### IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON January 19, 2005 Se ssion RANDY ALA

N BARNES v. A

MY ROBERTSON

BARNES A Direct Appeal from the Circuit Court for Shelby County No. CT-003455-03 The Honorable George H. Brown, Judge

No. W2004-01426-COA-R3-CV - Filed Marc h 4, 2005

This is a di vor ce c ase . In contemplation of a divorce grounded on irreco ncilable

differe nces, Husband and Wi fe e ntered into a Marital Dissolution Agreement. Subsequently , Husband filed a complaint for divorce, and the complaint, inter alia , disavow ed the prior executed Marital Dissolution Agree

ment. The

divorce case pr oceede d to trial, and the trial court granted the divorce on the ground of inappropriate marital conduct a nd e nforced the Marita

l Dissolution Agre ement, dividing the marit

al prope rty and debt. Husband appeals. Because Husband-Appellant repudiated the Marital D issolution A greement prior

to the e ntry of the trial cour t’s Final Decree of Divorce, there was no agreement betwee n the part ies, and the Marital Dissolution Agreement should not have been enforced. We reverse a nd remand.
Tenn. R. App. P. 3; Ap peal as of Rig ht; Judgm ent of the C ircuit Co urt Reve rsed and Remanded W. F RANK C RAWFORD , P.J., W.S., delivered the opinion of the court, in which D AVID R. F ARMER , J. and H OLLY M. K IRBY , J., joined. William T. Winchester of Memphis for Appellant, Randy Alan B arnes Mitchell D. Moskovitz and Adam N. Cohen of Memphis for Appellee, Amy Robertson Barnes OPINION Randy Alan Barnes (“Plaintiff,” “Husband,” or “Ap pellant”) and Amy

Robertson Barnes (“Defendant,”“Wife,” or “Appellee) were ma rried on August 9, 1997. One child , Emily Michelle Barnes (d.o.b. 6/2/2000), was born to this marriage

. On or about June 4, 2003, the parties entered into a Marital Dissolution Ag reement (“M DA”), which Wife had obtained on the internet. Mr. Barnes receiv ed a copy

of the MDA approximately three or four weeks prior to the June 4, 2003 execution date. Neither party was represented by

counsel at the time of the execution of the MDA.-2-

The MDA provided, inter alia , for Mr. Barne s to pay child support and alimony, and for a division of th e m ar it al pr op er ty. OnJune 18, 2003, Mr. Barnes filed a “Complain

t for Abso lute Divor

ce” ag ainst Ms. B arnes. The Compla

int read s, in pert

inent par t, as follows: Plaintiff charg es that: 1. Irreconcilable

differences have arisen be tween the parties and Plaintiff is entitle d to an abs olute divorce from the Defendant on the grounds of irreconcilable differ ences. T.C.A. 36-4-101(14). 2. Defen dant h as been g uilty of inappr

opriate marital c onduct. T.C.A. 36-4-101(11). 3. Defendant has been guilty of adultery. T.C.A. 36- 4-101(3). * * * WHEREFORE, PREMIS ES CONSI DERED, PL

AIN TIF F PRAYS: * * * 6. That the Marital Dissolution Agreement and Permanent Parenting Plan previously executed by the Plaintiff be disavow ed and if filed, set aside. OnJuly 9, 2003, Ms. Barnes filed her “Answer t o Complaint for Absolute Divorce and Counter-Complaintfor Abso lu te Divorc e” (the “Answer”). Althoug h the Answer does not specific ally

menti on th e MDA, it do es den y that Mr. Barnes is ent itle d to t he reli ef sou gh t in his Complaint, inclu

ding para gra ph six t h ereof, see supra . Ms. Bar nes’ cou nter-c omplaint do es, however, pray

that the tr

ial cour t “equita bly divide, di stribute or assig n the mar

ital prope rty in accordance with T.C.A. §36-4-121.” Following discovery a

nd medi ation, on Febr

uary 21, 2004, M s. Barnes filed a “Motion to Enforce Marital D issolution A

greement.” Th

is Motion re ads, in re levant pa rt, as fo llows: 2. Wife alleges that such an agre ement is a valid and enforceab l e contract, and courts are restrained from disreg arding or annu lling same. Matthews v. Matthews , 148 S.W.2d 3, 11 (Tenn. App. 1940). 3. Husband has testified that the re are only

two (2) reasons why

he believes the MDA should not be enforced. (Deposition of Husband, pp. 49; 90-91) . The fir st reaso n assert ed by Husb and is that he was-3- under duress when he executed the agre ement (Deposition of Husband, p. 49). The second reason asserted by Husband was that he be lieves that Wife committed adultery afte r the agreemen

t wa s executed. (Deposition of Husband, p. 49). 4. At the t ime Husband executed said MDA, Husband’s emotional/psychologica

