                      IN THE COURT OF APPEALS OF TENNESSEE
                                   AT JACKSON
                                              May 23, 2002 Session

           CAROLYN JOY MORRISON v. CHARLES ROY MORRISON

                             Appeal from the Circuit Court for Shelby County
                              No. 159968 R.D.    Karen R. Williams, Judge



                        No. W2001-02653-COA-R3-CV - Filed October 29, 2002


This case involves the finality of a divorce decree. The parties were married in 1971 and divorced
in 2001. Under the divorce, the parties received, as separate property, their respective “bank,
retirement and investment accounts” listed in each spouse’s name. The wife now asserts that the
husband’s military pension was not provided for in the divorce decree, that the divorce decree is
therefore not final, and that the trial court should equitably divide the funds the husband receives
from his military pension. The trial court found that the pension was part of the “retirement” funds
allocated as separate property. On this basis, it denied the wife’s Rule 59 motion to alter, amend,
or vacate the judgment. The wife appeals. We affirm, finding that the parties’ final divorce decree
contemplated that the parties would retain their respective retirement benefits, including the military
pension.

                     Tenn. R. App. P. 3; Judgment of the Circuit Court Affirmed

HOLLY K. LILLARD, J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J.,
W.S., and ALAN E. HIGHERS, J., joined.

Bradley J. Cordts, Memphis, Tennessee, for appellant Carolyn Joy Morrison.

Linda F. Teems, Memphis, Tennessee, for appellee Charles Roy Morrison

                                                        OPINION

       Plaintiff/Appellant Carolyn Joy Morrison (“Wife”) and Defendant/Appellee Charles Roy
Morrison (“Husband”) were married on November 3, 1971.1 Wife filed divorce on July 29, 1998,
and Husband filed a counter-complaint for divorce on November 17, 1998. The trial was set several
times and continued, and the parties engaged in settlement negotiations. The case was again set for
August 22, 2001.



       1
           The parties’ only child reac hed majo rity before the entry of the fina l divorce de cree.
         Instead of proceeding to trial, the parties continued settlement negotiations. That afternoon,
the trial court was notified that the parties had reached an agreement as to all issues.

        Later the same day, a final decree of divorce stating the terms of the settlement agreement
was prepared by the parties’ counsel and entered by the trial court. The divorce decree provided for
a cross-waiver of “all bank, retirement and investment accounts.” The decree was signed by the
Husband’s attorney, and Wife’s attorney’s signature was by Husband’s attorney with permission.

        On September 21, 2001, with the trial court’s permission, Wife substituted her former
counsel for her current counsel. Wife’s new counsel then moved to alter, amend, or vacate the trial
court’s judgment, or for a new trial. Wife asserted that the final divorce decree was incomplete
because it did not address Husband’s military pension and did not include a provision on
rehabilitative alimony to which the parties had agreed. Shortly thereafter, on September 25, 2001,
an amended final decree of divorce was entered, nunc pro tunc, adding the rehabilitative alimony
provision. The agreed amended decree did not further address Husband’s military pension.

         On October 5, 2001, the trial court held a hearing on Wife’s motion to alter or amend. The
trial judge stated that she interpreted the parties’ cross waiver on retirement to mean that discussion
of any retirement-type assets, regardless of its source, was “off the table.”2 Thus, the trial court
found that the final decree in fact addressed Husband’s military pension. On this basis, the trial court
denied Wife’s motion to amend, alter, or vacate judgment, or for a new trial. From this order, Wife
now appeals.

       On appeal, Wife argues that the division of marital property in this case was not equitable
because it did not include Husband’s military pension. Husband asserts that the term “retirement
account” in the final decree included Husband’s military pension, and therefore was addressed in the
provision in the parties’ divorce decree which stipulated that each party was to retain his or her own
bank, retirement and investment accounts.

