COURT OF APPEALS OF TENNESSEE, MIDDLE SECTION AT NASHVILLE
November 5, 1985
JOHN R. MEEKS, PLAINTIFF-APPELLANT
EVA JOYCE OGLES MEEKS, DEFENDANT-APPELLEE
Montgomery Equity. CofA No. 85-166-II. APPEAL FROM THE CHANCERY COURT OF MONTGOMERY COUNTY, TENNESSEE AT CLARKSVILLE. HONORABLE MURIEL ROBINSON, JUDGE, SITTING BY INTERCHANGE.
Todd, Presiding Judge, Middle Section wrote the opinion. Concur: Samuel L. Lewis, Judge, Ben H. Cantrell, Judge
The opinion of the court was delivered by: Todd
HENRY F. TODD, PRESIDING JUDGE, MIDDLE SECTION
On February 12, 1985, plaintiff filed a notice of appeal to this Court from a judgment entered on January 16, 1985.
The judgment entered on January 16, 1985, is entitled "Final Decree" and recites that it resulted from an original complaint for divorce and a counter-complaint. The complaint prays for an absolute divorce.
The judgment orders:
1. Defendant found guilty of cruel and inhuman treatment.
2. Counter-complaint dismissed.
5. - 13. Certain specified property divested and vested between the parties.
14. Plaintiff to pay defendant $10,000.00.
15. "The said Eva Joyce Ogles Meeks is restored to her maiden name of Ogles. (See attached note)."
The Court retained enforcement jurisdiction.
On February 5, 1985, the Trial Court entered an order overruling a motion for new trial.
On March 13, 1985, (after the filing of notice of appeal on February 12), the following document was entered on the minutes of the Trial Court:
ORDER AMENDING THE FINAL DECREE OF DIVORCE
This cause came to be heard on the 8th day of March, 1985, before the Honorable Muriel Robinson, sitting by interchange for the Honorable Alex W. Darnell, upon the joint Motion of the parties to amend the Final Decree of divorce by adding the following to the final sentence of Paragraph 1 on Page 5 of the Final Decree:
"and, the Plaintiff is therefore awarded an absolute divorce."
Enter the above this 8th day of March, 1985.
(signed) Muriel Robinson, JUDGE
APPROVED FOR ENTRY:
(signed) John J. Hestle
John J. Hestle, Attorney for Plaintiff
DANIEL, HARVILL, BATSON & NOLAN
By: (signed ) Elizabeth Sykes
Elizabeth A. Sykes, Attorney for Defendant, 121 South Third Street, Clarksville, Tennessee 37040, (615) 647-1501
It is seen from the foregoing that:
1. The complaint prays for a divorce.
2. No divorce was granted or denied in the final decree.
3. The obvious attempt to supply the omission in the final decree was ineffective because there was only a motion for relief but no action by the Court upon the motion.
TRAP Rule 3(a) declares:
Appeal as of Right: Availability; Method of Initiation. -- (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 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.
It is seen that no final judgment has been entered in this cause, that the Trial Judge has continuing power to change any order herein until a final judgment is entered and that this appeal is premature.
The appeal is therefore dismissed at the cost of appellant without prejudice to any further appeal which may be timely and properly prosecuted in this cause. In event of such appeal, either party may move this Court to consolidate the record of this appeal with that of the future appeal and/or to consider the duplicates of briefs filed in the present appeal in connection with the future appeal.
The cause is remanded for further proceedings.
Dismissed and Remanded.
CONCUR: SAMUEL L. LEWIS, JUDGE, BEN H. CANTRELL, JUDGE
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