Lee Ann Polster v. Russell Joseph Polster ( 2021 )

09/14/2021
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
July 8, 2021 Session
LEE ANN POLSTER v. RUSSELL JOSEPH POLSTER
Appeal from the Chancery Court for Montgomery County
No. MC-CH-CV-DI-20-271 Ted A. Crozier, Judge
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No. M2020-01150-COA-R3-CV
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In this divorce case, a husband appeals the trial court’s denial of his motion to alter or
amend, arguing that the court should not have granted the divorce on the ground of
irreconcilable differences or approved the parties’ marital dissolution agreement when the
husband purportedly withdrew his consent to the divorce, lacked the capacity to enter into
a marital dissolution agreement, and was under duress at the time he executed it. He also
argues that his due process rights were infringed. Upon our review, we affirm the judgment
of the trial court. We also award the wife her attorney’s fees for this appeal and remand to
the trial court for a calculation of those fees.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed;
Case Remanded
ANDY D. BENNETT, J., delivered the opinion of the court, in which FRANK G. CLEMENT,
JR., P.J., M.S., and W. NEAL MCBRAYER, J., joined.
John T. Maher, Clarksville, Tennessee, for the appellant, Russell Joseph Polster.
Steven C. Girsky, Clarksville, Tennessee, for the appellee Lee Ann Polster.
OPINION
FACTUAL AND PROCEDURAL BACKGROUND
Lee Ann Polster (“Wife”) and Russell Polster (“Husband”) were married in June
1992. They separated in February 2020, and Wife filed a complaint for divorce on April
23, 2020, based, in part, on the ground of irreconcilable differences.
On May 4, Husband and Wife executed a marital dissolution agreement (“MDA”),
which was filed with the court the next day. It provided that the marriage should be
terminated on the ground of irreconcilable differences and that Husband should pay Wife
alimony in the amount of $500 per month for 60 months. The MDA also provided for
distribution of the marital home and their personal property, specifically referencing two
vehicles and two retirement accounts, and stated the parties’ intentions that the marital
debts were to be “paid down by the retirement accounts.” Husband was unrepresented at
the time, but the MDA contains a paragraph stating in part that he “was given the
opportunity to consult with counsel of his own choosing.”
By notice filed May 7 and mailed to Husband at the marital residence, the matter
was set for final hearing on June 24, 2020. At the time, in-person court proceedings had
largely been suspended due to the COVID-19 pandemic. On the afternoon of June 24,
Husband, acting pro se, filed a pleading styled “Extension to Final Notice of Final Hearing
on Uncontested Divorce.” The pleading states:
Lee Ann Polster means everything to me. If a divorce is the only thing I can
do to make her happy, an uncontested divorce is what she will get. . . . All
I am asking for is 3 months of court-ordered marital counseling . . . . I just
would like every possibility to save my marriage if possible. I am willing to
pay for the counseling, and I will even pay all her attorney and court fees. If
she agrees after the 3 months to continue working this out, her attorney can
keep papers on file for an immediate divorce in case she decides to follow
through with the divorce of which I will pay for.
You can sign off on the dispersion of our marital property, I don’t care about
that. At this point I feel she feels compelled to follow through with the
divorce because she has gone this far. All I care about is saving my marriage
to my God given soul mate[.] I beg you to please grant my request.
A few hours later, the court clerk filed the final decree of divorce that had been approved
by the trial court.1 In the final decree, the trial court found that “[Husband] has not contested
or denied that irreconcilable differences have arisen between the parties” and that “the
parties . . . have made adequate and sufficient provisions by written agreement for an
equitable distribution of any property rights between the parties.” The court incorporated
the MDA into the final decree.
1
The trial court clerk stamped Husband’s pleading as filed at 1:49 p.m. on June 24. It is not clear
whether the trial court received this pleading prior to its consideration of the entire record and its entry of
the final decree, which was filed by the court clerk at 4:30 p.m. that same day. Additionally, we observe
that the final decree, which was prepared by counsel for Wife, states that the matter was heard on June 26.
This appears to be a scrivener’s error, as the order bears the court’s handwritten notation that it was entered
on June 24, as does the date of the court clerk’s file stamp.
