Katherine Mae Pruitt v. Travis Pruitt ( 2019 )

02/05/2019
IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
January 15, 2019 Session
KATHERINE MAE PRUITT v. TRAVIS PRUITT
Appeal from the Chancery Court for Henry County
No. 23626 Carma Dennis McGee, Chancellor
___________________________________
No. W2018-00453-COA-R3-CV
___________________________________
Appellant appeals the trial court’s denial of his motion to set aside a final judgment
obligating him to pay child support. The record shows that Appellant voluntarily
executed a document placing his name on the child’s birth certificate and thereafter
entered into a marital dissolution agreement and parenting plan obligating him to pay
child support with full knowledge that he was not the biological parent of the child.
Because Appellant has failed to present sufficient evidence of a ground for relief under
Rule 60.02 of the Tennessee Rules of Civil Procedure, we affirm the decision of the trial
court to deny Appellant’s request to set aside the judgment. We reverse, however, the
trial court’s award of attorney’s fees based on the parties’ marital dissolution agreement.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
in Part and Reversed in Part
J. STEVEN STAFFORD, P.J., W.S., delivered the opinion of the court, in which FRANK G.
CLEMENT, JR., P.J., M.S., and WILLIAM B. ACREE, JR., SP. J., joined.
J. Neil Thompson, Huntingdon, Tennessee, for the appellant, Travis Pruitt.
OPINION
I. BACKGROUND
Appellee Katherine Mae Pruitt (“Mother”) gave birth to the minor child at issue in
December 2013. Mother and Appellant Travis Pruitt (“Husband”) married in December
2014 and lived in Henry County throughout the marriage. There is no dispute that
Husband is not the biological parent of the child and that both Mother and Husband were
fully aware of this fact at all relevant times. At some point, the parties executed a
document for the purposes of changing the child’s birth certificate to reflect Husband as
the child’s father and to change the child’s surname to that of Husband. The child’s birth
certificate reflected these changes.
On November 13, 2015, Mother filed a complaint for divorce in the Madison
County Chancery Court; the child was listed as a child of the marriage. On February 16,
2016, the Madison County Chancery Court entered a final divorce decree in which the
parties were divorced on the ground of irreconcilable differences. Attached to the decree
was a marital dissolution agreement (“MDA”) signed by both parties and an agreed
permanent parenting plan. Under the plan, Husband was to have no visitation with the
child but was obligated to pay child support.
On February 15, 2017, Husband filed a motion in Henry County Chancery Court
(“the trial court”) pursuant to Rule 60.02 of the Tennessee Rules of Civil Procedure. The
motion sought relief from Husband’s obligation to pay child support. The divorce case
was thereafter transferred from Madison County to the trial court. Mother filed a motion
to dismiss the Rule 60.02 motion on the basis that the motion did not allege fraud,
inadvertence, mistake, or excusable neglect. In support, Mother noted that Husband was
fully aware that he was not the child’s biological parent at the time the agreed parenting
plan was entered and yet chose to enter a voluntary acknowledgement of paternity
concerning the child.
The trial court held an evidentiary hearing on Husband’s Rule 60.02 motion on
August 7, 2017. At the beginning of the hearing, Husband confirmed that he was seeking
relief under Rule 60.02(1), (2), and (3). The proof showed that the parties began their
relationship when Mother was already pregnant with the child. Notwithstanding
Husband’s knowledge that he was not the biological parent of the child, during the
marriage, the parties executed a document allowing Father’s name to be placed on the
child’s birth certificate and the child’s surname to be changed. Upon the divorce, Mother
testified that her counsel informed her that because Husband was listed as the child’s
father on the birth certificate, the child was required to be included in the divorce
documents as a marital child. Husband admitted that although he was given time to
review the MDA before signing, he never sought counsel on his own behalf relative to
the divorce. When asked why he was seeking to avoid paying child support, Husband
answered that he no longer wished to pay child support if he could not see the child due
to his work schedule. On August 23, 2017, the trial court entered an order confirming that
Husband was seeking relief only on the above grounds and that the parties were permitted
to file post-trial briefs concerning Rule 60.02(3).
Thereafter on September 13, 2017, the trial court entered an order denying
Husband’s Rule 60.02 motion. Therein, the trial court found that Husband had ample
time to review the MDA and parenting plan offered by Mother, chose not to obtain
attorney advice before signing the divorce documents, and was fully aware that he was
not the biological parent of the child. The trial court also found that Husband signed a
voluntary acknowledgement of paternity following the child’s birth that allowed Husband
to be placed on the child’s birth certificate and the child’s surname to be changed. The
parties thereafter held the child out to be Husband’s child. According to the trial court,
Husband filed his motion because he does not want to pay child support anymore and
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cannot see the child because of his work schedule. Finally, the trial court ruled that none
of the grounds for setting aside a final judgment under Rule 60.02 had been met, as the
parenting plan was not a mistake, there was no fraud, and the judgment was not void. The
trial court later entered an order awarding Mother attorney’s fees. From these orders,
Husband appeals.1
II. ISSUES PRESENTED
Husband raises the following issues in his brief:
1. Whether the trial court erred in denying Husband’s Rule 60.02 Motion
while ruling that he was not the biological father of the minor child and
paternity had not been established?
