1 

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

OF APPEA LS OF TEN NESSEE WESTERN SECTION AT J ACKSON

______________________________________________________________________________ LINDA ANN CARLTON, Haywood Chancery No. 9797 C.A. No. 02A0

1-9503-CH-000

50 Plaintiff/Appellee, Hon. George R. Ellis, Judge v. JAMES THOMAS CARLTON, Defe nda nt/A ppel la nt. HAROLD F. JOHNSON, Jackson, Atto rney for Plaintiff/Appellee. PAT H . MA NN, J r., Br

own svi ll e, Attorney f

or De fend ant/A ppel la nt. AFFIRMED Opinion filed:

______________________________________________________________________________ TOMLIN, Sr. J. This cur ren t litiga tion is wha t w e sh all c all e conomic f allout from an earlier domestic relations c ase. Linda Ann Carlton (“plaintif f”) filed suit for divorce in 19 90 from James Thom as Carlton (“de fendant”) in the Chancer y Court of Haywood County. In Oc to be r 1 991, th e ch an cello r g ra nt ed p la intiff a divorce from defendant

on the grounds of

crueland inhuman trea tment , awarded joint

custo dy of the p arties’ 28 year-old handicapped daughter, Donna,with t he princi pal place of residenc e with plai ntiff, d iv ided the parties’ marit al property, and awarded rehabilitative alim ony and attorney’s fees to pla intiff. Defe nda nt app eal ed to this
cou rt. The primary issues presented on appea lrelated t o the custo dy of t

he part ies’ daughter, the division of m arital property, and the award of rehabilitat ive alimony and att orney’s fees to plaintiff. The record reflects t hat t he marital property was valued in exces

s o f t wo m ill ion dollars ($2,000,000), with defendant and plaintiff receiving sligh tly over one mi ll ion dol lars ($1,000,000) each as a result of the chancel lor’s d ecree.
The relevan t portion of this court’s opinion and judgment filed September 24, 1993 deals with the trial court’s d ivision of the parties’ marital property. Defendant’s1 For a detailed explanation o f the resolution of these matters by this court, see Carlton v. Carl ton , No . 02A01 -9207- CH- 001 96, 1993 WL 38200, at

*7 (Tenn. App. Sept. 24, 1993). 2 primaryissue on a ppeal was t hat t he tr ial court erred in a warding all of t he part ies’ fa rmla nd to pl ain tiff. D efen dan t conte nde d that th e eff ect of this a war

d was to reduce h is abil ity to earn a livel ihood.
The record in the t

rial court reflected that the parties had each cont ributed sub st an tially to t he acquisition of t

he farmland that was a major port ion of their maritalproperty. The record also reflected that the majorit

y of the cro ps sold by the part ies’ farm was raised on land owned by the parties. The record before t his court also reflected that

pl ain tiff d id n ot obje ct to a division of the farmland between the part ies. Stat ed another way, a t tria l, plaintiff submitted a propo salto the chancell or wherebycertain spec ific t ract s would be awarded to her and others would be awarded to defendant. In e xchange for giving up her

claim to the tra cts of land awarded to de fendant , plaint iff pro posed t

hat s h e would receive a $442,600 promissorynote paya ble over ten years at one percent

over prim e fro m d efen dan t, secured by a mortgage on defen dant’s lan d.
With the exception of t he award o f the 9.5 a cre tr act o n which t

he house and barns are located to defendant , this court

accepted the division of pr oper ty suggested by plaintiff. W e therefore m odified the tr ial court’s division of marital prop ertyin th at re gard. 1 We con cl ude d that th e total val ue of the re al prop erty awarded to defendant was $429,200. We subt

racted from this amount the sum of $78,000 in undistributed cash earnings from Poplar Corner Farms (t he name of the part ies’ fa rm) that we fou nd h ad b een erro neou sl y award ed b y the tri al cou rt to defendant

. We then held as follows:
We therefore subt

ract $78,0

0 0 fr om $429,200, le aving a total of $351,200

payab le by Def

endant toPlaintiff over t en years at one percent over the prime in terest rate. Th e note is to be secured by farmland awarded to De fenda nt under the divo rce decree as mod ifie d by th is c ourt.3

