

circuit court does not appear in the record on appeal, the wife and the husband each

filed answers to the respective complaints.

1 Rule 10(b) of the Rules of the Court of Appeals reads as follows:

The Court, with the concurrence of all judges participating in the case, may affirm, reverse or modify the actions of the trial court by mem orandum opinion when a form al opinion would have no pre cedentia l value. W hen a case is decided by mem orandum opinion it shall be designated “MEM ORAN DUM OPINION,” shall not be published, and shall not be cited or relied on for any reason in a subsequent unrelated case.

-2- It is, therefore, clear that the wife filed a complaint seeking a divorce, to

which the husband filed an answer. Although the wife’s complaint does not appear

in the appellate record, the lower court can hardly be faulted for granting her a divorce

under these circumstances.

The wife’s objections to the property settlement agreement are based

on allegations of fact, i.e., that the husband did not disclose all of his assets, and that

he obtained the wife’s signature by fraud, duress, and undue influence. The trial

judge held a separate hearing on these issues and declared the agreement to be

valid. Since the appellant has not preserved the evidence presented at the hearing,

we cannot reach the issues raised. See Sherrod v. Wix, 849 S.W.2d 780 (Tenn. App.

1992).

The appellee asserts that this is a frivolous appeal. We agree. See

Tenn. Code Ann. § 27-1-122. An appeal on factual issues without a transcript of the

evidence is a frivolous appeal. See McDonald v. Onoh, 772 S.W.2d 913 (Tenn. App.

1989).

The judgment of the lower court is affirmed and the cause is remanded

to the General Sessions Court of Sumner County for the enforcement of its judgment

and the assessment of damages for a frivolous appeal. Tax the costs on appeal to

the appellant.

________________________________ BEN H. CANTRELL, JUDGE CONCUR:

_______________________________ HENRY F. TODD, PRESIDING JUDGE MIDDLE SECTION

_______________________________ WILLIAM C. KOCH, JR., JUDGE

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