### IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON NOVE MBER 20, 2002 Session KAY GIL LIAM D ULIN v. MICHA EL JAY D ULIN Direct Appeal from the Circuit Court for Shelby County No. 160153-6 R.D. George H. Brown, Jr., Judge

No. W2001-02969-COA-R3-CV - Filed Septem ber 3, 2003

This appeal a

rises fr om a custo dy d

ispute inv olving pa

rental r elocatio n with a min or chi ld. The lower court dismissed Father’s petition to oppose Mother’s relocation and granted Mother’s motion to dismiss. Father r

aises mult

iple issue s on appe al. For t he follow ing rea sons, we a ffirm.
Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Circuit Court Affirmed
A LAN E. H IGHERS , J., delivered the opinion of the cour t, in w hich W. F RANK C RAWFORD , P.J., W.S., and H OLLY M. K IRBY , J., joined. Michael Jay Dulin, pro se , Eads, TN S. Denise McCrary , Stephanie M. Micheel, Memphis, TN, for Appellee OPINION Facts and Procedural History Michael Jay Dulin (“Father ”) and Kay

Gilliam Dulin (“Mother”) were granted a divorce on December

9, 1998. A Marital Dissolution Agreement (“MDA”), wherein the parties agree d to joint custody of their minor child, wa s incorporated into the final divorce decree

. On August 10, 2000, Mother notified Father by l etter tha

t she intended to move

to Georg ia withthe part

ies’ minor

child. On

August 1 6, 2000, F ather f iled a Pet it ion fo r Injunction, Petition to Modify Joint Custody, Petition to Modify Child Support, and Petition to Oppose Relocation of Plaintiff. A respon se to Father’s petition was filed by Mother on October 18, 2000. In her response, Mother denied that the parties spent substantially equal time with the child. On Septembe r 28, 2000, t he trial c ourt appo inted Jill Gr aves Cly burn (“M s. Cly

burn”) t o serve as Guardian Ad

Litem. Ms. Cly

burn was to “investigate the best interests of the minor child”-2-

withregar

d to the proposed move and the fitness of both parents. As part of her investig ation, Ms. Clyburn requested that both parties submit to dr ug tests . The re sults of Mother’s tests were negative, butFather tested positive for me thamphetamine and amphetamine. As a result of Father testing positive for drugs, Ms. Clybur n made a motion that Father have supervised visitation pending further dr ug te sting of Father and his new wife, B eth Dulin. The trial court entered an order on June 12, 2001 which required that Father’s new wif e submit to drug testing. She has ref used to do s o despite this order. Approximat

ely three weeks after Fathe

r failed the initial dr

ug test, he volunta

rily submitted to two additi onal testsat t he Fra yser Medica

l Center. The results of these tests were neg ative. Shortly thereafter, Ms. Cly

burn discovered that Father may not have been the man who had taken these drug tests. Apparently

Father had another person take the tests for him. This information was brought to the attention of Mother’s counsel on July 30, 2001. On August

1, 2001, the schedu

led date for the hearing on Father ’s petitions, Mother filed a Motion to Dismiss and Other Relief. Mother’s petition sought to have Father’s pe titions dismissed due to the fra

ud he app arently

had committed on the

court. Th

e trial c ourt, after hearing testimony relating to Mother’s petition, granted Mother’s petition. The trial court dismissed Father’s petitions without conducting a hearing on his petition to oppose the move. On Aug ust 24, 2001, the trial court entered the order gra

nting the motion to dismiss. Father’s attorney wa s allowed to withdraw by or der entered September 14, 2001. Therea fter, on September 21, 2001, Father filed a Motion to Amend Findings and Make Additional Findings and Motion for New

