IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

May 3, 2011 Session

UNA P. IRVIN v. ERNEST J. IRVIN, II

Direct Appeal from the Circuit Court for Montgomery County

No. MC-CC-CV-DV-09-0084 John H. Gasaway, III, Judge

No. M2010-01962-COA-R3-CV - Filed June 15, 2011

This is a divorce case in which Husband/Appellant appeals the trial court’s order. After a

thorough review of the record, we conclude that the trial court’s order is not final because

it fails to address Husband’s request concerning the sale of the marital residence. The order

is also deficient in that it: (1) is ambiguous and fails to resolve certain conflicts between a

mediation agreement and a stipulation entered by the parties; (2) fails to make the mandatory

findings as required by Tennessee Rule of Civil Procedure 52.01, and specifically fails to

properly value the marital property. We dismiss the appeal and remand for entry of a final

judgment, which resolves the ambiguities and is otherwise compliant with Tennessee Rule

of Civil Procedure 52.01.

Tenn. R. App. P. 3. Appeal as of Right; Appeal Dismissed and Remanded

J. STEVEN STAFFORD,J., delivered the opinion of the Court, in which ALAN E. HIGHERS, P.J.,

W.S, and HOLLY M. KIRBY, J., joined.

Donald N. Capparella, Nashville, Tennessee, for the appellant, Ernest J. Irvin, II.

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Lawrence J. Kamm and Stacey A. Turner, Nashville, Tennessee, for the appellee, Una P.

Irvin.

OPINION

Appellee Una P. Irvin (“Wife”) and Appellant Ernest J. Irvin, II (“Husband”) were

married in Fayetteville, North Carolina, on December 28, 1999. Two children were born to

the marriage; their respective dates of birth being September 28, 2001, and November 29,

2003. At the time of trial, Mr. Irvin was thirty-seven years old, and Ms. Irvin was thirty-

 We note that Mr. Irvin was represented by Mr. Robert J. Martin at the trial of this matter. 1
three. Ms. Irvin graduated from East Carolina University in 2000 with a degree in family

community services. Mr. Irvin has a degree in science and economics. He is a Major in the

United States Army, and has over nineteen years’ experience with the military. Mr. Irvin has

been deployed many times during the course of the marriage, including five deployments to

Iraq, two deployments to Afghanistan, and one deployment to Kosovo and Bosnia.

On January 21, 2009, after nine years of marriage, Ms. Irvin filed a complaint for

divorce in the Circuit Court of Montgomery County. On January 23, 2009, Ms. Irvin filed

a motion for contempt against Mr. Irvin, alleging that he had removed Ms. Irvin’s name from

the parties’ joint checking and savings accounts in violation of the temporary injunction

provided under Tennessee Code Annotated Section 36-4-106(d). On February 3, 2009, Mr.

Irvin filed both his answer and counter-complaint for divorce as well as a response to the

motion for contempt. There is no order in the appellate record indicating whether the trial

court granted or denied Ms. Irvin’s motion for contempt.

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After Ms. Irvin filed her complaint for divorce, the parties continued to live together

in the marital residence. However, on February 19, 2009, Ms. Irvin filed a motion for

exclusive possession of the marital residence. On the same day, Ms. Irvin filed her answer

to Mr. Irvin’s counter-complaint for divorce, along with a sworn income and expense

statement. Mr. Irvin opposed the motion for exclusive possession of the marital residence

and also filed his own income and expense statement.

Ms. Irvin’s motion for exclusive possession of the marital residence was heard on

February 26, 2009. Although the hearing was held on February 26, 2009, the order was not

entered until December 7, 2009; no explanation is given in the record concerning the delay

in entry of this order. The order grants Ms. Irvin the sum of $2,500.00 per month in

temporary spousal support. However, the order states that no temporary parenting plan is

needed because the parties and the children still reside in the marital residence. Ms. Irvin’s

motion for exclusive possession of the marital residence was denied based upon the court’s

findings that no physical violence had occurred and that the parties were able to occupy their

separate spaces within the marital residence. Specifically, the trial court found that “counsel

for both parties admit that no physical violence has taken place at this time, such that would

warrant an order for exclusive possession of the marital residence.” The court further found

that the arrangement with Mr. Irvin living in the finished basement “worked well.” Mr. Irvin

was given one hour of uninterrupted time with the children per day.

According to the record, after the court denied her motion for exclusive possession

No issue has been raised on appeal concerning the alleged contempt. However, our rulings herein

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do not preclude the trial court from re-visiting this issue on remand if necessary.

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of the marital residence, Ms. Irvin told her father, Jess Thompson, that Mr. Irvin scared her,

and that she was afraid he would “snap.” Ms. Irvin’s fears appear to be founded in her belief

that other soldiers were returning from the war with “post-traumatic stress.” Despite Ms.

