The opinion
04/16/2020
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
February 18, 2020 Session
SUSAN SMITH RAWLS v. DANIEL WEXLER RAWLS
Appeal from the Circuit Court for Knox County
No. 137223 Gregory S. McMillan, Judge
No. E2019-00675-COA-R3-CV
This appeal arises from the divorce of Susan Smith Rawls (“Wife”) and Daniel Wexler
Rawls (“Husband”). Wife sued Husband for divorce in the Circuit Court for Knox
County (“the Trial Court”). After a trial, the Trial Court, inter alia, divided the marital
estate and awarded Wife alimony and child support. Husband appeals to this Court
raising a host of issues. However, Husband’s brief is non-compliant with the Rules of the
Tennessee Court of Appeals and the Tennessee Rules of Appellate Procedure to such a
degree that his issues are waived. Wife raises an additional issue of her own as to
whether Husband is obligated, either by an oral contract he allegedly entered into or
through promissory estoppel, to pay the college expenses of one of the parties’ adult
children. The evidence does not preponderate against the Trial Court’s finding that
Husband never committed to pay these college expenses. Wife also requests an award of
attorney’s fees incurred on appeal. We decline to grant such an award. We affirm the
Trial Court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed;
Case Remanded
D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which JOHN W.
MCCLARTY and THOMAS R. FRIERSON, II, JJ., joined.
Mary L. Ward, Knoxville, Tennessee, for the appellant, Daniel Wexler Rawls.
Thomas M. Leveille, Knoxville, Tennessee, for the appellee, Susan Smith Rawls.
OPINION
Background
Husband and Wife were married in 1996. Two children were born of the
marriage, both of whom have reached the age of majority: Shelby Grace Rawls, born in
May 1999, and Dawson Rawls, born in February 2002. In 2015, Husband and Wife
separated. In June 2016, Wife sued Husband for divorce in the Trial Court. This matter
was tried over the course of eight days in August, November, and December of 2018.
One dispute at trial was whether Husband had promised to pay for Shelby Grace’s
college education. Wife asserts Husband undertook this obligation. Husband denies he
did.
In December 2018, the Trial Court entered its detailed order of divorce. The Trial
Court found that Husband never committed to pay individually for Shelby Grace’s
college education. The Trial Court stated, as relevant:
[T]he parties highly contest the issue of whether Husband is obligated to
pay the college expenses of the parties’ daughter. The Court finds the
following facts regarding the issue of college and who should pay for it.
The parties’ daughter graduated from Farragut High School in May 2017
with a grade point average above 4.0. As is customary, she investigated a
number of colleges. Of the five or six that she was serious about, two of
the colleges were in Tennessee, but the remainder were not. At the time
that the parties’ daughter was considering colleges, she was already
estranged from her Father and the parties had been separated for
approximately two years. There were a number of informal conversations
between the parties’ and their daughter and as a group. Husband was very
proud of his daughter’s accomplishments and told her that “she could go
anywhere she wanted to go.” Husband denies he ever said that he would be
solely responsible for the cost of her college. The parties’ daughter chose
to attend the College of Charleston. Wife and the parties’ daughter drove
down a day earlier than Husband to begin the process of moving into the
dorm. Because Husband arrived a day later, Wife was responsible for
handling the initial paperwork regarding the payment of tuition, fees, room
and board. Husband did not personally sign any documentation committing
him to paying any portion of their daughter’s college expenses.
Over the course of their daughter’s first year of college, Husband
provided her with at least one credit card to be used for her necessities. He
also directed her in the method by which the monthly payments for tuition,
-2-
fees, room, and board were to be paid to the college. He then transferred
funds to cover the cost on a debit card or otherwise paid the bill for her
tuition, fees, room and board. The source of the funds to pay the college
expenses was a marital asset, i.e., the income from the parties’ BNI
franchises. During this time, Husband complained about the amount that
Wife and the parties’ daughter were spending and attempted to implement
limits for their daughter’s spending.
In late fall of 2017, Husband and the parties’ daughter had a verbal
altercation. During this period of time, Husband was aware that he would
not be continuing as a BNI franchisee and that the parties’ interests had to
be sold. He informed Wife and their daughter that he would pay only one-
half of her college expenses, with the amount he would pay capped at the
level for instate costs at the University of Tennessee. Despite this
declaration, Husband ensured that all the college and living costs for the
2017-18 academic year were paid. For 2018-19, Husband has refused to
pay any of the college expenses. This year, the parties’ daughter has moved
off campus and is sharing a residence and utilities with three other students.
While Wife has paid the child’s college and living expense not covered by
the child’s own income, she has necessarily used marital funds to do so,
with the effect being that Husband has also actually paid one-half of the
cost.
