IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

January 19, 2017 Session

LINDA JANE PARIMORE v. GERALD DAVID PARIMORE

Appeal from the Chancery Court for Tipton County

No. 28658 Martha Brasfield, Chancellor

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No. W2016-01188-COA-R3-CV

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Husband appeals: (1) the denial of his Rule 60.02 motion on the basis of fraud; and (2) 

the grant of attorney’s fees to Wife. We affirm the trial court’s denial of Husband’s Rule 

60.02 motion but reverse the grant of attorney’s fees to Wife. We also decline the award 

of damages to Wife on appeal. Affirmed in part, reversed in part, and remanded.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed 

in Part; Reversed in Part; and Remanded.

J. STEVEN STAFFORD, P.J., W.S., delivered the opinion of the court, in which BRANDON 

O. GIBSON, and KENNY ARMSTRONG, JJ., joined.

William G. Hardwick, II and Kelly Pearson, Memphis, Tennessee, for the appellant, 

Gerald David Parimore.

J. Barney Witherington, IV, Covington, Tennessee, for the appellee, Linda Jane 

Parimore.

OPINION

BACKGROUND

Because of the limited evidence included in the record on appeal in this case, the 

facts are taken largely from the pleadings and the parties’ briefs. The parties, 

Plaintiff/Wife Linda Parimore (“Wife”) and Defendant/Husband Gerald Parimore 

(“Husband”), were divorced by final decree on June 30, 2011, which incorporated by 

reference a Marital Dissolution Agreement (“MDA”) disposing of certain marital 

property. The parties subsequently filed several contentious motions regarding the proper 

02/17/2017
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interpretation of the language under the MDA. Because of various disputes over the 

terms of the MDA, on November 23, 2015, the parties attended mediation regarding the 

division of marital property and entered into a handwritten settlement agreement. 

Therein, Husband agreed to pay Wife a “lump sum payment of $80,000[.00] within 

[fourteen] days from the effective date of th[e settlement agreement].” In addition, Wife 

agreed to “transfer, deed[,] and/or relinquish all rights in the joint timeshare in favor of 

[Husband].” The settlement agreement also provided that an order would be entered 

effectuating its terms within seven days from the date of execution. Husband decided 

shortly after the mediation to revoke his consent to the signed agreement. As a result, 

Husband’s then-attorney refused to sign the consent order effecting the terms of the 

mediated agreement. 

On December 3, 2015, Wife filed a motion to enforce the mediated agreement, 

alleging that Husband “terminated his attorney and informed [the attorney] that 

[Husband] would not honor the mediation agreement.” On January 6, 2016, Husband, 

through new counsel, filed a response, asserting, inter alia, that Wife may not enforce a 

consensual agreement by court order where the other party no longer agrees to the 

settlement. 

At the January 7, 2016 hearing on Wife’s motion to enforce the mediation 

agreement, Husband testified that he was coerced into signing the mediation agreement 

by his then-attorney and the mediator based on their statements that Husband would incur 

additional expenses, potentially expose himself to a contempt judgment, or potentially 

suffer a worse money judgment if he did not agree to settle.1 Husband further testified 

that his “retirement accounts were no one’s business but his own” and acknowledged that 

“he did not disclose the details of those accounts until shortly before mediation, and only 

did so because his [then-]attorney advised him that he could be held in contempt if he did 

not.” 

After the hearing, the trial court entered an order on January 11, 2016, finding that 

Husband was not “easily subject to coercion and would have no problem saying ‘no’ if 

confronted with an unsatisfactory proposal at mediation.” The trial court further found 

that the settlement agreement entered into by the parties constituted a “valid contract” 

and ordered Husband to pay the $80,000.00 lump sum pursuant to the agreement. 

