                IN THE COURT OF APPEALS OF TENNESSEE
                             AT JACKSON
                                January 20, 2010 Session

 JACK MARLER VAN HOOSER v. SUSAN MCCREIGHT VAN HOOSER

               Direct Appeal from the Circuit Court for Shelby County
                  No. CT-002691-06, Div. VI    Jerry Stokes, Judge


               No. W2009-01191-COA-R3-CV - Filed February 22, 2010


This is an appeal from the trial court’s award of alimony, division of marital property, and
grant of divorce. Husband filed the initial complaint for divorce. Subsequently, wife filed
a counter-complaint seeking a decree of legal separation. Wife later amended her counter-
complaint to allege fraud and sought damages based on her fraud claim. Because the trial
court failed to rule on the wife’s claim of fraud, no final judgment exists. Accordingly, this
court lacks subject matter jurisdiction and the appeal is dismissed.

      Tenn. R. App. P. 3. Appeal as of Right; Appeal Dismissed and Remanded

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

Mitchell D. Moskovitz and Adam N. Cohen, Memphis, Tennessee, for the appellant,
Susan McCreight Van Hooser.

Richard F. Vaughn and William Craig Hall, Collierville, Tennessee, for the appellee, Jack
Marler Van Hooser.

                                         OPINION

       On May 23, 2006, Appellee, Jack Marler Van Hooser (“Mr. Van Hooser”), filed a
complaint for divorce. When he filed for divorce, Mr. Van Hooser and his wife, Susan
McCreight Van Hooser (“Mrs. Van Hooser”), Appellant, had been married for approximately
thirteen years. Mr. Van Hooser alleged grounds of irreconcilable differences and
inappropriate marital conduct. Mrs. Van Hooser filed an answer to the complaint on June
28, 2006 denying all allegations and asking that the complaint be dismissed. Prior to the
marriage at issue, Mr. Van Hooser had been married and divorced, with one child resulting
from the marriage.
       Mrs. Van Hooser filed a motion with the trial court on November 7, 2007, requesting
permission to file a Counter-Complaint for a Decree of Legal Separation. By consent, the
parties entered into an order on November 27, 2007, allowing Mrs. Van Hooser to file a
Counter-Complaint. On December 6, 2007, Mrs. Van Hooser filed her Counter-Complaint
for Decree of Legal Separation alleging grounds of irreconcilable differences and
inappropriate marital conduct, asserting that she is dependent on Mr. Van Hooser’s health
insurance policy, and requesting that she be granted a Decree of Separate Maintenance and
Support. On January 3, 2008, Mr. Van Hooser filed an answer to the counter-complaint,
denying that he is guilty of inappropriate marital conduct, and requesting that the court
dismiss the counter-complaint.

        On August 22, 2008, Mrs. Van Hooser filed a motion requesting permission to amend
her counter-complaint to allege fraud. On December 5, 2008, Mrs. Van Hooser filed an
amendment to her counter-complaint, incorporating her original counter-complaint and
alleging fraud.1 Specifically, Mrs. Van Hooser alleged: (1) one week prior to the hearing
before the Divorce Referee, Mr. Van Hooser entered into a Consent Order Reducing
Arrearage to Judgment and Order Modifying Child Support with his first wife; (2) at no time
prior to entering into this order was a petition for contempt filed against Mr. Van Hooser; (3)
she believed Mr. Van Hooser conspired with his first wife prior to the hearing before the
Divorce Referee to reduce his income and therefore his obligation for temporary support and
alimony; (4) Mr. Van Hooser voluntarily assumed expenses not contained in the original
Marital Dissolution Agreement in an effort to reduce his income and to prevent it from being
used for alimony; and (5) no wage assignment was ever issued in compliance with the
consent order as of a year after the entry of the consent order. Pursuant to these allegations,
Mrs. Van Hooser asked the trial court to find that Mr. Van Hooser had engaged in fraud and
award damages and other relief accordingly.

        Mr. Van Hooser filed an answer on December 8, 2008, asserting the defenses of
failure to state a claim upon which relief may be granted, lack of subject matter jurisdiction,
and statute of limitations. Mr. Van Hooser admitted having entered into a consent order, and
that no contempt petition had been filed against him, but averred that his first wife had told
him she was going to file a petition to modify child support, that the arrearages were
legitimate based on the uniform child support guidelines, and that he entered into the consent
order to avoid needless litigation. Further, Mr. Van Hooser admitted that no wage
assignment had been issued, but submitted that he had been in compliance with the consent
order since its entry.


       1
         We note that while Mrs. Van Hooser’s amended complaint states that the trial court granted her
permission, no order granting permission appears in the record. However, at no place in the record or on
appeal, does Mr. Van Hooser object to the amendment.

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        A trial was held on March 11 and 12, 2009. The trial court ruled from the bench and
a Final Decree of Divorce was entered on April 17, 2009, reflecting the trial court’s ruling.
In the Final Decree the trial court declared the parties divorced, divided marital property and
provided for alimony for Mrs. Van Hooser. Specifically, the trial court ordered that the
martial home be sold, that Mr. Van Hooser be responsible for making necessary and
reasonable repairs to the home, that he be responsible for paying the mortgage until the home
sells, and that the parties share equally in the profit or loss from the sale of the home. The
trial court found that the wife was currently unemployable and financially dependent on Mr.
Van Hooser, and accordingly awarded her transitional alimony in the amount of seven
hundred and fifty dollars for thirty-six months. The trial court ordered that upon termination
of the transitional alimony, Mr. Van Hooser shall pay alimony in futuro in the amount of five
hundred dollars a month. Further, the trial court ordered that Mr. Van Hooser pay his wife’s
COBRA health insurance premiums for thirty-six months. Mrs. Van Hooser was awarded
all of her husband’s State of Tennessee 3401(k) plan.2 Mr. Van Hooser received exclusive
ownership of his Tennessee Consolidated Retirement System Pension Account. Each party
retained their individual checking and savings accounts and the car that was in their
possession. The trial court divided personal property pursuant to the agreement of the
parties. The trial court held that Mr. Van Hooser was responsible for the debt owed to his
father, the debt owed on marital credit cards, and Mrs. Van Hooser’s medical bills incurred
before trial. The trial court held Mrs. Van Hooser responsible for loans from her friend, John
Alongi, and charges made on her mother’s credit card. Finally, the trial court held that each
party would be responsible for their own attorney fees.

