1 Th e par ties’ only ch ild reac hed majo rity befo re the e ntry of the fina l divor ce de cree. 

### IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON May 23 , 2002 Ses sion CAROLYN JOY M ORRISON v. CHA RLES ROY MORR ISON Appeal from the Circuit Court for Shelby County No. 159968 R.D. Karen R. Williams, Judge

No. W2001-02653-COA-R3-CV - Filed October 29, 2002

This case involves the finality of a divorce decree. The parties were married in 1971 and divorced in 2001. Under the divorce, the parties rece ived, as separate property , their respective “bank, retirement

and investment acco unts” listed in each spouse’s name. The wife now asserts that the husband’s militar y pension w as not pro vided for in the divo

rce dec ree, tha t the divor

ce decr ee is thereforenot final, and that the tri al court should equitably divide the funds the husband receives from his military pension. The trial court found that the pension was part of the “retirement” funds allocated as separate property . On this basis, it denied the wife’s Rule 59 motion to alter, amend, or vacate the judgment. The wife appe als. We affirm, finding that the parties’ final divorce decree contemplatedthat the parties w ould reta in their respective retirement benefits, including the military pension. Tenn. R. App. P. 3; Judgment of the Circuit Court Affirmed
H OLLY K. L ILLARD , J., deliver ed the opinio n of the

cour t, in w hich W. F RANK C RAWFORD , P.J., W.S., and A LAN E. H IGHERS , J., joined. Bradley J. Cordts, Memphis, Tennessee, for appellant Caroly n Joy Morrison. Linda F. Teems, Memphis, Tenne ssee, for appellee Charles Roy Morrison OPINION Plaintiff/Appellant

Caroly n Jo y Morrison (“Wife” ) and Defendant/Appellee Charles Roy Morrison (“Husband”) were marrie d on November 3, 1971. 1 Wife filed divorce on July 29, 1998, and Husband fileda counter-complaint for divorce on November 17, 1998. The trial was set several times and continued, and the parties engag ed in settlement negotiations. The case was again set for August 22, 2001.2 The tr ial judge st ated:
W hen coun selann ounc ed t o me that there was goin g to be a cross w aiver o n retirem ent, I too k that to be any form of retirem ent, whe th e r it’s an IRA , whethe r or no t it’s from the fe dera l gove rnme nt, whether or no t it’ s f

rom a business. That was just retirement, period, off the t able, resolved. If the cou rt of ap pea ls wants to untie this d ivorc e, they’re w elcom e to d o so, b ut I’m no t going to untie it.

-2- Instead of proceeding to

trial, the parties c ontinued s ettlemen t negoti ations. That afternoon, the trial court was notified that the parties had reached an agreement as to all issues.
Later the s ame day, a

final decree of divorce stating the terms of the settlement agreement was prepared by

the parties’ counsel and entered by the trial court. The divorce decree provided for a cross-waiver of “all bank, retireme nt and investment accounts.” The decree w as sign ed by the Husband’ s attorne

y, a nd Wife’s a

ttorney ’s signa

ture wasby H

usband’sattorne

y w ith permission. On September 21, 2001, with the trial c ourt’s permission, Wife substituted her former counsel for her current counsel. Wife’s new counsel then moved to alter, amend, or vacate the trial court’s judgment, or for a new trial. Wife asser ted that the final divo

rce dec ree wa s incomple

te because it did not ad

dress Hu sband’s m

il it ar y pension and did not include a provision on rehabilitative alimony to which the parties ha d agreed. Shortly thereafte r, on September 25, 2001, an amended final decree of divorce was enter ed, nunc p ro tunc , adding the rehabilitative alimony provision. The agreed amended decree did not further address Husband’s military pension. On October

5, 2001, th

e trial c ourt held

a hearing on Wife ’s motion to alter or amend. The trial judge stated that she interpreted the parties’ c ross waiver on retirement to mean that discussion of any retire

ment-type assets, regardless of its source, was “off the table.” 2 Thus, the trial court found that the f

inal dec ree in f act addr essed Hu sband’s m

ilitary pension. O n this basis, the trial court deniedWife’s motion to amend, alter, or vacate judgment, or for a new trial. From this order, Wife now appe als. On appeal , Wife arg

ues that th

e division of marita l proper ty in this case was not e quitable because it did not inc lude Husb and’s military pensio n. Husb and asserts that the term “retirement accoun t” in the final decree included Husband’s military pension, and therefore was addressed in the provision in the par

