                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                JANUARY 18, 2006 Session

                     LESLYN ELIZABETH MILLER BALLEW
                         v. JOHN MICHAEL BALLEW

                 Direct Appeal from the Chancery Court for Shelby County
                    No. CH-04-1512-3     D. J. Alissandratos, Chancellor



                    No. W2005-00337-COA-R3-CV - Filed March 22, 2006


In this appeal, we are asked to determine the validity of a consent judgment entered by the chancery
court granting a divorce to the parties. At trial, the parties voluntarily submitted their case to
mediation. At the conclusion of the mediation, the mediator dictated the settlement terms onto a tape
recorder, and the parties acknowledged onto the tape recorder that these terms were the
understanding of the parties. The chancery court found that this acknowledgment was a modification
of the mediation agreement and that the parties entered into a settlement agreement. On appeal, the
husband asserts that the chancery court erred finding a settlement agreement because the mediation
agreement specifically required that the parties would not be bound unless a written, executed
settlement agreement was entered into by the parties. Second, the husband contends that, even if an
oral settlement agreement was effective against the parties in this case, he had properly repudiated
the agreement to his wife and the chancery court before the chancery court entered its judgment. In
addition, both parties have requested attorney’s fees on appeal. We reverse and remand for further
proceedings and decline to award attorney’s fees to either party.


  Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Chancery Court Reversed and
                                        Remanded

ALAN E. HIGHERS, J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., W.S.,
and DAVID R. FARMER , J., joined.

Barry J. McWhirter, Bradley W. Eskins, Memphis, TN, for Appellant

Kay Farese Turner, Martin W. Cash, Jr., Memphis, TN, for Appellee
                                            OPINION

                              I. FACTS & PROCEDURAL HISTORY

         On July 29, 2004, Leslyn Elizabeth Miller Ballew (“Wife” or “Appellee”) filed for divorce
from her husband, John Michael Ballew (“Husband” or “Appellant” or, collectively with Wife, the
“Parties”). Thereafter, Husband filed an answer and counter claim for divorce. Instead of going to
trial for their divorce, Husband and Wife entered into an agreement entitled “Matrimonial Mediation
Agreement” (“MMA”) where the Parties agreed to mediate their divorce and reduce the subsequent
agreement to writing. After the Parties purportedly reached an amicable solution at the mediation
and agreed to be divorced, the mediator verbally announced onto a tape recorder the terms of the
settlement agreement instead of reducing the settlement agreement to writing as required by the
MMA. When the mediator finished announcing the terms of the settlement agreement onto the tape
recorder, the Parties and their respective counsel acknowledged on the tape recorder that the
agreement as stated by the mediator was the understanding of the Parties.

       Approximately one month after the mediation, Husband, through his counsel, informed Wife
that he believed that no settlement agreement had been reached, and that, even if it had, he
repudiated the agreement. During the month preceding Husband’s repudiation, according to Wife,
while Wife began separating the Parties’ personal property that was to be divided according to the
terms of the settlement agreement and continued to pay for Husband’s weekly apartment and provide
Husband support, Wife’s counsel began drafting a marital dissolution agreement, a permanent
parenting plan, an affidavit for Wife, a quit claim deed to convey Husband’s interest in the marital
home to Wife, and a final decree of divorce.

       Thereafter, Wife filed a motion to enforce the settlement agreement with the chancery court
in which she sought to have the terms of the settlement agreement that were recited by the mediator
onto the tape recorder enforced. Husband filed a response to Wife’s motion which stated that no
agreement had been reached because the Parties never reduced their agreement to writing as required
by the MMA, and, in the alternative, that if the chancery court found that an agreement had been
reached, Husband was providing notice to the chancery court that he has repudiated any agreement
between the Parties. The chancery court found that the settlement agreement existed and was
enforceable, and, despite Husband’s repudiation of the settlement agreement, entered a final divorce
decree and permanent parenting plan based on the oral settlement agreement.




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                                      II. ISSUES PRESENTED

       Appellant has timely filed his notice of appeal and presents the following issues for review:
       1.     Whether an alleged oral agreement reached at mediation that was not reduced to a
              signed writing and was repudiated prior to any judicial consideration is an
              enforceable contract;
       2.     Whether Appellant is entitled to attorney’s fees and costs incurred as a result of this
              appeal.

Additionally, Appellee presents the following issue for review:

       3.      Whether Appellee is entitled to attorney’s fees and costs incurred as a result of this
               appeal.

For the following reasons, we reverse the decision of the chancery court and remand for further
proceedings. In addition, we decline to award attorney’s fees to either Appellant or Appellee.