Trial. Subsequently, Father filed an Amended Motion to Amend findings and Make Additional Findings and Motion for New Trial on October 12, 2001. Both of Father’s motions claimed that the trial court erred due to the lack of due process he was afforded. Mother responded to both of Fathe r’s motions by deny

ing that the trial court erred. On October 12, 2001, Mother filed a Petition to

Compel Signature on Real Estate Contract and for Sale of Proper

ty, for Civil a

nd Crimina

l Contempt, For Modif

icatio n, For A ttorney’s Fees, For Guardian Ad Litem Fe es, or Injunctive Relief and Disc retionary Costs. On November 2, 2001, a hearing was held on Mother’s petition and on both of Father’s moti ons. The tria

l court denied both of Father’s motions and grante d Mother’s petition by order entered November 5, 2001. Thereafter, Father f iled his notice of

appeal on December 4, 2001. The parties raise the following issues for our revie w. Issues 1. Did

the trial cou rt err in not setting a hearing date of October 6, 2000 and/or not enterin g a con

tinuance or dismissa

l. 2. Did

the trial court err in allowing orders to be ente redthroughout

this cause with no-3- motions having

been he ard, no a

pparent filing f ees paid and/or a llowing m

otions to be heard on the same day with no not ice thereof, and entering Consent Orders bearing one pers on’s sig nature c onsenting for all parties, thereby denying due process . 3. Did

the trial court err in entering a Rule 37 Orde r agains t a non-party spouse with no notice of service and no representation or contact with the court and using this order against Father; and did the trial cou rt err in refusin g and/o

r failing to find Mother’s attorney in contem

pt as an of

ficer o f the cou

rt for ha ving att este d t o the fact that notice was served. 4. Did

the trial court err in accepting a Consent Order for the joinder of the pat ernal grand parents in this cau se without the knowl edge o

r consen t of the pa

rties. 5. Did

the trial court err in deny

ing Father proper n otice of

Mother’ s motion to di smiss and oth er re li ef , t hu s e ff ec ti ve ly d en yin g d ue pr oc es s a s i s g ua ra nt ee d b y t h e Fourteenth Amendment of the United States Constitution.
6. Did the trial court err on August 1, 2001 in dismissing Father’ s petition.
7. Did

the trial court er r in dismiss ing Fa

ther’s p etitio n usi ng t he “unclean hands doctrine.” 8. Did the trial court err in setting no visitation for Father.
9. Did the trial court er r in allow ing Mothe

r to move out of state

with minor

child showing no subs tanti al chan ge in circumstances and without having a petition heard to modify the MDA allowing her to move with the minor child. 10. Did

the trial court err

in allowing an attorne

y lie n to be ent

ered in t his cause and with no notice served. 11. Did the trial court err in hearing Mother’ s petition on November 2, 2001. 12. Did

the trial court err

in stopping Father’s cross-examination of witnesses, reg arding contract on marital home and in refusing evidenc e for the same. 13. Did

the trial court err

in awarding Mother attorney f ees and discretionary

costs in the November 2, 2001 order. 14. Did

the trial court err i n entering the November 2, 2001 order on the same day a s hearing nunc pro tunc, afford ing Fa ther no op

portunity to sign sa

id order and to approve as to form andwith insufficient notice of such bein g prese

nted to the

court.-4-

15. Did

the trial co urt err in dismissing Father’s motion to amend findings and make additiona l finding s and for

new tria l. 16. Did

the trial court er r in refu sing Fa

ther’s p roof of h aving p aid child s upport and continued insurance coverage for minor child. 17. Is the either party

entitled to attorney fe es on appeal. Standard of Review
We review the trial cour t’s conclusions of law “under a pure de novo standard of review, according no deference to the conclusions of law made by the lower courts.” Kendrick v. Shoemake , No. E2000-01 318-SC-R11 -CV, 2002 Tenn. L EXIS 489, at *6 (Tenn . Nov. 1, 200 2) (ci ting S. Construct ors, Inc . v. Lo

