                   IN THE COURT OF APPEALS OF TENNESSEE
                                AT JACKSON


ROBERT EDWARD STEWART,              )
                                    )
                                    )                 FILED
             Plaintiff/Appellee,    ) Madison Chancery No. 43069
                                    )                  January 10, 2000
VS.                                 ) Appeal No. W1999-02185-COA-R3-CV
                                    )                 Cecil Crowson, Jr.
LYNDA ELAINE STEWART,               )               Appellate Court Clerk
                                    )
                                    )
             Defendant/Appellant.   )


         APPEAL FROM THE CHANCERY COURT OF MADISON COUNTY
                       AT JACKSON, TENNESSEE
              THE HONORABLE JOE C. MORRIS, CHANCELLOR




BOB C. HOOPER
Jackson, Tennessee
Attorney for Appellant



NANCY S. NELSON
Jackson, Tennessee
Attorney for Appellee




REVERSED AND REMANDED




                                                     ALAN E. HIGHERS, J.



CONCUR:

W. FRANK CRAWFORD, P.J., W.S.

HOLLY KIRBY LILLARD, J.
        Lynda Elaine Stewart appeals from the dismissal of her petition seeking a contempt

citation against Robert Edward Stewart. For the reasons stated herein, we reverse the trial

court dismissal and remand the case to the Chancery Court of Madison County.



                                     I. Facts and Procedural History

        This case began in January of 1990 when Robert Stewart (“Appellee”) filed a

complaint for divorce in the Chancery Court of Madison County.                                  Lynda Stewart1

(“Appellant”) filed an answer and counterclaim seeking an absolute divorce on the grounds

of irreconcilable differences and inappropriate marital conduct. Prior to any substantive

divorce proceedings, the chancellor entered an order which required Mr. Stewart to pay

Ms. Stewart four hundred dollars ($400.00) per month in temporary alimony. This order

was to be effective until the final outcome of the case or until further court order.



        The Stewart’s divorce case came to be heard in October of 1990. There are no

records from that proceeding, but the chancellor’s ruling was embodied in a November 7,

1990 letter he wrote to the parties’ respective attorneys.                      In that letter, the chancellor

awarded Ms. Stewart an absolute divorce and specified how the assets of the marriage

were to be divided. Pertinent to the present appeal, Ms. Stewart was awarded one-half (½)

of Mr. Stewart’s Tennessee Consolidated Retirement Account. She was also awarded

alimony in the amount of three hundred dollars ($300.00) per month. The chancellor’s

letter instructed the attorneys to draw up the appropriate order. No such order was ever

entered.



        On February 23, 1998, Ms. Stewart filed a petition for contempt (“first petition for

contempt”) against Mr. Stewart for failure to pay alimony.                      In that petition, Ms. Stewart

asserted that the order for temporary relief entered in February of 1990 was still in effect

because there had never been a final decree.2 Mr. Stewart responded by denying that Ms.



        1
           In the ir briefs, the p arties also refer to Ms. Stewart by her maiden name, Ms. Dees. For the sake
of sim plicity, we will refer to h er as “ap pellant” or “M s. Stewa rt.”

        2
            Ms. S tewa rt con tend ed th at the partie s we re still m arried due to the fact no final order was ever
entered.

                                                          2
Stewart was entitled to alimony. He also denied that the parties were still married. He

relied on the November 7, 1990 letter from the chancellor, as well as the chancellor’s oral

ruling at the October 1990 hearing.3



        A hearing was held upon the petition for contempt on April 24, 1998. At the hearing,

there was extensive testimony regarding the existence, or lack thereof, of a divorce. There

was also testimony regarding the question of alimony. Mr. Stewart’s retirement fund was

also mentioned several times during the hearing.



        On May 11, 1998, the court entered an order which set the alimony arrearage at

$1,900.00.4 The court entered the final decree of divorce on August 10, 1998, nunc pro

tunc to October 15, 1990. The final decree contained similar if not the exact provisions of

the chancellor’s ruling in 1990. Most importantly, the decree stipulates that Ms. Stewart

was to receive one-half (½) of Mr. Stewart’s retirement account.



