                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                                November 7, 2012 Session

                     HERBERT L. HALL v. CHONA S. HALL

                  Appeal from the Circuit Court for Hamilton County
                     No. 10D1989      Jeff Hollingsworth, Judge


            No. E2012-00394-COA-R3-CV-FILED-DECEMBER 21, 2012


This appeal arises from a divorce. After approximately four years of marriage, Herbert L.
Hall (“Husband”) sued Chona S. Hall (“Wife”) for divorce in the Circuit Court for Hamilton
County (“the Trial Court”). The Trial Court granted the parties a divorce and divided the
marital estate. Wife filed a motion for a new trial, which was denied. Wife appeals to this
Court, arguing, among other things, that the Trial Court erred in entering a decree for divorce
when the parties had not engaged in mediation, and, that the Trial Court failed to adhere to
applicable local court rules. We affirm the judgment of the Trial Court.

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

D. M ICHAEL S WINEY, J., delivered the opinion of the Court, in which C HARLES D . S USANO,
J R., and J OHN W. M CC LARTY, JJ., joined.

Philip M. Jacobs, Cleveland, Tennessee, for the appellant, Chona S. Hall.

John R. Morgan, Chattanooga, Tennessee, for the appellee, Herbert L. Hall.
                                         OPINION

                                        Background

              The record in this case contains no trial transcript. The record does contain a
Statement of the Evidence submitted by Husband pursuant to Rule 24 of the Tennessee Rules
of Appellate Procedure and approved by the Trial Court.

             The parties were married in June 2006. In October 2010, Husband sued Wife
for divorce. Wife, after some delay and acting pro se at that time, filed an answer and
counterclaim in January 2011. Though mediation was scheduled for August 9, 2011, and
August 15, 2011, the mediator indicated that Wife unilaterally had cancelled the mediation.
This case was tried in October 2011.

             The Statement of the Evidence contains an account of the testimony at trial,
which we reproduce subject to our formatting changes:

               Plaintiff was 60 years old and employed with BASF as a chemical
       technician for some 16 years. He was currently in a Chapter 13 bankruptcy
       plan. This was a five year marriage. The home they lived in was his home
       prior to the parties’ marriage. Plaintiff’s earnings were $26.00 per hour. He
       had been married to his first wife for 25 years, who had died. He then married
       the defendant within one year following the death of his wife. Plaintiff’s
       testimony further with regard to the grounds for divorce were that his wife had
       refused to sleep in the bed that he had owned with his former [wife] and
       therefore, refused to sleep with him. She was simply argumentative and
       difficult to get a long with. There had never been any physical altercations
       between the two parties. At the time of the parties’ marriage, the defendant
       was still living with her former husband in his home, even though they were
       divorced. The defendant had never worked, and she received her social
       security disability of approximately $973.00 per month throughout the
       marriage. The plaintiff paid all of the household bills and the defendant was
       free to use her social security earnings as she saw fit. With regard to the home
       currently occupied by both parties, the plaintiff testified that he had purchased
       the home in 1986. He has always paid the mortgage, and currently through the
       Chapter 13 bankruptcy plan, and that there had been no appreciation in value
       or significant improvements at all during the five year marriage to the
       defendant.




                                              -2-
        Regarding other assets acquired during the marriage, the plaintiff
testified that he had purchased several vacant lots at a back tax sale using life
insurance proceeds following his first wife’s death; he still owns those lots, but
they are apparently [] not a very good investment. There has been no
appreciation and he has had no offers to purchase any of them. During the
course of the marriage, the plaintiff purchased a quadraplex rental unit,
borrowing money from the credit union for the purchase of the same. The
plaintiff was unable to keep up with the payments due to the condition of the
rental units, and he lost the rental property to foreclosure and further, suffered
a deficiency judgment in the amount of $24,000.00 that he is still paying on
through his bankruptcy. The defendant is the owner of a 2001 Nissan Xterra
that she brought into the marriage, and that there was a loan of some $2,000.00
that the plaintiff was paying through the Chapter 13. He fully intended for her
to keep that car and that he would pay the balance on the loan through the plan.
The plaintiff drove an old truck that had no lien. With regard to personal
property, the plaintiff testified that certainly any property that the defendant
brought into the marriage was hers. He further acquiesced later on that she
could have all of the property listed in her itemization of property, including
the bedroom suite that he had purchased and was still paying for during the
course of the marriage. The plaintiff testified that he has a fishing boat that he
paid $8,000.00 for using monies from the sale of the boat that he had owned
prior to this marriage.