udon County

Bd. of Educ ., 58 S.W.3d 706, 710 (Tenn. 2001)). With respect to the trial court’s findings of fact, our review is de novo upon the trial court’s record, accompanied by a presumption of correctness unless the prepondera nce of the evidence is otherwise. T EN N
. R. A PP
. P. 13(d). Law and Analysis
We find no me

rit in Father’s first four issues. The record is devoid of any mention or objection by Fathe

r as to these issues at any

time in the trial court. The first time Father raises any of these issues is in his Motion to Amend Findings and Make Additional Findings and Motion for New Trial, which motion was filed after the trial court dismissed his pending motions. Issues not properl y r aised in the tri al court cannot be raised for the first time on appea l. See Lawrence

v. Stanford , 655 S.W.2d 927, 929 (Tenn. 1983). As such, these issues will not be address ed on app eal.
In his next three issues, Father allege s that the t

rial cou rt erre d in dismissi ng his petitions at the Au gu st 1, 20 01 he ar in g. Sp ec if ic al ly, Father alleges that the he was de nied due p

rocess b ecause he was not afforded proper notice of Mother’ s motion to dismiss. Father also argues that the unclean hands doctrine

is in ap pl ic ab le to ca se s i nv ol vi ng ch il d c us to dy, the trial court erred in failing to set visitation, and the trial court erred in allowing Mother to relocate out of state with the minor child. On appeal, Father arg

ues that he was not

given proper notice of Mother’s motion to dismiss. However, Father

didnot properly ra

ise this at the trial court level. As such, Father cannot no w raise this issue on appeal. Father’s four above- mentioned petitions were to be heard on August 1, 2001. On the morning of August 1, Mother filed a mo tion to dismi ss, alleging that Father had pe rpetrated a fraud upon the court. This motion was hand-delivered to Ms. Bar bara McCullough, then-counsel for Father. At no time on August 1 did Father object or ask for a continuance. Father ha d the opportuni ty to and did c

ross-exa mine all M other’s witnesses and Father himself testified. After hearing all the testimony , the tria l court g ranted M other’s motion. The trial cou rt also decline d to extend the order of protection. At the conclusion of his remarks fr om the bench, the trial judge asked the at to rn eys if there was any thing else to be discussed. Mother’s attorney responded that the parties-5-

would attempt to work out

the remaining issues relating to contempt and the other financi al issues. Father’s attorney

then stated “[t]his was the only thing on the plate. Tha nk you, Judge.” The first time there is any mention of a n objection on the gro

unds of ina

dequate notice c ame in Father ’s Motion to

Amend Fi ndings and Ma ke Additio nal Findings and Motion for

New Tria

l, which was filed on September 21, 2001. Father’s objection should have c ome at the hearing on August 1, 2001. Issues not properly raised in the trial court cannot be raised for the first time on appeal. See Lawrence

v. Stanford , 655 S.W.2d 927, 929 (Tenn. 1983). Thus, we will not addr ess this issue. Father next argues that the trial court erred in using the doctr ine of unc lean hands in a chi ld custody dispute. The doctrine of clean hand s as applied to a litigant found to have unclean hands has been describ ed as fol

lows: The principle is general, and is one of the ma xims of the Court, that he who comes into a Court of

Equity asking i ts interpo sit ion in his behalf, must come with clean hand s; and if it appear from the case made by him, or by his adversar

y, that he ha s himself been guilty

of uncon sc ientious, in equitable, or immoral conduct, in and about the same matt

ers whe reof he complain s of his ad

versar y, o r if his cl aim t o reli ef grows outof, or depends upon, or is inseparably connected with his own prior fraud, he will be repelle d at the th

