Teresa G. Bradford v. Donnie R. Bradford ( 1996 )


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  • TERESA G. BRADFORD,                     )
    )
    Plaintiff/Appellee,               )
    )    Montgomery Chancery
    )    No. 92-71-434
    VS.                                     )
    )    Appeal No.
    )    01-A-01-9603-CH-00121
    DONNIE R. BRADFORD,                     )
    )
    Defendant/Appellant.              )
    FILED
    IN THE COURT OF APPEALS OF TENNESSEE             June 7, 1996
    MIDDLE SECTION AT NASHVILLE         Cecil W. Crowson
    Appellate Court Clerk
    APPEAL FROM THE CHANCERY COURT OF MONTGOMERY COUNTY
    AT CLARKSVILLE, TENNESSEE
    HONORABLE ALEX W. DARNELL, CHANCELLOR
    CLEO GREER HOGAN
    107 North Third Street
    Clarksville, Tennessee 37041
    ATTORNEY FOR PLAINTIFF/APPELLEE
    THOMAS R. MEEKS
    137 Franklin Street
    Clarksville, Tennessee 37040
    ATTORNEY FOR DEFENDANT/APPELLANT
    MOTION OF THE APPELLANT IS OVERRULED.
    HENRY F. TODD
    PRESIDING JUDGE, MIDDLE SECTION
    CONCUR:
    SAMUEL L. LEWIS, JUDGE
    BEN H. CANTRELL, JUDGE
    TERESA G. BRADFORD,                            )
    )
    Plaintiff/Appellee,                     )
    )      Montgomery Chancery
    )      No. 92-71-434
    VS.                                            )
    )      Appeal No.
    )      01-A-01-9603-CH-00121
    DONNIE R. BRADFORD,                            )
    )
    Defendant/Appellant.                    )
    OPINION
    On May 16, 1996, appellant moved this Court to rule that this cause is properly before
    this Court.
    It appears that, on June 9, 1995, this Court dismissed a previous appeal from a
    judgment that did not dispose of all issues pending before the Trial Court.
    On March 18, 1996, appellant filed in this Court, the following motion:
    Comes now, Donnie R. Bradford, pursuant to Rule 22 of the
    Tennessee Rules of Appellate Procedure and respectfully
    petitions this court for an order which would allow the
    appellant, Donnie R. Bradford to proceed with his appeal from
    a judgment of the Chancery Court of Montgomery County,
    Tennessee. The movant would show that he filed a notice of
    appeal and the court ruled that said notice of appeal was
    premature due to a lack of a final order addressing the issue of
    back child support. The movant would show subsequent to this
    court’s decision, the parties entered an order which stated that
    there was no back child support due at the time of the initial
    appeal by the appellant. (See exhibit one). The positions of the
    appellant and the appellee are the same as they were on the
    24th day of May, 1995. The appellant requests that his notice
    of appeal be treated as [if it had] been filed subsequent to the
    parties’ agreed order as evidenced by Exhibit One of this
    motion. The appellant avers that Rule 4 of the Tennessee
    Rules of Appellate Procedure allows a premature notice of
    appeal to be treated as filed after the entry of the judgment
    from which the appeal is taken. The movant respectfully prays
    that this court issue an order requiring the Clerk and Master to
    transfer the record of the trial court proceedings to this court so
    that a proper review of the trial court’s decision can be made.
    (See exhibit two).
    -2-
    Exhibit One to said motion is an agreed order entered on February 1, 1996, reading as
    follows:
    This cause came on to be heard December 22, 1995 upon the
    Motion filed June 26, 1995 of the defendant to declare there
    was no back support due and upon the Notice of Withdrawal of
    Petition for Contempt filed in this cause on September 20,
    1995 pertaining to a Petition for Contempt filed on May 11,
    1993 and upon the Notice of Withdrawal of the Petition for
    Contempt filed on September 20, 1995 pertaining to a Petition
    for Contempt filed on May 20, 1994 by the plaintiff and upon
    the record as a whole and on the representation of counsel for
    the parties.
    The court finds that the parties are in agreement that the Final
    Decree of Absolute Divorce filed in this cause on June 15,
    1994 was entered with consideration for the respective
    Petitions for Contempt and that defendant’s motion to declare
    there was no back child support owed at the time of entry of the
    Final Decree is well taken, and should be granted.
    Wherefore, premises considered; it is hereby ordered,
    adjudged and decreed that the Final Decree of Absolute
    Divorce in this cause contained consideration of the respective
    Petitions for Contempt that have now been withdrawn by the
    plaintiff and there was not at the time of the entry of the Final
    Decree on June 15, 1994 any issue of Contempt in this cause
    and that defendant’s Motion for the Court to find that all child
    support arrearages had been resolved by the Final Decree is
    granted.
    Also attached to said motion is the following affidavit:
    I, Thomas R. Meeks, hereby state and aver that I have been
    the attorney of record for Donnie R. Bradford from the
    inception of the divorce proceedings filed in Montgomery
    County Chancery Court, Docket Number 92-71-434. On May
    24th, 1995 the Court of Appeals determined that the appeal that
    the appellant had perfected in case number 01-A-01-9505-CH-
    00207 should be dismissed on the basis that an issue of back
    child support had not been resolved by the trial court. Both
    attorneys of record, Cleo Hogan, attorney for appellee, and
    myself recognized that the issue of back child support was non
