                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                                  April 17, 2013 Session

               MARIANNE GREER v. PHILIP ERNEST COBBLE

                    Appeal from the Circuit Court for Knox County
                        No. 108701     Michael Moyers, Judge




               No. E2012-01162-COA-R3-CV-FILED-AUGUST 15, 2013


This appeal concerns a settlement agreement in a divorce. The parties purportedly had
reached an agreement regarding the division of their property. An order, proposed by the
wife, was signed by counsel for both parties and entered by the trial court. The husband later
filed a pro se notice of appeal containing allegations that he did not agree to the terms of the
settlement and that it is incomplete. We remand this matter to the trial court for further
proceedings.

        Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
                             Vacated; Case Remanded

J OHN W. M CC LARTY, J., delivered the opinion of the Court, in which C HARLES D. S USANO,
J R., P.J., and D. M ICHAEL S WINEY, J., joined.

Phillip Ernest Cobble, Knoxville, Tennessee, pro se appellant.

Shelley S. Breeding and Allison J. Starnes-Anglea, Knoxville, Tennessee, for the appellee,
Marianne Greer.

                                          OPINION

                                    I. BACKGROUND

       Phillip Earnest Cobble (“Husband”) and Marianne Greer (“Wife”) were married on
July 15, 2000, in Knoxville, Tennessee. They lived together as husband and wife in their
marital home. The parties had no children from this marriage. Husband has two daughters,
Kimberly and Ashley, and Wife has one daughter, Madison Akers.
       The parties experienced several setbacks in their relationship, and even attended
marriage counseling together. In October 2007, Wife called the police claiming that
Husband had battered her, and Husband temporarily moved out of the marital residence.
While he was gone, Wife filed for divorce and an order of protection. The parties decided
to permanently separate on November 28, 2007.

       The divorce ultimately was granted on April 8, 2010, but the division of the parties’
property was reserved for trial. The issue of the division of the parties’ property and
allocation of costs and expenses finally was addressed on December 7 and 8, 2011. On
December 8, 2011, the parties announced to the court that a settlement agreement had been
reached. Counsel for the parties discussed the agreement before the trial court as follows:

       MS. HELD: Yes, Your Honor. We have what we believe to be an agreement
       ....

                                             ***

       MS. BREEDING: . . . What we have done at this time is, we have said, Mr.
       Cobble gets what he has plus a certain number of items. Ms. Greer gets what
       she’s using in the house plus a certain number of items in the acres [sic] estate.
       What’s left, they will divide each picking one.

       MS. HELD: And then we’ve stipulated that is a – the values are fifty/fifty.

       THE COURT: Okay. Well, then as counsel, you’re on the record both. Mr.
       Cobble, Ms. Greer, you’re in agreement with this division of the personalty
       that remains?

       MR. COBBLE: Yes, Your Honor.

       THE COURT: Ms. Greer?

       MS. GREER: Yes, Your Honor.

       THE COURT: All right. Both parties have answered in the affirmative, so
       that’s how we will divide the personalty. . . .

The parties later announced another settlement:

       MS. HELD: Your Honor, I believe we have a settlement, with the Court’s

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assistance, which we are profoundly appreciative, and the guidance we’ve
received from the Court today. Under this agreement, Mr. Cobble will take all
the parties’ 2007 IRS debt. He will take Lost Tree, which is his condo.

                                     ***

MS. HELD: . . . I think there’s like a thousand dollars in 2008, but he is taking
all IRS debt. The 2007 was the big one.

                                     ***

MS. HELD: He is taking all IRS. He is taking possession of Lost Tree, which
is his condo. He’s taking the mortgage associated with Lost Tree. He is
agreeing to a judgment in the total sum of fifty thousand dollars. That breaks
down to twenty-five thousand dollars for Lori Fleishman and twenty-five
thousand dollars for Shelley Breeding.

He is agreeing to – well, there’s already been a judgment entered in the amount
of twenty-eight thousand plus interest, whatever that is. It’s something less
than thirty thousand. That will be paid in installments of a thousand dollars a
month with the first payment being due on December 15th. It is anticipated
that how these payments will work – and, in fact, we want this as part of the
judgment how they will work. That there will be an assignment of – what’s
it called, lease –

MR. COBBLE: The Lease Management Commission.

MS. HELD: The Lease Management Commission. We have generally
referred to it as the Assignment of Rents, but it’s technically the Lease
Management Commission. That generally runs in the neighborhood of five
hundred and eighty-five dollars a month. He will make up the difference
between that five eighty-five and a thousand dollars, just however he does it,
out of his pocket, and he –

MS. BREEDING: Or if it’s less than five eighty-five –

MS. HELD: Or just whatever it is, he will make up the difference between
what the rent is –

THE COURT: Right.

