1

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

August 10, 2016 Session

MITCHELL HUNTER OAKES v. PATRICIA MARIE OAKES

Appeal from the Probate and Family Court for Cumberland County

No. 2013-PF-3362 Sam E. Benningfield, Jr., Judge

No. E2016-00274-COA-R3-CV-FILED-DECEMBER 28, 2016

In this divorce case, Mitchell Hunter Oakes appeals the trial court’s division of the 

marital estate. Husband’s appellate brief contains no case citations or references to the 

record. Furthermore, there is no authority cited other than the statute addressing a 

division of marital property. These multiple deficiencies are clear violations of Tenn. R. 

App. P. 27(a). In addition, Husband’s brief does not contain a table as required by Court 

of Appeals Rule 7. As we have held on numerous occassions, deficiencies such as these 

constitute a waiver of any issues raised by the offending party. Because of these 

omissions, this appeal had no reasonable chance of success. Accordingly, we agree with 

his former spouse, Patricia Marie Oakes, that his appeal is frivolous in nature. Therefore,

Wife is entitled to recover from Husband her reasonable fees and expenses incurred on 

appeal. Appeal dismissed. 

Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed; Case Remanded

for Further Proceedings

CHARLES D. SUSANO, JR., delivered the opinion of the court, in which FRANK G.

CLEMENT, JR., P.J., M.S., and JOHN W. MCCLARTY, J., joined.

Mitchell Hunter Oakes, Crossville, Tennessee, appellant, pro se. 

Randal R. Boston, Crossville, Tennessee, for the appellee, Patricia Marie Oakes. 

OPINION
2

I.

The parties were married on July 4, 2009. No children were born to their union. 

Husband filed for divorce on May 23, 2013. On December 23, 2013, the trial court 

granted the parties a divorce on stipulated grounds, reserving the issue of the division of 

marital property. That issue was heard on November 30, 2015. The only witnesses were 

the parties. Husband represented himself at trial and on this appeal. 

The trial court entered an order dividing the marital estate on January 4, 2016. 

The court awarded Wife casualty insurance proceeds of $197,000, resulting from a total 

fire loss of their mobile home. This award was burdened with the mortgage debt, which 

totaled approximately $132,500. Husband was ordered to reimburse Wife approximately 

$19,500 of the mortgage debt. The trial court awarded Husband real property, which 

consists of 89 acres. The mobile home was previously situated on that property. The 

court did not place a value on the real property. Husband estimated its value at $172,000, 

and Wife said she thought it was worth $187,000. The trial court divided the value of 

Husband’s pension, i.e., $303,894.68, equally between the parties. Each party received 

the personal property in his/her possession. Wife received two storage trailers, valued by 

Husband respectively at about $4,700 and $7,300. Husband timely filed a notice of 

appeal. 

II.

Husband presents the following issue, as quoted verbatim from his brief:

Whether the Probate and Family Court erred in holding that 

[Wife] was entitled to both trailers as one was taken out of the 

property dispute by the [trial court] prior to the final order, 

awarding one half of complete retirement annuity although 

marriage was only 3 years and 10 months of total 

contributions, awarding monies from the interpleader1that 

[Wife] was not named on the insurance policy, awarding 

reimbursement of loan payments on property to [Wife], 

failing to award [Husband] his own personal property or to 

allow filing of the trial brief and exhibits as a motion was 

entered the day prior to a holiday and no working day prior to 

final hearing. 

 

1

In an earlier separate action, Homesite Insurance Company paid into court the aforesaid 

homeowner’s insurance proceeds of $197,000.
3

III.

Wife argues that Husband’s brief does not comply with Tenn. R. App. P. 27, 

pointing out that “[c]ourts have routinely held that the failure to make appropriate 

references to the record and to cite relevant authority in the argument section of the brief 

as required by Rule 27(a)(7) constitutes a waiver of the issue.” Bean v. Bean, 40 S.W.3d 

52, 55 (Tenn. Ct. App. 2000). We agree. Husband’s brief lacks a single citation to the 

record. Instead, he refers us to numerous “exhibits” attached as an appendix to his brief. 

These are photocopies of various documents, some of which appear to be copies of 

documents entered as trial exhibits. There are no references in Husband’s brief to the 

pages in the record where these exhibits were introduced. A fair number of these 

documents appear to be copies, the original of which are not contained in the record. 

