                IN THE COURT OF APPEALS OF TENNESSEE
                             AT JACKSON
                                  April 16, 2013 Session

                JAMES GLEN KIRK v. GLORIA TAYLOR KIRK

               Direct Appeal from the Circuit Court for Shelby County
                   No. CT-000095-08     John R. McCarroll, Judge


               No. W2012-00451-COA-R3-CV - Filed September 6, 2013


This appeal involves the trial court’s disposition of Wife’s post-judgment motions and re-
division of marital property. Following the trial court’s entry of the final decree of divorce,
Wife filed several post-judgment motions seeking relief from the final decree based on
Husband’s misrepresentation and concealment of assets prior to the trial court’s division of
the marital estate. After an extensive period of discovery, the trial court agreed with Wife
and concluded that she was entitled to a new division of marital property and relief from the
final decree under either Rule 59 or Rule 60 of the Tennessee Rules of Civil Procedure. The
trial court further ordered Husband to pay Wife’s attorney’s fees and expert fees. Husband
appeals. We affirm.

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

D AVID R. F ARMER, J., delivered the opinion of the Court, in which A LAN E. H IGHERS, P.J.,
W.S., and J. S TEVEN S TAFFORD, J., joined.

Rachael E. Putnam and Austin T. Rainey, Memphis, Tennessee, for the appellant, James
Glen Kirk.

Lara E. Butler, Memphis, Tennessee, for the appellee, Gloria Taylor Kirk.

                                         OPINION

                         I. Background and Procedural History

       In 1987, James Glen Kirk (“Husband”) and Gloria Taylor Kirk (“Wife”) were married.
During the marriage, Husband ran a farming operation focused primarily on the production
and sale of various row crop commodities, and Wife worked as a mortgage broker. No minor
children were born of the marriage. Subsequently, in January 2008, Husband filed a
complaint for divorce in the Circuit Court of Shelby County. The parties stipulated as to
grounds for divorce and all other issues were heard by the trial court beginning on February
23, 2009, and ending on March 2, 2009. Thereafter, on March 26, 2009, the trial court
entered its final decree of divorce.

       On April 22, 2009, Wife filed a motion to alter or amend the final decree pursuant to
Rule 59.04 of the Tennessee Rules of Civil Procedure. In her motion, Wife raised issues
regarding items of personal property, the trial court’s valuation and division of Husband’s
Tipton County Co-op pension, and further asked the trial court to designate which specific
items of farm equipment it intended to award to her pursuant to the final decree. On August
4, 2009, while her Rule 59.04 motion was still pending, Wife filed a petition for contempt
in which she asserted that Husband refused to pay certain sums awarded to her by the trial
court. After conducting a hearing, the trial court dismissed Wife’s contempt petition because
the final decree had not yet become a final order in light of Wife’s pending Rule 59.04
motion.

        Shortly thereafter, on August 20, 2009, Wife filed a motion for relief from judgment
pursuant to Rule 60.02 of the Tennessee Rules of Civil Procedure. In her motion, Wife
alleged that Husband had misrepresented his assets and committed fraud upon the court
based on information she discovered in connection with her contempt petition. Specifically,
Wife pointed to a bank statement produced by Husband which reflected that his farm
operating account balance on the date of trial was $61,022.04, as opposed to the $4,406.71
amount Husband provided in his Rule 14(D) memorandum that he submitted to Wife and the
trial court in accordance with the Shelby County Local Rules. Wife also pointed to the
testimony of Husband’s banker which was elicited during the hearing on Wife’s contempt
petition. Husband’s banker testified that Husband obtained a line of credit shortly after the
entry of the final decree based on his stated net worth of $1,600,751.00. This amount was
$388,164.06 more than the value Husband placed on the entire marital estate in his Rule
14(D), and $705,734.00 more than Husband was awarded in the trial court’s division of
marital property three months earlier. In response, on November 19, 2009, Husband filed
a motion for summary judgment in which he addressed the deposits made to his farm
operating account during the trial, argued that Wife’s allegations of fraud were not plead with
specificity, and urged the trial court to conduct a hearing on his motion. An extensive and
prolonged period of discovery followed.

        As the trial court thoroughly explained in its findings, the following information
emerged in post-judgment discovery that was not originally considered by the trial court in
its division of marital property:



                                              -2-
Extensive discovery has been conducted since the original trial. Wife’s expert
J. Kenneth Marston, Jr., was originally hired to “assist in determining Glen
Kirk’s income for the purposes of the divorce, the decree of which was entered
on March 26, 2009.” Subsequent to the original trial, Mr. Marston was
requested to determine if there were assets subject to the division between the
parties, but which were not considered at the time of the original divorce
proceeding. In his report, Mr. Marston states, “as our Conclusion of Findings
section of this report indicates, there appear to be numerous assets which were
subject to division between the parties, but which were not considered at the
time of the original divorce proceedings.”