        The first exhibit offered by the plaintiff was a statement for his 401(k),
which he has through his employer. The testimony and the document revealed
that the 401(k) had actually lost value due to the recession, even taking into
consideration the loan that he was paying back on the 401(k). The plaintiff
testified that he makes approximately $67,000.00 per year through his
employment with BASF. Exhibit 2 offered by the plaintiff was his Income and
Expense Statement which detailed his gross earnings and his ongoing monthly
expenses, the most significant of which was the Chapter 13 bankruptcy plan
payment, which resulted in a break even, at best or net loss on a monthly basis.

        The defendant was offered the opportunity to cross examine her
husband on the stand, and primarily made accusations with regard to whether
or [sic] he and her adult daughter were, at some point, having an affair during
the course of the marriage, which [Husband] denied.

      The defendant then took the stand and testified . . . Since the marriage
in 2006, there had nothing more then ordinary maintenance and some

                                       -3-
      landscaping planted at the residence; that she earns $973.00 per month in
      social security disability payments and that she has Medicare health insurance.
      She had no further accusations regarding Mr. Hall’s conduct, and that she was
      also insured on his employment carrier through BASF. Defendant further
      testified with regard to some credit card indebtedness, that she continues to
      have in the amount of $5,000.00 to Belk, $6,000.00 on a Mastercard,
      $5,000.00 on a JCPenney card, and that she had a debt with Home Shopping
      Network that she had recently paid off. The defendant then provided the
      itemized list of furniture which she wanted from the home, and plaintiff
      stipulated that she could have all those items listed. The defendant testified
      that she would like to remain in house, even though it was her husband’s and
      that she spent her social security monies for food herself.

             Defendant further testified that she had given her husband $4,000.00
      from a life insurance policy she cashed in, but that she could not remember
      whether or not he had ever repaid the same, nor did she have any information
      with regard to what the loan for the 401(k) had been used for. She was not a
      party to the bankruptcy proceeding. On cross examination, the defendant
      admitted that she did not have any pension or retirement plan, but that she had
      cashed in the same from her previous employment. She was the owner of a
      house in the Philippines which was paid for. She paid approximately
      $14,00.00 [sic] for it several years ago. The dwelling was actually a duplex
      occupied by her son who does not pay her any rent. The defendant could not
      remember either way whether or not the $4,000.00 she gave her husband had
      been paid back, though he asserted it had been. The defendant further testified
      under cross examination that she brought all of the credit card debt which she
      now has into the marriage, and again asserted that she had no other place to
      move at this time.

              The Trial Court subsequently entered the Final Decree of Divorce in November
2011, finding and holding as follows:

              This cause came on to be heard on the 25th day of October, 2011, upon
      the original complaint for divorce, the filing by the pro se defendant, which the
      Court deemed as an answer and countercomplaint, and upon the testimony of
      witnesses in open court, presentation of documentary evidence and the entire
      record, the Court finds that the parties should be declared divorce pursuant to
      T.C.A. §36-4-129. It is accordingly

             ORDERED, ADJUDGED and DECREED as follows:

                                             -4-
       1.      The parties are granted an absolute divorce, pursuant to T.C.A.
§36-4-129 and that the bonds of matrimony now uniting the parties are hereby
forever and perpetually dissolved, and both parties are restored to all rights and
privileges of unmarried persons.