reshold o f the cou

rt. Continental Bankers Life

Ins. Co. v. Simmons , 561 S.W.2d 460, 465 (Tenn. Ct. App. 1977) (citing C.F. Simmons Medicine Co. v. Mansfield Drug Co. , 23 S.W. 165 (Tenn. 1893)). The doctrine of clean ha nds is applied fo r the protection of the court, not the protection of the parties. Inman v. Inman , 1989 WL 122984, at *4 (Tenn. Ct. App. Oct. 18, 1989), rev’d on other grounds , 811 S.W.2d 870 (T enn. 1 991) ( citi ng Pappas v. Pappas , 320 A.2d 809, 811 (1973)). Ge ne ra ll y, litigant s found to h ave unc lean hands will “be repelle d at t he threshold of the cou rt.” Continental Bankers , 561 S.W.2d a t 465 (cita

tions omitte d). I

n proceedings w here th e welfareof a chil d is concerned, however, the protection of the child is the focal point. “‘[U]nclean hands’ does not necessarily repel a petition regarding the welfa re of a child which predominates over any offended dignity

of the court.” Haynes v. Ha ynes , 904 S.W.2d 118, 120 (Tenn. Ct. App. 1995) (citi ng Strube v. Strube , 379 S.W.2d 44, 48 (Tenn. Ct. App. 1963)). The best interest o f the chi ld is the utmost concern. Johnson v. Johnson , No. M2000-00358-COA-R3-CV, 2001 WL980737, at *7 (Tenn. Ct. App. Aug. 28, 2001). This Court h as previ ously stated: that appella nt comes in

to court w ith unclean hands might in some cases be sufficient justification fo r d en yin g a he ar in g t o a pp el la nt . A s w as sa id by M r. Justice C o ok, howeve r, speaking for the Supreme Court in State ex re l. Daugherty

v. Rose , 16 7 T enn. 489, 71 S.W.(2d) 685 , “When such proceedings involve the c us to dy o f children, they are

not decided according to the strict leg al right of the petitioner, but are dependent on the child’s welfare .” Strube , 379 S.W.2d at 48. We find the trial court committed no error in dismissing Father’s petitions-6-

on the grounds of unclean hands. As previously stated, ‘“uncle an hands ” does not necessarily repel a petition regarding the welfar e of a child.” Haynes , 904 S.W.2d at 120 (emphasis added). We find, however, under the facts and circumstances of the present case, that Father’s conduct relates directly to the welfare of the child and this egre gious behavior precludes an awar

d of custo dy t

o him. Thus, we affirm the trial court’s actions with respect to custody of the child.
In his eighth issue, Father argue s that the trial court erred in failing to set visitation. Sp ec if ic al ly, Father alleges that “the trial court and Mothe

r continu e to deny

him visitati on with his son, using the alleged order on Superv ised V isitation . . . as the b asis to thr eaten hi m with arr

est when he tries to see his son.” T his Court is unable to

find any evidenc e in the rec ord that s upports Father ’s argument tha

t he was d

enied vis itation. T

hus, it is not nec essary

for this c ourt to address this issue as F ather is f

ree to f ile a peti tion in the trial court regarding visitation under its continuing jurisdiction. Father next argues that th

e trial court er

red inallowing Mother to relocate with the minor child. Specifically, F ather argues that the p arties sp ent substa ntially equal int ervals o f time with

the child and that the trial court failed to make a best interest determination in a ccordance with Tennessee Code Annotated section 36-6-108(c). We disag ree. We find that in granting Mother’s motion to dismiss and allowing her to move, the trial court made an implicit best interest analysis. The trial court found Father’s conduct in perpetra ting a fraud on the court to be so egregious that there was no set of circumstan ces under wh ich Fath er would prevail

