                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT KNOXVILLE
                                      May 16, 2007 Session

                     BARBARA A. MEIER v. JAMES W. MEIER

                         Appeal from the Family Court for Rhea County
                            No. 22495 James W. McKenzie, Judge



                 No. E2006-2490-COA-R3-CV - FILED OCTOBER 30, 2007


This is a post-divorce proceeding in which James W. Meier (“Husband”) filed a motion to amend
the final decree pursuant to Tenn. R. Civ. P. 60. The trial court denied the motion. Husband
appeals, contending, in part, that the trial court “committed reversible error” when it signed a
judgment by consent when it knew that he did not agree to the terms of the proposed judgment. We
affirm.

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

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

John P. Konvalinka, Steven W. Grant, and Jillyn M. Pullara, Chattanooga, Tennessee, for the
appellant, James W. Meier.

Carol Ann Barron, Dayton, Tennessee, for the appellee, Barbara A. Meier.


                                              OPINION

                                                   I.

        On February 11, 2004, the trial court entered a “Final Decree,” which recites, in part, that the
parties appeared in court on September 29, 2003, and “announced in open court that they had
reached an agreement involving the division of marital property, the division of marital debt and the
request for alimony.” In addition to granting a divorce to Barbara A. Meier (“Wife”) and Husband,
the court’s judgment addressed other matters including the following:

               The real estate owned by the parties shall be conveyed to the son of
               the parties, Todd Meier. He shall pay to [Wife] a sum which shall be
               equal to one half of the amount ultimately paid to the Internal
               Revenue Service on an unresolved debt owed by the parties. This
               money will be paid in monthly installments of FIVE HUNDRED
               DOLLARS even until such time as the debt to the Internal Revenue
               Service is resolved in its entirety at which time the real estate will be
               refinanced and paid in full.

(Capitalization in original). The judgment reflects the signatures of the trial judge, Wife, her
attorney, and the attorney for Husband. Diagonally across a signature line, under which is typed the
name of Husband, are the words “Refused to Sign” in longhand.

        On November 23, 2004, some nine months after the entry of the trial court’s judgment of
divorce, Husband filed his Tenn. R. Civ. P. 60 motion claiming that the parties’ understanding with
respect to their real estate was incorrectly stated in the trial court’s judgment. Following a hearing,
on May 15, 2006, the court entered an order on October 17, 2006, denying Husband’s motion. This
appeal followed.

                                                  II.

       The issues presented for review by Husband are as follows:

               1. Whether the trial court committed reversible error by signing a
               final judgment of divorce when the trial court clearly knew that the
               appellant did not agree to the terms of the consent judgment and
               without a signed marital dissolution agreement.

               2. Whether the trial court exceeded its authority by ordering a
               nonparty to make payments to protect marital property.

For the reasons stated herein, we cannot reach Husband’s issues.

                                                 III.

        The instant controversy began when Husband filed a one-page pleading labeled “Motion to
Amend Final Decree.” In the body of the pleading, Husband stated the gravamen of his motion and
the relief requested:

               James W. Meier . . . moves the Court for an Order Modifying the
               Final Judgment in the above-referenced matter. The Defendant
               would show that the Final Decree does not reflect the agreement by
               and between the parties. Specifically, Todd Meier was to pay James
               W. Meier Fifty Thousand Dollars ($50,000.00) upon the transfer of
               the parties’ real estate to Todd Meier.


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The motion was never amended. It formed the basis of Husband’s claim when this matter was heard
by the trial court on May 15, 2006. As can be seen, the thrust of Husband’s complaint was that there
had been an agreement between him and his wife, but that an important, to him, part of that
agreement had been omitted from the trial court’s judgment. He was asking the trial court to modify
the judgment to add the “omitted” part.

          At the hearing on May 15, 2006, counsel for Husband stated his client’s position at the
outset:

                 MR. GRANT: As you heard earlier today, the only issue we really
                 have with respect to the final decree is the disposition of the marital
                 property.

                 Again, Ms. Barron referred to the fact that before the parties were
                 divorced and were involved in this divorce, they were getting ready
                 to lose the marital home. So, their son, Todd Meier, used his credit
                 to obtain a loan to help his mom and dad out on the mortgage, and
                 that was a $76,000 loan in that case.

                 What we have issue here in the final decree is it deals with only one-
                 half of the equity in the house, right? This house is worth
                 approximately $165,000, and under Paragraph 2 it says, the real estate
                 owned by the parties shall be conveyed to the son of the parties, Todd
                 Meier. And it says, he shall pay [Wife] a sum which shall equal one-
                 half of the equity to his mom — to Mom, right? The remainder of
                 this paragraph does not address what happens to the second half of
                 the equity in the home, and if you deduct the $76,000 from the
                 $165,000 —

                                                *   *   *

                 MR. GRANT: About — at the time, about [$37,000 was owed to the
                 IRS]. It’s about 40-something now, 40 — 45,000, right? But you
                 have $89,000 worth of equity above the debt on this house, right?
                 The way this treats it, it is a gift to the son, because it can’t be
                 alimony, because alimony’s spousal support, and it’s not in this final
                 decree that any of this represents alimony or spousal support when
                 it’s ordered to be transferred to the son. And it can’t be property
                 settlement, because if it’s a property settlement, property settlement
                 goes to the wife. Any disposition to the son is a gift under state law,
                 liable to state gift tax of 6 percent, right? So, it’s got to be against
                 public policy if it’s a transfer avoiding state transfer tax.



