# FILED
February 1, 1999 Cecil W. Crowson Appellate Cou rt Clerk RANDALL CRAIG COBB, ) ) Plaintiff/Appell

ant, ) Appeal No.

) 01-A-01-9803-CV-00127 v. ) ) Davidson Circuit SHARON RUBEN COBB, ) No. 94D-4394 ) Defendant/Appellee. )

COURT OF APPEALS OF TENNESSEE

APPEAL FROM THE CIRCUIT COURT FOR DAVIDSON COUNTY

AT NASHVILLE, TENNESSEE
THE HONORABLE MURIEL ROBINSON, JUDGE

THOMAS F. BLOOM 500 Church Street,

5th floor Nashville, Tennessee 37219 ATTORNEY FOR PLAINTIFF/APPELLANT

JEANAN MILLS STUART 501 Union Street, S uite 503 Nashville, Tennessee 37219 ATTORNEY FOR DEFENDANT/APPELLEE

AFFIRMED AS MODIFIED, AND REMANDED

WILLIAM B. CAIN, JUDGE-2- 

# OPINION

In this case Appellant

challenges the acti

on of the trial court in

denying his application

fo r relief under Rul

e 60.02 of the Tennessee Rules of Civil Procedure, holding him to be i n cr iminal contem pt of court and deny

ing his applic ation f or modif icatio n of ali mony.
On December 22 , 1994, Randall Craig Cobb sued Sharon Ruben Cobb for divorce on grounds of irrec oncila ble differences, cruel and inhuman treatment,

and adultery. These parties were marri ed in Ma y, 1986 and separated September 27,

1994. They had no children.

On January 23, 1995,

Sharon Cobb answer

ed and co unter-claimed charging inappropria

te marital co

nduct, adultery , and abandonme nt.

Mr. Cobb was a professi onal boxer and a prof

essional a c tor holding membersh

ip in the Screen Ac

tors Guild through whi ch he was pai d for professional acting. The parties arr an ged for his payments through Screen Actors Guild to be paid to Heavy Weight Titles, Inc.,

a corporation contr

olled by Mrs. Cobb.

A pendente lite

hearing occurred February 23, 1995, at which husband failed to appear. This he

aring resulted in an order commanding

that all monies received from Screen Actors Guild since September 23, 1994, be paid to counsel for the plaintiff and he

ld in escrow until use

of such funds to prohibit or forest all foreclosure on th e ma rit al residence. In this order husband wa

s required to appear on March 2, 1995, to show cause why this order should

not be enforced.

Once again husband fail ed to appear, and on Apri l 19, 1995, hi s attorney, Honorable Hugh Gre en, moved to withdraw.

On April 21, 1995, wi

fe filed a petition to hold husband in contempt for failure to com

ply with orders

of the court.-3- A show cause order was issued on April 27, 1995, or dering husband to appear before the

court on May 25.

On May 15, Honorable Hu gh Gree n was allowed to withdraw as counsel for husband.

On June 23, 1995, wife filed a motion to have the contempt petition set for hearing. Husband nei ther responded nor appeared to answer the p etition. At the hearing on June 30, 199 5, and by order enter

ed July 7, 1995, t

he trial court rescheduled a hearing on the show cause order for Ju

ly 27, 199 5. Again, husband failed to appe ar for th e hearin g. After the Jul y 27, 1995 hearing, an attachment

of the body was issued for husband. On November 6, 1996, wif e filed a motion f

or a default judgm

ent and to set the case for hearing.

On November 15, 1996, husband finally filed an answer to the wife's counter-complai nt a dmitting that he w as able-bodied and c apable of earning monies to support himself . Husband also file

d on Novembe

r 1 5, 1996, a response to the motion for attachment.

On January 17, 1997,

Honorable L. R.

DeMarco fil

e d a motion to be allowed to withdraw as counse l for husband. Hea

ring was set on

January 24, and DeMarco was allowedto withdraw with f inal hearing being

set for February

12, 1997. On February12, 1997, husband failed t o appear for the fi

nal hearing, either in person or by

counsel.

