                  IN THE COURT OF APPEALS OF TENNESSEE
                               AT JACKSON
                      ASSIGNED ON BRIEFS OCTOBER 30, 2008

              GERRY GALLIMORE, ET AL. v. REBA GALLIMORE

                 Direct Appeal from the Chancery Court for Weakley County
                     No. 20,269    William Michael Maloan, Chancellor



                      No. W2008-00856-COA-R3-CV - Filed April 2, 2009


This case involves a dispute between a decedent’s ex-wife and the decedent’s heirs. When the
decedent and the ex-wife divorced, their marital dissolution agreement provided that the decedent
would receive certain real property. When the decedent died four years later, the ex-wife had not
executed a quitclaim deed conveying her interest in the property to the decedent. Therefore, the heirs
filed this action to quiet title. The ex-wife claimed that the decedent wanted her to retain her interest
in the property, and she claimed that the heirs were barred from seeking relief under the doctrines
of laches and waiver. The trial court found in favor of the heirs, and the ex-wife appeals. We affirm.


    Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Chancery Court Affirmed

ALAN E. HIGHERS, P.J.,W.S., delivered the opinion of the court, in which DAVID R. FARMER , J., and
HOLLY M. KIRBY , J., joined.

Jeffery T. Washburn, Dresden, TN, for Appellant

James H. Bradberry, Dresden, TN, for Appellee




                                              OPINION
                                I. FACTS & PROCEDURAL HISTORY

        Ronnie and Reba Gallimore were married from 1999 to 2003. During the marriage, Ronnie’s
siblings executed a quitclaim deed conveying a parcel of property, consisting of a house and lot, to
Ronnie and Reba as tenants by the entirety. When Ronnie and Reba divorced in 2003, they entered
into a marital dissolution agreement (“MDA”) providing that Ronnie would retain sole ownership
of the property, and Reba would execute the documents necessary to convey her interest in the
property to Ronnie.

        In 2007, Ronnie died suddenly due to a heart attack. Reba had not conveyed her interest in
the property to Ronnie prior to his death. Ronnie’s heirs, who were his siblings, nieces and nephews,
filed a complaint to quiet title to the property. They sought an order divesting Reba of title to the
property or requiring Reba to execute a quitclaim deed conveying her interest in the property to the
estate. Reba filed an answer asserting that the doctrines of laches and waiver barred the heirs from
seeking relief, and she also claimed that Ronnie had expressed his desire not to remove her name
from the deed. Reba maintained that she owned a one-half undivided interest in the property because
the tenancy by the entirety was converted to a tenancy in common as a result of the divorce.

       At trial, Reba testified that she and Ronnie had maintained a friendly relationship since the
divorce, as they continued to work at the same office. She said Ronnie continued to send her
Valentine’s Day gifts and flowers, and he still had a license plate on his truck that read “Ronnie and
Reba.” Reba acknowledged that she was dating someone else, and that her boyfriend lived in the
same house where she lived, but she said Ronnie knew she was dating another man. Reba said she
had a key to Ronnie’s house and still had personal property there at the time of Ronnie’s death. She
explained that she moved into a very small house after the divorce, and Ronnie allowed her to leave
some things at his house in order to avoid paying storage fees. Reba’s daughter testified that she also
had a key to Ronnie’s house because she had left some of her belongings there after she and Reba
moved out.

       Reba testified that three to four months after the divorce, she asked Ronnie if he wanted “to
go and get a new deed drawn up to take [her] name off.” She said Ronnie told her no and that he was
not worried about it. According to Reba, she then told Ronnie that whenever he wanted to go, she
would go and sign the deed.

        In September of 2004, nearly a year after the divorce, the City of Dresden needed an
easement over and across the property in order to repair and maintain a storm water drain partially
located in the front yard of the property. The City’s attorney prepared a document by which Ronnie
and Reba would grant the easement to the City. Reba testified that Ronnie brought the document
to work and told her that she needed to sign it because her name was still on the deed. Ronnie and
Reba never discussed the deed again.

