                   IN THE COURT OF APPEALS OF TENNESSEE
                        WESTERN SECTION AT JACKSON


MILDRED ELAINE YOUNG DANIEL,

             Plaintiff/Appellee,
                                         )
                                         )                                FILED
                                         ) Shelby Chancery No. D-24603-II R.D.
                                         )                          February 12, 1998
VS.                                      ) Appeal No. 02A01-9606-CH-00135
                                         )                          Cecil Crowson, Jr.
JAMES WIRT DANIEL,                       )                          Appellate C ourt Clerk
                                         )
             Defendant/Appellant.        )


          APPEAL FROM THE CHANCERY COURT OF SHELBY COUNTY
                        AT MEMPHIS TENNESSEE
               THE HONORABLE FLOYD PEETE, CHANCELLOR




STEPHEN R. LEFFLER
Memphis, Tennessee
Attorney for Appellant



DONNA M. FIELDS
ROBERT S. WEISS
Memphis, Tennessee
Attorneys for Appellee




VACATED AND REMANDED




                                                               ALAN E. HIGHERS, J.



CONCUR:

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

DAVID R. FARMER, J.

      Mildred Elaine Young Daniel (hereinafter, “Mrs. Daniel”) filed a complaint for divorce
in the Shelby County Chancery Court on September 15, 1994. Thereafter, James Wirt

Daniel (hereinafter, “Mr. Daniel”) filed an answer, and the parties engaged in discovery.

The case was set to be heard in January, 1996. On January 22, 1996, the parties through

counsel appeared before the trial court and announced that they had negotiated the

settlement of some, though not all, of the issues in the case. Of particular importance, the

parties stipulated that they desired for the trial court to grant a divorce that day and restore

Mrs. Daniel’s maiden name to her in light of the fact that she had been diagnosed with

terminal cancer. In addition to the foregoing, the parties also agreed to the division of

some, though not all, of the marital property. On January 24, 1996, the trial court entered

an order styled “Final Decree of Divorce, Return of Maiden Name, Announcement of

Settlement as to Certain Property Rights and Reservation of Certain Property Matters,”

which memorialized the stipulations made at the January 22, 1996, hearing. That order

recited in relevant part:

       IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED:
       1.      That the Plaintiff, Mildred Elaine Young Daniel, should be granted a
       divorce from the Defendant, James W irt Daniel, on the grounds of adultery.

       2.    That the Plaintiff’s maiden name of Young shall be restored to her and
       she shall henceforth be known as Mildred Elaine Young.

       3.     That the agreement between the parties concerning certain personal
       property is attached hereto as Exhibit A, and will be incorporated into the
       final Order settling property rights herein.

       4.     That certain matters remain to be settled or tried, including the
       continuation of the AFLAC cancer insurance. The Court allows thirty (30)
       days for counsel and parties to attempt to settle the remaining matters. If the
       remaining matters are not settled within thirty (30) days, the Court will enter
       an Order for mediation.



       On April 6, 1996, Mildred Daniel died. At the time of her death, the remaining issues

had not been resolved.       Therefore, on April 11, 1996, Mr. Daniel’s counsel filed a

“Suggestion of Death and Motion to Dismiss Proceedings.” On May 3, 1996, Appellant

filed a “Response to Defendant’s Motion to Dismiss” and a “Suggestion of Death and

Motion for Substitution of Party.” By order entered June 6, 1996, the trial court entered an

order denying Mr. Daniel’s motion to dismiss. That same order also substituted Mrs.

Daniel’s estate as the party-plaintiff in this cause and granted to Mr. Daniel the right to file

an interlocutory appeal with this Court pursuant to Rule 9, Tenn.R.App.P. Mr. Daniel filed


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an interlocutory appeal in this Court on June 10, 1996, which was subsequently denied by

Order entered July 5, 1996. On December 10, 1996, the trial court entered its “Order on

Contempt and Order Dividing Remaining Property,” which adjudicated all remaining issues

before the trial court. Thereafter, Mr. Daniel filed a notice of appeal on January 8, 1997,

and the case is properly before this Court for consideration.



                                          ISSUE



       The issue submitted for appeal centers on whether the death of a party during the

pendency of a divorce action abates the divorce action or whether the action may, in

certain circumstances, survive the death of the party.



                                       DISCUSSION



       On appeal, the parties have each presented persuasive authority to support their

respective positions. In fact, each has cited contradictory authority from different sections

of this Court which bear upon the issue presented.