Atthe hearing

on February 12 wife was grant ed a divorce on her c

rosscomplaint

based upon a

finding of inappropria

te marital co

nduct, adultery , and abandonment. I

n this final divorce or

der dated March 4,

1997, the trial cour

t:
a. awardedthe wife one-h alf of t he proceeds of any settlement or damage award arising from the Sports Illustrated suit; b. awardedthe wife all the publishing and 40% of the writer's royalties for the song "She Do

n't Hold Me Down,

She Holds Me Up;"-4- c. award ed the wife all residuals payable through the Screen Actors Guild to Heavy Weight Titles, Inc. d. awardedthe wife all resi duals for a certain movie entitled "Liar, Liar;"
e. awardedthe wife alimony for her d irect sup port in an amount o f $1,000.00 per month until her death or remarriage; f. ordered the husband

to pay certain

delineated credit

card debts, and to pay fees to the

wife's attorney

in the amount of $ 9,072.10; g. ordered the h usband t o maintain and pa y the premi

ums for the wife's health insurance policy under COBRA through the Screen Actors Guild; h. awardedthe wife 1⁄2 of the husband's vested pension with the Screen Actors Guild; i. ordered the wi fe to b e held harmle ss for all in come taxes incurred in the course of the m

arriage and in par

ticular a 1988 feder

al tax lien; and, j. reserved ruling on a pending contem pt petition and an atta

chment, but directed the clerk to enter this order as a final j udgment pursuant t o Tennessee Rules of

Civil Procedure 54. 02.

On February 27,

1997, husband filed a m

otion to vacate the

contempt and attachment orders and the final decree of divorce.

After a hearing on March 2 1, 199 7, all of husband's motions were overruled, and on A

pril 3, 1997, a notic

e of appeal was fi

led by the husband.

On May 2, 1997, hus

band filed a mot

ion to reconsider the

denial of his motion to vacate the final decree of divorce.

On July 11, 1997, the

husband filed a m

otion to set asid e the final judgment pursuant to Rule 60.02 of the Tennessee Rules of Civil Procedure.

On July 22, 1997, the trial court entered an order at the reque st of the husband dismissing hi s appeal of April 3, 1997.

On July 29, 1997 , wife filed a petition to hold husband in criminal-5-

contempt.

On July 30 , 1997, the trial court dismissed husband's motion to set aside the final judgment but no or der was entered o

n same until Sep

tember 4, 1997.

On September 5, 1997, husband answered the petition for criminal contempt and sam

e was set for hea

ring October 30, 19 97. Followingthe October 30 hear ing the court ent

ered an order on Dece mber

11, 1997, finding the h

usband to be in willful

criminal conte

mpt of courtand sentencing him to e ight consecutive ten day -terms in the Davidson County Jail. O

n December 1 9, 1997, husband file d a notice of appeal.

In the post-divorce proceedings husband was represented by Nicholas A. Clemente of t

he Pennsylvania

bar and his present c

ounsel o f rec ord, Honorable Thomas F. Bloom, of the Nashville Bar.

The record on appeal c

o nsists of two volum

es of pleadings, m

otions and orders of the tria

l court, and three

volumes of testi

monial transcr

ipt, reflecting hearings on May 2 , 1997, July 30, 1997 , and October 30, 199 7. All of this testimonial record occurs well after the final decree of divorce dated March 4, 1997, and

entered after the February 12 hearing. We are favored with neither
a testimonial tra

nscript nor a Tenne ssee Rules of Civil P rocedure 24(c) sta

tement of the evidence, r

eflecting any p

roceedings prior to M

ay 2, 1997.
[1] When a trial court decides a case without a jury, it's findings of fact are pres umed to be cor

rect unless the evidence in the record preponderates aga inst them. Tenn.R.App.P. 13(d). This court cannot review the facts de novo w ithout an appellate recor d containing the fact

s, and therefore, we must assume that the record, had it been preserved, would have con tained sufficient e vidence to support the trial court's factual findi ngs. McDonald v. Onoh, 772 S.W.2d 913, 914

(Tenn.Ct.App. 1989); Irvin v. Cit y of Clarksville , 767 S.W.2d 649, 653 (Tenn.Ct.App.1987); G otten v. Gotten, 748 S.W.2d 430, 432 (Tenn.Ct.App.1988).-6-

Sherrod v. Wix , 849 S.W.2d 780, 783 (Tenn.App.1992). The first issue

on appeal asserted b

y the appellant is that the trial court erred in failing to set aside the default judgm

ent and final decre

e pursuant to Rule 60 of the Tennessee Rules of Civil Procedure. ThoughMr. Cob b was present to test ify in support of h

is Rule 60 motion, the trial court held the m otion to be defective

because it was not accompanied by an affidavit.

