### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE Assigned on Briefs A

pril 10, 2000
THOMAS HORACE JOINER v. DORA B ELL TAYLOR JOINER
Direct Appeal from the Chancery Court for Stewart County No. 94-7-025, Robert E. Burch, Chancellor

No. M1999-01721-COA-R3-CV - Filed March 28, 2001

Wife appealsthe conversion from a divorce from bed and board (now known as a “legal separation”) to an absolute divorce, claiming the trial court was required to hold another evidentiary hearing concerning the support and pr operty rights of the parties. The parties had ostensibly agreed to a final division of property at the time of the divorce from bed and board, and the tria l court had held a later hearing regarding the fairness of the division and Wife’s capacity to make such an agreemen t. Because we find that the tr

ial court ma de “a final and complete adjudication of the support and property rights of the parties,” as requi red by statute, when it incorporated the agreement of the parties at the time

of the divorce fr

om bed and board, w

e affirm the tria

l court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed and Remanded

P ATRICIA J. C OTTRELL , J., delivered the opinion of the court, in which B EN H. C ANTRELL , P.J., M.S, and W ILLI

AM C. K OCH , J R ., J., joined. David D. Wolfe, Dickson, Tennessee, for the appellant, Dora Bell Tay lor Joiner. Jack M. Rudolph, Clarksville, Tennessee, for the appellee, Thomas Horace Joiner.
OPINION

This is the parties’ second appearance before this court, see Jo iner v . Joiner , No. 01A01- 9710-CH-00593, 1998 WL 426887 (Tenn. Ct. App. July 29, 1998) (no Tenn. R. App. P. 11 application filed). I. Background

Thomas HoraceJoiner (“Husband”) filed a complaint for absolute divorce from Dora Bell Taylor Joi ner ( “Wi fe”) in 1 994 , aft er fo rty- f our years o

f marriage, on

grounds of irre

concilable differences and inappropriate marital conduct. Wife answe red, denying inappropriate marital2

conduct on her part, admit

ting irreconci

lable differen

ces existed be tween the parties and alleging that she was entitl ed to a divo rce on severa l named groun ds. A hearin g w as set for July 18, 1996, at which both parties were

represented by

counsel and which

resulted in

an agreement. The trial court’s order, entered

September 27, 1996, states:

. . . it was announced to the court that the parties had reached an agreement settling all matters in dispute between them. The parties announced that they had ag reed that
a Bed and Board Divorce should be entered which shall be converted to an Absolute Divorce effective November 1, 1996. The Court further reviewed the ec

onomic terms of the settlement agreement filed with the court. The Court finds that the terms of the settlement between the parties is fair and equi table and the Agree ment is adopted, ratified and approved by the Court. . . . A Bed and Board Divorce

is hereby granted . . . Effect ive November 1, 1996, this Bed and Board Divorce shall be converted to an Absolute Divorce . . .”

A three page handwritten document, signed by both par ties and notarized, was attached to the order. Thedocument stated, a mong other thing

s, that the parties agreed to a divorce from bed and board at that time, which would convert to an absolute divorce three and one-half months later. It also stated, “Through Oct. 31, 1996 Mr. Join er will continue to maintain Mrs. Joiner

on his
me dical ins urance policy.” This agreed-upon provision was desig ned to ensure that Ms. Joiner maintained health insurance until she became eligible for Medicare. The agre ement reserved to each party a life estate in di

fferent real p

roperties, with th

eir sons to have the re

mainder interest

s in the properties

. It divided the bank accounts, the personal property , and an expected settlement in a lawsuit. Husband was to retain his disability, social secu rit y, and retirement benefits and to pay Wife $300 per month beginning August 1, 1996 until her death or remarriage, or until Husband’s death.

On November 8, 1996, after Wife had reached her sixty-third birthday, and after the divorce, by its terms, would hav

e converted to a

n absolute divorce

, Wif e filed a Tenn. R. Civ. P. 60.02 motion, seeking to s et aside th e “final decr ee,” claimi ng that when she signed t he agr eeme nt she “was not at her normal state of mind, sig ned the agree

ment under duress

and does not even r

ecall signing the agreement,” because she had taken medication the morning of the hearing to relieve her stress. She later amended theRule 60.02 motion to include claims that the agreement did not include all of the parties’ property and that the property division was not equitable.