On February 22, 2016, Husband filed a sworn motion for relief from judgment 

pursuant to Rule 60.02 of the Tennessee Rules of Civil Procedure based on fraud and 

misrepresentation. Therein, Husband alleged that he agreed to pay Wife $80,000.00 in 

the settlement agreement “[b]ecause of the difference in the amount of the assets of 

[Wife] and [Husband], particularly in retirement assets.” The motion further alleged that 

 

1 A transcript of the January 7, 2016 hearing is not included the record on appeal. Our recitation 

of Husband’s testimony is based on the trial court’s January 11, 2016 order.
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after January 11, 2016, he retained an investigator and discovered that Wife did not 

disclose all assets prior to the mediation, particularly her military pension. Husband 

alleged that Wife only applied for this pension after the divorce, and this amount was not 

included in the settlement. As a result, Husband alleged that “the parties did not reach a 

fair and equitable division of the marital property” and sought to set aside the $80,000.00 

judgment against him. Attached to Husband’s sworn motion are two letters, dated July 

29, 2015, and September 29, 2015, from Wife’s counsel to Husband’s counsel disclosing 

her assets. Neither letter mentions Wife’s military pension. 

On April 22, 2016, Wife filed an answer essentially denying all material 

allegations relating to fraud. On the same day, Wife also filed a motion for contempt2

and other relief, asserting, inter alia, Husband “continues to pay exorbitant sums to 

attorneys and investigators in a frivolous effort to delay payment to [Wife]” in violation 

of a court order. Wife also asserted that it was “impossible that [Husband] was unaware 

that [Wife] would receive a military pension because the parties met in the military 

reserves and did not retire until they reached their [twenty] year pension entitlements.” 

As a result, Wife asked that Husband be found in contempt and ordered to pay her 

attorney’s fees. Attached to Wife’s motion is her counsel’s affidavit, asserting that he 

and Husband’s then-attorney “discussed the parties’ military pensions” and “agreed that 

the pensions would roughly offset one another.” As a result, counsel contended that the 

pensions were not used in calculating the division of marital assets. On May 4, 2016, 

Husband filed a response to Wife’s motion for contempt and other relief. Therein, 

Husband “admit[ted] that the attorneys might have discussed the matter of the military 

pensions” but that “the matter was never discussed with him.”

After a May 5, 2016 hearing on the outstanding motions, the trial court entered the 

following order on May 9, 2016: 

Upon arguments of counsel, the pleadings, and the record as a 

whole, the [trial court] finds that the manner in which the parties’ military 

pensions were calculated in determining the division of marital property is 

not a proper basis upon which to grant relief to [Husband]. The [trial court 

finds that [Husband] is only before the [trial court] in a further attempt to 

stall payment of the $80,000.00 that he was ordered to pay.

IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED, 

that the $80,055.00 held by the [trial court] shall be released to [Wife] by 

check made payable to [Wife] and her attorney, to satisfy the judgment 

against [Husband] and that [Husband] is required to pay [Wife’s] attorney’s 

fees, totaling $1800.00, incident to the motions heard on May 5, 2016. 

 

2 The motion is unclear as to whether Wife was seeking civil or criminal contempt, as discussed 

infra.
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[Husband] shall pay the $1800.00 into the Chancery Clerk within ten (10) 

days of the entry of this Order.

This appeal followed.

ISSUES

Husband raises the following issues for our review, which we have slightly 

restated:

1. Did the trial court err in denying Husband’s motion for relief from 

judgment pursuant to Rule 60 of the Tennessee Rules of Civil Procedure 

based on an incorrect valuation of the pensions that were marital property?

2. Did the trial court err in granting Wife’s motion for sanctions against 

Husband and awarding the Wife’s attorney fees against Husband?

Wife, additionally, raises the following issue:

3. Whether Wife is entitled to damages for a frivolous appeal?

DISCUSSION

We begin first with Husband’s contention that the trial court erred in denying him 

relief pursuant to Rule 60.02 of the Tennessee Rules of Civil Procedure. Rule 60.02 

provides, in pertinent part:

On motion and upon such terms as are just, the court may relieve a party ... 

from a final judgment, order or proceeding for the following reasons: . . . 