2. Whether the trial court erred in denying Husband’s Rule 60.02 Motion
on the basis or mistake, inadvertence, surprise or excusable neglect?
3. Whether the trial court erred in denying Husband’s Rule 60.02 Motion
on the basis or fraud, misrepresentation or other misconduct of an
adverse party?
4. Whether the trial court erred in denying Husband’s Rule 60.02 Motion
on the basis that the Final Divorce Decree is void?
5. Whether the trial court erred in awarding Mother a judgment for her
attorney fees and costs?
III. DISCUSSION
A. Rule 60.02 Relief
Husband seeks to avoid the child support obligation agreed to by him under the
parties’ MDA and parenting plan through the vehicle of a motion to set aside a final
judgment under Rule 60.02 of the Tennessee Rules of Civil Procedure. Rule 60.02
provides, in relevant part, that
On motion and upon such terms as are just, the court may relieve a party or
the party’s legal representative from a final judgment, order or proceeding
for the following reasons: (1) mistake, inadvertence, surprise or excusable
neglect; (2) fraud (whether heretofore denominated intrinsic or extrinsic),
misrepresentation, or other misconduct of an adverse party; (3) the
judgment is void; (4) the judgment has been satisfied, released or
discharged, or a prior judgment upon which it is based has been reversed or
otherwise vacated, or it is no longer equitable that a judgment should have
prospective application; or (5) any other reason justifying relief from the
operation of the judgment. The motion shall be made within a reasonable
1
Mother chose not to participate in this appeal.
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time, and for reasons (1) and (2) not more than one year after the judgment,
order or proceeding was entered or taken.
Tenn. R. Civ. P. 60.02. As we have previously explained:
[Rule] 60.02 provides an exceptional remedy that enables parties to
obtain relief from a final judgment. Nails v. Aetna Ins. Co., 834 S.W.2d
289, 294 (Tenn.1992); Hungerford v. State, 149 S.W.3d 72, 76
(Tenn.Ct.App.2003). The rule strikes a balance between the competing
principles of finality and justice, Banks v. Dement Constr. Co., 817 S.W.2d
16, 18 (Tenn. 1991); Rogers v. Estate of Russell, 50 S.W.3d 441, 444
(Tenn. Ct. App. 2001), and provides “an escape valve from possible
inequity that might otherwise arise from the unrelenting imposition of the
principle of finality imbedded in our procedural rules.” Thompson v.
Firemen’s Fund Ins. Co., 798 S.W.2d 235, 238 (Tenn. 1990). The burden
of proof is on the party seeking Tenn. R. Civ. P. 60.02 relief. The bar for
obtaining relief is set very high, and the burden borne by the moving party
is heavy. Johnson v. Johnson, 37 S.W.3d 892, 895 (Tenn. 2001).
DeLong v. Vanderbilt Univ., 186 S.W.3d 506, 511 (Tenn. Ct. App. 2005). According to
our supreme court:
To obtain relief under Rule 60.02, the moving party “must describe
the basis of relief with specificity,” Minor Miracle Prods., LLC v.
Starkey, No. M2011-00072-COA-R3-CV, 2012 WL 112593, at *7 (Tenn.
Ct. App. Jan. 12, 2012) (citing Hopkins v. Hopkins, 572 S.W.2d 639, 640
(Tenn. 1978)), and establish by clear and convincing evidence that she is
entitled to relief. McCracken v. Brentwood United Methodist Church,
958 S.W.2d 792, 795 (Tenn. Ct. App. 1997). “Evidence is clear and
convincing when it leaves ‘no serious or substantial doubt about the
correctness of the conclusions drawn.’” Goff v. Elmo Greer & Sons
Constr. Co., 297 S.W.3d 175, 187 (Tenn. 2009) (quoting Hodges v. S.C.
Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992)).
Hussey v. Woods, 538 S.W.3d 476, 483 (Tenn. 2017)
In this case, the trial court asked Husband to specify the grounds on which he was
relying in prosecuting his Rule 60.02 motion. Husband specified that he was relying on
grounds 1, 2, and 3. On appeal, in addition to arguing that the trial court erred in rejecting
each of these grounds for relief, Husband makes a more general argument that Rule 60.02
relief is proper in reliance on case law involving other Rule 60.02 grounds. The trial court
specifically asked Husband to state the grounds relied upon. Husband could have easily
specified additional grounds than the ones alleged, but made a strategic decision to rely
only on grounds 1, 2, and 3. As such, we will not consider any grounds beyond those
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specified in the trial court.2 See State v. Smith, No. M2015-01616-CCA-R3-CD, 2016
WL 721526, at *2 (Tenn. Crim. App. Feb. 24, 2016) (citing Tenn. R. App. P. 36(a))
(“Defendant cannot raise an additional ground for relief on appeal or switch theories
between the trial court and the appellate court.”). Finally, we note that in his brief,
Husband does not seek a retroactive modification of child support, but only the
termination of his child support obligation as of the filing of his Rule 60.02 motion. See
generally In re Christopher A. D., No. M2010-01385-COA-R3-JV, 2012 WL 5873571,
at *4 (Tenn. Ct. App. Nov. 20, 2012) (noting that this Court has “upheld the prohibition
against retroactive modification of child support in the face of equitable defenses in a
number of cases”). We begin first with Husband’s argument that the judgment is void.
