                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                  February 21, 2001 Session

                        GLORIA GUINN v. LUCIOUS GUINN

                A Direct Appeal from the Circuit Court for Shelby County
              No. 157712 R.D.   The Honorable George H. Brown, Jr., Judge



                     No. W1999-01809-COA-R3-CV - Filed April 6, 2001


       This is a post-divorce proceeding pursuant to Tenn.R.Civ.P. 60. Defendant-husband filed
a motion to set aside a final decree of divorce granted on the grounds of irreconcilable differences,
because there was no written agreement settling property rights. Plaintiff-wife filed a motion
pursuant to Rule 60 to amend the final decree of divorce to show that the ground for divorce is
inappropriate marital conduct. The trial court denied Husband’s motion, granted Wife’s motion and
entered an amended final decree showing the ground for divorce as inappropriate marital conduct.
Husband appeals. We affirm in part and reverse in part.

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

W. FRANK CRAWFORD , P.J., W.S., delivered the opinion of the court, in which ALAN E. HIGHERS,
J. and HOLLY KIRBY LILLARD, J., joined.

Gerald S. Green, Memphis, For Appellant, Lucious Guinn

James V. Ball, Memphis, For Appellee, Gloria Guinn

                                            OPINION

       On December 12, 1997, Gloria Guinn, (“Wife”) filed a complaint for divorce against Lucious
T. Guinn, Jr. (“Husband”) alleging irreconcilable differences and inappropriate marital conduct.
Husband counterclaimed, also alleging irreconcilable differences and inappropriate marital conduct.
Following a court appearance, a final decree of divorce was filed January 15, 1999 granting Wife
a divorce on the ground of irreconcilable differences. The final decree also awarded the parties’
home to Husband and ordered that he execute a deed of trust to Wife in the amount of $45,000.00
for her equity in the home.1 Each party was awarded their personal property and the automobile in
their possession and provided that each party waives alimony and any rights to the pension plan of
the other party. The decree provides in part:

                           This cause came on to be heard before the Honorable George
                  H. Brown, Jr., Judge of Division VI of the Circuit Court of Tennessee
                  for the Thirtieth Judicial Circuit at Memphis, upon the Complaint For
                  Divorce filed by Plaintiff, Gloria J. Guinn, personal service of process
                  upon the Divorce Referee and upon the Defendant, the answer of the
                  Divorce Referee filed herein, upon a written Answer and Counter-
                  Complaint filed May 6, 1998, upon a written Answer to Counter-
                  Complaint filed June 10, 1998, the filing of a Non-Military Affidavit,
                  the filing of Interrogatories and Answers to Interrogatories by both
                  parties, and upon statements of counsel for the Plaintiff and
                  Defendant, and upon the entire record in this cause, that all matters in
                  controversy have herein been resolved.

                                     *                  *                  *

                          That the Court further finds that a state of irreconcilable
                  differences existed at the time of the separation of these parties, and
                  that said state of irreconcilable differences continued to exist and that
                  there was no chance of reconciliation. That the grounds for said
                  divorce occurred in Memphis, Shelby County, Tennessee. That the
                  Court further finds that Plaintiff, Gloria J. Guinn, should be granted
                  an absolute divorce from the Defendant, Lucious T. Guinn, Jr., on the
                  grounds of irreconcilable differences.

                          The Court further affirmatively finds that the parties have
                  made adequate, equitable and sufficient provision for the settlement
                  of the personal property of the parties by the proffer of settlement
                  made by counsel. There were no minor children born of this marriage
                  and the Plaintiff is not pregnant at this time with the Defendant’s
                  child.

                                     *                  *                  *

       Although the decree provides a place for the signature of both parties and their attorneys, the
decree was signed only by Wife and her attorney.

         1
            It appears that the intent of this provision was for Wife to get $45,000.00 for her share of the home’s value,
and Husband was to be indeb ted to her for that am ount by virtue o f some evide nce of indebted ness secured by a deed
of trust on the property.

                                                            -2-
        On July 22, 1999, Wife filed a “Petition for Citation of Contempt and for Wage Assignment,”
in which she alleged that Husband had not complied with the provisions of the final decree
concerning the execution of papers and payment for the interest in the real property awarded to
Husband. On August 19, 1999, Husband filed a “Motion for Relief [From] Final Decree of
Divorce,” in which he seeks, pursuant to Tenn.R.Civ.P. 60.02 (1)(5), that the final decree be set
aside, because it grants a divorce on the ground of irreconcilable differences, and no written marital
dissolution agreement was executed. The motion further states that no testimony was elicited at the
hearing, and no other grounds were proven, and that the final decree of divorce is void. On
September 3, 1999, Wife filed a “Motion for Leave to Amend Final Decree of Divorce,” in which
she seeks relief pursuant to Rules 592 and 60, Tenn.R.Civ.P., to amend the final decree of divorce
to show the ground for divorce as inappropriate marital conduct. The motion states in pertinent part:

                  1. That the Final Decree of Divorce in this cause states that the
                  divorce was granted on the grounds of irreconcilable differences.