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Husband subsequently retained counsel, and on July 17, he filed a sworn motion to
alter or amend and/or set aside the final decree and the MDA. In the motion, he sought that
the court alter, amend, or set aside the property division or the entire final decree because
he was not represented by counsel throughout the proceedings and was under duress and
depressed at the time Wife presented the MDA to him. He alleged that Wife “fraudulently
and intentionally misrepresented her intentions of the Marital Dissolution Agreement to
Defendant” and that the MDA was “utterly inequitable and should be set aside in its
entirety.” He claimed that he received notice of the June 24 hearing, which “led [him] to
believe he could appear at the hearing and present his position to the judge,” so he
“appeared at the courthouse on June 24, 2020, but was not allowed to enter.” Wife
responded, denying most of the allegations of husband’s motion and attaching two exhibits
illustrating Husband’s involvement in the drafting of the MDA.
Husband’s counsel set the matter for a hearing on the pleadings on July 31, and on
that day, the trial court entered an order, denying Husband’s motion on the basis that:
[Husband] may have made a bad deal but had ample time to seek counsel or
repute his agreement prior to the finalization of his divorce. No showing of
how a soon to be ex-wife could overcome the free will of a fifty year old
man. Doesn’t meet the threshold of mistake, inadvertence, excusable neglect,
or fraud required by TRCP 60.02.
Husband has appealed, raising the following issues for our review:
1. Whether the trial court lacked the legal authority to enter the final decree of divorce
on the grounds of irreconcilable differences after [Husband] withdrew consent.
2. Whether the trial court lacked legal authority to incorporate the MDA into the final
decree of divorce after [Husband] withdrew consent to the MDA.
3. Whether the trial court erred in not reviewing the MDA for fairness and equity after
[Husband] withdrew consent and requested a hearing.
4. Whether the trial court erred by not allowing [Husband] to appear at the final
hearing.
5. Whether the trial court erred by hearing [Husband]’s Rule 59 motion on the
pleadings.
For her part, Wife contends that the trial court properly entered the final decree of divorce
on the ground of irreconcilable differences. She also requests her attorney fees on appeal.
STANDARD OF REVIEW
This case was tried by the court sitting without a jury; as such, we review the trial
court’s findings of fact de novo with a presumption of correctness, unless the evidence
preponderates against those findings. McGarity v. Jerrolds, 429 S.W.3d 562, 566 (Tenn.
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Ct. App. 2013). For the evidence to preponderate against a trial court’s finding of fact, the
weight of the evidence must “‘demonstrate[] that a finding of fact other than the one found
by the trial court is more probably true.’” Williams v. City of Burns, 465 S.W.3d 96, 108
(Tenn. 2015) (quoting Nashville Ford Tractor, Inc. v. Great Am. Ins. Co., 194 S.W.3d 415,
425 (Tenn. Ct. App. 2005)); Realty Shop, Inc. v. RR Westminster Holding, Inc., 7 S.W.3d
581, 596 (Tenn. Ct. App. 1999). This Court conducts a de novo review of the trial court’s
resolution of questions of law, with no presumption of correctness. Kelly v. Kelly, 445
S.W.3d 685, 692 (Tenn. 2014); Armbrister v. Armbrister, 414 S.W.3d 685, 692 (Tenn.
2013).
ANALYSIS
I. Husband’s Purported Withdrawal of Consent
Husband’s first three issues attack the validity of the final decree and the MDA. All
three issues center on his belief that he withdrew his consent to the uncontested divorce
and to the entry of the MDA and communicated that fact to the court prior to its entry of
the final decree by filing a pleading and attempting to appear in court on the date the court
heard the matter. Husband argues that the contract defenses of incapacity, duress and
coercion, and, for the first time ever, unconscionability apply. Thus, he asserts that the
court should have reviewed the MDA for fairness and equity and set it aside.
In support of his argument, Husband relies on the case of Nahon v. Nahon, which
held, “[A] valid consent judgment can not be entered by a court when one party withdraws
his consent and this fact is communicated to the court prior to entry of the judgment.”
Nahon v. Nahon, W2004-02023-COA-R3CV, 2005 WL 3416415, at *4 (Tenn. Ct. App.
Dec. 14, 2005) (quoting Harbour v. Brown for Ulrich, 732 S.W.2d 598, 599 (Tenn. 1987)).
However, the holding in Nahon has been superseded by the Tennessee Supreme Court’s
decision in Barnes v. Barnes, 193 S.W.3d 495 (Tenn. 2005). See Olson v. Beck, No.
M2013-02560-COA-R3CV, 2015 WL 899381, at *4 (Tenn. Ct. App. Feb. 27, 2015) (citing
Barnes v. Barnes, 193 S.W.3d 495 (Tenn. 2006)). In Barnes, the Tennessee Supreme Court
held that “[a] marital dissolution agreement may be enforceable as a contract even if one
of the parties withdraws consent prior to the entry of judgment by the trial court, so long
as the agreement is otherwise a validly enforceable contract.” Barnes, 193 S.W.3d at 499.
