IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

July 12, 2001 Session

JEROME FELIX HAVELY v. ALMEDA MATTHEWS HAVELY

 Appeal from the Domestic Relations Court for Hamblen County

No. 1176 Joyce Ward, Judge

FILED AUGUST 15, 2001

No. E2000-02275-COA-R3-CV

In 1983, Jerome Felix Havely and Almeda Matthews Havely were divorced. They had entered into

a Property Settlement Agreement which was incorporated into the Judgment of Divorce (“Divorce

Judgment”). Neither the Divorce Judgment nor the Property Settlement Agreement mentioned the

military pension of Jerome Felix Havely (“Plaintiff”). Approximately one month after the entry of

the Divorce Judgment, Almeda Matthews Havely (“Defendant”) filed a motion essentially seeking

relief under Tenn. R. Civ. P. 60.02 in which she alleged that the Divorce Judgment should be set

aside because she had not been aware of her entitlement to Plaintiff’s military pension. This motion

was dismissed in 1984 by the Trial Court for failure to prosecute. This matter lay dormant for

fourteen plus years until Defendant filed two more Rule 60.02 motions. Defendant’s third and final

Rule 60.02 motion, filed in 1999, is the subject of this appeal. After three notices of hearing were

filed, the Trial Court dismissed Defendant’s motion without providing its reasons for the dismissal.

Defendant appeals. We affirm.

Tenn. R. App. 3 Appeal as of Right; Judgment of the Domestic Relations Court Affirmed.

D. MICHAEL SWINEY,J., delivered the opinion of the court, in which HOUSTON M. GODDARD, P.J.,

and HERSCHEL P. FRANKS, J., joined.

David W. Blankenship, Kingsport, Tennessee, for the Appellant, Almeda Matthews Havely.

Clinton R. Anderson, Morristown, Tennessee, for the Appellee, Theresa Waller, administratrix for

the Estate of Barbara Havely.
1

 The clerical error in entering the Divorce Judgment as of April 16, 1983 was not addressed by Defendant

in the 1983 Motion.

2

 At some point during the 14 plus year lapse in activity in this matter, Plaintiff died. Defendant’s 1998

Motion alleges that she filed a claim against Plaintiff’s estate. After Defendant’s 1998 Motion was filed, Plaintiff’s

widow, Barbara Ha vely, filed a P etition to Inter vene w hich wa s granted in Nov embe r 1998. T hereafter, w hile this

matter was pen ding on appeal, Barbara Havely died and the adm inistratrix of her estate, Theresa Waller, was allowed

to substitute as party appellee. For simplicity’s sake, we will refer to Jerome Felix Havely, Barbara Havely and Barbara

Havely ’s estate’s adm inistratrix as “P laintiff.”

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OPINION

Background

The record on appeal in this matter contains only the technical record and is devoid

of any transcript or statement of the evidence or proceedings. See Tenn. R. App. P. 24. In 1983, the

parties obtained a divorce. Plaintiff filed his Complaint for divorce on April 26, 1983, and

Defendant filed her Answer on the same date. In an apparent clerical error, the entry date of the

Divorce Judgment was marked as “April 16, 1983.” (emphasis added). The Divorce Judgment

incorporated by reference an undated Property Settlement Agreement executed by both parties and

their attorneys. The Property Settlement Agreement makes no mention of Plaintiff’s military

pension but states that “[t]he parties hereby declare that there has been no fraud or collusion in the

procurement of this agreement.” No appeal was taken. 

Thereafter, in June 1983, Defendant, represented by new counsel, filed a Petition to

Rehear (“1983 Motion”) which was essentially a Rule 60.02 motion for relief from the Divorce

Judgment. The grounds for Defendant’s 1983 Motion were that Defendant did not learn of her

entitlement to Plaintiff’s military pension until May 15, 1983, the day before the Divorce Judgment

was entered.1 In her Motion, Defendant alleged, without any supporting affidavit, that she had not

been aware of her entitlement to Plaintiff’s pension but that Plaintiff had told her that he knew she

was entitled to the pension. Thereafter, in March 1984, the Trial Court dismissed the 1983 Motion

for failure to prosecute. No appeal was taken.