                                   III.   STANDARD OF REVIEW

       This Court reviews findings of fact by a trial court sitting without a jury under a de novo
standard with a presumption of correctness for those findings. Tenn. R. Civ. P. 13(d) (2005). We
review a trial court’s conclusions of law under a de novo standard upon the record with no
presumption of correctness for the trial court’s conclusions. Union Carbide Corp. v. Huddleston,
854 S.W.2d 87, 91 (Tenn. 1993) (citing Estate of Adkins v. White Consol. Indus., Inc., 788 S.W.2d
815, 817 (Tenn. Ct. App. 1989)).

                                          IV. DISCUSSION

                                    A.    Settlement Agreement

      On appeal, Appellant asserts that the chancery court erred when it enforced a settlement
agreement between the parties and entered a divorce decree based on that settlement agreement.

        First, Appellant contends that the chancery court erred when it entered a divorce decree based
on the Parties’ oral agreement because the MMA specifically required that

               [n]o party shall be bound by anything said or done at the mediation
               unless a written statement is reached and executed by all necessary
               parties. If a settlement is reached, the agreement shall be reduced in
               writing in written form by the Mediator and in legal form by counsel
               for the parties. Each of the parties expressly agrees that they reserve
               their right to a trial in the event they are unable to reach a settlement
               of their issues.


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At trial, the chancery court found that the Parties orally modified the above provision of the MMA
to allow the Parties to enter into an oral settlement agreement.

        Although the MMA stated that any settlement agreement had to be in writing in order to bind
the Parties, the MMA did not have a provision requiring that any modification of the MMA had to
be in writing.

        “After a written contract is made, it may be modified by the express words of the parties in
writing, as well as by parol.” Galbreath v. Harris, 811 S.W.2d 88, 91 (Tenn. Ct. App. 1990) (citing
Co-Operative Stores Co. v. U.S. Fid. Guar. Co., 195 S.W. 177, 180 (1917)). However, “[w]hether
written or oral, modifications of written contracts must be with the consent of both parties.” Id. at
92 (citing V.L. Nicholson Co. v. Transcon Inv. & Pin. Ltd., Inc., 595 S.W.2d 474, 482 (Tenn. 1980).
Further, “[t]he modification of a contract, being a new contract, requires consideration to support it.”
17A C.J.S. Contracts § 411 (1999). “An oral contract changing the terms of a written contract must
be of such specificity and directness as to leave no doubt of the intention of the parties to change
what they previously solemnized by formal document.” 17A C.J.S. Contracts § 412 (1999).

       At trial, neither party presented evidence at trial as to the alleged oral modification of the
MMA. Rather, the chancery court relied on statements of counsel as to what transpired at the
mediation when rendering its decision.

       “Statements of counsel are not evidence or a substitute for testimony, and judgment based
upon neither evidence nor stipulation of the parties may be vacated if evidence is the basis of the
holding.” Hathaway v. Hathaway, 98 S.W.3d 675, 681 (Tenn. Ct. App. 2002) (citing State v.
Cleveland, 959 S.W.2d 548, 555 (Tenn. 1997); Metro. Gov't of Nashville v. Shacklett, 554 S.W.2d
601, 605 (Tenn. 1977); Valley Util. Dist. v. Cantwell, No. M2001-00627-R3-CV, 2002 Tenn. App.
LEXIS 30 (Tenn. Ct. App. Jan. 15, 2002)).

        At the hearing on Appellee’s motion to enforce the settlement agreement, counsel for the
Parties stipulated that the mediator had relayed all the terms of the agreement onto the tape recorder
and that the Parties acknowledged that these were the terms they had agreed upon at the mediation.
These statements are insufficient to show that the Parties intended to modify the MMA.

        However, “[m]anifestations of assent that are in themselves sufficient to conclude a contract
will not be prevented from so operating by the fact that the parties also manifest an intention to
prepare and adopt a written memorial thereof; but the circumstances may show that the agreements
are preliminary negotiations.” RESTATEMENT (SECOND ) OF CONTRACTS § 27 (1979). Thus,

               [p]arties who plan to make a final written instrument as the
               expression of their contract necessarily discuss the proposed terms of
               the contract before they enter into it and often, before the final writing
               is made, agree upon all the terms which they plan to incorporate


                                                  -4-
                   therein. This they may do orally . . . . It is possible thus to make a
                   contract the terms of which include an obligation to execute
                   subsequently a final writing which shall contain certain provisions.
                   If parties have definitely agreed that they will do so, and that the final
                   writing shall contain those provisions and no others, they have then
                   concluded the contract.