       On April 9, 2009, Mrs. Van Hooser filed a motion to alter or amend the final
judgment. Mrs. Van Hooser asked the court to increase the alimony awarded and to alter or
amend the property division. Further, Mrs. Van Hooser submitted that the trial court failed
to make a finding on her claim of fraud and dissipation and asked the court to alter or amend
the Final Decree to reflect the dissipation. Mr. Van Hooser filed a response on April 16,
2009, requesting that the trial court deny the motion to alter or amend. The trial court entered
an order on May 4, 2009, increasing Mrs. Van Hooser’s transitional alimony to one thousand
dollars a month and alimony in futuro to seven hundred and fifty dollars a month, and
denying the remainder of Mrs. Van Hooser’s motion. Mrs. Van Hooser then appealed.

        On appeal, Mrs. Van Hooser raises the following issues for our review:

                 1.       Did the trial court err by awarding Wife an insufficient


        2
         We note that in the Final Decree this account is referred to as a 3401(k) plan. However, in the
transcripts from the trial court’s ruling and in both parties’ briefs this account is referred to as the State of
Tennessee 401(k) plan.

                                                      -3-
                      amount of alimony?

              2.      Did the trial court err in its property division?

              3.      Did the trial court err by granting a divorce, as opposed
                      to a legal separation?

       Mr. Van Hooser raises the following issue on appeal:

              1.      Whether the trial court erred in awarding transitional
                      alimony in excess of the Husband’s ability to pay and by
                      awarding alimony in futuro?

        Subject matter jurisdiction concerns the authority of the court to hear a matter and
cannot be waived. Meighan v. U.S. Sprint Commc’ns Co., 924 S.W.2d 632, 639 (Tenn.
1996). The court may consider subject matter jurisdiction sua sponte. Tenn. R. App. P.
13(b); Ruff v. State, 978 S.W.2d 95, 98 (Tenn. 1998). The Tennessee Supreme Court has
held that “[u]nless an appeal from an interlocutory order is provided by the rules or by
statute, appellate courts have jurisdiction over final judgments only.” Bayberry Assocs. v.
Jones, 783 S.W.2d 553, 559 (Tenn. 1990). Rule 3(a) of the Tennessee Rules of Appellate
Procedure limits the subject matter jurisdiction of appellate courts to final judgments:

              In civil actions every final judgment entered by a trial court from
              which an appeal lies to the Supreme Court or Court of Appeals
              is appealable as of right. Except as otherwise permitted in rule
              9 or in Rule 54.02 of the Tennessee Rules of Civil Procedure, if
              multiple parties or multiple claims for relief are involved in an
              action, any order that adjudicates fewer than all the claims or the
              rights and liabilities of fewer than all the parties is not
              enforceable or appealable and is subject to revision at any time
              before entry of a final judgment adjudicating all the claims,
              rights, and liabilities of all parties.

Id. If the trial court did not adjudicate all of the parties’ claims, it did not enter a final
judgment. Without a final judgment, this Court does not have subject matter jurisdiction.

      Mrs. Van Hooser formally amended her complaint to allege fraud and requested
damages and any other just relief based on this allegation. While it may be questionable
whether her complaint was properly amended as no order granting permission to amend
appears in the record, Tenn. R. Civ. P. 15.02 requires consideration of all issues that are tried

                                               -4-
by express or implied consent, even if not raised by the pleadings. Upon review of the
record, we find that the parties actually litigated the issue of fraud without objection.

        This Court finds that the trial court did not adjudicate Mrs. Van Hooser’s claim for
fraud. There is no indication in the Final Decree or from the transcript of the trial court’s
ruling, from which we can find that the trial court ruled on the fraud claim. Additionally,
Mrs. Van Hooser pointed out this error to the trial court in her motion to alter or amend.
While the trial court, in response to the motion, did alter the award of alimony, it simply
denied the remainder of the motion, making no statement whatsoever concerning the
allegation of fraud or Mrs. Van Hooser’s contention that the trial court failed to make a
finding on this claim. At oral argument, counsel for Mrs. Van Hooser stated that the trial
court did not address the fraud claim. In response, counsel for Mr. Van Hooser stated that the
trial court impliedly found no credence in Mrs. Van Hooser’s claim for fraud by declining
to find dissipation of assets. We first note that the trial court did not address dissipation of
assets in his ruling from the bench, the Final Decree, or in his Order on the motion to alter
or amend. Further we have not been provided, nor have we found, any authority allowing
us to find adjudication of a claim by implication as asserted by Mr. Van Hooser’s counsel.
Because the trial court did not rule on Mrs. Van Hooser’s claim of fraud, the judgment is not
final, and we lack jurisdiction to adjudicate the issues raised on appeal.

       This appeal is dismissed and remanded to the trial court. Costs of this appeal are
taxed to the Appellant, Susan McCreight Van Hooser, and her surety, for which execution
may issue if necessary.


                                                    _________________________________
                                                    J. STEVEN STAFFORD, JUDGE




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