                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                  January 19, 2005 Session

           RANDY ALAN BARNES v. AMY ROBERTSON BARNES

                A Direct Appeal from the Circuit Court for Shelby County
               No. CT-003455-03    The Honorable George H. Brown, Judge



                    No. W2004-01426-COA-R3-CV - Filed March 4, 2005


       This is a divorce case. In contemplation of a divorce grounded on irreconcilable differences,
Husband and Wife entered into a Marital Dissolution Agreement. Subsequently, Husband filed a
complaint for divorce, and the complaint, inter alia, disavowed the prior executed Marital
Dissolution Agreement. The divorce case proceeded to trial, and the trial court granted the divorce
on the ground of inappropriate marital conduct and enforced the Marital Dissolution Agreement,
dividing the marital property and debt. Husband appeals. Because Husband-Appellant repudiated
the Marital Dissolution Agreement prior to the entry of the trial court’s Final Decree of Divorce,
there was no agreement between the parties, and the Marital Dissolution Agreement should not have
been enforced. We reverse and remand.


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

W. FRANK CRAWFORD , P.J., W.S., delivered the opinion of the court, in which DAVID R. FARMER ,
J. and HOLLY M. KIRBY, J., joined.

William T. Winchester of Memphis for Appellant, Randy Alan Barnes

Mitchell D. Moskovitz and Adam N. Cohen of Memphis for Appellee, Amy Robertson Barnes

                                            OPINION

       Randy Alan Barnes (“Plaintiff,” “Husband,” or “Appellant”) and Amy Robertson Barnes
(“Defendant,” “Wife,” or “Appellee) were married on August 9, 1997. One child, Emily Michelle
Barnes (d.o.b. 6/2/2000), was born to this marriage. On or about June 4, 2003, the parties entered
into a Marital Dissolution Agreement (“MDA”), which Wife had obtained on the internet. Mr.
Barnes received a copy of the MDA approximately three or four weeks prior to the June 4, 2003
execution date. Neither party was represented by counsel at the time of the execution of the MDA.
The MDA provided, inter alia, for Mr. Barnes to pay child support and alimony, and for a division
of the marital property.
        On June 18, 2003, Mr. Barnes filed a “Complaint for Absolute Divorce” against Ms. Barnes.
The Complaint reads, in pertinent part, as follows:

               Plaintiff charges that:

               1. Irreconcilable differences have arisen between the parties and
               Plaintiff is entitled to an absolute divorce from the Defendant on the
               grounds of irreconcilable differences. T.C.A. 36-4-101(14).

               2. Defendant has been guilty of inappropriate marital conduct.
               T.C.A. 36-4-101(11).

               3. Defendant has been guilty of adultery. T.C.A. 36-4-101(3).

               *                                *                           *

               WHEREFORE, PREMISES CONSIDERED, PLAINTIFF PRAYS:

               *                                 *                              *

               6. That the Marital Dissolution Agreement and Permanent Parenting
               Plan previously executed by the Plaintiff be disavowed and if filed,
               set aside.

        On July 9, 2003, Ms. Barnes filed her “Answer to Complaint for Absolute Divorce and
Counter-Complaint for Absolute Divorce” (the “Answer”). Although the Answer does not
specifically mention the MDA, it does deny that Mr. Barnes is entitled to the relief sought in his
Complaint, including paragraph six thereof, see supra. Ms. Barnes’ counter-complaint does,
however, pray that the trial court “equitably divide, distribute or assign the marital property in
accordance with T.C.A. §36-4-121.”

       Following discovery and mediation, on February 21, 2004, Ms. Barnes filed a “Motion to
Enforce Marital Dissolution Agreement.” This Motion reads, in relevant part, as follows:

               2. Wife alleges that such an agreement is a valid and enforceable
               contract, and courts are restrained from disregarding or annulling
               same. Matthews v. Matthews, 148 S.W.2d 3, 11 (Tenn. App. 1940).

               3. Husband has testified that there are only two (2) reasons why he
               believes the MDA should not be enforced. (Deposition of Husband,
               pp. 49; 90-91). The first reason asserted by Husband is that he was


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under duress when he executed the agreement (Deposition of
Husband, p. 49). The second reason asserted by Husband was that he
believes that Wife committed adultery after the agreement was
executed. (Deposition of Husband, p. 49).

4. At the time Husband executed said MDA, Husband’s
emotional/psychological well being was good, and Husband was not
under the care of any psychologist, psychiatrist, or social worker,
because Husband did not deem same necessary. (Deposition of
Husband, p. 34). Husband was employed full time as a Certified
Public Accountant at the time Husband signed said MDA, and was
fully capable of transporting himself to an attorney’s office to review
the document prior to signing same. (Deposition of Husband, p. 33).

5. Husband has testified that his only support for the contention that
he signed the MDA under duress is that Wife allegedly told Husband
to sign the MDA, or Husband would not see the parties’ child until a
Court made her bring the child back. Nevertheless, Husband admits
that Husband himself had hand-written a Permanent Parenting Plan
which the parties likewise executed on June 4, 2003. Moreover,
Husband filed a Complaint for Absolute Divorce just two (2) weeks
later, on June 18, 2003. Said Complaint makes no allegation
whatsoever concerning Wife’s alleged threat, nor does it allege that
Husband was under any type of duress when he executed the MDA.
Based upon these factors, along with those set forth in Paragraph Four
(4) hereinabove, Husband cannot substantiate his allegation of duress
as a matter of law.