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      MS. HELD: – and a thousand dollars out of his pocket. That will be due, the
      first payment due December 15 and each month thereafter until the thirty
      thousand dollar judgment is paid in full.

      MS. BREEDING: With interest.

      MS. HELD: With the interest. With regard to the attorney’s fees, counsel, as
      in Ms. Breeding, Ms. Fleishman, and myself, will meet or confer sometime
      prior to the 30th and to come up with a payment plan privately. I don’t know
      that we need to necessarily announce that to the Court.

      Something that we didn’t specifically discuss, but I guess I kind of assumed
      was that Ms. Greer’s credit card debts would remain hers. Mr. Cobble’s credit
      card debts would remain his. I think she has about sixteen thousand dollars
      that were accrued during the marriage. Other than the aforementioned fifty
      thousand dollars, each party pays their own attorney’s fees. Court costs split.

      Have I left anything out? Oh, and of course, the personalty which we agreed
      to earlier remains the same.

      MS. BREEDING: And I don’t know if we need to put that on the record. We
      have this chicken scratch list.

      THE COURT: Just type it out and attach it. Just make it a part of an exhibit
      to the final judgment.


      Both counsel for Husband and counsel for Wife submitted prospective final orders.
On January 23, 2012, counsel for Husband noted that the parties were “very close to an
Agreed Order,” with “[t]he only area of disagreement [being] Paragraph 10.” Counsel for
Husband indicated as follows:

      Ms. Breeding’s [proposed] Order gives the life insurance policy to her client;
      my client is adamant that the parties agreed he should have the policy. I
      understand that Ms. Greer’s position is that she should get the policy because
      she paid the premium from the date of the divorce until present. Mr. Cobble’s
      position is that the policy and the cemetery plots [were] supposed to be
      included with the list of personalty to be divided by the parties; that [Wife]
      picked the cemetery plots and he pick[ed] the insurance policy. He’s also
      uncomfortable with his ex-wife in an acrimonious divorce having an insurance

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       claim on his life.

       The policy has no cash value. If I understand Ms. Breeding, we can agree to
       either schedule a hearing or a conference call, or we can just live with
       whichever Order you choose to sign. . . .

On March 30, 2012, counsel for the parties appeared for a hearing in chambers and the court
signed and entered the order presented by Wife’s counsel. That order provided as follows:

       1.     Husband shall be responsible for all outstanding IRS debt of the parties
              jointly or in Husband’s name alone. Wife has no outstanding IRS debt
              in her name only. Husband shall be responsible for the 2006 tax year
              debt of approximately Three Thousand Two Hundred Sixty-Five and
              24/100 ($3,265.24); the 2007 tax year debt of approximately Ninety-
              Three Thousand Seven Hundred Fifty and 43/100 Dollars ($93,750.43);
              and the 2008 tax year debt of approximately One Thousand Thirty-One
              and 80/100 Dollars ($1,031.80) plus all penalties and interest associated
              with such. Husband shall hold Wife harmless from such debt and
              indemnify Wife from such debt.

       2.     Wife shall be responsible for the debt in her individual name including
              the credit cards in her name with Target Visa, CitiCard and Home
              Federal Visa. Wife shall hold Husband harmless from such debt and
              indemnify Husband from such debt.

       3.     Husband shall be responsible for any debt in his individual name and
              indemnify Wife from such.

       4.     Husband shall pay Wife’s attorneys’ fees to Fleishman & Knight in the
              amount of Twenty Five Thousand Dollars ($25,000.00) and to Breeding
              and Dothard, LLC in the amount of Twenty Five Thousand Dollars
              ($25,000.00).

       5.     Wife is awarded any and all bank accounts in her individual name,
              including her Home Federal account. Wife is also awarded the
              Education IRA account that is in the name of Madison Akers for which
              she is custodian.

       6.     Husband is awarded any and all bank accounts in his individual name
              and his company’s name, including the First Tennessee and Regions

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      accounts for Cobble Realty and in his personal name.

7.    Husband is awarded all interest in his real estate company, Cobble
      Realty, LLC.

8.    Husband is awarded the accounts receivable of a loan owed to the
      parties from Mitch Burnett.

9.    Wife is awarded the two (2) cemetery plots.

10.   Wife is awarded the life insurance policy on Husband’s life.

11.   The personal property is divided as shown on the attached Exhibit A.

12.   Neither party shall owe alimony to the other party.

13.   Husband shall pay to Wife the sum of One Thousand Dollars
      ($1,000.00) per month toward the outstanding judgments she was
      awarded in the Order of Protection matter and the previous contempt
      hearing for non-payment of expenses and alimony by Husband. Such
      payments shall be made by the fifteenth (15th) day of each month
      beginning December 15, 2011 and mailed or delivered to the office of
      Breeding & Dothard, LLC so that such payments are received on or
      before the fifteenth (15th) day of each month. Husband shall assign his
      rights to income from the property management division of his
      company to be directly paid to Wife. Husband shall make up the
      difference between such payment and One Thousand Dollars
      ($1,000.00) each month. The judgments shall continue to accrue
      interest at the statutory rate until the judgments are paid in full. If
      Husband fails to timely make the December 15, 2011 payment, then he
      will be subject to serving his suspended sentence as outlined in the
      Order suspending his sentence. If Husband fails to make payments
      timely after December 15, 2011, he will not automatically be subject to
      serve his suspended sentence, but Wife may file a Petition for Contempt
      related to such.

