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# FILED May 9, 1996 Cecil Crowson, Jr. App ellate C ou rt Clerk IN THE COURT

OF APPEA LS OF TEN NESSEE WESTER N SECTION AT J ACKSON

_____________________________________________________________________________ CHA RLE S STEV EN DEN BOW, Chester Chancery No. 8617 C.A. No. 02A0

1-9410-CH-00238 Plaintiff/Appellee, Hon. Joe C. Morris, J udge
v. SA NDR A KA Y DE NBO W, Defe nda nt/A ppel la nt.
MI CHAEL L. WEIN MAN, Tatum & Tatum , Henderson, Attorn ey fo r Def

end ant/A ppel la nt. MIKE M OSIER, Jackson, Attorney for Plaintiff/Appellee. REVERSED AND REMANDED Opinion Filed:

_____________________________________________________________________________ TOMLIN, Sr. J. This is a domestic relations case with an unusual twist. On May 3, 1994, plaintiff filed a compl aint in t he Chancery Court of Chester Co unty seeking a divorce fr

om d ef end an t o n t

he gr ou nds of ir rec on cila ble differenc es. At th e sa me time, pla int

if f f ile d a marit

al dissolution agreement (“agreement”)executed by t he parties on May 2, 1994. The agreement provided t hat t he parties would have joint custo dyof their t

wo minor children, then ages 13 and 15, with the children residing with plaintiff

. No child support was to be paid by either part y. In addition, the agreement

did not make any allowances for alim ony and purported t o divide the realand pers

onal prop erty b etwe en th e parti es. Plaintiff was represented by counsel at t

he time the part

ies executed the agreement , but defendant

was not. Sho rt lythere after, def

end ant empl oy ed counsel and o n June 3, 1994, filed a motion to set

aside the agreement. In her motion defendant cont ended that she
was forced t

o sign t he agree ment unde r duress and fear o f bodily ha rm. She also contended that

the agreement did not adequately pro vi de for the care and mainten ance of the parties’ minor c hild ren or make an equitable sett lement of the2

part ies’ property as required by T.C.A. § 36-4-103(b) (1991). Defendant’s motion asked the court

to set the agreement

asi de a nd a ll ow th e par ties to proc eed with the divorce as if the agreement had never

been exec uted.

On August 17, 1994, t

he chancellor hel d a hearing on the mot ion to set

aside the agreement. The part ies were the only witnesses to t estify. On August

31, 1994, the trial court ent

ered a final decree of divorce wherein the court ra tified and approved the agreement a n d awarded the parties an absolute divorce. This appeal followed. Defendant has present ed two issues for our considerat ion:
(1)Whether

the t rial court erred in refusing to set a side the Marital Diss olution Agreement because Mrs. Denbow was acting und e r duress, coercio n, and un du e in fluence when she signed the agreement; and (2)Whether

the t rial court erred in entering a final decree of divo rce in this ma tt

er on t he groun ds of t

he irreco ncilable differe nces since the m arital dissolution agreement executed by the part

ies did no t ade qua te lyprovide for the cus tody and maintenanc e of the children or provide for an equitab le settlement of the pr operty right

s between the parties as require d by T.C.A. § 36-4-103(b).

Notwithst

anding the a bove, it ap pears t o this court

that the r eal issu e presented by this appeal is whether t he chancellor was in a position to ente r a valid consent judgment when it readily appeared before t he court t

hat there was
no ag re eme nt

be t wee n t he pa rt ie s a t the time the ju dg men t wa s e nt er ed . Inour opinion, this was error on the part

of the chancellor.

It is undi sputed from this record t hat although defendant signed the agreement

on May 2, 1994, she exp resse d her repudiation of t he agreement 32 days la ter byfil ing a mo tion to s et asi de th e agr

eem ent a nd tr

y th e case as a contested divorce. Her repudiation was furt

her made clear t

o the court

by vir tue of her test

imony in open court on Aug ust 17, 19 94.3 This court is of t he opinion th at t

he resolut

ion of this issue is

governed by the principles

set forth by our supreme court in the case of Harbou r v. Br own for U lrich , 732 S.W.2d 598 (Tenn. 1987). Harbor involved a suit and a cou nte rsuit wh erein plaintiff sought specific perf

orm anc e of a n al le ged real estate contr act al ong w ith
an injunction against a t hreatened foreclosure action unde r an existing dee d of trus t. On the dat

e the case was set fo r trial the part ies announced to t

he court that they had reached an agreement and would submit a n order o f compromise and dismissal. The terms of the compromis e were not an nou nce d to the cou rt. Before entry of a n order in the case, it was brought to t he court’s at

tentio n that defendant

had withdrawn his

consent

to t he compromise . The co urt no nethe less entered an Order o f Compro mise and Dism iss al . Defe nda nt mo ved to vacate t he order and to reschedu le the case for tria l on the mer

its, but the t rial court overruled the motion and once aga in dism issed the cas e with prejud ice. Id.

