James Glen Kirk v. Gloria Taylor Kirk
2013 Tenn. App. LEXIS 586
Tenn. Ct. App.2013Background
- James Glen Kirk (Husband) and Gloria Taylor Kirk (Wife) divorced after a bench trial; final decree entered March 26, 2009. No minor children.
- Wife filed a timely Rule 59.04 motion to alter or amend and, while that motion was pending, filed a Rule 60.02 motion alleging Husband concealed assets and misrepresented financial disclosures at trial.
- Post-judgment discovery (including subpoenas to banks and Bunge records) revealed numerous undisclosed assets/payments: large deposits into Husband’s farm operating account around trial, 2008 crop proceeds received in 2009, crop proceeds in 2008 not deposited in disclosed accounts, open contracts for 2009 crop proceeds, and $64,137 in crop insurance proceeds received January 1, 2009 but concealed.
- Trial court found Husband willfully and fraudulently concealed assets, treated Wife’s allegations as grounds for relief under Rule 59.04 (and discussed Rule 60), awarded Wife $210,183.75 (50% of the various undisclosed sums) and awarded Wife attorney and expert fees; Husband appealed.
- The Court of Appeals reviewed whether post-judgment relief was proper under Rule 59.04 (concluding Rule 60.02 relief was premature while Rule 59 was pending), whether summary judgment/hearing issues were proper, and whether fee awards were appropriate.
Issues
| Issue | Wife's Argument | Husband's Argument | Held |
|---|---|---|---|
| Whether Wife was entitled to post-judgment relief based on newly discovered evidence (Rule 59.04 / Rule 60.02) | Newly discovered evidence revealed assets concealed at trial entitling her to a new division | Wife should not get Rule 60 relief while Rule 59 pending; some info could have been discovered with diligence or subpoenas; disclosures were date-specific | Court affirmed relief under Rule 59.04 (Rule 60.02 was not available while Rule 59 was pending); trial court did not abuse discretion in finding evidence was newly discovered and Husband concealed assets |
| Whether trial court erred by not enforcing Rule 56.03 procedure / holding a hearing on Husband’s summary judgment motion | Opposed summary judgment; discovery created genuine disputes and Husband’s affidavit raised triable issues | Wife failed to strictly comply with Rule 56.03 and summary judgment should be entered if she did not respond | Court denied Husband’s motion; even absent strict Rule 56.03 compliance, summary judgment inappropriate because Husband’s own submissions created genuine factual disputes and court did not abuse docket discretion in not holding a separate hearing |
| Whether trial court erred in awarding Wife attorney’s and expert fees | Fees were necessary and reasonable because Husband’s discovery misconduct forced subpoenas, expert work, and extra litigation | Fees improper or excessive | Court affirmed fee awards: trial court permissibly exercised discretion under divorce law and discovery sanctions (Rules 26/37) given Husband’s concealment |
| Whether trial court erred by denying Husband (and Husband’s mother, non-party) attorney’s fees | N/A | Husband sought fees for being forced into litigation; mother sought fees under "tort of another" doctrine | Court affirmed denial of fees to Husband and denied award to non-party mother; tort-of-another doctrine not applicable given facts |
Key Cases Cited
- Campbell v. Archer, 555 S.W.2d 110 (Tenn. 1977) (Rule 60 relief unavailable before final judgment)
- In re M.L.D., 182 S.W.3d 890 (Tenn. Ct. App. 2005) (purpose and standards for Rule 59.04 motions)
- Stovall v. Clarke, 113 S.W.3d 715 (Tenn. 2003) (factors for considering additional evidence on post-judgment motions and interplay with Rule 54.02)
- Seay v. City of Knoxville, 654 S.W.2d 397 (Tenn. Ct. App. 1983) (standard for "newly discovered evidence")
- Harris v. Chern, 33 S.W.3d 741 (Tenn. 2000) (guidance on revising non-final orders and Rule 59 principles)
- Dunlap v. Dunlap, 996 S.W.2d 803 (Tenn. Ct. App. 1998) (substance-over-form for post-trial motions)
- Kinsler v. Berkline, LLC, 320 S.W.3d 796 (Tenn. 2010) (standard of review for summary judgment)
- Butler v. Butler, 680 S.W.2d 467 (Tenn. Ct. App. 1984) (trial court discretion to award attorney’s fees in divorce cases)