IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

September 21, 2011 Session

WHITNEY MARIE MACRAE v. THOMAS PAUL MACRAE

Appeal from the Fourth Circuit Court for Knox County

No. 112043 Bill Swann, Judge

No. E2011-00023-COA-R3-CV-FILED-OCTOBER 26, 2011

The trial court granted Whitney Marie MacRae (“Wife”) a divorce by default against Thomas

Paul MacRae (“Husband”). The default was based upon Husband’s failure to comply with

an order compelling him to respond to Wife’s discovery requests. Shortly after Wife

remarried – which was nearly a year after the divorce judgment was entered – Husband filed

a motion pursuant to Tenn. R. Civ. P. 60.02 to set aside the judgment. The trial court denied

the motion. Husband appeals from that denial. Wife argues that the judgment should not be

set aside; she seeks damages for a frivolous appeal. We affirm the judgment of the trial

court. We also find the appeal to be frivolous and remand to the trial court for a

determination of the damages due Wife pursuant to the provisions of Tenn. Code Ann. § 27-

1-122 (2000).

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Fourth Circuit Court

Affirmed; Case Remanded

CHARLES D. SUSANO, JR., J., delivered the opinion of the Court, in which D. MICHAEL

SWINEY and JOHN W. MCCLARTY, J.J, joined.

Brett D. Stokes, Knoxville, Tennessee, for the appellant, Thomas Paul MacRae.

Shelley S. Breeding,David L. Dothard, and Allison Starnes-Anglea, Knoxville, Tennessee,

for the appellee, Whitney Marie MacRae.
OPINION

I.

On October 6, 2008, Wife filed this action seeking a divorce from Husband. Husband

answered on or about January 30, 2009, and included a counterclaim for divorce. On March

4, 2009, Wife filed a motion for entry of a parenting plan that allowed Husband only

supervised visitation with the parties’ minor son. The factual basis for her motion was that

Husband had been charged with 50 counts of child pornography and pleaded guilty to at least

one count of possession of child pornography. She supported her motion with an affidavit

that stated Husband had not exercised any visitation with the child since the parties had

separated approximately nine months earlier. The separation occurred when the child

pornography charges came to light. During the time the divorce proceedings were pending,

Husband lived in Las Vegas and Wife lived in Knoxville.

On June 2, 2009, Husband’s counsel filed a motion to withdraw asserting that

Husband had not complied with his retainer agreement. The court entered an order on June

22, 2009, granting the motion. The order did not stay the proceedings or establish any

deadlines other than requiring Husband to “obtain substitute surety to prosecute this action

within 30 days.”

In the meantime, on or aboutJune 12, 2009, Wife filed a motion to compel discovery.

1

Her motion asserted that her interrogatories and request for production of documents served

on April 1, 2009, had not been answered. Husband later served a “response” to the request

for production of documents by stating, with respect to almost every request, “[Wife] has all

documents.” Husband occasionally varied the response, but only in form not in substance.

Husband provided no documents. Furthermore, Husband provided no answers to the

interrogatories.

The court heard Wife’s motion on July 1, 2009, and entered an order granting the

motion on July 2, 2009. The order states, in pertinent part:

After hearing argument of [Wife’s] counsel and review of the

entire record in this matter, the Court found such Motion to be

well-taken and ordered that [Husband] answer [Wife’s]

Interrogatories and Request for Production of Documents no

later than July 15, 2009. The Court also found that if [Husband]

This motion is not in the technical record; however, there is no question as to whether it was filed. 1

The record is replete with references to the motion and its contents.

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fails to comply, [Wife] may move for default on July 15, 2009

under Tenn. Rules of Civil Proc. 37 and Tenn. Rules of Civil

Proc. 55.

The date of July 15, 2009, came and went without Husband supplying the discovery

ordered. Wife did not “file” a motion for default; however, the clerk of the trial court did

serve notice on all parties and counsel, including Husband, of a hearing to be held July 15,

2009, on an otherwise undescribed “motion.”