Irvin’s concerns, as found by the trial court, there was no history of violence on the part of

Mr. Irvin. Nonetheless, on March 19, 2009, Jess Thompson filed a Congressional Inquiry

with United States Senator Saxby Chambliss’s office, claiming that Mr. Irvin was “abusive

to the point of perhaps killing [Ms. Irvin] and/or his children.” As a result of these

allegations, Mr. Irvin was presumptively removed from the marital home on March 24, 2009,

by military order, until an investigation could be completed. Mr. Irvin’s battalion

commander escorted him from the marital home as a precautionary measure based upon a

mandatory seventy-two hour no contact order. Although an investigation found no basis for

the charges in the Congressional Inquiry, Mr. Irvin’s commandersuggested that he not return

to the marital home in an effort to prevent further escalation of the situation. There is no

proof in the record to indicate that Mr. Irvin suffers from post-traumatic stress disorder. Mr.

Irvin was subsequently transferred by the Army to a new duty station in Alabama. Ms. Irvin

stayed in Clarksville.

On March 13, 2009, Mr. Irvin filed a proposed permanent parenting plan seeking to

be named as the children’s primary residential parent. On March 31, 2009, Mr. Irvin filed

a motion for injunction requesting that Ms. Irvin be enjoined and restrained from “continuing

to make spurious allegations to the Husband’s Chain of Command and/or Department of the

Army.” On March 31, 2009, Mr. Irvin also filed a motion to adopt his proposed temporary

parenting plan pending the final hearing. Therein, Mr. Irvin sought to be named the

children’s primary residential parent, pendente lite, based upon Ms. Irvin’s behavior.

Specifically, Mr. Irvin alleged that Ms. Irvin had spoken badly about him in front of the

children and had failed to encourage a relationship between Mr. Irvin and the children. Ms.

Irvin opposed Mr. Irvin’s motion and specifically refuted Mr. Irvin’s allegations. On April

29, 2009, Ms. Irvin filed her proposed temporary parenting plan, in which she sought to be

named primary residential parent and also alleged inappropriate behavior on Mr. Irvin’s part.

Specifically, Ms. Irvin asserted that Mr. Irvin was controlling to the point of abuse.

Based upon his allegations of inappropriate behavior, on May 11, 2009, Mr. Irvin

moved the court to allow the minor children to be evaluated by an expert of his choosing.

Ms. Irvin opposed this motion. These matters were heard on May 29, 2009. On June 29,

2009, the trial court entered its order on Mr. Irvin’s motion for injunction, his motion to have

the children evaluated, and his motion for entry of a temporary parenting plan. The June 29,

2009 order does not specifically grant or deny Mr. Irvin’s motion for injunction. However,

the order denies both his motion to have the children evaluated by his expert and his motion

for adoption of his proposed temporary parenting plan. Instead, the order appoints Dr. Janie

Berryman to independently evaluate the children and appoints Andrea Goble as guardian ad

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litem for the children. The order further names Ms. Irvin as the children’s primary

residential parent, pendente lite, and sets visitation for Mr. Irvin. The June 29, 2009 order

is sparse on findings of fact; however, the court does specifically state that:

The Court has considered the relevant factors enumerated in

[Tennessee Code Annotated Section] 36-4-404 and finds, for the

most part, that the parties are equally weighted with regard to

these factors. The Mother, however, has been the primary

caregiver for the minor children for the majority of their li[ves]

as Father has chosen, through his employment, to be away from

his children the majority of their li[ves]. Additionally, the

children have resided here in Clarksville for five years and the

Court finds that it is not in their best interest to relocate with

father to the state of Alabama at this time.... The Court finds

that the Father should have access to the children at all

reasonable times for visitation prior to his relocation to

Alabama.

On July 31, 2009, the parties filed a mediator’s report, which indicates that the parties

had reached a partial agreement as to the property settlement but that they could not agree

on a parenting plan. A Memorandum of Understanding (which is also referred to by the trial

court and the parties as the “mediation agreement”) was also filed with the trial court, along

with a “Stipulation” indicating how the settlement should be implemented. There is dispute

as to whether this “Stipulation” was properly entered into the record; we will discuss this

issue more fully below. Other portions of the parties’ settlement agreement later became the

subject of contested post-trial proceedings. Specifically: (1) how Mr. Irvin’s retirement

account should be divided, and (2) whether Ms. Irvin breached the settlement agreement by

not making timely mortgage payments. Both of these issues will also be discussed in more

detail below.

A final hearing on the issues of alimony, child support, and the parenting plan was

held on September 23, 24, and 28, 2009. Although the trial court made some findings from

the bench following the close of all proof, a final decree was not entered until May 27, 2010.

We note that the court’s findings from the bench were not incorporated into this decree.

On March 26, 2010, Mr. Irvin filed a motion to enforce the memorandum of

understanding and also moved the court to enter an order from the September 28, 2009

hearing. On March 30, 2010, Ms. Irvin filed her response to Mr. Irvin’s motion. Attached

to Ms. Irvin’s motion was a copy of the document titled “Stipulation.” There is no file stamp

on this “Stipulation.” In response, Mr. Irvin filed a notice of filing what purports to be a

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transcript of a ruling made by Judge Gasaway at the hearing on September 28, 2009;

however, we note that the proposed transcript is not certified by a court reporter. A hearing

was held on April 5, 2010. At this hearing, the court made no ruling but set the case for

further hearing, on April 27, 2010, to resolve any outstanding issues.