        2.     Real Property Located at 6461 Longwood Lane. The
residence located at 6461 Longwood Lane, Harrison, Tennessee was the
plaintiff’s separate property purchased by him prior to the marriage. There has
been no appreciation in value during the course of the five (5) year marriage,
or any substantial contributions thereto, on the part of the defendant, and that
as such, all right, title and interest to said residence shall remain that of
plaintiff, Herbert L. Hall.

       Beginning October 25, 2011, the defendant has 20 days in which to
vacate herself and her belonging[s] from the residence located at 6461
Longwood Lane, Harrison, Tennessee, that date being on or before November
15, 2011.

       3.    Real Property Located [in] the Philippines. The defendant is
awarded all right, title and interest in and to the residential dwelling she
purchased in the Philippines free and clear from any and all claims of the
Plaintiff.

       4.     Vacant Lots. Plaintiff is awarded all right, title and interest in
an[d] to the ten (10) vacant lots he purchased at the Back Tax Sale, as the
proceeds to purchase said lots were from his previous wife’s life insurance
policy, which would be separate property.

        5.     Automobiles. Each party shall retain their respective vehicles
free and clear from any and [sic] claims of the other party. The defendant is
awarded the 2001 Nissan Xterra, and the plaintiff shall continue to pay the
balance of the debt incurred thereon through his Chapter 13 bankruptcy. The
plaintiff is awarded all right, title and interest in and to the 1992 Ford Ranger
and the 1994 Dodge pick up truck which are free of any liens. Each party is
responsible for any cost incident thereto, including registrations, taxes,
insurance, etc.

       6.     Home Furnishing and Personal Property. The defendant,
Chona S. Hall, is awarded all right, title and interest in and to the list of items
of furniture and personal property which was submitted by her in the course

                                        -5-
      of the trial as Exhibit “3,” the same being attached hereto and incorporated by
      reference. Defendant is awarded said items free and clear from any and all
      claims of the plaintiff. Defendant shall remove all of the said items from the
      residence located at 6461 Longwood Lane, Harrison, Tennessee within 20
      days of October 25, 2011, the same date that she shall vacate the premises.

              Plaintiff, Herbert L. Hall, is awarded all right, title and interest in and
      to all other personal property not set forth in Exhibit “3,” including the fishing
      boat and miscellaneous tools and equipment.

              7.      401(k) Retirement Account. Plaintiff, Herbert L. Hall, shall
      retain all right, title and interest in an[d] to the 401(k) retirement account
      maintained on his behalf with Fidelity Group through his employer, BASF, as
      the same has not increased in any value during the course of the marriage, and
      has, in fact, lost value as most security investments have over the last several
      years.

             8.      Alimony. The defendant’s counter claim for alimony to be paid
      by the plaintiff is denied, and no further alimony or support is awarded. While
      the defendant certainly has some need for support, the current financial
      circumstances of the plaintiff, including his Chapter 13 bankruptcy and loan
      repayment obligation from his 401(k) loan demonstrate a lack of ability to pay
      alimony or support.

              9.     Credit Card Debts. All credit card debts listed in the separate
      name of the defendant shall be her obligation, and she shall indemnify and
      hold the plaintiff harmless therefore. Said debts were her separate property
      and her separate obligations which she had entered into prior to the marriage
      to the plaintiff.

              10.    Court Costs. The costs of this cause are taxed against the
      plaintiff, Herbert L. Hall . . . .

             Wife, by then represented by counsel, moved for a new trial pursuant to Rule
59 of the Tennessee Rules of Civil Procedure. Wife’s motion for a new trial stated:

             Defendant, CHONA HALL, by and through her Attorney and pursuant
      to Rule 59 of the Tennessee Rules of Civil Procedure, moves this Court for a
      new trial. In support of this Motion, the Defendant would show unto the Court
      that there is evidence to support a finding that the Defendant is entitled to

                                              -6-
       relief from the judgment because of mistake, inadvertence, surprise or
       excusable neglect. Further the parties did not attend mediation as required by
       T.C.A. 36-4-131 and the same was not waived by the Court.