Carlton v Carlton , N o. 02A01 -9207-CH -001 96, 1993 WL 382002 , at *7(Tenn . App . Sep t. 24, 1993).
No appeal was taken by either party from the opinion and judgment of this
cou rt. The cause was remand ed to the Chancery Court of Haywoo d County for the impl ementation of the order of this court. From reviewing this record since the remand, it appears t

hat neit her the trial court nor eit her of the part

ies have taken the necessary steps

to cause t

o be executed and issued by defendant a promissory note payable to plaintiff in the amount of $ 351,200 at

an interest

rate of o ne percent over prime, payable monthly, and secured by a deed of trust const

ituting
a first lien aga inst the real prope rty awarded to defen dant by this court as part of its modification o f the division of marital property in t he original decree.
In June 19

94 plaint iff filed a petit

ion entit led “Petition Alleging Contempt and
a Motion for Enforcement of the Term s of

the Orders of t

he Court.” Insofar as is relevant to this appeal, pl aintiff contended that defend ant was in con t empt of court for failing to make monthly payment s to her pursuant

to t he divor

ce decree
as modified by this co urt. Plaintiff called upon the trial court t o direct defendant to abide by the orders of the court

. It was further alleged that plaintiff had failed to make monthl y payments for sever al m onths in connection therew ith.
Defendant

filed a response to plaintiff’s pet ition in t he form of an Answer, in which he st

ated i n part

as follows:
4. He admits that the Court of

Appeals ordered him to pay $351,200. 00

to t he petit ioner as set out

in paragraphs

11 and 12 of t

he petition bu t w

ou ld showto the Court that t he ten-year paymen t period was for the benefit

of the defendant

and not t

he petit ioner since she can earn th e sa me amount of int erest on ot

her investments of the proceeds. 5. He woul d show to the Court that on May 1 8, 1994, he had his atto rneymail to t

he att orneyfor the pet

itioner a check in t

he amount of $360,629. 48, a copy of which is attac hed t o this answer, which represented the $351, 200.00 plus $9,429. 48 i ntere st. He, t herefore, denies the all egations contained in paragraphs 14, 15, 16 and 17 of4 the pet ition.
Plaintiff in tur n filed a pl ead ing entitl ed “ Respons e to Affirmative Allegations in Answer, ” which in r elevant part

reads as f

ollows:
4. It is admitted t

hat t here was a letter from t he Atto rney for the Defe nda nt, dated May 18, 1994, received i n the office of the at torney for the plaintiff. It was soon thereaft er called to t

he att orn ey for the d efendant’s

att ention t hat t he letter had been received; ho wever , there was no chec k enclosed. 5. The att

orn ey for

the defendant was furt her advised that payment

in a lump sum did n ot co mply

with the Orders of the Court of Appeals, and that

plaintiff expe cted the pa yme nts to be made in accord wit

h the orders o f the Court of App eals.
The tria l court co nducted a hearing on t he issues r

aised by these pleadings, at t he conclusionof which it st ated:
On the issue of t

he land payment, the Court can see the benefit to both part

ies of a lump sum p aym ent , ho weve r, t

he s ame does not app ear to have an option by the decision of t he Court of Ap pe als , and the Court

finds t hat J ames Carlt

on must pay the $3

51,200.00

on a mon th lybasis at 1 percent over prime for a period of t en years. The Court further finds t

hat Mr. Carlton has not made his paym ent for February1st t

hrough September 1, 1994, and gives Lin da Ann Carl ton judgment

for the same at

1 percent over p rime rate for each mont h.
In its orde r ent

ered following t

he hearin g the court

stat ed:
Defendant

sha llpay to t

he Plaintiff the $351,200 awarded to Pla intiff on a mon th lybasis at 1% o ver prime over a period of t en (10) years

, a s ordered by the Cour t o f Appe al s, Wes

tern Secti on, J ackson , in i ts decision filed on the 24th day o f September, 1993. Plaintiff shall have Judgment against Defendant for th e pay me nts

due to be made bythe Defendant to t he Plaintiff pursuant t

o the Orders of the Court of

Appeals, W

ester n Section, at

Jackson , for t

hose paym ents due on Febru ary 1, 1994 through September 1, 1994, as indicated on the schedul e attached hereto and ma rked Exhi bit “1" to this Order, for a tot al of $40,833.93
. On appeal defendant contends t hat the tri al cou rt err

ed i n re fusing to all ow hi m to pay

pl ain tiff th e in deb tedn ess of $35 1,200

in on e l um p su m pa yme nt. However, in his brief defendan t fa ils to ci te a single case as authorit y for being5