(2) fraud (whether heretofore denominated intrinsic or extrinsic), 

misrepresentation, or other misconduct of an adverse party[.]

Our Supreme Court has discussed the standard applicable to a Rule 60.02 motion 

challenging a trial court’s final judgment:

Tennessee law is clear that the disposition of motions under Rule 

60.02 is best left to the discretion of the trial judge. Underwood v. Zurich 

Ins. Co., 854 S.W.2d 94, 97 (Tenn. 1993); Banks v. Dement Constr. Co., 

817 S.W.2d 16, 18 (Tenn. 1991); McCracken v. Brentwood United 

Methodist Church, 958 S.W.2d 792, 795 (Tenn. Ct. App. 1997). The 

standard of review on appeal is whether the trial court abused its discretion 

in granting or denying relief. This deferential standard “reflects an 

awareness that the decision being reviewed involved a choice among 
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several acceptable alternatives,” and thus “envisions a less rigorous review 

of the lower court’s decision and a decreased likelihood that the decision 

will be reversed on appeal.” Lee Med[.], Inc. v. Beecher, 312 S.W.3d 515, 

524 (Tenn. 2010).

A trial court abuses its discretion when it causes an injustice by 

applying an incorrect legal standard, reaching an illogical decision, or by 

resolving the case “on a clearly erroneous assessment of the evidence.” Id.

The abuse of discretion standard does not permit the appellate court to 

substitute its judgment for that of the trial court. Eldridge v. Eldridge, 42 

S.W.3d 82, 85 (Tenn. 2001). Indeed, when reviewing a discretionary 

decision by the trial court, the “appellate courts should begin with the 

presumption that the decision is correct and should review the evidence in 

the light most favorable to the decision.” Overstreet v. Shoney’s, Inc., 4 

S.W.3d 694, 709 (Tenn. Ct. App. 1999); see also Keisling v. Keisling, 196 

S.W.3d 703, 726 (Tenn. Ct. App. 2005).

Henderson v. SAIA, Inc., 318 S.W.3d 328, 335 (Tenn. 2010). In addition: 

[W]e have characterized relief under Rule 60.02 as an “exceptional 

remedy,” Nails v. Aetna Ins. Co., 834 S.W.2d 289, 294 (Tenn. 1992), 

“designed to strike a proper balance between the competing principles of 

finality and justice,” Jerkins v. McKinney, 533 S.W.2d 275, 280 (Tenn. 

1976). Rule 60.02 provides an “escape valve,” Thompson v. Firemen’s 

Fund Ins. Co., 798 S.W.2d 235, 238 (Tenn. 1990), that “should not be 

easily opened.” Toney v. Mueller Co., 810 S.W.2d 145, 146 (Tenn. 1991). 

We have reversed relief granted under Rule 60.02 where the judgment was 

“not oppressive or onerous.” Killion v. Tenn. Dep’t of Human Servs., 845 

S.W.2d 212, 214 (Tenn. 1992). “[R]elief under Rule 60.02 is not meant to 

be used in every case in which the circumstances of a party change after the 

entry of a judgment or order, nor by a party who is merely dissatisfied with 

a particular outcome.” Henderson, 318 S.W.3d at 336.

A party seeking relief under Rule 60.02 must substantiate the request 

with clear and convincing evidence. McCracken v. Brentwood United 

Methodist Church, 958 S.W.2d 792, 795 (Tenn. Ct. App. 1997). “Clear 

and convincing evidence means evidence in which there is no serious or 

substantial doubt about the correctness of the conclusions drawn from the 

evidence.” Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n. 3 (Tenn. 

1992). “In other words, the evidence must be such that the truth of the facts 

asserted [is] ‘highly probable.’” Goff v. Elmo Greer & Sons Constr. Co., 

297 S.W.3d 175, 187 (Tenn. 2009) (quoting Teter v. Republic Parking 

Sys., Inc., 181 S.W.3d 330, 341 (Tenn. 2005)). In general, “the bar for 
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attaining relief is set very high and the burden borne by the movant is 

heavy.” Johnson v. Johnson, 37 S.W.3d 892, 895 n.2 (Tenn. 2001).