“Husband cannot repudiate the contract simply by withdrawing his consent prior to the
court’s approval.” Olson, 2015 WL 899381, at *4.
As in Barnes, the MDA in this case was reduced to writing and signed by both
parties, as witnessed by a notary public. Thus, it is a contract, and its enforceability is
governed by contract law. Barnes, 193 S.W.3d at 499; see also Olson, 2015 WL 899381,
at *4. Because construction of a contract is a matter of law, our review of Husband’s
contentions as to the invalidity of the contract, which will be discussed in section III of our
analysis, is de novo with no presumption of correctness. Barnes, 193 S.W.3d at 498; see
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also Vick v. Hicks, No. W2013-02672-COA-R3-CV, 2014 WL 6333965, at *2 (Tenn. Ct.
App. Nov. 17, 2014); Gray v. Estate of Gray, 993 S.W.2d 59, 63 (Tenn. Ct. App. 1998)).
Assuming the June 24 pleading Husband filed was before the trial court when it
heard the case, nowhere in that pleading did Husband assert that he was under duress or
suffering from a mental incapacity at the time he entered into the MDA. Neither did he
assert any statement that could be relied upon to show that the property division was
inequitable.
We recognize that Husband was proceeding pro se at this point and is thus entitled
to some leeway; accordingly, our focus is on the substance, not the form, of the papers he
filed. See Young v. Barrow, 130 S.W.3d 59, 62-63 (Tenn. Ct. App. 2003).
Husband argues that “by requesting a hearing and filing his Motion to Extend Time,
[he] contested that the parties did not have irreconcilable differences.” We do not agree
with his characterization, as the second sentence of the pleading illustrated his assent to the
pending divorce: “If a divorce is the only thing I can do to make her happy, an uncontested
divorce is what she will get.” Furthermore, in requesting three months of counseling,
Husband noted that “her attorney can keep papers on file for an immediate divorce in case
she decides to follow through with the divorce . . . .” Husband styled his pleading as
“Extension to Final Notice of Final Hearing on Uncontested Divorce,” and it contains only
his request that the court require the parties to attend marriage counseling. At best, this
pleading could be construed as a motion to continue. But the reality is that nowhere in
Husband’s June 24 pleading did he make any statement that can be reasonably construed
to indicate that he was withdrawing his consent to a divorce based on the parties’
irreconcilable differences.
Even if we were to construe Husband’s June 24 pleading as contesting the
uncontested nature of their divorce, the trial court’s entry of the final decree and MDA still
would not constitute error. Tennessee’s irreconcilable differences statute provides:
If there has been a contest or denial of the grounds of irreconcilable
differences, no divorce shall be granted on the grounds of irreconcilable
differences. However, a divorce may be granted on the grounds of
irreconcilable differences where there has been a contest or denial, if a
properly executed marital dissolution agreement is presented to the court.
Tenn. Code Ann. § 36-4-103(e). The parties executed the MDA fifty days prior to the
court’s consideration of the record and entry of the final decree. Importantly, Husband’s
June 24 pleading contained no statement that could have led the court to conclude that he
no longer agreed to the terms of the MDA or that he was experiencing duress or suffering
from a mental incapacity when he executed it. The pleading also contained no statement
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indicating that he believed that the MDA’s property division was inequitable.2 To the
contrary, he said that the court “can sign off on the dispersion of our marital property, I
don’t care about that.” Moreover, the MDA contains the following language:
(17) RECONCILIATION: This agreement shall take effect immediately
upon the signing of the same by the parties, subject to the approval of the
court granting the parties’ divorce. It is the parties’ intention that a
reconciliation, either temporary or permanent, shall in no way affect the
provisions of this agreement having to do with the settlement and disposition
of their property rights in their respective realty, if any, and personal
property, unless a new agreement is entered into in writing mutually revoking
and rescinding this agreement and entering into a new one.
Thus, even if Husband’s desire to participate in court-ordered counseling had been
granted and resulted in reconciliation with Wife, it would not have an effect on the terms
of the MDA. The pleading he filed on June 24 provided no basis for the court to invalidate
the MDA.
In conclusion, at the time the trial court entered the divorce decree, Husband’s only
pleading contained nothing that could have led the court to conclude that Husband had
withdrawn his consent to the divorce or believed the MDA was invalid. Thus, the court had
the authority to grant the parties an irreconcilable differences divorce. Tenn. Code Ann. §
36-4-103(e). We discern no merit to the first three issues raised by Husband.
