In the case of Butcher v. Butcher, No. W2011-01808-COA-R3-CV, (Tenn. Ct. App. June 12, 2012), Tennessee divorce attorneys learn that arguments not made at the trial court level cannot be made on appeal; this case also highlights the reasoning behind the requirement for an asset and debt table to be filed in divorce appeals concerning property division.
Husband and Wife married in 1976 and Wife filed a complaint for legal separation in 2007. In 2009, Wife filed an amended complaint for separation and/or Complaint for Divorce alleging irreconcilable difference and inappropriate marital conduct. In 2011, the trial court heard the matter and entered a Final Decree. Husband and Wife were awarded their separate businesses and Wife awarded the real property where the businesses were housed. Wife was also awarded alimony in solido. The final division of property resulted in a 61% versus 39% split. Husband filed a motion for a new trial and to stay the judgment. The trial court denied Husband's motion. Husband appealed.
Husband raised one issue: whether the trial court failed to equitably divide marital property when it awarded Butcher Tax Services, which was owned jointly, without first determining a value for the partnership. Wife argued the appeal should be dismissed for two reasons: first, that Husband's failure to comply with Rule 7 of the Court of Appeals of Tennessee bars his claim and second that Husband's argument was not raised in the trial court and therefore cannot be argued for the first time on appeal.
Analysis: Rule 7 of the Court of Appeals provides: (a) in any domestic relations appeal in which either party takes issue with the classification of property or debt or with the manner in which the trial court divided or allocated the marital property or debt, the brief of the party raising the issue shall contain, in the statement of facts or in an appendix, a table in a form substantially similar to the form attached. This table shall list all property and debts considered by the trial court, including: (1) all separate property, (2) all marital property, and (3) all separate and marital debts; (b) each entry in the table must include a citation to the record where each party's evidence regarding the classification or valuation of the property or debt can be found and a citation to the record where the trial court's decision regarding the classification, valuation, division, or allocation of the property or debt can be found; (c) if counsel disagrees with any entry in the opposing counsel's table, counsel must include in their brief, or in a reply brief if the issue was raised by opposing counsel after counsel filed their initial brief, a similar table containing counsel's version of the facts.
Here, Husband's attorney failed to include a Rule 7 table and made no request to supplement the briefs submitted. Failure to comply with Rule 7 waives all issues relating to the requirements of the Rule (i.e. property division and valuation). Complying with Rule 7 aids the Appellate Court in reviewing the trial court's decision and allows the Court to easily and correctly determine the valuation and distribution of the marital estate. Husband failed to include a Rule 7 table and also failed to assert that the parties' business should be valued and divided as a partnership during the proceedings in the trial court. Husband's failure to raise the issue at the trial court level means he cannot argue the issue for first time on appeal; therefore, Husband has waived that issue on appeal. The Court of Appeals affirmed the judgment of the trial court and dismissed the appeal.