                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                 November 18, 2009 Session

         STEPHEN GEORGE BEEM v. JOAN NAN GALLINA BEEM

                  An Appeal from the Circuit Court for Shelby County
                  No. CT-00745-08     Walter C. Kurtz, Senior Judge




                  No. W2009-00800-COA-R3-CV - Filed April 28, 2010


This appeal involves a motion to set aside a marital dissolution agreement. After a long
marriage, the parties filed cross-petitions for divorce. After mediation, they entered into a
marital dissolution agreement settling division of the considerable martial estate. The parties
presented the MDA to the trial court, and it was approved and incorporated into the final
decree of divorce. Several weeks later, the husband filed this pro se petition to have the
MDA set aside, claiming that, at the time it was signed, he was not mentally competent to
enter in to such an agreement. The husband’s motion was denied, and the wife was awarded
attorney fees pursuant to the terms of the MDA. The husband now appeals. We affirm. We
hold that the evidence supports the factual finding below that the husband was mentally
capable of understanding the consequences of the MDA, and we find no abuse of its
discretion in the trial court’s denial of the husband’s motion to set it aside. We also affirm
the award of attorney fees to the wife, and award attorney fees for this appeal.

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

H OLLY M. K IRBY, J., delivered the opinion of the Court, in which D AVID R. F ARMER, J., and
J. S TEVEN S TAFFORD, J., joined.

Leah Lloyd Hillis, Memphis, Tennessee, for the appellant, Stephen George Beem 1

Amy J. Amundsen, Memphis, Tennessee, for the appellee, Joan Nan Gallina Beem




1
Husband represented himself in the proceedings below, and on appeal, he wrote his own appellate brief.
Attorney Hillis was retained to represent Beem on appeal for purposes of oral argument.
                                                 OPINION

Plaintiff/Appellant Stephen George Beem (“Husband”) and Defendant/Appellee Joan Nan
Gallina Beem (“Wife”) were married in September 1973.2 Husband is an attorney who
practiced for many years in Shelby County, Tennessee. In 2005, Husband opened a law
practice in Deer Valley, Utah. He began to spend much of his time there establishing his
practice, living part of the time in Utah and part of the time in Tennessee with Wife.3 Wife
owned property in Utah and spent some time there with Husband. Husband now resides
primarily in Utah.

By January 1, 2007, the parties had officially separated. Husband was devastated by the
deterioration of his marriage and sought treatment for depression. In contemplation of their
eventual divorce, the parties tried to negotiate a marital dissolution agreement (“MDA”) out
of court in order to amicably resolve the division of their marital property. As part of the
negotiations, Husband submitted to Wife three different MDA drafts; none were accepted.
After their negotiations broke down, in February 2008, the parties filed cross petitions for
divorce, both alleging inappropriate marital conduct and irreconcilable differences.4

At the time the divorce petitions were filed, the parties had assets worth between $7,000,000
and $10,000,000. The classification and equitable division of these assets were issues that
were hotly contested. On June 16, 2008, the trial court entered a scheduling order that
established discovery deadlines and set the trial for July 22, 2008. At the time, Husband was
represented by Shelby County attorney David Caywood (“Caywood”). Husband urged
Caywood to seek a continuance of the trial date to permit adequate time for discovery, but
Caywood advised Husband that it would be inappropriate to do so.

By agreement, the parties entered into mediation before retired Judge George Brown (“Judge
Brown”) on July 21, 2008, the day before the scheduled trial. The mediation was lengthy and
involved, lasting into the evening. It yielded handwritten notes that became the substance
of an agreement between the parties. Overnight, counsel for Wife reduced the notes to a 22-
page formal Marital Dissolution Agreement (“MDA”).




2
    The parties have two adult children born of the marriage.
3
 In 2006, when Husband was summoned for federal jury duty in Tennessee, he claimed that he was a resident
of Utah.
4
    The case was assigned to Senior Judge Walter C. Kurtz.

