### IN THE CO URT OF APPEALS OF TENNE SS EE AT NASHVILL E Ju ly 9, 20 09 Ses si on

TAMMY TEAL B ENNETT v. DAVID ROS S BENNET T

Appeal f rom the Circ uit Court for Willi am son Coun ty No. II-01304 Jeffrey S. Bivi ns, Ju dge

No. M2009- 00147-COA-R 3-CV - F iled Novem ber 16, 2009

Wife appea ls claiming trial court err ed in finding her ag ree ment to a Marital Dissolution Ag ree ment and Parent ing Plan was valid and not obtained under duress. Finding that wife later adopted the disputed Marital Dissolution Ag ree ment and Parenting Plan with advice of counsel and without any alleg ation of duress, we find that wife waived her objection and, alterna tively
, that any dispute as to the validity

of her ag ree ment had bee n rende red moot by her later a doption of it.

Tenn. R. App . P . 3 as of Righ t; Judgm ent of the Circuit CourtAff irm ed

P A T R I C I A J

. C O T T R E L L , P.J .,M.S., delivere d the opi nion of t he court, in which A N D Y D. B E N N E T T and R I C H A R D H. D I N K I N S , J J ., joined.

Thomas F. Bloom, Nashville, Tenne ssee; C ar o ly n Kaye Carlisle, Fr anklin, Tenne ssee, for the appellant, Ta

mmy Tea l Be nnett.

Murre y Thomas Tay

lor, J r., F ranklin, Tenne ssee, f or the a ppellee, D avid Ross Benne tt.

OP INION

In this divorce action, Tammy Tea l Be nnett appea ls the trial court’s g rant of partial summary judgme nt which found that her ag ree ment to the Marital Dissolution Ag ree ment and Parenting Plan dated J une 2006 (collec tively ref err ed to as “June 2006 MDA/PP”) was not obtained under duress.

Tammy Tea l Be nnett (“Wife” ) and David Ross Be nnett (“H usband”) marrie d in 1993. Wife adopted Husband’s two children (born in 1982 and 1984), and two children wer e born during the marria g e in 1995 and 1997 respe ctively

. Wife filed for divorce in May of 2001. The rec ord ref lects that betwee n May of 2001 and J une of 2006, the parties enter ed into ag ree ments which wer e either challeng ed by

Wife or appa

rently ignor ed by

the par ties.In J une of 2006, the parties ostensibly ag ree d upon and executed t h e Marital Dissolution

Ag ree ment and Parenting Plan that comprise the J une 2006 MDA/PP. Almost immediately
, in J uly of 2006, Wife renounc ed a portion of t he J une 2006 Agree ments. Wife then m oved for dismiss al of the divorce petition, which the trial court g rante d in August of 2006. The trial court then set aside the dismiss al upon Husband’s motion in September of 2006 and allowed Husband to counter claim for divorc e.

On May 5, 2008, the trial court g rante d Husband partial summary judgme nt finding that the J une 2006 MDA/PP was valid and that Husband had substantially perf ormed under tho s e ag ree ments.

There afte r, in November of 2008, Husband filed a motion asking the court to g rant the parties

a divorce

. A hear ing was held on Husband’s divorce reque st on Dec ember 16, 2008. At that hear ing, howeve r, t h e trial court did not rule on Husband’s motion since the parties ag ree d to an irrec oncilable differ ence s divorce and ag ree d to incorpora te the J une 2006 MDA/PP into the decr ee. The Statement of the Evidence or Procee ding filed by Husband, without objection from Wife, ref lects the followingoccur

red at the Dec ember

2008 hearing:

J udg e Bivins asked Mrs. Be nnett if she wished to be divorce d from Mr. Be nnett and Mrs. B ennett re plied that she did.

The J udg e n ex t asked Counsel for the Plaintiff how her client wished to proce ed. He then asked if she wanted the Court to rule on Def endant’ s Motion to decla re the parties divorce d, or did she wan t t o h av e a divorce on the basis of irrec oncilable differ ence s. T h at C o u n sel for the Plaintiff told the Court that she would like to take a moment to discuss the matter with her client, at wh i ch t i me Tammy Tea l Be nnett and C. Kaye Carlisle, Attorney at L aw, had a discussion out of the hea ringof the Court, De fenda nt, and Def

endant’ s Counsel.

That at the conclusion of that discussion, Co unsel for Plaintiff, C. Kaye Carlisle, announce d that her client, Tammy Tea l B ennett, wished to proce ed on the g rounds of irr econc ilable diffe renc es and obta in a divorce that day

.

That the Honora

ble J udg e J eff Bivins, Circuit Court J udg e, administered the Oath to the Plaintiff and Def endant, and questioned both Plaintiff and Def endant as would be done in a

ny other irr econc ilable diffe renc es divorce

.
The J udg e asked both Plaintiff and Def endant if there exis ted betwee n them such irrec oncilable differ ence s that they could no longe r live as husband and wife to which they

both answer ed; “yes.”

He asked both P laintif

f and Defendan t if they wan ted him to grant them

a divorce on the basis of irr ec o ncilabl e dif ference s and to incorporate the

-2-Marit al Di s s o l u tion Agre em ent and P arenting P lan he had fou nd to be a

contrac t between them on May 5, 2008 into the F inal Dec ree to wh ich they both

answ ere d; “yes.”

