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Holleman v. Holleman

Court of Appeals of Tennessee, Knoxville

May 30, 2019

JAMES V. HOLLEMAN
v.
BARBARA J. HOLLEMAN

          Session: April 16, 2019

          Appeal from the Chancery Court for Knox County No. 163466-1 Clarence E. Pridemore, Jr., Chancellor

         In this post-divorce action, the trial court denied the wife's request for relief from a prior judgment and ordered the parties to comply with their written marital dissolution agreement regarding the sale of a parcel of marital real property. Following numerous motions filed by the parties, including several motions for recusal filed by the wife, the trial court eventually granted recusal. The newly assigned trial court judge held a hearing to consider pending motions and determine the status of the case, and the wife filed another motion to recuse shortly after that hearing. The trial court entered a subsequent order, wherein the court denied recusal and instructed the Clerk and Master to select a realtor and sell the parcel of property on the parties' behalf. Wife subsequently filed a motion seeking "relief of void orders," pursuant to Tennessee Rule of Civil Procedure 60, which was denied by the trial court. Wife filed a second but different Rule 60 motion thereafter, which was also denied by the trial court. Wife timely appealed. Discerning no error, we affirm the trial court's judgment in this matter. We grant Husband's request for attorney's fees pursuant to the parties' MDA and remand this issue to the trial court for a determination of a reasonable award of attorney's fees in favor of Husband. We deny Wife's motions seeking supplementation of the record and consideration of post-judgment facts.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed; Case Remanded

          Barbara J. Holleman, Knoxville, Tennessee, Pro Se.

          William A. Mynatt, Jr., and Robyn J. Askew, Knoxville, Tennessee, for the appellee, James V. Holleman.

          Thomas R. Frierson, II, J., delivered the opinion of the court, in which D. Michael Swiney, C.J., and John W. McClarty, J., joined.

          OPINION

          THOMAS R. FRIERSON, II, JUDGE

         I. Factual and Procedural Background

         This divorce action was filed by the plaintiff, James V. Holleman ("Husband"), in the Knox County Chancery Court ("trial court") on February 17, 2005. Husband sought a divorce from his wife, Barbara J. Holleman ("Wife"), based on irreconcilable differences or, in the alternative, Wife's alleged inappropriate marital conduct. Husband asked the trial court to approve a proposed permanent parenting plan attached to his complaint and to equitably divide the parties' marital property and debts.

         Following a hearing conducted on September 27, 2006, the trial court entered a final judgment of divorce on October 5, 2006. The trial court incorporated within the judgment a Marital Dissolution Agreement ("MDA") executed by the parties. The MDA provided, in relevant portion, that a parcel of real property located on Monterey Road in Loudon County ("the Monterey Property") would be placed on the market for sale and further specified how this task was to be accomplished. The MDA also provided that the proceeds from the sale, following payment of the mortgage balance, would be divided equally between the parties. The MDA further provided that until the Monterey Property was sold, Husband would be responsible for paying any mortgage, taxes, insurance, or other expenses related to that property.

         On February 9, 2007, Husband filed a petition for contempt, alleging that the parties had received a fair and reasonable offer to purchase the Monterey Property at a price that Husband believed to be above the current market value. Alleging that Wife had refused to sign the contract or otherwise cooperate with the sale of the Monterey Property, Husband sought an order from the trial court directing Wife to comply with the MDA's provisions regarding the sale of the property.

         Wife filed a response to the petition on March 14, 2007, asserting that Husband, by not listing the property with a realtor, had failed to follow the procedure for sale of the Monterey Property set forth in the MDA. Wife therefore asserted that she did not trust Husband's claim that the purchase offer was a "good deal" and argued that she was not obligated to sign the contract for purchase.

         On April 23, 2010, Wife filed a "Petition" in the trial court, alleging, inter alia, that Husband had not followed the proper procedure for marketing the Monterey Property and instead had rented it for one-half of its fair market rental value without consulting her. Wife stated that Husband had also obtained a modification of the Deed of Trust concerning the Monterey Property without notifying her and had failed to share the rents collected from the property with her. Wife further alleged that Husband had not disclosed all of his assets at the time the parties entered into the MDA.