                                                      -2-
The next day, on the morning of the scheduled trial, the parties appeared before the trial court
at 9:00 a.m., announced a settlement, and requested additional time to execute and file the
MDA. Before signing the MDA, however, Husband asked for the addition of an addendum,
relieving him of responsibility for certain debts he owed to Wife. Wife agreed, and this
addendum was added to the MDA. The parties signed the MDA with the addendum
attached. After doing so, the parties returned to the trial court, announced their agreement,
and presented the executed MDA. Husband and Wife were both sworn in as witnesses, and
both testified that they desired to enter into the MDA. Attorney Caywood stated in open
court that the MDA “was gone over very carefully last night and, in fact, before we left, . .
. the parties signed a four or five-page handwritten document, so they’ve had all night to
think about it yesterday . . . .” Husband and Wife signed each page of the MDA and sought
the trial court’s approval of it. The trial court approved the MDA that day and incorporated
it into the final decree of divorce.5

On or around September 10, 2008,6 Husband filed a pro se motion pursuant to Rule 60.02(5)
of the Tennessee Rules of Civil Procedure, seeking to set aside the final decree of divorce
and the MDA. In the motion, Husband claimed that, at the time he executed the MDA, he
was suffering from a mental incapacity and his rationality was compromised by serious
depression. Because of this mental incapacity, Husband claimed, it would be “unfair,
inequitable, and not in the furtherance of the administration of justice to not relieve him from
the Final Decrees [sic] and Marital Dissolution Agreement that he signed and agreed to under
duress and without the benefit of a clear mind.” Attached to this motion was Husband’s own
affidavit and a statement by his physician, Joseph Fritter, M.D. (“Dr. Fritter”). In the
statement, Dr. Fritter said that Husband was “being treated for major depressive disorder,”
beginning in January 2008 and continuing to the date of the statement, and that any decisions
made by Husband during his treatment for this condition would be compromised.

Shortly after Husband filed this pro se motion, in October 2008, the trial court entered a
consent order allowing attorney Caywood to withdraw from representing Husband.

After Husband filed his motion to set aside the MDA, the parties engaged in significant
discovery. Wife noticed the depositions of retired Judge Brown, Attorney Caywood, and
Husband’s friend William Schrader (“Schrader”). Husband filed a motion to quash the
depositions, but the motion was denied.


5
 On August 11, 2008, the trial court entered an amended final decree of divorce to correct a clerical error in
the original decree.
6
 The date on which this document was filed is not clear in the record; however, the parties both assert in their
briefs that the document was filed on September 10, 2008.

                                                      -3-
In an order dated January 14, 2009, the trial court found that Husband was entitled to a
hearing on his motion. The hearing was scheduled for March 2, 2009.

On February 13, 2009, two weeks before the scheduled hearing on the motion to set aside,
Husband filed a motion for a continuance of the hearing to give him an opportunity to retain
counsel. A few days later, the trial court denied the motion for a continuance, noting that
Husband had chosen “to represent himself and has filed a number of pleadings in support of
his motion to set aside the settlement. His motion has been pending since September 2008.
. . . [H]e waits until February 13, 2009, to file his request.”

The hearing on Husband’s motion to set aside was conducted as scheduled on March 2, 2009.
Husband appeared pro se and called and questioned witnesses. At the outset of the hearing,
he called two friends to testify on his behalf, William Schrader and Jeffrey Salberg.
Schrader, a Tennessee resident, testified that between January and September 2008, Husband
seemed unfocused, mentally confused, despondent, and deeply depressed. Husband stayed
with Schrader overnight on July 21, 2008, the night of the parties’ mediation with Judge
Brown. When Husband returned from signing the MDA, Schrader said he seemed to be “in
a state of confusion and . . . eaten alive with the stress and distraught.” Schrader testified that
Husband reported that he had capitulated to Wife’s demands in the MDA. When Husband
asked Schrader at the hearing if it seemed that Husband knew the consequences of his actions
in signing the MDA, counsel for Wife objected. The trial court sustained the objection. The
trial court asked Husband if he wanted to make an offer of proof to preserve the issue for
appeal, but Husband declined to do so.

Husband next called Salberg, an attorney with whom Husband had worked in Utah since
December 2005. Salberg testified that, prior to January 2008, Husband was socially
engaging and confident. After January 2008, he said, Husband became withdrawn and had
trouble staying focused on a task. He described Husband as struggling to manage his law
practice, and “in such a mental status to truly not understand what was going on in regards
to [his] divorce . . . [and Husband’s] thinking was not coherent in that area at all.” In
response to Husband’s question at the hearing, Salberg said that he could not “believe that
somebody allowed you to sign that [MDA] in the state of mind that you were in.” He opined
that Husband “didn’t understand the nature of what was going on, in my opinion, and he
didn’t understand the consequences that were going to follow.” Salberg acknowledged,
however, that in Summer 2008, Husband was able to manage his own personal affairs and
was competent to represent another client and settle a case.

