               IN THE COURT OF APPEALS OF TENNESSEE
                          AT KNOXVILLE
                               August 10, 2016 Session

        MITCHELL HUNTER OAKES v. PATRICIA MARIE OAKES

        Appeal from the Probate and Family Court for Cumberland County
               No. 2013-PF-3362    Sam E. Benningfield, Jr., Judge


            No. E2016-00274-COA-R3-CV-FILED-DECEMBER 28, 2016



In this divorce case, Mitchell Hunter Oakes appeals the trial court’s division of the
marital estate. Husband’s appellate brief contains no case citations or references to the
record. Furthermore, there is no authority cited other than the statute addressing a
division of marital property. These multiple deficiencies are clear violations of Tenn. R.
App. P. 27(a). In addition, Husband’s brief does not contain a table as required by Court
of Appeals Rule 7. As we have held on numerous occassions, deficiencies such as these
constitute a waiver of any issues raised by the offending party. Because of these
omissions, this appeal had no reasonable chance of success. Accordingly, we agree with
his former spouse, Patricia Marie Oakes, that his appeal is frivolous in nature. Therefore,
Wife is entitled to recover from Husband her reasonable fees and expenses incurred on
appeal. Appeal dismissed.

     Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed; Case Remanded
                             for Further Proceedings

CHARLES D. SUSANO, JR., delivered the opinion of the court, in which FRANK G.
CLEMENT, JR., P.J., M.S., and JOHN W. MCCLARTY, J., joined.

Mitchell Hunter Oakes, Crossville, Tennessee, appellant, pro se.

Randal R. Boston, Crossville, Tennessee, for the appellee, Patricia Marie Oakes.


                                       OPINION



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                                             I.

       The parties were married on July 4, 2009. No children were born to their union.
Husband filed for divorce on May 23, 2013. On December 23, 2013, the trial court
granted the parties a divorce on stipulated grounds, reserving the issue of the division of
marital property. That issue was heard on November 30, 2015. The only witnesses were
the parties. Husband represented himself at trial and on this appeal.

        The trial court entered an order dividing the marital estate on January 4, 2016.
The court awarded Wife casualty insurance proceeds of $197,000, resulting from a total
fire loss of their mobile home. This award was burdened with the mortgage debt, which
totaled approximately $132,500. Husband was ordered to reimburse Wife approximately
$19,500 of the mortgage debt. The trial court awarded Husband real property, which
consists of 89 acres. The mobile home was previously situated on that property. The
court did not place a value on the real property. Husband estimated its value at $172,000,
and Wife said she thought it was worth $187,000. The trial court divided the value of
Husband’s pension, i.e., $303,894.68, equally between the parties. Each party received
the personal property in his/her possession. Wife received two storage trailers, valued by
Husband respectively at about $4,700 and $7,300. Husband timely filed a notice of
appeal.

                                             II.

       Husband presents the following issue, as quoted verbatim from his brief:

              Whether the Probate and Family Court erred in holding that
              [Wife] was entitled to both trailers as one was taken out of the
              property dispute by the [trial court] prior to the final order,
              awarding one half of complete retirement annuity although
              marriage was only 3 years and 10 months of total
              contributions, awarding monies from the interpleader1 that
              [Wife] was not named on the insurance policy, awarding
              reimbursement of loan payments on property to [Wife],
              failing to award [Husband] his own personal property or to
              allow filing of the trial brief and exhibits as a motion was
              entered the day prior to a holiday and no working day prior to
              final hearing.


       1
      In an earlier separate action, Homesite Insurance Company paid into court the aforesaid
homeowner’s insurance proceeds of $197,000.
                                             2
                                            III.

       Wife argues that Husband’s brief does not comply with Tenn. R. App. P. 27,
pointing out that “[c]ourts have routinely held that the failure to make appropriate
references to the record and to cite relevant authority in the argument section of the brief
as required by Rule 27(a)(7) constitutes a waiver of the issue.” Bean v. Bean, 40 S.W.3d
52, 55 (Tenn. Ct. App. 2000). We agree. Husband’s brief lacks a single citation to the
record. Instead, he refers us to numerous “exhibits” attached as an appendix to his brief.
These are photocopies of various documents, some of which appear to be copies of
documents entered as trial exhibits. There are no references in Husband’s brief to the
pages in the record where these exhibits were introduced. A fair number of these
documents appear to be copies, the original of which are not contained in the record.
Husband’s brief also lacks any citation to legal authority other than Tenn. Code Ann. §
36-4-121, the marital property division statute. As we observed in Bean, Rule 27(a)(6)
requires a statement “setting forth the facts relevant to the issues presented for review
with appropriate references to the record.” Id. at 54 (emphasis added). Rule 27(a)(7)(A)
requires argument “with citations to the authorities and appropriate references to the
record (which may be quoted verbatim) relied on.” Id. (emphasis added). Moreover,
Court of Appeals Rule 6(b) provides:

              No complaint of or reliance upon action by the trial court will
              be considered on appeal unless the argument contains a
              specific reference to the page or pages of the record where
              such action is recorded. No assertion of fact will be
              considered on appeal unless the argument contains a
              reference to the page or pages of the record where evidence of
              such fact is recorded.