On July 15, 2009, the court proceeded to take proof from Wife in the absence of

Husband. No attorney appeared on his behalf. The trial court granted Wife a divorce on the

ground of Husband’s inappropriate marital conduct. The court ordered Husband to pay Wife

her attorney’s fees of $1,000 in addition to a $750 attorney’s fees assessed against Husband

on the motion to compel. The court awarded the marital residence to Wife and made

Husband responsible for the mortgage debt in addition to credit card debt. The court changed

the child’s last name to Wife’s maiden name. It adopted a parenting plan which required

Husband to pay child support of $779 per month and allowed him two hours of supervised

visitation per week. The court explained its reasons for granting judgment by default as

follows:

[Wife] propounded Interrogatories and Request for Production

of Documents to [Husband] on April 1, 2009.

[Husband’s] counsel withdrew as counsel of record in June 2009

due to [Husband’s] failure to pay for legal services. Shortly

after [Husband’s] counsel withdrew, he contacted [Wife’s]

counsel and requested an electronic copy of the Interrogatories

and Request for Production of Documents so that he could

forward the same to [Husband].

[T]he Court granted an Order on July 1, 2009 for [Husband] to

produce such discovery responses on or before July 15, 2009.

. . .

[Husband] requested the discovery documents; however, as of

9:00 a.m. on July 15, 200[9], he failed to respond to the

[discovery requests].

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[Husband’s] willful failure to supply answers to the [discovery]

has made it impossible for [Wife’s] counsel to move forward on

this matter.

[Husband] has failed to otherwise defend and thus has attempted

to prolong this litigation by imposing procedural delays, to the

prejudice of [Wife’s] rights.

* * *

[Husband] was convicted in Las Vegas, Nevada of Possession

of Sex Pictures of [a] Minor, a felony offense.

[Husband] served time in a Nevada prison as part of his

sentencing for the felony conviction.

[Husband] has been incarcerated at least three (3) times during

these divorce proceedings for violating his parole.

(Paragraph numbering and repetitive introductory word “that” omitted.)

Wife remarried on June 21, 2010. On July 7, 2010, Husband, by new counsel, filed

a motion pursuant to Tenn. R. Civ. P. 60.02 for relief from the divorce judgment. The

motion is not absolutely clear as to the grounds Husband relies upon; it can arguably be read

to assert that (1) Husband’s “failure” to respond was excusable as he tried to respond to

discovery in a timely fashion but Wife’s counsel inexplicably rejected, on at least one

occasion, mail that contained the responses; (2) a second mailing was not returned –

therefore Wife’s representation to the court that Husband did not respond at all was

fraudulent; and (3) the property and distribution of debts was extremely inequitable and the

parenting plan was so onerous as to require relief. Wife responded that her counsel did

indeed receive Husband’s response to the request for production and that she had made the

court aware of the same but the responses were so lacking in substance that they were the

same as receiving no response. Wife also filed numerous affidavits to the effect that her

counsel’s office had not rejected any mailings. Wife also asserted that Husband’s criminal

activities and related activities for which he was not charged, which included forging Wife’s

name to credit card charges, and his failure to maintain a relationship with the child

effectively defeats his claim that he is the victim of an inequitable judgment.

Husband appeared at the Rule 60.02 motion hearing with counsel. Although he was

cautioned once by the court to “[b]e careful,” the hearing transcript does not reflect Husband

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being restrained in any manner. On December 1, 2010, the court entered an order denying

Husband’s motion. The order states in pertinent part:

. . . [C]ontrary to [the suggestion of] [Husband’s] counsel . . . ,

the Court finds that the Order to Withdraw as Counsel did not

allow [Husband] a “safe haven of thirty (30) days within which

to do something with regard to discovery.”

Furthermore, the Court finds that [Husband] was notified of and

bound by the terms of the Court’s July 2, 2009 Order or default

would be applied.

On July 2, 2009, the Court ordered that [Husband] was to

produce his responses to [Wife’s] discovery no later than July

15, 2009. The Court’s Order stated that if [Husband] failed to

comply, the [Wife] would be able to move for a default

judgment against [Husband] on July 15, 2009 pursuant to Rules

37 and 55 of Tenn. R. Civ. P.

On July 15, 2009, [Wife] moved for default and the Court was

careful and cautious in entering the default judgment. The

Court reviewed the record as a whole and reviewed [Husband’s]

responses to discovery which were provided to the Court by

[Wife’s] Counsel. The Court found such responses to be utterly

and completely inadequate.

