                   IN THE COURT OF APPEALS OF TENNESSEE
                                AT JACKSON


MARIE PUCKETT, Indiv. & as Admrx.      )
Of the Estate of Robert E. Harrison,   )
deceased, ROBERT RONALD                )
HARRISON, TRINA DEE MANSFIELD,         )
RELMA LOUISE KESTERSON,                )
STEPHEN DANIEL HARRISON,               )
NELLIE LUCILLE COOK and                )
JOSEPH DANIEL HARRISON,                )
                                       )
             Petitioners/Appellants,   ) Weakley Chancery No. 13641
                                       )
VS.                                    ) Appeal No. 02A01-9708-CH-00184
                                       )
PALMA DIANE HARRISON and               )
TAMMIE HARRISON KINCER,                )
                                       )
             Respondents/Appellees.    )


         APPEAL FROM THE CHANCERY COURT OF WEAKLEY COUNTY
                       AT DRESDEN, TENNESSEE
          THE HONORABLE WILLIAM MICHAEL MALOAN, CHANCELLOR


H. MAX SPEIGHT
Dresden, Tennessee
Attorney for Appellants

JAMES H. BRADBERRY
Dresden, Tennessee
Attorney for Appellee




AFFIRMED




                                                           ALAN E. HIGHERS, J.



CONCUR:

W. FRANK CRAWFORD, P.J., W.S.

HOLLY KIRBY LILLARD, J.
    This appeal involves a divorced couple who decided to forego certain provisions in
their marital dissolution agreement concerning ownership of the marital residence without

the consultation of counsel or the court. This matter began as a divorce action in the

Chancery Court of Weakley County, Tennessee, and was styled: Palma Diane Harrison

vs. Robert E. Harrison. Robert (“decedent”) and Palma Diane Harrison (“appellee”)

entered into a Marital Dissolution Agreement on June 27, 1994. The divorce was granted

on September 12, 1994, and the final decree of divorce incorporated the Marital

Dissolution Agreement therein. In pertinent part, the Marital Dissolution Agreement

provided:

             Now, therefore, it is mutually agreed by and between the
             parties in consideration of the mutual covenants and
             agreements hereinafter contained as follows:
             4. That the wife shall be entitled to the right to possess and
             use the property described below until her death or remarriage,
             including water rights on the well:

                    BEGINNING at a stake at the south east corner
                    of the Eagle Hill School house land, runs west 8-
                    2/3 poles to a stake at the northwest corner of
                    the store lot; thence south 12 poles to a stake;
                    thence east 8-2/3 poles to the public road;
                    thence north 12 poles to the beginning,
                    containing by estimation one acre, more or less.
                    And being the same property conveyed to
                    Robert E. Harrison by deed of Wayne D. Stoker,
                    et ux, dated March 27, 1972, and recorded
                    March 27, 1972, in Deed Book 146, Page 384,
                    Register’s Office of Weakley County,
                    Tennessee.

             5. That the husband shall be entitled to possession of all other
             property, and he shall be entitled to ownership of all real
             estate.

             11. All parties agree to execute any document which may be
             or become necessary to effectuate this agreement, including
             but not limited to Quitclaim Deeds and Titles.


             Thereafter, on November 23, 1994, decedent and appellee came to the law

offices of James Bradberry wherein Beverly Skoda was employed. Decedent requested

that Mrs. Skoda prepare a deed of trust on the property that was formerly the residence

of appellee and himself. He wanted the trust deed to be given as security for a bond which

he desired to have created. He importuned Mrs. Skoda to run a title search in preparation

of drafting the deed of trust. After running the title search, Mrs. Skoda learned that the

property in question was titled in the names of both appellee and decedent. After further



                                            2
reviewing the Chancery Court records pertaining to appellee and decedent’s divorce, Mrs.

Skoda advised Mr. Harrison of his right to have appellee quitclaim her interest in the

subject property over to him. In response to Mrs. Skoda’s admonition, decedent insisted

things were, indeed, just how he wanted them to be and that he wanted nothing changed.

That same day, the trust deed was executed by both appellee and decedent.



       Some time later, decedent discovered that he was terminally ill with cancer.

Following this discovery, decedent had several conversations with family members and

other acquaintances in which he communicated that he had everything just the way he

wanted it and desired no changes since appellee had worked for the subject property just

as he had. In addition to Mrs. Skoda, decedent had these conversations with his brother,

Walter Harrison; his sister-in-law, Fay Darnell; his sister-in-law Pat Harrison; and Jane

Dublin.



       No deeds were ever prepared which indicated a transfer of the interest of appellee

in the subject property to decedent. Decedent died on February 16, 1995.