The Court holds that the facts do not establish an oral contract
sufficient to obligate Husband to pay the remaining two and a half years of
tuition, fees, room and board for the parties’ daughter as she completes her
education at the College of Charleston. The Court does not find that
Husband committed to individually paying the cost by informing their
daughter that she “could go anywhere she wanted to.” Finally, the Court
does not find that promissory estoppel applies to the facts as found by the
Court. Husband has no legal obligation to contribute to the college
education of the parties’ daughter.
In January 2019, Husband filed a motion pursuant to Tenn. R. Civ. P. 59 seeking
to alter or amend the judgment or for a new trial. Wife filed a response in opposition. In
March 2019, the Trial Court entered an order amending its December 2018 order in
certain respects not material to this appeal. Husband timely appealed to this Court.
Discussion
Although not stated exactly as such, Husband raises the following eleven issues on
appeal: 1) whether the Trial Court erred in setting child support; 2) whether the Trial
Court erred in calculating alimony; 3) whether the Trial Court erred in determining that
-3-
the Navigator condominium is marital property; 4) whether the Trial Court properly
divided the tax refund; 5) whether the Trial Court erred in ordering that the tax return be
completed by April 15, 2019; 6) whether the Trial Court erred in failing to consider a
$62,291.00 decrease in the value of the accounts awarded to Husband from the date of
the last hearing until entry of the December 31, 2018 order; 7) whether the Trial Court
erred in failing to require Wife either to refinance or pay off the mortgage on the
residence; 8) whether the Trial Court erred in failing to assess the value of Husband’s
separate Weller property and the funds received from the sale of Husband’s separate
property condominium; 9) whether the division of BNI, TN was proper; 10) whether the
Trial Court erred in its overall division of the marital estate; and 11) whether the Trial
Court properly considered the tax ramifications.1 Wife raises three additional issues of
her own, which we restate somewhat as follows: 1) whether Husband’s brief is deficient
to the point that he has waived his issues on appeal; 2) whether the Trial Court erred in
declining to find that Husband was obligated, either by an oral contract or the doctrine of
promissory estoppel, to pay for Shelby Grace Rawls’ college and living expenses while
she attends the four-year college of her choice; and 3) whether Wife is entitled to an
award of attorney’s fees incurred on appeal.
Our review is de novo upon the record, accompanied by a presumption of
correctness of the findings of fact of the trial court, unless the preponderance of the
evidence is otherwise. Tenn. R. App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727
(Tenn. 2001). A trial court’s conclusions of law are subject to a de novo review with no
presumption of correctness. S. Constructors, Inc. v. Loudon County Bd. of Educ., 58
S.W.3d 706, 710 (Tenn. 2001).
We first address Wife’s issue of whether Husband’s brief is deficient to the point
that he has waived his issues on appeal. Indeed, Husband’s brief is very deficient. First,
certain of Husband’s issues pertain to the valuation, classification and division of
property, as well as debts. However, Husband’s brief lacks a table of the property or debt
at issue. Rule 7 of the Rules of the Tennessee Court of Appeals provides, as relevant:
(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 hereto. This table
shall list all property and debts considered by the trial court, including: (1)
1
There is some discrepancy between our copies of Husband’s brief. One version identifies eight issues
but argues eleven, whereas another version identifies and argues eleven issues. In one version, there is no
statement of facts, statement of the case, or standard of review, while the other contains these sections.
For reasons we discuss, even the more complete version of Husband’s brief is highly deficient.
-4-
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.
Rule 7 proceeds to give an example of the type of table to be provided. Husband has
failed to include a table in his brief even though Rule 7 clearly applies to a number of his
issues. This Court has warned:
[W]here an appellant fails to comply with this rule, that appellant waives all
such issues relating to the rule’s requirements. This Court is under no duty
to search a trial court record in order to discern the valuation of the couple’s
property. This Court has previously found issues involving the valuation
and division of property waived for failure to comply with Rule 7.
Harden v. Harden, No. M2009-01302-COA-R3-CV, 2010 WL 2612688, at *8 (Tenn. Ct.
App. June 30, 2010) (citations and quotation marks omitted), no appl. perm. appeal filed.
Husband’s brief is deficient in other ways. Tenn. R. App. P. 27(a)(6) requires that
an appellant’s brief contain “[a] statement of facts, setting forth the facts relevant to the
issues presented for review with appropriate references to the record.” In addition, Rule
27(a)(7)(A) requires “the contentions of the appellant with respect to the issues presented,
and the reasons therefor, including the reasons why the contentions require appellate
relief, with citations to the authorities and appropriate references to the record (which
may be quoted verbatim) relied on.” Along similar lines, Rule 6 of the Rules of the
Tennessee Court of Appeals provides, as pertinent:
(a) Written argument in regard to each issue on appeal shall contain:
(1) A statement by the appellant of the alleged erroneous action of the trial
court which raises the issue and a statement by the appellee of any action of
the trial court which is relied upon to correct the alleged error, with citation
to the record where the erroneous or corrective action is recorded.