6. Wife further submits that Husband’s second basis for rescission of
the contract is wholly insufficient as a matter of law. Specifically,
Husband asserts he learned that Wife allegedly committed adultery
after the agreement was executed. (Deposition of Husband, p. 49).
Wife respectfully submits that it has long been established that
adultery is not a valid defense to the enforcement of a contract.
Williams v. Williams, 236 S.W. 926, 937 (Tenn. 1922).
Nevertheless, Husband further testified that prior to the signing of the
MDA, Husband had suspicions that Wife was committing adultery.
(Deposition of Husband, p. 58).

7. Wife alleges that based upon all of the foregoing, there is no basis,
as a matter of law, to rescind the MDA. Wife thus alleges that this
Honorable Court should enforce the MDA in all respects, as a valid
and binding contract made by and between the parties. In that the


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               parties have heretofore entered into a Permanent Parenting Plan,
               which has been filed with this Honorable Court, the only remaining
               issue for this Honorable Court to determine is grounds for divorce.

         A hearing before the trial court was held on May 5, 2004. At this hearing, Ms. Barnes
testified that she had “engaged in a relationship with another individual during the course of [the]
marriage.” Mr. Barnes’ attorney argued that the parties’ conduct throughout the litigation evinced
the parties’ belief that the MDA was not to be enforced. Specifically, Mr. Barnes asserts that the
parties’ submission to mediation constituted a repudiation of the MDA; that the fact that the parties
engaged in discovery provides evidence that there was no meeting of the minds in the MDA. Mr.
Barnes also argued that he was under duress at the time he signed the MDA in that Ms. Barnes had
allegedly threatened to move away with the child. Mr. Barnes further contends that Wife’s adultery
should negate the MDA.

      On May 18, 2004, the trial court entered its “Order on Motion to Enforce Marital Dissolution
Agreement.” This Order reads, in pertinent part, as follows:

               1. This Honorable Court expressly rejects the notion that
               Plaintiff/Counter-Defendant, Randy Barnes (hereinafter “Husband”)
               was under duress at the time he executed the Marital Dissolution
               Agreement on June 4, 2003.

               2. This Honorable Court expressly finds that adultery is not a suitable
               defense to the enforcement of the parties’ Marital Dissolution
               Agreement.

               3. This Honorable Court expressly rejects the notion that Wife’s
               request for and/or submission to mediation constitutes a rescission or
               repudiation by Wife of the Marital Dissolution Agreement executed
               by the parties on June 4, 2003.

               4. In that this Honorable Court has found that Husband has no valid
               defense to the enforcement of the Marital Dissolution Agreement, this
               Honorable Court expressly finds that the Marital Dissolution
               Agreement executed by the parties on June 4, 2003 is a valid,
               enforceable contract....

         On the same day, the trial court entered a “Final Decree of Absolute Divorce” (the “Final
Decree”), granting the parties a divorce on the grounds of inappropriate marital conduct. Because
the trial court found the MDA to be a “valid, enforceable contract,” the issue of marital assets and
liabilities was resolved in accordance with the MDA.




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       Mr. Barnes appeals from the Final Decree and raises three issues for review which we
perceive to constitute the single issue of whether the trial court erred in enforcing the Marital
Dissolution Agreement executed by the parties prior to the filing of the divorce complaint.

        To the extent that the Final Decree adopts the MDA, it is a consent judgment (i.e. the division
of marital property and debt is, in fact, an enforcement of the agreement between these parties as
evidenced by the MDA). Consequently, it appears to this Court that the real issue presented by this
appeal is whether the trial court was in a position to enter a valid consent judgment when it readily
appears, from the record, 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 trial court.

        From the record, it is undisputed that, although Mr. Barnes signed the MDA on June 4, 2003,
he expressed his repudiation of the MDA fourteen days later when he filed his Complaint for divorce
on grounds of irreconcilable differences, inappropriate marital conduct, and adultery and specifically
prayed that “the Marital Dissolution Agreement...previously executed ...be disavowed and if filed,
set aside.” This prayer for relief functioned to put all parties and the trial court on notice that Mr.
Barnes was not in agreement with Ms. Barnes concerning the MDA.

        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


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                        of the parties at the time the agreement receives the
                        sanction of the court or is rendered and promulgated
                        as a judgment.

Id. at 599 (citations omitted).

        The Harbour Court further states:

                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 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 238263 (Tenn. Ct. 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, at which time the trial court was aware that plaintiff was no
longer in agreement. The trial court entered a final judgment of divorce over plaintiff's objections.
In Elrod, as in this case, 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 according to the agreement. Id. at *1. We are of the same opinion in this case.

       For the foregoing reasons, we reverse the Final Decree to the extent that it enforces or
incorporates the MDA. We remand for such further proceedings as may be necessary consistent with
this Opinion. Costs of this appeal are assessed against the Appellee, Amy Robertson Barnes.


                                                __________________________________________
                                                W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.




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