ties’ divo rce dec ree whic h stipulated that ea

ch party was to retain his or her own bank, re tirement and inves tment acc ounts. The denial of a Rule 59.04 motion to alter, amend, or vacate the judgment is reviewed under an abuse of discretion standard. Smith v. Haley , No. E2000-001203-COA-R3-CV , 2001 Tenn. App. LEXIS 136, at *14 (Tenn. Ct. A pp. March 2, 2001) ; Bradley v. McLeod , 984 S.W.2d 929, 933 (Tenn. Ct. App. 1998). A trial c ourt abus es its disc retion wh en it rea ches a decision ag ainst log ic that causes a harm

to t he complaining party or when the trial court applies an incorrect leg al standard. Eldridge v. Eldridge , 72 S.W.3d 82, 85 (Tenn. 2001) (citi ng State v. Shirley , 6 S.W.3d 243, 247 (Tenn. 1999)). The decision of the trial court “will be upheld so long as reasonable minds3 In his appellat e brief , Husband ass erts that

the tri al memorandum subm itted the d ay of trial no ted H usba nd’s milit ary pensi on. The t ria l memor andum, howeve r, w as not inc luded in t

he re cord on a ppeal. Consequ entl y, it cannot be co nside red b y this Co urt. -3- can disagree

as to the propriety of the decision [of the trial court].” State v. Sc ott , 33 S.W.3d 746, 751 (Tenn. 2000). On appeal, Wife empha sizes the tr ial cour t’s oblig ation to e

nsure tha t the proper ty distribution is equitable. She argues that there is a diffe rence between

a “retirement account” and a “ pension,” a nd that therefore the portion of the final decree providing for a cross-waiver of the parties’ “retire

ment acc ounts” does not include Hu sband’s m ilitary pension. C onseque

ntly , becau se the parties’ divorce decree does not a ddress Husband’s military pensi on, the tr ial cour t failed t o fulfill its respon sibility

of en su ri ng an eq ui ta bl e d is tr ib ut io n o f t he co up le s’ ma ri ta l p ro pe rt y. Thus, the Wife asserts, the divorcedecree is incomplete and should be either vaca ted and remanded to the trial court, or alternatively , amended to reflect the equitable disposition of Husband’s military pension. Under Tennessee law, a motion to alter or amend under Rule 59 of

the Tennessee Rules of Civil Procedu

re perm its the tria

l court to r

evisit and rectify errors that were made wh en the court overlookedor failed to consider certain matters. Spence r v . Hurd Inv. Prop., Inc. , No. 67, 1991 Tenn. App. LEXI S 275, at *12 (Tenn. Ct. App. 1991). A Rule 59 motion may be gr

anted “when (1) controlling law changes before a judgment becomes final, (2) when pre viously unavailable evidenc e becomes available, or

(3) when, for sui gener

is reasons, a judgment should be amended to correct a clear error

of law or to prevent injustice.” Bradley v. McLeod , 984 S.W.2d 9 29, 933 (T enn. Ct. App. 1998), overruled in part on other grounds by Harris v. Che rn , 33 S.W.3d 741 (Tenn. 2000). A Rule 59 motion should not be granted when the movant

is simply seeking to relitig ate a matter that has already

been adjudicated. See id. Wife’s argument

on appeal is premise d on her a ssertion t hat the f inal dec ree doe s not addr

ess the Husband’ s m il it ar y pension. The circumstances, however, indicate othe rwise. During the settlement

negotiations, Wife was represented by counsel. She does not dispute that she was aware of Husband’s military pension. 3 The cro ss-waive r in the final decree

indicates clearly

that the parties intended for each party

to retain the bene fits that p ertaine d to that pa rty , and that

they intended to resolve all property division issues. Wife’s attorney at that time read the final decree and g ave coun sel for Husband permission to sign his name approving the final decree. Under a ll of thes e circumst ances, we must conclude that the parties intended for the cross-waiver to include

Husband’s military pension. T

hus, we f ind that the

trial cou rt did not e

rr in fin ding that the f

inal decree was intended to address the military pension, and consequently we conclude that the trial court did not abuse its discretion in denying Wife’s Rule 59 motion to alter or amend.-4-

The decision of the trial court is affirmed. Costs are taxed to the appe ll ant, Carolyn Joy Morrison, and her surety , for which execution may issue if ne cessary .



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_ HOLLY K. LILLARD, JUDGE