                   IN THE COURT OF APPEALS OF TENNESSEE
                        WESTERN SECTION AT JACKSON
_____________________________________________________________________________

CHARLES STEVEN DENBOW,                 Chester Chancery No. 8617
                                       C.A. No. 02A01-9410-CH-00238
      Plaintiff/Appellee,
                                             Hon. Joe C. Morris, Judge

v.

SANDRA KAY DENBOW,
                                                               FILED
                                                                  May 9, 1996
      Defendant/Appellant.
                                                              Cecil Crowson, Jr.
                                                               Appellate C ourt Clerk
MICHAEL L. WEINMAN, Tatum & Tatum, Henderson,
Attorney for Defendant/Appellant.

MIKE MOSIER, Jackson, Attorney for Plaintiff/Appellee.

REVERSED AND REMANDED

Opinion Filed:
_____________________________________________________________________________

TOMLIN, Sr. J.

      This is a domestic relations case with an unusual twist. On May 3, 1994,

plaintiff filed a complaint in the Chancery Court of Chester County seeking a

divorce from defendant on the grounds of irreconcilable differences. At the same

time, plaintiff filed a marital dissolution agreement (“agreement”) executed by the

parties on May 2, 1994. The agreement provided that the parties would have joint

custody of their two minor children, then ages 13 and 15, with the children residing

with plaintiff. No child support was to be paid by either party. In addition, the

agreement did not make any allowances for alimony and purported to divide the

real and personal property between the parties. Plaintiff was represented by

counsel at the time the parties executed the agreement, but defendant was not.

Shortly thereafter, defendant employed counsel and on June 3, 1994, filed a

motion to set aside the agreement. In her motion defendant contended that she

was forced to sign the agreement under duress and fear of bodily harm. She also

contended that the agreement did not adequately provide for the care and

maintenance of the parties’ minor children or make an equitable settlement of the

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parties’ property as required by T.C.A. § 36-4-103(b) (1991). Defendant’s motion

asked the court to set the agreement aside and allow the parties to proceed with

the divorce as if the agreement had never been executed.



      On August 17, 1994, the chancellor held a hearing on the motion to set aside

the agreement. The parties were the only witnesses to testify. On August 31, 1994,

the trial court entered a final decree of divorce wherein the court ratified and

approved the agreement and awarded the parties an absolute divorce. This

appeal followed. Defendant has presented two issues for our consideration:



      (1) Whether the trial court erred in refusing to set aside the Marital
      Dissolution Agreement because Mrs. Denbow was acting under
      duress, coercion, and undue influence when she signed the
      agreement; and

      (2) Whether the trial court erred in entering a final decree of divorce
      in this matter on the grounds of the irreconcilable differences since
      the marital dissolution agreement executed by the parties did not
      adequately provide for the custody and maintenance of the children
      or provide for an equitable settlement of the property rights between
      the parties as required by T.C.A. § 36-4-103(b).



      Notwithstanding the above, it appears to this court that the real issue

presented by this appeal is whether the chancellor was in a position to enter a

valid consent judgment when it readily appeared before the court that there was

no agreement between the parties at the time the judgment was entered. In our

opinion, this was error on the part of the chancellor.



      It is undisputed from this record that although defendant signed the

agreement on May 2, 1994, she expressed her repudiation of the agreement 32

days later by filing a motion to set aside the agreement and try the case as a

contested divorce. Her repudiation was further made clear to the court by virtue

of her testimony in open court on August 17, 1994.



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      This court is of the opinion that the resolution of this issue is governed by the

principles set forth by our supreme court in the case of Harbour v. Brown for Ulrich,

732 S.W.2d 598 (Tenn. 1987). Harbor involved a suit and a countersuit wherein

plaintiff sought specific performance of an alleged real estate contract along with

an injunction against a threatened foreclosure action under an existing deed of

trust. On the date the case was set for trial the parties announced to the court

that they had reached an agreement and would submit an order of compromise

and dismissal. The terms of the compromise were not announced to the court.

Before entry of an order in the case, it was brought to the court’s attention that

defendant had withdrawn his consent to the compromise. The court nonetheless

entered an Order of Compromise and Dismissal. Defendant moved to vacate the

order and to reschedule the case for trial on the merits, but the trial court overruled

the motion and once again dismissed the case with prejudice. Id.



      In reversing the trial court, the Harbour court set forth its rationale as follows:



           The resolution of disputes by agreement of the parties is to be
      encouraged. But a valid consent judgment can not be entered by
      a court when one party withdraws his consent and this fact is
      communicated to the court prior to entry of the judgment.

            The general rule defining the power of a court to enter a
      consent judgment is set forth in 49 C.J.S. Judgments § 174(b), as
      follows:

             The power of the court to render a judgment by consent
             is dependent on the existence of the consent of the
             parties at the time the agreement receives the sanction
             of the court or is rendered and promulgated as a
             judgment.



Id. (citations omitted). The court further stated:



             A valid consent judgment cannot be rendered by a court
      when the consent of one of the parties thereto is wanting. It is not
      sufficient to support the judgment that a party’s consent thereto may
      at one time have been given; consent must exist at the very moment

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      the court undertakes to make the agreement the judgment of the
      court.



Id. at 600 (citing Burnaman v. Heaton, 240 S.W.2d 288, 291 (Tex. 1951)).



      In Elrod v. Elrod, No. 03A01-9108-GS-260, 1991 WL 238233 (Tenn. App. Nov. 18,

1991), the eastern section of this court applied the principles announced in

Harbour to a domestic relations case. In Elrod, the parties negotiated a settlement

of all issues prior to trial which they orally announced to the court. At that time the

parties had not reduced their agreement to writing in the form of a marital

dissolution agreement. No further proceedings were held until a final judgment

was presented to the court for approval. The trial court entered a final judgment

of divorce over plaintiff’s objections and without a signed marital dissolution

agreement. In Elrod, as in this case, there is no question but that the trial judge

knew before he entered the final decree of divorce that a party had repudiated

the agreement. The Elrod court found that the trial judge was without authority to

enter a final decree. Id. at *1. We are of the same opinion in this case.



      Accordingly, the judgment of the trial court granting the parties a divorce

on the grounds of irreconcilable differences and approving the agreement is

reversed. This case is remanded to the trial court. In connection with the remand,

we are constrained to note the contents of defendant’s motion to consider post

judgment facts, which plaintiff did not oppose. The parties’ son, Wesley Denbow,

submitted an affidavit stating that defendant and he were attacked by plaintiff

and his girlfriend on Thanksgiving Day 1994 when they went to plaintiff’s house to

retrieve some of Wesley’s personal belongings. Prior to that incident, Wesley had

moved in with his mother and contemplated living with her after his parents’

divorce became final. Wesley Denbow also stated that his brother was also living

with his mother at that time.


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      For the reasons herein stated, the judgment of the trial court is as to all

matters reversed. This cause is remanded to the chancery court of Chester County

for a hearing and determination on the merits. The agreement stands repudiated

by this record. Pursuant to provisions of T.R.A.P. 42, this case is to be remanded to

the trial court as soon as reasonably possible for such further and other

proceedings that may be desirable and necessary, not inconsistent with the

provisions of this opinion. Costs in this cause on appeal are taxed to plaintiff, for

which execution may issue if necessary.



                                       ______________________________________
                                       TOMLIN, Sr. J.



                                       ______________________________________
                                       CRAWFORD, P.J.



                                       ______________________________________
                                       LILLARD, J.




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