Session August 20, 2019
from the Circuit Court for Hamilton County No. 13D2425L.
Marie Williams, Judge
appeals the trial court's denial of his Tennessee Rule of
Civil Procedure 59.04 motion to reopen proof in this divorce
case. By his motion, Husband sought to introduce allegedly
"newly discovered evidence" concerning the
premarital value of his retirement account. The trial court
denied the motion, finding that the evidence, which consisted
of Husband's previous divorce decree, was a matter of
public record and was available to Husband during discovery
in the instant divorce matter. We conclude that the trial
court did not abuse its discretion in denying Husband's
motion. Affirmed and remanded.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Court Affirmed and Remanded
C. Wright, Chattanooga, Tennessee, for the appellant, Earl
R. O'Dwyer, Chattanooga, Tennessee, for the appellee,
Sonya Lee Westbrooks.
Armstrong, J., delivered the opinion of the court, in which
Charles D. Susano, Jr. and Thomas R. Frierson, II, JJ.,
Earl Westbrooks ("Husband") and Appellee Sonya
Westbrooks ("Wife") were married for twenty years.
Wife filed for divorce on December 3, 2013; however, the
trial did not take place until July 11, 2017. As is relevant
to the instant appeal, Husband had a premarital investment
account with Paine-Webber. Despite Wife's significant
discovery efforts, he failed to produce documents to
substantiate the premarital value of the account.
Accordingly, in its final decree of divorce, which was
entered on August 3, 2018, the trial court divided the 401K
accounts equally between the parties.
August 30, 2018, within 30 days of entry of the final decree
of divorce, Husband filed a "motion for clarification,
correction and to amend." The motion, which was brought
under Tennessee Rule of Civil Procedure 59.04, alleges, in
pertinent part, that, "There may be new evidence to
support Husband's allegation that a portion of the 401k
was premarital. He is currently trying to obtain this
information, and if he does obtain this, he would like the
opportunity to present this to the Court." By order of
September 24, 2018, the trial court gave Husband two weeks
(until October 1, 2018) to supply a legal basis for his Rule
59 motion to reopen proof. On October 17, 2018, Husband filed
an amended Rule 59 motion, wherein he averred that he had
actually obtained the new evidence. In his brief filed in
support of his motion, Husband specified that the "new
evidence" is a second divorce decree between him and his
first wife, Dorothy. Prior to his marriage to Appellee,
Husband was married to Dorothy M. Westbrooks. While Appellee
knew of the first marriage to Dorothy, Husband did not
disclose that he had divorced Dorothy and then remarried and
divorced her a second time prior to his marriage to Appellee.
Wife filed an objection to Husband's motion.
order of October 4, 2018, the trial court denied
Husband's motion on its finding that Husband could have
produced the post-trial evidence prior to trial. The trial
court entered a subsequent order allowing Husband to make an
offer of proof. Husband's offer of proof consisted of:
(1) a financial statement, which was filed on or about July
19, 1996, in the divorce proceedings between Husband and
Dorothy listing the value of "Husband's 401K"
as $161, 000; (2) the September 5, 1996 final decree granting
a divorce to Dorothy and Husband. The final divorce decree
awards Husband his retirement account, but does not specify
the value of same; (3) Husband's trial brief filed in his
second divorce from Dorothy, wherein he states that,
"[w]hen the parties remarried. . . [Husband's]
retirement account had grown to about $115, 000 . . .
." Husband appeals the trial court's
denial of his Rule 59.04 motion.
raises one issue for review as stated in his brief:
Did the trial court commit reversible error when it failed to
consider the post-trial proof furnished by Husband, which
tended to show the premarital value of the Husband's
401(k), when the failure to consider the proof resulted ...