That the Honora

ble J eff Bivins found that there wer e irrec oncilable differ ence s betwee n the parties and found that they should be divorce d. He instructed Counsel for the Def

endant to prepa

re a Final Dec ree and incorporate the previously ref ere nced Marital Dissolution Ag ree ment and Parenting Plan into said Final Dec ree

.

That t he par

ties left t he courtroom and C ounsel for the Def endant prepar ed

a Final Dec ree pursuant to the parties’ testimony in open court and same was lodge d with the Clerk on Dec ember 17, 2008, and copie d to Counsel for the Plaintiff.

That on Dec ember 22, 2008, Counsel for the Plaintiff lodge d a simil ar Final Dec ree with the Clerk which also incorpora ted the amende d Marital Dissolution Ag ree ment and Parenting Plan that had been found to be a co ntrac t betwee n the parties on Ma

y 5, 2008.

That the Honor able c ourt signe d Def endant’ s Final De cre e on Decembe r 23, 2008, and filed sa

me as the F inal Dec ree in this cause. (e mphasis added)

.
Wife appea ls, arguing that the May 5, 2008 partial summary judgme nt order finding the J une 2006 MDA/PP to be valid is in err or because Wi fe’ s consent was obtained in 2006 under duress. On appeal, Hu s band arg ues not only the validi ty of t he 2006 MDA/PP, but also that Wife waived any objection to those ag ree ments when she agree d to incorporate it into the fi nal decr ee in Dec ember

of 2008.

I. A N A L Y S I S

The rec ord shows that Wife appea ls the validity of the J une 2006 MDA/PP on the g rounds that in 2006, when she enter ed into those ag ree ments, she was under duress. Wife makes no claim that she was under duress when she agree d to incorporate them into the final decr ee in Dec ember of 2008.

Whatever may have been Wife’s objections in 2006, at the Dec ember 2008 divorce hear ing, 1 when asked by the trial court whether she wanted a divorce based on irrec oncilable differ ence s and to incorporate the J une 2006 MDA/PP into the Final Dec ree , W ife answe red y es. Wife g ave this

re sponse in open court, in the prese nce of her attorney , and afte r private consultation with h er attorney

.

T h e r e a p p e a r s t o b e a n i s s u e o n a p p e a l a s t o w h e t h e r W i f e r a i s e d d u r e s s t o t h e t r i a l c o u r t d u r i n g t h e s u m m a r y 1 j u d g m e n t p r o c e e d i n g s

. S i n c e w e f i n d t h a t s h e w a i v e d a n y p o s s i b l e o b j e c t i o n , w e a r e a s s u m i n g t h a t t h e i s s u e w a s

a d e q u a t e l y r a i s e d b e f

o r e t h e t r i a l c o u r t

.
-3-Wife’s appea l fails on two g rounds. First, Wife waived any objections she may have had to

the J une 2006 MDA/PP. Waiver requ i re s an intentional or voluntary relinquishment of a known rig ht. Gaston v. Tenn. Farmers Mut. Co.
, 120 S.W .3d 815, 819 (Tenn. 2003) (quoting Chattem, Inc.

v. Provident Life & Acc ident
, 676 S.W .2d 953, 955 (Tenn. 1984)). The intentional relinquishment may be shown a number of way s, including express decla ration, acts and dec larations showing an intent not to claim the rig ht, or by course of conduct or fail u re t o ac t evidenc ing an intent to relinquish the rig ht. Gaston , 120 S.W .3d at 819.

In this c ase the waiver could hardly be clea rer

. Wife knew of any objections she may have had to the J une 2006 MDA/PP. Wife asked the court to incorporate the J une 2006 Ag ree ments into the Final Dec ree

. The trial court did not err by allowing the parties in Dec ember 2008 to agree upon t h e divorce and to ag ree upon the proper ty division and pare nting arr ang ement. Th at W i fe h ad previous objec t i o n s to the J une 2006 MDA/PP did not preve nt her from waiving those objections and ag ree ing to adopt the proper ty division and pare nting arr ang ement incorporated in the J une 2006 MDA/PP.

Second, the issue is moot. A case will be considere d moot if it no longe r serve s as a means to provide some sort of relief to the party who may preva il or if it no longe r prese nts a prese nt, live controve rsy

. State v. Ely
, 48 S.W .3d 710, 717 n.3 (Tenn. 2001); County of Shelby v. McW

herter
, 936 S.W .2d 923, 931 (Tenn. Ct. App. 1996). W h er e a m at t er h as been resolved, that claim must be dismiss ed as moot. County of Shelby, 936 S.W .2d at 931

.
Wife ag ree d to the J une 2006 MDA/PP twice
, in June of 2006 when she executed it a nd in Dec ember of 2008 when she ag ree d to include it in the decr ee. Even if we assume that the trial court

err ed and the Wife was under duress when she ag ree d to it in 2006, Wife ag ree d to incorporate it into her divorce decr ee in 2008. Consequently
, Wife’s subsequent behavior rende red any dispute about the validity

of the June 2006 MDA/PP moot when she late r aske d the cour t to adopt it.

Consequently
, we aff

irm the trial court’s final judgme nt. Costs of appea l are assessed ag ainst the appe llant, Tammy

Tea l Be nnett, for whic h execution may issue if nec essar

y

.

____________________________________ PATRI CI A J . COTTREL L , P.J ., M.S.

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