                    IN THE COURT OF APPEALS OF TENNESSEE
                               AT KNOXVILLE
                              April 22, 2008 Session

                 REBECCA STAFFORD SHELL v. JON E. SHELL

                  Direct Appeal from the Chancery Court for Sevier County
                  No. 04-10-528    Hon. Telford E. Forgety, Jr., Chancellor



                    No. E2007-01209-COA-R3-CV - FILED JULY 9, 2008




The plaintiff wife filed a Complaint for Divorce. The parties entered into a mediation which resulted
in all issues being resolved in a mediated settlement, and the Final Report of the mediator was filed
in Court. The plaintiff then voluntarily nonsuited her action for divorce, and refiled on the same date
in Circuit Court. The Trial Court ultimately set aside the nonsuit, tried the issues raised, approved
the mediated settlement and granted the parties a divorce. On appeal, we affirm.


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


HERSCHEL PICKENS FRANKS, P.J., delivered the opinion of the Court, in which CHARLES D. SUSANO ,
JR., J., and SHARON G. LEE, J., joined.

Brent R. Watson and Suzanne N. Price, Knoxville, Tennessee, for appellant.

Cynthia Richardson Wyrick, Sevierville, Tennessee, for appellee.



                                             OPINION


               The chronology of court filings in this case is most pertinent to resolving the
determinative issue on appeal.

                 The sequential filings are as follows: Plaintiff filed a Complaint for Divorce on
October 18, 2004, and charged that the parties had irreconcilable differences; that the marriage of
the parties is “irretrievably broken” and asked the Court to “make a fair and equitable distribution
of the marital property in the event the parties are unable to make a marital dissolution agreement”.
A Motion for Support was filed on March 21, 2005; Final Report of Mediator filed on July 29, 2005;
Motion to Enforce Mediation Agreement filed by defendant on September 1, 2005 (with notice for
a hearing set for September 27, 2005); Notice of Nonsuit filed by plaintiff on September 22, 2005;
Order of Non-Suit entered on September 22, 2005 (record reveals that plaintiff filed a Suit for
Divorce in Circuit Court on September 22, 2005); Motion to Set Aside Nonsuit filed by defendant
on September 29, 2005; Answer to Complaint filed by defendant on November 16, 2005, and a
Counter-Complaint attaching a copy of the Mediation Agreement; Order entered on December 21,
2005 on hearing on November 3, validated the filing of the Counter-Complaint, but refused to set
aside nonsuit; Motion to Reconsider filed on December 28, 2005; Order entered on March 31, 2006,
ruling that the Counter-Complaint would relate back to September 1, 2005, the date the defendant
filed a Motion to Enforce the Mediation Agreement, ordered the Circuit Court to transfer the divorce
case filed by the plaintiff and consolidate it with the Chancery action; Order entered on May 10,
2007 granting the parties a divorce and enforcing the Mediation Agreement and allocating certain
properties that were not disposed of in the Mediation Agreement.

              At the time of filing the divorce, the wife was 53 and the husband was 61, and they
had married on December 3, 1991. They permanently separated in January 2002. The husband is
a self-employed dentist and the wife is a self-employed landscaper. The parties had no children
together.

               Discovery was conducted by the parties and the parties mediated the issues with
mediator, Charles Sexton, on July 27, 2005. Plaintiff was accompanied by her attorney, the
defendant was accompanied by his attorney. The mediation lasted for a full business day and
concluded with the parties entering into a Mediation Agreement that was reduced to a typed
document and signed by the parties, their attorneys and the mediator. The Mediation Agreement
provided for the division of the property between the parties, and that the parties would be divorced
from each other on stipulated grounds. As noted, the mediator filed a final report of the mediation
on July 29, 2005, and stated that the mediation resulted in the settlement of the case.

               The plaintiff refused to execute a Marital Dissolution Agreement and Final Judgment
which set forth the terms of the Mediation Agreement and defendant filed a Motion to Enforce
Mediation Agreement as noted, on September 1, 2005.

