# FILED July 29, 1998 Cecil W. Crowson Appellate Cou rt Clerk THOMAS HORACE JOINER, ) ) Stewart Chancery Plaintiff/Appellee, ) No. 94-7-025 ) VS. ) ) Appeal No. DORA BELL TAYLOR JOINER, ) 01A01-9710-CH-00593 ) Defendant/Appellant, )

IN THE COURT OF AP PEALS OF TENNESSEE MIDDLE SECTION AT NASH VILLE APPEAL FROM THE STEWART COUNTY CHANCERY COURT

AT DOVER, TENNESSEE HONORABLE ROBERT E. BURCH, JUDGE
Jack Rudolph 107 North Third Street P.O. Box 925 Clarksville, Tennessee 37041-0925 ATTORNEY FOR PLAINTIF F/APPELLEE David D. Wolfe 505 West College Street Dickson, Tennessee 37055 ATTORNEY FOR DEFENDANT/APPELLANT



### VACATED IN PART, AFF IRMED IN PART, AND REMANDED

HENRY F. TODD PRESIDING JUDGE, MIDDL E SECTION-2-

CONCUR: BEN H. CANTRELL, JUDGE WILLIA M C. KOCH, JR., JUDGE
THOMAS HORACE JOINER, ) ) Stewart Chancery Plaintiff/Appellee, ) No. 94-7-025 ) VS. ) ) Appeal No. DORA BELL TAYLOR JOINER, ) 01A01-9710-CH-00593 ) Defendant/Appellant, )



## O P I N I O N
The defendant, Dora Bell Taylor Joiner, has appealed from the j udgment of the Trial Court denying her relief from a divorce decr ee under the provisions of TRCP Rule 60.02.

On November 16, 1994, the husband, Thomas Horace Joi n er, filed suit for absolute divorce.
On November 1, 1995, the wife, Dora Bell Taylor Joiner, filed an answer and counterclaim.

On July 18, 1996, the parties filed with the Trial Cour

t a marital dissoluti

on agreement.

On September 27, 1996, the Trial Court entered a decree of divorce from bed and board which provided: Th e Court further finds and grants a Bed and Board

Divorce between the par

ties to be convert

ed to an Absolute Divorce effective November 1, 1996. IT IS, THEREFORE, ORDERED , ADJUD GED AN D DECREED BY THE COURT THAT:-3- 1. A Bed a nd Bo ard D ivo rce i s he reby gra nted betweenThomas Ho race Joiner, Plain tiff and Dora Be

ll Taylor Joiner, Defendant on the ground of ir reconcilable differences.

Effective November 1, 1996, this Bed and Board Divorce shall be converted to an Absolute Divorce and o n Novemb e r

1, 1996 the partie

s shall be grante

d an Absolute Divorce from each othe r with Thomas Horace Joiner and Dora Bell Taylo

r Joiner being re

stored to all of the

rights, privileges and immunities of an unmarried person, the Court declaring themto be divorced on the ground of irreconcila

ble differences.
On November 8, 1996, the wife filed her motion for relief, and, on March 17, 1997, she filed an amendment to th e motion. Af

ter hearing evidence, on September 22, 1997, the Trial Court entered an order denying relief.
On appeal, the wi

fe presents a sin

gle issue as foll

ows: I. D id th e Trial Court err by overruling the defendant’s moti on to set aside the final decree of divorce filed pursuant to Rule 60.02 of the Tennessee Ru

les of Civil Procedure?
The decree of divorce from bed and board entered on September 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, appealable judgment of absolute divorce which had not, at that time, been granted. Until the Trial Court enters an order granting an absolute divorce which is effective upon entry, the matter of the granting of

an absolute divorce will not be the subject of a final, appealable judgment and the Trial Court will be free to revise its tentative, prospective, prospective decision to grant an absolute divorce on a future date. TRCP Rule 54.02.

The authority of

divorce courts

to convert a divorc

e from bed and boa

rd into an absolute divorce has long been recognized. Hackney v. Hackney , 28 Tenn., 9 Humph 450. In Linger v. Linger , 165 Tenn. 525, 565 S.S.2d 749 (1933), the Supreme Court recognized the unfairness of “enforced celibacy” and ordered a divorce from be d and board converted into an absolute divorce where there was no hope of reconciliation.-4- T.C.A. § 36-4-102 r

eads in part as fo

llows: (b) The circuit, chance ry or su c h other court spec

ially empowered

to grant divorces also has the po wer to g rant absolute divorces to eithe

r party where there

has been a final decreeof divorc e from bed and boar d, or of separate maintenanc e fo r more than two (2) years, upon a petition being filed by either party that sets forth the o riginal decree for divorce from

bed and board, or separate maintenance, and that the parties have not become rec onci led . The court granting the absolute

divorce shall mak

e a final and comp

lete adjudication of the support and property

rights of the par

ties. Howe ver, nothing inthis subsection shall preclude the divorce forum from granting an abs ol ute divorce before the two (2) years has expired. (Emphasis supplied)
In Abney v. Abney , 61 Tenn. App. 531, 4 56 S.W.2d 364, (1970) , this Court held that it is not mandatory that the absolute divorce be granted on the sole g round of two years separation withoutreconciliation, without pleading and proof of other g rounds. The same a

uthority hel

d that the policy of the law is to encourage recon ciliatio n rather than to reward a refusal to be reconciled. Riggs v. Riggs , 181 Tenn. 633, 184 S.W.2d 9 (1945). See also Matthews v. Matthews , 24 Tenn. App. 580, 148 S.W.2d 3, (1941).

Both the statute and the authorities appear to require a further petition o f a party and further consideration by the divorce court as a prerequisite to the conversion of a divorce from bed and board into an absolute divorce.

Since the record contains no such supplemental petition, the September 27, 1996, ant icipatory

grant of an absolute divorce effective November 1, 1996, was ineffec tive. T h e “shall be” verbiage of the September 27 order was co nfirma tion of this procedural omission. The anticipatory grant of an absolute divorce cannot be considered a final judgment from which relief can be granted under Rule 60.02 which provides t hat it is applicable only to final judgments.-5- In view of the foregoing, th e arguments

of the parties as to the correctness of the denial of Rule 60.02 bec ome moot. That part of the judgment of the Trial Court which denied relief under Rule 60.02 is affirmed.
That part of the judgment of the Trial which granted an absolute divorce is vacated withoutprejudice to further hearing, consideration and action by the Trial Court upon the subject of an absolute divorce. The cause is remanded for further proceedings. Costs of this appeal are taxed against the

appellant.


### VACATED IN PART, AFF IRMED IN PART, AND REMANDED.

___________________________________ HENRY F. TODD PRESIDING JUDGE, MIDDL E SECTION

CONCUR:

_____________________________ BEN H. CANTRELL, JUDGE

_____________________________ WILLIA M C. KOCH, JR., JUDGE