         Reba testified that after Ronnie’s death, she learned that she was still listed as the beneficiary
of his life insurance policy and his retirement account. In addition, her name was still listed on his


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checking account. Reba testified that she received over $50,000 from these accounts after Ronnie’s
death, despite a provision in the MDA providing that Reba waived all right, title and interest in and
to Ronnie’s property and estate, including insurance, contractual, and retirement benefits.1 Reba
admitted that she was surprised that her name was still listed as the beneficiary of Ronnie’s
retirement account when he died, and she also said she did not think she had an interest in his life
insurance policy due to the provision in the MDA. Reba insisted that nothing prevented Ronnie from
executing the documents necessary to remove her name from these accounts or the deed to the house.
She claimed that Ronnie simply ignored the provisions of the MDA.

         Gerry Gallimore, who was Ronnie’s brother and the executor of his estate, also testified at
trial. Gerry testified that Ronnie moved into the house at issue in 1965 to live with their mother after
their father died. Gerry testified that their mother left the property to Ronnie when she died, but her
will was not probated, so he and his siblings executed the quitclaim deed to Ronnie and Reba. Gerry
described Ronnie as a procrastinator and said he “wasn’t in a hurry” about getting things done. As
an example, he pointed out that the electric bill at Ronnie’s house was still listed in Ronnie’s father’s
name when Ronnie died in 2007, although Ronnie’s father died in 1963. Gerry testified that in
sorting through Ronnie’s belongings and paperwork after his death, he found an unexecuted
quitclaim deed which would convey Reba’s interest in the property to Ronnie. This deed, introduced
as an exhibit at trial, states that it was prepared by an attorney in Martin. The dates listed in the
document read, “this ___ day of January, 2007.”

        Terry Gallimore, another one of Ronnie’s brothers, also testified that Ronnie was slow about
getting things done and “just didn’t get in no hurry.” Terry testified that he would go with Ronnie
when he would buy vehicles and “do the dealing” for him. Terry said that 99 percent of the time,
someone had to be with Ronnie in order for him to get things done. Terry said that he and Ronnie
discussed the deed to the property “from time to time” after Ronnie and Reba divorced, and that
sometime around the beginning of 2007, Ronnie told him that he was “going to Martin to get that
[taken] care of.”

        The supervisor at the office where Ronnie and Reba worked testified that they were “always
nice and friendly to each other,” and that he did not notice a change in their behavior after the
divorce. He said Ronnie was a great employee, and he would not describe Ronnie as a
procrastinator. However, the supervisor said he had no knowledge about Ronnie’s personal business
because he was quiet and kept to himself. Another co-worker also testified that Ronnie and Reba
“were still friends” after the divorce. This co-worker also said that Ronnie was not a procrastinator,
but he said he was not surprised by the fact that Ronnie’s electric bill was still in his father’s name
because “[Ronnie] had certain ways about him like that.”

         Another employee, who worked in the finance department at Ronnie’s place of employment,
testified as well. She said that Ronnie asked her, just a few months prior to his death, “do I have to



        1
            The disposition of these funds was not challenged in the trial court and is not at issue on appeal.

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change the beneficiary on my retirement?” The employee testified that she told Ronnie, “no, you
can leave it whoever you want to,” and Ronnie said “okay” and left.

        Reba disputed the other witnesses’ characterization of Ronnie as a procrastinator and said
that he decided to leave the electric bill in his father’s name to avoid paying charges to have it
changed.

       On March 25, 2008, the chancellor entered an order finding that “the conduct of the parties
subsequent to the divorce does not overcome the contractual obligation confirmed by the Final
Decree of Divorce.” The court found that although the property was never transferred, Ronnie did
have a quitclaim deed prepared in January of 2007. The court divested title to the property from
Reba and vested title in Ronnie’s heirs. Reba timely filed a notice of appeal.

                                        II. ISSUE PRESENTED

       On appeal, Reba presents the following issue for review: “Whether the Chancery Court of
Weakley County, Tennessee, erred by finding and so ruling that the Appellant[’]s interest in the real
property should be divested out of the Appellant and vested in the intestate heirs of the decedent,
Ronald L. Gallimore.” For the following reasons, we affirm the decision of the chancery court.

                                    III.    STANDARD OF REVIEW

        On appeal, a trial court’s factual findings are presumed to be correct, and we will not overturn
those factual findings unless the evidence preponderates against them. Tenn. R. App. P. 13(d)
(2008); 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 under a de novo standard upon the record with no presumption of correctness.
Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993) (citing Estate of Adkins v.
White Consol. Indus., Inc., 788 S.W.2d 815, 817 (Tenn. Ct. App. 1989)).