The Court finds that “ask Whitney” [found in Husband’s

response] is not an acceptable response to discovery; [Husband]

never responded to the Requests to Admit or Interrogatories.

Furthermore, it is this Court’s opinion, that the “ask Whitney”

notations and certain others in [Husband’s] discovery responses

are utterly unacceptable and insufficient responses.

Another issue raised by [Husband] relates to the mailing of the

responses and the Court finds it inexplicable why the mailing

was not received by [Wife’s] counsel.

Nevertheless, [Wife’s] counsel received a copy of the same and

had such available for the Court’s review at the July 15, 2009

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hearing. Upon review at the July 15, 2009 hearing, the Court

found such to be utterly insufficient.

(Paragraph numbering in original omitted.)

II.

Husband, by his third counsel, timely filed a notice of appeal from the order denying

the Rule 60.02 motion. He raises numerous issues which we have restated liberally to

correspond to the substance of the arguments advanced by him:

Whether the judgment was obtained by fraudulent

misrepresentations of Wife’s counsel that she had received no

responses to discovery knowing full well that Husband had

provided responses, albeit inadequate.

Whether the lack of a motion to compel and an order on the

motion to compel in the technical record render the resulting

judgment void.

Whether Husband was given adequate notice that a default

judgment against him was being considered on July 15, 2009.

Whether Husband was unduly prejudiced at the hearing on his

motion for relief from the judgment by being forced to

participate in handcuffs.

Whether the judgment should have been set aside simply as

inequitable and overly onerous.

Wife raises the issue of whether Husband waived some or all of these issues by his failure

to raise them in the trial court and whether we should award her attorney’s fees and expenses

pursuant to Tenn. Code Ann. § 27-1-122 due to the frivolous nature of Husband’s appeal.

III.

Our standard for reviewing a trial court’s order disposing of a Tenn. R. Civ. P. 60.02

motion is as stated in Henry v. Goins, 104 S.W.3d 475 (Tenn. 2003):

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In reviewing a trial court’s decision to grant or deny relief

pursuant to Rule 60.02, we give great deference to the trial

court. Consequently, we will not set aside the trial court’s ruling

unless the trial court has abused its discretion. An abuse of

discretion is found only when a trial court has applied an

incorrect legal standard, or reached a decision which is against

logic or reasoning that caused an injustice to the party

complaining. The abuse of discretion standard does not permit

an appellate court to merely substitute its judgment for that of

the trial court.

Id. at 479 (citations and quotation marks in original omitted).

The grounds for granting relief from a final judgment are stated in Tenn. R. Civ. P.

60.02 as follows:

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: (1) mistake,

inadvertence, surprise or excusable neglect; (2) fraud (whether

h e r e to f o r e den omina ted intrinsic or extrinsic ),

misrepresentation, or other misconduct of an adverse party; (3)

the judgment is void; (4) the judgment has been satisfied,

released or discharged, or a prior judgment upon which it is

based has been reversed or otherwise vacated, or it is no longer

equitable that a judgment should have prospective application;

or (5) any other reason justifying relief from the operation of the

judgment. 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.

It is against these rule provisions that we must compare Husband’s motion to determine

whether the trial court abused its discretion.

IV.

The substance of Husband’s first argument is that he mailed his discovery responses

to Wife’s counsel; therefore, according to him, he complied with the order and Wife obtained

the judgment by misrepresentation. This argument completely overlooks the fact that Wife’s

counsel made the court aware thatshe had received something that purported to be responses,

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which responses the court found to be “utterly insufficient.” The “responses” were not

signed. They were just handwritten notes suggesting that Wife had all the documents,

therefore Wife should not be asking him for them. The argument also overlooks the fact that

Husband’s “responses,” even if they qualify to be called responses, ignore the interrogatories

altogether. Husband’s counsel at the Rule 60.02 hearing did not “dispute that his discovery

was not complete.” We hold that the trial court did not abuse its discretion in refusing to

grant relief from the judgment; the judgment was justified because of Husband’s woefully

inadequate “responses” to Wife’s discovery. Wife did not obtain the judgment by

misrepresentation. We further hold that this argument by Husband is utterly without merit.