       The Court finds that the items listed in Mr. Marston’s report which are
affected by “newly discovered evidence” are as follows:

   (1) First Citizens Bank account #[XXXXXXX]-Account balance
   discrepancy

   (2) Discrepancies between information disclosed to First Citizens Bank
   by Husband in connection with loan approval and information disclosed
   on Husband’s 14(D)

   (3) 2008 crop proceeds received in 2009

   (4) 2008 crop proceeds received in 2008 but not deposited in farm
   account

   (5) Open contract for 2009 crop proceeds

   (6) Crop insurance proceeds of $64,137.00 received on 1-1-09 but not
   deposited into the farm bank account.

   (1) First Citizens Bank account #[XXXXXXX] - Account balance
                              discrepancy

       The actual balance in this account on the trial date of February 23, 2009
was $61,022.04 which includes $45,523.16 paid by Bunge for corn for 2008.
Husband’s 14(D) stated that the balance of the account was $4,406.71. As
noted in the report of J. Kenneth Marston, Jr., “. . . the balance reported by Mr.
Kirk in his Rule 14(D) information and subsequently used at trial did not
provide a fair representation of the typical balance for this particular bank

                                       -3-
account.”

(2) Discrepancies between information disclosed to First Citizens Bank
    by Husband in connection with loan approval and information
                     disclosed on Husband’s 14(D)

        Husband signed a financial statement dated January 8, 2009, claiming
assets valued at $1,611,000.00. On February 23, 2009, Husband filed his 14(D)
claiming assets valued at $l,212,586.94. Husband’s 14(D) was incorrectly
calculated. The correct calculation should have been $1,441,186.18 which is
$169,138.20 less than the financial statement. Husband did not include on his
14(D) the Patronage Dividend valued at $125,000.00 or the cash on hand of
$50,000.00.

                  (3) 2008 crop proceeds received in 2009

       During the December 12, 2008 hearing, Husband testified that he had
received all of his 2008 crop proceeds and had no money to carry over to the
next year. The record reflects payments by Bunge as follows:

       (1) $45,523.16 for corn from 2008 deposited in the farm account in
       December of 2008

       (2) $29,346.70 for winter wheat from 2008[.] Bunge settlement date
       5-04-09

       (3) $23,612.50 for cancellation of a 2008 contract for winter wheat[.]
       Bunge contract cancellation 6-02-09/deposited into Brighton Bank

       Husband testified under oath on December 12, 2008, that he had
harvested his 2008 crop, sold it to the individuals he normally sold it to, and
paid off debts. He further stated that he was not going to be able to carry over
any money into the next farm year of 2009. The question and answer on page
72 of the transcript of the hearing of December 12, 2008 are as follows:

       Q. Are you going to be able to carry over any money into the next farm
       year 2009?

       A. No, not at this time. I can't see it.



                                        -4-
       The answer is clearly false. Proof taken subsequent to the trial
conducted in February and March of 2009 established that Bunge made the
following payments to Husband in 2009 for the 2008 crop year:

       (1) $29,346.70 for winter wheat from 2008

       (2) $23,612.50 for cancellation of a 2008 contract for winter wheat

      Husband testified in his deposition taken in November of 2010 that he
was aware of the first deposit for the remaining 2008 corn crop, but denied
knowing the source of the second deposit of $29,346.70 for the winter wheat
from 2008. The court does not find Husband’s testimony credible.

 (4) 2008 crop proceeds received in 2008 but not deposited in the farm
        account at First Citizen's National Bank #[XXXXXXX]

       J. Kenneth Marston, Jr. reviewed Bunge Corporation records finally
provided. The records from Bunge showed payments by Bunge of
$110,804.60. $110,804.60 in 2008 crop proceeds was not accounted for or
disclosed by Husband's 14(D).

      A review of Husband’s bank records does show a payment of
$72,407.26 which was in connection with a payment by Staple Cotton, not
Bunge.

        (5) Open contract for 2009 crop proceeds at time of trial

       J. Kenneth Marston, Jr. reviewed the Bunge Corporation records finally
provided. The records from Bunge showed payments by Bunge of $135,815.35
which were not accounted for or disclosed by Husband’s 14(D).

 (6) Crop insurance proceeds of $64,137.00 received on 1-1-09 but not
                   deposited into the farm account

       On January 1, 2009, crop insurance proceeds were received from Rural
Community Insurance Services in the amount of $64,137.00. The original
check received on January 1, 2009, was not deposited into any bank account.
Husband held the check and subsequently, on April 2, 2009, exchanged the
original check for another cashier’s check from First Citizens Bank in the same
amount, $64,137.00. Husband could not explain why he did not deposit and

                                      -5-
       use the $64,137.00 when he received it on January 1, 2009. The Court finds
       Husband’s testimony not credible.

               The proof clearly and convincingly establishes that Husband was
       holding and hiding the $64,137.00 to avoid that amount being included in the
       division of marital assets at the trial in February and March of 2009. Wife did
       not have the information to discover these funds until the court ordered the
       production of the farm ledger used in the operation of the farms on property
       which was stipulated to be marital property. Husband and his mother, Mary
       Kirk resisted production of the ledger but ultimately did produce the ledger
       after the court ordered the production. The original production had pages
       missing which required the court to conduct hearings on February 18, 2011
       and March 1, 2011. Mary Kirk was present and testified. The parties and
       Mary Kirk agreed on a full disclosure of the farm ledger which revealed
       payments made by Husband using the crop insurance proceeds which had been
       hidden from Wife. Husband had produced a blank copy of page 151 in the
       September 2010 production. On March 10, 2011 page 151 was not blank and
       showed payments made July 15, 2010 of $22,750.00 to Dandridge. The source
       of the money for this payment was the $64,137.00 concealed from Wife.