Husband’s brief also lacks any citation to legal authority other than Tenn. Code Ann. § 

36-4-121, the marital property division statute. As we observed in Bean, Rule 27(a)(6) 

requires a statement “setting forth the facts relevant to the issues presented for review 

with appropriate references to the record.” Id. at 54 (emphasis added). Rule 27(a)(7)(A)

requires argument “with citations to the authorities and appropriate references to the 

record (which may be quoted verbatim) relied on.” Id. (emphasis added). Moreover, 

Court of Appeals Rule 6(b) provides:

No complaint of or reliance upon action by the trial court will 

be considered on appeal unless the argument contains a 

specific reference to the page or pages of the record where 

such action is recorded. No assertion of fact will be 

considered on appeal unless the argument contains a 

reference to the page or pages of the record where evidence of 

such fact is recorded.

Id. We concluded in Bean that “[p]laintiff’s failure to comply with the Rules of 

Appellate Procedure and the rules of this Court waives the issues for review.” Id. at 55. 

This principle has been followed and applied many times. See, e.g., Murray v. Miracle, 

457 S.W.3d 399, 403-04 (Tenn. Ct. App. 2014); Chiozza v. Chiozza, 315 S.W.3d 482, 

488-89 (Tenn. Ct. App. 2009); Worley v. White Tire of Tenn., Inc., 182 S.W.3d 306, 311 

(Tenn. Ct. App. 2005); Messer Griesheim Inds. v. Cryotech of Kingsport, 131 S.W.3d 

457, 474 (Tenn. Ct. App. 2003). In addition, Court of Appeals Rule 7 requires the 

following in appeals of divorce cases involving distribution of marital property:

(a) In any domestic relations appeal in which either party 

takes issue with . . . the manner in which the trial court 

divided or allocated the marital property or debt, the brief of 

the party raising the issue shall contain, in the statement of 
4

facts or in an appendix, a table [that] shall list all property and 

debts considered by the trial court, including: (1) all separate 

property, (2) all marital property, and (3) all separate and 

marital debts.

(b) Each entry in the table must include a citation to the 

record where each party’s evidence regarding the 

classification or valuation of the property or debt can be 

found and a citation to the record where the trial court’s 

decision regarding the classification, valuation, division, or 

allocation of the property or debt can be found.

In Forbess v. Forbess, 370 S.W.3d 347, 354-55 (Tenn. Ct. App. 2011), we said the 

following: 

In the recent case of Harden v. Harden, No. M2009–01302–

COA–R3–CV, 2010 WL 2612688 (Tenn. Ct. App. June 30, 

2010), this Court discussed the Rule 7 Table:

This Court has previously held where an 

appellant fails to comply with this rule, that 

appellant waives all such issues relating to the 

rule’s requirements. This Court is under no 

duty to search a trial court record in order to 

discern the valuation of the couple’s property.

This Court has previously found issues 

involving the valuation and division of property 

waived for failure to comply with Rule 7.

Id. at *8 (citations omitted). In explaining the necessity of 

the Rule 7 Table, we further stated:

[I]t is essential that the parties comply with 

Rule 7 in order to aid this Court in reviewing 

the trial court’s decision. The table required by 

Rule 7, allows this Court to easily and correctly 

determine the valuation and distribution of the 

marital estate as ordered by the trial court. 

Further, the Rule 7 table, allows this Court to 

ascertain the contentions of each party as to the 

correct valuations and proper distribution, as 
5

well as the evidence in the record which the 

party believes supports its contention. 

Consequently, a table, in full compliance with 

Rule 7, is vital as this Court must consider the 

entire distribution of property in order to 

determine whether the trial court erred. 

Moreover, this Court is under no duty to 

minutely search the record for evidence that the 

trial court’s valuations may be incorrect or that 

the distribution may be improper.

Id.

While we may excuse Wife’s failure to include a chart in her 

appellate brief, see Tenn. R. App. P. 2, we cannot overlook 

Wife’s failure to cite any applicable law in her brief 

supporting her arguments regarding the division of marital 

property, other than the distribution of marital property 

statute, Tennessee Code Annotated Section 36–4–121. This 

court has repeatedly held that a party’s failure to cite 

authority for its arguments or to argue the issues in the body 

of its brief constitute a waiver on appeal.

This equally well-established rule has also been applied in many of our appellate 

decisions. See, e.g., Hopwood v. Hopwood, No. M2015-01010-COA-R3-CV, 2016 WL 

3537467, at *6 (Tenn. Ct. App., filed June 23, 2016); Akard v. Akard, No. E2013-00818-

COA-R3-CV, 2014 WL 6640294, at *4-5 (Tenn. Ct. App., filed Nov. 25, 2014); Butcher 

v. Butcher, No. W2011-01808-COA-R3-CV, 2012 WL 2107977, at *2-3 (Tenn. Ct. 