I.
Husband first asserts that the original divorce decree, including the agreed MDA
and parenting plan, are void under Rule 60.02(3). “Rule 60.02(3) provides for relief from
a void judgment.” Hussey, 538 S.W.3d at 483. The trial court’s denial of relief under
Rule 60.02(3) “is de novo with no presumption of correctness.” Id. at 483 (citing Turner
v. Turner, 473 S.W.3d 257, 279 (Tenn. 2015)). A judgment is void “if it appears on the
face of the record itself that the court lacked subject matter jurisdiction, the judgment was
outside of the pleadings, or the court lacked jurisdiction over the parties.” Id. (citing
Turner, 473 S.W.3d at 270). Here, Husband asserts that the original divorce decree was
void on two bases: (1) improper venue; and (2) lack of an indispensible party. We begin
with venue.
Pursuant to Tennessee Code Annotated section 36-4-105, the proper venue for a
divorce complaint is “the county where the parties reside at the time of their separation,
or in which the defendant resides, if a resident of the state; but if the defendant is a
nonresident of the state or a convict, then in the county where the applicant resides.”
Tenn. Code Ann. § 36-4-105(a). There is no dispute that at the time the Madison County
Chancery Court entered the divorce decree the parties did not live in Madison County,
2
For example, Husband cites the case of State ex rel. Taylor v. Wilson, No. W2004-00275-COA-
R3-JV, 2005 WL 517548, at *1 (Tenn. Ct. App. Mar. 3, 2005). In Taylor, however, the petitioner filed his
petition under Rule 60.02(4), i.e., that “it is no longer equitable that a judgment should have prospective
application[.]” Id. at *1. Husband chose not to rely on this ground for relief at trial in this cause.
Moreover, the petitioner alleged that the voluntary legitimation of the child was based on a mutual
mistake of fact concerning the child’s biological father. As discussed in detail, infra, no such mistake is at
issue in this case. Other cases have followed a similar framework. See Richards v. Read, No. 01A01-
9708-PB-00450, 1999 WL 820823, at *10 (Tenn. Ct. App. July 27, 1999) (ruling that the petitioner was
entitled to Rule 60.02(4) relief where the child’s mother “led him to believe that he was the father of the
child”); White v. Armstrong, No. 01A01-9712-JV-00735, 1999 WL 33085, at *3 (Tenn. Ct. App. Jan. 27,
1999) (relying on Rule 60.02(4) and the fact that the petitioner “believed that he was the boy’s biological
father” when the obligation was made in setting aside the child support obligation). Moreover, as
discussed in detail, infra, this Court has previously rejected a motion under Rule 60.02(4) where the
parent had knowledge of the child’s paternity at the time he agreed to the child support obligation. See
Welch v. Welch, 195 S.W.3d 72, 76 (Tenn. Ct. App. 2005).
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nor had they ever lived in that county. Nonetheless, the divorce was filed and adjudicated
in Madison County. According to Husband, nothing in the parties MDA expressly waives
venue and the language contained therein. We respectfully disagree.
The parties’ MDA contains the following provision:
[Husband] acknowledges that a divorce action has or will be filed in the
Chancery Court of Madison County, Tennessee and that he or she has
received a copy of the same and [Husband] waives further service of
process and waives filing an answer to the Petition for Divorce. This waiver
shall constitute a general appearance by [Husband] before the Court where
filed and shall further constitute a default judgment for the purpose of
granting a divorce on the grounds of irreconcilable differences without
further Notice.
As this Court has explained:
A party’s objections to personal jurisdiction and venue are deemed
waived unless they are raised in a timely manner. Kane v. Kane, 547
S.W.2d 559, 560 (Tenn. 1977) (venue); Felty v. Chillicothe Realty Co., 175
Tenn. 315, 318, 134 S.W.2d 153, 154 (1939) (personal jurisdiction). Thus,
if a party makes a general appearance and does not take issue with venue,
adequacy of service of process, personal jurisdiction, or other similar
matters, the courts customarily find that the party has waived its objections
to these matters. Tennessee Dep’t. of Human Serv’s v. Daniel, 659 S.W.2d
625, 626 (Tenn. Ct. App. 1983) (personal jurisdiction); Walkup v.
Covington, 18 Tenn.App. 117, 126, 73 S.W.2d 718, 723–24 (1933) (defect
in process).
Dixie Sav. Stores, Inc. v. Turner, 767 S.W.2d 408, 410 (Tenn. Ct. App. 1988). Here, the
MDA, which was undisputedly signed by Husband, states that the divorce was to be filed
in Madison County and that Husband’s consent to the MDA would serve as a “general
appearance” for the purpose of obtaining a divorce in that court. As such, it appears that
Husband had full knowledge that the divorce was to be filed in Madison County and
waived any objection to improper venue in the MDA. As such, this issue is without merit.
We likewise reject Husband’s assertion that the child’s putative father was an
indispensible party to this divorce action.3 This issue is generally governed by Rule 19 of
the Tennessee Rules of Civil Procedure. First, Rule 19.01 provides, in relevant part, as
follows:
3
This issue was raised only minimally in the hearing on the Rule 60.02 motion. However, the
parties were permitted to file post-trial briefs regarding the application of Rule 60.02(3), which are not
included in the record. See Tenn. R. App. P. 24(b) (excluding “trial briefs” from the record on appeal).