On April 16, 2010, Mr. Irvin filed a motion to clarify the record, requesting the court

to mark, as “Exhibit A,” the Congressional Inquiry, which was allegedly “considered and

excluded by the court for reasons set forth in the transcript.” This motion further states that:

(1) “Counsel intended the Congressional Inquiry to be marked for identification purposes

only for the record”; (2) “after the trial was over, Husband’s counsel was given back the

Congressional Inquiry by a courtroom officer”; (3) “Court had been adjourned”; and (4)

“Counsel hereby requests that the Court mark the attached as an exhibit that the Court

excluded from evidence.”

At the April 27, 2010 hearing, the court ordered Mr. Irvin to pay Ms. Irvin the sum

of $42,500.00 in cash, with 10% interest accruing from September 30, 2009. Concerning the

motion to clarify, vis a vis the Congressional Inquiry, the transcript of the April 27, 2010

proceeding indicates that the court granted the motion from the bench and marked the

Congressional Inquiry for identification purposes only; however, there is no order in the

appellate record stating that the motion to clarify was granted.

Before a final order was entered, Ms. Irvin commenced an action in the General

Sessions Court of Montgomery County. On May 5, 2010, Ms. Irvin obtained an order of

protection against Mr. Irvin, pursuant to Tennessee Code Annotated Section 36-3-601, etseq.

In seeking this order of protection, Ms. Irvin acted ex parte and without assistance of

counsel, and no notice of the general sessions court proceedings was given to Mr. Irvin or

his counsel. Moreover, it appears that Ms. Irvin did not inform the general sessions court of

the pending divorce matter in the circuit court. Ultimately, the general sessions court found

that Ms. Irvin had misled the court by obtaining the order of protection for the improper

purpose of circumventing the rulings of the Circuit Court, which had awarded Mr. Irvin

summer visitation with the children. Had the order of protection gone unchallenged, it would

have prevented Mr. Irvin’s summer visitation. Mr. Irvin moved the general sessions court

to dismiss the order of protection, which had apparently been based upon Ms. Irvin’s

allegation that Mr. Irvin had choked the parties’ six-year-old son during a visit in May 2009.

At the hearing on Mr. Irvin’s motion to dismiss the order of protection, evidence was

adduced indicating that Ms. Irvin did not take the child to the doctor until the day after he

returned from visitation with Mr. Irvin. The emergency physician’s record indicates that the

doctor observed “no visible marks” on the child and that domestic abuse was not indicated.

The police and the Department of Children’s Services were both notified; however, no action

was taken. At the general sessions hearing, Ms. Irvin made new allegations of inappropriate

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physical contact by Mr. Irvin concerning the parties’ seven-year-old daughter. The general

sessions judge ultimately found that the allegations of sexual abuse were unfounded, and

specifically stated that “this is clearly a case of [Ms. Irvin] trying to use these children against

[Mr. Irvin].”

Six days before the entry of the decree, Mr. Irvin filed an expedited motion to enforce

the trial court’s order with regard to his summer vacation, alleging that Ms. Irvin had

obtained an ex parte order of protection “for the improper purpose of circumventing this

Court’s recent final decree of divorce.” Ms. Irvin filed a pro se pleading in the trial court

attempting to explain the ex parte order of protection. Therein, Ms. Irvin again asserts her

belief that Mr. Irvin suffers from post-traumatic stress disorder and that he “will continue to

hurt not only his children, [but also] myself given the chance,” as well as “others around

him.” Again, no evidence was presented to indicate any propensity for violence on the part

of Mr. Irvin.

A decree from the September 23, 24 and 28, 2009 and April 27, 2010 hearings was

entered by Judge Gasaway on May 27, 2010. The order provides, in relevant part, as follows:

[T]he Court finds as follows:

1. ...[T]hat Husband is guilty of inappropriate marital conduct

and that in weighing his conduct against that alleged of the

Wife, the Court finds that his conduct preceded and was more

egregious and damaging to the marriage and therefore, the

Husband’s Petition for Divorce is dismissed and the Wife is

awarded a divorce on grounds of inappropriate marital conduct.

2. That the Court adopts and incorporates the Memorandum of

Understanding entered into between the parties in mediation

dated July 28, 2009 (exhibit A) into this Final Decree as

resolving, by agreement, many property issues between the

parties.

3. That the Court considered the relative factors set out in

T.C.A. 36-6-404 wherein the Court found that the majority of

the factors listed weighed equally on the part of the Mother and

Father with regard to determining a parenting plan, however, the

Court finds that the Mother has been the primary caregiver for

the minor children for the majority of their li[ves] and has

exercised a greater responsibility for caring for the children’s

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daily needs due to the Father’s numerous and lengthy

deployments through his military service. Further, the court

finds that these children have lived in Clarksville, Tennessee in

a very stable and satisfactory environment for a significant

period of their lives and that the Father will be moving at least

one more time through his military service within a year of the

date of the final decree. Considering all of the factors, the Court

finds that the Wife, Una P. Irvin, should be the primary

residential parent of the parties’ minor chil[dren]....

4. That the parenting plan submitted by the Wife took into

account more realistically than the parenting plan submitted by

the Husband the day-to-day activities, given the distance

between the parties. While the Court realizes that there cannot

be a parenting plan that pretends to give each of these parents

meaningful time on a day-to-day basis, there has to be every

effort made so that Husband can have as much time with the

children as possible.

