### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE August 6, 2001 Session JO ANNE HOFMEISTER v. J OHN DANIEL HOFMEISTER

Appeal from the Circuit Court for Davidson County No. 93D-3422 Marietta M. Shipley, Judge

No. M2000-00363-COA-R3-CV - Filed December 10, 2001

A series of post-divorce petitions resulted in a hearing on July 22, 1999 in which no witnesses were callednor any sworn te stimony offered. B ased on the petiti ons, the answers, and the statements of counsel, the court modified the final decree of divorc e with

respec t to the husband’s ob ligation s to pay the wife ’s medical insurance premiums, medical expenses, and life insurance premiums. The court also denied the wife’s petition for post-judgment interest on a pay ment to the wife that had been ordered in the final decree. The wife appeals on the grounds that (1) there were noplead ings or proof justifying

the amendments and (2) the court erred in not granting her petitions. We affirm the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court

Affirmed and Remanded B EN H. C AN TRELL , P. J., M.S., delivered the opinion of the court, in which W IL LI AM B. C AIN and P ATRIC IA J. C OTT RELL , JJ., joined. Robert A. Anderson, Nashville, Tennessee, for the a ppellant, Jo Anne Hofmeister. John J. Hollins, Nashville, Tennessee, for the appellee, John Daniel Hofmeister.

OPINION I. The court procee dings surrounding this action are quite convoluted and complicated by the fact that the wife has had five differe nt attorne ys d uring th e divorc e and pos t-divorc e proce edings. In addition, the parties did not appear in court for most, if not all, of the hearings. Since the divorce, wife has established residency in Virginia, and the husband has lived many places including England and Hong Kong.-2-

The parties weremarried on March 7, 1977 and divorced on Marc h 6, 1995. There were no minor childre n at the tim

e of the d ivorce. In the

divorce decree , the tria

l court sta t ed that, “ [Mrs. Hofmeist er’s] health will continue to be a real issue, whether it be her mental or phy sical health.” The decree then went on to address the issue of health insurance: Hospitalization and Health Insurance - Mr. Hofmeister shall make arrange ments so that Ms. Hofmeister can be maintained on his major medical and hospitalization insura n ce until her death or remarr iage or until she has another plan available to her. The deductible, for which she is responsible w ill be no m ore than $500.00. He shall be responsible for the premiums. Life Insurance - Mr. Hof meister s hall car

ry life insur ance with Ms. Hofmeister as benefici ary

in t he amount of $500,00[0], so long as he is responsible for alimony pay ments. While the decree

was still within the court’s jurisdiction, the trial court modified the divorce decree with an order filed on May 2, 1995. The order stated: The Husband s hall be r

esponsibl e for providing health insurance for the Wife. The Wife’s deductib le shall not exceed $500 under the Husband’s health care plan. The Wife shall f

ollo w the A llie d Sign al ins urance plan b y seeking t reatm ent th rough health care providers associated with the Allied Signal plan. In the event the Wife incurs medical expenses outside Allied Signal’s medical plan, she shall be responsi ble for their pay

ment. In addition, the Wife shall be responsible for any medical expenses not covered by the Husband’s medical plan after May 31, 1995. Over the next four years the wife filed two petitions for contempt and an amended petition. For some reason the petitions were never he ard by the trial court. The husband answered the first two petitions, and then in June of 1999, he answered the amended petition and filed a c ounter- claim for contempt. On July 22, 1999, the lawy ers appeared in the trial court for a “hearing” on the various pleading s. On September 1, 1999, the court entered an order with the f ollowing pertine nt provisio ns: 1. John D. Hofme

ister will keep in force Stat e Farm Life Insurance Policy #LF0779-6156 in the amount of $300 ,000 nami ng his ex-wife, J oanne Hofmeister Da vis as the b enefic iary . This polic y w ill remain in force and reta in Ms. Davis as the be

neficia ry so long as there is an

obligation for Mr. Hofmeister to pay alimony to Ms. Davis. 2. John D. Hofmeister will k eep in force Accidental L ife Dismemberment Group Insurance Policy