          Wife sought a finding of contempt based on Husband's actions concerning the Monterey Property. Wife also alleged that Husband had been unjustly enriched by his rental of the property and that Husband was guilty of misrepresentation and fraudulent concealment. Wife sought an award of compensatory and punitive damages, as well as attorney's fees, but she did not ask that the MDA be held invalid. Husband filed an answer, stating that he had inadvertently failed to disclose his interest in two business entities at the time of execution of the MDA. Husband also admitted that he had rented the Monterey Property, but he averred that the expenses related to the property exceeded the rental income. The trial court conducted a hearing concerning Wife's petition over four non-consecutive days in August, September, and November 2011.

         On January 31, 2012, the trial court entered a memorandum opinion, wherein the court stated that Wife had filed her petition on April 23, 2010, more than three years following entry of the final decree, seeking relief from that judgment. The court explained that Wife had alleged fraud and sought damages based on Husband's act of executing the MDA while "withholding and concealing two business interests, an interest in SW Property Partners, G.P., and an interest in Harbour Gate, LLC." The court noted that Wife also sought payment of one-half of the rents collected from the Monterey Property.

         As the trial court found in its memorandum opinion, Husband admitted that he failed to disclose his interest in the two above-named business associations, but he claimed that the nondisclosures were inadvertent. Husband also claimed that SW Property Partners, G.P., had no value at the time of the divorce. Husband asserted that he was entitled to receive the rental proceeds from the Monterey Property. Husband further averred that he should be granted a setoff against Wife's interest in the rental proceeds, if any, because Wife had refused to allow the sale of said property.

         Relying on our Supreme Court's opinion in Black v. Black, 166 S.W.3d 699, 703-06 (Tenn. 2005), the trial court determined in its memorandum opinion that when a judgment is obtained by fraud, the defrauded party can either attempt to have the judgment set aside, pursuant to Tennessee Rule of Civil Procedure 60.02, or file a common law action for damages. The court found that in this case, Wife had filed a common law action for damages. As the court noted, a motion under Tennessee Rule of Civil Procedure 60.02(2) would have required filing within one year from the judgment. The court further noted that Wife could not bring an independent action under the savings provision of Rule 60.02 because her petition alleged intrinsic rather than extrinsic fraud. See id. at 703. Regarding Wife's common law action for damages, the trial court found that such an action also had to be based upon extrinsic rather than intrinsic fraud. The court therefore determined that Wife's claim in this regard was without merit.

         The trial court found that Husband had sold his interest in Harbour Gate on October 5, 2006, for $133, 814. According to the court, the parties had stipulated that they intended for their marital estate to be divided equally under the MDA. The court therefore found that if Wife had filed a timely motion pursuant to Rule 60.02, she would have been entitled to one-half of the Harbour Gate sale proceeds.

         The trial court stated that Husband had testified that SW Property Partners, G.P., had no value at the time of the divorce. According to the court, Wife called an accountant as an expert witness to testify regarding the value of this business interest. The court noted that the accountant had testified that his opinion of value was based on a "rough guess" and included some speculation. The court therefore found the expert's opinion to be "without sufficient basis and unpersuasive."

         Concerning the Monterey Property, the trial court found that the parties owned this property as tenants in common following entry of the divorce judgment. The court discussed the MDA's provision concerning the Monterey Property, which stated that the property "shall be placed on the market and sold as soon as possible" and "shall be listed with a realtor." The MDA provided that until the Monterey Property was sold, Husband would be responsible for paying all debt and expenses associated with the property. The court ultimately concluded that Wife was entitled to a judgment in the amount of $7, 500 for her share of the rents collected from November 2007 to April 2010.[1] All other claims were dismissed.

         The trial court subsequently entered a judgment on March 8, 2012, awarding to Wife $7, 500 for her share of the Monterey Property rents collected from November 2007 through April 2010. The court dismissed all other pending claims with prejudice. No appeal was filed concerning this judgment.

         On April 3, 2012, Husband filed a motion seeking to enforce the MDA's provisions with regard to the sale of the Monterey Property. Husband argued that Wife had rejected four prior offers to purchase the property and refused to sign a realtor listing agreement. Husband asked the trial court to enforce the MDA by ordering Wife to execute the necessary documents to effectuate the Monterey Property's sale. Husband also sought an award of attorney's fees.

