FILED

March 10, 1999

Cecil Crowson, Jr.

Appellate C ourt

Clerk

IN THE COURT OF APPEALS 

AT KNOXVILLE

JUDY SMITH STEWART ) SEVIER COUNTY

 ) 03A01-9806-CV-00180

Plaintiff-Appellee )

)

)

v . ) HON. RICHARD R. VANCE,

) JUDGE

)

JOHNNIE STEWART )

 )

Defendant-Appellant ) AFFIRMED AND REMANDED

CYNTHIA M. RICHARDSON OF SEVIERVILLE FOR APPELLANT

REBECCA D. SLONE OF DANDRIDGE FOR APPELLEE

O P I N I O N

 Goddard, P.J. 

Johnnie Stewart appeals a judgment of the Circuit 

Court for Sevier County which overruled his motion seeking to set

aside a divorce decree previously awarded to his wife, Judy Smith

Stewart. 

He raises the following two issues on appeal:

I. Whether the Trial Court erred in granting the

parties a divorce from one another on stipulated

grounds when only one party was represented by counsel
1

The divorce was granted on stipulated grounds pursuant to T.C.A.

36-4-129, which does not require a waiting period, as does a divorce granted

on irreconcilable differences pursuant to T.C.A. 36-4-102.

2

and the Complaint, pro se Answer, and Final Judgment of

Divorce were all filed with the Court on the same day?

II. Whether the Trial Court erred in denying the

Appellant’s Motion to Set Aside pursuant to Rule 60.02

of the Tennessee Rules of Civil Procedure where the

Appellant sought relief within thirty days of entry of

the Court’s judgment, was unrepresented by counsel in

the divorce proceeding although the parties’ marriage

was of almost twenty-five years in duration, and was

misled into believing that the grossly inequitable

judgment rendered was in compliance with the

requirements of the laws of the State of Tennessee?

We first observe that, although the motion addressed in

issue two purports to be a Rule 60.02 motion, because it was

filed within 30 days of entry of the final judgment, it is

unnecessary to resort to such a motion because all of the

questions raised could have been raised in a conventional motion

for a new trial. In this regard, we note that in the latter case

a party would not be constrained by the issue limitations of Rule

60.

In any event, it appears that Mr. Stewart was not

represented by counsel at the final hearing which, as noted by

the first issue on appeal, was held on the same day the case was

filed. 1

 It is also true that counsel for Ms. Stewart, although

she never personally talked to Mr. Stewart, prepared his answer

which Ms. Stewart apparently took to him and he agreed to sign. 

Moreover, the transcript of the hearing granting the divorce is

not a part of the record, but it appears, as hereinafter set out
3

in the Trial Judge’s order overruling the post-judgment motion,

Mr. Stewart appeared at the divorce hearing and fully agreed to

the terms contained in the final decree.

Although no witnesses were called in the hearing on the

post-judgment motion, counsel stated to the Court the respective

position of the parties, and in response the Trial Judge made the

following determination:

THE COURT : I recall the day that this matter was

brought up for an announcement. I recall having

previously on that day reviewed the file and considered

the facts and the matters as set out in the complaint,

and that he was here, that he did acknowledge that he

understood and agreed with the agreement.

The Court favors agreements. The parties agree to

contract one with the other. In this case, we have an

agreement which was essentially worked out between

these parties. One had an attorney. The attorney did

not negotiate this with Mr. Stewart. He negotiated

this essentially on his own with his wife directly.

The matters set forth in the agreement are

substantial. The obligations are substantial. But

this was a substantial marriage where eight children

were born. This lady does not have the educational

background, the ability to earn a living, as he does;

bore eight children over this 25-year marriage, and

still has four to raise.

In looking at the factors that the Court would

consider if it had to make an initial determination,

considering his income, considering the amounts that

were based upon his income as discussed between the

parties, I cannot say as a matter of law any reason why

this should be set aside.

These parties agree to contract with one another. 

He had the opportunity to talk it over with an

attorney. He’s an educated man. He’s not an attorney,

but he certainly knew that if he felt he needed an

attorney to consult with on his own, he could have.
2

The Trial Court either misspoke or the court reporter

mistranscribed, because the Trial Court did deny the motion.

4

For all these reasons I cannot say that this

agreement should be set aside. The parties were both

here, they acknowledged in court the agreement, so I

will not set the Order aside, based upon that.

It is reserved that in the future as these

children grow older, and things can change,

circumstances can change. There’s been no showing or

even suggestion that any circumstances have changed

since the entry of this Order, and that’s always out

there in the future. A material change of circumstance

would affect it, but for all these reasons I will not

deny the motion. 2

Both parties do now have attorneys, and this

matter is theirs. Certainly, the parties can talk to

the attorneys and freely contract again if they choose

to, but for the present time, the order will stand. 

Thank you.

Our review of the record persuades us that there is

nothing contained in counsels’ representations to impeach the

Trial Court’s findings of fact and conclusions of law.

Before concluding, we observe that awards of child

support to the four minor children of the parties--which will be

converted to alimony as each reaches his or her majority--and of

alimony are never final but may be modified from time to time as

warranted by changing circumstances.

For the foregoing reasons the judgment of the Trial

Court is affirmed and the cause remanded for such further

proceedings, if any, as may be necessary and collection of costs

below. Costs of appeal are adjudged against Mr. Stewart and his

surety.
5

_______________________________

Houston M. Goddard, P.J. 

CONCUR:

________________________________

Herschel P. Franks, J.

 (Not Participating) 

Don T. McMurray, J.