Id. § 27 cmt. a. Further,
                [i]t is quite possible for parties to make an enforceable contract
                binding them to prepare and execute a subsequent final agreement.
                In order that such may be the effect, it is necessary that agreement
                shall have been expressed on all essential terms that are to be
                incorporated in the document. That document is understood to be a
                mere memorial of the agreement already reached. If the document or
                contract that the parties agree to make is to contain any material term
                that is not already agreed on, no contract has yet been made; the
                so-called “contract to make a contract” is not a contract at all.

Engenius Entm’t, Inc. v. Herenton, 971 S.W.2d 12, (Tenn. Ct. App. 1997) (quoting 1 Arthur L.
Corbin et al., Corbin on Contracts § 2.8, at 133-34 (Rev. ed. 1993) (footnotes omitted)). In addition,
“if either party knows or has reason to know that the other party regards the agreement as incomplete
and intends that . . . until the whole has been reduced to another written form, the preliminary
negotiations and agreements do not constitute a contract.” RESTATEMENT (SECOND ) OF CONTRACTS
§ 27 cmt. b (1979).

        In this case, while the Parties intended to be bound only by a executed written agreement, the
Parties stipulated at trial that they agreed on all essential terms, reaching a settlement. Thus, the
Parties have made a contract, the terms of which include an obligation to execute a final, written
agreement.1

       Second, Appellant contends that if a settlement agreement did exist, Appellant properly
repudiated the settlement agreement, precluding the entering of a consent judgment based on that
settlement agreement.

       As the Tennessee Supreme Court noted in Harbour v. Brown for Ulrich, 732 S.W.2d 598
(Tenn. 1987), “a valid consent judgment can not [sic] be entered by a court when one party

         1
            W e are mindful that part of the settlement agreement requires Appellant to sell his interest in the marital home
to Appellee. Normally, the statute of frauds would bar an oral agreement for the sale of land. Tenn. Code Ann. § 29-2-
101(4) (2000). “The statute of frauds, however, does not render oral contracts for the sale of land void ab initio. Instead,
such contracts are merely voidable at the election of either party.” Anderson v. Hacks Crossing Partners, 3 S.W .3d 482,
485 (Tenn. Ct. App. 1999) (citations omitted). “If one of the parties fails to raise the statute of frauds as a defense, . .
. the court is required to enforce an oral contract for the sale of land.” Id. at 485-86 (citations omitted). Here, at trial,
neither Appellant nor Appellee raised the statute of frauds as a defense.


                                                            -5-
withdraws his consent and this fact is communicated to the court prior to entry of the judgment.”
Id. at 599 (citations omitted). However,

               [m]arital dissolution agreements are contracts. Johnson v. Johnson,
               37 S.W.3d 892, 896 (Tenn. 2001); Wade v. Wade, 115 S.W.3d 917,
               924 (Tenn. Ct. App. 2002). They provide a vehicle for divorcing
               parties to, among other things, provide “for the equitable settlement
               of any property rights between the parties.” See Tenn. Code Ann. §
               36-4-103(b) (2001). While these contracts become absolutely binding
               and enforceable after approval by the trial court, this court has
               recognized that parties may be permitted to withdraw from these
               agreements before they have been approved by the court, as long as
               one or both parties have not relied on the agreement to their
               detriment. Denbow v. Denbow, 1996 Tenn. App. LEXIS 278, No.
               02A01-9410-CH-00238, 116 WL 243894, at *1-2 (Tenn. Ct. App.
               May 9, 1996) (No Tenn. R. App. P. 11 application filed); Sutton v.
               Sutton, 1994 Tenn. App. LEXIS 171, No. 03A01-9309-CH-00315,
               1994 WL 108927, at *1 (Tenn. Ct. App. Mar. 31, 1994) (No Tenn. R.
               App. P. 11 application filed).

Altman v. Altman, No. M2003-02707-COA-R3-CV, 2005 Tenn. App. LEXIS 207, at *5-6 (Tenn.
Ct. App. Apr. 7, 2005) (perm. app. denied); see also Nahon v. Nahon, 2005 Tenn. App. LEXIS 780,
at *11-12 (Tenn. Ct. App. Dec. 14, 2005) (no perm. app. filed).

        In this case, Appellant, through his counsel, informed Appellee that, if any settlement
agreement had been reached, he was expressly repudiating the agreement. Appellant communicated
this repudiation to the chancery court in his memorandum of law in response to Appellee’s motion
to enforce the settlement agreement. On appeal, Appellee concedes this fact. However, Appellee
also contends that she partially performed to her detriment her duties pursuant to the settlement
agreement.