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A person who is subject to service of process shall be joined as a party if
(1) in the person’s absence complete relief cannot be accorded among those
already parties, or (2) the person claims an interest relating to the subject of
the action and is so situated that the disposition of the action in the person’s
absence may (i) as a practical matter impair or impede the person’s ability
to protect that interest, or (ii) leave any of the persons already parties
subject to a substantial risk of incurring double, multiple, or otherwise
inconsistent obligations by reason of this claimed interest. If the person has
not been so joined, the court shall order that the person be made a party. If
the person properly should join as a plaintiff but refuses to do so, he or she
may be made a defendant, or in a proper case, an involuntary plaintiff.
Tenn. R. Civ. P. 19.01. Rule 19.02 goes on to state that
If a person as described in Rule 19.01(1)-(2) hereof cannot be made a party,
the court shall determine whether in equity and good conscience the action
should proceed among the parties before it; or should be stayed or
dismissed, the absent person being thus regarded as indispensable. The
factors to be considered by the court include: (1) to what extent a judgment
rendered in the person’s absence might be prejudicial to the person or those
already parties; (2) the extent to which, by protective provisions in the
judgment, by the shaping of relief, or other measures, the prejudice can be
lessened or avoided; (3) whether or not a judgment rendered in the person’s
absence will be adequate; and (4) whether or not the plaintiff will have an
adequate remedy if the action is dismissed for nonjoinder.
If a party is indispensible, that is a person who must be joined in the action but whose
joinder is not feasible, the action must be dismissed. Danelz v. Gayden, No. W2010-
02308-COA-R3-JV, 2011 WL 2567742, at *7 (Tenn. Ct. App. June 29, 2011) (citing
Robert Banks, Jr. & June F. Entman, Tennessee Civil Procedure § 6–82 n. 353 (2d. ed.
2004)); see also Baker v. Foster, No. W2009-00214-COA-R3-CV, 2010 WL 174773, at
*4 (Tenn. Ct. App. Jan. 20, 2010) (“When an indispensable and necessary party has not
been joined, neither the trial court nor the appellate court may proceed further with the
matter.”).
As an initial matter, we must point out that despite Husband’s contention
otherwise, this matter involves a divorce, rather than a paternity action. Husband cites no
Tennessee law, nor has our research revealed any, requiring that putative fathers of non-
marital children be joined as necessary parties to divorce actions. Indeed, such a rule
would conflict with the general rule in divorces:
Typically, the only proper parties to a marital dissolution proceeding are the
spouses. The paramount goal of a divorce proceeding is a just and equitable
resolution of the interests and rights of the divorcing spouses, and asserted
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interests of third parties in marital property are best resolved in legal
actions separate and apart from the divorce proceeding. Neither the rules of
trial procedure governing joinder of parties nor the dissolution of marriage
statutes are so broad as to require third parties to be dragged into marriage
dissolution proceedings by their heels and there compelled to litigate issues
that are but tangential to that cause of action.
27A C.J.S. Divorce § 174 (footnotes omitted). Thus, while Tennessee courts have
previously allowed joinder of a third-party in a divorce by agreement of the parties to
facilitate property settlement issues, see Merkel v. Merkel, No. E2014-01888-COA-R3-
CV, 2016 WL 1276094, at *4 (Tenn. Ct. App. Mar. 31, 2016), no Tennessee court has
ever held that a child’s putative father was a necessary party to a divorce. But cf. Danelz,
2011 WL 2567742, at *7 (holding that a child’s legal parent may be an indispensible
party to a paternity action filed by an alleged biological parent). In fact, Tennessee law is
replete with divorces that include non-marital children without joinder of the child’s
biological parent. See, e.g., Rice v. Rice, 983 S.W.2d 680, 681 (Tenn. Ct. App. 1998)
(noting that the mother had a child from a prior relationship but adjudicating the divorce
without joining that child’s biological father as a necessary party). Simply put, the
putative father of a non-marital child is not necessary to the adjudication of a divorce, and
we decline to hold that a Tennessee divorce is invalid because a non-marital child’s
putative father was not joined in the action. Having determined that neither venue nor
lack of an indispensable party provide an escape from the final order entered in this case,
we affirm the trial court’s denial of Husband’s Rule 60.02 motion on the basis that the
judgment is void.
II.
We next consider Husband’s assertion that Rule 60.02 is available on the basis of
mistake or excusable neglect. As previously discussed, under Rule 60.02(1), a final
judgment may be set aside on the basis of “mistake, inadvertence, surprise or excusable
neglect[.]” Tenn. R. Civ. P. 60.02. Such a motion must be filed within one year from the
final judgment. Id. Relief under Rule 60.02(1) is reviewed for an abuse of discretion.
Underwood v. Zurich Ins. Co., 854 S.W.2d 94 (Tenn. 1993); In re Layla C.S., 389
S.W.3d 337, 339 (Tenn. Ct. App. 2012). A trial court abuses its discretion when it has
applied an incorrect legal standard or has reached a decision which is against logic or
reasoning that caused an injustice to the party complaining. Eldridge v. Eldridge, 42
S.W.3d 82, 85 (Tenn. 2001). We will not overturn the trial court’s decision merely
because reasonable minds could reach a different conclusion. Id.