                                           IV. DISCUSSION

                                   A.      Post-Divorce Agreements

        “A marital dissolution agreement is a contract between parties contemplating divorce.”
Hannahan v. Hannahan, 247 S.W.3d 625, 627 (Tenn. Ct. App. 2007) (citing Gray v. Estate of
Gray, 993 S.W.2d 59, 63 (Tenn. Ct. App. 1998)). When a divorce decree becomes final, a marital
dissolution agreement merges into the decree as to matters of child support and alimony, and the trial
court has continuing statutory power to modify the decree as to those matters when justified by
changed circumstances. Id. (citing Penland v. Penland, 521 S.W.2d 222, 224 (Tenn. 1975)).


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However, to the extent that a marital dissolution agreement is an agreement as to the distribution of
marital property, it does not lose its contractual nature by merger into the divorce decree and is not
subject to later modification by the court. Id. (citing Towner v. Towner, 858 S.W.2d 888 (Tenn.
1993)). A marital dissolution agreement, as a property settlement agreement, retains its contractual
nature and is subject to modification by the parties. Id.

         On appeal, Reba contends that Ronnie, “subsequent to the divorce[,] engaged in a course of
conduct and acts indicative of his intent not to have her name removed from the real estate[.]” She
cites three cases in which courts have refused to enforce provisions of marital dissolution agreements
based upon subsequent agreements between the parties.

        The first case Reba relies upon is Mitchell v. Mitchell, No. 01A01-9206-CV-00244, 1993
WL 33765 (Tenn. Ct. App. M.S. Feb. 10, 1993), rev’d on other grounds, 876 S.W.2d 830 (Tenn.
1994). In that case, the parties’ marital dissolution agreement provided that the husband would
continue to pay the mortgage against the property where the wife lived. Id. at *1. Soon after the
divorce, however, the wife decided to sell that house, and she and the husband informally agreed to
purchase another house as tenants in common, with the husband paying the mortgage on the new
house. Id. at *2. They later decided to sell the second house, and the parties’ attorneys wrote formal
letters evidencing the terms of their agreement. Id. When subsequent disagreements arose, the
husband claimed that the parties’ informal modifications to the marital dissolution agreement were
not binding. Id. at *4. The Court of Appeals explained,

       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.

Id. The Court rejected the husband’s argument that the parties could not modify their marital
dissolution agreement, stating that the husband’s argument “overlook[ed] the most rudimentary
principles of contract law.” Id. The Court explained that “[c]ontracts require an offer, an effective
acceptance of the offer, and adequate consideration.” Id. at *5. Finding each of those elements
present, the Court found that the Mitchells entered into enforceable agreements that were
inconsistent with their original property settlement agreement. Id. at *4.

        The next case cited by Reba is Holland v. Holland, No. M1999-02791-COA-R3-CV, 2001
WL 585107, at *1 (Tenn. Ct. App. June 1, 2001), in which the parties’ divorce decree required the
wife to assume responsibility for a $20,000 debt in the husband’s name. Later, the parties entered
into a handwritten agreement providing that the husband released the wife from her obligation to pay
the $20,000 debt in exchange for her agreement to use her credit to help him purchase a truck. Id.
The Court of Appeals warned that
        [w]hen both parties ignore their court-approved agreement, they run the risk that the
        court will decline to recognize their claims based on their later, unapproved


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       agreement should something go awry. Thus, the prudent course is to obtain court
       approval when the parties agree to a new arrangement that differs materially from the
       terms of their original agreement approved in the final decree.
               However, both the trial and appellate courts understand through experience
       that parties in divorce cases frequently engage in self-help with regard to the division
       of their marital estates. It is not uncommon for divorce decrees to leave details
       regarding the division of personal property to the parties or for the parties to change
       their minds once a final decree has been entered. In these circumstances, the parties
       frequently reach accommodations that suit their particular circumstances. In cases
       where the rights of third parties are not adversely affected, divorced parties should
       be encouraged to resolve their differences without returning to the courts. Thus,
       rather than invalidating post-divorce agreements by adopting a per se rule against
       them, the better course is to apply normal principles of contract law to the
       post-divorce agreements in which the parties undertake to alter or waive their rights
       embodied in the final divorce decree.