#UAMP178405930 in the amount of $100,000 naming his ex-wife, Joanne Hofmeist er Davisas the be

neficia ry . This policy-3- will remain in force and

retain Ms. Davis as the beneficiary so long as there is an oblig ation for

Mr. Hofme

ister to pa y a limony to Ms. Davis. 3. Mr. Hofmeister c u rrently has a bank account in the amount of $100,000 located in Western FederalCredit Union in the State of California Account #178405930. Ms. Davis will be allowed to draw on that account in her name in the event

of th e death of Mr. Hofmeister prior to the expiration of Mr. Hofm eister’s obligation to pay a limony to Ms. Davis. The balance of $100,000 is to remain at

$100,000 so long as the obligation to pay alimony by Mr. Hofme

iste r to Ms. Da vis contin ues. The bank ac count is f

or Ms. Davis’ specific benefit and Mr. Hofmeist er’s obl igation to maintain the bank account and Ms. Davis’ access to the bank account will continue so long as Mr. Hofme

ister’s o bligatio n to pay

alimony to Ms. Davis.

. . . . 6. Mr. Hofmeister currently has in his possession funds in a n escrow accoun t, which are his g ood faith

funds, es crowed

for the b enefit

of insura nce for Ms. Davis. Mr. Hofme

ister is or dered to transfe r that en tire bala nce to Ms. Davis within ten (10) days of the date of entry

of this order. 7. Mr. Hofmeister is ordered t o pay $300 per month to Joan

ne Davis to help de fray the expens e of her

medical insuranc e. This $3 00 per mon th is retroactive to the date upon which Joanne Davis first purchased her own insurance, which was April 1998. The past duepayment s shall be paid to Ms. Davis within thirty (30) day s of the date of entry of this order. 8. Mr. Hofmeist

er is ord

ered to p ay

all medic al expense s i ncl uding hospitalization and docto

r visits incurre d by

Ms. Davis while she was without insurance from Mar

ch 31, 199 8 to April 2 8, 1998. Th is will also be don e within thirty (30) day s of the date of entry of this order. The wife filed a Motion to Alter or Amend this order, which the trial court denied on January 19, 2000. On December 12, 2000, the court entered a n order awarding attorney s’ fees to the wife. II. Wife presents four issues in this appeal: (1) the trial court erred when

it modifie d the ter

ms of the final decre e of divorce w ithout either a pleading before it seeking a modification or any showing of a material change of circumstance to justify a modification; (2) the trial court erred by failing to gran

t a judgm ent aga inst husband for the health insurance premiums she incurred before an d after her COBRA benefits expired; (3) the trial cour t erred by ordering that hus band pay fo r medical expenses not covered by insurance from Mar

ch 31 to Ap

ril 28, 1998 without a hearing and-4-

despite the preponde rance of

the evide nce that husband h ad violat

ed the pr ior orde rs of the court; and (4) the trial court

erred b y f

ailing to grant p ost-judgment inter est aga inst husba

nd for fa iling to give wife a check for $700 a s ordered under the final decree

. The husband does not ad

dress dir ectly the issue s presen

ted by the wife . Ins tead he a sserts that the trial court’s judgme nt should be affirme d becau se the wif e: (1) fa iled to fil e a compl ete transcript of the evidence or statement of the evidence in violation of Tenn. R. App. P. 24 and (2) failedto file a complete transcript or s tatement o f the evidence which contains timely evidentiary objectio ns and/or

offers of proof

made by the wife ’s attorney s in the tri al court

. We will discuss the first three of the wife’s issues along with the husband’s issues because they present opposite sides of the same coin. We gather fr om the record that after

the divorce the parties both moved

out of this s tate and

that fac t complica

ted the hu sband’s a

bility to follow s ome of the provisions of the divorce decree. Thus, the wife filed petitions for contempt on October 29, 1997 and February

23, 1998. The husband answered the petitions on July 28, 1998. On Dec ember 21, 1998, the court entered the following order:

A status conference

was held in this case on November 11, 1998 before the Honorab le Marietta Shipley, Judge of the Second Ci rc ui t C ou rt of

Da vi ds on Co un ty, Tennessee. At the conclusi on of the s tatus con ferenc e the Cour

t ordere d as follo ws: Husband is to obtain a copy of the health in surance

policy Wife had p

rior to it’s [sic] termination in April 1998. Wife is to obtain a copy of the insurance policy she now has in place. These policies will be exchanged

between the attorney ’s [sic] for the parties. Wife is to determine what insurance claims have been filed but not paid under the insurance provided to Wife through the cobra plan as ordered by

the Court. Wife is to amend her petition to include the G.E. Stock issue. Husb and will have the option of obtaining the ordered $500,0 00 life insuranc e policy naming Wife as the benefi ciary or pr ovid e for t he payment of ali mony thro ugh his estate and have a lien placed on his real prope rty in Pennsy

lvania. Wife’s attorney of r

ecord is to submit an affidavi t of att orney ’s fees to Husband’s attorney

of record. The Courtorders t

he hear ing of Wif

e’s petit ion contin

ued indef initely until t he lawyer’ s collect and share the needed documentation and inf ormation. Sinc e Husband is in Europe and Wife is in the State of Virg inia th e Court is considering having the parties testify , if need be, by telephone in this matter. All other matters are reserved.1 We thi nk the t ransc ript conta ins an err or here and the wo rd “d ecree ” sho uld b e “ag reed .” However, since a party cannot appeal f

rom an agreed order, Cli nchfi eld St one Co. v. Stone , 254 S.W .2d 8 (Ten n. Ct. A pp. 1 952 ), we will give the w ife the b ene fit of the dou bt. -5-

All of which is so ordered. On May 20, 1999, the wife filed an amended petition for civil contempt. The husband filed an answer and counterclaim for contempt on June 2, 1999. The basis for the counterclaim was the wife’s failure to comply with the December 21, 1998 order requiring her to produce a copy of her health insuranc e policy . The wif e answe red the c ounterc laim

and state d th at the policy has bee n produce d and for

warded to husband ’s counse

l. Thus the stage was set for the “hearing” on

July 22, 1999. We think the record shows that the trial court did hear proof at that hearing . The order following that hearing , drafted by the wife’s at to rn ey, states, “ Based upon the proof before the court and the statement of counsel, the court orders as follows:” (Emphasis supplied). Shedding further light on what occur red at that hearingthe court said on November 5, 1999:

This has been one of the

most frust

rating cases th at I h ave eve

r seen. I t just never seems to go aw ay. The information that was given, I presume, is what’s in the ord er because I didn ’t have a

hearing on this. The

re was in formatio n that was jus t presented by attorney s, it was pretty much a decree 1 order. We tried to work it out because nothing that was in the original orde r is the same anymor

e. She moved, she had a perfectly good insurance policy

here. She could not pick that up in th

e St ate of Virgini a. She did n’t commun

icate with any

body as to how it was going to be done. So since none of those things were true at the time of the final decree, we’re try ing to figure out something that protects her as muc h as possible, and it seems to m e she kee ps wanting things that are not possible to give her. T herefore, the cour

t did rec eive pro of on July 22, 1999, a

lthough not in the us u al form

. Appare ntly the lawyer s appeared withou t thei r clients and simply stated what ha d happened since the fi nal de cree. T he Sep tembe r 1, 19 99, or der res ulted from t hat pr oceedi ng. With respect to the wi fe’s compl aint o n appe al tha t ther e were n o plea dings seeki ng a modification of

the fina l decre e, that a ssertion i s true; and in a time when the law laid g

reater stress on formal pleadings, the

lack of a pleading would have been fata l. See Fidelity-Phenix Fire Ins. Co. of New York

v. Jackson , 181 S.W.2d 625 (Tenn. 1944). Today, howe ver, Rule 54.03, Tenn. R. Civ. P. provides “[e]xcept as to a party ag ainst whom a judgment is ent ered b y default, eve ry final judgment shall gr ant the r elief to w hich the p arty

in whose f

avor it is render

ed is entit led, eve n if the party has not demanded such relief in the party ’s pleadings.” I n addition, Rule 15.02 , Tenn. R. Civ.-6-