II. Due Process
Husband next asserts that his constitutional right to due process was violated when
“the trial court did not allow [him] to enter the court room on the day of the final hearing
to present his objections.”
Procedural due process requires that litigants “‘be given an opportunity to have their
legal claims heard at a meaningful time and in a meaningful manner.’” State ex rel.
Groesse v. Sumner, 582 S.W.3d 241, 258 (Tenn. Ct. App. 2019) (quoting Lynch v. City of
Jellico, 205 S.W.3d 384, 391 (Tenn. 2006)). Notice and a meaningful opportunity to be
2
Husband argues in his appellate brief that he “attempted to appear at the courthouse on the 24th
day of June 2020, the day of the final hearing, and was denied entry . . . therefore den[ying Husband] an
opportunity to argue fairness and equity in regard to the Marital Dissolution Agreement.” His statement is
unsupported by a citation to evidence in the record, in contravention of Rule 27(a)(7)(A) of the Tennessee
Rules of Appellate Procedure and Rule 6(b) of the Rules of the Court of Appeals of Tennessee, and the
pleading he filed that day provides no support for his argument on appeal that he believed the MDA was
unfair or inequitable.
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heard are essential components of procedural due process. Manning v. City of Lebanon,
124 S.W.3d 562, 566 (Tenn. Ct. App. 2003).
In the case of an uncontested divorce, Tennessee Code Annotated “section 36-4-
103(b) and (c) ‘do[] not require a formal hearing unless the court finds that the parties have
not made adequate and sufficient provision for . . . the equitable settlement of any property
rights.’” Trigg v. Trigg, No. E2014-00860-COA-R3-CV, 2015 WL 66544, at *8 (Tenn. Ct.
App. Jan. 5, 2015) (quoting Vaccarella v. Vaccarella, 49 S.W.3d 307, 313 (Tenn. Ct. App.
2001)). In concluding that the trial court was not required to conduct a formal hearing in
the context of an irreconcilable differences divorce, the Trigg court noted that “‘[i]f the
parties had wished to request a hearing at the time the judge signed the final decree, they
were free to do so.’” Trigg, 2015 WL 66544, at *8 (quoting Vaccarella, 49 S.W.3d at 314).
Relying on Trigg, Husband contends that “after receiving a Notice of Hearing, [he]
was led to believe he could appear at the hearing and present his position to the judge. [He]
appeared at the courthouse on June 24, 2020, but was not allowed to enter.” He also argues
in his brief that he “requested a hearing, and that request was subsequently denied by the
trial court,” such that the trial court’s denial of that request violated his due process rights.
Husband fails to cite to a location in the record where he made such a request, and our
review of the record reveals no such request or subsequent denial by the trial court.
In light of his failure to request a hearing, his reliance on Trigg is misplaced. As in
Trigg, there is nothing in the record before us to indicate that Husband actually requested
a hearing before the trial court prior to the entry of the MDA. His June 24 pleading only
requested court-ordered counseling and invited the court to “sign off on the dispersion of
our marital property.”
Further, Husband’s arguments make no mention of the state of affairs under which
the trial court was operating during the pendency of divorce. At the time, “[t]he State of
Tennessee, like the entirety of the United States, [wa]s in the midst of an unprecedented
public health crisis due to COVID-19. . . . In response to the COVID-19 pandemic, the
Governor declared a state of emergency on March 12, 2020.” Fisher v. Hargett, 604
S.W.3d 381, 386-87 (Tenn. 2020). On March 13, 2020, the Tennessee Supreme Court
declared a state of emergency for the Judicial Branch of Tennessee and suspended in-
person court proceedings, subject to certain exceptions not applicable here. In re: COVID-
19 Pandemic, No. ADM2020-00428 (Tenn. Mar. 13, 2020) (order suspending in-person
court proceedings).3
3
The suspension was extended numerous times, ultimately through March 2021, and was also
modified so as to require the various judicial districts to author plans setting forth procedures that would
allow in-person proceedings to safely take place. See In re: COVID-19 Pandemic, No. ADM2020-00428
(Tenn. Mar. 25, 2020) (order continuing the suspension of in-person court proceedings and extending
deadlines); In re: COVID-19 Pandemic, No. ADM2020-00428 (Tenn. April 24, 2020) (order modifying
the suspension of in-person court proceedings, extending deadlines further, and stating that “Courts should
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At all times pertinent, the trial court was operating under a Supreme Court-approved
plan that limited capacity and provided that motions and bench trials would be “decided on
pleadings or WebEx/Zoom unless all attorneys and Judge agree to an in-person hearing
that will be specially scheduled by the Judge’s assistant”; it also provided that
“Uncontested divorces (attorney represented and self-represented litigants) will be decided
on the pleadings.” TNCOURTS.GOV, 19th Judicial District Comprehensive Plan Regarding
Limited In-Person Proceedings Pursuant to Supreme Court Order Entered April 24, 2020,
http://www.tncourts.gov/sites/default/files/docs/19th_jd_comprehensive_plan_7.pdf (last
visited August 26, 2021).