Id. We concluded in Bean that “[p]laintiff’s failure to comply with the Rules of
Appellate Procedure and the rules of this Court waives the issues for review.” Id. at 55.
This principle has been followed and applied many times. See, e.g., Murray v. Miracle,
457 S.W.3d 399, 403-04 (Tenn. Ct. App. 2014); Chiozza v. Chiozza, 315 S.W.3d 482,
488-89 (Tenn. Ct. App. 2009); Worley v. White Tire of Tenn., Inc., 182 S.W.3d 306, 311
(Tenn. Ct. App. 2005); Messer Griesheim Inds. v. Cryotech of Kingsport, 131 S.W.3d
457, 474 (Tenn. Ct. App. 2003). In addition, Court of Appeals Rule 7 requires the
following in appeals of divorce cases involving distribution of marital property:

              (a) In any domestic relations appeal in which either party
              takes issue with . . . the manner in which the trial court
              divided or allocated the marital property or debt, the brief of
              the party raising the issue shall contain, in the statement of
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            facts or in an appendix, a table [that] shall list all property and
            debts considered by the trial court, including: (1) all separate
            property, (2) all marital property, and (3) all separate and
            marital debts.

            (b) Each entry in the table must include a citation to the
            record where each party’s evidence regarding the
            classification or valuation of the property or debt can be
            found and a citation to the record where the trial court’s
            decision regarding the classification, valuation, division, or
            allocation of the property or debt can be found.

In Forbess v. Forbess, 370 S.W.3d 347, 354-55 (Tenn. Ct. App. 2011), we said the
following:

            In the recent case of Harden v. Harden, No. M2009–01302–
            COA–R3–CV, 2010 WL 2612688 (Tenn. Ct. App. June 30,
            2010), this Court discussed the Rule 7 Table:

                   This Court has previously held where an
                   appellant fails to comply with this rule, that
                   appellant waives all such issues relating to the
                   rule’s requirements. This Court is under no
                   duty to search a trial court record in order to
                   discern the valuation of the couple’s property.
                   This Court has previously found issues
                   involving the valuation and division of property
                   waived for failure to comply with Rule 7.

            Id. at *8 (citations omitted). In explaining the necessity of
            the Rule 7 Table, we further stated:

                   [I]t is essential that the parties comply with
                   Rule 7 in order to aid this Court in reviewing
                   the trial court’s decision. The table required by
                   Rule 7, allows this Court to easily and correctly
                   determine the valuation and distribution of the
                   marital estate as ordered by the trial court.
                   Further, the Rule 7 table, allows this Court to
                   ascertain the contentions of each party as to the
                   correct valuations and proper distribution, as
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                    well as the evidence in the record which the
                    party believes supports its contention.
                    Consequently, a table, in full compliance with
                    Rule 7, is vital as this Court must consider the
                    entire distribution of property in order to
                    determine whether the trial court erred.
                    Moreover, this Court is under no duty to
                    minutely search the record for evidence that the
                    trial court’s valuations may be incorrect or that
                    the distribution may be improper.

             Id.

             While we may excuse Wife’s failure to include a chart in her
             appellate brief, see Tenn. R. App. P. 2, we cannot overlook
             Wife’s failure to cite any applicable law in her brief
             supporting her arguments regarding the division of marital
             property, other than the distribution of marital property
             statute, Tennessee Code Annotated Section 36–4–121. This
             court has repeatedly held that a party’s failure to cite
             authority for its arguments or to argue the issues in the body
             of its brief constitute a waiver on appeal.

This equally well-established rule has also been applied in many of our appellate
decisions. See, e.g., Hopwood v. Hopwood, No. M2015-01010-COA-R3-CV, 2016 WL
3537467, at *6 (Tenn. Ct. App., filed June 23, 2016); Akard v. Akard, No. E2013-00818-
COA-R3-CV, 2014 WL 6640294, at *4-5 (Tenn. Ct. App., filed Nov. 25, 2014); Butcher
v. Butcher, No. W2011-01808-COA-R3-CV, 2012 WL 2107977, at *2-3 (Tenn. Ct.
App., filed June 12, 2012); Townsend v. Townsend, No. W2004-02034-COA-R3-CV,
2005 WL 3416310, at *6 (Tenn. Ct. App., filed Dec. 14, 2005).

