FILED

March 25, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

JIMMY R. NORMAN ) CAMPBELL COUNTY

) 03A01-9702-CV-00047

Plaintiff-Appellant )

 )

v . )

)

PATRICIA NORMAN )

 )

Defendant-Appellee ) 

 )

AND )

 )

PATRICIA NORMAN )

)

Counter-Plaintiff and ) HON. CONRAD E. TROUTMAN, JR.,

Third-Party Plaintiff ) JUDGE

)

v . )

)

JIMMY R. NORMAN )

)

Counter-Defendant/ )

Appellant )

)

AND )

)

JAMES GREGORY NORMAN, )

CANDY HOLT (NORMAN), )

EMMA JANE NORMAN, et al. )

)

Third-Party Defendants/ )

Appellants ) AFFIRMED AND REMANDED

JOHN E. APPMAN OF JAMESTOWN FOR APPELLANT CANDY HOLT NORMAN

JOHNNY V. DUNAWAY OF LaFOLLETTE FOR APPELLEE
1

Our use of the names of the parties should not be construed as

lack of respect, but rather is for ease of reference.

2

 O P I N I O N

 Goddard, P.J. 

The origin of this appeal was a suit for divorce

brought by Jimmy R. Norman against his wife, Patricia Norman, who

ultimately filed a counter-complaint against Jimmy R. 1 and a

third-party complaint against their son, James Gregory Norman,

Jimmy R.'s present wife, Candy Holt Norman, and Jimmy R.'s

mother, Emma Jane Norman. The judgment entered granted Patricia

a divorce from Jimmy R., divided the parties' personal property, 

declared a $150,000 promissory note--executed by Jimmy R. and

Patricia in favor of Emma Jane and secured by a deed of trust--

unenforceable as to Patricia, voided the trust deed which

conveyed property ultimately awarded Patricia by the Trial Court,

granted Patricia $300 per month and placed a lien on real

property owned by Jimmy R. and Candy Holt to secure payment of

the alimony.

All of the Normans, except Patricia, appeal, raising

the following issues:
2

Initially a non-contested divorce was granted Jimmy R., which was

later set aside upon the Trial Court's sustaining Patricia's Rule 60 motion.

3

Jimmy R.

1 . Did the Court properly set aside the divorce. 2

2 . Did the Court properly set aside the property

settlement agreement.

James Gregory

I

The property conveyed by the appellant, JAMES

GREGORY NORMAN to CANDY HOLT (NORMAN) under general

warranty deed should not be made subject to lien in

favor of PATRICIA NORMAN to secure the payment of

alimony by JIMMY R. NORMAN. This would cause the

appellant, JAMES GREGORY NORMAN, to be responsible to

CANDY HOLT (NORMAN) under the general warranties

contained in his deed to her.

The property conveyed to the appellant, JAMES

GREGORY NORMAN, by PATRICIA NORMAN and JIMMY R. NORMAN

should not be subjected to a greater share of the One

hundred fifty thousand ($150,000.00) dollars note by

the modification of note as to PATRICIA NORMAN and the

deed of trust to other property.

I I

The Court erred in not granting his Motion for

Summary Judgement, for it was undisputed that he had

done nothing to either conceal assets or do any thing

else improperly as to PATRICIA NORMAN.

Candy Holt (Norman)

1 . Did the Court properly impose a lien to

secure the payment by JIMMY R. NORMAN of alimony upon

the property conveyed to the appellant, CANDY HOLT

(NORMAN), by JAMES GREGORY NORMAN by deed dated

February 12, 1993, of record in Deed Book G-7, page 279

which had been conveyed to JAMES GREGORY NORMAN by deed

of JIMMY R. NORMAN and wife, PATRICIA NORMAN dated

January 3, 1991, of record in Deed Book Z-6, page 220

of the Register's Office of Fentress County.
4

2 . Did the Court err in denying the appellant,

CANDY HOLT (NORMAN), Motion for Summary Judgement based

upon the deposition of PATRICIA NORMAN wherein when

asked "What has Candy Holt Norman done to conceal

assets?" Her reply was "I know of nothing." (Tr. Vol.

IV, page 85, line 15, Exhibit of the deposition of

PATRICIA NORMAN, taken July 21, 1994, page 21, line

10.)

Emma Jane Norman

1 . The Court erred in modifying the note and

deed of trust executed by the appellee, PATRICIA

NORMAN, and the appellant, JIMMY R. NORMAN, payable to

EMMA JANE NORMAN.

2 . The Court erred in not granting her Motion

for Summary Judgement, for it was undisputed that she

had done nothing to either conceal assets or do any

thing else improperly as to PATRICIA NORMAN.

The original petition for divorce was filed by Jimmy R.

on December 21, 1992. Although the parties were residents of

Fentress County, it was filed in Campbell County to avoid adverse

publicity. The decree, dated December 16, incorporated a

property settlement agreement also dated December 16. It 

recited that the hearing was held on December 8, and was filed on

December 21, the same date as the petition. 