Furlough v. Spherion Atl. Workforce, LLC, 397 S.W.3d 114, 127–28 (Tenn. 2013) 

(alteration in original). 

In his motion in the trial court, Husband relied on Rule 60.02(2)—fraud, 

misrepresentation, and misconduct—to support his request for relief. The quanta of proof 

required to show fraud, misrepresentation, or other conduct sufficient to warrant relief 

pursuant to Rule 60.02(2), as stated above, is “clear and convincing[.]” Duncan v. 

Duncan, 789 S.W.2d 557, 563 (Tenn. Ct. App. 1990) (quoting Leeson v. Chernau, 734 

S.W.2d 634, 638 (Tenn. Ct. App. 1987)). 

Husband argues that Wife in this case withheld information regarding her military 

pension prior to the party’s mediation; as a result “the values of the pensions were not 

calculated properly in the property settlement.” In contrast, Wife asserts that the parties’ 

attorneys previously discussed the military pensions and agreed not to include the 

pensions in any asset calculation.

The trial court, while denying Husband’s motion, gave no explanation for its 

decision nor squarely addressed the allegations in his Rule 60.02 motion. We concede 

that the express language of Rule 60.02 places no affirmative duty on the trial court to 

make findings of fact or conclusions of law in disposing of a Rule 60.02 motion. 

However, this Court has previously indicated that, with respect to a Rule 60.02 motion, 

we are “unable to adequately review” a trial court’s discretionary decision and provide 

the appropriate amount of deference to that decision when the trial court fails to make 

appropriate findings of fact and conclusions of law. Spigner v. Spigner, No. E2013-

02696-COA-R3-CV, 2014 WL 6882280, at *6 (Tenn. Ct. App. Dec. 8, 2014) (quoting 

Rogin v. Rogin, No. W2012-01983-COA-R3-CV, 2013 WL 3486955, at *7 (Tenn. Ct. 

App. 2013)). Accordingly, while we will go on to consider whether Husband met his 

burden in this case, we note that the better method of disposing of a Rule 60.02 motion is 

to include appropriate findings of fact and conclusions of law so that the decision may be 

given the appropriate deference.

At the outset, we note that our review is severely hampered by the limited 

evidence contained in the record. The record on appeal does not contain any transcripts 

or Statements of Evidence from any of the multiple hearings that took place in this case. 

Instead, the “evidence” in the record before us contains only: (1) Husband’s sworn 

motion asserting that Wife failed to disclose her military pension; (2) Wife’s counsel’s 

affidavit asserting that he discussed with Husband’s then-attorney the parties’ pensions, 

and both attorneys agreed the pensions should not be included in any calculation; and (3) 

Husband’s concession that the attorneys “might have discussed” the pensions but that he 
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himself was not aware of this discussion in his answer to Wife’s motion for contempt and 

other relief. 

From our review of the record, we conclude that Husband failed to meet his 

burden to prove, by clear and convincing evidence, that he was harmed by “an intentional 

contrivance . . . to keep [him] and the Court in ignorance of the real facts touching the 

matters in litigation.” Duncan, 789 S.W.2d 563 (quoting Leeson, 734 S .W.2d at 638). 

Husband has presented no evidence supporting his allegation that the parties’ pensions 

had never been discussed. In light of Wife’s attorney’s uncontroverted affidavit asserting 

that the issue of the parties’ pensions had been previously disclosed and discussed, 

Husband’s sworn statement that he himself was not aware of her pension is unavailing. 

