FILED

May 3, 1996

Cecil W. Crowson

Appellate Court Clerk

JULIUS MICHAEL HARRIS, )

)

Plaintiff/Appellant, )

) Williamson Circuit

) No. 92421

VS. )

) Appeal No.

) 01-A-01-9511-CV-00518

SUZANNE ZULIEME HARRIS, )

)

Defendant/Appellee. )

IN THE COURT OF APPEALS OF TENNESSEE

MIDDLE SECTION AT NASHVILLE

APPEAL FROM THE CIRCUIT COURT OF WILLIAMSON COUNTY

AT FRANKLIN, TENNESSEE

HONORABLE LEE OFMAN, SPECIAL JUDGE

THOMAS F. BLOOM

500 Church Street

Fifth Floor

Nashville, Tennessee 37219

ATTORNEY FOR PLAINTIFF/APPELLANT

E. COVINGTON JOHNSTON, JR.

P.O. Box 1608

Franklin, Tennessee 37065

ATTORNEY FOR DEFENDANT/APPELLEE

MODIFIED, AFFIRMED AND REMANDED

HENRY F. TODD

PRESIDING JUDGE, MIDDLE SECTION

CONCUR:

BEN H. CANTRELL, JUDGE

WILLIAM C. KOCH, JR., JUDGE
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JULIUS MICHAEL HARRIS, )

 )

Plaintiff/Appellant, )

 ) Williamson Circuit

 ) No. 92421

VS. )

 ) Appeal No.

 ) 01-A-01-9511-CV-00518

SUZANNE ZULIEME HARRIS, )

 ) 

Defendant/Appellee. )

O P I N I O N

The plaintiff/ex-husband has appealed from the dismissal of his post-divorce decree

petition seeking relief from child support and change of custody.

The record does not reflect when these parties originally married. However, it does

appear that their first child, Jonathan, was born July 24, 1983. The parties were divorced in

1986 and remarried on December 18, 1987. A second child, Hamilton, was born on

November 29, 1988. On February 5, 1993, the parties were again divorced by a decree which

appears in this record.

The latter, 1993, decree adopted a marital dissolution agreement providing:

1. Husband and wife agree to share the joint legal custody of

the minor children of the parties, Jonathan Michael Harris and

Hamilton Carter Harris, and they agree to participate jointly in

the formulation of major parental decisions regarding said

minor children. The partes further agree that wife shall be

permitted to individually retain the primary physical custody

and control of said minor children and husband shall have

reasonable visitation with said minor children, including

privileges on three (3) weekends per month from

approximately 6:00 p.m. on Friday evening until approximately

12:00 p.m. on Sunday evenings; privileges during three (3)

weeks during the summer vacation period, said such privileges

to be established by agreement of the parties in sufficient time

to allow each of the parties to plan their vacations accordingly;

privileges for one-half (1⁄2) of any long vacation periods; and

privileges on Easter Day, Memorial Day, July 4th, Labor Day

and Thanksgiving Day on an alternating basis from year [to

year]; as well as privileges at such other times as may be

mutually agreed upon.
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2. Commencing upon the execution of this Marital Dissolution

Agreement, husband agrees to pay to wife the sum of $580.00

per month as child support for the minor children of the parties.

. . .

3. As additional child support, husband agrees that he will

maintain major medical and hospitalization insurance on behalf

of the minor children of the parties until each child attains

majority or marries, whichever event occurs first. . . .

On April 11, 1994, the husband initiated the present proceeding by filing a “Petition

to Modify” wherein he alleged:

. . . 2. That during the parties first marriage, on July 24, 1983,

respondent gave birth to Jonathan Michael Harris, whom respondent

represented to be the natural child of the petitioner.

3. That the parties separated in June, 1992. Pursuant to a

mutual agreement, and based upon affirmative

misrepresentations as to the true paternity of the minor child,

from June, 1992, through March 15, 1994, the petitioner paid

to the respondent the monthly sum of $580.00 per month as

child support for the parties two (2) minor children.

. . . 4. During the course of the divorce proceeding, the

respondent affirmatively and fraudulently misrepresented to

both the petitioner and the Court that the minor child, Jonathan

Michael Harris, was the natural child of the petitioner. . . .

5. That in February, 1994, petitioner subjected himself and the

parties’ oldest child, Jonathan Michael Harris, to DNA tests to

establish the true paternity of the child. The results of said

DNA tests established that petitioner is excluded as the

biological father of the child, Jonathan Michael Harris, by

DNA probe technology.