              Exhibit 98 shows that Husband did not use the $64,137.00 until July 15,
       2010. On July 15, 2010, Husband obtained two “official checks” from First
       Citizens Bank in the amount of $40,000.00 and $22,750.00, plus cash in the
       amount of $1,387.50 in exchange for the cashier's check dated April 2, 2009.

        Subsequently, on February 18, 2011, Husband responded to Wife’s Rule 60.02 motion
and argued that it should be denied because there was not a final judgment, and also because
Wife failed to plead fraud with specificity. Alternatively, Husband argued that the trial court
should treat the motion as one under Rule 59, whereby any relief was subject to the newly
discovered evidence rule. Similarly, on February 25, 2011, Husband filed a motion in limine
in which he argued that any evidence Wife presented in support of her post-judgment
motions was subject to the newly discovered evidence rule. Thereafter, in light of the
information that emerged in discovery, Wife filed an amended motion to alter or amend or
for relief from judgment in which she elaborated on the allegations contained in her previous
post-judgment motions. On May 20, 2011, the trial court granted Wife’s amended motion
to alter or amend or for relief from judgment. On June 1, 2011, the trial court entered an
order denying Husband’s motion in limine. In response, Husband sought an interlocutory
appeal of the trial court’s order on his motion in limine pursuant to Rule 10 of the Tennessee
Rules of Appellate Procedure. On August 2, 2011, this Court denied Husband’s application.



                                              -6-
        Finally, in September 2011, the trial court conducted a hearing on all of the
outstanding motions. On November 29, 2011, the trial court entered its findings of fact and
conclusions of law in which it determined that Husband had willfully and fraudulently
concealed his assets prior to the divorce trial through inadequate disclosures in discovery and
by failing to comply with local rules. Specifically, as noted above, the trial court found that
newly discovered evidence regarding Husband’s assets had emerged in post-judgment
discovery entitling Wife to a new division of marital property. As a result, the trial court
concluded that Wife was entitled to relief from the final decree under either Rule 59 or Rule
60 of the Tennessee Rules of Civil Procedure. Thus, the trial court awarded Wife a total
judgment in the amount of $210,183.75, comprised of the following sums: (1) $28,307.67
which is 50% of $56,615.33, representing the difference between the actual balance of the
First Citizens Bank account at the time of trial and the amount reported on Husband’s Rule
14(D) at trial; (2) $26,479.60 which is 50% of $52,959.20, representing payments for winter
wheat and the cancellation of a 2008 contract for winter wheat not accounted for or disclosed
by Husband in his Rule 14(D); (3) $55,420.30 which is 50% of $110,840.60, representing
2008 crop proceeds not accounted for or disclosed by Husband in his Rule 14(D); (4)
$67,907.68 which is 50% of $135,815.35, representing open contracts for 2009 crop
proceeds paid by Bunge and not disclosed at trial; (5) $32,068.50 which is 50% of
$64,137.00, representing crop insurance proceeds Husband received on January 1, 2009, but
did not deposit into a bank account. The trial court further ordered Husband to pay Wife’s
attorney’s fees and expert fees, and refused to award attorney’s fees to Husband or
Husband’s mother, who was not a party to this action. Thereafter, on January 30, 2012, the
trial court entered a final judgment which incorporated its findings of fact and conclusions
of law and disposed of all outstanding motions. Husband timely filed a notice of appeal to
this Court.

                                    II. Issues Presented

       Husband presents the following issues, as restated, for our review:

       (1)    Whether the trial court erred by awarding Wife post-judgment relief
              pursuant to either Rule 59.04 or Rule 60.02 of the Tennessee Rules of
              Civil Procedure,

       (2)    Whether the trial court erred in failing to require Wife to comply with
              Rule 56.03 of the Tennessee Rules of Civil Procedure in response to
              Husband’s motion for summary judgment, and in failing to conduct a
              hearing on Husband’s motion for summary judgment,

       (3)    Whether the trial court erred by awarding attorney’s fees and expert

                                              -7-
              fees to Wife, and

       (4)    Whether the trial court erred in failing to award attorney’s fees to
              Husband and Husband's mother, a non-party.

                                       III. Discussion

                                A. Post-Judgment Motions

        We begin our discussion by addressing Husband’s argument that the trial court erred
by awarding Wife post-judgment relief under either Rule 59.04 or Rule 60.02 of the
Tennessee Rules of Civil Procedure. As noted above, the trial court concluded that Wife was
entitled to relief from the final decree under either Rule 59 or Rule 60. This conclusion
seems to have resulted from the procedural morass created by the parties’ numerous post-
judgment filings. Therefore, in order to properly analyze Husband’s argument, we must
clarify the procedural posture of the case at the time the trial court disposed of Wife’s post-
judgment motions.