       We are mindful that Husband has proceeded pro se for a significant portion of his
action. In Murray, faced with a similar situation, we recently restated the following
applicable principles:

                    Parties who decide to represent themselves are
                    entitled to fair and equal treatment by the
                    courts. Whitaker v. Whirlpool Corp., 32
                    S.W.3d 222, 227 (Tenn. Ct. App. 2000);
                    Paehler v. Union Planters Nat’l Bank, Inc.,
                    971 S.W.2d 393, 396 (Tenn. Ct. App. 1997).
                                           5
                    The courts should take into account that many
                    pro se litigants have no legal training and little
                    familiarity with the judicial system. Irvin v.
                    City of Clarksville, 767 S.W.2d 649, 652 (Tenn.
                    Ct. App. 1988). However, the courts must also
                    be mindful of the boundary between fairness to
                    a pro se litigant and unfairness to the pro se
                    litigant’s adversary. Thus, the courts must not
                    excuse pro se litigants from complying with the
                    same substantive and procedural rules that
                    represented parties are expected to observe.
                    Edmundson v. Pratt, 945 S.W.2d 754, 755
                    (Tenn. Ct. App. 1996); Kaylor v. Bradley, 912
                    S.W.2d 728, 733 n. 4 (Tenn. Ct. App. 1995).

             Young v. Barrow, 130 S.W.3d 59, 62–63 (Tenn. Ct. App.
             2003).

             We are not unmindful of Plaintiffs’ pro se status and have
             attempted to give them the benefit of the doubt whenever
             possible. Nevertheless, we cannot write Plaintiffs’ brief for
             them, and we are not able to create arguments or issues where
             none otherwise are set forth. Likewise, we will not dig
             through the record in an attempt to discover arguments or
             issues that Plaintiffs may have made had they been
             represented by counsel. To do so would place Defendants in
             a distinct and likely insurmountable and unfair disadvantage
             as this Court would be acting as Plaintiffs’ attorney.

457 S.W.3d at 402; accord Chiozza, 315 S.W.3d at 487.

       Finally, Wife argues that this appeal is frivolous. In Chiozza, another case
involving a pro se post-divorce litigant whose appeal was dismissed for failure to comply
with the rules discussed herein, we stated:

             The decision to award damages for the filing of a frivolous
             appeal rests solely in the discretion of this Court. Whalum v.
             Marshall, 224 S.W.3d 169, 180–81 (Tenn. Ct. App. 2006)
             (citing Banks v. St. Francis Hosp., 697 S.W.2d 340, 343
             (Tenn. 1985)). “Successful litigants should not have to bear
             the expense and vexation of groundless appeals.” Id. at 181
                                            6
             (quoting Davis v. Gulf Ins. Group, 546 S.W.2d 583, 586
             (Tenn. 1977)). An appeal is frivolous when it has “no
             reasonable chance of success” or is “so utterly devoid of
             merit as to justify the imposition of a penalty.” Id. (citing
             Combustion Eng’g, Inc. v. Kennedy, 562 S.W.2d 202, 205
             (Tenn. 1978); Jackson v. Aldridge, 6 S.W.3d 501, 504 (Tenn.
             Ct. App. 1999)). We exercise our discretion under this statute
             sparingly so as not to discourage legitimate appeals. Id. In
             the instant case, given the state of the record and the state of
             Mr. Chiozza’s appellate brief, we can only conclude that his
             appeal had “no reasonable chance of success.” Whalum, 224
             S.W.3d at 180–81. Under these circumstances, we find that
             Mother is entitled to her reasonable fees and costs on appeal,
             and we remand the case to the trial court to determine the
             amount of the fee award.

315 S.W.3d at 493; see also Murray, 457 S.W.3d at 404 (holding appeal frivolous under
similar circumstances). The principles of law we have discussed herein are firmly
established. Under them, this appeal had no reasonable chance of success, so we hold it
is frivolous.

                                           IV.

        The issue raised by Husband has been waived for failure to comply with the
Tennessee Rules of Appellate Procedure and Rules of the Court of Appeals. This appeal
is dismissed, and the case remanded to the trial court for a determination and award of
Wife’s reasonable attorney’s fees and expenses on appeal. Costs on appeal are assessed
to the appellant, Mitchell Hunter Oakes.




                                         ________________________________
                                         CHARLES D. SUSANO, JR., JUDGE




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