l well being was good, and Husband was not under th e c ar e o f a ny p syc ho lo gi st , p syc hiatr ist, or social worker, because Husband di d not deem same necessary . (Deposition of Husband, p. 34). Husband was employed full time as a Cert if ied Public Accountant at the time Husban d signed said MDA, and was fully capable of

transporting himself to an attorney’s of

fice to review the document prior to signing same. (Deposition of Husband, p. 33). 5. Husband has testif

ied that h is only support for the contention that he signed the MDA under duress is that Wife allegedly told Husband to sign the MDA, o

r Husban d would not

see the p arties’ child until a Courtmade her

bring th e child ba

ck. Neve rtheless , Husband a

dmits that Husband h

imself ha d hand-w ritten a Pe

rmanent Pa renting Plan whichthe

par tie s lik ewi se e xec ute d on

June 4, 20 03. Moreover, Husband filed a Complaint for

Absolute D ivorce j ust

two (2) weeks later, on June 18, 2003. Said Complaint makes no al legat ion whatsoever

concerning Wife’s allege d threat, nor does it allege that Husband was under any

type of duress when he executed the MDA. Based upon these factors, along with those set forth in Paragraph Four (4) hereinabove, Husband c annot subs tantiate his alleg ation of d

uress as a matter of law. 6. Wife further

submits that Husband’s second basis for rescission of the c ontract is wholly insufficient as a matter of law. Specifica lly , Husband asserts he learned that Wife al lege dly committed adultery after th e agre eme nt was executed. (Deposition of Husband, p. 49). Wife respec tfully

submits tha

t it has long bee n established that adultery is not a va

lid defe nse to the

enforc ement of

a contra ct. Williams v. Williams, 2 36 S.W. 926, 937 (Tenn. 1922). Nevertheless, Husband f

urther te stified th at prior

to the signing of the MDA, Hu sb an d h ad su sp ic io ns th at Wi fe wa s c om mi tt in g a du lt er y. (Deposition of Husband, p. 58). 7. Wife alleges that base d upon all o f the for egoing , there i s no basis, as a matter of law , to rescind the MDA. Wi fe thus a

lleges that this Honorab le Court should enforce the MDA in all res pects, a s a valid and binding contract made by and between the parties

. In that the-4- parties have heretofore entered into a Per manent Parenting Plan, which has been

filed with

this Honor

able Court, the only remaining issue for this Honorable Court to determine is grounds for divorce. A hearing before the trial cour t was held on M ay 5, 2004. At this hearing, Ms. Barnes testified that she had “engage d

in a relationship with another individual during the course of [the] marriage.”Mr. Barnes’ attorney argued that the parties’ conduct throug hout the litigation evinced the parties’ belief that the MDA was not to be enforce d. Specifically, Mr. B arnes asserts that the parties’ submission to mediation constituted a repudiation of the MDA; that the fact that the parties engaged in discovery

provides evidence that there was no meeting of the minds in the MDA. Mr. Barnes also argued that hewas under duress at the time he signed the MDA in that Ms. Barnes had allege dly threatened

to move away w

ith the child. Mr. Barnes further contendsthat Wife’s adultery should negate the MDA. OnMay 18, 2004, the trial cour tentered its “Order

on Motion to Enforce Marital Dissolution Agree ment.” Th

is Order reads, i n pertine nt part, a s follows: 1. This Honor

able Cour

t expressly

rejects the notio n t hat Plaintiff /Counter- Defend

ant, Randy Ba

rnes (hereinafter

“Husband”) was under duress at the time he executed the Marital Dissolution Agreement on June 4, 2003. 2. This Honorable Court expressly finds that adulter y is not a suita

ble defense to the enfor cementof the parties’ Marital Dissolution Agree ment. 3. Thi s H onorable Court expressly reje cts the notion that Wife’s request for and/or submissionto mediation constitutes a rescission or repudiation

by Wife of the Marital Dissolution Agreement executed by the parties on June 4, 2003. 4. Inthat this Honorable Court has found that Husband has no valid defense to t he enforcem ent of the

