Polster v. Polster, M2020-01150-COA-R3-CV

CourtCourt of Appeals of Tennessee
Writing for the CourtANDY D. BENNETT, JUDGE.
Docket NumberM2020-01150-COA-R3-CV
Decision Date14 September 2021



No. M2020-01150-COA-R3-CV

Court of Appeals of Tennessee, Nashville

September 14, 2021

Session: July 8, 2021.

Appeal from the Chancery Court for Montgomery County No. MC-CH-CV-DI-20-271 Ted A. Crozier, Judge.

In this divorce case, a husband appeals the trial court's denial of his motion to alter or amend, arguing that the court should not have granted the divorce on the ground of irreconcilable differences or approved the parties' marital dissolution agreement when the husband purportedly withdrew his consent to the divorce, lacked the capacity to enter into a marital dissolution agreement, and was under duress at the time he executed it. He also argues that his due process rights were infringed. Upon our review, we affirm the judgment of the trial court. We also award the wife her attorney's fees for this appeal and remand to the trial court for a calculation of those fees.

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

John T. Maher, Clarksville, Tennessee, for the appellant, Russell Joseph Polster.

Steven C. Girsky, Clarksville, Tennessee, for the appellee Lee Ann Polster.

Andy D. Bennett, J., delivered the opinion of the court, in which Frank G. Clement, Jr., P.J., M.S., and W. Neal McBrayer, J., joined.



Factual and Procedural Background

Lee Ann Polster ("Wife") and Russell Polster ("Husband") were married in June 1992. They separated in February 2020, and Wife filed a complaint for divorce on April 23, 2020, based, in part, on the ground of irreconcilable differences.

On May 4, Husband and Wife executed a marital dissolution agreement ("MDA"), which was filed with the court the next day. It provided that the marriage should be terminated on the ground of irreconcilable differences and that Husband should pay Wife alimony in the amount of $500 per month for 60 months. The MDA also provided for distribution of the marital home and their personal property, specifically referencing two vehicles and two retirement accounts, and stated the parties' intentions that the marital debts were to be "paid down by the retirement accounts." Husband was unrepresented at the time, but the MDA contains a paragraph stating in part that he "was given the opportunity to consult with counsel of his own choosing."

By notice filed May 7 and mailed to Husband at the marital residence, the matter was set for final hearing on June 24, 2020. At the time, in-person court proceedings had largely been suspended due to the COVID-19 pandemic. On the afternoon of June 24, Husband, acting pro se, filed a pleading styled "Extension to Final Notice of Final Hearing on Uncontested Divorce." The pleading states:

Lee Ann Polster means everything to me. If a divorce is the only thing I can do to make her happy, an uncontested divorce is what she will get. . . . All I am asking for is 3 months of court-ordered marital counseling . . . . I just would like every possibility to save my marriage if possible. I am willing to pay for the counseling, and I will even pay all her attorney and court fees. If she agrees after the 3 months to continue working this out, her attorney can keep papers on file for an immediate divorce in case she decides to follow through with the divorce of which I will pay for
You can sign off on the dispersion of our marital property, I don't care about that. At this point I feel she feels compelled to follow through with the divorce because she has gone this far. All I care about is saving my marriage to my God given soul mate[.] I beg you to please grant my request

A few hours later, the court clerk filed the final decree of divorce that had been approved by the trial court.[1] In the final decree, the trial court found that "[Husband] has not contested or denied that irreconcilable differences have arisen between the parties" and that "the parties . . . have made adequate and sufficient provisions by written agreement for an equitable distribution of any property rights between the parties." The court incorporated the MDA into the final decree.

Husband subsequently retained counsel, and on July 17, he filed a sworn motion to alter or amend and/or set aside the final decree and the MDA. In the motion, he sought that the court alter, amend, or set aside the property division or the entire final decree because he was not represented by counsel throughout the proceedings and was under duress and depressed at the time Wife presented the MDA to him. He alleged that Wife "fraudulently and intentionally misrepresented her intentions of the Marital Dissolution Agreement to Defendant" and that the MDA was "utterly inequitable and should be set aside in its entirety." He claimed that he received notice of the June 24 hearing, which "led [him] to believe he could appear at the hearing and present his position to the judge," so he "appeared at the courthouse on June 24, 2020, but was not allowed to enter." Wife responded, denying most of the allegations of husband's motion and attaching two exhibits illustrating Husband's involvement in the drafting of the MDA.