Indeed, Husband does not deny that his then-attorney might have had knowledge of 

Wife’s military pension. Even assuming arguendo that the then-attorney never imparted 

his knowledge of Wife’s pension to Husband, a “person generally is held to know what 

his attorney knows and should communicate to him, and the fact that the attorney has not 

actually communicated his knowledge to the client is immaterial.” Smith v. Petkoff, 919 

S.W.2d 595, 597–98 (Tenn. Ct. App. 1995) (quoting 7A C.J.S. Attorney and Client § 182 

(1980)). “Once it has been established that the attorney obtained the relevant knowledge 

during the course of representing the client, ‘the constructive notice thereof to the client 

is conclusive, and cannot be rebutted by showing that the attorney did not in fact impart 

the information so acquired.’” Boote v. Shivers, 198 S.W.3d 732, 742 (Tenn. Ct. App. 

2005) (Smith, 919 S.W.2d at 597–98). Based on the scant evidence in the record, we 

conclude that Husband has not met his burden to prove clearly and convincingly the 

existence of any fraud in this case to warrant reversal of the trial court’s adjudication of 

this issue. Accordingly, we affirm the trial court’s denial of Husband’s Rule 60.02 

motion. 

We next address whether the trial court erred in awarding Wife attorney’s fees in 

the proceedings below. Under Tennessee law, courts follow the “American Rule,” which 

generally provides that litigants must pay their own attorney’s fees unless a party can 

demonstrate the existence of a specific contractual agreement or statutory basis to support 

an award of attorney’s fees. House v. Estate of Edmondson, 245 S.W.3d 372, 377 

(Tenn. 2008) (citing John Kohl & Co. v. Dearborn & Ewing, 977 S.W.2d 528, 534 

(Tenn. 1998)). From our review of the record, neither the MDA nor the mediated 

agreement contains any provision providing for attorney’s fees. We will therefore 

proceed to determine whether a statutory basis exists to support the award of attorney’s 

fees to Wife in this case.

As is relevant to this appeal, one statutory basis for the award of attorney’s fees is 

contained in Tennessee Code Annotated section 29-9-102, allowing Tennessee courts “to 

punish for acts of contempt.” Reed v. Hamilton, 39 S.W.3d 115, 117 (Tenn. Ct. App. 

2000); see Black v. Blount, 938 S.W.2d 394, 397–98 (Tenn. 1996) (stating that 

Tennessee Code Annotated section 29-9-102 was enacted to “limit and define the conduct 
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punishable by contempt” in order to curb potential abuses). “A contempt [finding] may 

be either civil in nature or criminal in nature.” Reed, 39 S.W.3d at 118. Civil contempt 

proceedings are remedial in nature and are brought by private parties to enforce their 

rights under an order that has been violated, whereas criminal contempt proceedings are 

designed to “vindicate the court’s authority and maintain the integrity of its orders and 

thus is generally punitive rather than remedial in nature.” Id. Among the conduct that 

Tennessee courts have the authority to punish as contempt is “[t]he willful disobedience 

or resistance of any officer of the said courts, party, juror, witness, or any other person, to 

any lawful writ, process, order, rule, decree, or command of such courts.” Tenn. Code 

Ann. § 29-9-102(3). “Thus, to find contempt under this statute, a court must find the 

misbehavior, disobedience, resistance, or interference to be wilful.” Ahern v. Ahern, 15 

S.W.3d 73, 79 (Tenn. 2000). “[A] trial court’s use of its contempt power is 

discretionary[.]” Outdoor Mgmt., LLC v. Thomas, 249 S.W.3d 368, 377 (Tenn. Ct. App. 

2007) (citing Robinson v. Air Draulics Eng’g Co., 214 Tenn. 30, 377 S.W.2d 908, 912 

(Tenn. 1964)). As a result, this Court “will review a trial court’s contempt citation using 

the abuse of discretion standard.” Id. (citing Powell v. Powell, 124 S.W.3d 100, 108 

(Tenn. Ct. App. 2003)). “A trial court abuses its discretion only when it ‘applie[s] an 

incorrect legal standard, or reache[s] a decision which is against logic or reasoning that 

cause[s] an injustice to the party complaining.’” Eldridge v. Eldridge, 42 S.W.3d 82, 85 

(Tenn. 2001) (quoting State v. Shirley, 6 S.W.3d 243, 247 (Tenn. 1999)). “Furthermore, 

the award of attorneys’ fees based upon a finding of contempt is also reviewed under the 

less stringent abuse of discretion standard and we will not modify a punishment imposed 

for contempt unless the complaining party can show that the trial court abused its 

discretion.” Outdoor Mgmt., LLC, 249 S.W.3d at 377 (citations omitted). 