. Father ’s abhor

rent con duct dire ctly

affects the welfare

of the child, which is the paramount concer n. Thus, w e find no e

rror in th e trial c ourt’s a

ctions an d we aff

irm.
In his tenth

issue, Fa ther ar gues tha t the tria l court e rred in allowing an attorney ’s lien to be entered. Specifica lly, Father a s serts tha t he did not

receiv e proper

notice a nd that the

lien was i n violation of the parties’ MDA. We find no merit in Father’s arg ument that he did not receive proper notice as notice was mailed to his last known address. See T ENN
. R. C IV
. P. 5.02. Father argues that Mother sent the notice to an address that he has never lived. Father, however, ha s not substantiated this bare allegation. Ad di ti on al ly, Father argues that the lien wa s in violat ion of th e parties’ MDA, which provided as follow s: It is furthe r agreed that ne

ither pa rty will at any

ti me here after c ontract

any debts, charges or liabilities whatsoever for w hich the other

party or their p roperty or their estate shall or may bec ome liable or answerable, and the parties hereby covenant and agree that they will at all times hereafter keep the other par ty free and harmless from any and a ll debts or liabilities which may herea fter be incurred by

them.
We find no merit in Father’s argument. Acc ording to section four (4) of the MDA, the parties had approxima

tely $90,000 in equity in the marital residenc e. The MDA also providesthat upon t he sale-7-

of the residence, Father

was to re ceive on

e-half of the pr oceeds f rom the sa

le less $5,000 and Mother was to receive one-half plus $5,000. The amount of the attorney ’s lien was $17,921.82 plus fees and expenses incurred to collect that amount. The amount of the lien filed by Mother’s attorn ey wa s such that it would not encroach upon Father’s portion of the equity in the marital residence. Father also argues that

the attorney’ s lien, pursuant to Tennessee Code Annotated sections 25-5-105 and 25-5 -106, should have p revente d the sale

of the marital residence. We likewise find no merit in Father’s argument. Sections 25-5-105 a n d 25-5-106 both conc ern lien s of judg ment. The lien involv ed in the p rese nt case i s a n attorney’s lien, g ranted by Te

nnessee Code Annotated section 23-2-103. Father argues in his eleventh issue that the trial court erred in hearing

Mother’s petition on November

2, 2001. Specifically, F ather asserts that

the trial court er red in div esting h

im of all r ights and title to the marital residence. Father asserts that the c ourt erred in considering the “prejudiced te stimony ” of Mother

and Mr. Whitlock. Fa

ther also cites Walton v. Seawood , 1986 Tenn. App. LEXIS 3458 (Tenn. Ct. App. Dec. 11, 1986), for the proposition that the court lacked the autho rity to divest title from Father and vest title in Mother. Walton , a case i nvolving a suit for partition , is c learly

distin guishable from the case sub judice

. In Walton , the plaintiff, a co-tena nt, filed a complaint for partition by sale. Id . at *1. Following a motion for summary judgment, the trial court ordered that “all right, t itle, and interest ” in the real property

be divested out of

all other co-tenants and vested in one co-tenant. Id . The issue on appeal w as whether the tr ial cour t erred in divestin g title ou

t of all co -tenant s and vesting it in one co-tenant in fee rather than ordering a sale. Id

. This Court reversed the trial court, holding that the plaintiff was entitled to a partition. Id . at *5. In reaching this conc lusion, we

noted tha t a tenan t in common is gene

rally entitled to a partition or a sale for partition. Id . at *4. We a lso noted t

hat cour ts generally have discretion as to the “manner of partition but none as to the fa ct.” Id . at *5. The case at bar arises from a divo rce pro ceedin g, not a suit for partition as in Walton . While the trial cou

rt does no t have the

authority to divest title out of o ne co-te nant an d vest it in another in a suit for partition, see id . at *5 (citations omitted), courts a re perm itted to div est title

from one spouse and ve st ti tle i n the o ther s pouse in di vorce p roceed ings

. See T ENN
. C ODE A NN . § 36-4- 121(3); see also Thompson v. Thompson , 1988 Tenn. App. L EXIS 385, at *1 1 (Tenn. Ct. App. June 20, 1988). Thus, we find no merit in Husband’s argument. Mother argues that the parties were under a court orde r, pursuant to the terms of the MDA and the final divorce decree, to sell the property . Mother maintains that the trial court’s order which divested Father

of his inte

rest in the marit a l home had the same effect as if the trial court ha d compelled Father to sign the contract f or sale to effectuate the sale of the home . We agree. Mother is correct that the parties were re quired, pursuant to the MDA, to sell the pr op er ty. The MDA provided that the parties agreed “ that said real property

shall be placed o n the mar ket to be sold within five (5) ye ars on the date of theentry of the Final Decree of Divorce in this cause.”-8-