The next pleading contained in the technical record was filed in August 1998, more

than fourteen years after the March 1984 order, and is Defendant’s Motion for Relief from Judgment

(“1998 Motion”). In Defendant’s 1998 Motion, Defendant argued that the Divorce Judgment was

void under Tenn. R. Civ. P. 60.02(3). The 1998 Motion contains a number of grounds, including

1) the Divorce Judgment was erroneously entered by the Trial Court clerk on April 16, 1983; 2) the

Divorce Judgment erroneously states that a hearing was held; and 3) the Trial Court erroneously

granted Plaintiff’s grounds for divorce, which was cruel and inhumane treatment.2

 

In December 1998, the Trial Court entered an Order which referenced a November

20, 1998, hearing regarding Defendant’s 1998 Motion in which one of Defendant’s former attorneys

and the court clerk testified. The Trial Court held, in its Order, that the Divorce Judgment should
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have been dated May 16, 1983, and assessed costs against Defendant. The remaining grounds of

Defendant’s 1998 Motion were not addressed in the Trial Court’s 1998 Order (“1998 Order”). No

appeal was taken from this order.

In November 1999, Defendant filed a third Rule 60.02 motion attacking the Divorce

Judgment (“1999 Motion”). This 1999 Motion and its dismissal is the subject of this appeal. In her

1999 Motion, Defendant reiterated the objections to the Divorce Judgment made in her previous

motions filed in 1983 and 1998. As in her 1983 Motion, Defendant alleges that the Divorce

Judgment should be set aside because Plaintiff fraudulently concealed Defendant’s entitlement to

his military pension, citing as authority the “entire range of relief available to her under Rule 60.02

. . . .” Moreover, despite the Trial Court’s 1998 Order which corrected the erroneous date of entry

on the Divorce Judgment, Defendant specifically pled the relief provided by Tenn. R. Civ. P.

60.02(3) for void judgments and again argued the Divorce Judgment’s date of entry shows that the

divorce was entered prior to the filing of the Divorce Complaint. 

Defendant filed a Notice of Hearing with her 1999 Motion setting a January 2000,

hearing date. The 1999 Motion apparently was not heard in January 2000. The technical record

contains two more Notices of hearing apparently issued by the Trial Court clerk for the 1999 Motion,

setting two hearing dates in August. After the two hearing dates passed, presumably without a

hearing, the Trial Court entered an Order of Dismissal which contained no explanation for the

dismissal. Defendant appeals. We affirm.

Discussion

Defendant’s argument on appeal is rather unclear, and she cites no legal authority in

support of her argument. See Tenn. R. App. P. 27(a)(7). Although not exactly stated as such, it

appears that Defendant argues on appeal that: 1) the divorce judgment should be set aside under

Tenn. R. Civ. P. 60.02(2) or 60.02(3); 2) the Trial Court erred in failing to investigate the fraudulent

concealment of Plaintiff’s military pension; 3) the Trial Court erred in dismissing Defendant’s 1999

Motion without any notice to either party; and 4) Defendant’s due process rights were violated by

the Trial Court’s dismissal of the 1999 Motion without a hearing. Plaintiff raises no additional

issues on appeal but contends that Defendant’s appeal is frivolous.

“A motion for relief from a judgment pursuant to Rule 60.02 addresses the sound

discretion of the trial judge[, and] the scope of review on appeal is limited to whether the trial judge

abused his discretion.” Banks v. Dement Constr. Co., Inc., 817 S.W.2d 16, 18 (Tenn. 1991). A

discretionary judgment of the Trial Court will not be reversed for abuse of discretion unless it

“‘affirmatively appears that the Trial Court’s decision was against logic or reasoning, and caused an

injustice or injury to the party complaining.’” Marcus v. Marcus, 993 S.W.2d 596, 601 (Tenn. 1999)

(quoting Ballard v. Herzke, 924 S.W.2d 652, 661 (Tenn. 1996)).

Tenn. R. Civ. P. 60.02 provides, in pertinent part, the following:
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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:

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

misrepresentation, or other misconduct of an adverse party; 

(3) the judgment is void . . .

