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.

02/05/2019
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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.2See 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-COAR3-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.3This 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 nonmarital 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-atbar—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).6The 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