Mother filed her pet itio n to co mpel F ather t o sign the real estate contract and for sa le of property on October 12, 2001. The trial court’s order di vesting title fro m the Fat

her had t he same effect as if the trial court had compelled Father’s signa ture. Father also arg ues that th

e trial c ourt’s a

ction modif

ie d the divor ce decree’s division of marital property. We find no mer it in Fathe r’ s argument. The MDA provided that “[w]hen the propert y is sold, Husband will receive one-half ( 1⁄2) from the pr oceeds of said sale, less Five Thousand dollars ($5,000.00). Wife will receive one-half from the proc eeds of said sale, plus Five Thousan d Dollars ($ 5,000.00).” The trial court’s action in divesting title out of Father f or the purpose of proceeding with the sale of the marital residence did not affect the above distribution.
In his twelf

th issue, Father asserts that the trial court erred in stopping his cross-examination of witnesse s r egard

ing the c ontract

on the mar

ital home. We disag

ree. F ather wa s allowed to question witnesse s, includi ng the r eal esta te agent, Tommy

Whitlock. At the con

clusion of the cros sexamination, Father

stated “ Your Hon or, I ’m throug h.” Thus, we find n o merit in Father’ s argum ent. In his thirte enth

issue, Fa ther ar gues tha t the tria l court e rred in awarding Mother her attorney fees and discretionary

costs on November 2, 2001. Specific ally , Fathe r alleg es that the

fees an d costs are excessive, he was given no reasonable opportunity to oppose the request for attorney fees, and that Mother’s request for discretionary costs was not timely. Contrary to Father’s assertion that he was not given a n opportun

ity t o oppose the request for attorney fees, Father had ample op portunity to do so. At no time did Father question Mother reg arding the fees in his cross-examination of her, nor did Father ca ll Mother’s attorne y. Fathe r submitted no affidav its or other proof in opposition to Mother’s request, nor did Father ask for a continuance to do so. At the conclusion of the hearing, the trial court asked Mr. Dulin if he had any proof or wanted to speak about the issues of attorney fees or discr

etionar y c osts. Mr. D ulin’s only response was that he expected proof from Mother because he did not con sid er the a ffidavit s submitted by M other suf ficient. Becau se Mr. Duli n had the opportunity to question the reasona bleness of Mother ’s attorney fees an d chose

notto, we wil l not now e

ntertain his arguments regarding the excessiveness of the fees. Father also argues that purs uant to Rule 54.04(2) of the Tennessee Rules of Civil Procedure, Mother was req uired to f ile and serv e her mot

ion for di scretion ary

costs with

in thirty (30) days a

fter entry of judgment. Father arg

ues that Mother did not

timely file her motion for

discreti onary

costs because she filed said motion on October 12, 2001, which was beyond thirty (30) day s from the entry of judgment, filed August 24, 2001. Mother argues that her

motion to assess c osts was ti mely because it was file d within thi

rty da ys after Father filed a motion for new t rial . Weagree. I

n Ashford v. Benja min , No. 02A01-9311- CV-00243, 1994 Tenn. App. LEXI S 706, at *2 (Tenn. Ct. App. Dec. 6, 1994), the judgment was entered on June 4, 19 93. Alsoon June 4, 1993, the appellees filed a motion for new trial. Id . This motion was denied

by order e

ntered on July 7, 1993. Id . Thereafter, on August 6, 1993, one of the-9-

appellants filed a

motion to assess discretionary costs. Id . On appeal, the appellee arg ued that the appellant’s motion was not timely as it was filed beyond thirty