        On September 11, 1998, Ms. Stewart filed a petition for contempt (“second petition

for contempt”) alleging that Mr. Stewart had failed to pay one-half of the retirement benefits

as ordered in the final divorce decree. Mr. Stewart answered the complaint and asserted

res judicata as a defense. He argued that the order of May 11, 1998 was an adjudication

of all issues between the parties, including any questions relating to the retirement account.

The chancery court held a hearing regarding the second petition for contempt on

November 13, 1998. The court dismissed the second petition finding that the matter was

res judicata by the order of May 11, 1998.



        This appeal followed. The sole issue before this court is whether the contempt

petition relating to Mr. Stewart’s retirement account was barred by the principles of res



        3
           Mr. Stewart argued that the chancello r had announced from the bench that the parties were
divorced. Although we have no reason to doubt Mr. Stewart’s assertion, we are unab le to s ay wh ethe r he is
correct since we do not have a record of the October 1990 proceedings.

        4
          The cour t calc ulate d the total a limo ny as: the $700 which Mr. Stewart owed as of April 1991 plus
$300 per month that Mr. Stewa rt failed to pay up until September of 1991. The court found that Ms. Stewart
began living with anoth er ma n in Septe mbe r of 1991 . According to the court, this constituted a material
chang e in circum stance s which cut off he r right to alim ony as of th at date.

                                                      3
judicata.



                                               II. Law and Analysis

         Res judicata bars a second suit between the same parties on the same cause of

action as to all issues which were or could have been litigated in the former suit. Scales

v. Scales, 564 S.W.2d 667 (Tenn. Ct. App. 1977). The party asserting the defense must

demonstrate: (1) that the underlying judgment was rendered by a court of competent

jurisdiction; (2) that the same parties were involved in both suits; (3) that the same cause

of action was involved in both suits; and (4) that the underlying judgment was on the

merits. Lee v. Hall, 790 S.W.2d 293, 294 (Tenn. Ct. App. 1990). The Tennessee Supreme

Court described the doctrine of res judicata and its counterpart, collateral estoppel, as

follows:

         The doctrine of res judicata bars a second suit between the same parties or
         their privies on the same cause of action with respect to all issues which
         were or could have been litigated in the former suit. Collateral estoppel
         operates to bar a second suit between the same parties and their privies on
         a different cause of action only as to issues which were actually litigated and
         determined in the former suit.5

Goeke v. Woods, 777 S.W.2d 347, 349 (Tenn. 1989) (quoting from Massengill v. Scott,
738 S.W.2d 629, 631 (Tenn. 1987)).


         Neither party takes issue with the parameters of the doctrine of res judicata. The

question before this court is whether the doctrine is applicable in the present case. A

review of the record shows that the first petition for contempt, by its language, dealt only

with the issue of alimony. The petition does not mention Mr. Stewart’s retirement account.

However, Mr. Stewart argues that Rule 15.02 of the Tennessee Rules of Civil Procedure

is dispositive of this case. That rule states: “[w]hen issues not raised by the pleadings are

tried by express or implied consent of the parties, they shall be treated in all respects as

if they had been raised in the pleadings.” Tenn.R.Civ.P. 15.02. Mr. Stewart asserts that


         5
           W e believe tha t the seco nd petition fo r contem pt prese nts a different cause of action than that heard
by the chan cellor in Apr il of 19 98. S pec ifically, the April 1998 hearing focused on whether the parties were
divorced, and if so, whether alimony was owed. The second contempt petition was concerned with an issue
of prop erty div ision, nam ely the retire me nt ac cou nt. Sin ce it w as a d iffere nt ca use of ac tion, th is cas e wo uld
be more properly evaluated under the doctrine of collateral estoppel. Collateral estoppel means that the
parties and t heir p rivies in any other cause of action cann ot relitig ate a ny m atter whic h wa s ac tually
determined in the prior su it. Dickerson v. Godfrey, 825 S.W.2d 692 (T enn. 199 2); Cantre ll v. Burnett &
Henderson Co., 187 Tenn. 552, 216 S.W.2d 307 (1948)(emphasis added). However, we will use the term
res judicata , as the parties did in th eir briefs, because we do not think the terms we use will change the issue
in this case .