There is no dispute that both Husband and Mother were aware that Husband was
not the biological parent of the child at issue when the MDA was signed and the divorce
decree entered. As such, this case is distinguishable from the cases in which the petitioner
was unaware that he was not the child’s biological parent at the time judgment was
entered. See, e.g., In re T.M.S., No. W2012-02220-COA-R3-JV, 2013 WL 3422975, at
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*9 (Tenn. Ct. App. July 8, 2013) (concluding that the petitioner showed a mistake of fact
where he voluntarily agreed to child support despite the fact that he was not sure that the
child was his). Husband asserts, however, that both he and Mother were under the
mistaken belief that Husband was required to pay child support notwithstanding the
child’s paternity. The record does reflect Mother’s undisputed testimony that her divorce
attorney informed her that because Husband’s name was on the child’s birth certificate,
“they had to file it in the divorce as [Husband’s] child.”4 Mother further admitted that she
informed Husband of this advice. Thus, while the record does reveal that a mistake
occurred in this case, we must conclude that a mistake of this type is not cognizable
under Rule 60.02(1). Rather, the mistake at issue in this case is a mistake of law, rather
than a mistake of fact. It is well-settled, however, that “a mistake of law is not a ground
for relief under Rule 60.02.” Selitsch v. Selitsch, 492 S.W.3d 677, 689 (Tenn. Ct. App.
2015); see also Henderson v. SAIA, Inc., 318 S.W.3d 328, 337 (Tenn. 2010) (holding
that ignorance of the law is not a ground for relief under Rule 60.02).
A similar situation occurred in Spruce v. Spruce, 2 S.W.3d 192 (Tenn. Ct. App.
1998). In Spruce, mother filed a Rule 60.02(1) motion, arguing that the parties’ child
support obligation wrongfully deviated downward from the amount mandated by the
Tennessee Child Support Guidelines. Id. at 194. In rejecting the mother’s argument, the
court explained:
In this case, neither party claims ignorance of the operative facts. On
the contrary, it is clear that each of the parties gave their consent to the
child support agreement based upon existing facts then known to both of
them. This is not a case involving a mutual, or even a unilateral, mistake of
fact. What Mother is really complaining about is the fact that the law was
improperly applied to the known facts—first by the parties in reaching their
agreement, and then by the court in approving it. Even if true, this is a
mistake of law and not a mistake of fact. A mistake of law “occurs when a
party knows the facts of the case but is ignorant of the legal consequences.”
Haas v. Haas, C/A No. 02A01-9709-CV-00241, 1998 WL 599529, *4
(Tenn. App. W.S., filed September 11, 1998).
The Supreme Court has opined that if “ignorance of the law is a
proper ground for relief under Rule 60.02 . . ., it is hard to conceive how
any judgment could be safe from assault on that ground.” Food Lion, Inc.
v. Washington County Beer Bd., 700 S.W.2d 893, 896 (Tenn. 1985). In
fact, the cases clearly hold that a mistake of law is not a basis for Rule
4
Mother also admitted that it was her belief that the child was required to be included in the
documents because Husband was named the child’s father on the child’s birth certificate. Mother
confirmed, however, that she was not aware that the child could be excluded from the divorce documents
and that she relied on the advice of counsel.
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60.02 relief. Metropolitan Dev. & Hous. Agency v. Hill, 518 S.W.2d 754,
768 (Tenn. App. 1974).
Spruce, 2 S.W.3d at 194–95; see also Haas, 1998 WL 599529, at *4 (“From the record,
it is evident that Father was aware of the facts of the case, but was ignorant of the law.
This is not the type of mistake that [Rule] 60.02 is designed to correct.”).
The same is true in this case. Both parties were fully aware that Husband was not
the biological parent of the child. The parties were uninformed or ill-informed regarding
the legal consequences of that fact. Such a mistake of law is simply not a basis for relief
under Rule 60.02(1). See Holiday v. Shoney’s S., Inc., 42 S.W.3d 90, 94 (Tenn. Ct. App.
2000) (“It is well settled that ignorance of an attorney with respect to the applicable law
or rules is not the type of mistake that invokes the relief provided for under Rule
60.02(1).”).5 Husband’s decision to enter into the MDA with full knowledge that he was
not the child’s biological parent was not inadvertent or the product of excusable neglect
or a mistake of fact. In a similar situation, this Court has held that no mistake of fact
occurred. See Welch v. Welch, 195 S.W.3d 72, 78 (Tenn. Ct. App. 2005) (“When a party
seeks relief under Rule 60.02 from a prior order of legitimation, equity requires relief
where there is evidence of mistake or fraud or where prospective application of the order
works an injustice. However, in the absence of other considerations not present in this
case, a party who legitimizes a child knowing that child is not biologically his has, for all
purposes, evidenced a decision to enter into an adoption-like parent-child relationship.”)
(discussed in detail, infra). As such, the trial court did not err in denying Husband’s
motion on this basis.
III.
Husband next asserts that he is entitled to relief under Rule 60.02(2), which
provides relief where there has been “fraud (whether heretofore denominated intrinsic or
extrinsic), misrepresentation, or other misconduct of an adverse party[.]” Tenn. R. Civ. P.