The trial court also heard testimony from Dr. John Robert Taylor (“Dr. Taylor”), a clinical
psychologist who treated Husband in Utah for his mental problems, beginning in October
2008 and continuing until the date of the hearing on Husband’s motion to set aside. By

                                                -4-
November 2008, Dr. Taylor diagnosed Husband with “major depressive disorder.” He noted
that, at that time, Husband’s mood symptoms included feelings of hopelessness, helplessness,
and an inability to experience pleasure; his physical symptoms included insomnia and loss
of appetite. From how Husband described the summer of 2008, Dr. Taylor surmised that, in
his professional opinion, at the time Husband signed the MDA, he would have been suffering
from the same condition and would have been at an even more impaired level. In his
opinion, when Husband signed the MDA in July 2008, Husband’s ability to make rational
and considered decisions was “severely compromised,” even though he may have appeared
to have been functioning normally. On cross-examination, Dr. Taylor clarified that he was
not “making a diagnosis of [Husband’s] mental faculties on July the 22nd, 2008.”

Husband took the witness stand and testified in a narrative fashion on his own behalf. He
testified that, for a period of time, he took anti-depressant medication but stopped taking it
sometime in the early summer of 2008. He described the time period between February and
August of 2008 as “all a blur,” stating that he seemed to be in a fog, and that the divorce
proceedings “went so fast.” He testified that he “wasn’t capable of making a decision in July
2008,” and that he failed to appreciate the level of his cognitive impairment until later.
Husband saw Dr. Ferriter for his symptoms in August 2008, who recommended that he see
Dr. Taylor. Husband explained that he was unable to meet with Dr. Taylor until October
2008.

Wife called as a witness Dr. John Leite (“Dr. Leite”), a clinical psychologist. Dr. Leite had
not examined Husband, but had reviewed his medical records and other data. He concluded
that in July 2008, Husband was mentally competent to enter into the MDA.

Wife testified on her own behalf. She first recounted the events of the mediation and the
parties’ negotiation of the terms of the MDA. On the morning after the mediation, she said,
Husband raised some additional issues, which were addressed in the addendum to the MDA.
Wife believed that Husband was trying to punish her by filing the motion to set aside, and
commented that he “knew exactly what he was doing. I think he knew it the whole time . .
. .” Wife testified that she had incurred $40,014.59 in attorney fees, not including expert
witness fees and lawsuit expenses, in defending against Husband’s motion to set aside the
MDA.

In addition to the testimony, the trial court also considered the affidavit of Judge Brown, who
spent considerable time with the parties during the mediation. In his affidavit, Judge Brown
stated that both Husband and Wife understood the mediation process and “appeared mentally
competent.” Judge Brown averred that Husband “appeared lucid and mentally capable of
making and receiving the offers and counter-offers that were made between the parties,” and
that he “knew the assets and was able to participate fully in the process.” Judge Brown also

                                              -5-
stated that he, as the mediator, “would not have allowed [Husband] to sign the mediated
handwritten agreement if [he] noticed any confusion or incapacity on his part.” He further
stated that Husband “did not appear to be lacking in cognitive thinking,” and “did not appear
to lack mental capacity to enter into a binding contract.” Judge Brown said that the parties
left his office “acknowledging they reached an agreement, settled the case and thanked me
for my services.”

The trial court also considered the deposition testimony of Attorney Caywood. Caywood
stated that, from his observation, Husband did not seem emotionally or cognitively impaired
during the mediation. Caywood testified, “I saw no observations to make me feel
uncomfortable about [Husband’s] cognitive abilities. And on the morning . . . we went . . .
to present this settlement, I saw nothing to disturb me or cause me concern about his
cognitive functioning on that day.” Caywood said that Husband “was desirous of getting the
matter resolved, like any rational person would.” He noted that at no time did Husband
inform either him or Judge Brown that he felt that he was mentally impaired. Caywood said
that he reviewed the MDA with Husband before he signed it, and Caywood thought that
Husband was capable of making a rational decision regarding the division of the parties’
property at that time. Caywood believed that the agreement the parties reached was “within
the range of what a Court might do after considering the facts and the law.” After the
hearing, the trial court took the matter under advisement.