The trial court held a hearing on Wife’s motion. It accepted the depositions of Wife’ s physician and her former counsel, and heard testimony from Wife, Husband, two of the

parties’ sons, and a real estate appraiser. The court noted that several people had seen Wife in court on the d a y trial was scheduled, and that “no one noticed any indication that she was in any way aff ected.” The court reviewed the property division and stated, “The Court does not find that there is so much disparity in the property

interest as to

indicate any

impairment on her part.” Regarding Wife’s allegationthat some of the property had not been included in the agreeme nt between the parties, the court stated, “[T]he Court is of the opinion that the meat store fixtures and so forth were de minimis and that they were actually included in whoever received the farm, that is, life estate

to Mr. Joiner3

and the remainder to the boys.” The court then denied Wife’s motion to set aside t he absolute divorce.

Wife appealed to this c

ourt, arguing

that the trial cour

t erred by d

enying he r motio n to set aside the “final decree.” Joiner , 1998 WL 426887 a t *1. This court dete

rmined:

The decree of divorce from bed and board entered onSeptember 27, 1996 was a final appealable

judgment as to the divorce from bed and board. However, the peculiar wording ( shall be ) prevented it from being a final, appeala ble judgment of a

bsolute divorce which had not, at that time, been granted. Until the Trial Court enters an order granting an absolute divorce w hich is effective upon entry, the matter of the granting of an absolute divorce will not bethe subject of a final, appealable judgment and the Trial Court will be free to revise its tentative prospective decision to grant an absolute divorce on a future date.

Id. at *1. This court further noted that a conversion f rom a divorce from bed and board to an absolute divorce required

a petition to be filed by one of the parties. Id . at *2. Because no petition ha d bee n filed, we held that the “anticipatory grant of an absolute divorc e effective November 1, 1996, was ineffective.” Id. Because the “final decree” granting an absolute divorce was not “final,” and because a Rule 60.02 motion applies only to final judgments, we found the “arguments of the parties as to the correc

tness of the denial of Rule 60.02 become moot.” Id. We vacated that portion of the trial co urt’s order prospecti vely granting a final divorce. However, we affirmed that portion of the order deny

ing of relief to

Ms. Joiner as to

the divorce from bed

and board under Rule 60.02.

After remand from this court, Husband filed a petition for absolute divorce, which s tated, among other things, “[Th e parties] remain

separated. . . . A

ll other matt

ers have pre viously been resolved.” Wife filed an answer, including a counter petition for absolute divorce, but stating, “Since the parties are still legally married, and separated unde r a Divorce from Bed and Board, this court is required to [make] a final and compl ete adjudica tion of the support and property rights of the parties unde r T.C.A. 36-4 -102. [Wife] does not believe that the terms of the Marital Dissolution Agree ment

previously e

xecuted are fair

and equitable an

d hereby wi

thdraws from said

agreeme n t as is her right at any point until the entry of a Final Decree

of Divorce.” Maintaining that the trial court was required to hold an evidentiary hearing, Wife sought “ a full hearing and

full and complete adju d ication of [her] right to sup port and property

rights,” “alimo

ny in an amou

nt sufficient to maintain her standard of living” prior to the separation, and “an equitable division

of all the parties ’ marital property

.” Wife’s pleadin

g did not allege

any new fa

cts.
On November 16, 1998 , the tr i al court heard a

rguments and dir

ected the partie

s to submit briefs in supportof their respec tive positions. The c

ourt took the matter

under advisemen

t, and on May 27, 1999, the same chancellor who had presided over the matter t hroughout entered a memorandum

opinion which reviewed

the procedural history, considered the arguments and denied Wife's petition. Regarding the original’s order’s delay in the grant of the a bsolute divorce, the court stated:4

The reason for this un

usual provision wa

s that [Wife's] medic

al insura nce benefits (through [ Hus band's] insurance policy at his place of employ ment) would be terminatedif the parties we re awarded an a

bsolu te divorce. Therefore, a divorce [from bed and board] wa s awarded for th

ree and one-ha

lf months until [Wif

e ] attainedthe age of 63 (October 27, 1996) at which time she could be covered by Medicare.