(2) A statement showing how such alleged error was seasonably called to
the attention of the trial judge with citation to that part of the record where
appellant’s challenge of the alleged error is recorded.
-5-
(3) A statement reciting wherein appellant was prejudiced by such alleged
error, with citations to the record showing where the resultant prejudice is
recorded.
(4) A statement of each determinative fact relied upon with citation to the
record where evidence of each such fact may be found.
(b) No complaint of or reliance upon action by the trial court will be
considered on appeal unless the argument contains a specific reference to
the page or pages of the record where such action is recorded. No assertion
of fact will be considered on appeal unless the argument contains a
reference to the page or pages of the record where evidence of such fact is
recorded.
Beyond the absence of a Rule 7 table which we have addressed, the deficiencies in
Husband’s brief are wide-ranging. Husband cites very little legal authority. For seven of
Husband’s eleven issues, he cites no legal authority at all. On the issue of child support,
Husband cites to Tennessee law reflecting that child support decisions precede decisions
about alimony because the former affects the ability of a party to pay the latter. That is
all. There are no references to child support guidelines or pertinent caselaw supporting
his specific contentions of error. Husband just asserts in a conclusory way that the Trial
Court erred in certain ways. This is a recurring problem in Husband’s brief.
Apart from citing little authority, Husband cites to the record only scarcely. This
is particularly problematic in a case as factually-intensive as this one. The record
consists of two volumes of technical record, eleven volumes of transcript, and 97
exhibits. While Husband cites to trial exhibits and the technical record at rare intervals,
he never cites to the transcripts from the eight-day trial. For five issues, Husband fails to
cite to the record at all. In addition, Husband’s statement of facts contains no citations to
the record, which undermines the purpose of that section.
Failure to cite facts in the record or legal authority where appropriate as required
by Rule 27 may result in the waiver of an appellant’s issues. Bean v. Bean, 40 S.W.3d
52, 55 (Tenn. Ct. App. 2000). As our Supreme Court has explained, “[i]t is not the role
of the courts, trial or appellate, to research or construct a litigant’s case or arguments for
him or her, and where a party fails to develop an argument in support of his or her
contention or merely constructs a skeletal argument, the issue is waived.” Sneed v. Bd. of
Prof’l Responsibility, 301 S.W.3d 603, 615 (Tenn. 2010). Husband’s failure to include a
Rule 7 table is fatal to those issues of his pertaining to the valuation, classification and
division of property, as well as debts. Husband’s other issues are supported so scantily
-6-
by facts or legal authority that to salvage them we would have to serve as Husband’s de
facto counsel. Doing so would place Wife at an impossible disadvantage and is not our
role. While this Court may suspend the requirements of its rules for “good cause,” See
Tenn. R. Ct. App. 1(b), the deficiencies in Husband’s brief are too severe to be overcome.
We, therefore, find Husband’s issues waived.
We next address Wife’s issue of whether the Trial Court erred in declining to find
that Husband was obligated, either by an oral contract or the doctrine of promissory
estoppel, to pay for Shelby Grace Rawls’ college and living expenses while she attends
the four-year college of her choice. Wife cites the case of Johnson v. Lockhart, No.
M2002-00623-COA-R3-CV, 2003 WL 22068240 (Tenn. Ct. App. Sept. 5, 2003), no
appl. perm. appeal filed, for the proposition that an oral contract between parents to pay
for their child’s college education is enforceable. In Johnson, a mother brought a claim
against her former husband for failure to follow through on an agreement to share their
child’s college expenses. Id. at *3. The mother prevailed, and the father appealed. Id.
On appeal, we affirmed, finding among other things that “[t]he evidence certainly does
not preponderate against the finding of the trial court of a bi-lateral oral contract to pay
equally the net expenses of Greg Lockhart at the University of Miami for four years.” Id.
at *5. We found further:
In this case, part performance by both parties is conclusively
established, as both of them paid their respective shares of the net expenses
for Greg at the University of Miami through the first two semesters. While
it is true that such payment would be consistent with a mere voluntary
payment by both parties, which could be discontinued at any time, the trial
court has made the factual determination that the oral contract was a four
year contract. The evidence does not preponderate against that crucial
finding of fact, as the payments by both parties are clearly in partial
performance of the four year contract. The statute of frauds is, thus,
inapplicable. . . .
