# FILED
July 16, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk IN THE COU RT OF A PPEA LS OF TENN ESSEE WESTERN SECTION AT NA SHVILLE
CORA ZON R. JEN KINS, ) ) Plaintiff/Appellee, ) Coffee Circuit No. 1419-D ) VS. ) A ppeal No. 01A 01-9609-CV-003 99 ) T. A RTHUR JEN KINS, ) ) Defendant/Appellant. )
APPEAL FROM THE CI RCUI T COUR T OF CO FFEE C OUNTY

AT MANCHESTER, TENNESSEE THE HONORABLE JOHN W. ROLLINS, JUD GE

T. A rthur Jenki ns, pro se Manchester, Tennes see
Holly nn L. Hewgley Shelbyv ille, Tennessee Attorney for Appellee

AF FIRMED

ALAN E. HIGHERS , J.

CONCUR: HOLLY K IRBY LIL LA RD, J. WILLIA M C. KOCH , J. In this divo rce c ase, T. Arthur Jenki ns (“Husband ”) appeals from an order of the tr ial2

court whi ch denied his mot ion to set asi de a divorce decree pursuan t to Tenn. R. Ci v. P. 60.02(2) and 60.02(5) and ord ered him to pay $637.50 to Corazon J enkins (“Wife”) as paymentfor W ife’s attorney fees aris ing from Husband ’s filing of the motion. Husband appeals the j udg ment

of t h e trial court arguing that the trial court erred in denying his motion to setaside the divorce decree. Fo r the reasons stated hereafter, we affirm the judgment of the cour

t below.

PROCEDURAL HISTORY

The trial cour

t awarded Wife a decree o f absolute divorce from Husband a nd dismissed Husband’s cou nter-complain t for divorce. The trial co urt held that t he house in the Phillippi nes was Wife’s separate proper ty and awarded Wife $2,982.06, the value of the insurance pr

oceeds issued to Husband and Wife to repair Wife’s car which Husb and had appropriated. The trial court awarded both parties thei r separate vehicles, ass essed costs of the action aga inst Husband, and denied Husband’s claim for ali mony and attorne y fees.

Husband appealed the tri al court’s decree o f divorce to this Court, and this Court affirmed the judgment of the trial cour t. Husband then appealed the decision of this Court to the supreme cour

t, and the supreme court denied Hus band permission to appeal.

Husband next filed a motion in the tr ial court t o set aside the de cree of divorce pursuantto Tenn. R. Civ. P. 60.02(2) and 60.0 2(5). In response to Husband ’s motion to set aside the divorce decree, W ife filed a motion for sanctions against Husband pursuant to Tenn. R. Civ . P. 11.02 and 11. 03, a rguing that Husband’s motion was filed to harass, to unnecessaril y delay

and/or to needlessly

increase thecost of litigation. The trial court denied Husband’s motion to set aside the divorce decre e and grante d Wife’s motion for Rule 11 sanctions ag ainst Husband, ordering H usband to pay $637.50 to Wife as payment for Wife’s attorney fees whi ch arose from Hus band’s filing of the motion.3

Husband now appeals

to this Cour

t arguing that the divorce decree was based upon fraudulentallegatio ns of Wife and that such decree should be set as ide pursuant to Tenn. R. Civ. P. 60.02(2) and 60.02(5).

LAW
Husband raises the following issues on appe al: 1) W hether the trial court erred in deny ing Husband’ s motion to set aside the divorce decree pursuant to Te nn. R. Civ. P. 60.02(2) and 60.02(5); 2) Whether the trial court erred in granting Rule 11 sanctions ag ainst Husband; and 3) W heth er th e tria l cou rt err ed in dividi ng the part ies’ m arita l prop erty.
Rule 60.02 provides in part as follows: On motion and upon such terms as are just, the cour t may relie ve a pa rty or t h e party's legal re presentative from a final jud gment, order or proceeding for the following reasons: (1 ) mistake, inadvertence, surprise or excusable negle ct; (2) fraud (whether heretofore deno minated intrinsic or extrinsic), misrepresentat ion, or oth er mi scon duct of a n adve rse p arty; (3) the judgment

