                    IN THE COURT OF APPEALS OF TENNESSEE
                               AT KNOXVILLE
                                Assigned On Briefs April 29, 2010

                   ROCKY GLEN ROSS v. DONNA ANGELA ROSS

            Direct Appeal from the General Sessions Court for Morgan County
                          No. 0157D    Michael A. Davis, Judge


                    No. E2009-01396-COA-R3-CV - FILED JUNE 9, 2010


This is a divorce case. The trial court granted the husband a divorce on the ground of
inappropriate marital conduct and awarded the husband what appears to be a sizable majority
of the parties’ assets. The trial court, however, did not adjudicate the wife’s counterclaim
for spousal support. Because the order appealed does not adjudicate all of the claims, rights,
and liabilities of the parties, it is not a final judgment that is appealable of right. We dismiss.

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

D AVID R. F ARMER, J., delivered the opinion of the Court, in which H OLLY M. K IRBY, J. and
J. S TEVEN S TAFFORD, J., joined.

Margaret Jane Powers, Crossville, Tennessee, for the appellant, Donna Angela Ross.

John Mark McFarland, Kingston, Tennessee, for the appellee, Rocky Glen Ross.

                                   MEMORANDUM OPINION 1

       This is an appeal from a final decree of divorce entered by the Morgan County
General Sessions Court. Rocky Ross (“Husband”) filed a divorce complaint against his wife
of twenty-plus years, Donna Ross (“Wife”). Husband’s complaint asserted grounds of
irreconcilable differences and inappropriate marital conduct and included allegations that

       1
           Rule 10 of the Rules of the Court of Appeals of Tennessee provides:

       This Court, with the concurrence of all judges participating in the case, may affirm, reverse
       or modify the actions of the trial court by memorandum opinion when a formal opinion
       would have no precedential value. When a case is decided by memorandum opinion it shall
       be designated “MEMORANDUM OPINION”, shall not be published, and shall not be cited
       or relied on for any reason in any unrelated case.
Wife was a long-term drug abuser with a criminal history. Wife answered and filed a
counter-complaint denying the majority of Husband’s allegations, alleging her own grounds
of irreconcilable differences and inappropriate marital conduct, and seeking an award of
spousal support.

        After a hearing, the trial court concluded that Wife had abandoned the marriage for
more than ten years. The court further concluded that Husband had primarily, if not
exclusively, contributed to the preservation of the parties’ property and born the financial
burden of raising their children during that period. As a result, the court granted Husband
a divorce on the ground of inappropriate marital conduct and awarded Husband the marital
home, the majority of his retirement and/or pension benefits, a child support arrearage of
$6,084, one-half of the parties’ tax returns since 2007, the majority of the couple’s
outstanding debt, and additional household items. The trial court awarded Wife, on the other
hand, approximately $18,000, control of and responsibility for the parties’ 2001 Honda
Accord, a tanning bed, an all-terrain vehicle, and other household items.2 Although the trial
court failed to place a value on most of the property, the appellant’s brief suggests that the
trial court awarded greater than seven times more property to Husband than Wife. The order
did not, however, address Wife’s counterclaim for spousal support. Wife timely appealed.

       Wife raises the following issues, as slightly reworded, for our review:

       (1)     Whether the trial court equitably divided the parties’ marital and
               separate property when it awarded Husband greater than seven times
               more property than Wife;

       (2)     Whether the trial court relied too heavily on Wife’s fault when dividing
               the marital and separate property;

       (3)     Whether the trial court properly assessed a child support arrearage to
               Wife for an emancipated child based upon imputed income of ten
               dollars per hour.

The dispositive question on appeal, however, concerns this Court’s subject matter
jurisdiction, or lack therefore, to decide the issues presented.

       “Subject matter jurisdiction concerns the authority of a particular court to hear a
particular controversy.” Meighan v. U.S. Sprint Commc'ns Co., 924 S.W.2d 632, 639 (Tenn.


       2
       The trial court awarded a sum of $18,000 after deducting Wife’s child support arrearage from the
combined total of her interest in the martial home and the parties’ tax returns.

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1996) (citing Landers v. Jones, 872 S.W.2d 674, 675 (Tenn. 1994)). The question of subject
matter jurisdiction is one that appellate courts must consider even if the parties do not raise
the issue. Tenn. R. App. P. 13(b); Osborn v. Marr, 127 S.W.3d 737, 740 (Tenn. 2004).
“[P]arties cannot confer subject matter jurisdiction on a trial or an appellate court by
appearance, plea, consent, silence, or waiver.” Dishmon v. Shelby State Cmty. Coll., 15
S.W.3d 477, 480 (Tenn. Ct. App. 1999) (citing Caton v. Pic-Walsh Freight Co., 364 S.W.2d
931, 933 (Tenn. 1963); Brown v. Brown, 281 S.W.2d 492, 501 (Tenn. 1955)). This Court’s
subject matter jurisdiction is limited to final judgments except where otherwise provided by
procedural rule or statute. Bayberry Assocs. v. Jones, 783 S.W.2d 553, 559 (Tenn. 1990)
(citing Aetna Cas. & Sur. Co. v. Miller, 491 S.W.2d 85, 86 (Tenn. 1973)). Rule 3(a) of the
Tennessee Rules of Appellate Procedure provides:

       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 and in Rule 54.02 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.

Tenn. R. App. P. 3(a). In this case, the parties have not filed an application for an
interlocutory appeal and the trial court did not purport to certify its judgment as final
pursuant to Rule 54.02 of the Tennessee Rules of Civil Procedure. Thus, the court’s order
is appealable only if it adjudicates all of the claims, rights, and liabilities of the parties.

        The order in this case does not appear to be a final judgment because it does not
address Wife’s counterclaim for spousal support. Accordingly, this Court ordered the
appellant on May 21, 2010, to show cause why this appeal should not be dismissed for failure
to appeal a final judgment. In her response, Wife admitted that she had requested spousal
support and an equitable division of property; submitted that the trial court did not address
the issue of spousal support, value or classify any of the real or personal property, or consider
any of the eleven factors enumerated in Tennessee Code Annotated section 36-4-121(c); and
concluded that the trial court likely would not take any further action, follow any statutory
requirement in considering the award, or award spousal support. Wife further asked this
Court to consider the appeal because “[t]o remand this cause back to the Trial Court at this
time will only further delay Appellant’s receipt of any justice whatsoever in her litigation
process.” She added that “[n]either party, nor the Trial Court, has asserted that the Final
Decree failed to resolve all issues of the divorce, implicitly denying the Appellant anything
she requested in her Counter-Claim.”

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       We disagree that the trial court’s failure to address Wife’s claim for spousal support
amounted to an implied denial of the claim. Although we understand her predicament,
Wife’s response serves only to confirm the deficiency of the judgment below. It is
undisputed that the order appealed does not adjudicate all of the claims, rights, and liabilities
of the parties. Consequently, the court’s order is not a final judgment that is appealable of
right and we must dismiss the appeal. We express no opinion on whether the court should
have determined the status of the parties’ property as separate or marital, assigned values to
the property at issue, accounted for the mandatory factors relevant to equitable distribution
of the property, or avoided any improper reliance upon fault when dividing the property.

                                          Conclusion

       For the foregoing reasons, this appeal is dismissed. Costs of this appeal are taxed to
the appellant, Donna Angela Ross, and her surety for which execution may issue if necessary.




                                                     _________________________________
                                                     DAVID R. FARMER, JUDGE




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