              WHEREFORE, the Defendant prays that the Court enter an order
       granting a new hearing on all issues including but not limited to, grounds for
       divorce, alimony, property division and attorney fees.

                In January 2012, a hearing was held on Wife’s motion for a new trial. Wife
testified at this hearing. The Trial Court subsequently denied Wife’s motion. In its order
denying the motion for a new trial, the Trial Court stated, in relevant part: “[T]his Court finds
that the Court in effect waived mediation when the parties did not raise the issue, the
Defendant waived her right to discovery when she failed to file a Motion to Compel, and the
Court weighed the evidence presented at trial and there is no basis for altering the previous
judgment.” Wife appeals to this Court.

                                          Discussion

                Though not stated exactly as such, Wife presents four issues on appeal: 1)
whether the parties’ failure to engage in mediation warrants a new trial; 2) whether Wife is
entitled to a new trial because interrogatories and request for production for documents were
not answered; 3) whether Wife is entitled to a new trial or different distribution of the estate
based upon the Trial Court allegedly erring in its allocation of Husband’s 401(k); and, 4)
whether Wife is entitled to a new trial or different distribution of the estate on the basis that
the Trial Court allegedly did not comply with its local rules of civil practice.

               Our review is de novo upon the record, accompanied by a presumption of
correctness of the findings of fact of the trial court, unless the preponderance of the evidence
is otherwise. Tenn. R. App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001).
A trial court's conclusions of law are subject to a de novo review with no presumption of
correctness. S. Constructors, Inc. v. Loudon County Bd. of Educ., 58 S.W.3d 706, 710 (Tenn.
2001).

              We first address whether the parties’ failure to engage in mediation warrants
a new trial. Tennessee law provides:

       (a) Except as provided in subsections (b), (c) and (d), in any proceeding for
       divorce or separate maintenance, the court shall order the parties to participate
       in mediation.



                                               -7-
       (b) The court may waive or extend mediation pursuant to subsection (a) for
       reasons including, but not limited to:

       (1) Any factor codified in § 36-6-409(4);

       (2) Either party is unable to afford the cost of the mediation, unless the cost is
       waived or subsidized by the state or if the cost of mediation would be an
       unreasonable burden on either or both of the parties;

       (3) The parties have entered into a written marital dissolution agreement or an
       agreed order resolving all of the pending issues in the divorce, except as
       provided in subsection (c);

       (4) The parties have participated in a settlement conference presided over by
       the court or a special master;

       (5) The court finds a substantial likelihood that mediation will result in an
       impasse; or

       (6) For other cause found sufficient by the court.

Tenn. Code Ann. § 36-4-131 (a) - (b) (2010).

                Wife argues that the mandatory nature of “shall” means that mediation was
required, and, as there is no waiver of mediation in the record, a new trial is warranted. We
note, however, that the statute includes a number of circumstances in which mediation may
be waived. According to the Statement of the Evidence, Wife cancelled the proposed
mediation session in this case. Contrary to Wife’s statement that there is no waiver of
mediation in the record, the Trial Court stated in its order denying Wife’s motion for a new
trial “that the Court in effect waived mediation when the parties did not raise the issue . . .
.” Under these facts, we hold that the Trial Court did not err in proceeding to rule on this
case without the parties first having engaged in mediation.

              We next address whether Wife is entitled to a new trial because interrogatories
and request for production for documents were not answered by Husband. Wife argues that
the Trial Court should have taken into account Wife’s lack of legal knowledge as to
discovery procedures. In Whitaker v. Whirlpool Corp., 32 S.W.3d 222 (Tenn. Ct. App. 2000),
this Court observed that:




                                              -8-
       Pro se litigants are entitled to fair and equal treatment. See Childs v.
       Duckworth, 705 F.2d 915, 922 (7th Cir. 1983). Pro se litigants are not,
       however, entitled to shift the burden of litigating their case to the courts. See
       Dozier v. Ford Motor Co., 702 F.2d 1189, 1194 (D.C. Cir. 1983). Pro se
       litigants are not excused from complying with the same substantive and
       procedural requirements that other represented parties must adhere to. See
       Irvin v. City of Clarksville, 767 S.W.2d 649, 652 (Tenn. Ct. App. 1988).