       Decedent’s estate was probated and Marie Puckett, daughter of decedent, was

appointed as Administratrix. On January 25, 1996, a petition was filed by the Administratrix

to order appellee to comply with the provision in the Marital Dissolution Agreement or to

hold her in contempt. Joining in this petition was Robert Ronald Harrison, James E.

Harrison, Trina Mansfield, Relma Kesterson, Stephen Harrison, Nellie Cook, and Joseph

Harrison. An answer to this petition was filed by appellee on February 23, 1996. This

matter came to trial on February 5, 1997. Final judgment in this matter was entered on

March 26, 1997, wherein the trial court found from the proof that decedent had reached

a decision on his own or with appellee that he would not enforce his right to receive a

quitclaim deed from appellee to the subject property. Thus, the trial court ruled that

decedent and appellee now held the property as tenants in common. Particularly, the trial

court found that without the execution of a quitclaim deed transferring the said interest of

appellee to decedent, appellee remained one-half owner of said property.



                                             3
         On appeal, appellants raise two issues for review by this court:

                1. Whether the property division provisions of a divorce
                decree as incorporated via a Marital Dissolution Agreement
                can be modified by the original parties?

                2. Whether the Statute of Frauds applies to the introduction of
                evidence claiming a gift or other oral disposition of real estate?



         Inasmuch as this case was tried by the trial court sitting without a jury, this Court’s

review on appeal is governed by Tennessee Rule of Appellate Procedure 13(d), which

directs us to review the case de novo. Roberts v. Robertson County Bd. of Educ., 692

S.W.2d 863, 865 (Tenn. Ct. App. 1985); Haverlah v. Memphis Aviation, Inc., 674 S.W.2d

297, 300 (Tenn. Ct. App. 1984). In conducting a de novo review of the record below,

however, this Court must presume that the trial court’s findings of fact are correct. Under

this standard of review, we must affirm the trial court’s decision unless the trial court

committed an error of law affecting the result or unless the evidence preponderates against

the trial court’s findings. Roberts, 692 S.W.2d at 865.



         Appellants make two arguments against the judgment of the trial court: first, that a

property division provision of a divorce decree cannot be modified by the original parties,

and second, that the Statute of Frauds applies to the introduction of evidence claiming a

gift or other oral disposition of real estate. We find that both arguments lack substantial

merit.



         The primary cause of the present dispute is the Harrisons’ uncounseled decision to

ignore their property settlement agreement in their MDA. After their divorce, they took it

upon themselves to depart from their original agreement that had been approved by the

trial court.



         A marital dissolution agreement, is essentially contractual. It is not binding on the

court. Alden v. Presley, 637 S.W.2d 862, 864 (Tenn. 1982); Youree v. Youree, 217 Tenn.

53, 58, 394 S.W.2d 869, 871 (1965). However, it loses its contractual character and

becomes binding on the parties once the trial court approves it and incorporates it into a

                                                4
final decree. Penland v. Penland, 521 S.W.2d 222, 224 (Tenn. 1975); Gaines v. Gaines,

599 S.W.2d 561, 565 (Tenn. Ct. App. 1980). A final decree embodying a property

settlement agreement must be respected and followed like any other court order.



       Parties who ignore their court-approved property settlement agreement do so at

their peril. An individual party who unilaterally chooses to ignore the agreement may be

held in contempt. When both parties ignore their property settlement agreement, the

courts will reorder their rights and obligations in light of both the terms of their original

agreement and their post-divorce agreements or conduct. See Mitchell v. Mitchell, 1993

WL 33765 (Tenn. Ct. App. Feb. 10, 1993).



       Here, the trial court had multiple witnesses before it testifying that decedent appellee

had decided to forego the property settlement provisions in the MDA and allow appellee

to retain her one-half interest in the subject property.



       Particularly, Mrs. Beverly Skoda testified that decedent and appellee came into her

office wherein the following conversation took place:

              I reminded him that the quitclaim deeds from Diane had not
              been done and that both their names, were, in effect, on a
              deed, that they owned it together, and I told him I could
              prepare those if he would like to while we were waiting for Mrs.
              Harrison to come, and he said, “No, it’s just like I want it. I
              don’t want anything changed.”



       Walter Harrison, brother of decedent testified in pertinent part:

              Q. And what statements did Mr. Harrison make to you about
              the property and the status of the property at that time?

              A. We talked about it two or three different times. An he
              would just tell me, you know, that he had everything fixed just
              the way he wanted it and said Diane, said, she--well, she--she
              worked for it and helped pay for everything just like I did and it
              was hers as much as it was mine.



       Pat Harrison, sister-in-law of decedent, testified that decedent stated to her that he

had everything just how he wanted it.