The Rule 60 m

otion doe s not necessarily have to be accom

panied by
an affidavit. Hopkins v. Hopkins , 572 S.W.2d 639 (Tenn.1978). T

he motion itself may explai

n mistake, ina

dvertence, surpr

ise or excusable neg

lect. The difficulty wit

h the position of the app

ellant is that the only ex

cuse heasserts in the motion

is personal poverty

prohibiting him fr

om attending

previous hearings,
a condition app arentl y alleviated at the time he pre sented his Rule 60 m otion. He makes no assertion by motion, petition, affidavit or otherwise that he has any merito rious defen se to t he cou nter- claim.

The Tennessee S upreme Court ha s held: "On motion and upon such term s as are just, the courtmay relieve a party or his leg al representative from a final judgment, order or p r oceeding for the following reasons: (1) Mistake, inad ve rtence, surprise or excusable neglect;...." [6,7] When relief is sought under thes e provisions of the rules, the defend

ant is invokin g equ itable principles. A lthoughit is not expressly stipulated in the rule s, it i s universally

recognized that, as a

condition to obtaining relief, the defendant, in addit

ion to showing th at his d efault was brought about by mist

ake, inadvertenc

e or excusable

neglect, must also demonstrat

e th at he has a meritor

ious defense to the plaintiff's claim

, except in the case in which the j udgment is void. Seay & Sheph

erd v. Hug hes, 37 Tenn. 155 (1857); Hunter v. Sh eppard , 187 Tenn. 99, 213 S.W.2d 19 (1948); Whitsonv. Johnson , 22 Tenn.App. 427, 123 S.W.2d 1104 (1939); Aetna Life & Cas. Co . v. Lyon , Tex.Civ.Ap p., 576 S.W.2d 114 (1978). [8-10] We approve the

stat ement of the ru

le found in-7- 35B C.J.S. Federal Civil Pro ce dure § 1131 (1960) as follows: "As a general rule, a default or a defa ult judgment will not be set aside atthe insistence of the defendant unless he makes a showing of a meritorious defense. The existence of a mer it orious defense is an im portant consideration in deter mining whether or no t a defa ult or a default ju dgment entered

against defend ant

should be set asid e. As a general rule, a default or a default judgm

ent will not be set aside at the insis t ence of defendant u nless he makes a showing of a meritorious defense. Indeed , s etting aside a default judgm

ent wit h out such showing will generally be regarded as an a

buse of di scretion. However, no showing of a meritorious def ense is necessary to su p port a motion to va cate a void judgment by

default. Where a showing of ameritorious de fense is made, the cou rt wil l ordinarily vacate a default jud gment unless there are ot her ci rcumst ances prese nt mi litatin g against such actio n." The default judgm

ent sought to be setaside in the instant case was not a

void judgment; he

nce, it was incumbent upon the defendant to assert

a meritorious

defense to

the plaintiff's claim as a condition to having the default judgment set a

side and permitting a

trial on the me

rits. Patterson v. Rockwell I ntern., 665 S.W.2d 96, 100-101 (Tenn.1984).

In this case the appellant started the divorce procee dings in December, 1994, and ran through

at least three law

yers in the

course of simpl

y abandoning the proceedings until well after a final decree had been entered. The trial court did not abuse its disc retion in denying the Rule 60.02 motion. Turner v. Turner , 776 S.W.2d 88 (Tenn.App.1988).
Next, appellant urges that the trial court erred in holdi ng appellant

in contempt for failure to disc

harge certain

obligations set forth in the final decree. The primary b asis for this assert ion is that $39,017.25 of m oney received b

y the wife from Scree n Actors Guild should h ave been used to discha rge the indebtedness forming

the basis of the alle

ged contempt. If these

sums of money
were no t division of marital pr operty, position

of the appellant m

ight be meritorious. This court cannot review the facts upon which the trial court based-8-

its final decree in

order to determine how these funds were classified by the trial judge. There is no record of the evi dence preserved for rev iew. The following occurred at the O

ctober 30, 1997 hear

ing. MR. BLOOM: But in paragr aph 4 of this final decree is when they say all residuals will continue to g o to Sharon Cobb. That is not pr

operty division. You dealt w

ith property division in paragraph 2 andparagraph 3. I thi nk the problem is not here; they've had

a bad history of

being here. That 's my pro position. and the Court was going to maker [sic] sure that s

he was going

to get what she

was entitled to in some wa y.