* * *

5. The Court orders that the Husband was to pay unto the Wife

the sum of $42,500.00 in cash for her interest in the remaining

assets of the marriage and for various and other sundry items

stipulated between the parties and filed with the Court on

September 14, 2009 and enumerated to the Court on April 27,

2010. This cash payment to the Wife was due and payable by

the end of September, 2009. At that time, the Husband had paid

$2,500.00. The remaining balance of $40,000.00 accrued

interest at 10% per annum beginning October 1, 2009. The

Husband paid an additional $5,000.00 on this judgment on

January 27, 2010, for which he will be given credit on the full

judgment, with interest, as of the date of that payment. The

remaining balance will continue to accrue interest at 10% per

annum until paid in full by Husband. Additionally, the Husband

will not be given credit against this judgment for any mortgage

payments he made after September 28, 2009 and the remaining

balance of $35,000.00 will continue to accrue interest at 10%

per annum.

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* * *

9. That the Court approved the attorneys’ fees of the Wife’s

counsel as requested and awards a judgment to the Wife for

[$]16,620.00 in attorneys’ fees for which execution may issue.

The memorandum of understanding, which the parties entered following theirJuly 28,

2009 mediation, was attached to the trial court’s order and was incorporated by reference

therein. The memorandum of understanding provides, in relevant part, as follows:

1. The Wife shall receive all interest in the [marital residence],

for which she will be financially responsible. She shall

refinance the mortgage or sell the house within three years of the

entry of the Final Decree of Divorce. As long as the Husband

is responsible on the mortgage, he shall have access to the

mortgage account, and if the mortgage becomes over sixty days

in arrears, he may make the delinquent payments, conditioned

on the house being immediately listed for sale, and that he will

be reimbursed from the proceeds of the sale for any payments

that he makes.

2. The Husband shall receive either the IRA or the Thrift

Savings Plan [“TSP”] that is closest to the face balance of

$36,000.00, as of the date of this agreement. This is to equalize

equity in the marital residence.

3. The Wife will receive twenty-five percent of the Husband’s

military retirement pension, based on a Major (04) with twenty

years of service at retirement. The Wife shall not receive any

disability that does not offset retirement, such as combat related

disability.

4. The remaining retirement account not used to offset equity in

the house (IRA or TSP) shall be divided equally by Qualified

Domestic Relations Order.

In paragraph five of the trial court’s order, supra, Judge Gasaway refers to a

stipulation reached by the parties and filed with the court on September 14, 2009. There is

only one document in the appellate record that is titled “Stipulation.” This document, which

appears several times in the record, provides, in pertinent part, as follows:

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1. That the parties have previously agreed to divide the marital

estate, pursuant to the Mediation Agreement;

2. In addition to receiving the marital home, two (2) vehicles,

and other items in the mediation agreement, the parties further

agree that the WIFE shall receive $42,500.00 as her share of the

remaining assets, of which $2,500 has been paid.

As noted above, there is some dispute in the record concerning this “Stipulation.”

Specifically, there is no file stamp on this document. Moreover, the “Stipulation” is not

made an addendum to the trial court’s order. The question, then, is whether the “Stipulation”

should be considered part of this appellate record. From our review of the entire record,

there is no other document that could be considered a stipulation between the parties other

than that titled “Stipulation.” This document is signed by the attorneys for both parties, but

the Certificate of Service is not dated by the certifying attorney. Although there is no

explanation in the record as to why this document was neither stamped “filed” nor made part

of the trial court’s order, there is no dispute that this “Stipulation” was presented to the court

on September 14, 2009. Moreover, both parties’ attorneysrepeatedly allude to this document

in the transcript of the April 27, 2010 hearing. The better practice would have been for this

document to have been properly entered into the record via file stamp, or for the trial court

to have incorporated and attached it to its order. However, for the limited purpose of our

analysis, and particularly in light of the fact that the foregoing document is the only one in

the record that could be construed as the stipulation referred to by the court in its order, we

infer that the document titled “Stipulation,” and set out above, is a valid part of the appellate

record by virtue of the trial court’s reference to it in its order.

On June 25, 2010, Mr. Irvin filed a motion to alter or amend the decree, requesting

that, pursuant to Tennessee Rules of Civil Procedure 59 and 52.02 and “newly discovered

evidence,” the trial court amend the decree to name Mr. Irvin as the children’s primary

residential parent. Specifically, Mr. Irvin asserted that Ms. Irvin’s actions in obtaining the

ex parte order of protection, in the general sessions court, showed that the trial court had

erred in allegedly ignoring her previous attempts to obstruct Mr. Irvin’s relationship with the

children and had further erred in finding that Ms. Irvin would facilitate and encourage a close

and continuing relationship between Mr. Irvin and the children. Ms. Irvin opposed the

motion. By order of July 29, 2010, the trial court denied Mr. Irvin’s motion. Mr. Irvin

appeals and raises five issues for review as stated in his brief:

1. Whether the trial court erred in its enforcement of the

mediation agreement dividing the remaining retirement

accounts, when it ruled that all of the remaining payment should

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be in cash, contrary to the agreement’s specific reference that

such payment should be made using a Qualified Domestic

Relations Order?