Husband's counsel set the matter for a hearing on the pleadings on July 31, and on that day, the trial court entered an order, denying Husband's motion on the basis that:

[Husband] may have made a bad deal but had ample time to seek counsel or repute his agreement prior to the finalization of his divorce. No showing of how a soon to be ex-wife could overcome the free will of a fifty year old man. Doesn't meet the threshold of mistake, inadvertence, excusable neglect, or fraud required by TRCP 60.02

Husband has appealed, raising the following issues for our review:

1. Whether the trial court lacked the legal authority to enter the final decree of divorce on the grounds of irreconcilable differences after [Husband] withdrew consent
2. Whether the trial court lacked legal authority to incorporate the MDA into the final decree of divorce after [Husband] withdrew consent to the MDA.
3. Whether the trial court erred in not reviewing the MDA for fairness and equity after [Husband] withdrew consent and requested a hearing.
4. Whether the trial court erred by not allowing [Husband] to appear at the final hearing.
5. Whether the trial court erred by hearing [Husband]'s Rule 59 motion on the pleadings.

For her part, Wife contends that the trial court properly entered the final decree of divorce on the ground of irreconcilable differences. She also requests her attorney fees on appeal.

Standard of Review

This case was tried by the court sitting without a jury; as such, we review the trial court's findings of fact de novo with a presumption of correctness, unless the evidence preponderates against those findings. McGarity v. Jerrolds, 429 S.W.3d 562, 566 (Tenn. Ct. App. 2013). For the evidence to preponderate against a trial court's finding of fact, the weight of the evidence must "'demonstrate[] that a finding of fact other than the one found by the trial court is more probably true.'" Williams v. City of Burns, 465 S.W.3d 96, 108 (Tenn. 2015) (quoting Nashville Ford Tractor, Inc. v. Great Am. Ins. Co., 194 S.W.3d 415, 425 (Tenn. Ct. App. 2005)); Realty Shop, Inc. v. RR Westminster Holding, Inc., 7 S.W.3d 581, 596 (Tenn. Ct. App. 1999). This Court conducts a de novo review of the trial court's resolution of questions of law, with no presumption of correctness. Kelly v. Kelly, 445 S.W.3d 685, 692 (Tenn. 2014); Armbrister v. Armbrister, 414 S.W.3d 685, 692 (Tenn. 2013).


I. Husband's Purported Withdrawal of Consent

Husband's first three issues attack the validity of the final decree and the MDA. All three issues center on his belief that he withdrew his consent to the uncontested divorce and to the entry of the MDA and communicated that fact to the court prior to its entry of the final decree by filing a pleading and attempting to appear in court on the date the court heard the matter. Husband argues that the contract defenses of incapacity, duress and coercion, and, for the first time ever, unconscionability apply. Thus, he asserts that the court should have reviewed the MDA for fairness and equity and set it aside.

In support of his argument, Husband relies on the case of Nahon v. Nahon, which held, "[A] valid consent judgment can not be entered by a court when one party withdraws his consent and this fact is communicated to the court prior to entry of the judgment." Nahon v. Nahon, W2004-02023-COA-R3CV, 2005 WL 3416415, at *4 (Tenn. Ct. App. Dec. 14, 2005) (quoting Harbour v. Brown for Ulrich, 732 S.W.2d 598, 599 (Tenn. 1987)). However, the holding in Nahon has been superseded by the Tennessee Supreme Court's decision in Barnes v. Barnes, 193 S.W.3d 495 (Tenn. 2005). See Olson v. Beck, No. M2013-02560-COA-R3CV, 2015 WL 899381, at *4 (Tenn. Ct. App. Feb. 27, 2015) (citing Barnes v. Barnes, 193 S.W.3d 495 (Tenn. 2006)). In Barnes, the Tennessee Supreme Court held that "[a] marital dissolution agreement may be enforceable as a contract even if one of the parties withdraws consent prior to the entry of judgment by the trial court, so long as the agreement is otherwise a validly enforceable contract." Barnes, 193 S.W.3d at 499. "Husband cannot repudiate the contract simply by withdrawing his consent prior to the court's approval." Olson, 2015 WL 899381, at *4.

As in Barnes, the MDA in this case was reduced to writing and signed by both parties, as witnessed by a notary public. Thus, it is a contract, and its enforceability is governed by contract law. Barnes, 193 S.W.3d at 499; see also Olson, 2015 WL 899381, at *4. Because construction of a contract is a matter of law, our review of Husband's contentions as to the invalidity of the contract, which will be discussed in section III of our analysis, is de novo with...

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