                                    FILED
                                    November 10, 1999

                              Cecil Crowson, Jr.
                             Appellate Court Clerk
                   IN THE COURT OF APPEALS OF TENNESSEE
                                AT JACKSON


OPAL BATES CRUMBLEY,                     )
                                         )
                                         )
             Plaintiff/Appellee,         ) Franklin Chancery No. 14,686
                                         )
VS.                                      ) Appeal No. M1998-00158-COA-R3-CV
                                         )
CECIL EUGENE CRUMBLEY,                   )
                                         )
                                         )
             Defendant/Appellant.        )


          APPEAL FROM THE CHANCERY COURT OF FRANKLIN COUNTY
                       AT WINCHESTER, TENNESSEE
             THE HONORABLE JEFFREY F. STEWART, CHANCELLOR




VICKI FREY-FOWLKES
RUSSELL L. LEONARD
Winchester, Tennessee
Attorneys for Appellants




PAT M. FRALEY
Fayetteville, Tennessee
Attorney for Appellee




AFFIRMED




                                                                              Page 1
                                                                 ALAN E. HIGHERS, J.



CONCUR:

DAVID R. FARMER, J.

HOLLY KIRBY LILLARD, J.

       In this divorce action, Cecil Eugene Crumbley appeals from the Chancery Court of

Franklin County, which entered a final decree of divorce ending the marriage between the

parties and dividing all property. Based on the issues before this court, we affirm the

decision of the trial court.

                               I. Facts and Procedural History

       Cecil Crumbley (“Appellant”) and Opal Bates Crumbley (“Appellee”) were married in

July of 1987.    At the time of the marriage, appellant was sixty-three (63) years old, and

appellee was sixty-six (66) years old. This was the second marriage for both individuals as

their previous marriages were ended by the death of their respective spouses. The parties

resided together in the marital household, apparently without incident, until January 1996.

Appellee filed a complaint for divorce on January 26, 1996 alleging, inter alia , inappropriate

marital conduct. The complaint also sought a restraining order against the appellant due to

allegations of verbal and physical abuse. 1 Appellant filed an answer and counter-claim in

which he sought an equitable distribution of property and a divorce on the grounds of

inappropriate marital conduct.



       On June 26, 1996, an order was entered regarding certain property belonging to

appellee that was in the possession of the appellant.       The order stated that the listed



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property was to be immediately returned to the appellee, and authorized the officers of the

Franklin County Sheriff’s Department to escort the appellee to the marital residence in order

to retrieve the property.   Also, the order of June 26th made permanent the previously

granted temporary restraining order.



       The property was not returned and appellee filed an application for a show-cause

order. The application was granted on July 5, 1996, and a hearing was scheduled for July

12, 1996 before the chancellor. In a curious turn of events, appellant’s attorney filed a

motion to withdraw on July 10, 1996. The motion requested that a hearing be scheduled

contemporaneously with the hearing on the show cause order.

       At the hearing on the show cause order, the appellant was restrained in the

courtroom while the appellee went to the marital residence to remove her personal property.

 The trial court also ordered the appellant to pay appellee’s attorney fees. Apparently, the

trial court did not address the attorney’s motion to withdraw.



       The final divorce decree was entered on May 30, 1997. After the entry of the final

divorce decree, appellant, through new counsel, filed a motion to rehear the case. On the

same date that the motion to rehear was filed, appellant’s prior attorney was officially

allowed to withdraw and Ms. Fowlkes, present counsel, was substituted. The motion to

rehear alleged that appellant had not been effectively represented by his attorney.         He

alleged that he did not agree with the division of marital property and had attempted to

explain this to his attorney, Mr. Peters. He also alleged that the trial court erred in the

division of marital property because the court did not have all relevant information.

Specifically, appellant alleged that his attorney failed to file an itemized list of marital and

separate property, required by local rules, which would have allowed the court to make a

more equitable distribution of the marital assets.




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         The trial court, by order of June 1, 1998, refused to grant a new trial finding that there

was no new evidence to consider nor was appellant improperly or inadequately represented

at trial. This appeal followed and the parties appear to agree that the following issues are

before this court: 1) whether the trial court erred in failing to require appellant’s attorney to

provide an itemized list of separate and marital property and 2) whether the trial court erred

in the division of property between the parties. 2



                                      II. Law and Analysis

         Appellant first takes issue with the trial court’s failure to mandate adherence to its

local rules. The specific rules in this case were 17.02 and 17.03 for the Twelfth Judicial

District of the State of Tennessee, which require submission by counsel for both parties an

itemized listing of both separate and marital property. In the present case, appellant’s

attorney failed to submit these documents and the trial court did not require such a

submission prior to entering the final divorce decree. 3 While the failure of appellant’s

attorney to comply with the local rule may be a deficiency in his performance as attorney, the

failure of the trial court to affirmatively enforce the local rules does not give rise to reversible

error.



