### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE April 2, 2002 Sessio

n MICHAEL JOHN DURANT v. LORRIE DIANE DURANT Direct Appeal from the Chancery Court for Montgomery County No. 99-01-0016 Carol A. Catalano, Chancellor

No. M2001-00691-COA-R3-CV - Filed April 30, 2002

This appeal concerns the dissolution of a twelve-year marriag e. The trial court granted the husband a divorce on the g

rounds of inappro

priate marital conduct. The court distributed the parties’ pro

perty andawarded custody of

the couple’s two minor children to thehusband. The court also enforced a contract the parties entered into prior to the divorc e wherein the husband agreed to purchase the wife’s share of the marital residence. The wife appeals. We affirm the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgmen

t of the Chancery

Court Affirmed;

and Remanded
D AVID R. F ARMER , J., delivered the opinion of the court, in which W. F RANK C RAWFORD , P.J., W.S., and H OLLY K. L ILLARD , J., joined. Gregory D. Smith, Cl

arksville, Tenne

ssee, for the app

ellant, Lorrie Di

ane Durant. Larry B. Watson, C

larksville, Tenne

ssee, for the app

ellee, Michael J

ohn Durant. OPINION
Michael John Durant and Lorrie Diane Durant married in April 1988. Two children were born of the marriag

e. The first child

was born on August 18, 1992, the second child on September 9, 199 6. D uri ng th e ma rri age, Mr. Dur ant ser ved in t he U nit ed S tat es A rmy. Ms. Durant worked as an elementary school teacher. After ten years of

marriage, the parties separated on December 27, 1998. Subsequently , Mr. Durant filed a complaint for absolute divorce on January 6, 199 9. In his complaint, Mr. Durant listed the following g rounds for divorce: irreconcilable differences, inappropriate marital conduct and adu lte ry. Soon after, Ms. Durant filed a counte r-complaint for divorce on the grounds of irreconcilable differences and inappropriate marital conduct.-2-

While the divorce was pending, Mr. Durant’sattorney se nt a letter to Ms.Dur ant ’s a tto rney. The letter, dated July 13, 1999, stated that Mr . Durant agree

d to purchase Ms. Dur

ant’s interest in the couple’s marital

resid ence for $40, 000. Mr. Durant and Ms. Durant each signed the letter. Alleging that Ms. Durant refused to close the transaction as described in the letter, Mr. Durant filed a complaint for spe

cific performa

nce. This complain

t was ultimately

consolidated with

the parties’ action for divorce. After a lengthy trial, the court granted Mr. Durant a divorce onthe grounds that Ms. Durant hadengaged in inappropriate marital conduct. The court granted custody of the couple’s children to Mr. Durant. The court also found that a binding contract existed between Mr . Durant and Ms. Durant and enforced the contract according to the terms outlined in the letter.
Ms. Durant filed a motion to alter or amend the trial court’s judgment. Ms. Durant took issue withthe court’s decision to grant Mr. Durant the divorce. Ms. Durant also asserted that the evidence preponderated

against the award

of custody to

Mr. Durant. Finally, Ms. Durant contended that the trial court improperly

found that an enf

orceable contr

act existed betwee

n herself and Mr

. Duran t regarding the sale of the marital residence. The motion was denied.
Ms. Durant appeals the trial court’s decision. The issues, as st

ated by Ms. Durant, are as follows:
I. The Trial Court erre d in not making an e

quitable propert

y dist ributio n regarding the split of the marital residence.
II. The Trial Court erred in not awardingAppellant 30% of Appellee’s military retirement.
III. The Trial Court erred in awarding Appellee sole custody of the minor children of this marriage. To the extentthese issues involve questions of fact, our review of the trial court’s

ruling is de novo with a presumption of correctness. Tenn. R. App. P. 13( d); e.g., Berr yhill v. Rhodes , 21S.W.3d 188, 190 (Tenn. 2000). We may not reverse the trial court’s factual findings unless they are contrary to the

preponderance of the evidence. Id. With respect to the c ourt’s legal co

nclusions, our review is de novo with no presumption of correctness. Bowden v. Ward , 27 S.W.3d 913, 916 (Tenn. 2000).
In Ms. Durant’s first issue, she contends that the trial court erred when it determined that an enforceable

contract existed b

etween the coupl

e regarding

the sale of the marital residence. Instead, Ms. Durant

argues that the court shou ld have distribute

d the equity i

n the marital resi

dence equitably between the parties. Ms. Durant concedes that there “is no question that at one point [she] agreed to take $40,000.00 as her share of the equity in the house.” In light of this fact, Ms. Durant argues-3-