On March 17, 2009, the trial court entered an order denying Husband’s motion to set aside
the MDA. Initially, the trial court observed that the burden of proof is high for a party
seeking to have a contract declared unenforceable based on the party’s emotional state, and
the burden is rarely met. The trial court found that Husband was required to show that he
“had no reasonable perception or understanding of the nature or terms of the contract” he
sought to avoid. Roberts v. Roberts, 827 S.W.2d 788, 791-92 (Tenn. Ct. App. 1991). After
considering the testimony at the hearing and the other evidence presented, the trial court
found:

       1. Husband had an active law practice in July 2008 when the MDA was
       signed.
       2. At the time, neither Husband’s attorney nor the mediator noticed any
       difficulty in Husband’s ability to understand the agreement.
       3. When the settlement was announced in open court, Husband signed every
       page of the MDA, testified that he understood it and agreed to it and requested
       an addendum to it.
       4. Husband’s discovery responses and prior deposition testimony indicated
       that he had no psychological or medial problems.



                                             -6-
       5. Husband’s testifying psychologist did not evaluate him until after he filed
       his motion to set aside.

Based on these findings of fact, the trial court held that Husband did not sustain his burden
of proving that he was mentally incapable of entering into the MDA. Thus, the trial court
declined to set aside the MDA. Wife was awarded $35,000 in attorney fees pursuant to a
clause in the MDA providing for an award of such fees “to the party seeking to enforce this
agreement.” From this order, Husband now appeals.

                      I SSUES ON A PPEAL AND S TANDARD OF R EVIEW

On appeal, Husband argues that the trial court erred in (1) refusing to grant his motion for
a continuance; (2) sustaining Wife’s objection to the testimony of Schrader concerning his
lay observations of the state of mind of Husband on the evening of July 21, 2008; (3) finding
that Husband failed to prove that he was mentally impaired at the July 21, 2008 mediation;
and (4) awarding Wife $35,000 in attorney fees pursuant to the MDA.

Generally, we review a trial court’s factual findings de novo on the record, presuming those
findings to be correct, unless the evidence preponderates otherwise. Tenn. R. App. P. 13(d);
see Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001). For the evidence to preponderate
against a trial court’s finding of fact, it must support another finding of fact with greater
convincing effect. Watson v. Watson, 196 S.W.3d 695, 701 (Tenn. Ct. App. 2005) (citing
Walker v. Sidney Gilreath & Assocs., 40 S.W.3d 66, 71 (Tenn. Ct. App. 2000); The Realty
Shop, Inc. v. RR Westminster Holding, Inc., 7 S.W.3d 581, 596 (Tenn. Ct. App. 1999)).
We review a trial court’s conclusions of law de novo, with no such presumption of
correctness. Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993). More
specific standards of review are set forth in our analysis of particular issue raised on appeal.

                                          A NALYSIS

                                        Continuance

We first address Husband’s argument that the trial court erred in denying his request for a
continuance of the hearing on his motion to set aside the MDA to give him an opportunity
to retain counsel. A trial court’s decision to grant or deny a motion for a continuance is
within the court’s sound discretion; therefore, its decision is reviewed for an abuse of
discretion. See Bailey v. Tasker, 146 S.W.3d 580, 584 (Tenn. Ct. App. 2004). In
determining whether the trial court abused its discretion in denying a motion for continuance,
“we must consider (1) whether the decision has a sufficient evidentiary foundation; (2)
whether the trial court correctly identified and properly applied the appropriate legal

                                              -7-
principles; and (3) whether the decision is within the range of acceptable alternatives.”
Liberty Mut. Ins. Co. v. Friendship Home Health Agency, LLC, No.
M2007-02787-COA-R3-CV, 2009 WL 736659, at *3 (Tenn. Ct. App. Mar. 19, 2009); see
also Comm’r of Dep’t of Transp. v. Hall, 635 S.W.2d 110, 111 (Tenn. 1982) (“[I]n order
to show an abuse of discretion, the plaintiff must show some prejudice or surprise which
arises from the trial court’s failure to grant the continuance.”). This standard “does not permit
an appellate court to merely substitute its judgment for that of the trial court.” Henry v.
Goins, 104 S.W.3d 475, 479 (Tenn. 2003).