P. provides that

issues tried by express or implied consent shall be tre ated in all respects as if they had been raised in the pleadings. See Varley v. Varley , 934 S.W.2d 659 (Tenn. Ct. App. 1996). There is no indication that the wife objected to the proceeding on July 22, 1999, nor

is there any indication that she was surprised by the husband’s position. His defe nses to her co ntempt petitions in substance raise the same issues that would support a modification of the final decree. With res pect to th e is sue about the lack of evidence, since we ha ve found that the court obviously heard proof on July 22, the burde n is on the wife to preserve that evidence if she intends to appeal on an issue involving its weight or admissibility. Sherrod v . Wix , 849 S.W.2d 780 (Tenn. Ct. App. 1992). In the a bsence of a transcript or statement of the evide nce there is a conclusive presumption that the evidence was sufficient to suppor t the judg ment. Coakley v. Danie ls , 840 S.W.2d 367 (Tenn. Ct. App. 1992). While the hearing on July 22, 1999 involved a n unorthodox procedure, we suspect that every trial judge in the state h as deci ded cases under the circumstances involved in this case . Counsel appear before the court and state that certain facts are true. The court then

decides the legal effect of the undisputed facts. Wh ile such a procee ding shouldbe used with caution – and nearly without exception it is a good idea to have a recor d of the proceeding – the parties should be encoura ged to admit facts about which there is no genuine dispute. A lea ding treatise points out the benefits of such admi ssions or s tipulation s:

The practice of

making such agreements or stipulations is one g reatly to be commended. In con struin g them, the Courts will give them the force and ef fect contemplated by the pa

rties at the time they we

re executed. For the purpose of the action, an admission made by counsel is conc lusive; and full authority to make admissions is presumed. Chance llors eagerly

lay hold of such admissionsas the ba sis of their decrees. They ar e deemed better evidence of the fa ct s t ha n t he fi nd in g o f a ju ry. Gibson’s Suits in Chancery, § 201 (William H. Inman ed., 7th ed. 1988). While we advise caution with respect to preserving the record, especially if there may be a dispute about the facts, we cannot condemn the practice of stipulating facts that are not disputed. III. The wife asserts that she is entitled to post-judgment int erest on a $ 700 check that was awarded to her in the final divorce decree as a division of the marital property

. According to Tenn. Code Ann. § 47-14-121 interest accrues at 10% a y ear on judgments and decrees “ from the day on which the jury

or the court, sittin g withou t a jury , returned the ve

rdict . . . .” This sta

tute applies to money awards in a final decree of divorce. Inman v. Inman , 840 S.W.2d 927 (Tenn. Ct. App. 1992).-7-

The final decree lists the marital property awarded to each of the parties. I n both lists an identical item appears: “Insura nce check $700.” Apparently the court divided an insurance pay ment equ ally between the wife and husband, but the decree does not award a judgment ag ainst the husband. From what can be inferred fr om the decreeand from subsequent statements in the record, the husband hadthe wife’s c heck in hi s possessi on and thr ough an oversig ht he did no t deliver

it to her. Therefore, we hold that since the final decree does not award a mone y judgment

against the husban d, Tenn. Cod

e Ann. § 47 -14-121 d

oes not ap

ply to the $700

check. Any

award o f intere st then becomesa matter

of discr eti on withthe trial judge. Since this is not a situation in which the husband has had the use of the funds, based on the state of the record, we cannot say that she abused that discretion. The judgment of the court below is affirmed, and the c ause is remanded for a ny furthe r procee dings which may

be necessary . Tax the costs on appeal to the appellant, Jo Anne Hofmeister.

_________________________________________ BEN H. CA

NTREL L, PRESI DIN G JUDGE, M. S.