So, it is not accurate for Husband to state that the trial court “did not allow [him] to
enter the court room on the day of the final hearing to present his objections.” No one was
permitted in any courtroom without certain procedures being followed, and as we have
previously stated in this opinion, Husband filed no pleading that requested a hearing of any
sort or otherwise indicated a lack of consent to the matter being heard on the pleadings.
While Husband may have wished to appear in person on June 24, the court could not have
been aware of his desire, given Husband’s failure to request an in-person or
teleconferenced hearing.
Upon retaining counsel and filing the motion to alter or amend and/or set aside the
final decree, Husband was given another opportunity to be heard in person or via
teleconference if he so desired. However, the notice of hearing he filed pertaining to that
motion stated that the hearing would be “on the pleadings.” Accordingly, he received
precisely the amount of process he requested: a hearing on the pleadings. Under the facts
of this case, we discern no infringement of Husband’s right to due process.
III. Husband’s Motion to Alter or Amend or Set Aside the Final Decree
Husband argues that the trial court abused its discretion in denying his motion to
alter or amend by not allowing him to present evidence outside the pleadings. As we have
already pointed out in the previous section, Husband’s notice of hearing on this motion
states, “Take notice that a Motion to Alter or Amend, to Set Aside Marital Dissolution
Agreement and/or Set Aside Final Decree of Absolute Divorce will be heard on the
pleadings on July 31, 2020, at 9:00 a.m.” (Emphasis added.) Husband received precisely
the type of hearing he requested, and we discern no error in the court’s deciding the matter
on the pleadings alone, as neither Rule 59.04 or 60.02, nor any other authority we have
continue to conduct as much business as possible by means other than in-person court proceedings. Courts
are encouraged to continue and even increase the use of telephone, teleconferencing, email, video
conferencing or other means that do not involve in-person contact. All of these methods should be the
preferred option over in-person court proceedings.”); In re: COVID-19 Pandemic, No. ADM2020-00428
(Tenn. Feb. 12, 2021) (order lifting the suspension of in-person court proceedings in termination of parental
rights cases as of March 1, 2021; jury trials as of March 31; and all other proceedings as of March 15).
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discovered in our research, contains a requirement that a separate evidentiary hearing be
held on such motions, especially when one is not requested.
Turning to the merits of the trial court’s decision on Husband’s motion, Husband
cited both Tennessee Rules of Civil Procedure 59.04 and 60.02 as the bases of his “Motion
to Alter or Amend, to Set Aside Marital Dissolution Agreement and/or Set Aside Final
Decree of Absolute Divorce.” The motion did not specify which provision of Rule 60.02
warranted relief. Because Husband filed his motion on July 17, or within thirty days of the
entry of the divorce judgment, it was not a “final judgment” to which Rule 60
applies. Trigg, 2015 WL 66544, at *4 n.4 (citing Ferguson v. Brown, 291 S.W.3d 381, 387
(Tenn. Ct. App. 2008)). Thus Rule 59.04 applied, not Rule 60.02. Discover Bank v.
Morgan, 363 S.W.3d 479, 489 (Tenn. 2012) (“[F]or thirty days after entry of a final
judgment, motions for relief should be premised upon Rule 59.”).