entitled to t

he relief sought therein. Defendan t cites no authority for the proposition that h e may prepay the debt, nor does he cite any authority for the proposition that th e t ria l co urt

wou ld have jurisdiction t o modifya fin al jud gme nt of thi s co urt. No peti tion t

o rehear was filed foll owing the entr y of the ea rlier opini on an d judgment

of this court on September 24, 199 3, nor was

any app eal t

ake n t her efr om. Furthermore, the obligation creat ed b y th is court in t

he September 1993 opinion and jud gme nt is n ot one dealing with a limony or child supp ort,but is a modi fication of the t

rial court’s distributio n of the part ies’ marital property. Unlike awards of alimony and child support, the t rial court does

not have continuing jurisdic tion to make changes i n the distribution of mari tal property. See T.C.A. § 36- 5-101(a)(1) (

Supp. 1995). This contention is w ithout merit.
Accordin gly, we affir m the fi nding of

the t rial court

that the lump sum payment

of the land payment was not an option given by this court and that defendant

must pay the sum of $351,200 t o plaintiff

on a monthly basis at 1% o ver pri me over a period of ten years. To the ext ent tha t none of t

he other

jud gme nts of the trial court confl ict with this hold ing, they are affirme d as wel l.
This cou rt wi she s to m ake i t cl ear to both part ies, as well as to the trial court that in it s ear lier opinio n it did not give a “ judgment ” in favor of p laintiff

against def end ant. To the contrary, we d ire cted that pl ain tiff b e giv en a p rom iss ory n ote signed by

def end an t,pa ya ble mon th lyat a specific int erest rat e and secured by first dee d of tr

ust on the tra cts of

la nd a war

ded to def

end ant as

part o f th e distribution of marital pr operty in our prior opini on and judgment. Upon remand it is incumbent upon of t he tria l c ourt t

o ascertain t

hat t he directives of t

his court in its earlier opinion for t

he dis tribu tion o f the p artie s’ m arita l p rope rty ar e ca rri ed o ut. Defendant

is obligat

ed t o exe cute a deed of t rust to secure payment of t his promissorynote, which d eed of t rust sh all constit

ute a first

lien upon t

he subject propert ies. The trial cour

t shall have the obligation of ca lcul ating any credits for6

paym ents

her etofo re m ade by de fend ant to ward this indebtedness and said
cre dits shall be dul y acknowledged in a form satisfact ory to t he parties. Co unsel for both part

ies are strongly encouraged t o cooperate wit

h eac h othe r and with the court t

o bring this mat

ter toa close within 45 days following the date of remand to the trial court.
P laintiff has requested tha t this co urt declare defendants’ appe al to b e frivolous and assess

costs
. Inasmuch as succes sful litigants should not have tobear the expense and vexation of groundl ess appeal s, the appel late courts are empo wer

ed to a ward reaso nable damages, including legal expen ses, aga inst appe ll ants

whose appea ls are frivolous or taken solel y for dela y. See Davis v. Gu lf Ins. Group , 546 S.W.2d 583, 586 (Tenn. 1977); T.C.A. § 27-1-122 (1980). Anappeal is considered to be frivo lous if it is devoid o f me rit

an d if it ha s lit tle chance of

success. Libe rtyMut. Ins. Co. v. Taylor , 590 S.W.2d 920, 922-23 (Tenn. 1979); Industrial Dev . Bd.
v. Hancock, 901 S. W.2 d 382, 385 (

Tenn. A pp. 19

95). In the case before us, defendant’s

ap pe al p res

ent s nodeb at

ab le questions of law and is dev oid of m eri t. As already noted, defendant presented no l egal authorities for the relief which he sought in his brief, nor was defendant’s counsel able to present any to t his court at ti me of ora l a rgu me nt. Accordi ngly, we hold that this app eal is frivolous and remand the mat

ter t o the tria l co urt for a hea ring for the purp ose of assessing damages and costs pursuant t o T.C.A. § 27-1-122. Having previousl y stated our affirmanc e of the decree of the chancellor, this
caus e is r em and ed to th e tria l c ourt f or fu rther

proc eed ing s not i nco nsi sten t with this opinion. Cost

s in this cause on ap pe al a re ta xed to defendant , for wh ich execution ma y issue if nec essary.

________________________________________ TOMLIN, Sr. J.

________________________________________7 HIGHERS, J. (C ONCURS)

________________________________________ FARMER, J. (C ONCURS)