# FILED
November 5, 1998 Cecil Crowson, Jr. Appellate Cou rt Clerk 

### IN THE COURT OF APPEALS OF TENN ESSEE

AT NASHVILLE

OTHA SMITH, ) ) Plaintiff/Appellant, ) ) Appeal No. ) 01-A-01-9802-CH-00068 VS. ) ) Giles Chancery ) No. 9074 MARJORIE SMITH, ) ) Defendant/Appellee. )
APPEALED FROM THE CHAN CERY COUR T OF GILES CO UNTY AT PULASKI, TENNESSEE THE HONORABLE JIM T. HAMI LTON, JUDGE

ROBERT D. MASSEY P. O. Box 409 Pulaski, Tennessee 38478 Attorney for Plaintiff/Appellant JOE W. HENRY, JR. 119 South First Street Pulaski, Tennessee 38478 Attorney for Defendant/Appellee

AFFIRMED AS MODIFIED AND REMANDED

BEN H. CANTRELL, PRESIDING JUDGE, M.S. CONCUR: KOCH, J. CAIN, J.- 2 - 

## O P I N I O N

Followingan in camera proceeding, the trial court declared the parties divorced, and awarded the real proper ty at issue to the husband . The wife fi led a Motion to Alter and Amend, which re sulte d in a new hearing, and a new decree whereby the real property w

as equally divi ded between the parties. Th e husband claimed on appeal that the trial court erre d in re-opening the c ase after his initial decree. We affirm the trial court, b ut we amend its final order to make sure there is no doubt that the parties have been legally divor ced.
I. Marriage and Div

orce

Otha Smith and Marjorie May married on November 16, 1993. Duri ng the course of their brief marriage, they purchased a 35 acre piece of land, which was titled in Mr. Smit h’s name alone. T he $5,00 0 down paymentfor the land was provi ded by Marjorie Smith. When the mortgage n ote was ren ewed, her n ame was added to the deed of trust. At

some point, the parties added to their holdings by purchasing a one acre tract, which was deeded in the names of both parti es.

On October 11, 1995, Mr. Smith fil ed a complaint for divorce, stating

as grounds cruel and inhuman treatment, or in the alternative irreconcilable differences. Ms. Smith answered, admitting that irreconcilable differences had arisen between the parties, bu t denying that she had been guilty of cruel and inhuman treatment. She also counter-claimed for div orce on the ground of inappropri ate marital conduct.

The case was set for trial , but was continued sev eral times because Ms. Smith’s attorney believed that her psychological

condition rendered her incapable of testifying in open court. The hearing was finally scheduled for Apri l 8, 1996. On that- 3 -

date, Ms. Smith’s at to rn ey , J oe W. H en ry

Jr ., ap pr

oa ch ed Mr . S mi th ’s

at to rn ey , W. Howell Forrester, and sug g ested that they avoid the acrimony of a trial, and submit the issues to some form of Alternate D ispute Resolution.

The attorneys agreed

to a procedure whereby the trial judge would hear each of the parties separately in his chambers, without their attorney s being present, and without limitation as to what could be discuss ed. The judg e would then render a decision b

ased on their

statements t

o him.

O n April 24, 1996, the trial court issued an order decl aring th e partie s divorced pursuant to Tenn. Code Ann. § 36-4-129(b), and awarding the husband all right, title and interest to the 36 acres. The wife was awarded the mobile home that she had purchased and placed on the pr operty, but was

ordered toremove it within thirty days.

On May 15, 1996, Ms. Smith filed a timely motion through her attorney to set aside the judgment of the tr ial court. See Rule 59.02, Tenn. R. Civ. P. In the alternative, she asked the court to alter or amend the judgment to make an equitable distribution of the marital estate. Mr. Smit h filed a response in opposition to the mot ion. The re sponse alleged that the parties had agreed that the trial court’s judgmentwould befinal , and that no change of circumstanc es had occurred to warrant a change in the order.

On March 10, 1997, the parti es schedul ed a hearing on Ms. Smith’s motion. On that da y, Mr. Henry and Mr.Forrester agreed to w aive the hearing on the motion, and to retry the case i nstead. The trial c ourt accordingly c onducted a complete trial, at whi ch both parties testified.- 4 - On March 2 1, 199 7 the trial court entered a new order, based on the hearing of March 10. The judge found that the 36 acre property was part of the marital estate, and that both parties had contributed to its a cquisition and preservation. He accordingly or dered that the property be s urveyed, a nd that it be divided equally between the parties. W. Howell Forrest er subsequently withdrew as counsel for Mr. Smith, and Robert D . Massey was enrol led in his place. Mr. Massey filed a Motion for Findings of Fact and Amendment of Judgment, which was denied. This appeal followed.