The judgment of a court should not “be lightly changed, altered, amended or set
aside, but only done upon very clear, convincing, cogent evidence that a true injustice has
been done to the complaining party and that the complaining party is in no wise responsible,
or termed in another way, negligent in protecting that party’s interest.” Myers v. Myers,
891 S.W.2d 216, 220 (Tenn. Ct. App. 1994) (citing Tenn. State Bank v. Lay, 609 S.W.2d
525, 527 (Tenn. Ct. App. 1980)). Motions to alter or amend a judgment pursuant to Rule
59 may be granted “‘(1) when the controlling law changes before a judgment becomes
final, (2) when previously unavailable evidence becomes available, or (3) when, for sui
generis reasons, a judgment should be amended to correct a clear error of law or to prevent
injustice.’” Whalum v. Marshall, 224 S.W.3d 169, 175 (Tenn. Ct. App. 2006) (quoting
Bradley v. McLeod, 984 S.W.2d 929, 933 (Tenn. Ct. App. 1998)); see also Vaccarella, 49
S.W.3d at 312. We review the court’s decision on a Rule 59.04 motion to alter or amend a
judgment under the abuse of discretion standard and consider whether “the trial court
applied incorrect legal standards, reached an illogical conclusion, based its decision on a
clearly erroneous assessment of the evidence, or employed reasoning that cause[d] an
injustice to the complaining party.” Discover Bank, 363 S.W.3d at 487. (quoting State v.
Jordan, 325 S.W.3d 1, 39 (Tenn. 2010)).
While the trial court construed the motion solely as a Rule 60.02 motion, we discern
no reversible error, as a Rule 59.04 motion is reviewed “using standards similar to those
used to review [Rule] 60.02(1) motions on similar grounds.” Madu v. Madu, No. M1999-
02302-COA-R3-CV, 2000 WL 1586461, at *5 (Tenn. Ct. App. Oct. 25, 2000).
Husband’s motion argued that the MDA should be set aside because he signed it
under duress, while suffering from “severe depression,” and that Wife had engaged in
fraudulent and intentional misrepresentation in getting him to sign it. He also argued that
the MDA was “utterly inequitable.” Thus, Husband’s motion appears to be based on the
third category of relief available—that the judgment should be amended to prevent
injustice. See Whalum, 224 S.W.3d at 175. We note that Husband’s motion presented these
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defenses to an enforceable contract to the trial court for the first time. While a motion to
alter or amend a judgment “‘should not be used to raise or present new, previously untried
or unasserted theories or legal arguments,’” U.S. Bank, N.A. v. Tenn. Farmers Mut. Ins.
Co., 410 S.W.3d 820, 827 n.2 (Tenn. Ct. App. 2012) (quoting In re M.L.D., 182 S.W.3d
890, 895 (Tenn. Ct. App. 2005)), we will grant Husband some leeway given his pro se
status until after the entry of the divorce decree and because the trial court itself considered
Husband’s arguments. See Young, 130 S.W.3d at 62-63; see also Hessmer v. Hessmer, 138
S.W.3d 901, 903 (Tenn. Ct App. 2003). We will not, however, entertain his argument that
the MDA was unconscionable, as he raises that argument for the first time on appeal.4
Barnes, 193 S.W.3d at 501 (“Issues not raised in the trial court cannot be raised for the first
time on appeal.”).
We first examine Husband’s arguments relative to his capacity to contract. Husband
states that his “severe depression,” which he believes resulted from his devastation and
surprise when Wife “abruptly ask[ed] for a divorce,” rendered him incapacitated to enter
the MDA.
In the case of Beem v. Beem, No. W2009-00800-COA-R3-CV, 2010 WL 1687782,
(Tenn. Ct. App. Apr. 28, 2010), the husband sought to have the court set aside a marital
dissolution agreement based upon his asserted lack of mental capacity to enter into such an
agreement. This Court observed:
4
In the context of making his unconscionability argument, Husband’s brief makes passing
reference to the MDA’s inequitable division of the parties’ assets, but he has not raised the division of assets
as an issue on appeal. Thus, pursuant to Rules 13(b) and 27(a)(4), (b) of the Tennessee Rules of Appellate
Procedure, we deem that issue to be waived. Even if he had properly raised this as an issue, his brief contains
no citations to evidence in the record demonstrating the extent of the marital estate or values of the items it
contained, and the MDA is silent as to the values of much of the couple’s real and personal property. The
table Husband includes in his reply brief does not comply with Rule 7 of the Rules of the Court of Appeals
and merely contains “[v]alues . . . provided by [Husband]” that are completely unsupported by reference to
the record. Importantly, as we ultimately determine in this appeal that Husband has provided no valid
defenses to the enforcement of the MDA, that agreement must be enforced as written. “[O]ne of the
bedrocks of Tennessee law is that our courts are without power to make another and different contract from
the one executed by the parties themselves.” Eberbach v. Eberbach, 535 S.W.3d 467, 478 (Tenn. 2017)
(citing Dubois v. Gentry, 184 S.W.2d 369, 371 (Tenn. 1945)). Indeed, this Court has held:
The courts must interpret contracts as they are written, and are not at liberty to make a new
contract for parties who have spoken for themselves[.] Accordingly, the courts do not
concern themselves with the wisdom or folly of a contract, and will not relieve parties from
contractual obligations simply because they later prove to be burdensome or unwise[.]