                Ultimately, at the evidentiary hearing, the Chancellor ordered the parties divorced on
the stipulated grounds and enforced the Mediation Agreement as to the division of property and
addressed the distribution of several pieces of property not covered in the Mediation Agreement.

                Plaintiff has appealed raising several issues which essentially may be consolidated
in that the Trial Court had no jurisdiction to make further rulings in the case after the nonsuit was
entered. But if the Court finds that issue is without merit, then the Trial Court erred in consolidating
the Circuit Court case with the Chancery case and erred in upholding the Mediation Agreement.



                                                  -2-
                 A trial court's conclusions of law are reviewed under a de novo standard upon the
record with no presumption of correctness. Union Carbide Corp. v. Huddleston, 854 S.W.2d 87,
91 (Tenn.1993), and whether a mediated agreement is enforceable is a question of law. Myers v.
Myers, No. E2004-01362-COA-R3-CV, 2005 WL 936925 at * 1 (Tenn. Ct. App. Apr. 22, 2005).
A trial court’s findings of fact in a non-jury trial are reviewed de novo upon the record., and the trial
court is afforded a presumption of correctness unless the preponderance of the evidence
preponderates otherwise. Tenn. R. App. P. 13 (d); Wright v. City of Knoxville, 898 S.W.2d 177, 181
(Tenn. 1995); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn.2001)

              The first issue raised is whether the Trial Court erred by issuing its Order of Nonsuit
and dismissing the case and then later setting aside the order. Nonsuit or voluntary dismissal is
governed by Tennessee Rule of Civil Procedure 41.01, which states in relevant part:

               1) Subject to the provisions of Rule 23.05, Rule 23.06, or Rule 66 or of any statute,
               and except when a motion for summary judgment made by an adverse party is
               pending, the plaintiff shall have the right to take a voluntary nonsuit to dismiss an
               action without prejudice by filing a written notice of dismissal at any time before the
               trial of a cause ...; or by an oral notice of dismissal made in open court during the trial
               of a cause; or in jury trials at any time before the jury retires to consider its verdict and
               prior to the ruling of the court sustaining a motion for directed verdict. If a
               counterclaim has been pleaded by a defendant prior to the service upon the defendant
               of plaintiff’s motion to dismiss, the defendant may elect to proceed on such
               counterclaim in the capacity of plaintiff.

                                                 ****

               (3) A voluntary nonsuit to dismiss an action without prejudice must be followed by
               an order of voluntary dismissal signed by the court and entered by the clerk. The date
               of entry of the order will govern the running of pertinent time periods.

Tenn. R. Civ. P. 41.01(1).

                The Rule provides that a voluntary nonsuit is a matter of right. However, a plaintiff's
right to voluntary dismissal without prejudice is subject to exceptions expressed in Rule 41.01(1)1 as
well as an implied exception that prohibits nonsuit when it would deprive the defendant of a vested
right acquired during the course of the litigation. Anderson v. Smith, 521 S.W.2d 787, 790
(Tenn.1975).



        1
         Rule 23.05 requires court approval for voluntary dismissal of class actions, Rule 23.06
requires court approval for voluntary dismissal of shareholder derivative actions and Rule 66
requires court approval for voluntary dismissal of actions wherein a receiver has been appointed.

                                                   -3-
              The Tennessee Supreme Court in Anderson ruled that if the defendant is deprived of
a right that became vested during the pendency of the litigation, a nonsuit was prohibited.2
Defendant’s position is that his rights to the property awarded to him under the Mediation Agreement
became vested during the course of the Chancery Court suit and that to uphold the nonsuit would
deprive him of his right to the property.3

              In determining the issue, the nature of the action itself is relevant. American
Jurisprudence 2d, Vol. 24 §7, discusses the nature of divorce proceedings:

                An action for a divorce is essentially a proceeding in rem, in the sense that it
                determines marital status. In personam jurisdiction is not necessary to the dissolution
                of marriage; as a dissolution proceeding affects status only, such as the marriage itself
                or custody of the children, the action is in rem, or at least quasi-in rem. The only
                requirement for a valid judgment is that the res be before the court upon proper notice,
                and the power of the state to adjudicate interests in land located within the state may
                be validly exercised even though the person who claims those interests is not
                personally before the court.

