FILED

January 5, 1999

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF APPEALS OF TENNESSEE, 

AT JACKSON

_______________________________________________________

)

FLORENCE HOWARD, ) Shelby County Circuit Court

) No. 147214 R.D.

 Plaintiff/Appellee. )

)

VS. ) C.A. No. 02A01-9608-CV-00175

)

JIMMIE HOWARD, )

)

 Defendant/Appellant. )

)

______________________________________________________________________________

From the Circuit Court of Shelby County at Memphis.

Honorable James E. Swearengen, Judge 

Kim G. Sims, Memphis, Tennessee

Attorney for Defendant/Appellant.

Christine D. Worley, Memphis, Tennessee

Attorney for Plaintiff/Appellee.

OPINION FILED:

AFFIRMED AND REMANDED

FARMER, J.

HIGHERS, J.: (Concurs)

LILLARD, J.: (Concurs)
Defendant Jimmie Howard (Husband) appeals the trial court’s order denying his

motion to set aside the final divorce decree previously entered by the court. We affirm the trial

court’s judgment based on our conclusion that the record contains insufficient evidence to support

the Husband’s motion to set aside.

This lawsuit began in October 1994 when Florence Howard (Wife) filed a complaint

for divorce against the Husband on the grounds of irreconcilable differences. The Wife attached to

her complaint a copy of a marital dissolution agreement (MDA) executed by the parties in September

1994. In January 1995, the trial court entered a final decree of divorce which granted the parties a

divorce on the ground of irreconcilable differences and incorporated by reference the terms of the

parties’ MDA.

As part of the property settlement, the MDA required the Wife to transfer $15,000

to the Husband, which funds constituted assets of the parties’ son. This provision was contained in

a section entitled “Minor’s Assets,” but the MDA indicated that the parties had no minor children.

Although the MDA required each party to maintain a $50,000 life insurance policy and to name the

parties’ son as the policy’s beneficiary, the MDA contained no other provisions for the son’s support.

Within weeks of being granted the divorce, the Wife filed a petition for scire facias

in which she sought to have the Husband held in contempt due to his refusal to return certain stock

certificates to the Wife. Under the MDA, the Husband had agreed to waive any right to, interest in,

or title to the Wife’s stock, and he had agreed to execute any documents necessary to convey full

ownership rights in the stock to the Wife.

The Husband responded by filing a motion to set aside the final divorce decree. As

grounds for setting aside the decree, the Husband made the following assertions:

That [the Husband] entered into a Marital Dissolution

Agreement acting in good faith that [the Wife] had done the same.

On reviewing the Marital Dissolution Agreement changes were made

with the unofficial form he signed on September 29th, 1994. No

other acknowledgment of acceptance of changes was signed by [the

Husband]. After the Final Decree was entered and [the Husband]

received $15,000.00 set out in the [MDA], when going to deposit the
1As pertinent, rule 35 provides that

[w]hen the mental or physical condition . . . of a party, or of a

person in the custody or under the legal control of a party, is in

controversy, the court in which the action is pending may order the

party to submit to a physical or mental examination by a suitably

licensed or certified examiner or to produce for examination the

person in custody or legal control. The order may be made only on

motion for good cause shown and upon notice to the person to be

examined and to all parties and shall specify the time, place,

funds found [the Wife] had removed $17,788.00 from an account in

his name and his son’s, who is handicapped. [The Husband] then

became suspicious of [the Wife’s] honesty. He found in some boxes

at the house statements of IRA’s and stocks with Paine Webber,

Paulson Investments, John Hancock Securities, and Prudential.

That [the Wife] deceived [the Husband] also about the stocks

and IRA’s she had when negotiating settlement and retirement.

That [the Husband] feels that the Marital Dissolution

Agreement should be set aside and that the Judge should decide the

division of marital property.