Husband argues that the trial court abused its discretion in denying his request for a
continuance, because the trial court’s failure to allow him time to obtain counsel clearly
prejudiced and injured him. He claims that he needed counsel to represent him at the hearing
because he was too emotionally involved in the case to effectively represent himself.
Husband points out that the trial court did not grant his request for an evidentiary hearing
until January 14, 2009. At that time, he claims, he had unforeseen difficulty in obtaining
counsel; in the weeks following the January 14, 2009 order, he contacted three Memphis
attorneys and all declined to take his case. In representing himself, Husband maintains, he
made numerous mistakes, including his failure to cross-examine Wife, to request a recess
following the direct examination of Dr. Leite, and to counter Wife’s objection to Schrader’s
testimony regarding Husband’s state of mind. Given these mistakes and considering the
record as a whole, Husband argues, the trial court abused its discretion in declining to grant
him a continuance to obtain counsel.

In its order denying Husband’s motion for a continuance, the trial court noted that, since
September 2008, Husband had represented himself and had fully participated in the
proceedings before the court, but waited until two weeks before the scheduled hearing to
request a continuance for the purpose of retaining counsel. In denying the continuance, the
trial court commented: “The motion to set aside the divorce settlement needs to be resolved.”
We agree. Although the evidentiary hearing was not set until January 14, 2009, Husband
filed his motion to set aside in September 2008, in which he requested such a hearing. He
must have expected, indeed hoped, that the trial court would grant his request for a hearing
at some point. Under these circumstances, we cannot conclude that the trial court abused its
discretion in denying Husband’s request for a continuance to obtain counsel.

                                     Schrader Testimony

Husband argues that the trial court erred in refusing to permit Schrader to testify as to his lay
opinion of Husband’s mental state of mind on the evening of the parties’ mediation. Wife
argues that Husband waived this argument, because he failed to make an offer of proof when
given the opportunity to do so by the trial court. See Howard G. Lewis Constr. Co. v. Lee,

                                               -8-
830 S.W.2d 60, 67 (Tenn. Ct. App. 1992) (failing to make an offer of proof “constituted
waiver” of the right to have the issue heard on appeal), overruled on other grounds, Myint
v. Allstate Ins. Co., 970 S.W.2d 920 (Tenn. 1998). However, even if the issue were properly
preserved for appeal, Wife claims, the trial court did not abuse its discretion in precluding
Schrader’s testimony. In addition, Wife claims that, even if the trial court erred in
disallowing his testimony on this point, it was harmless error, because the trial court gave
controlling weight to the opinions of the witnesses who were involved in the mediation
process, and gave very little weight to the lay opinion testimony. See Tenn. R. App. P. 36(b).

We find no reversible error in the trial court’s decision to disallow Schrader’s lay opinion
testimony. At the time, Schrader had been permitted to fully describe what he observed
about Husband at the time he executed the MDA. In the exchange at issue, Husband asked
Schrader, “[D]o you think I knew the consequences of what I was doing [on July 21, 2008]?”
Although Husband declined the opportunity to make an offer of proof, we may presume from
Schrader’s overall testimony that his response would have been “no.” Had Schrader’s
response to this question been permitted, from the trial court’s explanation of its reasoning
in the final order, it would not have made a difference in the outcome. The trial court
assigned significant weight to the testimony of Attorney Caywood and Judge Brown, who
were involved in the signing of the MDA, and clearly weighed it more heavily than the
opinion testimony of Husband’s friends, who were not closely involved in the transaction.
Therefore, even if disallowing Schrader’s response to Husband’s question was error, we find
that it was harmless under the circumstances. Tire Shredders, Inc. v. ERM-North Cent.,
Inc., 15 S.W.3d 849, 859 (Tenn. Ct. App. 1999); See Tenn. R. App. P. 36(b).

                               Denial of Motion to Set Aside

Husband argues that the trial court abused its discretion in denying his motion to set aside
the final decree of divorce and the MDA, pursuant to Rule 60.02(5), based on his inability
to understand the consequences of his agreement at the time it was made. Under Rule
60.02(5), a trial court may relieve a party from a final order based on “any . . . reason
justifying relief from the operation of the judgment.” Tenn. R. Civ. P. 60.02(5). On appeal,
Husband argues that the preponderance of the evidence supported his contention that he
lacked the mental capacity to enter into the MDA, based on his severe psychological
depression.