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                  Now, I think the other party in this case is going to say, well, this was
                  a deal worked out with the son. He takes out the loan, and Mr. James
                  Meier — I may call him Jim, he goes by Jim — agreed to give his son
                  over $50,000 worth of equity as a result of that loan. [Husband is]
                  here today to testify that that’s not the case, Your Honor.

       Husband, his son, and Husband’s attorney at the time of the entry of the trial court’s divorce
judgment,1 were the witnesses at the hearing. Both the attorney and Husband’s son disputed
Husband’s contention that, as stated in Husband’s motion, “Todd Meier was to pay James W. Meier
Fifty Thousand Dollars ($50,000.00) upon the transfer of the parties’ real estate to Todd Meier.”

        Husband gave extensive testimony regarding the former marital residence and the interactions
involving himself, Wife, their son, and the attorneys who represented the parties in the divorce,
leading up to the entry of the divorce judgment. Husband testified that the judgment erroneously
failed to include a provision of the parties’ agreement requiring his son to pay Husband for his
interest in the property. Husband’s testimony was consistent with the allegations of his motion.
Regarding why he did not sign the proposed judgment, the following exchange occurred:

                  Q. And after this — after you saw a copy of this final decree and
                  refused to sign it — why did you refuse to sign that document?

                  A. Because it was not accurate.

                  Q. Why was it not accurate?

                  A. Because it did not stipulate in there that I was supposed to get
                  paid right after the house was refinanced.

                  Q. Paid from whom?

                  A. From my son, Todd.

         During the hearing, the court made the following observation:

                  THE COURT: All right, folks, Let’s put it this way. What I’m
                  finding today is that the agreement between the parties were [sic] that
                  Todd Meier was going to refinance the property and ultimately
                  receive the property as his, clear and free, because according to the
                  depositions, according to [Husband’s former attorney] Ms. Hicks’



         1
         Husband’s appellate attorney was not involved in this matter at or prior to the entry of the trial court’s final
judgment.

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               testimony, according to Mr. Todd Meier’s testimony is, it was their
               both intentions that their son would ultimately get the property.

As previously noted, the trial court denied Husband’s Tenn. R. Civ. P. 60 motion to amend the final
judgment.

        In his brief on appeal, Husband has changed his theory of the case. He now seeks not to
amend the judgment but rather to set it aside. He claims that the trial court erred in entering a
consent judgment after it became aware that Husband had withdrawn his consent. He relies upon
the decision of the Supreme Court in the case of Harbour v. Brown for Ulrich, 732 S.W.2d 598
(Tenn. 1987), in which the High Court held that “a valid consent judgment can not [sic] be entered
by a court when one party withdraws his consent and this fact is communicated to the court prior to
entry of the judgment.” Id. at 599.

         Husband’s motion sought only to amend the judgment. This was the thrust of his position
and testimony at the hearing. There was no mention of the Harbour case or its progeny. Husband
now seeks to set aside the judgment based upon the principle enunciated in Harbour. He went from
affirming there was an agreement that needed to be modified to arguing that there was no agreement
at the time the proposed judgment was submitted to and entered by the trial court. “It is well settled
in this state that a party on appeal will not be permitted to depart from the theory on which the case
was tried in the lower court. Issues not raised or complained of in the trial court will not be
considered on appeal.” Tamco Supply v. Pollard, 37 S.W.3d 905, 909 (Tenn. Ct. App. 2000). See
also Kelley v. Middle Tenn. Emerg. Physicians, P.C., 133 S.W.3d 587, 598 (Tenn. 2004). The issue
now being raised by Husband, was never asserted or pursued by him before the trial court. He
cannot raise this issue for the first time on appeal. Id. Accordingly, Husband’s first issue is found
adverse to him.

                                                 IV.

         In his second issue, Husband argues that “the trial court exceed[ed] its authority by ordering
a nonparty to make payments to protect marital property.” This issue was also not raised below; but
even if it had been, it would have been of no benefit to Husband. We recognize that a court is
without authority to bind a nonparty. See Reymann v. Reymann, 919 S.W.2d 615, 618 (Tenn. Ct.
App. 1995). Thus, the decree in question pertaining to the parties’ son is not legally binding on him.
It is nothing more than an acknowledgment between the named parties. As to the named parties, this
error was clearly harmless. See Tenn. R. App. P. 36. Husband’s second issue is also found to be
without merit.

                                                  V.

        The judgment of the trial court is affirmed. Costs on appeal are taxed to the appellant James
W. Meier. This case is remanded to the trial court for enforcement of that court’s judgment and for
the collection of costs assessed below, all pursuant to applicable law.


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    _______________________________
    CHARLES D. SUSANO, JR., JUDGE




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