       Following the trial court’s entry of the final decree, Wife timely filed a motion to alter
or amend the final decree under Rule 59.04. Thereafter, while Wife’s Rule 59.04 motion was
pending before the trial court, Wife filed a motion for relief from the final decree under Rule
60.02. At this point in the proceedings, however, Wife was not entitled to relief under Rule
60.02 because the trial court had not yet entered a final judgment. See Campbell v. Archer,
555 S.W.2d 110, 112 (Tenn. 1977). However, the relief sought by Wife based on the newly
discovered evidence of Husband’s alleged misrepresentations and concealment of assets
could also have been the basis for relief under Rule 59.04. Rather than treating Wife’s
motion as a Rule 60.02 motion, the trial court should have considered its substance and
treated it as an amendment to Wife’s already pending Rule 59.04 motion. See Dunlap v.
Dunlap, 996 S.W.2d 803, 812 (Tenn. Ct. App. 1998) (“The law is well-settled that, in ruling
on post-trial motions filed by the parties, the courts of this state are required to consider the
substance of the motion rather than its form or title.”) (citing Tennessee Farmers Mut. Ins.
Co. v. Farmer, 970 S.W.2d 453, 455 (Tenn. 1998); Parker v. Vanderbilt Univ., 767 S.W.2d
412, 421 n.1 (Tenn. Ct. App. 1988); Thigpen v. First City Bank, No. 01A01-9603-CV-00095,
1997 WL 351247, at *2 (Tenn. Ct. App. June 27, 1997)). Accordingly, because Wife was
not entitled to relief under Rule 60.02, we need only determine whether the trial court erred
in awarding Wife relief pursuant to Rule 59.04.

       Pursuant to Rule 59.04 of the Tennessee Rules of Civil Procedure, a party may file a
motion to alter or amend a judgment within thirty (30) days after its entry. Tenn. R. Civ. P.
59.04. As we explained in In re M.L.D., 182 S.W.3d 890 (Tenn. Ct. App. 2005):

                                               -8-
               The purpose of a Rule 59.04 motion to alter or amend a judgment is to
       provide the trial court with an opportunity to correct errors before the
       judgment becomes final. Bradley v. McLeod, 984 S.W.2d 929, 933 (Tenn. Ct.
       App. 1998) (overruled in part on other grounds by Harris v. Chern, 33 S.W.3d
       741 (Tenn. 2000)). The motion should be granted when the controlling law
       changes before the judgment becomes final; when previously unavailable
       evidence becomes available; or to correct a clear error of law or to prevent
       injustice. Id. A Rule 59 motion should not be used to raise or present new,
       previously untried or unasserted theories or legal arguments. Local Union 760
       of Intern. Broth. of Elec. Workers v. City of Harriman, No.
       E2000–00367–COA–R3CV, 2000 WL 1801856, at *4 (Tenn. Ct. App. Dec.8,
       2000) perm. app. denied (Tenn. May 14, 2001), see Bradley, 984 S.W.2d at
       933 (holding: a Rule 59 motion should not be used to raise new legal theories
       where motion for summary judgment is pending).

Id. at 895. In order to sustain a motion to alter or amend under Rule 59.04 based on newly
discovered evidence, “it must be shown that the new evidence was not known to the moving
party prior to or during trial and that it could not have been known to him through exercise
of reasonable diligence.” Seay v. City of Knoxville, 654 S.W.2d 397, 399 (Tenn. Ct. App.
1983) (citations omitted); see also Barnhill v. Barnhill, No. 86-101-II, 1986 WL 8280, at *3
(Tenn. Ct. App. July 30, 1986) (“‘Facts arising after the trial do not come within the rule of
newly discovered evidence.’ 58 Am. Jur. 2d New Trial § 167 (1971). ‘Newly discovered
evidence must be of facts existing at the time of trial.’ Wright & Miller, Federal Practice and
Procedure § 2808 (1973).”). Moreover, as our Supreme Court explained in Stovall v. Clarke,
113 S.W.3d 715, 721 (Tenn. 2003):

       When additional evidence is presented in support of such a motion, the trial
       court should consider the factors applicable to a motion to revise a partial
       summary judgment pursuant to Rule 54.02 of the Tennessee Rules of Civil
       Procedure: the moving party's effort to obtain the evidence in responding to the
       summary judgment; the importance of the new evidence to the moving party's
       case; the moving party's explanation for failing to offer the evidence in
       responding to the summary judgment; the unfair prejudice to the non-moving
       party; and any other relevant consideration. Harris v. Chern, 33 S.W.3d 741,
       744 (Tenn. 2000) (“Cases analyzing Rule 59.04 motions to alter or amend ...
       offer some guidance in determining the standard for revising non-final
       orders.”).

Id. at 721. We review a trial court’s decision on whether to grant a Rule 59.04 motion to
alter or amend a judgment under an abuse of discretion standard. Id. (citing Harris, 33

                                              -9-
S.W.3d at 746).

       The trial court granted Wife’s Rule 59.04 motion and awarded her relief from the final
decree based on its conclusion that she presented newly discovered evidence of the
following: (1) First Citizens Bank account balance discrepancy; (2) Discrepancies between
information disclosed to First Citizens Bank by Husband in connection with loan approval
and information disclosed on Husband's 14(D); (3) 2008 crop proceeds received in 2009; (4)
2008 crop proceeds received in 2008 but not deposited in farm account; (5) Open contract
for 2009 crop proceeds; and (6) Crop insurance proceeds of $64,137.00 received on January
1, 2009, but not deposited into the farm bank account. We shall address each in turn.