[That the] Marital Dissolution Agreement was not entered in

by [the Wife] in good faith and the final copy was filed without [the

Husband’s] approval. A prearranged meeting was set up on

September 23rd for September 29th, 1994 in an attempt to work out

a Marital Dissolution Agreement and unknowing to [the Husband],

on September 27, 1994, 2 days prior to the meeting, [the Wife] went

into First Tennessee Bank and withdrew all funds of the account.

[The Wife] was aware that [the Husband] had no way of knowing this

(see attached records [from] First Tennessee Bank) thus voiding the

agreement.

. . . .

[That in] addition to all facts set out, [the Husband] is an

employee at the Depot which is set to be closed which is a major

change in circumstance in which he would like the Court to consider.

The attached documents indicated that the parties’ son withdrew $17,788 from a First Tennessee

Bank account on September 27, 1994.

The Husband also filed a petition for scire facias in which he sought to have the Wife

held in contempt due to her refusal to return the $17,788 withdrawn from the account. The Husband

later filed a motion requesting the trial court to order a physical and mental examination of the

parties’ son pursuant to rule 35 of the Tennessee Rules of Civil Procedure.1

 
manner, conditions, and scope of the examination and the person

or persons by whom it is to be made.

T.R.C.P. 35.01.

In May 1995, the parties’ twenty-year-old son, Derrick Howard, filed a petition to

intervene asking the trial court to order the parties to return any funds belonging to the son. The

son’s petition alleged that he suffered a traumatic head injury at the age of ten which rendered him

physically handicapped. The petition asserted that, despite his physical handicap, the son was

“mentally competent and able to manage his own affairs.” According to the son, a probate

guardianship was set up after his accident into which $30,000 was paid by the parties’ uninsured

motorist carrier. The Husband and an attorney were appointed co-guardians of the funds. In May

1993, the son reached the age of majority and the probate guardianship was closed. At that time, all

funds were paid to the son, but the son allowed the Husband to continue to maintain and control the

funds. In addition to seeking the return of the funds and other relief, the son’s petition sought (1) a

temporary injunction restraining the parties from disposing of the funds, and (2) a full accounting

of all sums held by the parties for the son’s benefit since May 1993, when the probate guardianship

was closed. After the son filed his petition to intervene, the court granted the Husband’s rule 35

motion and ordered the son to submit to a physical and mental examination by doctors to be chosen

by the court. 

In November 1995, the Wife filed a motion asking the trial court to dispose of the

Husband’s January 1995 motion to set aside the final divorce decree. A special judge conducted a

hearing and, after considering counsels’ arguments on this and other matters, denied the Wife’s

motion to dispose of the Husband’s motion to set aside the final decree. Thereafter, the Wife

renewed her motion to dispose of the Husband’s motion to set aside.

On December 15, 1995, the trial court conducted a hearing on the Husband’s motion

to set aside the final divorce decree. At the hearing, neither party presented any evidence in support

of or opposition to the Husband’s motion to set aside. The parties’ respective attorneys argued their

positions with regard to the Husband’s motion to set aside and other issues, but they neither

presented the testimony of any witnesses nor properly introduced any affidavits, depositions, or other

evidence in support of their respective positions. 
Based on the arguments of the parties’ attorneys, the trial court denied the Husband’s

motion to set aside the final divorce decree. In refusing to set aside the final decree, the trial court

ruled that the decree and the MDA were valid and enforceable. The trial court amended the MDA,

however, to require that the $15,000 belonging to the parties’ son be deposited in a bank account

jointly controlled by the parties. This appeal by the Husband followed. 

At some point after filing his notice of appeal, the Husband asked the trial court to

accept the doctor’s report of her examination of the parties’ son and to “close the record” so that the

Husband’s appeal might proceed. Per the trial court’s instructions, the Husband later filed the

doctor’s report, which contained the results of the doctor’s physical and mental examination of the

parties’ son.

On appeal, the Husband raises the following issues for this court’s review:

1. Whether the signed make-shift paper on September 29,

1994 later attached to a Marital Dissolution Agreement constitutes a

contract between the parties.