is void ; (4) the ju dgment has been sat isfied, rele ased or discharged, or a prior judgment upon which it i s based has been reversed or other wise vacated, or it is no longer equit able that a jud gmen t sho uld h ave pr ospe ctive application; or (5) an y oth er reason justifying r elief from the operation of the judgment. Themotion shall b e made withi n a reaso nable time, and for reas ons (1) and ( 2) not more than one year after the judgment, ord er or proceed ing was entered or taken. Tenn. R. Civ . P. 60.02.

A motion for reli ef from a judgment based upon Tenn. R. Civ . P. 60.02 address es the sound discr

etion ofthe trial court. Underwood v. Zuri ch Ins. Co. , 854 S.W.2d 94, 97 (Tenn. 1993); Hopkins v . Hopkins , 572 S.W.2d 639, 640 (Tenn. 1978); Ellison v . Alley , 902 S.W.2d 415, 418 (Tenn. Ct. App. 1995 ). O ur s copeof r evi ew on appeal i s to determine whether the trial court abuse d its d iscretion. Underwood , 854 S.W.2d at 97; Bank s v. Dement Const. Co., Inc. , 817 S.W.2d 16, 18 (Tenn. 1991); Toney v. M ueller Co. , 810 S.W.2d 145, 147 (Tenn. 1991); Travis v. City of Murfreesboro , 686 S.W.2d 68, 70 (Tenn.4

1985); John Barb, Inc. v. Underwriter’s at Lloyd’ s of London , 653 S.W.2d 422, 424 (Tenn. Ct. App. 1983).

Rule 60.02 “ was d esigned to strike a prop er balance between the competing principles

of finality and justice.” B anks , 817 S.W.2d at 18; Jerkins v . McKinney , 533 S.W.2d 275, 280 (Tenn. 1976) . Regardi ng the purpose of this rule, the su preme court in Toney v. M ueller Co. stated:

Rule 60.02 is not meant to be used in every case in which the circumstances

of a party cha nge after the entr y ofa judgment or order. No r is the r ule a mechanism for use b y a party w ho is merely di ssatisfied with the result of a part icular case. Rule 60.02 is m eant to be used only in those few cases that meet one or more of the cr iteria stat ed. As recen tly stat ed by this Court, "Rule 60.02 acts as an escape valve from possible in equity that might oth erwise arise from the unrelen tin g imposition of the principl e of finality i mbedded in our procedural rules." Thompson v. Fir emen's Fund Ins. Co. , 798 S.W.2d 235, 238 (Tenn.1990). Because ofthe importance of thi s "principle of finality," the"escape val ve" should not b e easily ope ned. Toney , 810 S.W.2d at 146.
To set aside a j udgmen t under Rule 60.02, the burden of pr oof is cast upon the movant, and there must be p roofof the basis on w hich relief i s sought. Banks , 817 S.W.2d at 18; Trice v. Moyers , 561 S.W.2d 153, 156 (Tenn. 1978); Hopkins , 572 S.W.2d at 640; Brumlow v. Brumlow , 729 S.W.2d 103, 106 (Tenn. Ct. App. 1986); Jefferso n v. P neumo Servs. C orp. , 699 S.W.2d 181, 186 (Tenn. Ct. App. 1985); Rhea v. Meadowview Elderly Apartments, Ltd. , 676 S.W .2d 94, 95 (Tenn. Ct. Ap p. 1984). Hus band did not set fort h facts and circumstanc es sufficient to j ustify inv ocation of the extraor

dinary relief afforded byRule 60.02 eit h er in his motion for relief from the judg ment or in his accompanying affidavit. The trial judg e considered th e arguments of couns el, taking into account th e affidavit submitted in s upport of the motion and the en tire re cord, and found th at Rule 60.02 relief was

not mer ited u nder the circumstances. Because the recor d does not support Husb and ’s cla im th at de nial of t he m otio n was a n abu se of discr etio n, we af firm the decision of the trial cour t denying Husband’s moti on to set aside the divorc e decree.