         Wife filed a motion seeking recusal of the trial court judge, Chancellor John F. Weaver, on May 21, 2012. Wife averred that the trial court judge had shown bias and prejudice against her and in favor of her former counsel, who had recently withdrawn from his representation of her. Wife further averred that the trial court judge had made a "hostile, discriminatory comment" to Wife, allegedly concerning her requested accommodation of a disability. Wife also complained about the trial court's findings made in its earlier memorandum opinion and about an alleged ex parte communication that occurred on the first day of trial between the trial court judge and a senior partner from Wife's former counsel's law firm. The trial court entered an order on June 21, 2012, denying Wife's recusal motion.

         Meanwhile, on June 20, 2012, Wife filed a "Motion for Reconsideration of Motion for Recusal of this Court," again questioning the trial court judge's impartiality. The trial court entered an order on July 6, 2012, denying Wife's motion.

         On September 26, 2012, the trial court entered an order granting Husband's motion to enforce the MDA. The court directed that the parties would strictly follow the requirements of the MDA regarding the sale of the Monterey Property, such that each party would choose a realtor within thirty days and then those two realtors would choose a third realtor. The court also ordered that if a party was unable or unwilling to choose a realtor, the Clerk and Master would make that decision instead. No appeal was filed concerning this order. Thereafter, Husband filed a motion on January 15, 2013, seeking to enforce the court's order and find Wife in contempt because Wife had failed to sign the listing agreement after the realtors were chosen. The trial court entered an order on January 28, 2013, directing Wife to show cause why she should not be held in contempt for her failure to comply with the court's prior order.

         Wife subsequently filed various motions seeking, inter alia, to have access to the Monterey Property, the ability to collect the rents, a finding of contempt against Husband, and reconsideration of the trial court's September 26, 2012 order. Wife also filed a motion seeking to invalidate or modify the MDA. On July 3, 2014, the trial court entered an order, stating in pertinent part:

At the beginning of the hearing, counsel for the defendant stated that the defendant's Motion for Protective Order would become moot if the Court determined that it lacked jurisdiction to modify the parties' Marital Dissolution Agreement. The parties agreed before the Court that the Court could not modify the parties' Marital Dissolution Agreement. Furthermore, [Wife] withdrew her motions filed March 28, 2013 and January 27, 2014. During the hearing, [Wife] formally moved for the Court to recuse itself asserting that her constitutional rights were being violated. Subsequently, during the same hearing, [Wife] orally moved for the Court to recuse itself asserting that the Court was biased. The case has a tainted context, including among other things, a finding by the Court that the defendant had committed intrinsic fraud in the original divorce action but that the Court could not grant any relief because, among other things, the limitations period had passed for granting relief as to redressing his intrinsic fraud. The case also involved a post judgment submission of a listing agreement on behalf of the defendant which involved false information as to the proposed listing agent. The Court's judgment of March 8, 2012, disposed of the issue of intrinsic fraud. Pursuant to the order entered April 29, 2013, the defendant withdrew his motion involving the listing agreement with false information. None of those matters has resulted in any forfeiture of either party's property interests under the Marital Dissolution Agreement. The Court is unaware of any constitutional violation or basis for bias.

         The trial court accordingly ruled that it had no jurisdiction to modify the parties' MDA and that the MDA could not be modified on the basis of waiver, abandonment, or constructive fraud. The court denied Wife's oral motion for recusal. The court reaffirmed its earlier ruling that the parties should strictly follow the MDA's requirements to facilitate the sale of the Monterey Property.

         On July 16, 2014, proceeding self-represented, Wife filed another motion seeking recusal of the trial court judge as well as "reconsideration" of the trial court's previous orders. The trial court entered an order on August 12, 2014, denying the motion to recuse and setting the motion for reconsideration for further hearing.

         Wife subsequently filed numerous motions, including a "Petition for Partition in Kind," asking the trial court to partition the Monterey Property and divide it between the parties. In this petition, Wife purported to name American Fidelity Bank ...


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