       The denial of a Rule 59.04 motion to alter, amend, or vacate the judgment is reviewed under
an abuse of discretion standard. Smith v. Haley, No. E2000-001203-COA-R3-CV , 2001 Tenn. App.
LEXIS 136, at *14 (Tenn. Ct. App. March 2, 2001); Bradley v. McLeod, 984 S.W.2d 929, 933
(Tenn. Ct. App. 1998). A trial court abuses its discretion when it reaches a decision against logic
that causes a harm to the complaining party or when the trial court applies an incorrect legal
standard. Eldridge v. Eldridge, 72 S.W.3d 82, 85 (Tenn. 2001) (citing State v. Shirley, 6 S.W.3d
243, 247 (Tenn. 1999)). The decision of the trial court “will be upheld so long as reasonable minds


       2
           The trial judge stated:

       W hen counsel announced to me that there was going to be a cross w aiver o n retirem ent, I too k that to
       be any form of retirem ent, whether it’s an IRA , whether or no t it’s from the federal government,
       whether or no t it’s from a business. That was just retirement, period, off the table, resolved. If the
       court of appeals wants to untie this divorce, they’re welcom e to do so, b ut I’m no t going to untie it.



                                                         -2-
can disagree as to the propriety of the decision [of the trial court].” State v. Scott, 33 S.W.3d 746,
751 (Tenn. 2000).

          On appeal, Wife emphasizes the trial court’s obligation to ensure that the property
distribution is equitable. She argues that there is a difference between a “retirement account” and
a “pension,” and that therefore the portion of the final decree providing for a cross-waiver of the
parties’ “retirement accounts” does not include Husband’s military pension. Consequently, because
the parties’ divorce decree does not address Husband’s military pension, the trial court failed to
fulfill its responsibility of ensuring an equitable distribution of the couples’ marital property. Thus,
the Wife asserts, the divorce decree is incomplete and should be either vacated and remanded to the
trial court, or alternatively, amended to reflect the equitable disposition of Husband’s military
pension.

        Under Tennessee law, a motion to alter or amend under Rule 59 of the Tennessee Rules of
Civil Procedure permits the trial court to revisit and rectify errors that were made when the court
overlooked or failed to consider certain matters. Spencer v. Hurd Inv. Prop., Inc., No. 67, 1991
Tenn. App. LEXIS 275, at *12 (Tenn. Ct. App. 1991). A Rule 59 motion may be granted “when (1)
controlling law changes before a judgment becomes final, (2) when previously unavailable evidence
becomes available, or (3) when, for sui generis reasons, a judgment should be amended to correct
a clear error of law or to prevent injustice.” Bradley v. McLeod, 984 S.W.2d 929, 933 (Tenn. Ct.
App. 1998), overruled in part on other grounds by Harris v. Chern, 33 S.W.3d 741 (Tenn. 2000).
A Rule 59 motion should not be granted when the movant is simply seeking to relitigate a matter that
has already been adjudicated. See id.

        Wife’s argument on appeal is premised on her assertion that the final decree does not address
the Husband’s military pension. The circumstances, however, indicate otherwise. During the
settlement negotiations, Wife was represented by counsel. She does not dispute that she was aware
of Husband’s military pension.3 The cross-waiver in the final decree indicates clearly that the parties
intended for each party to retain the benefits that pertained to that party, and that they intended to
resolve all property division issues. Wife’s attorney at that time read the final decree and gave
counsel for Husband permission to sign his name approving the final decree. Under all of these
circumstances, we must conclude that the parties intended for the cross-waiver to include Husband’s
military pension. Thus, we find that the trial court did not err in finding that the final decree was
intended to address the military pension, and consequently we conclude that the trial court did not
abuse its discretion in denying Wife’s Rule 59 motion to alter or amend.




         3
           In his appellate brief, Husband asserts that the trial memorandum subm itted the d ay of trial no ted H usband’s
military pension. The trial memorandum, however, was not included in the record on appeal. Consequently, it cannot
be co nsidered b y this Court.

                                                           -3-
       The decision of the trial court is affirmed. Costs are taxed to the appellant, Carolyn Joy
Morrison, and her surety, for which execution may issue if necessary.




                                            ___________________________________
                                            HOLLY K. LILLARD, JUDGE




                                              -4-