                   (1) First Citizens Bank account balance discrepancy

       Before trial, Husband provided Wife with a copy of his bank account statement dated
January 30, 2009. According to this statement, Husband’s farm operating account balance
was $4,406.71. During the trial, which began on February 23, 2009, Husband continued to
represent to Wife and the trial court that his farm operating account balance was $4,406.71.
After Wife filed her petition for contempt, however, she discovered that Husband’s account
balance on the first day of trial was $61,022.04, and that he had made deposits to the account
weeks before trial totaling $76,137.00.

       On appeal, Husband argues that the trial court erred in considering the amounts in his
farm operating account because these amounts fail to take into account the debts and
expenses related to his farming business. However, a few months before trial in December
2008, Husband testified that he had only $13,000 to his name, had no other funds coming in
from the 2008 crop, he was using the remaining funds he had to pay outstanding expenses
for 2008, and that he would not be able to carry over any money into the 2009 farm year.
Upon review of the record, we are unable to find, and Husband failed to offer, any evidence
of outstanding debts or expenses owed at that time which would offset these amounts. Thus,
we find no error in the trial court’s decision to consider the newly discovered account balance
discrepancy in the farm operating account.

        In support of the position that Wife should have known that the account balance he
disclosed was not correct as of the date of trial, that she could have received the information
if she requested it, and that he did nothing wrong by withholding it, Husband provides the
following argument in his brief:


       Wife had the opportunity to inquire at the time of trial in February 2009 what
       the bank balance was and had the opportunity to issue the appropriate

                                             -10-
       subpoenas to trial had Wife and her counsel desired information. The balance
       listed on Husband’s 14(D) is specifically designated as the balance of January
       31, 2009. Husband did not conceal that the balance listed was as of a date
       other than the trial date.

       ....

       . . . . Wife’s counsel was aware that the nature of the account was that of an
       operating account of a large farm operation into which large amounts of
       money, both borrowed and earned, were deposited throughout the year, and out
       of which account large amounts were withdrawn to pay the operational
       expenses and debts of the farming operation. Hence, Wife and her counsel had
       all information necessary to know that the balance in the account on January
       31, 2009, should not be taken as the balance on the day of trial in light of the
       information reflected in the historical bank statements. Despite having all such
       knowledge, Wife’s counsel never asked Husband or his bookkeeper, Mary
       Kirk [his mother], what the balance in the account was on any of the days of
       the trial or what if any transaction had occurred which might affect said
       balance.

We find Husband’s argument disingenuous.

        Pursuant to Rule 26.05(2) of the Tennessee Rules of Civil Procedure, a party has a
duty to supplement or amend a prior discovery response if the party “knows that the response
was incorrect when made,” or the party “knows that the response though correct when made
is no longer true and the circumstances are such that a failure to amend the response is in
substance a knowing concealment.” Tenn. R. Civ. P. 26.05(2). Throughout the trial, Wife
and the trial court relied on what they believed to be accurate disclosures, but unfortunately
they lacked knowledge of the true balance of Husband’s farming account balance. Husband
furthered this problem by ignoring his duty to supplement his previous responses which were
no longer true at the time of trial. Under these circumstances, Husband’s failure to disclose
this information undoubtedly falls into the category of knowing concealment. Accordingly,
we are unable to conclude that the trial court abused its discretion by considering the account
balance discrepancy in granting Wife’s Rule 59.04 motion.


(2) Discrepancies between information disclosed to First Citizens Bank by Husband in
    connection with loan approval and information disclosed on Husband's 14(D)




                                             -11-
        Husband argues that Wife could have easily obtained his January 2009 financial
statement at the time of trial had she properly requested it be produced by the bank incident
to a subpoena. Husband further argues that Wife should have known that his financial
statements always included cash on hand in amounts ranging from $15,000 to $100,000.
Husband fails to recognize, however, that it was his own testimony that lead Wife and the
trial court to believe he had no other funds at that time. In December 2008, Husband testified
that he had only $13,000 to his name, had no other funds coming in from the 2008 crop, and
was using the remaining funds he had to pay outstanding expenses from 2008. Once
Husband received additional funds such that his original testimony and responses to
discovery were no longer true, he had an obligation to inform Wife and the trial court of this
information. To do otherwise was tantamount to knowingly concealing assets. Thus, we find
no error in the trial court’s consideration of these discrepancies in granting Wife’s Rule 59.04
motion.