The motion shall be made within a reasonable time, and for reasons

(1) and (2) not more than one year after the judgment, order or

proceeding was entered or taken.

To set aside a judgment under Rule 60.02, the moving party has the burden to prove

“that he is entitled to relief, and there must be proof of the basis on which relief is sought.” Banks

v. Dement Constr. Co., Inc., 817 S.W.2d at 18; Federated Ins. Co. v. Lethcoe, 18 S.W.3d 621, 624

(Tenn. 2000). The moving party must establish by clear and convincing evidence that relief from

the judgment is warranted. Duncan v. Duncan, 789 S.W.2d 557, 563 (Tenn. Ct. App. 1990). 

“Rule 60.02 ‘was designed to strike a proper balance between the competing

principles of finality and justice.’” Banks v. Dement Constr. Co., 817 S.W.2d at 18 (quoting Jerkins

v. McKinney, 533 S.W.2d 275, 280 (Tenn. 1976)). Our Supreme Court, in examining the purpose

of Tenn. R. Civ. P. 60.02, held as follows:

“Rule 60.02 acts as an escape valve from possible inequity that might

otherwise arise from the unrelenting imposition of the principle of

finality imbedded in our procedural rules . . . .” Because of the

importance of this “principle of finality,” the “escape valve” should

not be easily opened. 

Id. (quoting Toney v. Mueller Co., 810 S.W.2d 145, 146 (Tenn. 1991). 

In this matter, the determinative issue on appeal is whether the Trial Court abused its

discretion in dismissing Defendant’s 1999 Rule 60.02 Motion. The Trial Court’s Order of Dismissal

does not provide the reason the Trial Court dismissed the 1999 Motion. The technical record clearly

shows, however, that Defendant’s 1999 Motion was not filed timely according to the requirements

of Tenn. R. Civ. P. 60.02. 

With respect to Defendant’s claim that the Divorce Judgment should be set aside

because of fraud under Tenn. R. Civ. P. 60.02(2), the rule clearly states that such a motion for relief

from judgment should be filed within a reasonable time and “not more than one year after the

judgment . . . was entered. . . .” Accordingly, Defendant’s 1999 Motion, filed more than sixteen
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years after the entry of the Divorce Judgment, fails to comply with Rule 60.02. Therefore, we find

no abuse of discretion in the Trial Court’s dismissal of Defendant’s 1999 Rule 60.02(2) Motion. See

Banks v. Dement Constr. Co., 817 S.W.2d at 18; Marcus v. Marcus, 993 S.W.2d at 601.

Moreover, even if Defendant’s Rule 60.02(2) 1999 Motion was timely filed,

Defendant presents no proof in the record to show that Plaintiff made a fraudulent misrepresentation

regarding his military pension before the Divorce Judgment was entered. See Tenn. R. Civ. P.

60.02(2); Brown v. Brown, 863 S.W.2d 432, 434 (Tenn. Ct. App. 1993). In fact, in Defendant’s first

Rule 60.02 motion, the 1983 Motion, Defendant alleged that the Property Settlement Agreement was

incorporated into the divorce decree dated May 16, 1983. Defendant also alleged that she learned

of her entitlement to a portion of Plaintiff’s retirement on May 15, 1983, the day before the Divorce

Judgment was entered. See Brown v. Brown, 863 S.W.2d at 434 (holding that to support a Rule

60.02 motion, defendant needed evidence that a fraudulent misrepresentation was made by plaintiff

prior to the final judgment). Defendant does not allege that she did not know about Plaintiff’s

military pension but alleges only that she did not know that she was entitled to it until the day before

the Divorce Judgment was entered. Defendant’s allegation, even if true, is not fatal to the Divorce

Judgment as “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.’” Spruce v. Spruce, 2

S.W.3d 192, 195 (Tenn. Ct. App. 1998) (quoting Haas v. Haas, No. 02A01-9709-CV-00241, 1998

WL 599529, at * 4 (Tenn. Ct. App. Sept. 11, 1989) (alterations in original)). Our Supreme Court

held 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.’” Id. (quoting Food Lion, Inc.

v. Washington Co. Beer Bd., 700 S.W.2d 893, 896 (Tenn. 1985) (alterations in original)). Moreover,

Defendant’s unsworn allegations in her three Rule 60.02 motions do not constitute proof. See State

v. Draper, 800 S.W.2d 489, 493 (Tenn. Ct. App. 1990) (holding that “[a]llegations contained in

pleadings and statements made by counsel during a hearing or the trial are not evidence”).