       Mr. Daniel asserts that the lawsuit abated upon the death of Mrs. Daniel and that

all proceedings in the trial court should have terminated upon her death. Mr. Daniel relies

upon McMahon v. Butler, No. 82D-1948 (Tenn. App. May 23, 1986), a decision of the

Middle Section of this Court. In McMahon, the trial court ruled from the bench that the

parties should be divorced and appointed a special master to take proof regarding the

assets of the parties. The husband died before the special master made the final report

to the trial court. Thereafter, the wife filed and served a notice of voluntary dismissal, and

the executors of the husband’s estate filed a suggestion of death and motion to be

substituted as parties in the husband’s place. The trial court substituted the executors in

place of the husband and declared the wife’s voluntary dismissal to be void. Subsequently,

the trial court entered an order confirming the special master’s final report and also entered

an order purporting to resolve all the property rights of the parties. The wife appealed from



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that order.



       On appeal, this Court determined that the trial court erred in not dismissing the

cause upon the husband’s death. The Court found that the trial court’s interlocutory order

granting the wife a divorce was not a final order and that all issues in the cause, including

the divorce, were open to revision at any time before the entry of an order adjudicating all

the claims, rights and liabilities of the parties. In rendering its decision in McMahon, the

Court addressed the case from the standpoint of the finality of the judgment and found that

the case was, indeed, not final. Rule 3(a) Tenn.R.App.P. provides:

              [A]ny 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 the final judgment adjudicating all the
              claims, rights and liabilities of all parties.



       On appeal, the McMahon Court concluded that the cause of action abated upon Mr.

McMahon’s death. Therefore, the Court reversed all orders of the trial court entered after

the husband’s death and dismissed the cause.



       Contrary to the determination in the McMahon case is that reached by the Eastern

Section of this Court in Bradley v. Bradley, No. 02A01-9108-CH-00285 (Tenn. App. Sept.

14, 1990), which Mrs. Daniel’s estate asserts should be controlling authority. In Bradley,

the trial court had announced from the bench that it would award a divorce to the wife, Reb

Bradley, on the grounds of cruel and inhuman treatment, but the trial court reserved

questions regarding the division of property. Mr. Bradley died before entry of any order

regarding the divorce, having complicated the situation by marrying Debby W. Bradley

eleven days after the trial court’s pronouncement of divorce but before entry of any order

granting the divorce. Upon motion of Reb Bradley, the trial court dismissed the divorce

action, finding that it had abated upon Mr. Bradley’s death. Debby W. Bradley, Mr.

Bradley’s last wife and putative widow, appealed the dismissal.



       On appeal, the court focused on the trial court’s intent to enter a divorce at the time



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of the pronouncement of divorce made from the bench. The court, therefore, remanded

the case to the trial court for a determination of its intent in regard to granting the divorce.

The court determined that the case was one appropriate for entry of a judgment nunc pro

tunc as to the divorce if the trial court had intended the divorce to be effective at the time

of the hearing. However, the court also held that if the trial court did not intend for the

divorce to be effective as of the date of hearing or if the trial judge had no recollection, then

the trial court should enter an order dismissing the case as abated.



       In determining that the intent of the trial court is paramount in determining whether

the divorce is effective, the McMahon court relied upon Littrell by Davis v. Littrell, No. 1152

(Tenn. App. Aug. 22, 1988), a decision by this panel of the Western Section. In the Littrell

case, the trial judge had stated from the bench:

              The divorce is pronounced. It will be drawn up and signed by
              me promptly. Don’t remarry for at least 30 days. And I
              suppose in a technical point of fact, you are still married at this
              moment up until you actually have this order into the clerk’s
              office. So conduct yourself as such.

Before the final decree of divorce was entered, the wife Connie Sue Davis Littrell and one

of the minor children were killed as a result of an automobile accident. Rickey Littrell, the

husband, filed a motion to dismiss the divorce because of the wife’s death. The trial court

denied the motion to dismiss and entered an order nunc pro tunc to the earlier hearing date

which granted the wife a divorce and custody of the parties’ minor children. The husband

appealed, asserting that under Swan v. Harrison, 42 Tenn. 534 (1865), a divorce action

abates upon the death of a party. This Court affirmed the trial court’s decision. This Court

found that because the trial court had authority to enter an order nunc pro tunc, the parties

were effectively divorced at the time of the hearing, which preceded the wife’s death.

Therefore, there was no pending divorce action to abate at the time of the wife’s death.

This Court found that evidence of the trial court’s intent that the divorce be effective

immediately was shown by the trial judge’s statement, “The divorce is pronounced.”

       There are two other reported Tennessee decisions which merit discussion in

consideration of this issue. In Vessels v. Vessels, 530 S.W.2d 71 (Tenn. 1975), the

Supreme Court found that a divorce decree was properly entered after the death of one



                                               5
of the parties where the trial judge had signed and dated the following notation on the

cover of the court’s jacket: “divorce granted, property awarded.” The Vessels court

emphasized that the intent of the trial judge as to the effective date of the divorce decree

was controlling. Id. at 72.