that the court erred

by enforcing the contract, maintaining that Mr. Durant made modifications to the contract and that Mr. Durant committed fraud in valuing the marital residence.
Ms. Du rant contends that Mr. Durant modified the agreement regarding the sa le of the marita

l residenceby “includ[ing] a boat the parties owned as a ‘piggy-back’ termon the marital residence agreement

without ever clearing said new term with [her].” The agreement rega r ding the marital residence, sen

t from Mr. Durant’ s attorney t o Ms. Durant’s atto

rney, state

s as follows:
It is my underst

anding that Mrs. D

urant has offer

ed to sell any and

all interest she may have in and to the parties marital residence for the sum of $40,000.00 and an agreement to hold her harmless from any and all mortgages on said property

. Mr. Durant is agreeable to those terms and will pay her the sum of $40,000.00 and agree to hold her harmless. It will require some time for him to secure a loan and we agree to close as soon as possible and Mrs. Durant will be required t

o execute a waiver of her marital rights to close on his loan. Parties shall sign

at the bottom to ack

nowledge the a

greement.

. . . . /S/ Michael J. Durant, Accepted /S/ Lorrie D. Durant, Accepted There is no evidence in the record to illustrate that Mr. Durant added the boa t a s a term to this agreement. The

record shows that

the Durants agr

eed to sell the boa

t. As a result of thi

s transaction, the couple rece ived $1800.00 that r

epresented the e

quity in the bo

at. The couple divided these proceeds equally, r

e ceiving $900.00 each. There is nothing in the record to suggest that the saleof the boat was somehow connected to the agreement for the sale of the marital re si dence. Acco rdi ngly, the tri al court properly determined that Mr. Durant did not modify the terms of the couple’s agreement regarding the sale of the house.
Ms. Durant next argues that Mr. Durant committed fraud in offering her $40,000.00 for her share of the marital residence. Ms. Durant contends that Mr. Durant “kn ew t here was a di spa rit y” betweenthe amount of equity actually in the home and the amount he offered her. According to Ms. Durant, her share of the house should have been $70,500.
In order to set aside the contract, Ms. Durant has the burden to establish fraud by clear and convincing e videnc e. See Estate of Acuff v. O’Linger , 56 S.W.3d 527, 530-531 (Tenn. Ct. App. 2001). This Court ha

s stated the eleme

nts of fraud as fo

llows: When a party inte

ntionally misr

epresents a mate

rial fact or

produces a false im pression in order to mislead an other or to obtain an u ndue advant age over him ,1 Rule 7 was or iginally ad opted b y this Cou rt on M arch 3, 19 92. At that time , howev er, the rule was designated

as Rule 15 of the Rules of the Court of Appeal s of T ennes see. Ou r decisi on in Bean relied upon the appellant’s noncompliance with Rule 15. On April 2, 2001, Rule 15 was designate d as Rule 7 of the R ules of the C ourt of A ppeals of Tennessee . The languag e and intent of the ru le remain the sam e. Rule 7 states as follows:

(a) In domestic relations appeals where the iss ues involve

the amount or t

he disposi

tion of the marital property,the appe llant’s brief sh all contain in the statem ent of facts o r in an appendix, an orderly tabulation of all marita l property in a form substantially like the form attached h ereto. All entries in the table as to value an d to whom the property w as awarded sh all be acco mpanied by a citat ion to the

record where t

he informati

on may be found. (b) If the appeal involves is sues about the s eparate pr operty of ei

ther part y or the al

locati on of the marital debts, the appellant’s brief shall contain a s eparate t able in t he same form showing t he pertinent in forma tion for tha t disputed issu e. -4- there is a positive fraud. The representation must have been made with the knowledge of its falsity and with a fraudulent intent. The representation must have been to an existing fact which is material and t he plai ntiff must have re asonably relied upon that representation to his injury. Godwin Aircraft, Inc. v. Houston , 851 S.W.2d 816, 821 (T enn. Ct. App. 1 992) (quot ing Haynes v. Cumberland Builders , 546 S.W.2d 228 (Tenn. Ct. App. 1976)) (citations omitted).
From our review of the record, we conclude that the trial court properly found that there was no evidence of fraud which would entitle Ms. Durant to rescind the contract. Mr. Durant testified that he based his offer on a recent appraisal of the marital residence, minus the mortgage amount and r eal estate commissions. Nothing in the record evidences a fraudulent intent on the part of Mr. Durant. Accordingly, Ms. Duran t’s claims rega rding any possible fraud tha