Accordingly, we hold that even if Defendant’s Rule 60.02(2) 1999 Motion was timely filed, which

it was not, the Trial Court did not abuse its discretion in dismissing the Motion since Defendant

failed to establish by clear and convincing evidence that the Divorce Judgment needed to be set aside

due to fraud. See Banks v. Dement Constr. Co., 817 S.W.2d at 18; Marcus v. Marcus, 993 S.W.2d

at 601.

Defendant also alleges on appeal that the Divorce Judgment should be set aside

because it is void under Tenn. R. Civ. P. 60.02(3). As already discussed in this Opinion, the Trial

Court in its 1998 Order resolved this issue by correcting the Trial Court Clerk’s erroneous entry date

of the Divorce Judgment. The Trial Court’s 1998 Order resolving this question renders this issue

moot.

In light of our holding, we find that Defendant’s remaining issues on appeal are moot.

We, therefore, need not address them any further.

We now address Plaintiff’s argument that Defendant’s appeal is frivolous. It appears

from the record on appeal that Defendant is attempting to use Tenn. R. Civ. P. 60.02 to obtain more
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than one bite at the apple. In fact, Defendant has used this rule, albeit unsuccessfully, to obtain three

bites after entry of the Divorce Judgment. Defendant raised the issue of fraud in her 1983 Motion

which was dismissed for failure to prosecute. She raised it again in her 1999 Motion, which also was

dismissed. Defendant also twice raised the issue that the Divorce Judgment was void, citing the

same grounds, that is, the clerical error in the date of entry of the Divorce Judgment. The Trial Court

held a hearing on Defendant’s 1998 Motion and entered an Order correcting this clerical error. That

Order is final as no appeal was taken as to it.

Plaintiff argues that Defendant’s appeal is frivolous and requests an award of

attorneys’ fees. Tenn. Code Ann. § 27-1-122 provides:

When it appears to any reviewing court that the appeal from any court

of record was frivolous or taken solely for delay, the court may, either

upon motion of a party or of its own motion, award just damages

against the appellant, which may include but need not be limited to,

costs, interest on the judgment, and expenses incurred by the appellee

as a result of the appeal.

A frivolous appeal is one “‘devoid of merit,’. . . or one where there is little prospect that [an appeal]

can ever succeed.” Industrial Dev. Bd. of the City of Tullahoma v. Hancock, 901 S.W.2d 382, 385

(Tenn. Ct. App. 1995) (quoting Combustion Eng’g, Inc. v. Kennedy, 562 S.W.2d 202 (Tenn. 1978)).

In addition, this Court has held that “[f]ailure to cite any evidence or rule of law entitling the

appealing party to relief is one indicator than the appeal may be frivolous.” Jackson v. Aldridge, 6

S.W.3d 501, 504 (Tenn. Ct. App. 1999). 

Plaintiff has incurred attorneys’ fees because Defendant appealed the Trial Court’s

dismissal of her third Rule 60.02 motion disputing the 1983 Divorce Judgment. Defendant’s appeal

is devoid of merit and had no realistic prospect of success. Additionally, Defendant failed to cite

any law supporting her position. Defendant’s appeal is frivolous, and, therefore, we award

Plaintiff’s reasonable attorneys’ fees and expenses incurred as a result of the appeal. On remand,

the Trial Court shall determine the amount of Plaintiff’s reasonable expenses and attorneys’ fees

incurred because of this appeal.

CONCLUSION

The judgment of the Trial Court is affirmed and this cause is remanded to the Trial

Court for such further proceedings as may be required, if any, consistent with this Opinion, and for

collection of the costs below. The costs on appeal are assessed against the Appellant, Almeda

Matthews Havely, and her surety.

___________________________________ 
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D. MICHAEL SWINEY, JUDGE