The petition prayed:

2. That at a hearing of this cause, the Final Decree of Divorce

be altered or otherwise modified pursuant to Rule 60.02,

Tennessee Rules of Civil Procedure, to strike therefrom any

and all provisions requiring the respondent to contribute in any

manner, financially or otherwise, to the support and

maintenance of the minor child, Jonathan Michael Harris.

The wife answered denying any misrepresentation of the parentage of Jonathan and

asserting her belief that the petitioner was his father. The answer further denied that there

was any legal basis for modifying child support, and asserted that the time for retroactive
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modification had passed and that retroactive modification would not be for the best interest of

the child.

By counter-petition, as amended, the wife asserted that the husband had reduced child

support payments without authorization; had failed to exercise visitation as authorized; and

had failed to provide health care insurance ordered. The counter-petition prayed for

enforcement of arrears support and insurance requirements by judgment and contempt, and

for sole custody and control of both children.

On October 25, 1994, the parties filed the following stipulation:

 It is hereby stipulated by and between counsel for the

respective parties that the written report of the DNA test results

by Genetic Design, Inc., concerning the paternity of Jonathan

Michael Harris is admissible without the need for any

foundation, testimony or other proof of the authenticity.

On November 7, 1994, the husband filed a response to the wife’s counter-petition and

an “Amended Petition to Modify or Set Aside” alleging that the wife shared a residence with

her boyfriend, had neglected the cleanliness and health of the children, and had permitted her

boyfriend to corporally punish the children.

The wife’s answer asserted that her residence facilities were adequate and denied

abuse of the children by her boyfriend.

On November 22, 1994, the Trial Judge heard the cause without a jury. On June 14,

1995, the Trial Judge entered an order containing the following:

. . . [T]he Court finds that the child born during marriage

presumption continues and has continued through two (2)

divorce cases involving these parties; that the DNA test itself

was not put into evidence and that the petitioner’s opinion of

the test is not creditable; that no fraud was committed on the

part of respondent, hereinafter referred to as Ms. Harris, . . .

[T]hat no proof was shown that change of custody is warranted;

that the proof shows Ms. Harris to be a good mother; that the

Court feels the two (2) children should remain together and
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custody should remain as it was with the parties having joint

custody of the minor children; that the parties should work

together in the best interests of the two (2) children; that Mr.

Harris should pay the child support arrearage owing; . . . 1. A

directed verdict is hereby granted on the issue of modification

of the previous final order entered in this cause . . . . 2. Mr.

Harris’ petition for change of custody of the parties’ youngest

child is hereby denied. 3. Custody of the parties’ two (2)

minor children shall remain as it was with the parties having

joint custody of the minor children. 4. Mrs. Harris is hereby

awarded judgment against Mr. Harris for the child support

existing in arrears and Mr. Harris should continue paying child

support as previously ordered.

On July 14, 1995, the petitioner-husband moved to alter or amend or grant a new trial

on the following grounds:

I. The Trial Court erred in failing to allow petitioner to reopen

his proof based upon the Court’s misunderstanding that it was

without authority to do so after a motion for directed verdict

had been made by respondent.

II. The Trial Court erred in applying T.C.A. §36-2-207 and

finding that the presumption of legitimacy continued pursuant

to said section.

On the same date, the Trial Clerk again filed the above quoted stipulation.

Following the stipulation filed on July 14, 1995 in the technical record is a laboratory

report which is not marked filed or made an exhibit to the stipulation. There is no evidence

that the stipulation or the report was presented to the Trial Court during the trial on

November 22, 1994. 

The transcript contains the following discussion:

Mr. Young: Yes sir, to deny a modification of the 1993 order. 

There is no proof in this record to justify that, if it please the

Court, at this point in time.

The Court: So you’re asking for a directed verdict on denying

change of custody and modification of the February ‘93 order?

. . . .

The Court: Would you address those issues?
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Mr. Brent: Yes, sir, I’d like to.

. . . .

As far as there being no basis for a modification, we submitted

the deposition of a Ph.D. wherein she determines that it’s

biologically impossible for this man to be the father of the

child.

The Court: Is that in this Court?

Mr. Brent: Yes, Your Honor, it’s right there.

The Court: That wasn’t put into the proof, was it?