In reversing the t

rial court, the Harbou r court set f orthits r atio nale as follows:

The resol ution of disputes by agree ment of the part

ies is to be encourag ed. But a valid consent judgment can not be ent

ered by a court whe n one party withdraws his consent and this f act is com mu nic ated to the c ourt p rior to entr y of the jud gme nt. The general rule defining the power of a court t o enter a consent judgment is set fort h in 49 C. J.S. J ud gments § 174(b), as follows: The power of the court to render a judgment b y consent is dependent on the existence of the consent of t he parties at the time the agreemen t receives the sanction of the court

or is rendered and pr o mulgated as a jud gme nt.

Id. (cit atio ns omit

ted) . The co urt f

urthe r sta ted:

A valid co nse nt

jud gme n t cannot

be rendered by a court whe n the consent of one of the parties thereto is wanting. It is not sufficient

to support

the judgment that

a party’s consent

theretomay at one time have been given; consent must exist at t he verymoment4 the court undertak

es to make the agreement the j ud gment of t

he cou rt.

Id. at 600 (

citing Burnaman v. Heaton , 240 S.W.2d 288, 291 (Tex. 1951)).

In Elrod v. Elrod , No. 03A01-9 108-GS-260, 19

91 WL 23 8233 (T enn. App. Nov. 1 8, 1991), the east

ern section of t

his court applied the pri nciples an nounced in Harbou r to a domestic relations case. In Elrod , th e part ies nego tiat

ed a settlement of all issues prior to trialwhich they orally announced to the court. At that time the p arties had not reduced their ag reement to writ ing in the form of a marital dissol ution agre ement . No furt

her p roce eding s we re h eld until a final judgm ent
was presented to the court fo r a pp ro va l. The trial court ent ered a final judgment of divorce over plaintiff’s object ions and without a signed mar it al dissol ution agre em ent. In Elrod , as in this ca se, there is no quest ion but t

hat t he trial judge knew before he ent

ered t he final decre e of divorce that a party ha d repudiated the agreemen t. The Elrod cou rt fou nd th at the tri al jud ge was w ithou t autho rityto enter a final d ecree. Id. at *1. W e are of the same opinio n in this case.

Accordin gly, the judgment of the trial court grant ing the part

ies a divor ce on the grounds of irreconcilable differen ces and approving the agreement is reversed. This case is remanded t o the tria l court. In connect ion wit h the remand,
we a re c ons

train ed to n ote the contents of defendant

’s motion toconsider p ost judgment

facts, which plaintiff did not oppose. The parties’ son, We sley De nbow, submitted an af

fid avit s tating that de fend ant an d he wer e att acke d by plaintiff and his girlfriend on Thanksgiving Day 1994 w hen they went to pl ain tiff’ s hou se to retrieve som e of We sl ey’s pers onal bel ongi ngs. Pri or to that in cid ent, Wesley had
m oved in with his mother and cont emplated living with her after his pare nts ’ divorce became final. WesleyDenbow also stated t hat his brother was also living with his mother at

that time.5 For the reasons herein st at ed, th e j udg men t o f t he tr ia l co urt is as to all matters reversed. This cau se is r em and ed to th e ch anc ery c ourt o f Che ster Coun ty for a hearing and determinatio n on the merits. The agreement st ands repudiated bythis record. Pursuant to provisio ns of T.R.A.P. 42, this case is t o be rem and ed to the trial court as soon as r easonably possible for such further and ot her proceeding s

that may be desirable and necessary, not inconsistent with the provisions

of this opinio n. Costs in t his cause on appe al are taxed to plaintiff, for which ex ecution may is sue if nece ssary.

______________________________________ TOMLIN, Sr. J.

______________________________________ CRAWFORD, P. J.

______________________________________ LILLARD, J.