                          (3) 2008 crop proceeds received in 2009

        As noted above, shortly before trial, Husband testified that he did not expect to receive
any other funds from the 2008 crop, and that he would not be able to carry over any money
into the 2009 farm year. The trial court found that Husband’s testimony was not credible and
that his responses to these questions were “clearly false.” We must give considerable
deference to the trial court's factual findings where issues of credibility and the weight of oral
testimony are involved. In re M.L.P., 228 S.W.3d 139, 143 (Tenn. Ct. App. 2007) (citing
Seals v. England/Corsair Upholstery Mfg. Co., Inc., 984 S.W.2d 912, 915 (Tenn. 1999). In
response, Husband provides the following argument in his brief:

       Husband having money from the 2008 crop to carry over into the next year is
       not the same question as asking whether Husband was scheduled to receive
       payments in 2009 for crops grown in 2008 pursuant to a contract with a third
       party purchaser such as Bunge. Nor is it the same question as asking whether
       Husband had any crops from the 2008 harvest which could not be sold at that
       time due to the sale price of that commodity being too low at that point in time
       due to the price of the commodity being too low. The question asked of
       Husband was not related to whether or not he would receive 2008 crop
       proceeds in 2009 incident to the open contract he held with Bunge.

Despite Husband’s arguments to the contrary, the just resolution of domestic disputes
involving the financial conditions of the parties is not achieved when litigants take part in
gamesmanship instead of seeking the truth. On the contrary, parties and their counsel have
a duty to provide truthful information necessary for the trial court to make an equitable
distribution of the marital assets. Moreover, we emphasize that of these 2008 crop proceeds

                                               -12-
received in 2009, Husband deposited $23,615.50 into an account opened up by his mother
and his girlfriend. Husband offers no explanation of how Wife could have known, or with
reasonable diligence could have discovered, this account information without later
subpoenaing the accounts of Husband’s mother during post-judgment discovery. Therefore,
we find no abuse of discretion in the trial court’s consideration of these newly discovered
proceeds in granting Wife’s Rule 59.04 motion.

       (4) 2008 crop proceeds received in 2008 but not deposited in farm account

        Husband argues that all of the 2008 crop proceeds that he received were reported on
his 2008 tax return which was disclosed to Wife and considered by her expert before trial.
Husband further argues that a portion of these proceeds were paid to various land owners
with whom he had contracts. However, the record clearly provides that some of the 2008
crop proceeds were included on Husband’s 2009 tax return, not his 2008 return. Also, while
Wife’s expert originally believed that a majority of these funds were deposited into
Husband's farm operating account in December 2008, Wife’s expert explained that
documents received in post-judgment discovery indicated that these funds were not deposited
into any account, were never accounted for at the original trial in February 2009, and
remained unaccounted for at the September 2011 hearing. Furthermore, a representative
from Bunge corporation testified that all of the checks totaling $110,840.60, which were
identified by Wife’s expert, were paid directly to Husband. In light of these findings, we find
no abuse of discretion in the trial court’s consideration of these funds in granting Wife’s Rule
59.04 motion.

                          (5) Open contract for 2009 crop proceeds

       Husband argues that Wife, her counsel, and her expert had possession of the open
contract that he executed in January 2009, from which he received payment in October 2009.
Although Wife’s expert was aware of this contract at the time of trial and included the
contract in his initial report to the trial court, after conducting post-judgment discovery, other
open contracts surfaced. From these newly discovered open contracts entered into during the
parties marriage but not originally disclosed, Husband received payments totaling
$135,815.35. Husband fails to address these open contracts in his brief and we are unable
to conclude that the trial court abused its discretion by considering these contracts in granting
Wife’s Rule 59.04 motion.

    (6) Crop insurance proceeds of $64,137.00 received on January 1, 2009, but not
                        deposited into the farm bank account




                                              -13-
       Husband argues that it was Wife’s fault that she did not have information regarding
his receipt of crop insurance proceeds before trial. In his brief, Husband argues that:

        Mary Kirk, Husband’s Mother and the farm’s bookkeeper, was deposed on
        July 18, 2008 at which time she produced a copy of the crop insurance policy.
        Mary Kirk was also deposed on 2/20/2009, at which deposition, counsel for
        Wife could have inquired as to what, if any, crop insurance proceeds had been
        received in 2009, however, no such question was asked. In Husband's February
        2009 deposition, counsel for Wife never questioned Husband as to what, if
        any, crop insurance proceeds he had received. . . .

        If Wife desired to make an issue of crop insurance proceeds received by
        Husband, Wife had sufficient information and documentation regarding
        Husband’s historical receipt of the same to do so. Wife’s failure to assert the
        position that crop insurance proceeds should be treated as an asset subject to
        an equitable division by this Court is no one’s fault but Wife’s.

We respectfully disagree. Husband failed to notify the trial court, Wife, or Wife’s counsel
that he received these funds weeks before trial. In fact, the trial court found that clear and
convincing evidence established that Husband held the funds with the intention of hiding
them to avoid having them included in the division of the marital assets. Wife was unable
to discover this information until the trial court ordered Husband and his mother to produce
the farm ledger used in the farming operations. Notably, the trial court was forced to conduct
a hearing regarding the farm ledger because Husband and his mother produced an incomplete
copy which was missing pages of relevant information. Thereafter, the entire farm ledger
was disclosed and revealed that Husband did not deposit the funds into a bank account after
he received them. Instead, Husband held the funds until the trial concluded, and on April 2,
2009, he converted them into a cashier’s check. Accordingly, we agree with the trial court’s
decision to consider the newly discovered crop insurance proceeds in granting Wife’s Rule
59.04 motion.

