# 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/Appe

llant. ) )

______________________________________________________________________________ From the Circuit Co

urt of Shelby

County at Memp

his. Honorable James E. Swearengen, Judge

Kim G. Sims , Memphis, Tennessee Attorney fo

r Defendant/App

ellant. Christine D. Worley , Memphis, Tennessee Attorney for Plaintiff/Appellee.

OPINION FIL

ED: AFFIRMED AND

REMANDED FARMER, J. HIGHERS, J. : (Concurs) LILLARD, J. : (Concurs)Defendant Jimmie Howard (Husband) appeals the trial court’s or derdenying hi

s motion to set aside the final divorce decree previously entered by the court. We affirm the trial court’s judgment based onour 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 ir

reconcilable di

fferences.The Wife attache d 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 pa

rties 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 $1 5,00 0 to the Husband, whic

h funds constituted

assets of the par

ties’ son. This provision was c ontained 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 suppo rt.

Withinweeks of being granted the divorce, the Wife filed a petition for scire facias in which she sought

to have the Husban

d 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 a greed to execute any

documents neces sary to conv ey 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 set

ting aside the de

cree, the Husba

nd made the follow

ing assertions:

That [the Husband] entered into a Mar ital Dissolution Agree ment

acting in good f

aith that [the Wife] ha

d done the same
. On reviewing the Marital

Dissolution Agreement changeswere made withthe unofficial fo

rm he signed on Se

ptember 29th , 1994. No other acknowledgment of acceptance of changes wa s signed by

[the Husband].

After the Final Decree wa s entered and [the Husband] received $15,000.00 set out in the [MDA], wh en going to

deposit the1 As pertinent, rule 35 provides that [w]hen the mental or physical condition . . . of a party, or of a person in the custo

dy or under

the legal contr

ol of a party

, is in controversy, the court in which the action is pending may order the party to subm

it to a physic

al or mental examina

tion by a suita

bly 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 sta

t ements of IRA’s and stocks with Paine Webber, Paulson Invest

ments, John Hancock

Securities, and Pr

udential. That [the Wife] deceived [the Husband] also about the stocks and IRA’s she

had when negoti

ating settlement

and retirement. That [the Husband] feels that the Marital Dissolution Agreement

should be set aside and

that the Judge should decide the div isi on o f ma rit al p rop ert y. [Thatthe] Marital Dissolution Agreement was not entered in by [the Wife] in good faith and the final copy was filed without [the Husband’s] appro v al. A prearranged meeting was set up on September

23rdfor September 29t

h, 1994 in an attemp

t to work out a Marital Dissolution Agreement and unknowing to [the Hus b and], on Sep tem ber 2 7, 1 994 , 2 d ays prior to the meeting, [the Wife] went into First Tennessee Bank and withdrew a ll funds of the acc

ount. [The Wife] was aware that [the Husband] had no way o f knowing this (see attached records [from] First Tennessee Bank) thus voiding the agreement.

. . . . [Thatin] addition to all facts set out, [the Husband] is an employee at the Depot wh ich is set to be closed which is a major change in circumstance

in which he would

like the Court to consider.

The attached docum en ts 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 fil ed a m oti on r equ est ing t he t ria l co urt to o rder a ph ys ica l and mental examination of the parties’ son pursuant to rule 35 of the Tennessee Rules of Civil Procedure. 1manner, 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-y ear-old son, Derrick Howard, f i led a petition to intervene asking the trial cou rt 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 physica lly handic apped. The petition asserted that, despite his physical handicap, the son was “mentally competent and able to manage his own affairs.” A

ccording to the

son, a probate guardianship

was set up a fte r hi s acc ide nt i nto whi ch $ 30, 000 was pai d 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 proba te 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 gua

rdianship
was closed. After the son filed his petition to intervene, the cou rt 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 disp ose of the Husband’s January 1995 motion to set aside the final divorce decree. A special judge conducted a hearing and, after co nsidering c ounse ls’ arguments on this and other matters, denied the Wife’s motion to dispose of the Hu sband’s motion to

s et 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 part ies ’ res pect ive att orn eys 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, deposition s, or other evidence in support of their respective positions.Based on the argument

s of the parties’ a

ttorneys, the trial court denied the Husband’s motion to set aside the final divorce decree. In refusing to set aside the f inal decree, the trial court ruledthat the decree and the MDA were valid and enforceable. The trial court amended the MDA, however, to require that the $15,000 belongin

g 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 noticeof appeal, the Husband asked the trial c

ourt to accept the doctor’s rep

ort of her examina

tion of the parties ’ son and to “close the record” so that the Husband’s appe al mig ht proceed. Per the trial court’s instructions, the Husband later filed the doctor’s report, whichcontained the results of thedoctor’s physical and mental examination of the parties’ son.
On appeal, the Husband raises the following issues for this court’s review:

1. Whethe r

the signed make-shift paper on September 29 , 1994 later attached to a Marital Dissolution Agreement con stitutes a contract betwe

en the parties. 2. Whether

an Irreconcilable Differences divorce can be granted when the Marital D

issolution Agree

ment is not properly executed. 3. Whether

the ruling of [the

] Specia l Judg e . . . was properly overruled by the a ctual elected Judge. 4. Whether a seve rely injure d child who become

s a disabledhandicapped adult should be provided for by the c ourt 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 moti on to set aside appa

rently was based upon ru

le 60.02(2) of the Tennessee Rules of Civil Procedure, whic h permits a trial c

ourt 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 wh o seeks relief under this rule:

The party seeking relief under [rule] 60.02(2) has the burden2 Because the Husband’s motion to set aside was filed within thirty day s of entry of the final divorce decree, the trial court could have treated the Husband’s motion as one to alter or

of proof. Tr ice 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 pa rty must desc ribe the basis for

relief with spe cif ici ty, Hopkins v. Hopkins , 572 S.W.2d 639, 640 (Tenn. 1978), andmust show by clear and convincing evidence that post-judgment relief is warranted. Anderson v. Cryovac, Inc . , 862 F.2d 910, 926 (1 st Ci r. 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 Proc edure § 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 pr operly 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 Husbandhad the burden of proof. Duncan , 789 S.W.2d at 563. Specifically, the Husband had the burden of presenting clear and convi ncing evidence that he was entitled to relief from the final divorce decre e. Id
. Instead, the Husband presente

d no evidence in su

pport of his motion. I

t is axiomatic that, when a party fails to present any e vidence on anissue 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 ci tes Harb our 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 hi s mot ion to s et a sid e th e dec ree w ith in t hir ty da ys of its ent ry. 2 We conclude that this argumentamend the judgme nt pursuant to rule

59.04 instead of on

e to set aside the ju

dgment pursuant

to rule 60.02. Rega

rdless of whethe

r the Husband’s mo

tion was filed purs

uant to rule 59.04 o

r 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 , th e 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 Husba nd’s argument th

at, in denying his motion to set aside, the trial court improperly overruled the order of the special judge entered in Decem

ber 19 95. 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 Husba nd’s motion to set aside and instead lef

t this matter to be decided by the regular trial judge hea ring the case. Acco rdi ngly, 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.

Fina lly, we reject the Hu sband’s argume

nt that the trial co

urt erred in fail

in g t o 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 dur

ing 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 ge

neral rule that parents have no legal obligation to s upport their adult children. Sayne , 284 S.W.2d at 311; Mingle , 1993 WL 377609, at *2. In determining whether such a continued obliga tion exists, the courts primarily look at the extent of the child’s disability an d its effect on his a

bility to provide for himself. See Sayne , 28 4 S.W.2d at 310 (noting that parties’ 27-

year-old d

aughter was un

able to work due to nervo

us condition and va

rious orthopedic p

roblems); 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 secu rit y insurancepayments).
Nevertheless, we cannot

fault the trial co

urt for failing t

o rule on these issu

es because neither party ever sought this rel ief in the trial court. See Plunk v. Plunk , No. 02A01-9702-CH-00040, 1997 WL 729262, a t *2 (Tenn. App. No

v. 25, 1997); Mayfield v. Mayf ield , 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 suchan extent that he wa s unable to make financial d

ecisions for himse

lf, but the Husband

never asked the

tr ial co urt 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. Therecord contains no lay or med ical testimony regarding the extent of the son’s disability or his ability to earn an incom e . A lthough the doctor’s report was filed pending this appeal, this report was not introdu ced int o evidencein the trial court, and the report was not available for the court’s consi

deration when it entered its judgment. Absent

competent evidence of the son’s condition, the Husband has faile

d 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 c ourt’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 o

f this case. We fe

el c ompelled to r emind the parties, however, that the

y must present competent proof that the applicable legal standard has bee

n met in order to

justify the relief sought.

The trial court’s judg ment is affirmed.

Costs of thisappeal are taxed to the Husband, for whi ch ex ecut ion may i ssu e ifnece ssa ry.

____________________________________ FARMER

, J.______________________________

HIGHERS, J. (Conc

urs)

______________________________ LILL ARD, J. (Concurs)