Husband’s next argument, construed liberally in his favor, is that there was never a

motion to compel or an order compelling Husband to respond to discovery because neither

the motion nor the order is in the technical record. It is true that the technical record, as

originally filed with the appellate court clerk, did not contain either the motion or order.

However, we ordered that the technical record be supplemented to include the order on the

motion to compel. That has now been done. We have quoted excerpts from that July 2, 2009

order. Had we thought the motion was necessary to an understanding of the issues, or that

there was a reasonable question as to whether a motion to compel was ever filed, we would

have ordered that the supplement include the motion. See Tenn. R. App. P. 24. There

appears to be no question regarding whether the motion was filed. We also note that this

issue was not raised in the Rule 60.02 motion or at the hearing on the motion. We therefore

hold that there was no abuse of discretion in refusing to set the judgment aside for lack of an

underlying motion to compel and order compelling discovery. This argument is also

completely lacking in merit.

Husband’s next argument is that he did not have notice that a judgment by default

might be entered against him. Wife points out in her brief that many of the issues Husband

raises on appeal were not raised in the trial court. At oral argument before us, Wife’s counsel

specifically argued that Husband did not raise lack of notice as a basis for relief in the trial

court. We have reviewed Husband’s Rule 60.02 motion and the transcript of the hearing on

the motion and find no mention of lack of notice. It is well settled that a party waives an

issue on appeal that was not first raised at trial. Powell v. Community Health Systems, Inc.,

312 S.W.3d 496, 511 (Tenn. 2010); Black v. Blount, 938 S.W.2d 394, 403 (Tenn. 1996).

Accordingly, this issue was waived.

Alternatively, we hold that Husband received adequate notice that hisfailure to supply

meaningful responses to Wife’s discovery by July 15, 2009, would subject him to judgment

by default. He knew that he had been served with multiple forms of written discovery to

which he had provided no meaningful responses. He also knew the trial court had entered

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an order which gave him until no later than July 15, 2009, to provide meaningful responses.

There is no contention to the contrary. In the order entered July 2, 2009, the court

ordered that [Husband] answer [Wife’s] Interrogatories and

Request for Production of Documents no later than July 15,

2009. The [c]ourt also found that if [Husband] fails to comply,

[Wife] may move for default on July 15, 2009 under Tenn.

Rules of Civil Proc. 37 and Tenn. Rules of Civil Proc. 55.

Because of some confusion in the record as originally transmitted to us as to whether Wife

had filed a formal written motion for default and whether Husband received notice of the

hearing held July 15, 2009, we ordered that the record be supplemented with (1) the Order

entered July 2, 2009; (2) any notice of a hearing to be held on July 15, 2009; and (3) any

motion for default filed by Wife or the trial court clerk’s certification that no such motion

was filed. The clerk of the trial court has now certified to this court that Wife “has not filed

a motion for default in this case.” However, it has also been certified that “the trial court

clerk mailed notices to each party and their counsel of record on July 2, 2009, for a hearing

scheduled for July 15, 2009.” (Emphasis added). The notice specifies that the “case is set

for MOTION at 09:00AM on Wednesday, 7/15/2009.” (Capitalization in original;

underlining in original omitted). Although the order of July 2, 2009, and the notice could

have been clearer, we believe Husband was on notice that on July 15, 2009, the court would

take up the matter of whether or not he complied with the July 2, 2009, order, and, if not, the

consequences of that failure. Husband was also on notice that those consequences could

include a judgment by default. Therefore, we hold that Husband is not entitled to relief from

the judgment for lack of notice that the court would determine on July 15, 2009, whether he

should be held in default.

Again, as with the other arguments, Husband’s argument that he did not receive notice

that he could be held in default for failing to supply responsive material to Wife’s discovery

requests is without merit. This is especially true given his failure to raise the issue with the

trial court.