2. Whether an Irreconcilable Differences divorce can be

granted when the Marital Dissolution Agreement is not properly

executed.

3. Whether the ruling of [the] Special Judge . . . was

properly overruled by the actual elected Judge.

4. Whether a severely injured child who becomes a

disabled handicapped adult should be provided for by the court in

regard to support, custody, and visitation when the parties seek to end

their marriage. 

The Husband’s first three issues deal with the propriety of the trial court’s refusal to

set aside the final divorce decree. The Husband’s motion to set aside apparently was based upon rule

60.02(2) of the Tennessee Rules of Civil Procedure, which permits a trial court to relieve a party

from a final judgment based on “fraud, misrepresentation, or other misconduct of an adverse party.”

T.R.C.P. 60.02(2). This court previously has addressed the burden upon a party who seeks relief

under this rule:

The party seeking relief under [rule] 60.02(2) has the burden
2Because the Husband’s motion to set aside was filed within thirty days of entry of the

final divorce decree, the trial court could have treated the Husband’s motion as one to alter or

of proof. Trice v. Moyers, 561 S.W.2d 153, 156 (Tenn. 1978);

Holt v. Holt, 751 S.W.2d 426, 428 (Tenn. Ct. App. 1988). In order

to succeed, the moving party must describe the basis for relief with

specificity, Hopkins v. Hopkins, 572 S.W.2d 639, 640 (Tenn. 1978),

and must show by clear and convincing evidence that post-judgment

relief is warranted. Anderson v. Cryovac, Inc., 862 F.2d 910, 926

(1st Cir. 1988); West v. Love, 776 F.2d 170, 176 (7th Cir. 1985);

Cumber v. Cumber, 326 N.W.2d 194, 195 (N.D. 1982); 7 J. Moore,

J. Lucas & G. Grotheer, Moore’s Federal Practice ¶ 60.24[5] (2d ed.

1989); 11 C. Wright & A. Miller, Federal Practice and Procedure

§ 2860 (1973).

Duncan v. Duncan, 789 S.W.2d 557, 563 (Tenn. App. 1990); accord Davidson v. Davidson, 916

S.W.2d 918, 923 (Tenn. App. 1995). Moreover, relief granted pursuant to rule 60.02 lies within the

sound discretion of the trial court, and on appeal the scope of our review is limited to determining

whether or not the trial court abused its discretion. Davidson, 916 S.W.2d at 923.

After reviewing the record before us, we conclude that the trial court did not abuse

its discretion in denying the Husband’s motion to set aside the final divorce decree. As heretofore

indicated, neither party presented testimony or properly introduced any other evidence at the hearing

on the Husband’s motion to set aside the decree. As the party seeking relief under rule 60.02, the

Husband had the burden of proof. Duncan, 789 S.W.2d at 563. Specifically, the Husband had the

burden of presenting clear and convincing evidence that he was entitled to relief from the final

divorce decree. Id. Instead, the Husband presented no evidence in support of his motion. It is

axiomatic that, when a party fails to present any evidence on an issue as to which he bears the burden

of proof, the party has failed to carry his burden. See, e.g., Beer Bd. v. Brass A Saloon, 710 S.W.2d

33, 36 (Tenn. 1986); Gates, Duncan & Vancamp Co. v. Levatino, 962 S.W.2d 21, 26 (Tenn. App.

1997); Moore v. Moore, 602 S.W.2d 252, 255 (Tenn. App. 1980). Inasmuch as the Husband failed

to meet his burden of proof in this case, we reject his argument that the trial court erred in denying

his rule 60.02 motion.

