                                                    FILED
                                                       July 29, 1998

                                                   Cecil W. Crowson
                                                  Appellate Court Clerk
THOMAS HORACE JOINER,                   )
                                        )     Stewart Chancery
      Plaintiff/Appellee,               )     No. 94-7-025
                                        )
VS.                                     )
                                        )     Appeal No.
DORA BELL TAYLOR JOINER,                )     01A01-9710-CH-00593
                                        )
      Defendant/Appellant,              )


                  IN THE COURT OF APPEALS OF TENNESSEE
                       MIDDLE SECTION AT NASHVILLE

        APPEAL FROM THE STEWART COUNTY CHANCERY COURT
                      AT DOVER, TENNESSEE

                    HONORABLE ROBERT E. BURCH, JUDGE



Jack Rudolph
107 North Third Street
P.O. Box 925
Clarksville, Tennessee 37041-0925
ATTORNEY FOR PLAINTIFF/APPELLEE

David D. Wolfe
505 West College Street
Dickson, Tennessee 37055
ATTORNEY FOR DEFENDANT/APPELLANT



                VACATED IN PART, AFFIRMED IN PART,

                             AND REMANDED



                              HENRY F. TODD
                              PRESIDING JUDGE, MIDDLE SECTION
CONCUR:
BEN H. CANTRELL, JUDGE
WILLIAM C. KOCH, JR., JUDGE



THOMAS HORACE JOINER,                                  )
                                                       )       Stewart Chancery
         Plaintiff/Appellee,                           )       No. 94-7-025
                                                       )
VS.                                                    )
                                                       )       Appeal No.
DORA BELL TAYLOR JOINER,                               )       01A01-9710-CH-00593
                                                       )
         Defendant/Appellant,                          )



                                      OPINION

         The defendant, Dora Bell Taylor Joiner, has appealed from the judgment of the Trial

Court denying her relief from a divorce decree under the provisions of TRCP Rule 60.02.



         On November 16, 1994, the husband, Thomas Horace Joiner, filed suit for absolute

divorce.



         On November 1, 1995, the wife, Dora Bell Taylor Joiner, filed an answer and counter-

claim.



         On July 18, 1996, the parties filed with the Trial Court a marital dissolution agreement.



         On September 27, 1996, the Trial Court entered a decree of divorce from bed and board

which provided:

                      The Court further finds and grants a Bed and Board
                Divorce between the parties to be converted to an Absolute
                Divorce effective November 1, 1996.

                     IT IS, THEREFORE, ORDERED, ADJUDGED AND
                DECREED BY THE COURT THAT:

                                              -2-
                        1.      A Bed and Board Divorce is hereby granted
                between Thomas Horace Joiner, Plaintiff and Dora Bell
                Taylor Joiner, Defendant on the ground of irreconcilable
                differences. Effective November 1, 1996, this Bed and Board
                Divorce shall be converted to an Absolute Divorce and on
                November 1, 1996 the parties shall be granted an Absolute
                Divorce from each other with Thomas Horace Joiner and
                Dora Bell Taylor Joiner being restored to all of the rights,
                privileges and immunities of an unmarried person, the Court
                declaring them to be divorced on the ground of irreconcilable
                differences.


        On November 8, 1996, the wife filed her motion for relief, and, on March 17, 1997, she

filed an amendment to the motion. After hearing evidence, on September 22, 1997, the Trial

Court entered an order denying relief.



        On appeal, the wife presents a single issue as follows:

                        I.      Did the Trial Court err by overruling the
                defendant’s motion to set aside the final decree of divorce
                filed pursuant to Rule 60.02 of the Tennessee Rules of Civil
                Procedure?


        The decree of divorce from bed and board entered on September 27, 1996, was a final,

appealable judgment as to the divorce from bed and board. However, the peculiar wording (shall

be) prevented it from being a final, appealable judgment of absolute divorce which had not, at

that time, been granted. Until the Trial Court enters an order granting an absolute divorce which

is effective upon entry, the matter of the granting of an absolute divorce will not be the subject

of a final, appealable judgment and the Trial Court will be free to revise its tentative, prospective,

prospective decision to grant an absolute divorce on a future date. TRCP Rule 54.02.



        The authority of divorce courts to convert a divorce from bed and board into an absolute

divorce has long been recognized. Hackney v. Hackney, 28 Tenn., 9 Humph 450. In Linger v.

Linger, 165 Tenn. 525, 565 S.S.2d 749 (1933), the Supreme Court recognized the unfairness of

“enforced celibacy” and ordered a divorce from bed and board converted into an absolute divorce

where there was no hope of reconciliation.




                                                 -3-
       T.C.A. § 36-4-102 reads in part as follows:

               (b)     The circuit, chancery or such other court specially
               empowered to grant divorces also has the power to grant
               absolute divorces to either party where there has been a final
               decree of divorce from bed and board, or of separate
               maintenance for more than two (2) years, upon a petition
               being filed by either party that sets forth the original decree
               for divorce from bed and board, or separate maintenance, and
               that the parties have not become reconciled. The court
               granting the absolute divorce shall make a final and complete
               adjudication of the support and property rights of the parties.
               However, nothing in this subsection shall preclude the divorce
               forum from granting an absolute divorce before the two (2)
               years has expired. (Emphasis supplied)


       In Abney v. Abney, 61 Tenn. App. 531, 456 S.W.2d 364, (1970), this Court held that it

is not mandatory that the absolute divorce be granted on the sole ground of two years separation

without reconciliation, without pleading and proof of other grounds. The same authority held

that the policy of the law is to encourage reconciliation rather than to reward a refusal to be

reconciled. Riggs v. Riggs, 181 Tenn. 633, 184 S.W.2d 9 (1945). See also Matthews v.

Matthews, 24 Tenn. App. 580, 148 S.W.2d 3, (1941).



       Both the statute and the authorities appear to require a further petition of a party and

further consideration by the divorce court as a prerequisite to the conversion of a divorce from

bed and board into an absolute divorce.



       Since the record contains no such supplemental petition, the September 27, 1996,

anticipatory grant of an absolute divorce effective November 1, 1996, was ineffective. The

“shall be” verbiage of the September 27 order was confirmation of this procedural omission.

The anticipatory grant of an absolute divorce cannot be considered a final judgment from which

relief can be granted under Rule 60.02 which provides that it is applicable only to final

judgments.




                                              -4-
       In view of the foregoing, the arguments of the parties as to the correctness of the denial

of Rule 60.02 become moot. That part of the judgment of the Trial Court which denied relief

under Rule 60.02 is affirmed.



       That part of the judgment of the Trial which granted an absolute divorce is vacated

without prejudice to further hearing, consideration and action by the Trial Court upon the subject

of an absolute divorce. The cause is remanded for further proceedings. Costs of this appeal are

taxed against the appellant.



                  VACATED IN PART, AFFIRMED IN PART,

                                    AND REMANDED.



                                               ___________________________________
                                               HENRY F. TODD
                                               PRESIDING JUDGE, MIDDLE SECTION




CONCUR:


_____________________________
BEN H. CANTRELL, JUDGE


_____________________________
WILLIAM C. KOCH, JR., JUDGE




                                               -5-
