LeAnn Barnes v. David Ellett Barnes ( 2016 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
September 6, 2016 Session
LEANN BARNES v. DAVID ELLETT BARNES
Appeal from the Chancery Court for Bedford County
No. 27833 J. B. Cox, Chancellor
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No. M2015-01254-COA-R3-CV – Filed October 14, 2016
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This appeal comes before us a second time. In the first appeal, we affirmed in part and
reversed in part the judgment of the trial court and remanded the case for the trial court to
determine the manner in which to divide the marital estate given the adjustments we made
and the nature of the marital assets; we also vacated the trial court’s amended order
modifying the original award of alimony and reinstated the original award. On remand, the
court entered an order providing that the Wife’s interest in Husband’s 401K Plan would be
increased in the amount of the adjustments ordered by this court, to be made pursuant to the
Qualified Domestic Relations Order which was also entered by the court; the court awarded
Wife a judgment for the difference in the alimony awarded in the original decree and that
paid by Husband pursuant to the amended decree. In this appeal, Wife challenges the trial
court’s compliance with this court’s instructions. We find that the orders entered by the court
comply with the instructions of this court as to the division of the marital estate; we modify
the order relating to the award of alimony to specifically state the amount and type of
alimony awarded.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
as Modified
RICHARD H. DINKINS, J., delivered the opinion of the court, in which FRANK G. CLEMENT,
JR., P.J., M.S., and ANDY D. BENNETT, J., joined.
LeAnn Barnes, Murfreesboro, Tennessee, Pro Se.
Daryl M. South, Murfreesboro, Tennessee, for the appellee, David Ellett Barnes.
MEMORANDUM OPINION1
This is the second appeal of a post-divorce proceeding involving LeAnn Barnes
(“Wife”) and David Barnes (“Husband”), who were divorced by order entered August 26,
2011. In the first appeal, Barnes v. Barnes, M2012-02085-COA-R3-CV, 2014 WL 1413931,
(Tenn. Ct. App. Apr. 10, 2014), perm. app. denied (Sept. 18, 2014), Wife sought review of
the valuation and division of the marital property, the award of alimony to her, and the denial
of her request for attorneys’ fees. As to the division of marital property, we determined that
the court erred in the valuation of Husband’s dental practice and in charging Wife with
receiving $57,000 in marital property, reversed those portions of the order, and adjusted the
division accordingly; we remanded the case for the court to determine whether, in equalizing
the division of the marital estate “it is appropriate to further adjust the parties’ shares of the
retirement accounts or to make some other award.” Barnes, 2014 WL 1413931 at *17. As
respects the award of alimony, we vacated the portion of an amended order which had
modified and reduced the original award from alimony in futuro of $6,000 per month to
rehabilitative alimony of $4,300 per month for a period of four years; we reinstated the
original award. We affirmed the trial court’s denial of an award of attorneys’ fees to Wife.
Husband’s application for permission to appeal was denied and the mandate issued on
September 18, 2014.
On remand, following a hearing, the court entered an order awarding Wife an
additional $28,975.50 based on the revaluation of the dental practice, and an additional
$57,000 for the reduction of Wife’s portion of the estate set forth in the amended order; both
amounts were to be paid pursuant to a Qualified Domestic Relations Order (“QDRO”). The
court also awarded $49,300 as the accumulated alimony arrearage to be paid within 30 days
of the entry of the order.
Wife appeals the order entered on the issues remanded, contending that the court
failed to fully comply with the mandate.
1
Tenn. R. Ct. App. 10 states:
This Court, with the concurrence of all judges participating in the case, may affirm, reverse or
modify the actions of the trial court by memorandum opinion when a formal opinion would
have no precedential value. When a case is decided by memorandum opinion it shall be
designated “MEMORANDUM OPINION,” shall not be published, and shall not be cited or
relied on for any reason in any unrelated case.
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DISCUSSION
A. Division of Marital Property
In her brief on appeal, Wife devotes considerable argument to matters occurring prior
to the first appeal. Any attempt to relitigate these matters is precluded by the law of the case
doctrine. See Memphis Pub’g Co. v. Tenn. Petroleum Underground Storage Tank Bd., 975
S.W.2d 303, 306 (Tenn. 1998) (“[U]nder the law of the case doctrine, an appellate court’s
decision on an issue of law is binding in later trials and appeals of the same case if the facts
on the second trial or appeal are substantially the same as the facts in the first trial or
appeal.”). The sole question before us is whether the trial court did as instructed.
