### 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 Almed

a Matthews Havel

y were divorced. They had entere d 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”). A

pproximately one m

onthafter the entry of the Divorce Judgment, Almeda Matthews Havely (“Defendant”) filed a motion essentially seeking relie f under T enn. 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 w as dismissed in 1984 by the Trial Court for failure to prosecute. This matter lay dormant for fourteenplus years until Defendant filed two more Rule 60.02 motions. Defendant’s third and final Rule 60.02 motion, filed i n 1999, is the subjec

t of this appeal.

After three notices of hearing were filed, the Trial Court dismissed Defendant’s motion without providing its reas

ons for the dismissa

l. Defendant appe

als. We affirm.
Tenn. R. App. 3 Appeal as of Right; Judgment o

f the Domestic R

elations Court Aff

irmed.

D. M ICHAEL S WINEY , J., delivered the opinion of the court, in which H OUSTON M. G ODDARD , P.J., and H ERSCHEL P. F RANKS , 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 cleri cal error in enteri

ng the Divorce J

udgment as of

April 16, 1983 was

not addressed by Defendant in the 1983 Motion.

2 At some point dur

ing th e 14 plus year

lapse i n activi ty in thi s matter,

Plainti ff died. Defendant’s

1998 Mo tion all eges that she filed a claim against Plaintiff’ s estate. After Defendant’s 1998 Motion was filed, Plaintiff’s wido w, Bar bara 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 estat e, 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.” -2- OPINION Background
The record

on appeal in this matte

r contains only the

technical reco

rd 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 divorc e. Plaintiff filed

his Comp laint for divorce on April 26, 1983, and Defendant

filed her Answer on the same date. In an apparent clerica l error, the e ntry 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 th eir a ttorneys. The Property Settlement Agreement makes no mention of Plaintiff’s military pension but states that “[t]he parties hereby declare that there hasbeen no fraud or collusion in the procurement of this agreement.” No appeal was taken.

Thereafter, in June 1983, Defendant, rep resented by new c

ounsel, filed a Pet

ition to Rehear (“1983 Motion”) which was essentially a Rul e 60.02 m otion for relief from the Divorce Judgment. The ground s for De fendant’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, Def endant alleged,

without any support

ing 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 r

ecord 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 bythe Trial Court clerk on April 16, 1983; 2) the Divorce Judgment erroneously states that a hearing was held; and 3) the Trial Court er r oneously granted Plaintiff

’s grounds for divo

rce, which was c

ruel and inhumane

treatment. 2 In December 1998, the Trial Court entered an Order which referenced a November 20, 1998, hearing regarding Defendant’s1998 Motion in which one of Defendant’s former attorneys and the court cle

rk testified. The

Trial Court held, in

its Order, that the DivorceJudgment should-3-

have been dated May 16, 1983, and asse ssed costs against

Defendant. The

rema ining 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 motionattacking the Divorce Judgment(“1999 Motion”). This 1999 Motion and i

ts dismissal is the subj ect of this appeal. Inher 1999 Motion, Defendant reiterated the objections to t he D ivorce Judgment made in her previous motions filed in 1983 and 1998. As in her 1983 Motion, De fendant alleges that the Divorce Judgmentshould be set aside because P lain tiff fraudulentl y concealed De

fendant’s entitle

ment to his military pension, c

iting 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, Defen dant specifically ple d the relief prov

ided 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 1 999 Motion setting a January 2000, hearing da te. 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 da tes passed, pr esumably without a hearing, the Trial Court entered an Order

of Dismissal which contained no explanation for the dismissal. Defend

ant appeals. We

affirm. Discussion
Defendant’s argument on appeal is rather unclear, and she cites no le gal authority in support of her arg ume nt. See Tenn. R. App. P. 27(a )(7). Although not

exactly stated a

s such, it appears that Defendant argues on app eal 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 no

tice to either par

ty; and 4) Defend

ant’s due proce

ss rights were violated by the Trial Court’s dismissal of the 1 99 9 Motion without a hearing. Plaintiff raises no additional issues on appeal b

ut contends that De

fendant’s appe

al is frivolous.
“A motion for relief from a judg me nt 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 abusedhis discretion.” Banks v. Dement C onstr. Co., Inc. , 817 S.W.2d 16, 18 (Tenn. 1991). A discretionary

