Thomas Horace Joiner v. Dora Bell Taylor Joiner ( 1998 )

FILED
July 29, 1998
Cecil W. Crowson
Appellate Court Clerk
THOMAS HORACE JOINER, )
) Stewart Chancery
Plaintiff/Appellee, ) No. 94-7-025
)
VS. )
) Appeal No.
DORA BELL TAYLOR JOINER, ) 01A01-9710-CH-00593
)
Defendant/Appellant, )
IN THE COURT OF APPEALS OF TENNESSEE
MIDDLE SECTION AT NASHVILLE
APPEAL FROM THE STEWART COUNTY CHANCERY COURT
AT DOVER, TENNESSEE
HONORABLE ROBERT E. BURCH, JUDGE
Jack Rudolph
107 North Third Street
P.O. Box 925
Clarksville, Tennessee 37041-0925
ATTORNEY FOR PLAINTIFF/APPELLEE
David D. Wolfe
505 West College Street
Dickson, Tennessee 37055
ATTORNEY FOR DEFENDANT/APPELLANT
VACATED IN PART, AFFIRMED IN PART,
AND REMANDED
HENRY F. TODD
PRESIDING JUDGE, MIDDLE SECTION
CONCUR:
BEN H. CANTRELL, JUDGE
WILLIAM C. KOCH, JR., JUDGE
THOMAS HORACE JOINER, )
) Stewart Chancery
Plaintiff/Appellee, ) No. 94-7-025
)
VS. )
) Appeal No.
DORA BELL TAYLOR JOINER, ) 01A01-9710-CH-00593
)
Defendant/Appellant, )
OPINION
The defendant, Dora Bell Taylor Joiner, has appealed from the judgment of the Trial
Court denying her relief from a divorce decree under the provisions of TRCP Rule 60.02.
On November 16, 1994, the husband, Thomas Horace Joiner, filed suit for absolute
divorce.
On November 1, 1995, the wife, Dora Bell Taylor Joiner, filed an answer and counter-
claim.
On July 18, 1996, the parties filed with the Trial Court a marital dissolution agreement.
On September 27, 1996, the Trial Court entered a decree of divorce from bed and board
which provided:
The Court further finds and grants a Bed and Board
Divorce between the parties to be converted to an Absolute
Divorce effective November 1, 1996.
IT IS, THEREFORE, ORDERED, ADJUDGED AND
DECREED BY THE COURT THAT:
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1. A Bed and Board Divorce is hereby granted
between Thomas Horace Joiner, Plaintiff and Dora Bell
Taylor Joiner, Defendant on the ground of irreconcilable
differences. Effective November 1, 1996, this Bed and Board
Divorce shall be converted to an Absolute Divorce and on
November 1, 1996 the parties shall be granted an Absolute
Divorce from each other with Thomas Horace Joiner and
Dora Bell Taylor Joiner being restored to all of the rights,
privileges and immunities of an unmarried person, the Court
declaring them to be divorced on the ground of irreconcilable
differences.
On November 8, 1996, the wife filed her motion for relief, and, on March 17, 1997, she
filed an amendment to the motion. After hearing evidence, on September 22, 1997, the Trial
Court entered an order denying relief.
On appeal, the wife presents a single issue as follows:
I. Did the Trial Court err by overruling the
defendant’s motion to set aside the final decree of divorce
filed pursuant to Rule 60.02 of the Tennessee Rules of Civil
Procedure?
The decree of divorce from bed and board entered on September 27, 1996, was a final,
appealable judgment as to the divorce from bed and board. However, the peculiar wording (shall
be) prevented it from being a final, appealable judgment of absolute divorce which had not, at
that time, been granted. Until the Trial Court enters an order granting an absolute divorce which
is effective upon entry, the matter of the granting of an absolute divorce will not be the subject
of a final, appealable judgment and the Trial Court will be free to revise its tentative, prospective,
prospective decision to grant an absolute divorce on a future date. TRCP Rule 54.02.
The authority of divorce courts to convert a divorce from bed and board into an absolute
divorce has long been recognized. Hackney v. Hackney, 28 Tenn., 9 Humph 450. In Linger v.
Linger, 165 Tenn. 525, 565 S.S.2d 749 (1933), the Supreme Court recognized the unfairness of
“enforced celibacy” and ordered a divorce from bed and board converted into an absolute divorce
where there was no hope of reconciliation.
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T.C.A. § 36-4-102 reads in part as follows:
(b) The circuit, chancery or such other court specially
empowered to grant divorces also has the power to grant
absolute divorces to either party where there has been a final
decree of divorce from bed and board, or of separate
maintenance for more than two (2) years, upon a petition
being filed by either party that sets forth the original decree
for divorce from bed and board, or separate maintenance, and
that the parties have not become reconciled. The court
granting the absolute divorce shall make a final and complete
adjudication of the support and property rights of the parties.
However, nothing in this subsection shall preclude the divorce
forum from granting an absolute divorce before the two (2)
years has expired. (Emphasis supplied)
In Abney v. Abney, 61 Tenn. App. 531, 456 S.W.2d 364, (1970), this Court held that it
is not mandatory that the absolute divorce be granted on the sole ground of two years separation
without reconciliation, without pleading and proof of other grounds. The same authority held
that the policy of the law is to encourage reconciliation rather than to reward a refusal to be
reconciled. Riggs v. Riggs, 181 Tenn. 633, 184 S.W.2d 9 (1945). See also Matthews v.
Matthews, 24 Tenn. App. 580, 148 S.W.2d 3, (1941).
Both the statute and the authorities appear to require a further petition of a party and
further consideration by the divorce court as a prerequisite to the conversion of a divorce from
bed and board into an absolute divorce.
Since the record contains no such supplemental petition, the September 27, 1996,
anticipatory grant of an absolute divorce effective November 1, 1996, was ineffective. The
“shall be” verbiage of the September 27 order was confirmation of this procedural omission.
The anticipatory grant of an absolute divorce cannot be considered a final judgment from which
relief can be granted under Rule 60.02 which provides that it is applicable only to final
judgments.
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In view of the foregoing, the arguments of the parties as to the correctness of the denial
of Rule 60.02 become moot. That part of the judgment of the Trial Court which denied relief
under Rule 60.02 is affirmed.
That part of the judgment of the Trial which granted an absolute divorce is vacated
without prejudice to further hearing, consideration and action by the Trial Court upon the subject
of an absolute divorce. The cause is remanded for further proceedings. Costs of this appeal are
taxed against the appellant.
VACATED IN PART, AFFIRMED IN PART,
AND REMANDED.
___________________________________
HENRY F. TODD
PRESIDING JUDGE, MIDDLE SECTION
CONCUR:
_____________________________
BEN H. CANTRELL, JUDGE
_____________________________
WILLIAM C. KOCH, JR., JUDGE
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