# FILED April 29, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF APPEALS OF TENNESSEE,

AT NASHVILLE

_______________________________________________________ ) GARY MILTON JONES , ) Davidson County Circuit Court ) No. 97D-2191 Plaintiff/Appella

nt. ) ) VS. ) C.A. No. 01A01-9806-CV-00298 ) MARY FRANCES JO

NES , )

) Defendant/Appellee. ) )

______________________________________________________________________________ From the Circuit Court of Davidson County at Nashville. Honorable Muriel Robinson, Judge
Joe P. Binkley, Sr. , Nashville, Tennessee Karla C. Hewitt , HATCHETT & HEWITT, Nashville, Tennessee Attorneys f

or Plaintiff/Appe

llant. No Appearance by Defendant/Appellee

OPINION FIL

ED: AFFIRMED AS M

ODIFIED AND REMA

NDED FARMER, J. CRAWFORD, P.

J., W.S. : (Concurs) LILLARD, J. : (Concurs)Defendant Gary Milton Jones (Husband) appeals the final decree of divorce entered by the trial court which awarded $5000 in mari tal property to Plaintiff/Appellee Mary F rances Jones (Wife), awarde

d the Wife $1700 in

attorney’s fees, and

ordered the Husb

and to pay c

ourt costs and court reporter expenses. We affirm the final divorce decree, with one modification.

The parties were married in August 1996 and separated in July

1997. At the time of the parties’ marriage, the Husb and lived with his mother in her home. The parties knew that the Husband’s mother was terminally ill with cancer, and the Wife agreed to move into the home and to help care f

or her mother-in-law du

ring her illness . Unfortunately , acrimony d

eveloped almost immediately

between the Wife and the Husband’s mother. This acrimony marked the beg inning of the end of the parties’ short-lived marriage.

In July 1997, the Husband filed a co mplaint for divorce alleging that the Wife had been guilty of in

appropriate mar

ital conduct. Alt ernatively, the Husband alleged that the parties were unable to live together

due to irreconci

lable differences but that the parties had not yet ente

red into a marital dissolution agreement.

Th e Wife filed a response in which she denied the allegations of the Husband’s complaint (with the exception of the statistical information), denied the asserted grounds for divorce, anddenied that the Husband was entitled to any of the relief sought in his complaint. The Wife’s response contained no pra

yer for spe

cificor general relief. The only relief re questedby the Wife was
con tai ned in a sep arat ely- fil ed m oti on w here in s he s ough t al imo ny pendente lite
.

Af ter conducting a be

nch trial, the tria

l court entered a

final decree of

divorce in wh ich it ord ered the Husband to pay to the Wife $5000 representing her intere st in the marital pro pert y, to be paid at

the rate of $208.33 per month for a period of twenty-four months, ordered the Husbandto pay the Wife’s attorney’s fee s in the amount of $1700, and ordered the Husband to pay court costs and co

urt reporter expe

nses.

The Husband has appealed, arguing that the trial c ourt erred in awarding the Wife marital property and attorney’s fees when the Wife failed to ask for such relief in her response to the1 As pertinent, rule 54.03 provides that [e]xcept as to a party against whom a judgment is entered by default, every final judgment s hall grant the relief to

which the party in whose favor i

t is rendered is entitl

ed, even if the par

ty has not demanded such relief in the party’s pleadings ; but the court shall not gi

ve the successfu

l party reli

ef, though such p

arty may be entitled to it, where the propriety of such relief was not litigated and the opposing party had no opportunity to assert defenses to such relief. T.R.C.P. 54.03 (emphasis added). Husband’s complaint for divorce. Based on this same reasoning, the Husband also contends that the trial court erred in r

equiring him to

pay the cou

rt costs and co urt re porte r expe nses i n thi s case . In support of these a

rguments, th

e Husband cites this court’s decision in Fenley v. Fenley , No. 03A01-9604-CH-00121, 1996 WL 469683 (Tenn. App. Aug. 19, 1996), wherein we stated that

[i]t has long been the law in this state that a

judgment beyond the ple adin gs or issues tried by consent, is not valid. Brown v. Brown , 281 S.W.2d 492, 497 (Tenn. 1955); . . . . A par ty is entitled to notice that an issue will be tried by the court. It is axiomatic t hat without such not ice, a party

is at a disadvant age in preparing fo r trial. It i s hard to defend agains t a claim or request that you do

not know is going to be litigated. As the Supreme Court in the Brown case said: The policy unde

rlying the ruleseems to be that since the purpose of plead

ings is to give no

tice to all concer n edregarding what may be adjudicated, a judgment beyond the

scope of the pleadings is beyond the notice given the parties and thus should not be enforced.
Fenley , 1996 WL 4696 83, at *3 (q uoting Brown , 281 S.W.2d at 497) (o ther citatio ns omitted). Relying on the foregoing principles, this court reversed that p ortion of the trial court’s order modifying

the father’s visitation rights because that issue was neither rai sed by the parti es’ pleadin gs nor tried with the p

arties’ implied c

onsent.