                  2. That the divorce was granted on September 2, 1998 by this
                  Honorable Court after a proffer of testimony from both Plaintiff’s
                  counsel and Defendant’s counsel.

                  3. That a Marital Dissolution Agreement was not entered into by the
                  parties, but the parties did enter into adequate, equitable and
                  sufficient provisions for the settlement of the personal property of
                  the parties which was then related to this Court through a proffer of
                  settlement made by respective counsel.

                  4. That Plaintiff’s counsel did by way of proffer of testimony supply
                  sufficient evidence to the Court for the granting of a divorce based on
                  the grounds of inappropriate marital conduct which was alleged in the
                  original Complaint for Divorce in this cause.

(Emphasis added).

        Husband filed an affidavit in response to Wife’s motion stating that he did not stipulate or
agree to a divorce on the ground of inappropriate marital conduct or any other ground for divorce.

      On October 6, 1999, the trial court filed “Order Granting Leave to Amend Final Decree of
Divorce” which provides:

                        This cause came on to be heard before the Honorable George
                  H. Brown, Jr., Judge of Division 6 of the Circuit Court of Tennessee


       2
           This rule is not applicable as the motion was not timely filed. See Tenn.R.Civ.P. 59.02.

                                                         -3-
               for the Thirtieth Judicial District at Memphis, upon Plaintiff, Gloria
               J. Guinn’s, MOTION FOR LEAVE TO AMEND FINAL DECREE
               OF DIVORCE pursuant to T.R.C.P. 59 and 60, upon the statements
               of counsel for the parties and upon the entire record in the cause, it
               appeared to the Court.

               1. That the Final Decree of Divorce in this cause states that the
               divorce was granted on the grounds of irreconcilable differences.

               2. That the divorce was granted on September 2, 1998 by this
               Honorable Court after a proffer of testimony from both Plaintiff’s
               counsel and Defendant’s counsel.

               3. That a Marital Dissolution Agreement was not entered into by the
               parties, but the parties did enter into adequate, equitable and
               sufficient provisions for the settlement of the personal property of the
               parties which was then related to this Court through a proffer of
               settlement made by respective counsel.

               4. That Plaintiff’s counsel did by way of proffer of testimony supply
               sufficient evidence to the Court for the granting of a divorce based on
               the grounds of inappropriate marital conduct which was alleged in the
               original Complaint for Divorce in this cause.

                       Further, the Court finds that good reason has been shown to
               grant Petitioner, Gloria J. Guinn’s, Motion to Amend the Final
               Decree of Divorce to read that the divorce was granted on the grounds
               of inappropriate marital conduct and that said Final Decree should be
               amended to so show.

               IT IS THEREFORE, ORDERED, ADJUDGED AND DECREED
               that the Plaintiff is hereby allowed to amend her Final Decree to show
               that the divorce was granted on the ground of inappropriate marital
               conduct.

The amended Final Decree of Divorce was filed October 6, 1999.

         Subsequently, on November 5, 1999, the trial court filed an order denying Husband’s motion
for relief from the final decree of divorce. Husband has appealed, and although he presents three
issues in his brief, we perceive the issues are encompassed in the singular issue of whether the trial
court erred in denying the motion to set aside the final decree and in granting the motion to amend
the final decree.


                                                 -4-
        From time immemorial, the memory of man runneth not to the contrary that a court speaks
through its orders and decrees entered on the minutes of the court. See Morat v. State Farm Mut.
Auto. Ins. Co., 949 S.W.2d 692 (Tenn. Ct. App. 1997); Palmer v. Palmer, 562 S.W.2d 833 (Tenn.
Ct. App. 1978). In the case before us, there is no transcript of the evidence nor a statement of the
evidence, and we are limited to filings included in what was formerly referred to as the technical
record.

        The initial final decree was filed January 15, 1999, and explicitly granted a divorce to Wife
on the sole ground of irreconcilable differences. The decree made no reference to any testimony or
proffer of testimony concerning grounds of divorce, except the court’s explicit findings “that a state
of irreconcilable differences existed at the time of the separation of these parties and that said state
of irreconcilable differences continued to exist.” The decree further provides that the court
affirmatively found “that the parties have made adequate, equitable and sufficient provision for the
settlement of the personal property of the parties by the proffer of settlement made by counsel.”
(Emphasis added). Significantly, the decree does not provide that there is a written agreement
providing for the equitable settlement of any property rights between the parties. It is noteworthy
that in addition to the provisions in the decree concerning the division of the personal property,
Husband was awarded the equity in the marital home and ordered to pay the amount of $45,000.00
therefor to Wife.