Rule 11 of the Tenne ssee Rules of Civil Proced ure require s that eve ry pleadin g,5

written motion or other paper be signed by

at least one att orney of recor d, or, if the part

y is not represented by

an attorney, signature of the party i s required. The signature of the attorney or

party cer

tifies that (1) it is not

being pres ented for any impr oper purpose, s uch as to harass or t o cause unnecessar y delay or needless increase in the cost of li tigation; (2) the cl aims , defenses, and other legal contentions therein are warrant ed by exi sting law or by a nonfriv olous argument for the exte nsion , modification, or reversa l of existi ng law or the esta blish men t of new la w; (3) the allegations and other fa ct ua l con tent ions have evidentiarysupport or, i f specifically so identified, ar

e likely to have evidentiary su pp ort after a reas onable opportunit y for further inve stigation or discovery; and (4) the denial of factual contentions arewarrant ed on the evidence or, if specifically so identified, ar e reasonably

based on a l ack of in formation or b eli ef. Tenn. R. Civ . P. 11.02.

The certificati on which r esults from the attorney ’s signat ure on a motion, pleading
or other document is direc ted a t the thre e sub stan tive prongs of Rule 11: its factual ba sis, its legal basi s and its leg itimate purpose. Andr ews v. Bible , 812 S.W.2d 284, 287 (Tenn. 1991). A signatur

e signifies to the court that the signer

has read the pl eading, has conducted a reaso nable inquir y into the fact s and the law , is satisfied that the document is well -grounded i n both, and is ac ting w ithout any i mproper motive. Id

.

If a pleadin g is sig ned in viol ation of Rule 11.02, the court may impose an ap propriate sanction upon the attorney, l aw firm, par ty that has violated t he rule, or t hat per son responsible for the viol ation. Tenn. R. C iv. P. 11.0 3. The sanction i mpos ed fo r violatio n of this rule shall be limited to what is s ufficient to deter repetition of such con duct
or comparable conduc

t by others

similarl y situated. Id

. The amount ofthe sanction must be supported by proof in the record as to the basis for the tria l co urt’s determi nation. Wright v. Quillen , 909 S.W .2d 804, 815 (Tenn . Ct. App. 1995).

In deciding w hether an attorney’s conduct i s sanctionable , the test to be applied is
one of objective reasonableness under all the c ircumstances, and the reasonabl eness of the attorney’ s belief must be as sessed in li ght ofthe circumst ances existing at the time the6

document in questi on wassigned. Andr ews , 812 S.W.2d at 288; Krug v. Krug , 838 S.W.2d 197, 205 (Tenn. Ct. App . 1992); See also Business Guides v. Chromatic Communications Ent. , 111 S.Ct. 922, 929 (1991); Coot er & Ge ll v. Hart Marx C orp. , 110 S.Ct. 2447, 2454 (1990).

In the present cas e, we agr ee with thetrial cour

t’s impositi on of Rule 11 sancti ons against Husband for his filing of the moti on and affidavit i n s upport of set ting aside the divorce decree pursuant to Tenn. R. Civ. P. 60.02 and 60.02(5). Husband’s af fidavit in support of the motion incl udes irrel evant, speci ous and debasing allegatio ns against Wife which pr ovide no mater ial support for the motion . Because the trial court’s imposition of sanctionsagainst H usband wasreasonable under all the cir

cumstances, we affirm the trial court’s order.