In the first appeal, we disposed of the division of marital property issue and instructed
the trial court as follows:
In conclusion, the trial court’s division of marital property is affirmed on all
issues with the following exceptions. We find that the dental practice should
not have been reduced by 15%, or $57,951, due to lack of marketability, and
we hereby adopt the value reached by the trial court prior to the marketability
reduction, which was $386,343. Because this results in Husband having
received an additional $57,951 in marital property, Husband should convey to
Wife an amount equal to one-half of that amount, and the trial court should
consider on remand how to compensate Wife in this regard. We also find that
the trial court erred in amending its original order to charge Wife with the
receipt of $57,000 in marital property during the divorce proceedings and to
eliminate the $15,000 equity interest it originally attributed to Husband in the
division of marital property. On remand the trial court should determine how
to equalize the division of the marital estate considering these two
adjustments, meaning, whether it is appropriate to further adjust the parties’
share of the retirement accounts or to make some other award.
(Emphasis added).
On remand, the trial court held a hearing at which counsel for both parties as well as a
Mr. Hartley, identified as the person who had been “in charge” of the parties’ retirement
accounts for over 15 years, addressed the court; no testimony or other proof was offered. On
May 4, 2015, the court entered an order, approved by both counsel, addressing our instruction
relative to the marital property thusly:
1. Pursuant to the determination of the Appellate Court, the wife is
awarded an additional sum of $28,975.50 from the marital estate due to the
Appellate Court’s determination as to the proper valuation of the dental
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practice. Wife is to receive said sum pursuant to the entry of a proper qualified
domestic relations order. The wife’s award pursuant to the QDRO shall entail
any increase or decrease in said sum from the date of the original divorce
decree.
2. Pursuant to the determination of the Appellate Court, the reduction
to wife’s portion of the marital estate in the sum of $57,000 pursuant to the
amended and modified final decree as entered June 12, 2012 is reversed, and
the wife is awarded the additional sum of $57,000 from the marital estate.
Wife is to receive said sum pursuant to the entry of a proper qualified domestic
relations order. The wife’s award pursuant to the QRDO shall entail any
increase or decrease in said sum from the date of the original divorce decree.
On June 4 the court entered a QDRO which adjusted Wife’s interest in Husband’s
401K Plan to $332,552. The order notes that the sum “incorporates all gains from [Wife’s]
shares since entry of the final decree of divorce. This assignment is effective as of June 1,
2015. . . . [Wife’s] interest shall be satisfied by transferring such shares and interest to a
separate account under such plan on behalf of [Wife].” Significantly, section 10 of the Order
provided that “[t]he court reserves jurisdiction over the parties and the subject matter to
amend this order to establish and maintain its status as a QDRO under ERISA and the Code.”
In her brief on appeal, Wife does not explain how the QDRO entered June 4, 2015
fails to comply with the mandate; upon our review, we hold that it does comply, and her
argument to the contrary is not well taken. In any event, to the extent there may be some
deficiency in the implementation of the order, the trial court has retained jurisdiction to
address the same.
B. Alimony
Wife next asserts that the trial court only addressed the alimony award “by awarding
the wife accumulated alimony in arrearage of $49,300, but did not address or record the
alimony award as it was reversed by the Court of Appeals.” Wife correctly points out that
the May 4, 2015 order does not specifically set alimony in futuro of $6,000 per month2;
accordingly we modify and amend the order to so provide. Again, in the event Husband has
not complied with the mandate reinstating the original alimony award, the trial court is
available to address any arrearage since the date of remand.
2
The trial court did enter an order requiring the Clerk and Master to spread the mandate, judgment, order and
opinion of this court onto the minutes of the Chancery Court.
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CONCLUSION
For the foregoing reasons, the judgment of the trial court is affirmed, as modified and
this case is remanded for entry of judgment consistent with this decision.
RICHARD H. DINKINS, JUDGE
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