Id. at *2 (footnote and citations omitted). Applying basic contract law, the Court found that the
parties’ post-divorce agreement was valid and enforceable, stating, “The parties have no dispute
regarding the terms of their agreement, and these terms are sufficiently definite to be enforced and
are supported by adequate consideration.” Id. at *3.

         The final case Reba cites, Puckett v. Harrison, No. 02A01-9708-CH-00184, 1998 WL
464896 (Tenn. Ct. App. W.S. Aug. 11, 1998), involved a situation similar to the case before us.
When Mr. and Mrs. Harrison divorced, they entered into a marital dissolution agreement providing
that Mr. Harrison was entitled to ownership of all the parties’ real estate, but Mrs. Harrison had the
right to use some of the property until her death or remarriage. Id. at *1. One month later, Mr. and
Mrs. Harrison went to a law office to have a deed of trust prepared. Id. The lawyer learned that
certain property was still titled in the names of Mr. and Mrs. Harrison, and she advised Mr. Harrison
of his right to have Mrs. Harrison quitclaim her interest in the property to him. Id. Mr. Harrison
insisted that he wanted nothing changed and said he had things just how he wanted them. Id. Mr.
Harrison later discovered that he was terminally ill with cancer, and he had several conversations
with family members and friends in which he communicated his desire to leave the property as it was
because Mrs. Harrison had worked for the property just as he had. Id. When Mr. Harrison died,
Mrs. Harrison’s name was still on the deed. Id. at *2. Mr. Harrison’s family members and friends,
and the attorney who counseled him regarding the deed, all testified at trial about his intention to
forego the provisions of the marital dissolution agreement in order to allow Mrs. Harrison to retain
her interest in the property. Id. at *3. Based on this testimony, the trial court found that Mr.
Harrison “had reached a decision on his own or with [Mrs. Harrison] that he would not enforce his
right to receive a quitclaim deed from [Mrs. Harrison] to the subject property.” Id. at *2. The Court
of Appeals found that the evidence supported the trial court’s conclusion. Id. at *4.

      We find each of these three cases distinguishable from the case at bar. In Mitchell and
Holland, there was documentary evidence of the parties’ post-divorce agreements, and the parties


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did not dispute the existence of those agreements. In this case, there is absolutely no evidence of a
binding agreement between the parties modifying the provisions of the MDA. “Oral contracts are
enforceable, but persons seeking to enforce them must prove mutual assent to the terms of the
agreement and must also demonstrate that the terms of the contract are sufficiently definite to be
enforceable.” Holland, 2001 WL 585107, at *3. Reba testified that she told Ronnie, during their
one conversation about having a deed prepared, that she would go with him to execute the deed
whenever he was ready. Clearly then, she did not believe, based on this one conversation, that
Ronnie did not intend to enforce the provisions of the MDA.

        In Puckett v. Harrison, numerous witnesses testified about their discussions with the
decedent, prior to his foreseeable death, that he wanted to ignore the marital dissolution agreement
and allow his ex-wife to retain her interest in the property at issue. There was no such testimony in
this case. Reba simply assumes that Ronnie wanted her to have the property because he did not bring
her a deed to sign or change the beneficiaries on certain accounts prior to his death. However,
witnesses testified about Ronnie’s tendency to procrastinate about handling such personal matters.
In addition, Ronnie retained a local attorney to prepare the quitclaim deed just months before his
death, and he told his brother that he was going to get the issue “[taken] care of.” Ronnie died
suddenly and unexpectedly later that year. Therefore, we find no error in the trial court’s conclusion
that Ronnie’s conduct did not evidence an intent to allow Reba to retain her interest in the property.

                                            B.    Waiver

        Next, Reba asserts that Ronnie waived his right to require her to deed the property to him.
“A contracting party may, either expressly or by conduct, waive its right to insist upon the other
party’s strict performance of a contract.” Cherry, Bekaert & Holland v. Childree, No. 01A01-9410-
CH-00498, 1995 WL 316257, at *5 (Tenn. Ct. App. May 26, 1995) (citing Tenn. Adjustment Servs.,
Inc. v. Miller, 390 S.W.2d 696, 701 (Tenn. Ct. App. 1964)). “In order to constitute a waiver, a
party’s conduct must reasonably manifest an intention not to claim the right at issue.” Id.

