How Waiver of Violations of Local Rules Can Affect Divorce; Standards for Pro Se Litigants

January 15, 2013
By The McKellar Law Firm, PLLC on January 15, 2013 9:16 AM |

In Hall v. Hall, No. E2012-00394-COA-R3-CV (Tenn. Ct. App. Dec. 21, 2012), Tennessee divorce attorneys learn: (1) that courts may enter a divorce decree even if the parties fail to attend mediation; (2) that pro se litigants are not held to a lower standard; (3) the manner in which courts assess whether a 401(k) constitutes separate or marital property; and (4) how appellate courts evaluate remedies for violations of local rules of practice.

The facts: The parties were married for five years, having married less than a year after Husband's prior wife passed away. Throughout the course of the marriage, the parties did not make improvements on the home Husband owned, and the home did not appreciate in value. Husband (age 60) worked as a chemical technician earning $67,000 per year. Wife, on the other hand, received $973.00/month in social security disability benefits and received Medicare. Wife enjoyed the freedom of spending her entire benefit amount freely as the mortgage and every household bill was timely paid from Husband's earnings. Nevertheless, Wife accumulated $16,000 in credit card debt. Wife independently owned a home in the Philippines, did not have a retirement plan or pension, and sought in the divorce to acquire the home that Husband had owned prior to the marriage.

When Husband's former wife died, Husband participated in a tax sale, buying a few vacant lots with her life insurance benefits. He also bought a quadraplex rental unit which was foreclosed upon, and Husband was still paying off the $24,000 deficiency judgment at the time of trial. Husband's 401(k) value had actually decreased during the marriage.

At trial, Wife represented herself pro se. She cancelled two scheduled mediations, and did not file a Motion to Compel to access her right to discovery from Husband. The trial court held that the marital residence was separate property belonging to Husband due to Wife's not making a substantial contribution to its appreciation (the residence had not appreciated whatsoever); Wife's home in the Philippines was her separate property; Husband's vacant lots were his separate property; Husband was entitled to his 401(k) account; since the credit card debts were Wife's separate property, Wife was responsible for paying them herself; Husband was responsible for court costs; and Husband did not owe Wife any alimony due to his "lack of ability to pay."

Citing Tenn. R. Civ. P. 59, Wife moved for a new trial due to "mistake, inadvertence, surprise or excusable neglect" and because the parties did not attend mediation as required by T.C.A. § 36-4-131, a requirement not expressly waived by the Court. Wife's motion was denied since neither Husband nor Wife referenced the lack of mediation (thus serving as the equivalent of a waiver) at trial, and since Wife neglected to complete a Motion to Compel (which served as the equivalent of a waiver of discovery).

Issues: On appeal, the court considered the following issues: (1) whether the parties' failure to engage in mediation warrants a new trial; (2) whether Wife is entitled to a new trial because interrogatories and requests for production for documents were not answered; (3) whether Wife is entitled to a new trial or different distribution of the estate based upon the Trial Court allegedly erring in its allocation of Husband's 401(k); and (4) whether Wife is entitled to a new trial or different distribution of the estate on the basis that the Trial Court allegedly did not comply with its local rules of practice.

Analysis: First, Tenn. Code Ann. § 36-4-131(a)-(b) (2010) provides that the court is permitted to "waive or extend mediation" in certain situations, including: mediation is unaffordable; there is a marital dissolution agreement or agreed order in place; a settlement conference occurred instead (with a special master or the court presiding); if impasse is the "substantial[ly] likel[y]" result; or for other reasons that the court decides are adequate. The court of appeals upheld the trial court's ruling here since mediation is clearly not required in order for a divorce to be final.

Second, the court of appeals emphasized that Wife acting as a pro se litigant is not a valid excuse for her failure to properly file a Motion for Discovery: "Pro se litigants are not excused from complying with the same substantive and procedural requirements that other represented parties must adhere to." Whitaker v. Whirlpool Corp., 32 S.W.3d 222, 227 (Tenn. Ct. App. 2000). Third, the court of appeals stated that the pre-marriage value of a 401(k) account constitutes separate property rather than marital property and any appreciation would be grounds for the property to become a marital asset. The court then upheld the trial court's decision regarding the decreasing value of the 401(k). Fourth, Wife complained that since the parties did not file financial statements, they violated local Rule 10.01(c) of the local rules of practice. Since Rule 10.01(c) provides that either continuance, entry of default judgment, dismissal, or "other appropriate sanctions in the Court's discretion" are the remedies for a lack of filing statements, the court of appeals upheld the trial court's decision that this was waived when not objected to at trial by either party.