The Husband cites Harbour v. Brown, 732 S.W.2d 598 (Tenn. 1987), for the

proposition that the trial court should have set aside the final divorce decree when the Husband filed

his motion to set aside the decree within thirty days of its entry.2 We conclude that this argument
amend the judgment pursuant to rule 59.04 instead of one to set aside the judgment pursuant to

rule 60.02. Regardless of whether the Husband’s motion was filed pursuant to rule 59.04 or rule

60.02, however, our analysis of the trial court’s denial of the motion remains the same. See

Donnelly v. Walter, 959 S.W.2d 166, 168 (Tenn. App. 1997).

is without merit. In Harbour, the supreme court merely held that a trial court could not enter a

judgment based upon a settlement agreement when the court had prior notice that one of the parties

was repudiating the agreement. Harbour, 732 S.W.2d at 600. In the present case, the trial court

already had entered the final divorce decree when the Husband sought to set aside the decree and the

MDA upon which the decree was based. Accordingly, the holding of Harbour is inapplicable to the

present case.

We also reject the Husband’s argument that, in denying his motion to set aside, the

trial court improperly overruled the order of the special judge entered in December 1995. The

special judge’s order denied the Wife’s motion to dispose of the Husband’s motion to set aside the

final decree. By its order, the special judge merely declined to dispose of the Husband’s motion to

set aside and instead left this matter to be decided by the regular trial judge hearing the case.

Accordingly, we fail to see how the trial court’s subsequent order ruling on the motion was somehow

in conflict with the special judge’s earlier order.

Finally, we reject the Husband’s argument that the trial court erred in failing to

provide for the custody and support of the parties’ adult son. We recognize that a parent’s obligation

of support may continue after a child reaches the age of majority if the child, because of illness or

disability occurring during his minority, is unable to support himself. Sayne v. Sayne, 284 S.W.2d

309, 310-12 (Tenn. App. 1955); Mingle v. Mingle, No. 01A01-9305-CH-00197, 1993 WL 377609,

at *2 (Tenn. App. Sept. 24, 1993). This obligation arises as a limited exception to the general rule

that parents have no legal obligation to support their adult children. Sayne, 284 S.W.2d at 311;

Mingle, 1993 WL 377609, at *2. In determining whether such a continued obligation exists, the

courts primarily look at the extent of the child’s disability and its effect on his ability to provide for

himself. See Sayne, 284 S.W.2d at 310 (noting that parties’ 27-year-old daughter was unable to

work due to nervous condition and various orthopedic problems); see also Hodge v. Hodge, 1988

WL 55729, at *2 (Tenn. App. June 2, 1988) (noting that parties’ 23-year-old son was disabled,

required custodial care, and received income of only $226 per month in social security insurance
payments).

Nevertheless, we cannot fault the trial court for failing to rule on these issues because

neither party ever sought this relief in the trial court. See Plunk v. Plunk, No.

02A01-9702-CH-00040, 1997 WL 729262, at *2 (Tenn. App. Nov. 25, 1997); Mayfield v. Mayfield,

No. 01A01-9611-CV-00501, 1997 WL 210826, at *7 (Tenn. App. Apr. 30, 1997). At the hearing

below, the Husband argued that the parties’ son was disabled to such an extent that he was unable

to make financial decisions for himself, but the Husband never asked the trial court to rule on the

issues of custody and support of the son. 

Moreover, we note that the record fails to support the Husband’s contention that the

son was disabled to the point that he could not provide for himself. The record contains no lay or

medical testimony regarding the extent of the son’s disability or his ability to earn an income.

Although the doctor’s report was filed pending this appeal, this report was not introduced into

evidence in the trial court, and the report was not available for the court’s consideration when it

entered its judgment. Absent competent evidence of the son’s condition, the Husband has failed to

demonstrate that this is an appropriate case to deviate from the general rule that the parties have no

duty to support their adult son.

Although we affirm the trial court’s judgment, our decision should not be interpreted

to preclude either party from seeking such future relief for the son’s benefit as may be warranted by

the circumstances of this case. We feel compelled to remind the parties, however, that they must

present competent proof that the applicable legal standard has been met in order to justify the relief

sought.

The trial court’s judgment is affirmed. Costs of this appeal are taxed to the Husband,

for which execution may issue if necessary.

____________________________________

FARMER, J.
______________________________

HIGHERS, J. (Concurs)

______________________________

LILLARD, J. (Concurs)