         Rule 18 of the Tennessee Rules of the Supreme Court requires all trial courts to

adopt, in writing, local rules prescribing procedures for setting cases for trial, obtaining

continuances, disposition of pre-trial motions, settlement or plea bargaining deadlines for

criminal cases, and preparation, submission and entry of orders and judgments. Sup. Ct.

Rule 18 (local rules of practice).       In addition, trial courts may adopt "other rules not

inconsistent with the Rules of Civil Procedure and Rules of Criminal Procedure." To that

end, the Twelfth Judicial District adopted local rules applicable to divorce proceedings.

See 12th Judicial Circuit Rules 17.02, 17.03.




                                                                                                       Page 4
       We are faced with the dual questions of what effect local rules have, and who bears

the ultimate responsibility for compliance with the rules. It is within the discretion of the trial

court to suspend the operation of local rules. In Killinger v. Perry, 620 S.W.2d 525 (Tenn. Ct.

App. 1981), the Court of Appeals considered a trial court’s ability to waive or abolish a

local rule. The court stated:

               The Trial Court has authority to make its own rules and
               accordingly may waive or abolish them if it chooses. This Court
               will not reverse a Trial Judge for waiving a local rule absent the
               clearest showing of an abuse of discretion and that such waiver
               was the clear cause of a miscarriage of justice.

Killinger, 620 S.W.2d at 525. The court found no abuse of discretion or miscarriage of

justice in the trial court’s overruling the objection of defense counsel to the introduction of

certain exhibits when these documents had not been exhibited to the defense prior to trial

as required by the local rules. It is not clear in the present case that the local rules were

waived by the trial court, although waiver may be inferred from the fact the trial court entered

the final divorce decree without requiring appellant to conform with the local rules. In any

event, we do not believe that express waiver by the trial court was required.



       In the present case, appellant recognizes that it was his own attorney who failed to

comply with the local rules. He argues, however, that the trial court’s failure to mandate or

force compliance with the local rules resulted in a “gross miscarriage of justice.” We find

this line of reasoning untenable. Any failure in this case is the fault of the appellant, or the

appellant’s first attorney. The burden of complying with rules and protecting the interests of

a client rests squarely on the attorney. If any remedy is available to appellant, the present

issue on appeal is not the avenue to that remedy. We find no error in the trial court’s refusal

to enforce compliance with the applicable local rules.



       Appellant also claims error in the trial court’s division of the marital property. 4 First,

he claims that the trial court failed to distinguish between marital property and separate



                                                                                                      Page 5
property, which allegedly resulted in much of appellant’s separate property being awarded

to the appellee. Additionally, appellant claims that the property division was not equitable.



       It is incumbent upon the trial court first to classify the parties' property as either

separate or marital before making an equitable division of the marital estate. Watters v.

Watters, 959 S.W.2d 585, 588 (Tenn. Ct. App. 1997) (citing Wade v. Wade, 897 S.W.2d

702, 713 (Tenn. Ct. App. 1994); Batson v. Batson, 769 S.W.2d 849, 856 (Tenn. Ct. App.

1988). In the context of the present appeal, the question is whether the trial court undertook

to classify the property belonging to the parties.



       In the Final Divorce Decree, several references are made to “marital property” and “

personal property.” It may be true that the classifications were made on the basis of the

itemized lists submitted by the appellee, without the benefit of countervailing documents on

behalf of the appellant.     However, appellant had the opportunity to file documents and

present evidence. The order entered by the trial court speaks in terms of marital property

and personal property. Absent any evidence to the contrary, we assume that the trial court

did, in fact, classify the property correctly.



       Appellant’s final assertion is that the trial court failed to make an equitable division of

property. Our divorce statutes require an equitable division of the marital estate without

regard to fault. Tenn. Code Ann. § 36-4-121(a). To this end, the trial court is granted broad

discretion in adjusting and adjudicating the parties' interest in all jointly owned property.

Watters, 959 S.W.2d at 590 (citing Batson, 769 S.W.2d at 859).            Its decision regarding

division of the marital property is entitled to great weight on appeal. It is well established

that the trial court's division of the marital estate need not be equal to be equitable. Wade,

897 S.W.2d at 717. Generally, the fairness of the property division is judged upon its final

results.



                                                                                                     Page 6
       We note that the trial court made the division of property on the basis of evidence

which the court had before it. The trial court did not have access to information which the

appellant has submitted to this court. Essentially, appellant asks us to revisit the question of

whether it was error for the trial court to divide the marital property without having appellant’s

itemized lists of marital and separate property.          Again, we point out that the failure of

appellant’s attorney to comply with the local rules and provide the trial court with the itemized

lists cannot be remedied on appeal to this court. Considering the deference we must afford

the trial court in this regard, we find no error in the trial court’s division of property.




                                          III. Conclusion

       For the foregoing reasons, we affirm the decision of the trial court in all respects.

Costs of this appeal are taxed to the appellant, for which execution may issue if necessary.




                                                       HIGHERS, J.



CONCUR:




                                                                                                     Page 7
FARMER, J.




LILLARD, J.




              Page 8