        In light of the foregoing, we conclude that the trial court did not abuse its discretion
in granting Wife’s Rule 59.04 motion based on the new evidence discovered after it entered
the final decree. Although our reasoning differs slightly from that of the trial court,1 this
Court may affirm a judgment on different grounds than those relied on by the trial court when
the trial court reached the correct result. Continental Cas. Co. v. Smith, 720 S.W.2d 48, 50
(Tenn. 1986); Shutt v. Blount, 194 Tenn. 1, 8, 249 S.W.2d 904, 907 (1952); In re Estate of


        1
       Specifically, we declined to address the issue of fraud as a basis for post-judgment relief because
Wife was not entitled to relief under Rule 60.02.

                                                  -14-
Jones, 183 S.W.3d 372, 378 n. 4 (Tenn. Ct. App. 2005); Shoemake v. Omniquip Int'l, Inc.,
152 S.W.3d 567, 577 (Tenn. Ct. App. 2003).

                                  B. Summary Judgment

       Next, Husband argues that the trial court erred in failing to require Wife to comply
with Rule 56.03 of the Tennessee Rules of Civil Procedure in response to his motion for
summary judgment. A trial court’s decision to grant or deny a motion for summary judgment
presents a question of law. Our review is, therefore, de novo with no presumption of
correctness. Kinsler v. Berkline, LLC, 320 S.W.3d 796, 799 (Tenn. 2010) (citing Blair v. W.
Town Mall, 130 S.W.3d 761, 763 (Tenn. 2004). As such, “we must freshly determine
whether the requirements of Tenn. R. Civ. P. 56 have been met.” Hunter v. Brown, 955
S.W.2d 49, 50–51 (Tenn. 1997) (citing Gonzales v. Alman Constr. Co., 857 S.W.2d 42,
44–45 (Tenn. Ct. App. 1993)).

       Husband argues that Wife was required to comply with Rule 56.03, she failed to do
so, and as a result the trial court should have granted his motion for summary judgment.
Rule 56.03 provides, in part, that:

               Any party opposing the motion for summary judgment must, not later
       than five days before the hearing, serve and file a response to each fact set
       forth by the movant either (i) agreeing that the fact is undisputed, (ii) agreeing
       that the fact is undisputed for purposes of ruling on the motion for summary
       judgment only, or (iii) demonstrating that the fact is disputed. Each disputed
       fact must be supported by specific citation to the record. Such response shall
       be filed with the papers in opposition to the motion for summary judgment.

              In addition, the non-movant's response may contain a concise statement
       of any additional facts that the non-movant contends are material and as to
       which the non-movant contends there exists a genuine issue to be tried. Each
       such disputed fact shall be set forth in a separate, numbered paragraph with
       specific citations to the record supporting the contention that such fact is in
       dispute.

               If the non-moving party has asserted additional facts, the moving party
       shall be allowed to respond to these additional facts by filing a reply statement
       in the same manner and form as specified above.

Tenn. R. Civ. P. 56.03. Husband’s argument, however, fails to consider Rule 56.06, which
provides that “[i]f the adverse party does not so respond, summary judgment, if appropriate,

                                              -15-
shall be entered against the adverse party.” Tenn. R. Civ. P. 56.06 (emphasis added). Read
in conjunction with the standard for granting summary judgment in Rule 56.04, summary
judgment is appropriate only where the “pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits . . . show that there is no genuine issue
as to any material fact and that the moving party is entitled to a judgment as a matter of law.”
Tenn. R. Civ. P. 56.04. “As the federal advisory committee explained, ‘Where the
evidentiary matter in support of the motion does not establish the absence of a genuine issue,
summary judgment must be denied even if no opposing evidentiary matter is presented.’”
Robert Banks, Jr. & June F. Entman, Tennessee Civil Procedure § 9-4[q], at 9-82 (3d
ed.2009) (quoting Fed. R. Civ. P. 56(c), Advisory Committee Note (1963)).

        In his motion for summary judgment, Husband argued, inter alia, that Wife failed to
plead fraud with specificity and that she was not entitled to post-judgment discovery. In
support of his motion, Husband filed an affidavit detailing the amounts he deposited into his
bank account in the weeks leading up to trial. Specifically, Husband stated in his affidavit
that he deposited $76,137.00 in the account between February 2 and February 9, 2009.
Husband’s affidavit also provided that he made a $45,000 deposit on February 9, 2009. At
trial, however, Husband did not inform Wife or the trial court of these deposits. Husband’s
statements in his affidavit created a genuine issue of material fact regarding his fraudulent
concealment of assets. As a result, summary judgment was not appropriate. Therefore, we
affirm the trial court’s denial of Husband’s motion for summary judgment.

        Additionally, Husband argues that the trial court erred in failing to conduct a hearing
on his motion for summary judgment before ruling on Wife’s post-judgment motions.
However, in Tennessee, trial courts possess broad discretionary authority to control their
dockets and the proceedings in their courts, and we will not second-guess a trial court's
exercise of that authority unless it has acted unreasonably, arbitrarily, or unconscionably.
Hessmer v. Hessmer, 138 S.W.3d 901, 904 (Tenn. Ct. App. 2003). We are unable to say that
the trial court abused its discretion in failing to conduct a hearing on Husband’s motion for
summary judgment before it addressed Wife’s post-judgment motions.