judgment of the Trial Court will not be reversed for abuse of discret

ion unless it “‘affirmative

ly appears that the TrialCourt’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:-4- On motion and upon such terms as are j ust, the court may relieve a partyor the party’s legal representative from a final judgment, order or proceeding f

or the following re

asons: (2) fraud (whether

heretofore den

ominated intrinsi

c or extrinsic), misrepresentati

on, or other miscon

duct of an adver

se party; (3) the judgment is void . . . The motion shallbe 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 desig

ned to st rike 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 purp

ose of Tenn. R. Civ. P. 60. 02, held as follows :

“Rule 60.02 acts

as an escape

valve from possible inequity that might otherwise ari se from the unrelenting imposition of the principle of finali ty imbedded in our procedural rules . . . .” Because of the importance of this

“principle of fin

ality,” the “esc

ape valve” shoul

d 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 clearl y shows, however, that Defendant’s 1999 Motion was not filed timely according

to the requirement

s 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 T

enn. R. Civ. P. 60.02(2), the rule clearly states that such a motion for relief from judgment should be filed within areasonable time and “not more than one year after the judgment. . . was ent ered. . . .” Accordingly, Defendant’s 1999 Motion, filed more than sixteen-5-

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 i f 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 Jud gment wa s entered. See Tenn. R. Civ. P. 60.02(2); Brown v. Brown , 863 S.W.2d 432, 434 (Tenn. Ct. App. 199 3). In fact, in De fendant’s first Rule 60.02 motion, the 1983 Motion, De fenda nt alleged that the Property Settlement Agreement was incorporated into the divorce decree dated May 16, 1983. Defenda nt also alleged that

she learned of her entitlement to a

portion of Plaintiff’s retirement on May 15, 1983, the day beforethe Divorce Judgmentwas entered. See Bro wn v. B rown , 863 S.W.2d at 434 ( holding that to suppor

t a Rule 60.02 motion, defendant

needed evidence that a fraudulent misrepresentation was made by plaintiff prior to the final judgmen

t). Defendant do

es not allege that she did not know about Plaintiff’s military pension butalleges only that she did not know that she was entitled to it until the day before the Divorce Judgment

was entered. De

fendant’s alleg

ation, even if tru

e, is not fatal to

the Divorce Judgmentas “this is a mistake of law and not a mistake of fact

. A mistake of law ‘occurs when a party kno ws the facts of the case but is ignorant of the legal consequences.’” Spruce v. Spr uce , 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) ( alterati ons in original)). Our Supreme Court held that “if ‘ignorance of the law is a proper ground for relief under Rule 60.0 2 . . ., 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 allegatio ns 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) (hol ding that “[a]lle

gations contained

in pleadings and statements mad e by counsel durin

g a hearin

g or the tr

ial 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 i

ts discretion in dism

issing the M otion since Defendant failedto 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 shoul d be set aside because it is void underTenn. R. Civ. P. 60.02( 3). As already

discussed in

this Opinion, the Trial Courtin 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 frivolo us. It appears from the record on appeal that Defendant is attempting to use Tenn. R. Civ. P.

60.02 toobtain more-6-

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 1999Motion, which also was dismissed. De fen dant also twice raised the issue that the Divorce Judgment was void, citing the samegrounds, 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 tak

en as to it. Plaintiff argues that Defendant’s appeal is frivolous and reque sts an award of attorneys’ fee

s. Tenn. Code Ann. §

27-1-122 provide

s: 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 ju st damages against the appel

lant, 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 th ere is little prospect tha

t [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 l aw 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 rea listic prospect of

success. Addition

ally, Defendant

failed to cite any law supporting her

position. Defenda

nt’s appeal i s 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 beca

use of this appeal

. CONCLUSION The judgment of the Trial Court is affirmed and this cause is remanded to the Trial Courtfor such further proceedings as may be required, if any, consistent with this Opinion, and for co llection of the costs below. The costs on appeal are assessed against the Appellant , Almed a Mat the ws H avel y, an d he r su ret y.

___________________________________-7- D. MICHAEL SWINEY, JUDGE