       Waiver is a voluntary relinquishment or renunciation of some right, a foregoing or
       giving up of some benefit or advantage, which, but for such waiver, he would have
       enjoyed. It may be proved by express declaration; or by acts and declarations
       manifesting an intent and purpose not to claim the supposed advantage; or by a
       course of acts and conduct, or by so neglecting and failing to act, as to induce a belief
       that it was his intention and purpose to waive.

Knoxville Rod & Bearing, Inc. v. Bettis Corp. of Knoxville, Inc., 672 S.W.2d 203, 208 (Tenn. Ct.
App. 1983) (quoting Baird v. Fidelity-Phenix Fire Ins. Co., 162 S.W.2d 384, 389 (Tenn. 1942)).
However, “[t]he acts or course of conduct referred to ‘must be clear, unequivocal and decisive acts
of the party or an act which shows determination not to have the benefit intended in order to
constitute a waiver.’” Id. (quoting Gitter v. Tenn. Farmers Mut. Ins. Co., 450 S.W.2d 780, 784
(Tenn. Ct. App. 1969)). We are unable to find such clear and unequivocal acts by Ronnie
demonstrating an intention to waive the provisions of the MDA.


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                                            C.    Laches

        Finally, Reba claims that Ronnie’s heirs should be barred by the doctrine of laches due to the
fact that Ronnie did not pursue his right to enforce the MDA during the four years after the divorce.

         “Unreasonable delay in pursuing rights calls the equitable doctrine of laches into play to
prevent assertion of stale claims.” Tenn. Pine Co. v. Via, No. W1999-00558-COA-R3-CV, 2000
WL 34411147, at *5 (Tenn. Ct. App. Aug. 25, 2000) (citing Nunley v. Nunley, 925 S.W.2d 538, 542
(Tenn. Ct. App. 1996)). However, delay, by itself, is not sufficient to invoke the doctrine of laches.
Id. The determinative test “is not the length of time that has elapsed, but whether, because of such
lapse of time, the party relying on laches as a defense has been prejudiced by the delay.” Id. (quoting
Nunley, 925 S.W.2d at 542). “Generally, the doctrine of laches applies to actions not governed by
a statute of limitations.” Briceno v. Briceno, No. M2006-01927-COA-R3-CV, 2007 WL 4146280,
at *4 (Tenn. Ct. App. W.S. Nov. 21, 2007) (citing Gleason v. Gleason, 164 S.W.3d 588, 592 (Tenn.
Ct. App. 2004); Dennis Joslin Co. v. Johnson, 138 S.W.3d 197, 201 (Tenn. Ct. App. 2003)). Where
the action is governed by a statute of limitations, the doctrine of laches may shorten that time period
if the plaintiff is guilty of gross laches by unreasonably acquiescing in adverse rights for a long
duration of time, causing “prejudice to the defendant such as the loss of evidence and witnesses or
a considerable accumulation of interest resulting from the unjustified delay of the plaintiff.” Id.
(citations omitted). A trial court’s decision regarding whether to apply the doctrine of laches will
not be reversed absent an abuse of discretion. Id. at *3; In re Estate of Baker v. King, 207 S.W.3d
254, 264 (Tenn. Ct. App. 2006); Griffin v. Lester, No. W2004-02072-COA-R3-CV, 2005 WL
3199279, at *5 (Tenn. Ct. App. Nov. 30, 2005); Tenn. Pine Co., 2000 WL 34411147, at *6. “It is
an equitable defense which requires the finder of fact to determine whether it would be inequitable
or unjust to enforce the claimant’s rights.” Estate of Baker, 207 S.W.3d at 264. We find no abuse
of the trial court’s discretion in its refusal to apply the doctrine of laches.

                                         V. CONCLUSION

       For the aforementioned reasons, we affirm the decision of the chancery court. Costs of this
appeal are taxed to the appellant, Reba Gallimore, and her surety, for which execution may issue if
necessary.



                                                       ___________________________________
                                                       ALAN E. HIGHERS, P.J., W.S.




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