                                              5
       Fay Darnell, sister of appellee, testified that in part:

              Q. Did you and Mr. Harrison have any conversations about the
              real property that was owned by Mr. Harrison?

              A. Yes.

              Q. And would you relate what that conversation was?

              A. I said something about I guess y’all will be splitting up your
              property now. And he said, “No,” said, “I’m going to keep it
              sitting--I want it left just like it is.”



       Jane Dublin, relative of appellee, attended church with decedent. She testified in

part as follows:

              Q. And did you have an opportunity to visit with her former
              husband, Robert Harrison, prior to his death?

              A. Yes, I did. We were close. We attended church together.

              Q. Okay. Did you have conversations with Mr. Harrison about
              the property that he owned?

              A. To the point of I asked him did he have everything like he
              wanted it stating about the house and everything. And he said,
              yes, he did have it fixed like he wanted it.

              Q. Did you know what he meant when he said fixed like he
              wanted it? Do you know what the status of the property was
              at that time?

              A. Yeah. I understand that the deed was still in his name and
              in Diane’s name, and he stated that she had worked and
              helped pay for it.


       On appeal from a judgment rendered by a court without a jury, any conflict in

testimony requiring a determination of the credibility of witnesses is for the trial court, and

this determination is accorded great weight by this Court unless other real evidence

compels a contrary conclusion. Linder v. Little, 490 S.W.2d 717 (Tenn. Ct. App. 1972);

See also Duncan v. Duncan, 686 S.W.2d 568 (Tenn. Ct. App. 1985); Haverlah v. Memphis

Aviation, Inc., 674 S.W.2d 297 (Tenn. Ct. App. 1984). The findings of the trial court in a

non-jury case are entitled to great weight where the trial court saw and heard the witnesses

and observed their manner and demeanor on the stand and was therefore in a much better

position than the appellate court to judge the weight and value of their testimony. Smith

v. Hooper, 59 Tenn. App. 167, 438 S.W.2d 765 (Tenn. Ct. App. 1968); Duncan v. Duncan,



                                               6
686 S.W.2d 568 (Tenn. Ct. App. 1985).



       We recognize that the evidence concerning whether decedent decided to forego

certain provisions in the MDA thereby waiving his right to have appellee quitclaim her

intererst in their marital residence was disputed at trial. These conflicts required the trial

judge to evaluate the credibility of the witnesses who appeared before him. He resolved

these credibility issues in favor of appellee. Not having seen these witnesses in person,

we are not in a position to say that he was wrong in his assessment of the witnesses'

credibility. Considering the importance of credibility in this case, we cannot say that the

evidence preponderates against the trial court's findings of fact supporting its conclusion

that both decedent and appellee ignored the provisions of the MDA which resulted in

decedent surrendering his rights to have appellee transfer to him her interest in the subject

property thereby allowing the status of the property to remain unchanged. The trial court

correctly reordered decedent and appellee’s rights under the MDA in light of their conduct

and the testimony of numerous witnesses.



       Appellants further contend that even if there was an attempt bilaterally to modify

this MDA, this agreement violates the Statute of Frauds as codified in Tenn. Code Ann. §

29-2-101 which states:

               (a) No action shall be brought:
                      (4) Upon any contract for the sale of lands,
                      tenements, or hereditaments, or the making of
                      any lease thereof for a longer term than one (1)
                      year; . . .

We disagree.



       The Statute of Frauds is not applicable here since there was no attempt to transfer

land or an interest therein. The only transaction taking place under the subsequent

agreement was not a transfer at all, but a voluntary surrender on the part of decedent of

his right to have appellee execute a transfer of her interest in the subject property to

himself. The court is of the opinion that this takes the subsequent agreement outside the

scope of the Statute of Frauds.        Consequently, such subsequent conduct can be



                                              7
established by parol evidence and from the conduct of the parties themselves. In light of

the conduct of decedent and appellee in failing to carry out certain property provisions of

the MDA and in light of the testimony of several witnesses shedding light on decedent’s

intentions concerning the ownership of the subject property, it is the opinion of this court

that the trial court’s reordering of the decedent’s and appellee’s rights under the MDA was

proper and supported by the evidence in the record.1



        Accordingly, we affirm the judgment of the trial court. Costs of this appeal are taxed

to appellants, for which execution may issue if necessary.




                                                                   HIGHERS, J.

CONCUR:



CRAWFORD, P.J., W.S.



LILLARD, J.




        1
          In any event, if the Statute of Frauds had been applicable to the instant case, the evidence in the
record evinces sufficient documentation of a subsequent agreement between decedent and appellee so as
to rescue the agreement from application of the Statute of Frauds. The December 9, 1994, trust deed shows
that both decedent and appellee signed the trust deed thus indicating that both owned the subject property
jointly. This docum entation surfaced after the trial court’s entry of the final decree of divorce with the
accompanying MDA property settlement provisions incorporated therein.

                                                     8