Marital D issolution A

greement, this Honorab le Court expressly finds that the Marital Dissolution Agreement

executed by the par

ties on June 4, 2003 is a v alid, enforceable contract.... Onthe same day, the

trial court entered a “Final Dec ree of Absol ute Divorce” (the “Final Decree”), granti

ng the p arties a

divorce on the g rounds of inappropriatemarital c onduct. B ecause the trial court

found the MDA to be a “valid, enforceable contract,” the issue of

marital assets and liabilities was resolved in accordance with the MDA.-5-

Mr. Barne s appeal s from the Final De cree and raises three issues for r eview which we perceive to constitute the single issue of whether the trial cou rt erred in enforcing the Mar ital Dissolutio n Agre ement exe cuted by the part ies prior to the fili ng of the divorce complain t. To the extent that the Final Decree adopts the MDA, it is a consent judgment (i.e. the division of marital property a

n d debt is, in fact, an enforcement of the ag reement between these parties as evidenced

by the MDA). Conseque ntly, it appears to this Court that the real issue pre sented by

this appeal is whethe

r the tria l court wa s in a positi on to ente r a valid consent judgmen t when it r

eadily appear s, from the r

ecord, t hat ther e was no a

greement betwe en the pa

rties at t he timethe judgment was ente red. I n our opini on, this wa s error on the par

t of the tr ial cour t. From the record, it is undisputed that, although Mr. Barnes sig ned the MDA on

June 4, 2003, he expressed his repudiation of the MDA fourtee n day s later w

hen he fi led his Complaint for divorce on grounds of irreconcilable differ ences, inappropriate marital conduct, a nd adulter y a nd specif ically prayed that “the Marital Dissolution Agreement...previously executed ...be disavowed and if filed, set aside.” This pray

er for relief functioned to put all parties and the trial court on notice that Mr. Barnes was not in agree

ment with Ms. Barnes concerning the MDA. This court

is of the opinion that the resolution of this issue is governed by the principles set forth by our Supreme Court in the ca se of Harbour v . Brown fo r Ulrich , 732 S.W.2d 598 (Tenn.1987). Harbor involved a suit and a countersuit wherein plaintiff sought specific pe rformance of an alle g ed real estate contract along with an injunction against a threatened forec losure action under an existing deed of trust. On the date the case was set f or trial the parties announ ced to th e court that they had

reache d an ag

reemen t and woul d

submit an o rder of

compromis e and dism

issal. The terms of t

he compr omise were not announced to the court. Bef ore entry of an order in the case, it was brought to the court's attention that defendant ha d withdrawn his consent to the compromise. The court nonetheles s entere d an Orde r of Compr

omise and Dismissal. Defend

ant moved

to vacat e the order and to reschedule the case for trial on the merits, but the trial court overruled the motion and once again dismissed the case with prejudice

. Id

. In reversing

the trial court, the Harbour Court set f orth its ra tionale a s follows: The re so lu ti on of

di sp ut es by agreeme nt of the parties is to be encouraged. But a valid cons e nt ju dg me nt ca n n ot be en te re d b y a court when one

party withdraw s his conse

nt and this

fact is communic ated to th e court prior to en try of the jud

gment.

The general rule defining the power of a court to enter a conse nt judgment is set forth in 49 C.J.S. Judgments § 174(b), as follow s: The power of t

he c ourt to render a judgment by consent is depend

ent on th e exis tence of the consent-6- of the parties at the ti me the agreement rece ives the sanctionof the court or

is rendered and promulgated as a judg ment. Id . at 599 (citations omitted). The Harbour

Court fur ther stat es: A valid con sent judg

ment can not b e rendered by

a court when the consent of one of the parties thereto is wanting . It is

not suffic ient to support the judg ment that a

party 's cons ent ther

eto may at one tim e hav e been g iven; con sent must exist at the ve ry moment t

he cour t undertakes to make the agree ment the judgment of the court. Id . at 60 0 (cit ing Burnaman v. Heaton , 240 S.W.2d 288, 291 (Tex.1951)). In Elrod v. Elrod , No. 03A 01-9108-GS-260, 1991 WL 238263 (Tenn. Ct. App. Nov. 18, 1991), the Eastern Section of this Court applied the principles announced in Harbour to a domes tic relations case. In Elrod , the parties negotiated a settlement of all issues prior to trial whic h th ey orally announced to the court. At that time the parties had not reduc ed their

agree ment to wr

iting in the form o f a mari tal di ssol utio n agreem ent. N o furt her pro ceedin gs were he ld until a final judgment was presented to the court for approval, at which time thetrial court was aware that plaintiff was no longer in agreement. The trial

court entered a final judgment of divorce over pla intiff' s objections. In Elrod , as in this case, t he tri al jud ge knew before he entered the final de cree of

divorce that a pa rty had repudiated the agreement. The Elrod court found that t

he trial j udge wa s without a uthority to enter a final decree ac cording to the agreeme nt. Id . at *1. We are of the same opinion in this case. F or the foregoing reasons, we reverse the Final Decre e to the extent that it enf orces o r incorporates the MDA. We remand for such further procee dings as

may be nece ssary

consiste nt with this Opinio n. Costs of t

his appea l are as sessed a

gainst t he Appel lee, Amy

Robertson

Barne s.

__________________________________________ W. FRANK CR

AWFORD, PRESIDING JUDGE, W.S

.