Mr. Brent: It was submitted for the Court; it’s in the record. 

We have stipulated to the test.

The Court: Well, you stipulated to the test, but did you stipulate

--

Mr. Young: We did not stipulate to the admissibility, if it

please the Court; it hasn’t been put in the proof.

Mr. Brent: It’s been filed -- the notice of filing was sent to Mr.

Young as part of the record.

The Court: Well, I know it’s been filed, but --

Mr. Young: It’s filed with the clerk, but it’s not part of the

record.

The Court: You haven’t put it into evidence, have you?

Mr. Young: And closed his proof.

Mr. Brent: Well, if it’s the Court’s position that the filing of

that and the notice to the other party, that it was filed with the

Court to be considered by the Court is not part of the proof,

then I would move the Court to open my proof.

The Court: Wait, wait, wait. Now, you correct me if I’m

wrong, but the filing of documents doesn’t constitute

admissibility of evidence; does it --

Mr. Young: No, sir.

The Court: -- Mr. Brent; I mean, do you agree with that?

Mr. Brent: Well, it was filed with the Court for the purposes of

being admitted and Mr. Young was put on notice.

The Court: But you didn’t admit it.

Mr. Brent: Well, if that be the case, then I would respectfully

move the Court to reopen my proof to admit it.
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The Court: Well now, we have got a directed verdict you’re

faced with and I can’t reopen the proof now that he’s raised it. 

I would have done that gladly prior to that.

Mr. Brent: That’s okay, I’ll back up then. We have stipulated

to the admissibility of the DNA test; that has been done.

The Court: The admissibility?

Mr. Brent: Yes, Your Honor.

The Court: Is that right, Mr. Young?

Mr. Young: No, sir.

Mr. Brent: To the authenticity of it, so --

Mr. Young: Without the need for a foundation testimony of

proof of the authenticity.

Mr. Brent: He’s correct, Your Honor, we submitted it only for

authenticity, so that’s part of the record.

The Court: Well, that just says the document is what it says it

is.

Mr. Brent: That the document says that he’s not the father.

The Court: Well, that doesn’t mean it’s true.

. . . .

The Court: You understand -- or at least it’s my position-- and I

may be wrong about this, Mr. Brent--but on motions for

summary judgment or directed verdict, once that motion is

made you can’t go back and reopen the proof.

Now, there’s some things that you can allow to be done on

certain motions where you can reopen the proof, but I think on

motions for summary judgment and directed verdict, and they

both have the same standards, I don’t think you can reopen

proof.

Mr. Brent: Well, I would just submit -- my understanding was

we could, of course, move for a non-suit at the time that he

makes that -- after he makes his case.

The Court: Well, you can’t do that either.

Mr. Brent: Which we haven’t done as far as to reopening the

proof.

The Court: Show me some authority that says I can do it and

I’ll do it.
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Mr. Brent: I don’t have that and I’m not possessed with that

authority right now.

The Court: I don’t know of any law, but if I’m wrong I’ll be

glad to let you reopen your case. . . .

The brief of appellant contains the following:

 . . . In fact, the DNA Report itself was not attached to the

stipulation because the wife’s attorney filed the stipulation and,

contrary to the husband’s attorney’s instructions, by mistake or

otherwise, failed to attach the Report. (Tr. At 153, L. 3-17).

The cited portion of the transcript states:

The Court: Well, are you done?

Mr. Brent: Well, just again, just for the record, our position was

that the parties had stipulated to -- and just for record, just for

clarification purposes, because Mr. Young is correct; we did --

I wrote him the stipulation, he wrote me back identifying what

had to be deleted from the stipulation. He did not prepare it; he

wrote me back saying what had to be from the stipulation for

the report to be admissible or authenticated.

 I corrected the stipulation and mailed it back to him with a

copy of the test; I received it back signed by him indicating it

was a copy and my instructions to him in the letter was file this

with the Court.

The record is unclear as to whether the laboratory report was ever filed. It is not so

marked.

The husband-appellant has presented two issues on appeal, of which the first is:

1. Whether the Special Judge erroneously held that a Court is

without authority to allow a reopening of proof after the

opposing party has filed a motion for a directed verdict.

A motion for directed verdict has no place in a non-jury proceeding, for there is no

jury to receive such a direction or to render such a verdict.
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If, in a non-jury trial, at the conclusion of his evidence, a plaintiff has failed to present

evidence required to support his claim, the proper motion is a motion to dismiss. T.R.C.P.