Id. at *6. In Johnson, we also affirmed the trial court’s alternative basis for its
judgment—the doctrine of promissory estoppel—stating “[t]he trial court held that the
representations and the actions of Mr. Lockhart were adequate to supply the necessary
elements of inducement and reliance, and the evidence does not preponderate against
such finding.” Id. at *7. For additional precedent, Wife cites to another opinion, Calabro
v. Calabro, 15 S.W.3d 873 (Tenn. Ct. App. 1999). Like Johnson, Calabro addresses a
parent’s obligation to pay for an adult child’s college education. Id. at 874. However, in
Calabro, the plaintiff was the defendant’s daughter. Id. Wife has thus cited Tennessee
precedent reflecting that a parent may bind himself or herself to pay for an adult child’s
college education; the question is whether Husband did so.
-7-
At trial, Shelby Grace Rawls testified that she attends the College of Charleston,
which is located in Charleston, South Carolina. She intends to go there for four years.
Shelby Grace stated that early on, she had discussions with her father about where she
wanted to go to school. According to Shelby Grace, Husband’s reaction to her wanting
to go to a four-year college was “[g]reat, I support you.” Shelby Grace testified that her
father never asked her to pay. However, Shelby Grace testified that had she known she
would ever have to pay her own college expenses, she would have stayed home and gone
to Pellissippi for free.
Wife testified on the subject, as well. According to Wife, Husband told Shelby
Grace “you can go wherever you want.” Wife described Husband’s pride at Shelby
Grace’s plans for school:
Dan was the one that ultimately said, you may go wherever you want, I’m
so proud of you, Shelby Grace. And at the time if he may recall or not, he
was very emotional, because he was proud of her. And so she wasn’t told
at sixteen, this is the budget you have for college. She wasn’t told go get a
job, none of that. She was -- and I was as a wife under the impression there
was plenty of money there which clearly there is if you’ve seen our
accounts. And that this is what she was told. . . .
In his testimony, Husband denied ever making an unequivocal promise that he
would pay for Shelby Grace’s college education. Husband stated that the discussion was
“[t]hat her mom and I would support her.” Husband testified, however, “I never said, I’ll
pay for your college.” Husband stated that afterward he lost his business and moved out.
When asked if he felt that he should not be responsible for Shelby Grace’s college
expenses because of his changed situation, Husband testified “[t]hat’s right.”
In view of this record, it is unclear under Wife’s theory who is supposed to be
party to the alleged oral agreement. This lawsuit before us is between Husband and
Wife. Shelby Grace is not a party. As between Husband and Wife, we find no evidence
in the record of a commitment by Husband to Wife to pay Shelby Grace’s college
expenses. A parent encouraging his or her child to go to college and even expressing a
general willingness to pay does not, in itself, necessarily bind that parent to pay for that
child’s college education. Husband’s mere encouragement of Shelby Grace and general
expressions of support do not give rise to a contract, nor did Husband state anything so
definite as to warrant application of promissory estoppel. The Trial Court made detailed
findings of fact relative to this issue. From our review of the record, we conclude that the
evidence does not preponderate against the Trial Court’s factual findings. We affirm the
Trial Court on this issue.
-8-
The final issue we address is Wife’s issue of whether she should be awarded
attorney’s fees incurred on appeal. This Court has discussed the factors that go into our
decision-making when a party requests an award of appellate attorney’s fees as follows:
An award of appellate attorney’s fees is a matter within this Court’s sound
discretion. When considering a request for attorney’s fees on appeal, we
also consider the requesting party’s ability to pay such fees, the requesting
party’s success on appeal, whether the requesting party sought the appeal in
good faith, and any other equitable factors relevant in a given case.
(Cooley) v. Cooley, 543 S.W.3d 674, 688 (Tenn. Ct. App. 2016) (quotation marks and
citations omitted).
In her brief, Wife argues that the severe deficiency of Husband’s brief reflects the
bad faith of his appeal. In contrast, Wife points to her own thorough response to all of
Husband’s issues, notwithstanding the severe problems with his brief, as evidence of her
good faith. However, Wife concedes that she has the ability to pay her attorney’s fees.
We note further that Wife lost on the separate issue she raised. Exercising our discretion
in consideration of all relevant equitable factors, we decline to grant Wife an award of
attorney’s fees incurred on appeal. We affirm the judgment of the Trial Court in its
entirety.
Conclusion
The judgment of the Trial Court is affirmed, and this cause is remanded to the
Trial Court for collection of the costs below. The costs on appeal are assessed 50%
against the Appellant, Daniel Wexler Rawls, and his surety, if any, and 50% against the
Appellee, Susan Smith Rawls.
______________________________________
D. MICHAEL SWINEY, CHIEF JUDGE
-9-