t would entitle her

to rescind the contr

act for the sale

of the house are

without merit.
In Ms. Durant’s second issue, she contends that the trial court erred in making its division of marital property. Other than the marital residenc

e, Ms. Durant’s on

ly concern

relating to

the trial court’s division of marital property involves the court’s division of the co uple’s respecti

ve retirement benefits. Because Ms. Durant failed to comply with Rule 7 of the Rules of the Court of Appeals of Tennessee, we decline to address this issue. 1 Bean v. Bean , 40 S.W.3d 52, 54-55 (Tenn. Ct. App. 2000). Whi le w e ma y suspend the opera tion of these rule

s, it must be for go

od cause. Tenn. Ct

. App. R. 7; Bean , 40 S.W.3d at 54. No such cause exists in this particular case. Furthermore, Ms. Durant’s brief f ails to contain any references to the record conc erning the valuation of

the marital property. In order to determine w hether the court’s division of the parties’ retirement

accounts was proper, this Court would need to examine the enti re distribution of the couple’s marital property. Watters v. Watters , 959 S.W.2d 585, 591 (Tenn. Ct. App. 199 7). T he equity or inequity

of a court’s distr

ibution of marital p

roperty is determined by examining the final results of the court’s ru

ling rather tha

n the division of any particular piece or categor y of marital pro pert y. I

d. Ms. Du rant’s brief fails to provide a valuation of the individual items of marital-5-

property or a valuation of the marital property as a whole. We are under no duty to search a voluminous record

in order to discern the valuation of the couple’s property. Schoen v. J.C. Bradford & Co. , 642 S.W.2d 420, 427 (Tenn. Ct. App. 1982). Accordingly, this issue is without merit and is considered waived. Regarding Ms. Durant’s third issue, she contends that the trial court erred in awarding Mr. Durant sole custody of

the couple’ s children. Ms. Durant does not argue that the evidence preponde rates agai nst the trial court’s finding with respect to its child custody determination. Instead, Ms. Durant maintains that the trial court failed to consider sections 36-6-404 and 36-6-408 of the Tennessee Code when awarding custody. Section 36-6-404 of the Tennessee Code requires that “[a]ny fi

nal decree or d

ecree of modifi

cation in an action for

absolute d ivorce . . . i nvolving a minor child shallincorporate a permanent parenting plan.” Section 36-6-408 of the Tennessee Code requires a parent educational seminar in “an action where a permanent parenting plan is or will be entered.” Because there is no permanent parenting plan in this case and due to the fact that neither parent attended a pare

nt educational se

minar, Ms. Durant contends t hat we should rema

nd this case for a consideration of these issues. The trial court entered its divorce decree, which included the issue of child custody on June 5, 2000. Ms. Durant fi

led a motio n to alter and a mend pursuant to Rule 59.04 of the Tennessee Rules of Civil Procedure on June 29, 2000. The trial court ultimately heard the motion on January 2, 2001. The provisions of the T ennessee Code which require a permanent parenting plan and a parent education seminar became effective January 1, 2001. Ms. Durant a

sserts that these provisions apply to her case bec

ause the motion to

alter and amend w

as not heard until

January 2, 2001 and was not filed until February 16, 2001. The trial court’ s order ruling on Ms. Durant’s motion

to alter and amen

d states as follows : “The Court finds that there was no evidence introduced for th

is motion hearing that the court was notalready presented during the original divorc e hearing, therefore t

he c ourt refuses to alter or amendthe judgment.” Ms. Durant acknowledges that she failed to argue this issue at any time before the trial cour t. It is well-settled that issues not raised at trial cannot be raised for the first time on appeal. Simpson v. Frontier Community Cr. Union , 810 S.W.2d 147, 153 (T enn. 1991); Culp v. Culp , 917 S.W.2d 233 (Tenn. Ct. App. 1995). As heretoforestated, Ms. Durant does not argue that the evidence preponderates against the trial court’s finding on the issue of custody. Nevertheles s, we have carefully reviewed the record withrespect to the trial court’s award. Having done so, we do not find the eviden ce to preponder

ate against the finding of

the trial court

awarding custody of the parties’ minor children to Mr. Durant with visitation with Ms. Durant as set forth in the trial court’s decree. Accordingly, we affirm the custody dete

rmination of the tr

ial court.-6-

We aff irm the dec ision of the trial c ourt. Costs of this ap

peal are taxed to t

he appellant, Lorr ie D ian e Du rant , an d he r su ret y, fo r wh ich exe cut ion may i ssu e ifnece ssa ry.

___________________________________ DAVID R. FARMER, JUDGE