60.02. Again, this type of relief must be sought within one year of the final judgment, see
id., and the trial court’s decision is reviewed for an abuse of discretion. See Howard v.
Howard, 991 S.W.2d 251, 255 (Tenn. Ct. App. 1999) (applying the abuse of discretion
standard to a request for relief under Rule 60.02(2)).
The basis of Husband’s request for relief under this ground is Mother’s alleged
misrepresentation concerning the fact that the child was required to be included in the
5
Moreover, the record reflects that Husband had an opportunity to consult counsel relative to the
divorce but voluntarily chose not to do so, and instead voluntarily agreed to enter into the MDA and
parenting plan in the absence of advice of counsel. Henderson, 318 S.W.3d at 337 (citing Spruce, 2
S.W.3d at 195) (“In any event, a mistake of law, to the extent the employee asserts one stemming from
her decision not to secure counsel, is not a basis for relief under Rule 60.02.”); cf. Potter v. Espinosa, No.
M2008-02542-COA-R3-CV, 2009 WL 3400702, at *4 (Tenn. Ct. App. Oct. 21, 2009) (holding that a
mistake may occur if the party seeking relief did not in some way consent to the judgment he or she now
seeks to set aside).
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divorce because Husband was listed on the child’s birth certificate. Husband cites no
caselaw to support this argument on appeal. “It 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
of Supreme Court, 301 S.W.3d 603, 615 (Tenn. 2010). Moreover, we note that two
essential elements of any claim of fraud or intentional misrepresentation are “an
intentional misrepresentation with regard to a material fact” and “knowledge of the
representation[’s] falsity.” Philp v. Se. Enterprises, LLC, No. M2016-02046-COA-R3-
CV, 2018 WL 801663, at *10 (Tenn. Ct. App. Feb. 9, 2018), perm. app. denied (Tenn.
June 6, 2018) (citing Stacks v. Saunders, 812 S.W.2d 587, 592 (Tenn. Ct. App. 1990)
(internal citations omitted)). Here, the evidence presented shows that Mother consulted
counsel, who informed her that the child would be required to be included in the divorce
documents. Our review of the record fails to persuade us that Husband presented clear
and convincing evidence that this statement by Mother was a statement of material fact
that she knew was false. See also State Dep’t of Human Servs. ex rel. Ellis v. Humes,
No. W2004-00602-COA-R3-JV, 2005 WL 562753, at *3 (Tenn. Ct. App. Mar. 10, 2005)
(denying relief under Rule 60.02(2) because the purported father “failed to establish that
[mother] knew he was not the father of these children before the paternity orders were
entered, that she knowingly misrepresented to him that he was the father, and that he
reasonably relied upon her misrepresentation to his detriment”); see also Welch, 195
S.W.3d at 78 (discerning no fraud where the petitioner was aware of the child’s
paternity). Instead, this appears to be nothing more than a mistake of law, which, as
previously discussed, does not support Rule 60.02 relief. Given Husband’s failure to
properly brief this issue, we conclude that the trial court did not err in denying relief on
the basis of Rule 60.02(2).
IV.
Finally, we address Husband’s argument, littered throughout his brief, that public
policy supports termination of his child support obligation in this case. Although this
argument is not addressed to a specific provision of Rule 60.02, in an abundance of
caution, we will address this issue. In support, Husband cites a number of cases in which
a non-biological parent was able to avoid a child support order. We agree that “the
legislature has made it clear that this court may only impose a child support obligation on
a child’s natural or adoptive parent.” Braun v. Braun, No. E2012-00823-COA-R3-CV,
2012 WL 4563551, at *3 (Tenn. Ct. App. Oct. 2, 2012). In this case, however, the child
support obligation was not imposed by the court but voluntarily assumed by Husband.
Tennessee law is clear that even where a court lacks authority to impose an obligation of
support, a party may voluntarily assume such an obligation by contract. See, e.g.,
Penland v. Penland, 521 S.W.2d 222, 224 (Tenn. 1975); Corder v. Corder, 231 S.W.3d
346, 356 (Tenn. Ct. App. 2006); Turner v. Turner, No. W2015-01165-COA-R3-CV,
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2016 WL 4259976, at *6 (Tenn. Ct. App. Aug. 11, 2016); Gibbs v. Gibbs, No. E2015-
01362-COA-R3-CV, 2016 WL 4697433, at *5 (Tenn. Ct. App. June 22, 2016).
Likewise, “Tennessee law strongly favors requiring biological parents to bear
responsibility for their own children, and [] this policy also favors relieving putative
fathers of the burden of supporting children who have been shown, through conclusive
evidence such as DNA testing, not to be their natural offspring.” State ex rel. Taylor v.
Wilson, No. W2004-00275-COA-R3-JV, 2005 WL 517548, at *4 (Tenn. Ct. App. Mar.
3, 2005). Still, DNA testing conclusively showing that a man is not a child’s biological
parent, alone, is insufficient to support relief under Rule 60.02. See Welch v. Welch, 195
S.W.3d 72, 75 (Tenn. Ct. App. 2005). Rather, this Court has held that “[o]ur case law
clearly rejects a bright-line rule that properly admitted genetic tests conclusively
excluding a legal father from paternity automatically entitle the legal father to relief
under Rule 60.02.” Id. Instead, “the determination of whether Rule 60.02 relief is
appropriate depends on a weighing of the equities of the case.” Id. at 76 (citing State ex
rel. Ellis v. Humes, No. W2004-00602-COA-R3-JV, 2005 WL 562753, at *3 (Tenn. Ct.