2. Where the record showed that Ms. Irvin became more than

60 days in arrears on mortgage payments, and the mediation

agreement required the marital home should be immediately

listed for sale, did the trial court err by not enforcing the

mediation agreement?

3. Whether the evidence preponderates against the trial court’s

designation of Ms. Irvin as the primary residential parent for the

parties’ two children, where Ms. Irvin made false allegations of

child abuse and violence against Mr. Irvin,showing thatshe was

not able to foster a relationship between the children and their

father, and other factors showed it was in the child[ren]’s best

interest to be primarily parented by their father?

4. Whether the evidence preponderates against the trial court’s

finding of inappropriate marital conduct against Mr. Irvin?

5. Whether the trial court abused its discretion by awarding

attorney’s fees to Ms. Irvin?

Mr. Irvin has appealed the judgment of the trial court pursuant to Rule 3 of the

Tennessee Rules of Appellate Procedure. Although neither party raised the issue of whether

the order appealed is a final judgment, we are required to review the record sua sponte to

determine whether we have jurisdiction to adjudicate this appeal. See, e.g., State ex rel

Garrison v. Scobey, No. W2007–02367–COA–R3–JV, 2008 WL 4648359, at *4 (Tenn. Ct.

App. Oct. 22, 2008) (no perm. app. filed); Tenn. R. App. P. 13(b). Tennessee Rule of

Appellate Procedure 3(a) provides:

(a) Availability of Appeal as of Right in Civil Actions. In civil

actions every final judgment entered by a trial court from which

an appeal lies to the Supreme Court or Court of Appeals is

appealable as of right. Except as otherwise permitted in Rule 9

and in Rule 54.02 Tennessee Rules of Civil Procedure, if

multiple parties or multiple claims for relief are involved in an

action, any order that adjudicates fewer than all the claims or the

rights and liabilities of fewer than all the parties is not

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enforceable or appealable and is subject to revision at any time

before entry of a final judgment adjudicating all the claims,

rights, and liabilities of all parties.

Under certain circumstances, a judgment which adjudicates fewer than all of the

claims asserted by the parties may be made final and appealable pursuant to Rule 54.02 of

the Tennessee Rules of Civil Procedure. In order to enter judgment under Rule 54.02,

however, the trial court must make an explicit finding that there is “no just reason for delay”

and must expressly direct that a final judgment be entered. Tenn. R. Civ. P. 54.02. An order

is not properly made final pursuant to Rule 54.02 unless it disposes of an entire claim or is

dispositive with respect to a party. Bayberry Assocs. v. Jones, 783 S.W.2d 553, 558 (Tenn.

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1990). In the absence of an order meeting the requirements of Rule 54.02, any trial court

order that adjudicates fewer than all the claims or the rights and liabilities of fewer than all

the parties is not final or appealable as of right. Id.

In his second issue, Mr. Irvin asks this Court to order the sale of the former marital

residence based upon “facts” stated in his affidavit, which was attached as Exhibit B to his

motion to enforce mediation. Although Mr. Irvin’s motion was filed on March 26, 2010, and

was heard and denied from the bench on both April 5 and April 27, 2010, there is no written

order reflecting the trial court’s denial of Mr. Irvin’s request to order the marital residence

sold.

Tennessee Rule of Civil Procedure 3 limits the jurisdiction of this Court to hear

appeals. Specifically, this Court only has jurisdiction over appeals by right from final

judgments entered in the trial court. Tenn. R. App. P. 3(a). Because there is no order in the

record to indicate that the trial court, in fact, ruled on the question of whether the marital

residence should be sold, Mr. Irvin asks this Court to rule in his favor based only upon the

transcript. It is well settled that a court speaks through its orders. Palmer v. Palmer, 562

S.W.2d at 837. In Cunningham v. Cunningham, No. W2006-02685-COA-R3-CV, 2008

We recently have noted that, even if a trial court's order includes the necessary language from Rule 3

54.02, a final judgment pursuant to the rule is not appropriate unless it disposes of a claim or party. We

stated, “[a] ‘claim’ denotes ‘the aggregate of operative facts which give rise to a right enforceable in the

courts.’” Chook v. Jones, No. W2008–02276–COA–R3–CV, 2010 WL 960319, at *3 (Tenn. Ct. App. Mar.

17, 20 10) (quoting Christus Gardens, Inc. v. Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C., No.

M2007–01104–COA–R3–CV, 2008 WL 3833613, at *5 (Tenn. Ct. App. Aug.15, 2008), no perm. app. filed

(quoting McIntyre v. First Nat'l Bank of Cincinnati, 585 F.2d 190, 191 (6th Cir.1978))). Accordingly, “‘a

complaint asserting only one legal right, even if seeking multiple remedies for the alleged violation of that

right, states a single claim for relief.’” Id. (citing Id. (quoting Liberty Mut. Ins. Co. v. Wetzel, 424 U.S. 737,

744, 96 S. Ct. 1202, 47 L. Ed.2d 435 (1976))).

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WL 2521425 (Tenn. Ct. App. June 25, 2008), this Court explained:

A judgment must be reduced to writing in order to be valid. It is

inchoate, and has no force whatever, until it has been reduced to

writing and entered on the minutes of the court, and is

completely within the power of the judge or Chancellor. A judge

may modify, reverse, or make any other change in his judgment

that he may deem proper, until it is entered on the minutes, and

he may then change, modify, vacate or amend it during that

term, unless the term continues longer than thirty days after the

entry of the judgment, and then until the end of the thirty days.