        T.C.A. § 36-4-103 (Supp. 2000) provides in pertinent part:

                (b) No divorce shall be granted on the ground of irreconcilable
                differences unless the court affirmatively finds in its decree that the
                parties have made adequate and sufficient provision by written
                agreement for the custody and maintenance of any children of that
                marriage and for the equitable settlement of any property rights
                between the parties. If the court does not affirmatively find that the
                agreement is sufficient or equitable, the cause shall be continued by
                the court to allow further disposition by the petitioner. If both parties
                are present at the hearing, they may, at that time, ratify any
                amendments the court may have to the agreement. The amended
                agreement shall then become a part of the decree. The agreement
                shall be incorporated in the decree or incorporated by reference, and
                such decree may be modified as other decrees for divorce.

The statute is clear and unambiguous that a trial court must affirmatively find that there is a written
agreement for, inter alia, “the equitable settlement of any property rights between the parties.” In
the absence of compliance with the express statutory requirements, the court is without authority to
grant a divorce on the ground of irreconcilable differences, and a decree granting such a divorce
without compliance with the statute is void.




                                                  -5-
       In New York Casualty Co. v. Lawson, 160 Tenn. 329, 24 S.W.2d 881 (1930), our Supreme
Court said:

              A void judgment is one which shows upon the face of the record a
              want of jurisdiction in the court assuming to render the judgment,
              which want of jurisdiction may be either of the person, or of the
              subject-matter generally, or of the particular question attempted to be
              decided or the relief assumed to be given. (Citations omitted).

24 S.W.2d at 883.

       The court cannot validly adjudicate upon a subject matter which does not fall within its
province as defined and limited by law. See Chickamauga Trust Co. v. Lonas, 139 Tenn. 228, 201
S.W. 777 (1917). In Chickamauga, the Court said:

              The principle is thus expressed in 15 R.C.L., p. 853:

                             While it is well settled that a judgment cannot
                     be questioned collaterally for an error committed in
                     the exercise of jurisdiction, the rule is equally well
                     established that a judgment may be attacked in a
                     collateral proceeding for error in assuming
                     jurisdiction. Even where a court has jurisdiction over
                     the parties and the subject-matter, yet if it makes a
                     decree which is not within the powers granted it by
                     the law of its organization, its decree is void. Thus a
                     judgment may be collaterally attacked where the court
                     had jurisdiction of the parties and the subject-matter
                     of action, but did not have jurisdiction of the question
                     which the judgment assumed to determine, or to grant
                     the particular relief which it assumed to afford to the
                     litigants. . . .

                             One form of usurpation of power on the part of
                     a court in rendering a judgment is where it attempts to
                     disregard limitations prescribed by law restricting its
                     jurisdiction. . . . where a court is authorized by statute
                     to entertain jurisdiction in a particular case only, and
                     it undertakes to exercise the power and jurisdiction
                     conferred in a case to which the statute has no
                     application, in so doing it will not acquire jurisdiction,
                     and its judgment will be a nullity and subject to
                     collateral attack.


                                                -6-
139 Tenn. at 235-236.

        It requires no citation of authority that a void judgment or decree cannot be amended because
such a judgment or decree is a complete nullity. “From its inception, a void judgment continues to
be absolutely null. It is incapable of being confirmed, ratified, or enforced in any manner or to any
degree. One source of a void judgment is the lack of subject matter jurisdiction.” Black’s Law
Dictationary, 848 (7th ed. 1999).

        We find that the trial court erred in granting Wife’s motion to amend the final decree and in
filing an amended final decree. Husband’s motion to set aside the final decree should have been
granted.

         We should also note that the initial final decree specifically refers to a proffer of testimony
concerning the settlement of the parties’ personal property rights. There is no indication in the
decree at all that any proof was elicited concerning a division of the other marital property; that is,
the marital home. Yet, the decree specifically makes a division of the marital home and provides
for the establishment of indebtedness on the part of Husband which Wife is now seeking to enforce.
We are not unmindful of the rule that where the trial court hears the evidence and the evidence is not
included in the record on appeal, it is conclusively presumed that the evidence supports the ruling
of the trial court. See Turner v. Turner, 739 S.W.2d 779 (Tenn. Ct. App. 1986). However, in the
instant case, the decree reflects that there was no evidence concerning a division of property other
than the proffer of testimony for personal property settlement. We should also note that counsel for
Wife concedes in her brief that the settlement excluded “the division of the marital residence and two
investment accounts in the name of defendant/appellant.” (Appellee’s brief, page 2).

       In any event, since the initial final decree of divorce was void on its face, the trial court
should have vacated the decree on Husband’s motion.

        Accordingly, the order of the trial court amending the final decree is vacated, and the
amended decree so filed is vacated. The order of the trial court denying Husband’s motion to set
aside the initial final decree of divorce is reversed, and the initial final decree of divorce is vacated.
This case is remanded to the trial court for such further proceedings as necessary. Costs of the
appeal are assessed against appellee. Gloria Guinn.



                                                __________________________________________
                                                W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.




                                                   -7-