The Court: No, sir, I have to beg t o differ withyou. Those re siduals were to her. H e never came in here and did anything ab o ut his lawsuit, and this is a final decree. Those are separa te. And in addit

ion , he's to pay a $1,000 a month a limony.

I was here ; they w ere he re; he wasn't. I know what I did. so he's -- whatever they 're doing, they're going to continueto pay. He owes her $8, 000 in alimony as of toda y. I will hear his petit

ion as to why this alim

ony should be modified, but that other is a done deal. It's property division and that is it.

Okay. Let me hear

the proof. Another

shutting the barn door after

the horse is out.

Without a testimonial record of the proceedings at the time of the final decree or a Tenn e ssee Rules of Appel late Procedure 24(

c) statement o

f the evidence reflecting such pr oceedings, we cannot review this post-trial asse rtion of the trial judge to d

etermine cor

rectness of

her statement

, but must presume the evidence support ed the divorce decree. Sherrod v. Wix , supra.
The issue is without merit. Appellant next complained

that the proof did

not est ablish beyond a
reason able doubt that his conduct constituted criminal contempt of the trial court's orders.
After hearing the

proof the trial cour

t stated: The court finds that he is un deremploye d; that he has on purposesough t under employm ent to avoid paym ent of the obligations of the final decree. He's never complied with t

he order. He says that he has income from friends. He pays rent-9- when he has it. He has an automobile at his disposal. He has foodw here people feed him. He gets gas. He does e v erything

he wants with the e

xception of payin

g his obligations imposed by the court. He's repres ente d by sufficient counsel and

always has been since he has elected to participate in the

lawsuits. The Court finds that he de signs his own poverty ; that h e' s underemployed by design ...

The above stateme

nts on therecord resonate within the four corners of the court's December 11 order

.
In criminal conte

mpt proceedings the defendant is presumed innoc

ent and his guilt must be

established beyo

nd a reasonable

doubt. Black v. Blount, 938 S.W.2d 394, 398 (Tenn.1996).
App ellant

does not assail the procedural aspects of the criminal contempt proceeding

but insists that the evidence is not sufficient to re

move all reasonable

doubt. Tenn.R.App.P . 13(e). Afte r reviewing all of

the evidence this courtconcludes that reas onable doubt exists as to whether or not the defendant has rendered himself unable to com ply with the

orders of the court

by deliberate underemploy

ment and poverty

by design. The finding of criminal contempt will therefore be set aside.

Whether the conduct of Mr. Cobb would constitute c ivil contempt justifying incarceration to

compel obedienc

e to a trial court order, under which the condemner " carri es the keys to the jail in h is or her own pocket", Crabtree
v. Crabtree , 716 S.W.2d 923, 925 (Tenn.Ap p.1986) , is not a question that is before this court for review.

The last issue for review is the action of t he trial court in den ying husband's application for a r eduction in the $1,000. 00 per mon th a limony provision.

There is no question ab out the need of Mrs. Co bb for the money. The-10-

sole remaining quest

ion is the ability

of the obligor spo use to pay. Loyd v. Loyd , 860 S.W.2d 409 (Tenn.App.19 93).

The petiti on for reduction in alimony has been addressed by the trial courtonly in the context

of the crimina

l contempt proce

eding which has been set aside. The merits or

demerits of the

petition to modif

y will be remanded

to the trial court for further

conside ration along with any other proceedings the trial court deems nec

essary consiste

nt with this opinion.

Costs are assessed a

gainst Randall Crai

g Cobb.

___ _____ _______________________ _ WILLIAM B. CAIN, JUDGE

CONCUR:

__________________________________ __ BEN H. CANTRELL, P

RES. JUDGE, M.S.

__________________________________ __ WILLIAM C. KOCH, JR., JUDGE