App., filed June 12, 2012); Townsend v. Townsend, No. W2004-02034-COA-R3-CV, 

2005 WL 3416310, at *6 (Tenn. Ct. App., filed Dec. 14, 2005). 

We are mindful that Husband has proceeded pro se for a significant portion of his 

action. In Murray, faced with a similar situation, we recently restated the following 

applicable principles:

Parties who decide to represent themselves are 

entitled to fair and equal treatment by the 

courts. Whitaker v. Whirlpool Corp., 32 

S.W.3d 222, 227 (Tenn. Ct. App. 2000); 

Paehler v. Union Planters Nat’l Bank, Inc., 

971 S.W.2d 393, 396 (Tenn. Ct. App. 1997). 
6

The courts should take into account that many 

pro se litigants have no legal training and little 

familiarity with the judicial system. Irvin v. 

City of Clarksville, 767 S.W.2d 649, 652 (Tenn.

Ct. App. 1988). However, the courts must also 

be mindful of the boundary between fairness to 

a pro se litigant and unfairness to the pro se 

litigant’s adversary. Thus, the courts must not 

excuse pro se litigants from complying with the 

same substantive and procedural rules that 

represented parties are expected to observe. 

Edmundson v. Pratt, 945 S.W.2d 754, 755 

(Tenn. Ct. App. 1996); Kaylor v. Bradley, 912 

S.W.2d 728, 733 n. 4 (Tenn. Ct. App. 1995).

Young v. Barrow, 130 S.W.3d 59, 62–63 (Tenn. Ct. App.

2003).

We are not unmindful of Plaintiffs’ pro se status and have 

attempted to give them the benefit of the doubt whenever 

possible. Nevertheless, we cannot write Plaintiffs’ brief for 

them, and we are not able to create arguments or issues where 

none otherwise are set forth. Likewise, we will not dig 

through the record in an attempt to discover arguments or 

issues that Plaintiffs may have made had they been 

represented by counsel. To do so would place Defendants in 

a distinct and likely insurmountable and unfair disadvantage 

as this Court would be acting as Plaintiffs’ attorney.

457 S.W.3d at 402; accord Chiozza, 315 S.W.3d at 487.

Finally, Wife argues that this appeal is frivolous. In Chiozza, another case 

involving a pro se post-divorce litigant whose appeal was dismissed for failure to comply 

with the rules discussed herein, we stated:

The decision to award damages for the filing of a frivolous 

appeal rests solely in the discretion of this Court. Whalum v. 

Marshall, 224 S.W.3d 169, 180–81 (Tenn. Ct. App. 2006) 

(citing Banks v. St. Francis Hosp., 697 S.W.2d 340, 343 

(Tenn. 1985)). “Successful litigants should not have to bear 

the expense and vexation of groundless appeals.” Id. at 181 
7

(quoting Davis v. Gulf Ins. Group, 546 S.W.2d 583, 586 

(Tenn. 1977)). An appeal is frivolous when it has “no 

reasonable chance of success” or is “so utterly devoid of 

merit as to justify the imposition of a penalty.” Id. (citing 

Combustion Eng’g, Inc. v. Kennedy, 562 S.W.2d 202, 205 

(Tenn. 1978); Jackson v. Aldridge, 6 S.W.3d 501, 504 (Tenn.

Ct. App. 1999)). We exercise our discretion under this statute 

sparingly so as not to discourage legitimate appeals. Id. In 

the instant case, given the state of the record and the state of 

Mr. Chiozza’s appellate brief, we can only conclude that his 

appeal had “no reasonable chance of success.” Whalum, 224 

S.W.3d at 180–81. Under these circumstances, we find that 

Mother is entitled to her reasonable fees and costs on appeal, 

and we remand the case to the trial court to determine the 

amount of the fee award.

315 S.W.3d at 493; see also Murray, 457 S.W.3d at 404 (holding appeal frivolous under 

similar circumstances). The principles of law we have discussed herein are firmly 

established. Under them, this appeal had no reasonable chance of success, so we hold it 

is frivolous. 

IV.

The issue raised by Husband has been waived for failure to comply with the 

Tennessee Rules of Appellate Procedure and Rules of the Court of Appeals. This appeal 

is dismissed, and the case remanded to the trial court for a determination and award of 

Wife’s reasonable attorney’s fees and expenses on appeal. Costs on appeal are assessed 

to the appellant, Mitchell Hunter Oakes. 

________________________________

CHARLES D. SUSANO, JR., JUDGE