                           C. Attorney’s Fees and Expert Fees

                                       1. Wife’s Fees

      Husband argues that the trial court erred by awarding attorney’s fees and expert fees
to Wife. In its final order, the trial court concluded as follows regarding Wife’s fees:

              Wife is entitled to expert fees and attorney fees. The expert fees and
       attorney fees are reasonable and were necessarily incurred because of

                                              -16-
       Husband’s disregard for court ordered discovery and his refusal to supplement
       and/or amend responses to discovery. Husband was not only evasive and
       incomplete in answering questions, but also misrepresented his assets at the
       time of trial and subsequently evaded answering questions about his assets
       until after the original trial in February and March of 2009. Wife was forced
       to issue subpoenas to banks, including First Citizens Bank and Brighton Bank.
       Wife was likewise forced to subpoena records from Bunge, an entity which
       buys farmers crops, and Tipton County Co-op.

               Rule 37.02 and 37.03 of the Tennessee Rules Of Civil Procedure allows
       the court to award reasonable expenses, including attorney fees, caused by the
       failure of Husband to comply with orders of the court regarding discovery.
       Wife’s attorney has submitted an affidavit regarding her attorney fees. There
       is no dispute that the charges made are reasonable and in line with attorney
       fees charged in the Memphis, Shelby County legal community. The court
       further finds that Wife’s attorney fees are in line with Tennessee Supreme
       Court Rule 8; RPC 1.5: Fees. Wife’s lawyer, Lara Butler, a well respected and
       experienced attorney, was required to expend a great deal of time and effort in
       discovering the Husband's assets because of Husband’s willful and fraudulent
       concealment. The operation and record keeping regarding the farms (which
       were stipulated to be marital property) was convoluted, confusing, and
       complex. Wife was required to hire an expert, J. Kenneth Marston, Jr., to
       explain the operation and record keeping regarding the farms. J. Kenneth
       Marston, Jr.’s fees were not disputed as to amount charged.

        An award of attorney’s fees in divorce cases is left largely to the discretion of the trial
judge. Butler v. Butler, 680 S.W.2d 467, 469-70 (Tenn. Ct. App. 1984). “Appellate courts
should not interfere with the trial court's decision except when there is a clear showing that
the trial court, in its discretion, reached the wrong conclusion with the result that a manifest
injustice will be done if the trial court's decision is allowed to stand.” Id. at 470 (citing
Crouch v. Crouch, 53 Tenn. App. 594, 385 S.W.2d 288, 293–294 (1964); Raskind v.
Raskind, 45 Tenn. App. 583, 325 S.W.2d 617, 622–623 (1959); 24 Am. Jur. 2d Divorce and
Separation § 625 (1983)). Moreover, Rule 37.03 provides for the imposition of sanctions,
including reasonable attorney’s fees and expenses, for failing to supplement or amend
discovery requests as required under Rule 26.05. See Tenn. R. Civ. P. 37.03. Upon thorough
review of the record, we find no error in the trial court’s award of attorney’s fees and expert
fees in favor of Wife. Wife incurred these fees and expenses as a result of Husband’s
actions. Husband has failed to show any abuse on behalf of the trial court. Accordingly, we
affirm the trial court’s award of attorney’s fees and expert fees in favor of Wife.



                                               -17-
                    2. Husband’s Fees and Husband’s Mother’s Fees

        Finally, we shall address whether the trial court erred in failing to award attorney’s
fees to Husband and Husband’s mother, a non-party. In light of our discussion above, we
find no error in the trial court’s refusal to award attorney’s fees to Husband, and we are
unable to find any basis to award attorney’s fees to Husband on appeal.

        Husband argues that the trial court erred in failing to award his mother, a non-party,
her attorney’s fees. In support of this position, Husband relies on the “tort of another
doctrine” theory. According to Husband, “[a] number of jurisdictions, including Tennessee,
have recognized the ‘tort of another doctrine’ which allows a party to recover attorney fees
when he or she has been forced into litigation with a third party as the result of the
defendant’s wrongful or tortious conduct.” Evans v. Young, No. 01A01-9711-CV-00638,
1999 WL 11510, at *4 (Tenn. Ct. App. Jan. 14, 1999) (citations omitted). While we
acknowledge the existence of this doctrine, we do not find it applicable to this case. Wife’s
conduct throughout the proceedings below was far from wrongful or tortious. On the
contrary, Husband and his mother, as bookkeeper of Husband’s farming operation, were far
from cooperative during post-judgment discovery. In fact, as noted above, in response to the
trial court’s order to produce a copy of the farm ledger to Wife during post-judgment
discovery, Husband and his mother produced an incomplete copy which was missing pages
of relevant information. Thus, we find no merit in Husband’s argument. Accordingly, we
agree with the trial court’s refusal to award attorney’s fees to Husband’s mother, who was
not a party.

                                      IV. Conclusion

        For the foregoing reasons, we affirm the judgment of the trial court. Costs of this
appeal are taxed to the Appellant, James Glen Kirk, and his surety, for which execution may
issue if necessary.




                                                    _________________________________
                                                    DAVID R. FARMER, JUDGE




                                             -18-