The trial court correctly noted that it is rare indeed for a court to find that a contract is
unenforceable based on the unsound emotional state of a contracting party. The party
seeking to avoid a contract on this basis must show that he or she “had no reasonable
perception or understanding of the nature or terms of the contract.” Roberts, 827 S.W.2d at
791-92. This Court has explained the burden of proof for a party seeking to avoid a contract:

                                             -9-
       Thus, persons will be excused from their contractual obligations on the ground
       of incompetency only when (1) they are unable to understand in a reasonable
       manner the nature and consequences of the transaction or (2) when they are
       unable to act in a reasonable manner in relation to the transaction, and the
       other party has reason to know of their condition.

McMahan v. McMahan, No. E2004-03032-COA-R3-CV, 2005 WL 3287475, at *7 (Tenn.
Ct. App. Dec. 5, 2005).

Moreover, a trial court’s decision to grant or deny a Rule 60.02(5) motion is a matter within
the discretion of the trial court. This “escape valve” should be narrowly construed. See
Federated Ins. Co. v. Lethcoe, 18 S.W.3d 621, 624 (Tenn. 2000). Therefore, we review the
decision of the trial court below under an abuse of discretion standard. Henry, 104 S.W.3d
at 479.

The trial court’s order on Husband’s motion to set aside clearly shows the court’s careful
evaluation of the evidence. The trial court first noted that Attorney Caywood and Judge
Brown had both worked closely with Husband at the time the MDA was being negotiated,
and both maintained that Husband was not mentally incompetent when he signed the MDA.
The trial court also recalled that Husband had signed each page of the MDA, had suggested
the last-minute addendum, and had assured the trial judge in open court that he understood
the agreement and concurred in it. The trial court also found it probative that, in his
discovery responses and in his July 2008 deposition, Husband stated that at no time did he
have “a medical [or] psychological” problem.

The trial court recognized Dr. Taylor’s expertise and professional competence, and did not
doubt his diagnosis that Husband was depressed. It noted, however, that Husband did not
visit Dr. Taylor for psychological treatment under after he filed his Rule 60 motion to have
the decree and the MDA set aside. Assuming that Husband was depressed, the trial court
found that his depression did not rise to the level of a disabling mental incapacity and did
not interfere with his cognitive abilities. The trial court observed that “[m]any persons going
through divorces are depressed but that does not lessen their legal abilities to enter into
contracts or to settle lawsuits. Depression alone does not invalidate a contract.” Even given
Dr. Taylor’s professional competence, the trial court did “not credit his ability to extrapolate
back to July 22, 2008, and accurately determine Mr. Beem’s mental state.” In weighing the
evidence, the trial court placed “more confidence” in the testimony of Attorney Caywood and
Judge Brown, “who interacted with [Husband] on July 22, 2008, and during the negotiations
which led to the settlement.” Ultimately, therefore, the trial court held that “[t]he evidence
here, even by a preponderance standard (no less — clear and convincing), does not sustain
[Husband’s] assertion that he lacked sufficient mental capacity to enter into the agreement.”

                                             -10-
From our review of the record, the trial court’s decision appears to be a well-reasoned and
clear-eyed assessment of the evidence, based in part on its determination of the credibility
of the witnesses. The trial court is in the best position to assess the demeanor of the
witnesses and to make judgments regarding the credibility of the witnesses. To the extent that
the trial court’s decision was based on witness credibility, we will not reverse that decision
absent clear and convincing evidence to the contrary. Jones v. Garrett, 92 S.W.3d 835, 838
(Tenn. 2002). Considering the record overall, we agree with the trial court that Husband
simply did not carry the heavy burden placed on him to prove that he was unable to
understand the nature and consequences of his actions, or that he was unable to act in a
reasonable manner when he signed the MDA. Thus, we find sufficient evidence to support
the trial court’s finding that Husband was mentally capable of executing the MDA and
conclude that the trial court did not abuse its discretion in denying Husband’s motion to set
the aside the divorce decree and the MDA.