(30) days f

rom June 4, 1993, the entry of judgment. Id . at *3. Th is Court held that be cause th e appell ant’s moti on for co sts was filed within thirty (30) day s after July 7, the entry date of the orde r denying appellee’s motion for new trial, it was timely pursuant to Rule 54.04(2). Id . at *4-5. Thus, in a ccorda nce with our decision in Ashford , we find Mother’s motion was timely filed. This Court has previously held that “a ttorney fee s are o nly awarde d if provided for by contract, statute, or a recognized ground of equity.” Austin Powder Co. v. Thompson , No. 03A01- 9607-CV-00229, 1996 Tenn. App. LEXI S 805, at *5 (Tenn. Ct. App. Dec. 16 , 1996 ) (cit ing State v. Thomas , 585 S.W.2d 606 (Tenn. 1979)). As Mother poin ts out in her

brief, a trial cou rt is authorized to award attorney fees pursuant to Tennessee Code Annotated section 36-5- 103(c), which providesin pertine

nt part a s follows: The plaintiff spouse may recover from the defendant spouse, and the spouse or other person to whom the custody of the child, or

children, is awarded may recover from the other spouse reasonable attorney fees incurred in enforcing any dec ree for alimony and/or child suppor

t, or in re gard to

an y s uit or action concerning the adjudication of

the custody or the c

hange of custody

of any child, or c

hildren, of the parties, both upon the original divorce hearing a nd at any subsequent he aring, which fees may be fixed and allowed by the cour t, before whom such action or proceeding is pending, in the discretion of such court. T ENN
. C ODE A NN
. § 36-5-103(c). Since we have upheld the issues re garding custody of the child, we also uphold the award of attorney fees. Mother also asserts that she is entitled, pursuant to the parties’ MDA, to the attorney fees she incurred in filing the petition to compel Father’s signature on the sale con

tract to e ffectu ate the s ale of the marital residence. Mother arg ues that she was forced to file t his petition due to Father’s repeated refusa l to comply

with the te

rms of the MDA. Paragraph sixteen (16) of the parties’ MDA provides as f ol lo ws: “En for cem ent . In the event it b ecomes r easonab ly necessa

ry for eithe r party to institute legal p roceed ings to pr ocure th e enfor cement o f any

provision

of this A g reement, if the party prevail, he or she shall also be entitled to a jud gment for rea sonable expenses, including attorney fees, incurred in prosecuting the a ction.” In accor

dance with the MDA, Mother is entitled to the attorney f

ees she incurred in enforcing the MDA in relation to the property issues. Thus, we affirm the trial court’s award of attorney fees that were grante d based on the enforcement provision in the MDA.
In his ne xtissue, Father argues that the trial c ourt erred in enteringthe order from November 2, 2001 nunc

pro tunc, afford

ing him no

opportuni

ty to sign the order a nd to appr

ove it as to

form. Specifically, F ather argues that this order was not ente redin compliance with Rule 58 and as such is void. We disagree. Father cites the case of Yearou t v. Trusty

, 684 S.W.2d 612 (Tenn. 1984), in support of his argument. The holding of that case, however, wa s changed by the 1993 amendment to Rule 58. See T ENN
. R. C IV
. P. 58, advisory commission comments. Pursuant to Rule 58(2) of the-10-

Tennessee Rules of Civil Procedure, Entry of a judgment or a

n order o f final di sposi tion is effe ctive when a judgment containing one of the

following

is marked on the face by

the clerk as fi le d f or en tr y:

. . . (2) the signatures of the judge a nd one party

or counse

l with a ce rtifica te of counsel that a co py o f the pro

posed ord er has been serve d on all oth er part ies or counsel. T ENN
. R. C IV
. P. 58. The purpose of Rule 58 is to