Rule 41.02(2); City of Columbia v. CFW Constr. Co., Tenn. 1977, 557 S.W.2d 734.

The reopening of proof is within the sound discretion of the Trial Judge; Simpson v.

Frontier Communications, Tenn. 1991, 810 S.W.2d 147.

A Trial Judge has discretion to permit a plaintiff to introduce further evidence after

the defendant has moved for a directed verdict. Bellisomi v. Kenny, 185 Tenn. 551, 206

S.W.2d 787 (1948); Nash v. Love, 59 Tenn. App. 273, 440 S.W.2d 593 (1969).

However, it is error for a Trial Judge to reopen the proof and continue the case to

permit a party to call a witness who was available on the trial date. Higgins v. Stride, 47

Tenn. App. 42, 335 S.W.2d 533.

In response to the first issue, this Court holds that the Trial Judge erroneously held

that he was without authority to reopen the plaintiff’s proof after a defendant’s motion for

dismissal.

Appellant’s second issue is:

2. Whether the Special Judge erroneously held that a plaintiff

cannot take a voluntary nonsuit after the defendant files a

motion for directed verdict.

In a non-jury case, the plaintiff has the right of voluntary dismissal until the case is

finally submitted to the Court for consideration. T.R.C.P. Rule 41.01; Weedman v. Searcy,

Tenn. 1989, 781 S.W.2d 855.

Thus, the Trial Judge was in error in holding that plaintiff could not take a voluntary

dismissal because a “motion for directed verdict” had been made. However, it does not
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appear that petitioner actually filed or announced a non-suit, and no official action was taken

to nullify such a filing, or announcement.

The foregoing disposes of the issues presented by appellant, but is not dispositive of

the primary issue of whether the Trial Judge should have dismissed the petition.

Essentially, the husband sued to set aside two divorce decrees, (one included in this

record and one omitted). The 1993 decree in this record, and the agreement of the parties

included therein, recognized the parties as the parents of the subject child. It must be

presumed that the 1986 decree which is not in this record recognized the same fact.

T.R.C.P. Rule 60.02 (1) and (2) authorizes relief from final judgments for mistakes or

fraud if brought within one year after the judgment. This suit was not brought within one

year after the latest, 1993, judgment.

The same rule preserves existing right to relief for “fraud upon the Court.” However,

this Court does not find that the circumstances of the present case justify retroactive relief

from the former decrees, for “fraud upon the Court” or any other ground, even if nonparentage should be conclusively shown by competent evidence.

Rule 60.02(5) provides for actions “for any other reason justifying relief from the

operation of the judgment.” The one year limitation does not apply to this ground of relief. 

However, this subsection has been narrowly construed to provide relief in only extraordinary

circumstances. Tyler v. Tyler, Tenn. App. 1984, 671 S.W.2d 492.

Rule 60.02(4) authorizes relief if “it is no longer equitable that a judgment should

have prospective application.” The period of limitation for claims under this section is
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“within a reasonable time.” This Court cannot find as a matter of law that plaintiff’s claim

under subsection (4) is barred by lapse of “a reasonable time.” 

Although the refusal to reopen the proof was harmless as to the effort of petitioner to

alter the previous judgments, it was prejudicial and reversible as to limited relief from further

payment of support for the subject child on the ground that such relief was justified by the

facts which petitioner proposed to prove if permitted to do so.

The appellee presents no issue as to the disposition of her petition.

The judgment of the Trial Court is modified to reopen the proof to hear competent

evidence as to whether or not petitioner is the natural father of the subject child and whether

the claim under Rule 60.02(4) was brought within a reasonable time, for the sole purpose of

determining whether it is no longer equitable that the judgment should have prospective

application, i.e., whether plaintiff should be required to pay further child support for said

child. 

As modified, the judgment of the Trial Court is affirmed. Costs of this appeal are

taxed equally to the parties. That is, each party is required to pay one-half of the costs of this

appeal. The cause is remanded to the Trial Court for further proceedings.

Modified, Affirmed and Remanded.

_______________________________________

HENRY F. TODD

PRESIDING JUDGE, MIDDLE SECTION

CONCUR:

_____________________________________

BEN H. CANTRELL, JUDGE
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_____________________________________

WILLIAM C. KOCH, JR., JUDGE