Newly Discovered Evidence Rejected in Chattanooga, Tennessee Divorce: Westbrooks v. Westbrooks

FactsHusband and Wife divorced after 20 years of marriage.

Husband had a premarital 401(k) account with Paine Webber. Husband failed to produce documents to establish the premarital value of the account, despite Wife’s significant discovery efforts. The trial court divided the account equally.

Within 30 days of the entry of the final judgment, Husband filed a motion under Rule 59.04 to reopen the proof because “there may be new evidence” to support the claim that a portion of his 401(k) account was premarital. Husband’s motion said he was trying to obtain the relevant documents.

Shortly thereafter, Husband amended his motion to state he had obtained the new evidence, namely the divorce judgment between him and his first wife that says the value of the 401(k) was $115,000 at that time.

Newly discovered evidence

The trial court explained that Wife sought in discovery all information regarding assets owned by Husband. Despite Wife’s efforts, Husband failed to identify the premarital portion of the 401(k). The trial court described the 4 ½ year discovery process as “extensive and lengthy.” Moreover, the new evidence comes from Husband’s previous divorce judgment, which was a public record. Finding that Husband’s efforts, or lack thereof, to obtain evidence does not justify granting the motion, Husband’s motion was denied.

Husband appealed.

On AppealThe Court of Appeals affirmed the trial court.

Tennessee Rule of Civil Procedure 59.04 provides a trial court with an opportunity to correct errors before the judgment becomes final. Such a motion should only be granted when:

  • controlling law changes before the judgment becomes final;
  • when previously unavailable evidence becomes available; or
  • to correct a clear error of law or to prevent injustice.

These motions should not be used to raise new, previously untried or unasserted theories or legal arguments.

To succeed in a motion asserting newly discovered evidence, the movant must prove that

  • the evidence was discovered after the trial;
  • it could not have been discovered earlier with due diligence;
  • it is material and not merely cumulative or impeaching; and
  • it will probably change the outcome if a new trial is granted.

When assessing these motions, Tennessee courts must consider these factors in its “balancing analysis”:

  • the movant’s efforts to obtain the evidence;
  • the importance of the newly submitted evidence to the movant’s case;
  • the explanation offered by the movant for its failure to offer the newly submitted evidence earlier;
  • the likelihood that the nonmoving party will suffer unfair prejudice; and
  • any other relevant information.

Because this is a fact-intensive analysis, the appellate court must have a transcript or detailed statement of the evidence, neither of which Husband provided:

[T]he resolution of Husband’s arguments rests largely on the relevant facts that were presented or disputed at the hearing on the Rule 59 motion.

* * * * *

[O]ur ability to address the issue presented by [Husband] in this appeal is severely hampered if not eliminated by the absence of transcripts of the hearing or the trial, or any statement of the evidence . . . Because there is no transcript or . . . statement of the evidence, the facts found by the trial court are conclusive on appeal.

The trial court’s order denying Husband’s Rule 59 motion was affirmed. Wife was also awarded her attorney’s fees on appeal.

Westbrooks v. Westbrooks (Tennessee Court of Appeals, Eastern Section, October 29, 2019).

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K.O. Herston is a family-law attorney in Knoxville, Tennessee whose practice is devoted exclusively to family law, including divorce, child custody, child support, alimony, prenuptial agreements, and other aspects of family law.

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