Sikora v. Vanderploeg, 212 S.W.3d 277, 286 (Tenn. Ct. App. 2006) (citations omitted).
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[I]t is rare indeed for a court to find that a contract is unenforceable
based on the unsound emotional state of a contracting party. The party
seeking to avoid a contract on this basis must show that he or she “had no
reasonable perception or understanding of the nature or terms of the
contract.” Roberts [v. Roberts], 827 S.W.2d [788] at 791-92 [(Tenn. Ct. App.
1991)]. This Court has explained the burden of proof for a party seeking to
avoid a contract:
Thus, persons will be excused from their contractual
obligations on the ground of incompetency only when (1) they
are unable to understand in a reasonable manner the nature and
consequences of the transaction or (2) when they are unable to
act in a reasonable manner in relation to the transaction, and
the other party has reason to know of their condition.
McMahan v. McMahan, No. E2004-03032-COA-R3-CV, 2005 WL
3287475, at *7 (Tenn. Ct. App. Dec. 5, 2005).
Id. at *8. Husband asserted no facts in his motion to alter or amend that satisfy either prong.
Wife’s response and its attached exhibits show that Husband refused to sign several
previous drafts of the MDA and had input on the version that was finally signed. His
statements in his June 24 pleading invited the trial court to “sign off on the dispersion of
our marital property.” Husband has set forth no evidence that he was suffering from a lack
of mental capacity when he signed the MDA such that it should have been set aside.
Accordingly, we discern no abuse of discretion in the trial court’s refusal to grant the
motion to alter or amend relative to Husband’s purported lack of capacity.
Turning to the issue of Husband’s duress, Husband argues that, due to Wife’s
representations that “if he just signed the Marital Dissolution Agreement, they could work
things out and continue to be married,” he was experiencing duress and coercion at the
time he executed the MDA.
“A party wishing to avoid a contract on the grounds of duress must prove that in
forming the contract he or she had been forced or coerced to do an act contrary to his or
her free will.” Holloway v. Evers, No. M2006-01644-COA-R3-CV, 2007 WL 4322128, at
*9 (Tenn. Ct. App. Dec. 6, 2007). Our Supreme Court has defined duress as:
“‘[A] condition of mind produced by the improper external pressure
or influence that practically destroys the free agency of a party, and causes
him to do and act or make a contract not of his own volition, but under such
wrongful external pressure.’” Rainey v. Rainey, 795 S.W.2d 139, 147 (Tenn.
Ct. App. 1990) (quoting Simpson v. Harper, [] 111 S.W.2d 882, 886 ([Tenn.
Ct. App.] 1937)). When such pressure exists “is a question to be determined
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by the age, sex, intelligence, experience and force of will of the party, the
nature of the act, and all the attendant facts and circumstances.” Id. (quoting
10 Tenn. Jur. Duress and Undue Influence § 3 at 112 (1983)).
Barnes, 193 S.W.3d at 500. “Duress consists of ‘unlawful restraint, intimidation, or
compulsion that is so severe that it overcomes the mind or will of ordinary
persons.’” Holloway, 2007 WL 4322128, at *9 (quoting Boote v. Shivers, 198 S.W.3d 732,
745 (Tenn. Ct. App. 2005); McClellan v. McClellan, 873 S.W.2d 350, 352 (Tenn. Ct. App.
1993)).
Husband stated in his Rule 59.04 motion that Wife “manipulated and led [him] to
believe that, if he just signed the Marital Dissolution Agreement, they could work things
out and continue to be married.” He stated that she “texted pictures of herself to [him] and
continued to converse with [him] in a manner which led him to believe the parties could
reconcile”; that she “fraudulently and intentionally misrepresented her intentions of the
Marital Dissolution Agreement to [Husband]”; and that her misconduct caused him to “sign
a document, without the advice of counsel, and, quite literally, give away everything he
had.”
Wife filed a response to Husband’s motion, stating that Husband could have sought
legal counsel and could have refused to sign the MDA but chose not to do either and that
she did not have the ability or desire to coerce or mislead Husband into signing the MDA.