Cunningham, 2008 WL 2521425, at *5 (citing Broadway Motor Co., Inc. v. Fire Ins. Co.,

12 Tenn. App. 278, 280 (1930)). Consequently, “[w]e do not review the court’s oral

statements, unless incorporated in a decree, but review the court’s order and judgments for

that is how a court speaks.” Id. Because there is no order, not only is there no basis in the

record from which this Court could determine the grounds for the trial court’s decision, but

this Court also lacks jurisdiction for want of a final order. Tenn. R. App. P. 3(a). Because

the trial court has failed to adjudicate all of the claims, and has otherwise failed to comply

with Tennessee Rule of Civil Procedure 54.02, we conclude that the order appealed is not

final and consequently fails to confer jurisdiction on this Court under Tennessee Rule of

Appellate Procedure 3.

Our normal course, upon a finding that the order appealed is not final, is to dismiss

the appeal or to ask the appellant to show cause why we should not dismiss his or her appeal.

Although we lack jurisdiction in this case to adjudicate the issues raised, in the interest of

providing an efficient and cost effective avenue for meaningful and proper review by this

Court should the appeal be re-filed, we feel compelled to discuss the deficiencies in the trial

court’s order so that they may be addressed upon remand.

The procedural problems in this record are myriad; however, the most significant

shortcomings are two-fold. First, the trial court’s order is ambiguous. Second, the order fails

to make specific findings as required under Tennessee Rule of Civil Procedure 52.01. In

order to demonstrate these defects, we will take the unusual course of discussing some of Mr.

Irvin’s issues to assist the trial court on remand. However, based upon our lack of

jurisdiction, we cannot adjudicate these matters.

Ambiguities in the Trial Court’s Order

Mr. Irvin asserts as his first issue that the trial court erred in not entering a Qualified

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Domestic Relations Order (“QDRO”) as provided for in paragraph four of the memorandum

of understanding, which memorandum was incorporated into the trial court’s order. See

paragraph four of the court’s order. Mr. Irvin couches his argument as a contract issue, i.e.,

the court did not properly enforce the memorandum of understanding between the parties.

In her brief, Ms. Irvin contends that this is not an issue that sounds in contract; rather, she

argues that this issue is one that questions the trial court’s division of marital property.

However, in the current state of the record, the distinction between contract and division of

marital property is not ultimately dispositive. Rather, the resolution of this issue requires a

firm grasp and understanding of what, exactly, the $42,500.00 award encompasses.

As set out in full context above, the memorandum of understanding specifically states

that any remaining retirement account funds will be divided equally by a QDRO. Despite

adopting the memorandum of understanding as part of its order, there is no QDRO in this

record. Rather, the trial court orders that Mr. Irvin shall pay to Ms. Irvin the sum of

$42,500.00 in cash “for her interest in the remaining assets of the marriage and for various

and other sundry items stipulated between the parties and filed with the Court on September

14, 2009.” Having determined, for the limited purpose of our analysis, that the “Stipulation”

is properly before this Court, it provides only that, in addition to those items specifically

enumerated in the memorandum of understanding, Ms. Irvin “shall receive $42,500.00 as her

share of the remaining assets.” Consequently, the problem with the trial court’s order, the

memorandum of understanding, and the stipulation is that it is not clear from any of these

documents what, exactly, the $42,500.00 encompasses. If, as Mr. Irvin argues, it is in

satisfaction of the division of the retirement accounts by adopting the memorandum of

understanding (without apparent modification, but see below) as its order, the court should

have entered a QDRO. However, if the $42,500.00 is comprised of “various and other

4

sundry items” and/or “remaining assets,” which do not include retirement accounts, then the

award presents a question of whether the court made a reasonable division of the marital

property, and specifically whether the court erred in fashioning the award as a cash payment.

Although “[i]t is well settled that a trial court speaks through its orders,” Palmer v.

Palmer, 562 S.W.2d 833, 837 (Tenn. Ct. App. 1997); see also In re Adoption of E.N.R., 42

S.W.3d 26, 31 (Tenn. 2001) (“[T]he court speaks through its order, not through the

We note that, from the record, it appears that neither party presented a proposed QDRO to the trial

4

court in this case. “Typically, in Tennessee, a proposed QDRO is prepared by the parties' attorneys and

submitted to the trial court for approval and entry.” Jordan v. Jordan, 147 S.W.3d 255, 259 (Tenn. Ct. App.

2005). The better practice would have been for Mr. Irvin to present, with his March 20, 2010 motion to

enforce the parties’ mediation agreement, a proposed QDRO pertaining to the division of the retirement

accounts. The fact that no QDRO was filed, however, does not, ipso facto, constitute a waiver of this issue

on appeal because such an order “c[an] be entered at any time after judgment.” Id. (quoting Murphy v.

Murphy, No. 283727, 1995 WL 749598, *2 (Conn. Super. Ct. Dec. 1, 1995)).

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transcript.”), this maxim does not preclude this Court from reviewing a trial court’s

statements from the bench, nor does it preclude us from considering any other portion of the

record in determining the exact nature of a trial court’s ruling. See, e.g., Steppach v.