Fina lly, Husband arg ues that the tri al court err ed i n dividi ng the parti es’ marital property. Specifically , Husband arg ues thatthe trial court erred i n finding that the house in the Philli ppines was

Wife’s separate property. In support of his motion to set as ide the divorce decree, Husban d submitted the affidav it of Eliza beth Cassion, a former wife of Husband, which stated thatWife purchased the house in the Phillippines during the parties’ marriage.
The pri nciple o f fin ality is a prin ciple of law deeply in grained in the hold ings of our Court. This principle has been repeated in numer ous cases w here we have addressed the iss ue of the j usti fication of a n ew t ria l ba sed u pon n ewl y di scov ered evi denc e. Tojus tify
a new tri al ba sed u pon newly d isco vered evide nce i t mus t be s hown that the new evidence was not know n to the movingparty pr ior to or during tr ial and that it could not have been known to him through t he exerci se of reasonable di ligence. Chicago Guar. Fund Life Soc'y
v. Ford , 58 S.W. 239, 240 (Tenn. 1900); Martin v

. Nance , 40 Tenn. 649 (1859) ; Seay v. City of Knoxville , 65 4 S.W.2d 397, 399 (Tenn. Ct. App. 1983); Frazier v. McF erren , 402 S.W.2d 467, 471-72 (Tenn. Ct. App. 1964); Monday v . Millsap s , 264 S.W.2d 6, 23 (Tenn. Ct. App. 1953); Bean v. Commercial Sec. C o. , 156 S.W.2d 338, 347 (Tenn. Ct. App. 1941);7

Blue Bird Coaches , Inc. v. McGregor , 14 Tenn.App. 23 (1931); Wilkerson v. Joyce-Watkins Co. , 5 Tenn.App. 356 (1927) ; Tennessee Easte rn Ele c. Co. v. Link , 6 Tenn.App. 617 (1926). Thus, an attorney has a duty to investig ate prior to trial, Demonbreun v. Walker , 63 Tenn. 199 (1874); Tabler v. C onnor , 60 Tenn. 195 (1873); Tipton v. Smit h , 593 S.W.2d 298, 302 (Tenn. Ct. App.1979); Brown v. University N ursing Home, Inc. , 496 S.W.2d 503, 510 (Tenn. Ct. App.197 2); City of Knox ville v . Ryan , 13 Tenn.Ap p. 186 (1929) , to call appropriatewitnesses at trial, Zirkle v. Stegall , 43 S.W.2d 192, 193 (Tenn. 1931); W are v. State , 67 S.W. 853 (Tenn. 1902); W ilson v. Nash ville, C. & St . L. Ry. , 65 S.W.2d 637, 644 (Tenn. Ct. App. 1933); Staf for d v. Stafford , 1 Tenn.App. 477 (1926), to fully examine all witnesses, Noel v. McCrory , 47 Tenn. 623 (1868); Luna v. Edmist on , 37 Tenn. 159 (1857); Darnell v. McNichols , 122 S.W.2d 808, 816 (Tenn. Ct. App. 1938), and to secure evidence of which counsel becomes aware at trial

. B rads haw v. Holt , 292 S.W.2d 30, 35 (Tenn. 1956); Southwestern Transp. Co. v. W aters , 79 S.W .2d 1028 , 1031 (Tenn. 1935 ); W hitfield v. Loveless , 1 Tenn.App. 377 (1925)

. The client is also under a duty to act with due diligenc e in securi ng evidence for trial. Hayes v . Cheat ham , 74 Tenn. 1 (1880); Harbour v. Rayburn , 15 Tenn. 432 (1835); Puckett v. Laster , 405 S.W.2d 35, 41 (Tenn. Ct. App. 1965); Spence v. C arne , 292 S.W .2d 438, 454 (Tenn . Ct. App. 1954).

Because prior to tr ial Husband could h ave discov ered the date Wife purchased the house in the Philli ppin es and because prior to trial Husband kn ew the witness whose affidavit he attached to hi s motion to set aside t he divorc e decree, w e affirm the trial court’s divisi on an d lab elin g of t he pa rties ’ mar ital and s epa rate prop erty.

The judgment of the tr ial court i s hereby affirmed. Costson appeal are taxed to the Appe llan t fo r which execu tion may is sue i f ne cess ary.

HIGHERS, J.

CONCUR:8

LILLARD, J.

KOCH, J.