14.   Husband’s supervised probation shall be modified so that he is no
      longer on supervised probation and may leave the State of Tennessee.

15.   Husband shall still comply with the terms of the Order of Protection

                                    -6-
              entered by this Court granting Wife a permanent Order of Protection.
              Husband may file a Petition to Modify the terms of the Order of
              Protection.

       It is therefore ORDERED, ADJUDGED, & DECREED that the parties’
       marital estate is hereby divided as set forth herein.

The signed final order was entered on April 27, 2012. Husband admits he received a copy
of this order on May 4, 2012. On May 9, 2012, an order approving the entry of the order was
signed by counsel for both parties and filed with the court. This order noted:

       1.     The Court approves and enters the Final Order proposed by Plaintiff,
              Marianne Greer (“Wife”).

       2.     Defendant, Philip Cobble (“Husband”), is awarded the marital property
              currently located at his condominium.

       3.     Husband and Wife are also awarded the items of real property
              identified in the hand-written list attached to the asset list identified as
              Exhibit 1 at the trial of this matter. This award does not include the
              Ron Williams painting currently located at Defendant’s office.

       4.     Wife shall make an Affidavit of the marital property, identified in Trial
              Exhibit 1, that does not exist.

       5.     The marital property not awarded herein or awarded pursuant to the
              Final Order will be divided by the parties. Wife shall select an item of
              such marital property first; then the parties will alternate selecting items
              until all items have been claimed.

The record however shows that no exhibit (either “1” or “A”) was attached to the final order.

        Husband pro se filed a notice of appeal on May 29, 2012. He contended, inter alia,
that the final order was fundamentally flawed because the exhibit was not included with the
final order.


                                         II. ISSUES

       We consolidate and restate the issues raised on appeal as follows:

                                              -7-
       a.     Whether the final order from the trial court consisted a final judgment
              for the purposes of an appeal as of right pursuant to Rule 3 of the
              Tennessee Rules of Appellate Procedure.

       b.     Whether Husband timely filed his appeal pursuant to Rule 4 of the
              Tennessee Rules of Appellate Procedure.

       c.     Whether Husband preserved the issues for appeal.

       d.     Whether the trial court correctly granted the Wife’s motion to dismiss
              as the Husband consented to the agreed upon final order.

       e.     Whether the Husband filed a frivolous appeal stating no reason for
              which a decision should be reversed and should be subject to sanctions
              and attorney’s fees.


                                     III. DISCUSSION

       In Tennessee, a judgment that does not dispose of all claims or rights and liabilities
requested in a pleading is not a final judgment for purposes of a Rule 3 appeal. In re Estate
of Henderson, 121 S.W.3d 643, 645 (Tenn. 2003). Further, Rule 3(a) of the Tennessee Rules
of Appellate Procedure provides:

       Any order that adjudicates fewer than all the claims or the rights and liabilities
       of fewer than all the parties is not enforceable or appealable and is subject to
       revision at any time before entry of a final judgment adjudicating all the
       claims, rights, and liabilities of all parties.

Tenn. R. App. P. 3(a) (emphasis added).

       Husband’s main contention is that the final order from the trial court is not a final
judgment because the “Wife and her attorney have failed to file a complete Final Order . . .
[and that] the Final Order . . . is flawed beyond repair and is already void de facto in that it
cannot be enforced.” He further contends that neither he nor his attorney approved the final
order, which should render the order invalid.

       Despite the fact that it appears that the parties addressed essentially every conceivable
issue in this contentious matter, we find merit in Husband’s timely filed assertions. The
exhibit reflecting the distribution of the marital property is not of record. Because the record

                                              -8-
before us is incomplete, we are unable to determine definitively whether a final judgment
was entered in this cause. On remand, the trial court is instructed to make specific findings
of fact as to the parties’ agreement regarding the marital assets, to whom the items are
assigned, and the value given to each item. Additionally, the court is instructed to place on
the record the declarations of the parties regarding whether or not there are any remaining
issues requiring resolution.


                                   IV. CONCLUSION

       We hereby vacate the decision of the trial court and remand this cause for further
proceedings consistent with this opinion. Costs are assessed equally against the appellant,
Philip Cobble, as well as appellee, Marianne Greer.




                                           _________________________________
                                                 JOHN W. McCLARTY, JUDGE




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