    existent and not a viable issue which either party sought the
    Court of Appeals to address. An agreed order acknowledging
    that back child support was not an issue and that all child
    support arrearage had been resolved by the final decree which
    the appellant sought to appeal in case number 01-A-01-9505-
    CH-00207. The respective parties’ positions are the same prior
    the entry of the Court of Appeals order to dismiss, Donnie R.
    Bradford’s appeal as it stands today. (See March 11th, 1996
    letter from Cleo Hogan). Neither parties’ positions have been
    changed, altered, or modified by the entry of the agreed order in
    the Chancery Court for Montgomery County, Tennessee on
    -3-
    February 1, 1996. The appellant did not file a notice of appeal
    after entry of the February 1, 1996 Chancery Court order. It is
    the affiant’s belief that relief under Rule 2 and Rule 4 of the
    Tennessee Rules of Appellate Procedure allows this court to
    utilize the notice of appeal filed in 01-A-01-9505-CH-00207,
    and allow the appellant to proceed with his appeal without
    filing another notice of appeal after the entry of the agreed
    order filed by the parties in the Chancery Court of Montgomery
    County, Tennessee.
    On March 29, 1996, this Court entered the following order:
    On May 24, 1995, this court dismissed the appellant’s appeal
    for lack of a final order. The trial court apparently entered a
    final order on February 1, 1996 but the appellant failed to file a
    new notice of appeal within the time permitted by Tenn. R.
    App. P. 4. The appellant has now filed a motion requesting an
    order allowing his appeal to proceed based on his original
    notice of appeal. The appellant’s request addresses itself in the
    first instance to the trial court. This court declines to rule upon
    the appellant’s right to appeal unless and until the trial court
    has ruled on the issue.
    It is, therefore, ordered that the appellant’s motion be
    overruled.
    On May 16, 1996, the appellant filed in this court the first mentioned motion reading
    as follows:
    Comes the movant, Donnie Ray Bradford, by and through his
    attorney, Thomas R. Meeks, and respectfully requests the Court
    to rule that this case is properly before the Court and there are
    no issues left for the trial court to review or try. This matter is
    accepted by the Court of Appeals for proper review. The
    movant further requests that any failure on the part of Donnie
    Ray Bradford to file a new notice of appeal is excused pursuant
    to Rule 2 of the Tennessee Rules of Appellate Procedure.
    T.R.A.P. Rule 4(d) reads as follows:
    (d) Premature Filing of Notice of Appeal - A prematurely
    filed notice of appeal shall be treated as filed after the entry of
    the judgment from which the appeal is taken and on the day
    thereof.
    As explained in the Committee Comment, the quoted provision was for the limited
    purpose of preserving the validity of a notice of appeal filed after entry of final judgment but
    before the disposition of post-judgment motions such as motions to alter or amend.      It was
    -4-
    not intended to validate notices of appeal filed, for example, with the complaint. Nor was it
    intended to preserve the effectiveness of a notice of appeal from a non-final judgment when
    that appeal is dismissed by the appellate court for lack of a final judgment.
    When the previous appeal was dismissed, the appellant had the opportunity of petition
    to rehear and/or application for permission to appeal to the Supreme Court. Upon the
    expiration of the time for same or the exhaustion of such remedies, the judgment of this
    Court was final, and not subject to revision by this Court.
    The agreed order of February 1, 1996, if it completed the disposition of all issues
    before the Trial Court, constituted a final judgment from which a new appeal on all issues
    was available by timely notice of appeal which, apparently, was not filed.
    The motions of March 18, 1996, and May 16, 1996, are an effort to rely upon the
    original notice of appeal from the non-final judgment. By Rule 4(d), said notice was deemed
    to have been filed on the date of entry of the judgment “from which (the appeal) was taken.”
    Undoubtedly, the judgment named in the notice was the non-final judgment. It has served its
    purpose by causing a record to be transmitted to this Court. Having served its purpose, it
    became “functus officio” (a task performed). Black’s Law Dictionary, Fourth Edition, p.802,
    and useless for any further purpose. City Finance Co. v. Harris, 
    60 Tenn. App. 188
    , 
    445 S.W.2d 467
     (1968); State v. Stafford, 
    183 Tenn. 186
    , 
    191 S.W.2d 442
     (1946).
    The motions seek relief under T.R.A.P. Rule 2, but said rule specifically denies to this
    Court the power to waive the timeliness of a notice of appeal.
    The motion of the appellant is overruled, and appellant is taxed with accrued cost for
    which execution may issue.
    -5-
    MOTION OF THE APPELLANT IS OVERRULED.
    _______________________________________
    HENRY F. TODD
    PRESIDING JUDGE, MIDDLE SECTION
    CONCUR:
    _____________________________________
    SAMUEL L. LEWIS, JUDGE
    _____________________________________
    BEN H. CANTRELL, JUDGE
    -6-
    

Document Info

Docket Number: 01A01-9603-CH-00121

Judges: Presiding Judge Henry F. Todd

Filed Date: 6/7/1996

Precedential Status: Precedential

Modified Date: 4/17/2021