       In Steele v. Steele, 757 S.W.2d 340 (Tenn. App. 1988), the divorce case was heard

and the trial judge subsequently wrote a letter to the trial court clerk stating, inter alia, that

“the divorce should be granted to the plaintiff.” After the letter was written, but prior to the

entry of a judgment, the plaintiff died. The trial court entered an order consistent with the

aforementioned letter and granted the divorce after the death of the plaintiff. Upon appeal

brought by the wife, the Middle Section of this Court determined that the cause abated

upon the plaintiff’s death. The Court distinguished the Steele case from the Supreme

Court’s decision in Vessels, finding that except for the date of the letter to the trial court

clerk, there was no other recorded indication of the intended effective date of the judgment.

Contrary to Vessels, in which the Supreme Court found that the trial judge believed that he

had done everything to make the decree effective as of the date of entry, the trial court in

Steele knew that its decision had to be formalized by entry of a judgment on the minutes

of the court, but it did not do so.



       In the case at bar, Mr. Daniel asserts that the Final Decree of Divorce entered in the

trial court on January 24, 1996, is ineffective as it was not final and appealable under either

the definition contained in Rule 3 Tenn.R.App.P. or the requirements for appealing

otherwise non-final judgments contained in Rule 54.02 Tenn.R.Civ.P. We agree with Mr.

Daniel’s assertion that the trial court’s order was not final for purposes of appeal; the order

in question expressly reserved certain issues for later determination. However, the

evidence is plain that the trial court intended that the divorce be effective as of January 24,

1996, the date of entry of the order memorializing the stipulations made by both parties at

the January 22, 1996, hearing.



       The common thread in Tennessee law on this issue is that the intent of the trial



                                                6
court is paramount in determining whether and when the order of divorce is effective.

Bradley v. Bradley, No. 02A01-9108-CH-00285 (Tenn. App. Sept. 14, 1990); Littrell by

Davis v. Littrell, No.1152 (Tenn. App. Aug. 22, 1988). In the case at bar, there is

convincing evidence that the trial court intended for the divorce be effective on January 24,

1996. At the January 22, 1996, hearing the following exchange took place:

              Ms. Fields: Your Honor, Mr. Leffler and I want to announce to
              the Court today that it is stipulated that Mrs. Daniel has
              grounds for divorce, and we would like the Court to go ahead
              and grant the decree today.

              The Court: On grounds of adultery?

              Ms. Fields: On grounds of adultery.

              The Court: I will do that.

              Ms. Fields: We will provide a final decree of divorce that
              provides just for the divorce.
              .....

              The Court: When am I anticipating getting an Order?

              Ms. Fields: I’m writing it right now.

              The Court: I’d like to have an Order while it’s fresh on my mind.
              Don’t wait three weeks. So if you will get it to me in the next
              day or so I will remember in case there’s a dispute about it.

              Ms. Fields: I will prepare a final decree granting the divorce,
              returning the maiden name, and I will attach the transcript as
              an exhibit to that so we will know what’s settled and what
              remains to be settled.
              (Emphasis Added).



       Thereafter, on January 24, 1996, the trial court entered the “Final Decree of Divorce,

Return of Maiden Name, Announcement of Settlement as to Certain Property Rights and

Reservation of Certain Property Matters,” which had been approved for entry by counsel

for both parties. As previously recited that order stated in relevant part:

       IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED:

       1.     That the Plaintiff, Mildred Elaine Young Daniel, should be granted a
       divorce from the Defendant, James W irt Daniel, on the grounds of adultery.



       It is evident that from the statements made at the January 22, 1996, hearing that Mr.

Daniel, Mrs. Daniel, their respective counsel and the trial court intended that the Daniels



                                              7
be divorced, and that this intent was memorialized by the trial court’s order entered

January 24, 1996. Accordingly, under the authority of Bradley v. Bradley, we conclude that

it is appropriate to remand this case to the trial court for entry of an order nunc pro tunc as

to the divorce because it is evident that the trial judge intended the parties to be divorced

as of January 24, 1996. Said order nunc pro tunc should comply with the express

provisions of Rule 54.02 Tenn.R.Civ.P.



       For the foregoing reasons, the judgment below is vacated and the cause remanded

for such further proceedings consistent with this opinion.         Costs of this appeal are

adjudged equally against the parties.




                                                                 HIGHERS, J.



CONCUR:




CRAWFORD, P.J., W.S.




FARMER, J.




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