Whitaker, 32 S.W.3d at 227. First, while we acknowledge that Wife acted pro se for part of
this case and should receive certain forbearance as a result, the courts may not conduct her
case for her. Second, the record contains no such attempted discovery by Wife. We find no
reversible error of the Trial Court as to this issue.

               We next address whether Wife is entitled to a new trial or different distribution
of the estate based upon the Trial Court allegedly erring in its allocation of Husband’s 401(k)
exclusively to Husband. According to an exhibit in the record, Husband’s 401(k) was valued
at $135,119.03 at the beginning of 2011. By October 2011, the value was stated as
$86,794.16. Husband withdrew $55,000 in the intervening time period. Wife asserts that,
had Husband not withdrawn that $55,000 from the 401(k), its value would have increased
$6,675 for the ten-month period. Wife argues that a new trial is needed to allow discovery
of the true increase in the value of the 401(k). Our Supreme Court has stated:

              In summary, then, Tennessee Code Annotated section
       36–4–121(b)(2)(C) defines separate property as including “[i]ncome from and
       appreciation of property owned by a spouse before marriage” but specifically
       excludes such income and appreciation when it is “characterized as marital
       property under subdivision (b)(1).” That portion of a 401(k) account existing
       on the date of marriage remains separate property. Because, however, the
       account is a “retirement or other fringe benefit right[ ] relating to
       employment,” id. at (b)(1)(B), the entire net amount of income and
       appreciation that was experienced in Husband's and Wife's 401(k) accounts
       during their marriage is characterized as marital property, including that which
       accrued on the premarital balances. See also Langschmidt, 81 S.W.3d at 749
       (“Retirement benefits accrued during the marriage clearly are marital property
       under Tennessee law.”).

Snodgrass v. Snodgrass, 295 S.W.3d 240, 251 (Tenn. 2009) (emphasis in original).

               The Trial Court found that “the [401(k)] has not increased in any value during
the course of the marriage, and has, in fact, lost value as most security investments have over

                                              -9-
the last several years.” The evidence in the record on appeal as presented to us does not
preponderate against the Trial Court’s finding as to the decline in Husband’s 401(k)’s value,
and, therefore, no part of Husband’s 401(k) could be characterized as marital property.

                Finally, we address whether Wife is entitled to a new trial or different
distribution of the estate on the basis that the Trial Court allegedly did not comply with its
local rules of civil practice. Wife cites Rule 10.01 of the local rules of civil practice in
Chancery and Circuit Courts in the Eleventh Judicial District, which requires that parties in
a divorce file verified financial statements. Wife notes that the parties failed to comply with
this rule. We observe that Rule 10.01(c) states that failure to file the required statements may
result in dismissal, continuance of the case, entry of default judgment, or “other appropriate
sanctions in the Court’s discretion.” (emphasis added). Moreover, Rule 1.03 of the local
rules states: “The Judges of the Court retain discretion to suspend any of these rules for good
cause.” We believe the Trial Court acted within its sound judgment in keeping with the
latitude afforded to it under the local rules. Furthermore, Wife did not raise this issue either
at trial or in her motion for a new trial. We find no reversible error as to this issue.

               The Trial Court did not err in either its judgment or its denial of Wife’s motion
for a new trial. We, therefore, affirm the judgment of the Trial Court in its entirety.

                                         Conclusion

              The judgment of the Trial Court is affirmed, and this cause is remanded to the
Trial Court for collection of the costs below. The costs on appeal are assessed against the
Appellant, Chona S. Hall, and her surety, if any.


                                                     _________________________________
                                                     D. MICHAEL SWINEY, JUDGE




                                              -10-