                                               Attorney Fees

Husband argues that the trial court’s award of $35,000 in attorney fees to Wife was beyond
the scope of the provision in the MDA on attorney fees. He acknowledges that the MDA
permits the prevailing party to recover attorney fees in an action to “enforce” the agreement,
but maintains that this was not an action to “enforce” the agreement. Rather, he claims that
he had performed all of his obligations under the MDA, and that his motion instead sought
to set it aside based on his mental incapacity. Alternatively, he claims that the amount of the
fee award was excessive and based on an insufficient record.7

The issue of whether the attorney fee award was within the scope of the relevant provision
in the MDA is an issue of law, which we review de novo on the record, affording no
presumption of correctness to the trial court’s decision. Barnes v. Barnes, 193 S.W.3d 495,
498 (Tenn. 2006); Frizzell Constr. Co. v. Gatlinburg, LLC, 9 S.W.3d 79, 85 (Tenn. 1999).
If an award of attorney fees is provided for in the MDA, the trial court has the discretion to
determine whether the amount of the fee requested is reasonable. See Airline Constr. Inc.
v. Barr, 807 S.W.2d 247, 270 (Tenn. Ct. App. 1990). Therefore, if an attorney fee award was
proper under the parties’ MDA, we must determine whether the trial court abused its
discretion in the amount of the fee awarded. See Metro. Gov’t of Nashville v. Brown, No.
M2008-02495-COA-R3-CV, 2009 WL 5178418, at *8 (Tenn. Ct. App. Dec. 30, 2009).




7
    This argument was made in the first instance in Husband’s reply brief.

                                                     -11-
       The relevant provision in the MDA provides:

       Should either party incur any expense or legal fees in a successful effort to
       enforce this marital dissolution agreement, in whole or in part, the Court
       SHALL award reasonable attorney’s fees and suit expenses to the party
       seeking to enforce this agreement. No breach, waiver, failure to seek strict
       compliance, or default of any of the terms of this agreement shall constitute
       waiver of any subsequent breach or default of any of the terms of this
       agreement.

Thus, the agreement provides that attorney fees “shall” be awarded to the party who makes
a successful effort “to enforce” the MDA. The trial court found this provision to be
applicable in this case, stating that Husband’s “assault on the marital dissolution agreement
to invalidate it by way of Rule 60.02(5) has caused [Wife] considerable expense in
‘enforcing’ the agreement.” Wife requested fees of $46,877.59 and submitted an affidavit
to support the fee request; however, the trial court granted an attorney fee award to Wife of
$35,000.

The “cardinal rule” of contract construction is to ascertain the intent of the parties and to
effectuate that intent consistent with applicable legal principles. Frizzell Constr. Co. v.
Gatlinburg, LLC, 9 S.W.3d 79, 85 (Tenn. 1999). When the language of the contract is plain
and unambiguous, courts determine the intent of the parties from the four corners of the
contract, interpreting and enforcing it as written. Int’l Flight Ctr. v. City of Murfreesboro,
45 S.W.3d 565, 570 (Tenn. Ct. App. 2000).

From our review, the attorney fee provision in the parties’ MDA is clear and unambiguous,
and applies in this case. Wife was not attempting to enforce a specific provision in the
MDA; rather, she was required to defend against Husband’s attempt to have the entire MDA
set aside. This is clearly an effort to “enforce” the agreement as a whole. Therefore, the
MDA mandates an award of attorney fees to Wife.

In reviewing the amount of the award, we find that the attorney fee awarded by the trial court
was well within the trial court’s discretion. Therefore, we affirm the trial court’s award of
attorney fees to Wife.

                                 Attorney Fees on Appeal

Wife argues that she is entitled to her attorney fees incurred on appeal, contending that
Husband’s appeal is frivolous under Tennessee Code Annotated § 27-1-122. However,
regardless of whether Husband’s appeal is frivolous, Wife is entitled to her attorney fees for

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this appeal pursuant to the parties’ MDA. Therefore, we remand the case to the trial court
to determine a reasonable attorney fee to Wife for this appeal.

                                       C ONCLUSION

The decision of the trial court is affirmed and the cause is remanded for further proceedings
consistent with this Opinion. Costs on appeal are to be taxed to Appellant Stephen George
Beem and his surety, for which execution may issue, if necessary.




                                                   _________________________________
                                                   HOLLY M. KIRBY, JUDGE




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