                   IN THE COURT OF APPEALS OF TENNESSEE
                              AT KNOXVILLE
                             May 25, 2006 Session

                      LINDA L. EVANS v. AUDREY H. EVANS

            Direct Appeal from the General Sessions Court for Campbell County
                        No. 12625    Hon. John D. McAfee, Judge



                   No. E2005-01914-COA-R3-CV - FILED JULY 18, 2006



In this divorce action, the parties announced a property settlement in open court which settlement
was made a part of the Divorce Decree. Defendant filed a Tenn. R. Civ. P. 60 Motion to Set Aside
Divorce and to reopen the issue of the property settlement which the Trial Court refused. On appeal,
we affirm.


Tenn. R. App. P.3 Appeal as of Right; Judgment of the General Sessions Court Affirmed.


HERSCHEL PICKENS FRANKS, P.J., delivered the opinion of the court, in which CHARLES D. SUSANO ,
JR., J., and D. MICHAEL SWINEY , J., joined.

Scarlett Beaty Latham, Albany, Kentucky, for appellant.

Johnny V. Dunaway, LaFollette, Tennessee, for appellee.



                                            OPINION


               In this divorce action, after the parties filed numerous pleadings and engaged in a
contentious discovery process, they appeared in court on February 10, 2005 and announced that they
had reached an agreement settling all issues in controversy. The terms of this agreement were
announced in open court, and the Parties announced their consent to those terms.1 On March 18,


       1
        Immediately after the agreement and its terms were announced in open court on February
10, 2005, the trial judge had the following exchange with the Parties:
2005, the Trial Court entered the Judgment of Divorce. Subsequently, the defendant filed a Motion
to Withdraw Consent to Announcement and a Motion to Set Aside Divorce, pursuant to Tennessee
Rules of Civil Procedure 60 and 60.02. Defendant in his Motion argued that he did not agree to the
terms of the agreement as they were announced in court. He stated his hearing impairment prevented
him from hearing the terms of the agreement as it was announced, and that the Trial Court’s
Judgment exceeded the terms of the agreement. The Plaintiff responded that the Judgment of
Divorce accurately reflected the Parties’ agreement and that the Defendant understood and had so
agreed. Following a hearing on the issue, the Trial Court denied both of defendant’s motions, and
a timely Appeal was perfected.

              The issue presented on appeal is whether the Trial Court erred by refusing to set aside
its Judgment of Divorce.

                When reviewing a trial court’s decision to grant or deny relief pursuant to Rule 60.02,
appellate courts give great deference to the trial court. Underwood v. Zurich Ins. Co., 854 S.W.2d
94, 97 (Tenn. 1993). We will not set aside the trial court’s decision unless the court has abused its
discretion. Id. An abuse of discretion exists if the trial court applied an incorrect legal standard or
reached an illogical or unreasonable decision that caused injustice to the complaining party.
Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001). “The abuse of discretion standard does not
permit the appellate court to substitute its judgment for that of the trial court.” Id. The trial court’s
decision will be affirmed “‘so long as reasonable minds can disagree as to propriety of the decision
made.’” Id. (quoting State v. Gilliland, 22 S.W.3d 266, 273 (Tenn. 2000)). The defendant argues
there is a discrepancy between the Parties’ agreement as announced in court and the Judgment of
Divorce. According to the defendant, the discrepancy is the announced agreement called for the sale
of “a house at 890 Butter and Egg Road in Jacksboro,” but the Judgment of Divorce called for the
sale of “House & approximately 1.7 acres of real property located at 890 Butter & Egg Road,


        The trial court: Folks, you all heard the announcements that were made by [the
        Plaintiff’s counsel]. Do both of you agree to those announcements? Do you agree,
        ma’am?

        The Plaintiff: I do.

        The trial court: Sir, do you agree?

        The Defendant: Reluctantly.

        The trial court: I understand, but you understand this announcement is a done deal
        here today?

        The Defendant: Yeah.



                                                  -2-
Jacksboro, Tennessee” (hereinafter, the “Acreage Discrepancy”). The Defendant argues that, when
he consented to the agreement as announced in court, he did not believe that the sale of the “house”
included selling both the house and the 1.7 acres of real property, and argues that due to this
misunderstanding, the agreement as announced, lacked a “meeting of the minds”and had a “fatal
defect.”