* * *

From the outset, the Court notes that [Wif e] waited until afte

r the conversion d

ate containedin the marital dissolution agreement before voicing any objection thereto. Thereafter, she has continually attempted to abrogate the a greement that she made and agreed to

in open court. The

Court cannot help b

ut be suspicious and

notes that, if the objection had been made and acted upon soon after the agreement was made, [Wife] could have been left without medical insurance. She waited until it was to her advantage to attemptto go back on h er wo rd. Tho se w ho s eek e qui ty mu st d o eq uit y.
The court determine

d that a “hearing

is not required, but often necessary” when a party seeks to convert a divorc

e from bed and boa

rd to an absolute di

vorce. It the

n determined th

at a hearing
was not necessary

in this case beca

use the agree

ment between the

parties was inten

ded to be final and had been approved by the court. The trial court stated:

But for the attempt to a

llow [Wife] to

keep her health

insurance until

she qualified for Medicaid, the divorce would have been absolute. The Court has reviewed the marital dissolution agre

ement and finds it to

have been th

e in tent of the partie

s to make a final disposition of their mar ital property

and spousal suppor

t.
* * *

To hold otherwise would allow [Wife] to ag ree to a d ivision, take adva ntage of its provisions, then, when a substantial benefit had been exhausted, abrogate her agreement

and renegotiate the provisions of the property and support agreement from a much improved bargaining position. This defies equity and common sense.

Wife filed a timely notice of appeal, raising only one issue: Whether the trial court erred by denying her request for an evidentiary hearing when converting the

divorce from bed

and board to an absolute divorce.1 Tenn. Code Ann. § 36-4-102 was amended by 1998 Tenn. Public Act s, ch . 1059, § 2 , which, among ot her things, removed the

designat ion “div orce from

bed and board” from the st atutes and i

nserted“legal separ

ation.” That l egisla tion passed in May 1998, and became eff ective on Januar

y 1, 1999, while t

he trial court had this

matter under adviseme nt. The lang uage relied upon by W ife, regarding a “final and com plete adjud ication” was n ot changed

. 5 II. Anal ysis

Because the question for review is one of statutory interpretation, we review the trial court 's deci sion de novo on the record with no presumption of correctness attached. Hill v. City o f Germantown , 31 S.W.3d 234, 237 (Tenn. 2000).

W ife co ntends that the language of Tenn. Code Ann. § 36-4-102, 1 "The court granting the absolute divorce shall make a finaland complete adjudication of the support and property rights of the parties," requires the court to hold another evidentiary hea ring before

the divorce becomes final. We do not interpret

this language

as requiring an

other evidentiar

y hearing, simply

an "adjudication." The trial court herein made such an adjudication after heari ng arguments, considering briefs, and reviewing the prior proceedings. Wife did n ot allege any new facts which would require new evidence. Although in most cases an evidentiary hearing will be

required at the t

ime an absolute divorce is awarded, that is not always true. In many cases, an order g ranting a divorce from bed and boardis not i nt ended to make final disposition of the parties’ property. In those situations, the parties seek a legal separation without knowledge that a reconciliation will not be successful. Then, property distribution and support awards at the beginning of a legal separation are not intended to be a final adjudication of such issues if a reconciliation does not occur. The trial court opined that “a final property hearing will usually be required,” since such a hearing is usually nec essary for a

reexamination of the temporary award of property andsupport made upon the grant of divorce from bed and board.