Not all contempt findings, however, allow the trial court to award attorney’s fees. 

Specifically, we have held that a trial court may not award attorney’s fees in the context 

of a criminal contempt proceeding. See Watts v. Watts, No. M2015-01216-COA-R3-CV, 

2016 WL 3346547, at *11 (Tenn. Ct. App. June 8, 2016) (“[A]ttorney’s fees are not 

within the statutory limits to criminal contempt under Tenn[essee] Code Ann[otated 

section] 29-9-103.”). On the other hand, the trial court is authorized in civil contempt 

proceedings to award attorney’s fees upon a finding of contempt. See Reed, 39 S.W.3d at 

119 (construing the “payment of damages” provision under Tennessee Code Annotated 

section 29-9-105 to mean that attorney’s fees are allowed in civil contempt proceedings).

Here, it is not clear from the record whether civil contempt or criminal contempt

was pursued in the court below. In the event that criminal contempt was at issue, the trial 

court is not permitted to award Wife attorney’s fees in the criminal contempt proceeding. 

See Watts, 2016 WL 3346547, at *11. Even assuming that civil contempt was at issue, 

see Reed, 39 S.W.3d at 119, the record is utterly devoid of any order actually finding 

Husband’s conduct to be willful or finding him in contempt, nor is there any indication in 

the record that an evidentiary hearing was ever held on Wife’s contempt petition. Indeed, 

the trial court’s exiguous order contains only the following finding, in relevant part: 
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“[The trial court] finds that [Husband] is only before the Court in a further attempt to stall 

payment of the $80,000.00 that he was ordered to pay.” As previously discussed, 

however, where the trial court fails to make appropriate findings of fact and conclusions 

of law, we are “unable to adequately review” a trial court’s decision and provide the 

appropriate amount of deference to that decision. Spigner, 2014 WL 6882280, at *6. In 

the absence of both an evidentiary hearing on Wife’s contempt petition and specific 

findings supporting the award of attorney’s fees, we reverse this portion of the trial 

court’s judgment. 

Finally, Wife seeks an award for damages on appeal. The decision to award 

damages based on the filing of a frivolous appeal rests solely in the discretion of this 

Court. Whalum v. Marshall, 224 S.W.3d 169, 180 (Tenn. Ct. App. 2006). “Imposing a 

penalty for a frivolous appeal is a remedy which is to be used only in obvious cases of 

frivolity and should not be asserted lightly or granted unless clearly applicable, which is 

rare.” Henderson v. SAIA, Inc., 318 S.W.3d 328, 342 (Tenn. 2010). An appeal is 

frivolous when it has “no reasonable chance of success,” Jackson v. Aldridge, 6 S.W.3d 

501, 504 (Tenn. Ct. App. 1999), or is “so utterly devoid of merit as to justify the 

imposition of a penalty.” Combustion Eng’g, Inc. v. Kennedy, 562 S.W.3d 202, 205 

(Tenn. 1978). Because Husband prevailed on at least one issue on appeal, we decline to 

award Wife any damages in this appeal. 

CONCLUSION

For the forgoing reasons, the judgment of the Tipton County Chancery Court is 

affirmed with respect to its denial of Husband’s Rule 60.02 motion based on fraud and 

misrepresentation and reversed with respect to its award of attorney’s fees to Wife. We 

further deny Wife’s request for damages on appeal. Costs of this appeal are taxed onehalf to Gerald Parimore, and his surety, and one-half to Linda Parimore, for all of which 

execution may issue if necessary. 

_________________________________

J. STEVEN STAFFORD, JUDGE