“insure that a party

is aware of the existence of a final, appealable judgment in a lawsuit in which he is i nvolved.” Masters ex rel. Masters v. Rishton , 863 S.W.2d 70 2, 705 (Te nn. Ct. App . 1992). T

he order at issue w as signed by the trial judge and Mother’s counsel onNovember 5, 2001 with a certificate of service stating tha t a copy wa s mailed to Father . Thus, we find that Father r

eceive d suffic ient notic e that a f inal, app ealable judgment had been entered in the cause

. In his fifteenth issue, Father asserts that the trial court err ed in dismis sing his m

otion to amend findings and make additional findings and for a new trial. Father alleges that the trialcourt summarily

dismissed h

is motions without pro viding him the op portunity to state his cause and present evidence. Father

also note s that the t

rial cou rt did not provid

e any reasonsfor the d

ismissal. Rule 52.02 provides in pertinent part: “[u]pon motion of a p ar ty m ad e n ot la te r t ha n 3 0 d ays after entry of judgment the court may amend its findings or makeadditional findings and may amend the judgment accordingly .” T ENN
. R. C IV
. P. 52.02. The decision of whether to grant a motion for additional findings made pursuant to Rule 52.02 is within the sound discretion o f the tria l court. Long Equipment Co., Inc. v. Keeton , 736 S.W.2d 611, 614 ( Tenn. Ct. A pp. 19 87). T he lan guage of the rule itself

providesthat the tr

ial cour t may make additional findings. Id .; see also T ENN
. R. C IV
. P. 52.02. From the record before us, we ca nnot say that the tr

ial cour t abused its discre

tion in refusing to grant Fathe

r’s motion for additional findings. See id

. Motions for new trial are likewise reviewe d under the abuse of discretion standard. Russom v. McClore , No. W1999-02215-COA-R3-CV, 2000 Tenn. Ap p. LEXIS 314, *6 (Tenn. Ct. App. May 10, 2000) (citations omitted). Under this standard, Father must show th at the tri al court abused it s di scretion in re fusing to grant his motion for new trial. See id. After a thorough review of the record, we find that the trial court did not abuse its discretion with respect to any of Father’s contenti ons. Father

also alleges that the trial court erred in not providing a reason behind its decision to deny his motion. We find no merit in this assertion. I t has bee n held th at the trial court’s discreti on is such t

hat it is not required to give a reason for its ruling. Mize v. Skeen , 468 S.W.2d 733, 736 (Tenn. Ct. App. 1971).
In his sixteenth i s sue, Fa

ther ass erts that

the trial court er red in re fusing t o allow F ather to present proof of having paid child support and insurance coverage for minor child. Mother a rgues that the trial court reserved the issues relating to her contempt petition, so the trial court did not need to hear proof on these issues. We agree . The court decided to “reser ve the pe tition for contempt ” because Father had not de

monstrate d his abilit

y to really protect and

represent himself. We find no-11-

error in the trial court’s actions. Both parti es have requested that this Court order the respec tive opposing party

to pay the other’s attorney fees incurred for this appeal. Our supreme c ourt has defined the factors that should be applie d when co nsiderin g a req uest for attorne y f ees incu rred on a ppeal. These factors include the ability of the reque sting party to pa y the acc rued fees, the requesting par ty’s successin the app eal, whether the requesting party soug

ht the appeal in good faith, and any other equitable factor that need be considered. See Folk v. F olk , 357 S.W.2d 828, 829 (Tenn. 1962). We f ind it equit

able todecline to award either party

the attorney f

ees incurred for this appeal.
As a final matter, Father arg ues that it has come his at te ntion that the final divorce decree entered in 1998 was void for reasons relating to service. We find no merit in Father’s arg ument.

Conclusion
Ac co rd in gl y, we affirm. Costs on appeal taxed to the Appellant, Michael JayDulin, an d his su re ty, fo r w hi ch ex ec ut io n m ay i ss ue s i f n ec es sa ry.

___________________________________ ALAN E. HI

GHERS, JUDGE