Filed: Apr. 26, 2016
Latest Update: Apr. 26, 2016
Summary: MEMORANDUM OPINION 1 CHARLES D. SUSANO, Jr. , J. Amy Chan (Wife) and Henry Chan (Husband) were granted a divorce in 2005, and the division of their marital assets was reserved for a future hearing. Some ten years later, in 2015, the trial court entered an order decreeing a division as outlined in a proposal by Wife. Husband appeals, maintaining that the trial court had previously ruled from the bench that the assets would be divided based upon a proposal filed by him. We affirm. Wife and
Summary: MEMORANDUM OPINION 1 CHARLES D. SUSANO, Jr. , J. Amy Chan (Wife) and Henry Chan (Husband) were granted a divorce in 2005, and the division of their marital assets was reserved for a future hearing. Some ten years later, in 2015, the trial court entered an order decreeing a division as outlined in a proposal by Wife. Husband appeals, maintaining that the trial court had previously ruled from the bench that the assets would be divided based upon a proposal filed by him. We affirm. Wife and ..
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MEMORANDUM OPINION1
CHARLES D. SUSANO, Jr., J.
Amy Chan (Wife) and Henry Chan (Husband) were granted a divorce in 2005, and the division of their marital assets was reserved for a future hearing. Some ten years later, in 2015, the trial court entered an order decreeing a division as outlined in a proposal by Wife. Husband appeals, maintaining that the trial court had previously ruled from the bench that the assets would be divided based upon a proposal filed by him. We affirm.
Wife and Husband were married in 1993. On January 21, 2004, Wife filed a complaint for divorce. On May 2, 2005, the trial court entered an order granting the parties a divorce pursuant to Tenn. Code Ann. § 36-4-129 (2001). In its order, the court reserved the division of marital assets for a future hearing.2 Nearly ten years later, the trial court entered an order on March 17, 2015, which stated that "[t]he marital assets and liabilities shall be divided as outlined in Exhibit #9 . . . as proposed by the [Wife.]" Husband subsequently filed a notice of appeal on March 26, 2015.
On appeal, Husband maintains that, at a hearing on March 23, 2009, the trial court ruled from the bench that the marital assets and liabilities would be divided pursuant to a plan proposed by him. However, Husband has failed to include any material in the record that we can consider in support of his position.3 A party who takes an appeal and raises issues is responsible for the preparation and filing of a record "as is necessary to convey a fair, accurate and complete account of what transpired [in the trial court] with respect to those issues that are the bases of appeal." Tenn. R. App. P. 24(b); see also Tenn. R. App. P. 24(c) ("The statement [of the evidence] should convey a fair, accurate and complete account of what transpired with respect to those issues that are the bases of appeal.") In the absence of a proper record, we "must assume the sufficiency of the evidence to support the judgment." Taylor v. Allstate Ins. Co., 158 S.W.3d 929, 931 (Tenn. Ct. App. 2004) (quoting Houston v. Mounger, No. E2002-00779-COA-R3-CV, 2003 WL 22415363, at *2 (Tenn. Ct. App. E.S, filed Oct. 23, 2003)). Further, "[i]t is well settled that a trial court speaks through its orders." Palmer v. Palmer, 562 S.W.2d 833, 837 (Tenn. Ct. App. 1997). There is simply no evidence in the record to support Husband's claim that the trial court erred by using Wife's proposed division of marital assets.4
Finally, Wife argues at the end of her appellate brief that Husband's appeal is frivolous and that she is entitled to damages. However, Wife never raised the issue of whether Husband's appeal is frivolous in the statement of issues in her appellate brief, as required pursuant to Tenn. R. App. P. 27(a)(4):
Courts have consistently held that issues must be included in the Statement of Issues Presented for Review required by Tennessee Rules of Appellate Procedure 27(a)(4). An issue not included is not properly before the Court of Appeals.
Hawkins v. Hart, 86 S.W.3d 522, 531 (Tenn. Ct. App. 2001). "We consider an issue waived where it is argued in the brief but not designated as an issue." Childress v. Union Realty Co., Ltd., 97 S.W.3d 573, 578 (Tenn. Ct. App. 2002). The issue of frivolous appeal is not properly before us. Accordingly, we refuse to address it.
The judgment of the trial court is affirmed. Costs on appeal are assessed to the appellant, Henry Wah Chan. The case is remanded, pursuant to applicable law, for enforcement of the trial court's judgment and collection of costs assessed below.