We agree with the principles set forth by this court in Fenley . We disagree, however, withthe Husband’s contention that these principles mandate reversal of the final divorce decree entered in this case. As this

court held in Moore v . Moore , 1988 WL 63498, at *3 (Tenn. App. June 24, 1988), rule 54.03 1 of the Tennessee Rules of Civil Procedure “permitstrial courts to grant2 See Davidson County Cts. R. 22.

relief and enter judgment on issue s tried b y consent even if they wer e not embodied in the pleadings.” Accordingly, a final divorce decree will not be reversed on the ground that it grants greater relief thanthat sought by the parties’ pleadings if the record shows that the issues were tried withthe parties’ consent. Moore , 1988 WL 63498, at *3. A fter carefully

reviewing the r

ecord in this case, we conclude that the issues of property division and att orney’s fees were tried with the parties’ consen

t.
Although the Wife failed to request any specific or ge

neral relief in h

er response to the Husband’s divorce complaint, the record reflects that the Husband was on notice that the Wife
was seeking a portio

n of the marital es

tate and her atto

rney’s fe es. The record c

ontains a certifi

cate of readiness f or trial, s ign ed b y counsel fo r both parties, wh

ich certified “t

hat a list of assets including marital property , separate prop

erty and inh

erited property

, and a proposed division, has been filed with the court or wi ll be filed by court da te.” The propose

d division of assets subsequently

filed by the Wife indicated that the Wife was seeking a portion of several properties which were titledin either the Husband’s name or both parties’ names. These properties included proceeds fr om the sale of Central Parking stock, USA Floral stock, an A.G. Edwards and Sons portfolio, an A.G. Edwards IRA, the Husband’s NationsBank inve stment account, and the Husband’s NationsBank

pension plan. I

n response, the Hu

sband filed his own

proposed division o

f assets which contended that he should be awarde

d all interest in the f

oregoing assets. The pretrial information filed by

the parties, purs

uant to local rule

22, 2 revealed that both parties were aware that th e distribution of thes

e assets was in disp

ute. The Husband’ s pretrial inform ation additionally revealed that the Wife previously had requested the Husband to pay her attorney’s fees.

Moreover, the record

reflects that these issues were tried below without the objection of either party. In her

opening argument, counsel for the Wife affirmed that the Wife was seeking
a portion of the fore going stocks and investment accounts. During the evidentiary portion of the trial, counsel for the Wife elicited the Wife’s testimony that she was asking the trial court to award her a share of these assets, as well as her attorney’sfees. The Wife testified that her attorney’s fees totaled $1700. The Wife’s counsel also elicited testimony from the Husband on cross-examination3 Rule 15.02 provides that [w]hen issues not raised by the pleadings are tried by express or implied consent of the p

arties, they shall be

treated in all respe

cts as if they had been raised in the pleadings . Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at an

y time, even

after judgment

; but failure so to amend does not affect the result of the trial of these issues . Provided, however, amendment after verdict so as to increase the amount whereby he acknowledged that, dur ing the parties’ marria

ge, (1) the Husband’s NationsBank pension plan increased in value by over $13,000, (2) the Husband’s A.G. Edwar ds IRA increased in value by at least $1200 in one calendar quarter alone, (3) the Husband used marital income to acquire stocks valued at approxima tely $4000, a

nd (4) the Husband

closed out a joint savings account containing more than $3200.

On direct examination, counsel for the Husb and elicited the Husband’s testimony that he did not think the Wife deserved any interest in the disputed assets be cause of her minimal contributions to the marriage. Significantly, however, during the trial the Hus band raised no objection to

the Wife receiving a share of the marital property or her attorney’s fees on

the ground that she failed to request such relief in her pleading s. C ounsel for the Hus band did not raise t

his objection during open ing a rgu ments, during the parties’ testimony on these issues, or at the conclusion of trial when the trial court orally announced its rulings from the bench. The Husband d id not raise this objection until he filed his motion to alter or amend the judgment
. Se e T.R.C.P. 59.04. This motion came after the trial court entered its judgment awarding the Wife $5000 in marital proper

ty and $1700 i

n attorney’ s fees.