                He asserts that the Judgment was based on a fatally defective agreement, or, in the
alternative, the Trial Court should have deleted from the Judgment of Divorce any reference to the
“approximately 1.7 acres of real property.”

              Plaintiff argues the defendant waived this issue by not raising it before the Trial
Court, and that the Judgment of Divorce’s reference to the 1.7 acres, was in fact a part of the
announced agreement.

                  Defendant’s appellate argument rests upon the Acreage Discrepancy, but defendant
never specifically mentioned this discrepancy to the Trial Court. The Defendant’s Motion to
Withdraw Consent to Announcement argued that “the announcement is not [the Defendant’s]
agreement, and Defendant hereby withdraws any and all agreements to said announcement.” The
Defendant’s Motion to Set Aside Divorce asserted three arguments: (1) “the Defendant did not
understand the terms and conditions as announced to the Court, but instead understood that he was
agreeing to give the Plaintiff one half of the assets accumulated during the parties’ marriage, and not
separate property,”2 (2) “due to [the Defendant’s] hearing impairment he was not able to hear the
terms and conditions being announced,” and (3) “many of the terms and conditions set out in the
order filed with the Court contain provisions well in excess of what was even discussed. . . . many
of the assets . . . were not marital property, but were instead [the Defendant’s] separate property . .
. .” Neither of these motions makes specific reference to the Acreage Discrepancy.

               At the hearing on the motions before the Trial Court, defendant argued that the
Judgment of Divorce “exceeded what was announced” and that defendant “was not fully cognizant
of what was being announced.” Defendant’s counsel further argued that the defendant thought that
only marital property, not separate property, would be sold under the agreement. No mention was
made of the Acreage Discrepancy during the arguments, and during defendant’s testimony, counsel
never asked a question regarding the Acreage Discrepancy or the real estate on Butter and Egg Road.
The only asset specifically mentioned in counsel’s questioning was a retirement annuity account.
Most of counsel’s questions concerned the defendant’s inability to hear the agreement as it was
announced in court on February 10, 2005 and the defendant’s explanation for failing to withdraw his
consent at an earlier time. The thrust of defendant’s argument at the hearing was that defendant did
not understand the agreement because he was unable to hear its announcement.

               Apparently, defendant’s argument was so vague that the Trial Court sought

       2
        The Parties’ dispute had yet to go to trial; therefore, there was no record or findings as to
what property was separate and what was marital.

                                                 -3-
clarification from the attorneys. In an attempt to determine how the Judgment of Divorce exceeded
the announced agreement, the trial judge asked Plaintiff’s counsel if the Judgment of Divorce
contained any provisions in addition to those in the announced agreement.3 Plaintiff’s counsel stated
that the only additional provision concerned the involvement of the Court Clerk in the property sale.
The defendant made no objection to this description. In addition, the defendant never specified
which property was allegedly outside the scope of the agreement. Regarding the retirement annuity,
the Trial Judge asked the defense counsel, “Is that what you all were trying to ask questions about
awhile ago that you claim were separate property?” Defense counsel responded, “Well, I wouldn’t
know at all.” Based on the foregoing, we conclude the Acreage Discrepancy issue was not an issue
presented to the Trial Court on the Motion.

                “The jurisdiction of the Court of Appeals is appellate only, and it should consider
only such matters as were acted upon by the trial court.” Foley v. Dayton Bank & Trust, 696 S.W.2d
356, 359 (Tenn. Ct. App. 1985) (citation omitted). Appellate courts decline to consider issues “not
dealt with in the trial court or properly developed in the proof.” E. Sevier County Util. Dist. v.
Wachovia Bank & Trust Co., 570 S.W.2d 850, 854 (Tenn. 1978). Because defendant never called
the Trial Court’s attention to the Acreage Discrepancy, we cannot properly address that issue. The
defendant, by his failure to raise the issue before the trial court, waived the issue. Accordingly, we
affirm the Trial Court’s Judgment denying defendant’s Motions.

                 The cost of the appeal is assessed to Audrey H. Evans.




                                                       ______________________________
                                                       HERSCHEL PICKENS FRANKS, P.J.




       3
           Plaintiff’s counsel drafted the proposed Judgment of Divorce.

                                                 -4-
-5-