App. Mar.10, 2005)). In Welch, the petitioner executed a voluntary acknowledgement of
paternity (“VAP”) concerning a child that he knew was not his biological offspring.
Later, however, the petitioner filed a motion to set aside the legitimation decree on the
basis that he only entered into the VAP to change the child’s surname and because he did
not understand the legal consequences of such action. Id. at 73–74. The trial court
granted the petitioner’s request and mother appealed.
This Court reversed the decision of the trial court, ruling that relief was not
available under Rule 60.02. In reaching this result, we distinguished cases where the
petitioners were involved in sexual relationships with the mothers of the children around
the time of conception “and were led to believe the children were, in fact, biologically
theirs.” Id. at 76 (citing Richards, 1999 WL 820823, at *11; White, 1999 WL 33085, at
*3). In contrast, when the petitioner in Welch petitioned to establish paternity of the
child, he had “full and unequivocal knowledge that he was not [the child’s] biological
father.” Id. at 76. As such, we concluded that
Mr. Welch unambiguously defrauded the court in the original legitimation
proceeding. Thus, as in Ellis, conclusive evidence that Mr. Welch is not
[the child’s] biological father is not sufficient, without more, to warrant
relief under Rule 60.02. Clearly, equity does not require the court to relieve
Mr. Welch of obligations and privileges for which he voluntarily,
knowingly, and even fraudulently petitioned the court.
* * *
Children are not property and are not disposable as a matter of convenience.
This truth is foundational to the statutory child support, custody, and
adoption scheme developed by our legislature and applied by our courts.
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Moreover, the courts do not look favorably upon being invoked to
participate in a falsehood. When a party seeks relief under Rule 60.02 from
a prior order of legitimation, equity requires relief where there is evidence
of mistake or fraud or where prospective application of the order works an
injustice. However, in the absence of other considerations not present in
this case, a party who legitimizes a child knowing that child is not
biologically his has, for all purposes, evidenced a decision to enter into an
adoption-like parent-child relationship. That a judgment creating this
relationship should have prospective application works no inequity.
Id. at 76–78. In the absence of a showing of inequity, we held that the petitioner’s Rule
60.02 motion should have been denied. We further noted that such a result “does not
violate this state’s public policy of ensuring that children are supported by their parents”
where a parent voluntarily undertook the legal responsibility to parent the child. Id. at 78.
Other cases have followed the reasoning in Welch. See Coyle v. Erickson, No. E2010-
02585-COA-R9-CV, 2011 WL 3689157, at *7 (Tenn. Ct. App. Aug. 24, 2011) (holding
that “where the man acknowledged the paternity of a child born before his marriage to
the mother, and then agreed that the child was his in their divorce and was ordered to pay
child support” it is not error to require the man to pay child support); State ex rel.
Hickman v. Dodd, No. W2008-00534-COA-R3-CV, 2008 WL 4963508, at *7 (Tenn. Ct.
App. Nov. 21, 2008) (“The results of genetic testing alone are not sufficient grounds for
relief under the stringent requirements of Tenn. R. Civ. P. 60.02(5).”).
The same is generally true in this case. Husband voluntarily executed a document
allowing his name to be placed on the child’s birth certificate and the child’s surname to
be changed. Thereafter Husband, again voluntarily, entered into the MDA and parenting
plan with full and unequivocal knowledge that he was not the biological parent of the
child. Equity therefore does not require the court to relieve Husband of the obligations
that he voluntarily and knowingly assumed.
We do acknowledge one distinguishing feature between Welch and the case-at-
bar—the existence of a properly executed VAP. In this case, although the trial court
expressly found that Husband executed a VAP in his effort to change the child’s surname
and birth certificate, no VAP was submitted as an exhibit at the hearing or included in the
record on appeal. In this situation, we have previously held that an alleged VAP should
not be considered. See In re T.M.S., No. W2012-02220-COA-R3-JV, 2013 WL 3422975,
at *6 (Tenn. Ct. App. July 8, 2013) (holding that for purposes of appeal, there was no
VAP because it was not included in the record and no other competent evidence was
presented to show its existence); State ex rel. Johnson v. Mayfield, No. W2005-02709-
COA-R3-JV, 2006 WL 3041865, at *1 n.1 (Tenn. Ct. App. Oct. 26, 2006) (“In this case,
the appellant did not ensure that a copy of the alleged 1997 VAP was included in the
record before us, and therefore, we cannot consider it as part of the facts of this case.”).
As an initial matter, we note that Husband did not designate the trial court’s ruling with
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regard to the VAP as an issue on appeal, nor does he specifically argue that the trial court
erred in finding that this document constituted a VAP. Where issues are not designated as
such on appeal or argued in a party’s appellate brief, they are typically waived. Cf.
Childress v. Union Realty Co., 97 S.W.3d 573, 578 (Tenn. Ct. App. 2002) (“We consider
an issue waived where it is argued in the brief but not designated as an issue”).