Thomas, No. W2010–00606–COA–R3–CV, 2011 WL 683932, *28 (Tenn. Ct. App. Feb. 28,

2011). As noted above, the gravamen of the issue of whether the trial court erred in not

entering a QDRO is whether the $42,500.00 encompasses a division of the retirement

accounts, or whether this amount is comprised of other marital assets not including

retirement accounts. The trial court’s order does not answer this question. Rather, it creates

an ambiguity concerning the award of the lump sum payment of $42,500.00.

Under one logical interpretation of the court’s order, we could conclude that the

$42,500.00 award does not include the retirement accounts. Because the order incorporates

the memorandum of understanding in paragraph four, and then goes on to award the

$42,500.00 in a separate paragraph (i.e., paragraph five), it would appear that any division

of property contained in paragraph five is not also contemplated in the memorandum of

understanding. Moreover, the language used by the court to describe the purpose of the

$42,500.00, i.e., “interest in the remaining assets of the marriage and for various and other

sundry items,” supports an interpretation that paragraph five of the order does not include the

retirement accounts that are settled in the memorandum of understanding.

On the other hand, we could logically conclude that the court’s award of $42,500.00

does include the retirement accounts. The memorandum of understanding states that the

“remaining retirement account not used to offset equity in the house (IRA or TSP) shall

be divided equally by Qualified Domestic Relations Order.” (Emphasis added). The trial

court’s use of “remaining assets,” in paragraph five of its order (supra), to describe the

$42,500.00 could logically be construed to refer to the remaining retirement account

referenced in the memorandum of understanding. Under this interpretation, the $42,500.00,

or at least a portion thereof, would refer to the retirement account (i.e., either the IRA or the

TSP), which would comprise (at least a portion of) the “remaining assets” of the marital

estate.

The fact that the first paragraph of the memorandum of understanding specifically

states that the parties were only “able to reach a partial agreement as to the division of

property” only functions to further confuse the matter. Moreover, the statement in the

“Stipulation” that Ms. Irvin is to receive “$42,500.00 as her share of the remaining assets,”

does not clarify whether this $42,500.00 includes any portion of the retirement accounts.

Instead, the “Stipulation” further complicates the question. If we interpret the stipulated

statement to include the retirement accounts, this interpretation would seem to be in direct

contravention of the court’s specific adoption of the memorandum of understanding, which

contemplates entry of a QDRO, as opposed to a lump sum payment, on the retirement

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accounts. On the other hand, because the “Stipulation” was not presented to the court until

September 14, 2009, which was after the July 28, 2009 memorandum of understanding was

reached, the “Stipulation” could be interpreted to be a modification of the memorandum of

understanding, wherein the parties stipulate to set aside the QDRO requirement in favor of

a lump sum payment. Paragraph five of the court’s order could then be construed as an

adoption of the parties’ stipulation, and paragraph four of the order could be understood to

be the court’s adoption of the memorandum as modified by the stipulation.

We do not wish to tax the length of this opinion with all of the permutations and

possible interpretations of the court’s order, the memorandum of understanding, and the

“Stipulation,” and specifically how these documents fit together to form the trial court’s

decision. Suffice to say that this task would be pure supposition based upon the ambiguities

created among and between these three documents. This is a problem that the trial court

seems to acknowledge in its statements from the bench following the April hearing:

You can take that mediation agreement and you can take that

stipulation and you still can’t tell me what they agreed to. You

can tell me your interpretation of it. You can tell me what you

think they meant to do. You can tell me how you think they

should have gone about it and what the wisest course would

have been. But you can’t tell me what they agreed to in terms

of the $42,500. And the reason you can’t is because nobody

can. Other than giving me what you think and Ms. Olsen telling

me what she thinks and Mr. Irvin telling me what he thinks and

Ms. Irvin telling me what she thinks, nobody can give me a

piece of paper that says it in clear, concise, unequivocal

language as to what the parties contemplated doing.

Although the trial court acknowledged the problem, it did not resolve the apparent

inconsistencies between the “Stipulation” and the memorandum of understanding in its own

order. This is the first problem with the trial court’s order.

Lack of Tennessee Rule of Civil Procedure 52.01 Findings

Tennessee Rule of Civil Procedure 52.01 requires that, “[i]n all actions tried upon the

facts without a jury, the court shall find the facts specially and shall state separately its

conclusions of law and direct the entry of the appropriate judgment.” This requirement is

mandatory regardless of whether a party requests these findings. The division of marital

property, including its classification and valuation are findings of fact. Woodward v.

Woodward, 240 S.W.3d 825, 828 (Tenn. Ct. App. 2007).

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The trial court’s order does not provide us with sufficient information to allow a

thorough and meaningful review of the judgment. As set out in full context above, the trial

court’s order makes broad statements such as “[H]usband is guilty of inappropriate marital

conduct and that in weighing his conduct against that alleged of the Wife, the Court finds that

his conduct preceded and was more egregious and damaging to the marriage”; and “the Court

considered the relative factors set out in T.C.A. 36-6-404 wherein the Court found that the

majority of the factors listed weighed equally on the part of the Mother and Father....”

