             IN THE COURT OF APPEALS OF TENNESSEE
                         AT NASHVILLE
                                                               FILED
                                                               November 5, 1998
OTHA SMITH,                               )
                                          )                 Cecil Crowson, Jr.
       Plaintiff/Appellant,               )                Appellate Court Clerk
                                          )   Appeal No.
                                          )   01-A-01-9802-CH-00068
VS.                                       )
                                          )   Giles Chancery
                                          )   No. 9074
MARJORIE SMITH,                           )
                                          )
       Defendant/Appellee.                )


        APPEALED FROM THE CHANCERY COURT OF GILES COUNTY
                      AT PULASKI, TENNESSEE

                   THE HONORABLE JIM T. HAMILTON, JUDGE




ROBERT D. MASSEY
P. O. Box 409
Pulaski, Tennessee 38478
       Attorney for Plaintiff/Appellant

JOE W. HENRY, JR.
119 South First Street
Pulaski, Tennessee 38478
      Attorney for Defendant/Appellee




                              AFFIRMED AS MODIFIED
                                 AND REMANDED




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


CONCUR:
KOCH, J.
CAIN, J.
                                OPINION


             Following an in camera proceeding, the trial court declared the parties

divorced, and awarded the real property at issue to the husband. The wife filed a

Motion to Alter and Amend, which resulted in a new hearing, and a new decree

whereby the real property was equally divided between the parties. The husband

claimed on appeal that the trial court erred in re-opening the case after his initial

decree. We affirm the trial court, but we amend its final order to make sure there is

no doubt that the parties have been legally divorced.



                             I. Marriage and Divorce



             Otha Smith and Marjorie May married on November 16, 1993. During

the course of their brief marriage, they purchased a 35 acre piece of land, which was

titled in Mr. Smith’s name alone. The $5,000 down payment for the land was provided

by Marjorie Smith. When the mortgage note was renewed, her name was added to

the deed of trust. At some point, the parties added to their holdings by purchasing a

one acre tract, which was deeded in the names of both parties.



              On October 11, 1995, Mr. Smith filed a complaint for divorce, stating as

grounds cruel and inhuman treatment, or in the alternative irreconcilable differences.

Ms. Smith answered, admitting that irreconcilable differences had arisen between the

parties, but denying that she had been guilty of cruel and inhuman treatment. She

also counter-claimed for divorce on the ground of inappropriate marital conduct.



              The case was set for trial, but was continued several times because Ms.

Smith’s attorney believed that her psychological condition rendered her incapable of

testifying in open court. The hearing was finally scheduled for April 8, 1996. On that



                                        -2-
date, Ms. Smith’s attorney, Joe W. Henry Jr., approached Mr. Smith’s attorney, W.

Howell Forrester, and suggested that they avoid the acrimony of a trial, and submit

the issues to some form of Alternate Dispute Resolution.



               The attorneys agreed to a procedure whereby the trial judge would hear

each of the parties separately in his chambers, without their attorneys being present,

and without limitation as to what could be discussed. The judge would then render

a decision based on their statements to him.



               On April 24, 1996, the trial court issued an order declaring the parties

divorced pursuant to Tenn. Code Ann. § 36-4-129(b), and awarding the husband all

right, title and interest to the 36 acres. The wife was awarded the mobile home that

she had purchased and placed on the property, but was ordered to remove it within

thirty days.



               On May 15, 1996, Ms. Smith filed a timely motion through her attorney

to set aside the judgment of the trial court. See Rule 59.02, Tenn. R. Civ. P. In the

alternative, she asked the court to alter or amend the judgment to make an equitable

distribution of the marital estate. Mr. Smith filed a response in opposition to the

motion. The response alleged that the parties had agreed that the trial court’s

judgment would be final, and that no change of circumstances had occurred to

warrant a change in the order.



               On March 10, 1997, the parties scheduled a hearing on Ms. Smith’s

motion. On that day, Mr. Henry and Mr. Forrester agreed to waive the hearing on the

motion, and to retry the case instead. The trial court accordingly conducted a

complete trial, at which both parties testified.




                                          -3-
              On March 21, 1997 the trial court entered a new order, based on the

hearing of March 10. The judge found that the 36 acre property was part of the

marital estate, and that both parties had contributed to its acquisition and

preservation. He accordingly ordered that the property be surveyed, and that it be

divided equally between the parties. W. Howell Forrester subsequently withdrew as

counsel for Mr. Smith, and Robert D. Massey was enrolled in his place. Mr. Massey

filed a Motion for Findings of Fact and Amendment of Judgment, which was denied.

This appeal followed.