                                                              4
Ms. Stewart impliedly consented to litigate issues relating to the retirement account.

Specifically, Mr. Stewart points to several exchanges between Ms. Stewart’s attorney and

witnesses which involved questions about the retirement account.



        There is no doubt that references were made to the retirement account at the April

1998 hearing. In dismissing the second petition for contempt, the chancellor obviously

determined that this issue had been litigated at that hearing such that subsequent litigation

of the issue was barred by res judicata. The trial judge's determination with respect to the

issue of implied consent must be upheld unless there has been an abuse of discretion.

See Zack Cheek Builders, Inc. v. McLeod, 597 S.W.2d 888, 891 (Tenn. 1980); Lapray v.

Smith, 804 S.W.2d 87, 91 (Tenn. Ct. App. 1990).



        Based on our review, the record fails to indicate that the issues relating to the

retirement account have been fully adjudicated. The May 11, 1998 order, which appellee

claims resolved all issues between the parties, did not mention the retirement account.6

The appellee argues that there was no reason to mention the retirement account in the

May 11 order because all evidence at the April 1998 hearing showed that Ms. Stewart

could not receive any money from the account. We refuse to make such a blind inference.

By its very language, that order dealt solely with the question of alimony. However, the

final decree of divorce, rendered in August of 1998, stipulated that Ms. Stewart was to

receive one-half (½) of the retirement account.7



        We are left with the final divorce decree as the only pronouncement of the trial court

as to the retirement account. According to that decree, Ms. Stewart is entitled to one-half

of the account. We find nothing in the transcript from the April 1998 hearing which would

cause us to believe the chancellor had determined otherwise. The May 11, 1998 order



         6
           The a ppellee c laims th at the May 11, 1998 order controls the financial relationship between the
parties because, technically, it was later in time. The final divorce decree was not entered until August of
1998, but it was nunc pro tunc to Octo ber of 19 90.

        7
          W e find this especially important in light of the fact the appellee argues that the evidence at the
hearing showe d Ms. S tewart co uld not ge t anything fro m the retirem ent acc ount. Even if we were to say that
the issue regarding the retirement account had been resolved at the April 1998 hearing, the final d ecre e wo uld
lead us to believe tha t the issue had bee n decide d in favor o f Ms. Ste wart.

                                                       5
cannot, through its silence on the issue, be read to take away Ms. Stewart’s interest in the

retirement account.



        Finally, the purposes which underlie preclusion doctrines such as res judicata and

collateral estoppel lead us to believe that the present case is not a proper one for the

application of those doctrines. As appellee points out in his brief, the doctrine of res

judicata exists to promote finality in litigation. The case at bar presents a distinct absence

of finality in that the issues relating to the retirement account have not been resolved. The

mere fact that evidence was presented regarding the retirement account at the April 1998

hearing does not necessarily mean that the question was resolved.8 In fact, based on our

reading of the record, we consider the question to be very much open. The final divorce

decree grants Ms. Stewart one-half (½) of the retirement account and there is nothing in

the record that changes that award. The question of whether Ms. Stewart can, in fact,

receive money from that account is not before this court. However, if she can, under the

law, receive money from that account, then she should be allowed to bring a proper

enforcement proceeding as she attempted to do. Even if she is not entitled to receive

money from the account, res judicata is not the proper manner for that denial. As such,

we find that the doctrine of res judicata was not applicable in the present case and the

second contempt petition should not have been dismissed on that basis.




        8
          In fact, a reading of the record indicates that some of the referenc es to the retirement account were
directed at Mr . Stew art’s ability to pay alimo ny. In that regard, those references cannot be u sed to support
the argu men t that the issu es surro unding th e retirem ent acc ount we re tried by im plied con sent.

                                                       6
                                    III. Conclusion

      For the foregoing reasons, we reverse the decision of the trial court that dismissed

appellant’s petition for contempt as res judicata. We remand the case to the Chancery

Court of Madison County for resolution of the issues surrounding Mr. Stewart’s retirement

account. We express no opinion as to the outcome of the case on remand. Costs of this

appeal are taxed to the appellee, Robert Edward Stewart, for which execution may issue

if necessary.




                                                      HIGHERS, J.


CONCUR:




CRAWFORD, P.J., W.S.




LILLARD, J.




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