On July 23, 1993, Patricia filed a Rule 60 motion

seeking to set aside the divorce decree and property settlement

incorporated therein, previously entered. On September 25, 1993,

the Trial Court granted Patricia's Rule 60 motion and restored

the parties to their prior marital status.
5

Thereafter, the case was tried before a jury to

determine which party was entitled to a divorce, resulting in a

jury verdict in favor of Patricia. Thereafter, the Court

resolved all remaining issues, including division of property,

alimony and liability of Patricia as to a $150,000 note held by

Emma Jane.

We deem it appropriate to first address certain issues

raised by Patricia. She first argues that because this was a

jury trial and Jimmy R. did not file a motion for a new trial he

may not prevail as to the issues he propounds. The fallacy of

this argument, however, is that it was a jury trial only as to

the fault of the parties insofar as the divorce was concerned and

not as to the matters raised by Jimmy R.

Patricia also contends that it was necessary for Jimmy

R. to file a notice of appeal within the prescribed time after

entry of the judgment granting the Rule 60 motion. We do not

perceive this to be a final order as to all issues, and for that

reason also reject this contention. We note parenthetically that

if the Rule 60 motion had been denied, it would have been a final

judgment, requiring entry of a notice of appeal within 30 days.

Patricia next contends that because there was no

transcript of the hearing concerning the Rule 60 motion filed

with the record, an issue as to the validity of the Court's

action may not be entertained. It does not appear from the
6

record that any oral evidence was introduced at the hearing but,

rather, only arguments of counsel and the affidavit filed by

Patricia. In light of this we deem it appropriate to address the

issues raised by Jimmy R.

As to his first issue, as we have already noted, the

original hearing on the divorce was held on December 8, 1992, 

and the decree signed by the Judge on December 16, both being

prior to the filing of the petition for divorce on December 21. 

We conclude the Trial Court properly granted the Rule 60 insofar

as setting aside the divorce in that there were no pleadings

filed or case pending when the hearing was held and the divorce

decree signed. It seems to us that as a general rule orderly

procedure requires a pending case before a valid decree may be

signed.

As to the issue regarding the property settlement, it

is clear from its specific terms that it was not intended to be a

final agreement but, rather, a "tentative" one:

14. The parties agree that this Agreement of this

date is a tentative agreement in that they agree that

the same might be modified in light of the

aforementioned tax consequences.

As to the issues raised by the other Appellants, James

Gregory, Candy Holt and Emma Jane, the Court implicitly found

that they, along with Jimmy R., had practiced a fraud on Patricia

by various conveyances of property which resulted in the property
7

ultimately decreed to her being subject to a $150,000 deed of

trust, while that ultimately received by Jimmy R. being free of

this indebtedness. It also appears that the $150,000 claimed to

be owed Emma Jane was in fact never loaned by her to Jimmy R. and

Patricia and that from the date of the alleged loan, December 13,

1991, no payment had ever been made as to either principal or

interest.

The Trial Court's implicit finding of fraud is gleaned

from his use of the following language:

This matter arises out of a Petition for divorce filed

by Jimmy Norman against Patricia Norman. The Defendant

filed an answer and a cross action for divorce and

requested a jury. The jury returned a special verdict

and held that the cross complainant was entitled to a

divorce. The Court therefore grants a divorce to

Patricia Norman against the cross defendant.

The parties shortly before the divorce entered into a

property settlement and made several deeds most all of

which didn't correlate with the property settlement. 

It appears that the cross complainant signed any

instrument which was presented to her. It is the

holding of the court that the cross complainant take

the residence of the parties along with the store

property. The parties executed a deed of trust to the

above property along with the oil company property to

secure the original petitioners mother for $150,000.00. 

The court voids this trust deed in so far as it applies

to the above mentioned residence and store property. 

The court vests the interest of Patricia Norman out of

the oil company property and the other property owned

by the parties.

The cross complainant at the time of the hearing

testified that she had a malignancy and was undergoing

chemotherapy and only able to work a limited amount. 

It is the holding of the court that she is entitled to

alimony in the amount of $300.00 per month. To secure

the payment of the same, the cross complainant is

secured by a second mortgage on the husband's and his

present wife who is a third party defendant.
8

Each party will pay their own attorney and the court

costs are taxed to the husband.

The evidence does not preponderate against the Trial

Judge's findings as to fraud, and the validity of the $150,000

indebtedness. Consequently, he was justified in fashioning the

property settlement as he did, as well as imposing a lien on the

property titled in the name of Jimmy R. and Candy Holt to secure

payment of the alimony awarded to Patricia.

Finally, we have not overlooked the assertion of James

Gregory, Candy and Emma Jane that in Patricia's discovery

deposition she did not contend that they had been guilty of any

wrongdoing. Her deposition, however, was taken in connection

with a motion for summary judgment and before she was apprised of

all the facts surrounding the various transfers.

For the foregoing reasons the judgment of the Trial

Court is affirmed and the cause remanded for such further 

proceedings, if any, as may be necessary. Costs of appeal are

adjudged against Jimmy R., James Gregory, Candy Holt and Emma

Jane and their sureties.

_______________________________

Houston M. Goddard, P.J. 

CONCUR:
9

________________________________

Charles D. Susano, Jr., J.

________________________________

William H. Inman, Sr.J.