II. Arbitration or Waiver?

The appel lant argues that the trial court erred in re-opening the case afterissuing its decree of April 24, 1996. He contends that the procedure the parties initiallyagreed upon amounted to a type of Alternative Dispute Resolution (ADR) akin to binding arbitration, w ith the trial court acting as arbit rator. The appellant points out that under the Uniform Arbitrati on Ac t, Ten n. Code Ann. § 29-5-301, et seq ., an arbitration award may not be m odi fied or vacated except under circumstances not present here. See

Tenn. Code Ann. § 29-5-310, 313 and 314.
However, the proceedi ng conducted by the trial court differed in many impo rtant res pects from an arbitration of the sort which is governed by the Uniform Arbitration Act. It appears to us that some of the provisions of the Act were adopted as safeguards, to prevent parties from bei ng victimized by the very finality

that makes arbitration the procedure of choice for certa in types of disputes. Thus, an agreement to arbitrate must be in writing, Tenn. Code Ann. § 29-5-302(a). Further, a party may not waive hi s right to be represe nted by an attorn ey at any proceedin g or hearing. Tenn. Code Ann. § 29-5-307.- 5 - In the present

case, there was no written agreement to arbitrate, and the attorne ys have presented differing accounts as to the nature of the agreement they reached. The appellant submitted t he affi davit of Mr. Forrester, which was to the effect that he and Mr. Henry had agr eed that the decision of the judge following the in camera proceeding would be final, and the “case would forever be concluded based on his ruling.”

In response, Mr. Henry filed his own affidavit, in whi ch he explained the circumstances

that led him to suggest that some method of ADR be used todecide th e case, but denied that he had ever agreed to waive hi s right to appe al a n unfavorable outcome. Ms. Smith also filed an affidavit, in w hich she stated that her attorney told her that

if the decision was adv erse, the process of appellate review was still available.

Insofar

as the appellant is sugg esting that the appellee has l ost her right to a ppeal as the result of a wai ver, we must also r

eject that argument. Since th e opposing affidavits balance each other, we are obligated to find that Mr . Henry ha d not waived his cli ent’s right to appeal, for it appears to us that the greater burden of proof must rest on the person clai ming the waiver of a l egal right, not on the person attempting to exercise that right.

Mr. Henry also argues,correctly we bel iev e , that Mr. Forrester surrendered any objections he may hav e had to re-opening the case w hen he agreed to forego the hearing on Mr. Henr y’s motion to set aside the judgment, and to proceed directlyto a trial of the cause. This is borne out by a finding of the trial court in its order overruling Mr.Smith’s Motion for Findings of Fact and Amendment of Judgment. The Court finds thatprior to the March 10th hearing, in open court, everyone agreed, the parties as well as counsel, that the prior hearing held in chambers be t ween the Court and the partiesand the Court’s ruling based on that hearing, would be held do novo (s ic).- 6 - III. Correcting an Oversight

As we stated above, the trial court’s order of April 24, 1996 declared the parties divorced pursuant to Tenn. Code Ann. § 36-4- 129(b). The order of March 21, 1997 divided the property, but did not mention divorce. The appellant ar gues that the more recent order should be set aside because it is fatal ly deficient, and that a new hearin g should be ordered. He contends that the order of April 24 had been totally superseded, and that the more recent order fai led to deal with the pri mary issue before the court -- the dissolution of a marriage. A necessary corollary implication is that the parties are still married, and can no longer be con sidered to be legally divorced.

While we do not fault the appellant’s attorney for using

any wedge he can find to attack the property division, it is appar en t to us tha t the court’s failure to mention the divorce was a mere oversight. The appellee’s Statement of the Evi dence, which was adopted by the cour t, re veals that the court not only heard evidence relating to the property at issu e in the trial of Ma rch 10, but also evidence as to the viability of the marr

iage.

The evidence included testi mony that Mr. Smith abused h is wife throughout

the course of their marriag e, including physic al abuse so sever e that an ambulance had to be called, that he was a user ofdrugs, that he made threats w ith firearms, and that he was involv ed sexually wi

th young boys. No p urpos e can be served b y continuing a marri age under such circumstanc es. See Fox v. Fox

, 67 6 S.W.2d 956, 958 (Tenn. 1984). While we believe that the parties have been validly divorced, we direct the trial court to modify its order to reflect this fact, in order to remove any possible doubts as to the dissolution of the marriage between the parties.IV.

The order

of the trial court is affirmed as modified. Remand this cause to the Chan cery Court of Gil es County for further proceedings consistent with this opinion. Tax the costs on appeal to the appellant.

_____________________________________ BEN H. CANTRELL, PRESIDIN G JUDGE, M.S.

CONCUR:

_____________________________ WILLIAM C. KOCH, JR.,JUDGE

_____________________________ WILLIAM B. CAIN, JUDGE