In any event, we conclude that the trial court did not err in denying Rule 60.02
relief even in the absence of a properly executed VAP. When faced with this scenario, the
existence or non-existence of a properly executed VAP was not dispositive of whether
Rule 60.02 relief was warranted. Instead, the dispositive question on appeal was whether
the petitioner had shown a ground for relief under Rule 60.02. See In re T.M.S., 2013
WL 3422975, at *9 (going on to consider whether a ground for relief was shown under
Rule 60.02 and ultimately concluding that the petitioner’s lack of conclusive knowledge
as to paternity was sufficient to show a mistake of fact under Rule 60.02(1)); State ex rel.
Johnson v. Mayfield, 2006 WL 3041865, at *6 (going on to consider whether a ground
for relief was proven under Rule 60.02 and ultimately concluding that the petitioner’s
lack of knowledge as to paternity was sufficient to entitle him to relief under Rule
60.02(4)). As previously discussed, however, Husband has not shown a proper ground for
relief under Rule 60.02. Rather, the evidence shows that regardless of whether a VAP
was properly executed, Husband entered into a voluntary and knowing agreement to
assume a “parent-child relationship” with the child at issue despite his conclusive
knowledge that the child was not his biological offspring. Welch, 195 S.W.3d at 77–78
(“Like an adoptive parent, Mr. Welch assumed all the responsibilities of parenthood
knowing [the child] was not biologically his.”). As such, the trial court was not required
“to grant [Husband’s] Rule 60.02 motion based solely on conclusive proof that [he] is not
the biological father of [the child] where [Husband] undisputedly knew he was not [the
child’s] father at the time he [agreed to pay child support].” Id. at 78. The trial court’s
ruling is therefore affirmed.
B. Attorney’s Fees
Husband also raises an issue regarding the trial court’s decision to award
attorney’s fees to Mother. In this case, the trial court’s award of attorney’s fees was based
solely “on the language outlined in the parties Martial Dissolution Agreement.” Husband
argues that this ruling was in error because the MDA does not support an award of
attorney’s fees in this situation. We agree.
The parties’ MDA contains an attorney’s fees provision that provides as follows:
“Should either party fail to abide by or perform the agreements herein, he or she shall be
liable to the other for all reasonable attorney’s fees, cost and expenses incurred by the
other in securing performance.” The Tennessee Supreme Court has explained that “[a]
marital dissolution agreement is a contract and as such is subject to the rules governing
construction of contracts.” Eberbach v. Eberbach, 535 S.W.3d 467, 478 (Tenn. 2017)
(citing Barnes v. Barnes, 193 S.W.3d 495, 498 (Tenn. 2006)). As such, “our courts are
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required to interpret contracts as written, giving the language used a natural meaning.” Id.
(citing U.S. Bank, N.A. v. Tennessee Farmers Mut. Ins. Co., 277 S.W.3d 381, 386–87
(Tenn. 2009)).
The plain language of the MDA provides that attorney’s fees may be awarded only
when one party fails to abide by its terms or perform the obligations outlined therein. At
trial, no testimony was presented that Husband had ever failed to abide by the MDA or
parenting plan in any way or failed to pay the required child support. As such, an award
of attorney’s fees pursuant to the plain language of the MDA was not available. We note
that in addition to contract, attorney’s fees may also be authorized by statute. Id. at 475
(“Parties to post-divorce proceedings seeking to recover appellate attorney’s fees also
may request an award of attorney’s fees on statutory grounds.”). For example, Tennessee
Code Annotated section 36-5-103 provides an award of attorney’s fees in connection with
proceedings involving child support. See Tenn. Code Ann. § 36-5-103(c).6 The trial
court, however, did not rely on this statute in awarding attorney’s fees and Mother did not
cite this statute in her request for attorney’s fees. As such, we must conclude that the trial
court erred in awarding attorney’s fees in this case based on the plain language of the
parties’ MDA.
IV. CONCLUSION
The judgment of the Henry County Chancery Court is affirmed in part and
reversed in part. This cause is remanded to the trial court for all further proceedings as
6
We note that section 36-5-103(c) was amended in 2018 to provide as follows:
A prevailing party may recover reasonable attorney’s fees, which may be fixed and
allowed in the court’s discretion, from the non-prevailing party in any criminal or civil
contempt action or other proceeding to enforce, alter, change, or modify any decree of
alimony, child support, or provision of a permanent parenting plan order, or in any suit or
action concerning the adjudication of the custody or change of custody of any children,
both upon the original divorce hearing and at any subsequent hearing.
2018 Tennessee Laws Pub. Ch. 905 (H.B. 2526), eff. July 1, 2018. Prior to this amendment, the statute
stated the following:
The plaintiff spouse may recover from the defendant spouse, and the spouse or other
person to whom the custody of the child, or children, is awarded may recover from the
other spouse reasonable attorney fees incurred in enforcing any decree for alimony and/or
child support, or in regard to any suit or action concerning the adjudication of the custody
or the change of custody of any child, or children, of the parties, both upon the original
divorce hearing and at any subsequent hearing, which fees may be fixed and allowed by
the court, before whom such action or proceeding is pending, in the discretion of such
court.
Tenn. Code Ann. § 36-5-103 (2017).
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are necessary and consistent with this Opinion. Costs of this appeal are taxed to
Appellant Travis Pruitt, for which execution may issue if necessary.
_________________________________
J. STEVEN STAFFORD, JUDGE
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