             IN THE COURT OF APPEALS OF TENNESSEE
                         AT NASHVILLE

                                                         FILED
                                                         December 8, 1998

JAMES ROWLAND MOORE,                      )             Cecil W. Crowson
                                          )            Appellate Court Clerk
      Plaintiff/Appellant,                )
                                          )   Appeal No.
                                          )   01-A-01-9708-CV-00444
VS.                                       )
                                          )   Davidson Circuit
                                          )   No. 94D-2612
KAREN OWEN MOORE,                         )
                                          )
      Defendant/Appellee.                 )


       APPEALED FROM THE CIRCUIT COURT OF DAVIDSON COUNTY
                    AT NASHVILLE, TENNESSEE

                 THE HONORABLE MURIEL ROBINSON, JUDGE




LINDA F. BURNSED
AMY BRYSON SMITH
424 Church Street, Suite 1750
Nashville, Tennessee 37219
      Attorneys for Plaintiff/Appellant

SANDRA JONES
213 Third Avenue, North
Nashville, Tennessee 37201
      Attorney for Defendant/Appellee




                             REVERSED AND REMANDED




                                              BEN H. CANTRELL
                                              PRESIDING JUDGE, M.S.


CONCUR:
KOCH, J.
CAIN, J.

                                OPINION
              After a 1996 divorce by the Circuit Court of Davidson County the

husband filed an independent damages action in the chancery court, alleging that the

wife fraudulently induced him to enter into the divorce settlement. The wife filed a

Rule 60.02 motion in the divorce court seeking a declaration that she was not guilty

of fraud. The divorce court ruled that the chancery court was bound by the circuit

court’s judgment and that the husband must pay $2500 in attorney’s fees to the wife

for services in the Rule 60.02 motion. We reverse.



                                            I.



              The parties were divorced in 1996 by an order of the Circuit Court of

Davidson County. Prior to the entry of the divorce, the parties negotiated a settlement

of the marital home. The wife agreed to pay the husband $9,000 for his equitable

interest in the home in exchange for a quitclaim of that interest to the wife. This

agreement was formalized by an agreed order entered in the divorce court on July 5,

1995. The final order granting the divorce and disposing of the remaining issues was

entered on May 20, 1996.



              On or about January 17, 1997, Mr. Moore filed a complaint in the

Davidson    County    Chancery     Court     accusing   Ms.   Moore    of   fraudulent

misrepresentations in the marital home transaction.       Specifically, the complaint

alleged that Ms. Moore was a real estate agent and that she and her attorney

represented to Mr. Moore that his interest in the home amounted to $9,000 when they

knew such representations were false and that the value was much higher. The

complaint further alleges that the $9,000 value was based on a total value for the

home of $215,000, as represented by Ms. Moore, but that she sold the house in

September of 1995 for $238,500. The complaint sought compensatory and punitive

damages and attorney’s fees and asked for a jury to try the issues.




                                           -2-
               On May 2, 1997 Ms. Moore filed a motion to dismiss or in the alternative,

for summary judgment in the chancery court. She asserted that Mr. Moore was

estopped from raising the fraud issue in the chancery court, that the judgment of the

divorce court was res judicata, and that the divorce court had exclusive jurisdiction

over the question. At some point not clear from the record, Ms. Moore answered the

complaint and raised the same defenses that she raised in her prior motions.



               On May 2, 1997 Ms. Moore also filed a motion in the divorce court

seeking a review under Rule 60.02, Tenn. R. Civ. Proc. to determine “whether fraud

was perpetrated upon the Court and Defendant in this cause.” The motion also

asserted that Mr. Moore’s chancery court action was frivolous and that the divorce

court should award sanctions pursuant to Rule 11, Tenn. R. Civ. Proc.



               The chancery court overruled Ms. Moore’s motion to dismiss. The court

held that the complaint stated a cause of action for fraud, but the court deferred a

ruling on the other matters pending before it until the divorce court ruled on the Rule

60.02 motion.



               The divorce court heard the Rule 60.02 motion on July 11, 1997 and

thereafter entered an order holding (1) that “Mr. Moore’s ‘equitable interest’ in the

parties real property is res judicata and binding on the Chancery Court,” and (2) that

the June 23, 1995 agreed order “is not contractual and does not constitute a contract

but is part of the final resolution of the divorce action and is part of the Final Decree

of Divorce.”



                                           II.



               We think most of the confusion in this case arises from a fundamental

misunderstanding of what is involved. First, the chancery court action is an action for


                                          -3-
damages based on fraud and deceit. It is not an action for relief from the judgment.

The chancery court complaint does not ask that the divorce decree be set aside,

altered, or modified in any way. It seeks compensatory and punitive damages for the

defendant’s alleged misrepresentations in the division of the marital home.

              “This is a separate, independent, and distinct action....
              Notwithstanding that the property settlement agreement
              may have been incorporated into the divorce decree, one
              option available to plaintiff to seek redress for the alleged
              fraud of defendants is to sue for damages at law under
              the theory of fraud and deceit.”

Tanner v. Tanner (Tenn. Ct. App., filed at Jackson July 31, 1985). See also Vance

v. Schulder, 547 S.W.2d 927 (Tenn. 1977). We would only add that, in our opinion,

and contrary to the circuit court’s order, the agreement to divide the marital home

does retain its contractual status, despite being incorporated into the circuit court’s

order. See Penland v. Penland, 521 S.W.2d 222 (Tenn. 1975).



              Second, Ms. Moore’s Rule 60.02 motion filed in the circuit court had no

legitimate purpose. Rule 60 provides avenues for relief from a final judgment. But

Ms. Moore’s motion did not seek any relief from the circuit court’s final judgment.

Stripped to its bare essentials, the motion simply sought a declaration by the circuit

court that Mr. Moore’s chancery action had no merit -- a curious reversal of the historic

relationship between the two courts. That such relief is beyond the power of the

circuit court should be apparent. But even if the power existed, it should be even

more apparent that it is not invoked by a Rule 60.02 motion.



              Finally, in perhaps the strangest aspect of this strange case, the circuit

court assessed sanctions under Rule 11, Tenn. R. Civ. Proc. for what the court

deemed was Mr. Moore’s frivolous lawsuit in chancery. There is no allegation that Mr.

Moore misrepresented anything in responding to the Rule 60.02 motion, or that his

position was not tenable under the applicable law. He did not voluntarily seek any

relief from the circuit court; he was compelled to respond to Ms. Moore’s effort to seek



                                          -4-
the court’s protection from the chancery action. In our opinion the Rule 11 sanctions

were misplaced.



                                         III.



              It may be that Mr. Moore’s chancery action is frivolous, we take no

position on the merits of that case, but the chancery court has the tools to deal with

frivolous lawsuits.   We simply recognize that Mr. Moore had the right to file the

chancery action and that the circuit court had no power to rule on its merits or to

impose sanctions for its filing.



              The judgment of the lower court is reversed and the cause is remanded

to the Circuit Court of Davidson County for any further proceedings that may become

necessary. Tax the costs on appeal to the appellee.



                                                _____________________________
                                                BEN H. CANTRELL,
                                                PRESIDING JUDGE, M.S.

CONCUR:


_____________________________
WILLIAM C. KOCH, JR., JUDGE


_____________________________
WILLIAM B. CAIN, JUDGE