The procedural postu

re of this case is s

i milar t o that of Fulks v. Fulks , 1989 WL 122979 (Tenn. App. Oct. 18, 1989), perm. app. denied (Tenn. Jan. 2, 19 90). In Fu lks , this court rejected the husband’s con

tention that the tri

al court erred in

awarding alimony to the wife when alimony was not requested in the wife’s complaint. Fulks , 1989 WL 122979, at *3. Although the wife’s complaint failed to request alimony, the proposal for property division filed by the wife prior to trial asserted that the wife was “entitled to in excess of one-half of the physical assets of the parties and, in

addition thereto, substantial rehabilitative alimony” and periodic alimony. Id ., at *2. Citing rules 54.03 and 15.02 3 of the Tennessee Rules of Civil Procedure, we held that the issue ofsued for in the ac tion shall not be per

mitted. If evi

dence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shal

l do so freely

when the present

ation of the merits of the action will b

e subserved ther

eby and the

objecting party

fails to satisfy the

court that the adm

ission of such evide

nce would prejudice that party in maintaining the action or defense upon the merits. The court may grant a continuance to enable the obje cting party to meet such evidence. T.R.C.P. 15.02 (emphases added). alimony “should be treated [as] having been raised in the pleadings.” Id ., at *3. We reason ed that, under the circumstances, “the defendant had ample opportunity to assert defe nses to the claim for alimony, even though no demand was made therefor in the complaint.” Id
.

In the present case, we conclude that the Husband similar

ly had ample

opportunity to assert defenses to the Wife’s claims for a portion of the parties’ marital property and her attorney’s fees, even though the Wi

fe’s response to

the Husband’s com

plaint failed to re

quest such relief. The record reflects that both parties knew these issues would be disputed at trial and that they in fact litigatedthese issues. Inasmuch as the issuesof property division and attorney’s fe es weretried with the parties’ con

sent, we affirm t

hat portion of the f

inal decree disp

osing of these iss

ues.

We likewise affirm that

portion of the trial court’s decree requiring the Husband to pay court costs. Tennessee Code Annotated section 20-12-119(a) provides that “[i]n all civil cases , whether tried by a jur y or before the co urt without a jury

, the presiding ju

dge shall have a

right to adju dge the cost.” T.C.A. § 20-12-119(a) ( 1994). Rule 54.04( 1) of the Tenness ee Rule s of Civi l Procedure provides that

“[c]osts included in the bill of costs prepared by the clerk shall be allowed to the prevailing p

arty unless

the court otherw

ise directs.” T.R.C.P. 54.04(1). We believe that these provisions gave the trial court the authority to order the Husba nd to pay court costs regardless of whether the parties’ pleadings requested such relief.

We reach a somewhatdifferent conclusion, however, with regard to the award of court reporter expenses. Court reporter expenses are discretiona ry costs, wh

ich are allowab

le inthe trial court’s discretion if the requirements of rule 54.04(2) have been met. See T.R.C.P. 54.04(2). Rule 54.04(2) requires a party requesting discretionary costs to file andserve a motion with in thirtydays after entry of judgment. Id . In the present case, the Wife did not file and serve a post-trial

motion for

discretionary costs. Instead, at the conclusion of trial, the Wife’ s counsel orally requested that the Husband be required to pay the court reporter expenses.

Under similar circumstances, our supreme cou rt has reversed an award of discretionary

costs. In Oster v. Yates , 845 S.W.2d 215 (Tenn. 1992), the defendant’s attorney orally moved to have discretio

nary costs t

axed against

the plaintiff at the conclusion of trial, and the trial court granted the

request. Citing rule 54.04(2), the supreme court concluded that the trial court had abusedits discretion in awarding discretionary costs. Oster , 845 S.W.2d at 217. The court explained that “[t]he matter was not treated as a post trial motion” as contemplated by rule 54.04(2) and that the plaintiff “was not give n a reason able opportunity to prepare and present its defenses and objections to the motion.” Id
.

Nevertheless,

we decline to reverse the award of discretionary costs in this case. The record reflects that the Husband did not object to the Wife’ s request for disc retionary costs at trial. Instead, counsel for the Husband indicated that he previously had agreed to share the court reporter expenses, and the Wife’s counsel did not contradict this statement. Accordingly, we modify the final divorce decree to require the Husband to pay one-half of the court reporter

expenses incurre

d at trial.

As modified, the final divo rce decree is affirmed, and this cause is remanded for further proceedings consistent with this opinion. Costs of this appeal are taxed to the Husband, for whi ch ex ecut ion may i ssu e if nece ssa ry.

____________________________________ FARMER

, J.

______________________________ CRAWFORD, P.J., W.S. (Conc urs)

______________________________ LILL ARD, J. (Concurs)