In the case before

us, however, the

parties initially

sought an absolut

e divorce and ag

reed to such divorce, but attempted to simpl y delay its effective date by a few months. The support and propertydivision wer e intended to be final. The parties agreed to a property division, signed and notarized it, and submitted it to the chancellor,

who incorporate

d it into the order. Upon Wife's motion to set aside, the tr

ial court held a c

omplete evidentia

ry hearing regarding bo

th Wife's capac

ity at the time of the agreement and the fairness of the agreement itself. We believe the trial court made
a “final and

complete adjudication of the support and property rights of the parties” when it entere d the o riginal order and affirmed that adjudication after a full hearing in its May 27, 1999 order. Therefore, the trial court was not required to hold yet another evidentiary hearing when converting the divorce from bed and board to an absolute divorce. We note that this court affirmed the trial court’s denial of Rule 60.02 relief with regard to the dis tribution of property in the order granting divorce from bed and board.6

In addition t o the language of the statute, Wife relies on Meriwether v. Meriwether, (no Court of Appeals number assigned) (Tenn. Ct. App. Dec. 28, 1979) (no Tenn. R. App. P. application filed),
an unpublished case

from this court, to support her argument that the trial court should have held a hearing. In Meriwether , one judge gr anted the wif

e a div orce from bed and board, based on the husband's inappropriate marital condu ct, a warded the wife the marital home, and ordered the husband to pay alimony. Meriwether at 1-2. Two years later, the husband filed a

petition, noting that the divorce from

bed and board had been in effect for two yea rs without a reconciliation, requesting that the wife be granted an absolute divorce, and asking that the court make a final adjudication of the support and property rights of the parties. Id . at 2.

The matter was he

ard before a se

cond judge, who e

ntered an order

which stated:

The Court was further of theopinion that the Court, upon the hearing of the original Complaint fo r Divorc e, had fully considered the support and property rights of the parties, and had entered a comprehensive Decree fully fixing the

rights of the plaintiff

. . . regarding alimony, support, and division of property

. . . and the Court

being of the opinion . . . that the property rights of the parties should be f

inally dete

rmined in accordance with the earlier Decree . . .

Id

. at 2-3. The wifeappealed to this court , arguing, inter alia , that the trial court was required to hear proof regarding the support and property rig hts of the parties. Id. at 3-4. We reversed, noting that "the
successor judge had no acces s to the information presented to the predecessor except through the recitations of the bed and board decree." Id. at 4. We considered the fact that the decree before the secondjudge contained no findingas to the total property owned by the parties. Id. at 5 . Si mil arl y, no evidence showed the first judge had co m plete information regarding the parties' property and income, or that he intended the divorce from bed and board to be a final division of property. Id. The secondjudge, without knowing the evidence presented to the first, declined to hear evidence himself. Id. at 3. We observe d that, becaus e a divorce from bed and board is generally considered a temporary

arrangement to provide for the needs of the parties and to encourage reconciliation, upon conversion from a divorce from bed and board to an absolute divorce, a court should re-examine the support and property rights of the parties in light of the impending permanent dissolution. Id. at 6.

The case before us differs from Meriwether

in two important respects. First, the chancellor who awarded Husband the absolute divorce has presided over this matter fr om the outs et. This chancellor

was quite familiar with the parties’ holdings and income, having alrea dy visited the agreement

twice, first at the original hearing and again on Wife's motion to set

aside. Second, thi

s divorce from bed and board was intended to become an absolute divorce in three and one-half months, so the support and d ivision of propert

y were in t ended to be permanent when the original order was entered. Th

ere was no intent

that a reconcil

i ation would even be attempted. The order of absolute divorce was to be delayed simply to pre vent a lapse of insurance

coverage for the wife. We also note that this court in Me riwether ac knowledged that making the property and support award upon a conversion from bed and board to an absolute di vorce without further hear ing is "permissible under the s tatute." Id.7

We affirm the trial court's entry of an absolute

divorce without a further evidentiary hearing regarding the support and property right s o f the parties. This cause is remanded for such further proceedings as may be required. Costs are taxed to the appellant, Dora Bell Tay lor Joiner, for which
exe cut ion may i ssu e if nece ssa ry.

____________________________________ PATRICIA J. COTTRELL, JUDGE