               The Tennessee Supreme Court in Brown v. Brown, 155 Tenn. 530 (Tenn. 1927)
recognized these principles. In Brown, the Court held that the marriage was a res and in a divorce
action the Court had subject matter jurisdiction over the marriage and its assets, as distinguished from
personal jurisdiction over a party.

                By filing her complaint, the plaintiff afforded the Court jurisdiction over the res, i.e.,
the marriage, and she participated in the mediation proceedings which the Trial Court ultimately
found to be a valid and enforceable agreement between the parties relative to their property interests.
After these in court proceedings, the plaintiff’s attempt to take a voluntary nonsuit was too late after
the defendant’s Motion to Enforce the Mediation Agreement. We hold the Trial Court properly
invalidated the Order of Nonsuit, upon further consideration.

                Since the Chancellor properly set aside the Order of Nonsuit, the issue raised by the


         2
          Anderson was a condemnation suit where the defendant condemnor had obtained a court
 order for possession of the property being condemned and had taken possession of the property. The
 only matter left for the court to decide was the extent of compensation for the property to be paid to
 the land owner by the condemnor. Under those circumstances the Supreme Court held that plaintiff
 had lost the right to take a nonsuit. Anderson v. Smith, 521 S.W.2d 787, 791 (Tenn. 1975).
         3
          There is no question that a Mediated Agreement is enforceable as a contract under general
 principles of contract law. Myers v. Myers No. E2004-01362-COA-R3-CV, 2005 WL 936925 at *
 3 (Tenn. Ct. App. Apr. 22, 2005); McMahan v. McMahan, No. E2004-03032-COA-R3-CV, 2005
 WL 3287475 at * 4 (Tenn. Ct. App. Dec. 5, 2005); Persada v. Persada, No. E2002-00397-COA-R3-
 CV, 2002 WL 31640564 at *3 (Tenn. Ct. App. Nov. 22, 2002).

                                                   -4-
plaintiff as to the Court’s relying on the counter-complaint is moot.

                  In the final hearing, the Trial Court heard evidence on the enforceability of the
mediated Agreement, and in upholding the Agreement and its enforcement, the Court said that the
plaintiff did not meet her burden of proof of showing that the Agreement was “so inadequate as to
shock the conscience of the Court”. The Court notes that both parties were represented by counsel
throughout the course of the mediation and the counsel for the plaintiff at the time of the mediation
testified at this hearing that he was “comfortable with the settlement reached.” The Court validated
the Agreement and noted that the Agreement itself stipulated that they would be divorced on the
stipulated grounds.

               The evidence does not preponderate against the Trial Court’s findings, deferring to the
Trial Court on the issue of credibility,4 and we affirm the Trial Court’s findings, Tenn. R. App. P.
13(d).

                 Finally, plaintiff raised the issue of the Trial Court’s consolidation of the Circuit Court
case with the Chancery Court case. We find this was harmless error and was unnecessary, since the
Chancery Court case was first filed on the issues raised in both cases, and would take precedent over
any later filed action.

                For the foregoing reasons, we affirm the Judgment of the Trial Court and remand, with
the cost of the appeal assessed to Rebecca Stafford Shell.




                                                             ______________________________
                                                             HERSCHEL PICKENS FRANKS, P.J.




         4
         The Trial Court observed that he “cannot credit the testimony of the plaintiff Rebecca
 Stafford Shell that she was in any way impaired on the day of the mediation.”

                                                    -5-