                              II. Arbitration or Waiver?



              The appellant argues that the trial court erred in re-opening the case

after issuing its decree of April 24, 1996. He contends that the procedure the parties

initially agreed upon amounted to a type of Alternative Dispute Resolution (ADR) akin

to binding arbitration, with the trial court acting as arbitrator. The appellant points out

that under the Uniform Arbitration Act, Tenn. Code Ann. § 29-5-301, et seq., an

arbitration award may not be modified or vacated except under circumstances not

present here. See Tenn. Code Ann. § 29-5-310, 313 and 314.



              However, the proceeding conducted by the trial court differed in many

important respects from an arbitration of the sort which is governed by the Uniform

Arbitration Act. It appears to us that some of the provisions of the Act were adopted

as safeguards, to prevent parties from being victimized by the very finality that makes

arbitration the procedure of choice for certain types of disputes. Thus, an agreement

to arbitrate must be in writing, Tenn. Code Ann. § 29-5-302(a). Further, a party may

not waive his right to be represented by an attorney at any proceeding or hearing.

Tenn. Code Ann. § 29-5-307.




                                           -4-
               In the present case, there was no written agreement to arbitrate, and the

attorneys have presented differing accounts as to the nature of the agreement they

reached. The appellant submitted the affidavit of Mr. Forrester, which was to the

effect that he and Mr. Henry had agreed that the decision of the judge following the

in camera proceeding would be final, and the “case would forever be concluded based

on his ruling.”



               In response, Mr. Henry filed his own affidavit, in which he explained the

circumstances that led him to suggest that some method of ADR be used to decide

the case, but denied that he had ever agreed to waive his right to appeal an

unfavorable outcome. Ms. Smith also filed an affidavit, in which she stated that her

attorney told her that if the decision was adverse, the process of appellate review was

still available.



               Insofar as the appellant is suggesting that the appellee has lost her right

to appeal as the result of a waiver, we must also reject that argument. Since the

opposing affidavits balance each other, we are obligated to find that Mr. Henry had

not waived his client’s right to appeal, for it appears to us that the greater burden of

proof must rest on the person claiming the waiver of a legal right, not on the person

attempting to exercise that right.



               Mr. Henry also argues, correctly we believe, that Mr. Forrester

surrendered any objections he may have had to re-opening the case when he agreed

to forego the hearing on Mr. Henry’s motion to set aside the judgment, and to proceed

directly to a trial of the cause. This is borne out by a finding of the trial court in its

order overruling Mr. Smith’s Motion for Findings of Fact and Amendment of Judgment.

                      The Court finds that prior to the March 10th hearing, in
               open court, everyone agreed, the parties as well as counsel,
               that the prior hearing held in chambers between the Court
               and the parties and the Court’s ruling based on that hearing,
               would be held do novo (sic).


                                          -5-
                             III. Correcting an Oversight



              As we stated above, the trial court’s order of April 24, 1996 declared the

parties divorced pursuant to Tenn. Code Ann. § 36-4-129(b). The order of March 21,

1997 divided the property, but did not mention divorce. The appellant argues that the

more recent order should be set aside because it is fatally deficient, and that a new

hearing should be ordered. He contends that the order of April 24 had been totally

superseded, and that the more recent order failed to deal with the primary issue

before the court -- the dissolution of a marriage. A necessary corollary implication is

that the parties are still married, and can no longer be considered to be legally

divorced.



              While we do not fault the appellant’s attorney for using any wedge he

can find to attack the property division, it is apparent to us that the court’s failure to

mention the divorce was a mere oversight. The appellee’s Statement of the Evidence,

which was adopted by the court, reveals that the court not only heard evidence

relating to the property at issue in the trial of March 10, but also evidence as to the

viability of the marriage.



              The evidence included testimony that Mr. Smith abused his wife

throughout the course of their marriage, including physical abuse so severe that an

ambulance had to be called, that he was a user of drugs, that he made threats with

firearms, and that he was involved sexually with young boys. No purpose can be

served by continuing a marriage under such circumstances. See Fox v. Fox, 676

S.W.2d 956, 958 (Tenn. 1984). While we believe that the parties have been validly

divorced, we direct the trial court to modify its order to reflect this fact, in order to

remove any possible doubts as to the dissolution of the marriage between the parties.




                                          -6-
                                        IV.



             The order of the trial court is affirmed as modified. Remand this cause

to the Chancery Court of Giles County for further proceedings consistent with this

opinion. Tax the costs on appeal to the appellant.




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



CONCUR:




_____________________________
WILLIAM C. KOCH, JR.,JUDGE




_____________________________
WILLIAM B. CAIN, JUDGE