        In her motion to enforce the settlement agreement at trial and in her brief on appeal, Appellee
has alleged different actions that she completed to partially perform the settlement agreement to her




                                                 -6-
detriment.2 Appellee presented no evidence at trial, however, to support her allegations that she
partially performed her obligations under the settlement agreement.

       “Allegations in pleadings are not, of course, evidence of the facts averred. Unless such facts
are admitted or stipulated, they must be proved by documents, affidavits, oral testimony or other
competent evidence.” Hillhaven Corp. v. State, 565 S.W.2d 210, 212 (Tenn. 1978). Thus, we
cannot say that Appellee detrimentally relied on the settlement agreement as to prevent Appellant
from repudiating the agreement. Accordingly, we reverse the decision of the chancery court and
remand for further proceedings.

                                         B.    Attorney’s fees on Appeal

       Both Appellant and Appellee have requested attorney’s fees on appeal. “Attorney’s fees are
only awarded if provided for by contract, statute, or a recognized ground of equity.” Parchman v.
Parchman, No. W2003-01204-COA-R3-CV, 2004 Tenn. App. LEXIS 768, at *15 (Tenn. Ct. App.
Nov. 17, 2004) (quoting Austin Powder Co. v. Thompson, No. 03A01-9607-CV-00229, 1996 Tenn.
App. LEXIS 805, at *5 (Tenn. Ct. App. Dec. 16, 1996)).

        Neither Appellant nor Appellee has requested attorney’s fees for frivolous appeal pursuant
to section 27-1-122 of the Tennessee Code. Instead, it appears that both Appellant and Appellee
have requested attorney’s fees based on the fact that this is a divorce case. “In divorce cases the
recovery of attorney’s fees is permitted by statute, which provides that a spouse seeking enforcement
of an alimony or custody award may be granted attorney’s fees.” Id. (citing Tenn. Code Ann. §
36-5-103(c) (2003)).

        This appeal, however, does not deal with the enforcement of the provisions of a divorce
decree. Rather, this appeal deals with the validity of the consent judgment granting divorce. “The
decision of whether to award attorney’s fees on appeal rests solely within the discretion of this
Court.” Id. at *15-16 (citing Tenn. Code Ann. § 36-5-103(c) (2003); Archer v. Archer, 907 S.W.2d
412, 419 (Tenn. Ct. App. 1995)). As such, when this Court considers whether to award attorney’s
fees on appeal, we must be mindful of “the ability of the requesting party to pay the accrued fees,
the requesting party’s success in the appeal, whether the requesting party sought the appeal in good
faith, and any other equitable factor that need be considered.” Dulin v. Dulin, No.


         2
             W e are mindful that, in addition to the actions alleged in her motion to enforce the settlement agreement,
Appellee has also listed several actions by Appellant that she alleges constitute performance of the settlement agreement.
However, Appellant performed these actions pursuant to the divorce decree entered by the chancery court. Appellee
asserts that because Appellant failed to stay the judgment of the chancery court and has complied with the divorce decree
in all respects, the oral settlement agreement is enforceable. It was Appellant’s choice to stay the decision of the
chancery court. Appellant was not required to stay the chancery court’s decision. Further, we decline to hold that
Appellant’s compliance would constitute performance on his part to form a contract. Since Appellant chose not to stay
the chancery court’s decision, he would have been in contempt had he not complied with the chancery court’s order.
Given that choice, we cannot conclude that his actions constituted partial performance to preclude him from stating that
a binding settlement agreement was not reached.


                                                           -7-
W2001-02969-COA-R3-CV, 2003 Tenn. App. LEXIS 628, at *26-27 (Tenn. Ct. App. Sept. 3, 2003)
(citing Folk v. Folk, 210 Tenn. 367, 357 S.W.2d 828, 829 (Tenn. 1962)); see also Parchman, 2004
Tenn. App. LEXIS 768 at *15-16. In this case, we find it equitable to decline to award both
Appellant and Appellee attorney’s fees on appeal.

                                         V. CONCLUSION

        For the aforementioned reasons, we reverse the decision of the chancery court and remand
for further proceedings. Further, we decline to award attorney’s fees to either Appellant or Appellee.
Cost of this appeal are taxed to Appellee, Leslyn Elizabeth Ballew, for which execution may issue
if necessary.



                                                       ___________________________________
                                                       ALAN E. HIGHERS, JUDGE




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