However, the court does not specify what conduct, on Mr. Irvin’s part, was egregious and

damaging to the marriage, nor does the court specify which of the statutory factors were

dispositive in its award of child custody. In short, because of this lack of specificity, we are

unable to adequately review the record to determine in whose favor the evidence

preponderates.

Furthermore, the record on appeal contains little to no information concerning the

valuation of the marital assets. Although there are some account statements for the IRA and

the TSP, there is nothing in the record to prove the exact value of these assets. Moreover,

Mr. Irvin, as the Appellant, has failed to include, in his brief, a Tennessee Rule of Appellate

Procedure 7 Table. Tennessee Rule of Appellate Procedure 7 provides:

(a) In any domestic relations appeal in which either party takes

issue with the classification of property or debt or with the

manner in which the trial court divided or allocated the

marital property or debt, the brief of the party raising the issue

shall contain, in the statement of facts or in an appendix, a table

in a form substantially similar to the form attached hereto. This

table shall list all property and debts considered by the trial

court, including: (1) all separate property, (2) all marital

property, and (3) all separate and marital debts.

(Emphasis added).

In the recent case of Harden v. Harden, No. M2009-01302-COA-R3-CV, 2010 WL

2612688 (Tenn. Ct. App. June 30, 2010), this Court discussed the Rule 7 Table:

This Court has previously held where an appellant fails to

comply with this rule, that appellant waives all such issues

relating to the rule's requirements. This Court is under no duty

to search a trial court record in order to discern the valuation of

the couple's property. This Court has previously found issues

involving the valuation and division of property waived for

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failure to comply with Rule 7.

Id. at *8 (citations omitted).

In explaining the necessity of the Rule 7 Table, we further stated:

[I]t is essential that the parties comply with Rule 7 in order to

aid this Court in reviewing the trial court's decision. The table

required by Rule 7, allows this Court to easily and correctly

determine the valuation and distribution of the marital estate as

ordered by the trial court. Further, the Rule 7 table, allows this

Court to ascertain the contentions of each party as to the correct

valuations and proper distribution, as well as the evidence in the

record which the party believes supports its contention.

Consequently, a table, in full compliance with Rule 7, is vital as

this Court must consider the entire distribution of property in

order to determine whether the trial court erred. Moreover, this

Court is under no duty to minutely search the record for

evidence that the trial court's valuations may be incorrect or that

the distribution may be improper.

Id.

The lack of valuation of the marital property by the trial court is, perhaps, why Mr.

Irvin failed to include a Rule 7 Table in his brief. Due to the lack of specific findings of fact

concerning the valuation of much of the marital property, including the IRA and the TSP, we

are unable to determine whether the $42,500.00 encompasses the retirement accounts.

Moreover, as discussed above, the question of whether the “Stipulation” negates the parties’

prior memorandum of understanding concerning the QDRO remains.

Although Mr. Irvin has raised additional issues for our consideration, we do not reach

them due to our lack of jurisdiction resulting from the absence of a final judgment. Tenn.

5

We note that, among the issues Mr. Irvin seeks to raise on appeal are issues related to the Rule 59 5

motion that he filed seeking custody because of Ms. Irvin’s attempts to alienate him from the parties’

children by making false accusations of sexual abuse or threats of violence. See Keisling v. Keisling, 196

S.W.3d 703, 722 (Tenn. Ct. App. 2005) (false accusations of sexual abuse in a custody dispute can be a

“reprehensible tool” against an ex-spouse that is “remarkable for its brutal effectiveness”). Rule 59 motions

are appropriate only where a final order has been entered; in this case, as noted above, no final order was

ever entered. Therefore, the matter remains in the bosom of the trial court, and the issues raised in the Rule

(continued...)

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R. App. P. 3(a). Consequently, all issues are remanded to the trial court.

Ms. Irvin has asked this Court to award her attorney's fees incurred in defending this

appeal. An award of appellate attorney's fees is a matter within this Court's sound discretion.

Archer v. Archer, 907 S.W.2d 412, 419 (Tenn. Ct. App. 1995). In considering a request for

attorney's fees on appeal, we consider the requesting party's ability to pay such fees, the

requesting party's success on appeal, whether the appeal was taken in good faith, and any

other equitable factors relevant in a given case. Darvarmanesh v. Gharacholou, No.

M2004–00262–COA–R3–CV, 2005 WL 1684050, at * 16 (Tenn. Ct. App. July 19, 2005).

Considering all of the relevant factors in this case, and in light of our rulings herein, we

respectfully decline to award Ms. Irvin's attorney's fees in this appeal.

For the foregoing reasons, we dismiss the appeal and remand for further proceedings

consistent with this opinion. Costs of this appeal are assessed one-half to the Appellant,

Ernest J. Irvin, II, and his surety, and one-half to the Appellee, Una P. Irvin, for which

execution may issue if necessary.

_________________________________

J. STEVEN STAFFORD, JUDGE

(...continued) 5

59 motion can be considered by the trial court without a Rule 59 motion, until the trial court enters a final,

appealable order. See Cooper v. Tabb, No. W2009-02271-COA-R3-CV, 2010 WL 5441971, at *9 (Tenn.

Ct. App. Dec. 22, 2010), perm. app. denied (Tenn. May 25, 2011).

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