Mary Johnson v. Luther Johnson

• Court: Court of Appeals of Tennessee
• Decided: July 30, 1997
• Docket: 02A01-9609-CH-00210
• Status: Published

Opinion

IN THE COURT OF APPEALS OF TENNESSEE WESTERN SECTION AT JACKSON ______________________________________________________________________________

MARY HELEN PIERSON (JOHNSON) Gibson Chancery No. H-3287 C.A. No. 02A01-9609-CH-00210 Plaintiff, Hon. George R. Ellis, Chancellor v.

LUTHER WILLIAM JOHNSON, FILED Defendant. July 30, 1997

SAM WATRIDGE, Humboldt, Attorney for Plaintiff. Crowson, Jr. Cecil Appellate C ourt Clerk MITCH TOLLISON, Hawks & Tollison, Humboldt, Attorney for Defendant.

DISMISSED AND REMANDED

Opinion filed: ______________________________________________________________________________

MEMORANDUM OPINION1

TOMLIN, Sr. J.

Mary Helen Johnson (hereafter “W ife”) filed suit for divorce in the Chancery

Court of Gibson County against Luther William Johnson (hereafter “Husband”) seeking

a divorce on the grounds of irreconcilable differences, along with division of marital

property, child custody, child support, etc. . . . Husband filed a counter-complaint for

divorce on the grounds of adultery, inappropriate marital conduct and irreconcilable

differences. The chancellor entered an Interim Decree of Divorce on October 23, 1995,

which granted a divorce to both parties upon stipulation, at the tim e specifically

reserving “the issues of property rights, child custody, and paternity issues” until a

hearing in early January, 1996. These issues were reserved for the Juvenile Court of

Gibson County, which was deemed to have proper jurisdiction over such issues. The

interim decree of divorce also postponed any decision as to the division of marital

property.

1 Rule 10(b) (Court of Appeals). MEMORANDUM OPINION. 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 When a case is decided by memorandum opinion it shall be designated “MEMORANDUM OPINION,” shall not be published, and shall not be cited or relied on for any reason in a subsequent unrelated case. On Decem ber 14, 1995, Husband filed a motion to continue the final hearing set

for January 3, 1996 on the grounds that he intended to appeal the decision of the Gibson

County Juvenile Court relative to child support. W hile there is no order in the record

pertaining to the Husband’s motion to continue, it appears that the motion was denied

as there w as a hearing held on January 3, 1996.

On January 5, 1996, Wife filed a Motion to Specify Property to be Sold at Public

Sale. In this motion W ife acknow ledged that on January 3, 1996, the trial court

“ordered the sale of all marital property at a hearing held on January 3, 1995, including

the home, Aerostar van and other personal property.” Husband thereafter filed a

Response to Plaintiff’s Motion to Specify Property to be Sold at Public Sale.

On February 23, 1996, the chancellor entered a Final Decree of Divorce, which

ordered the sale of certain marital assets for the purpose of paying debts. On M arch 18,

1996, the trial court entered an order denying Wife’s Motion to Specify Marital

Property to be Sold. On M arch 26, 1996, the chancellor entered an order dismissing

Husband’s M otion for Ruling on Paternity after having been w ithdrawn by Husband.

In the same order, the trial court denied W ife’s Motion for Costs and Attorney Fees.

On April 24, 1996, Wife filed her Notice of Appeal and Cost Bond, although in her

notice of appeal she did not designate the judgm ent from which she w as appealing.

From a review of this record, it appears that the Final Decree of Divorce entered

on February 23, 1996, incorporated by reference the findings in the Interim D ecree of

Divorce. It also divided the marital property and aw arded Wife a credit of $5,219.24 in

the marital property.

It appears to this court that the decree of the chancellor that brought finality to

the proceedings was that entered on February 23, 1996. Therefore Wife’s Notice of

Appeal filed on April 24, 1996 was filed beyond the thirty (30) day time period set

forth in T.R.A.P. 4(a). We also note that Wife failed to file any motion for relief

pursuant to Rule 60.02 T.R.C.P..

In light of the fact that Wife failed to timely file her notice of appeal we have no

jurisdiction on the issues raised therein. A ccordingly, the appeal must be dismissed.

In light of the clarity of these circumstances, we are of the opinion that

2 Husband’s request for costs and attorney fees incurred by him in connection with this

appeal is well taken. Therefore, we award these costs and expenses pursuant to T.C.A.

§ 27-1-122. In connection therew ith, this matter will be remanded to the Chancery

Court of Gibson County for a hearing in that court to ascertain the nature and amount of

costs and attorney fees to be awarded to Husband.

Costs in this cause on appeal are taxed to W ife, for which execution m ay issue if

necessary.

________________________________________ TOMLIN, Sr. J.

________________________________________ CRAWFORD, P. J., W.S. (CONCURS)

________________________________________ HIGHERS, J. (CONCURS)