Husband argues he was unduly prejudiced by being handcuffed and placed under

arrest at the hearing on his Rule 60.02 motion. We note that there is no factual basis for this

argument in the technical record. Husband’s former counsel has signed an affidavit, which

his counsel on appeal has supplied to this Court as part of an “Appendix.” The affidavit has

not been made part of the record. Even if we look beyond the lack of a factual basis for

Husband’s contention, his argument persuades us of nothing. He seems to suggest that Wife

has now married a law enforcement officer and that we should infer her law enforcement

spouse persuaded the bailiff to wrongfully arrest Husband. Even if we take a leap of faith

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and assume that, through some vindictive desire, Wife or her counsel wrongfully persuaded

the bailiff to arrest and handcuff Husband, there is no explanation in Husband’s brief as to

how that fact alone impacted the court’s denial of his Rule 60.02 motion. We will not

presume wrongdoing on the part of the trial judge and other public officials. There is no

merit in this argument.

Husband’s final argument is that the allocation of all major debts to him with

practically none of the assets and hisrestricted parenting time make the judgment inequitable.

Husband’s argument on this point, in toto, is that the judgment “is inequitable pursuant to the

legal principles pronounced by Beason v. Beason, 120 S.W.3d 833 (Tenn. Ct. App. 200[3])

and is also oppressive and onerous pursuant to the legal principles pronounced in Killion v.

TN Dept. Of Human Services, 845 S.W.2d 212 (Tenn. 1992).” Husband misses the point

of both cases. In Beason, we found that the trial court’s discretion in granting relief pursuant

to Tenn. R. Civ. P. 60 should not be disturbed because, even if we did not necessarily agree

with the result, we could not say that the trial court had abused its discretion. Id. at 840. One

significant difference between the present case and Beason is that Husband offered no proof

in support of his post-judgment motion whereas the trial court in Beason was presented with

proof, including oral testimony, that supported the request for relief. Id. In Killion, the

Supreme Court reversed this Court’s determination that a biological mother’s request for

revocation of her surrender of a child three years after the surrender could, depending upon

the best interest of the child, possibly justify relief pursuant to Tenn. R. Civ. P. 60.02(5). 845

S.W.2d at 213. Subpart (5) of Rule 60.02 “allows relief for ‘any other reason justifying relief

from the operation of the judgment.’ ” Id. In the end, the Rule 60 motion in Killion did not

justify disturbing the judgment. The same is true in the present case. Husband did not appeal

the divorce judgment. It was his burden to show that he was entitled to relief under Tenn.

R. Civ. P. 60.02. Beason, 120 S.W.3d at 840. Rule 60.02 is an escape valve that should not

be easily opened. Killion, 845 S.W.2d at 213-14. Husband put on no proof to convince

either the trial court or this Court that the judgment was so inequitable as to warrant the

vacating of same. Wife argues that Husband’s abuse of credit cards, which included forgery

of her name, and his failure to maintain a relationship with his child justify the judgment.

We have no proof to the contrary. We hold that the trial court did not abuse its discretion in

refusing to relieve Husband of the judgment that he now contends was inequitable and

oppressive. We further hold that there is absolutely no merit to Husband’s argument.

V.

We turn now to Wife’s request that we award her attorney’s fees for defending a

frivolous appeal. Courts are authorized by Tenn. Code Ann. § 27-1-122 to award “just

damages” including fees and expenses to a party forced to respond to a frivolous appeal:

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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.

Id. “A frivolous appeal is one that is ‘devoid of merit,’ or one in which there is little

prospect that it can ever succeed.” Industrial Dev. Bd. of Tullahoma v. Hancock, 901

S.W.2d 382, 385 (Tenn. Ct. App. 1995) (citation omitted) (quoting Combustion Eng'g, Inc.

v. Kennedy, 562 S.W.2d 202, 205 (Tenn. 1978)). “Parties should not be forced to bear the

cost and vexation of baseless appeals.” Young v. Barrow, 130 S.W.3d 59, 66 (Tenn. Ct.

App. 2003). As we worked through the issues raised by Husband, we found that each is

devoid of merit. Accordingly, we hold that Wife is entitled to receive an award of damages

under the statute for defending a meritless appeal. The amount of Wife’s damages will be

determined by the trial court on remand.

VI.

The judgment of the trial court is affirmed. Costs on appeal are taxed to the appellant,

Thomas Paul MacRae. This case is remanded, pursuant to applicable law, for a

determination of Wife’s damages in defending this frivolous appeal.

_______________________________

CHARLES D. SUSANO, JR., JUDGE

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