She also stated:
The Husband is a grown man and works [a] professional job. The
Husband is not handicapped or otherwise incapable of reading and
comprehending what he is reading, nor is the Husband unable to understand
that he initialed every page of the MDA acknowledging that he knew what
he was signing. Finally, the Husband had ample opportunity to hire counsel
and chose not to of his own volition.
Wife denied that she led him on by sending him pictures or that she had “in any way
mispresented herself to the Husband to make him sign the MDA.” She also stated that she
“offered many different proposals for the distribution of property and debt but the Husband
declined to sign the papers until the Wife was awarded the assets as set out in the MDA
that was signed and filed and approved by the Court.”
The trial court examined the motion, Wife’s response and exhibits thereto, and
concluded, “[Husband] may have made a bad deal but had ample time to seek counsel or
repute his agreement prior to the finalization of his divorce. No showing of how a soon to
be ex-wife could overcome the free will of a fifty year old man.”
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The record before us indicates that Husband was involved in the negotiation of the
terms of the MDA but does not demonstrate how Wife’s actions amounted to restraint,
intimidation, or compulsion severe enough to overcome his free will, such that he was
under duress at the time he signed it.
We conclude that the trial court did not abuse its discretion in denying Husband’s
motion to alter or amend upon its conclusion that relief from the judgment was
unwarranted.
IV. Wife’s Request for Attorney Fees on Appeal
Turning to Wife’s request for her attorneys’ fees on appeal, she seeks them pursuant
to the terms of the MDA or, alternatively, in our discretion. Tennessee courts follow the
American Rule, which provides that litigants must pay their own attorney fees unless there
is a statute or contractual provision or some other recognized exception that applies,
allowing for the recovery of such fees in a particular case. Eberbach v. Eberbach, 535
S.W.3d 467, 474 (Tenn. 2017). In this case, Paragraph 16 of the MDA provides for the
award of attorney fees in the following situation:
ENFORCEMENT: In the event it becomes reasonably necessary for
either party to institute legal proceedings to procure the enforcement of any
provision of this Agreement, that party shall also be entitled to a judgment
for reasonable expenses, including attorney’s fees, incurred in prosecuting
the action.
As we consider this provision, we are mindful of the Tennessee Supreme Court’s
holding in Eberbach:
[T]he Court of Appeals has no discretion whether to award attorney’s fees
when the parties have a valid and enforceable marital dissolution agreement
which requires an award of reasonable attorney’s fees to a prevailing or
successful party. When such a MDA exists, it is subject to the normal rules
of contractual interpretation and enforcement. If the MDA is determined to
be a valid and enforceable agreement, the terms of the parties’ agreement
govern the award of fees, and the court must enforce the parties’ terms to the
extent the agreement demands. . . .
Courts reviewing requests for fees pursuant to a MDA fee provision
should first determine whether the parties have a valid and enforceable MDA
that governs the award of attorney’s fees for the proceeding at bar. If so, our
courts must look to the actual text of the provision and determine whether
the provision is mandatory and applicable. If so, the MDA governs the award
of fees, and our courts must enforce the parties’ contract.
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If the court determines the MDA is inapplicable to the case, it should
so state on the record. . .
Eberbach, 535 S.W.3d 467, 478-79. “With regard to the issue of whether Wife was entitled
to a grant of attorney’s fees under theMDA, the proper standard of review is de novo
because the issue is a question of law.” Id. at 479 n.7. The Court went on to hold that “[t]he
defense of Wife’s trial court judgment at the Court of Appeals thus qualifies as ‘prosecuting
the action’ under a plain reading of the Parties’ MDA fee provision,” and because she was
the prevailing party at both the trial and appellate levels, the MDA entitled her “to a
judgment for reasonable expenses, including attorney’s fees, incurred in prosecuting the
action” on appeal. Id. at 480.
In the case at bar, while Husband was not attempting to “procure the enforcement
of any provision of [the MDA],” he was contesting the validity and enforceability of the
MDA itself in the trial court and on appeal. The trial court declined to alter or amend its
judgment, finding the MDA to be valid and enforceable, and we have affirmed that holding.
Accordingly, we conclude that the MDA entitles Wife to recover her attorney’s fees for
defending the trial court’s judgment on appeal. We remand the matter to the trial court for
calculation of that award.
CONCLUSION
The judgment of the trial court is affirmed, and the case is remanded for proceedings
in accordance with this opinion. Costs of this appeal are assessed against the appellant,
Russell Joseph Polster, for which execution may issue if necessary.
_/s/ Andy D. Bennett________________
ANDY D. BENNETT, JUDGE
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