# FILED May 3, 1996 Cecil W. Crowson Ap pellate Cou rt Clerk JULI US MIC HAEL

HARRI S, )

) Plaintiff /Appella nt, )

) Williamson Ci

rcuit ) No. 92421 VS. ) ) Appeal No. ) 01-A-01-9511-CV-00518 SUZANN

E ZUL IEME HARRI S, )

) Defendant/Appellee. )

IN THE COURT OF APPEALS OF TENNESSEE MIDD LE S EC TION AT N AS HVILLE
APPEAL FROM THE CI RCUIT COURT OF WI

LL IAMSON COUNTY AT FRANKLI

N, TENNESSEE
HONORABLE L

EE OFMAN, SPECIAL

JUDGE

THOMAS F. BLOOM 500 Church Street Fifth Floor Nashville, Tennessee 37219 ATTORNEY FOR PLAI

NTIFF/APPEL

LANT
E. COVI NGTON JOH

NSTON, JR. P.O. Box 1608 Franklin, Tennessee 37065 ATTORNEY FOR DEFENDANT/APPEL LEE
MODIFI ED, AFFIRMED AN

D REMANDED

HENRY F. TODD PRESIDING

JUDGE, MIDDL

E SECTION

CONCUR: BEN H. CANTRELL , JUDGE WILL IAM C. KOCH, JR., JUDGE-2-

JULI US MIC HAEL

HARRI S, )

) Plaintiff /Appella nt, )

) Williamson Ci

rcuit ) No. 92421 VS. ) ) Appeal No. ) 01-A-01-9511-CV-00518 SUZANN

E ZUL IEME HARRI S, )

) Defendant/Appellee. ) O P I N I O N The plaintiff/ex-husband has appealed from the dismissal of his post-divorce decre e pe ti ti on se ek in g r el ie f f

ro m c hi ld su pp or t a nd ch an ge of cu st od y.

The record does not reflect when the se parties originally married. However, it does appear that their first chi ld, Jonatha

n, was bor

n July 24, 1983. T

he parti es were

divorce d 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 divorc ed by a decree which appears in this record.

The la tter, 1993, decree a dopt ed a mar ital diss olut ion agr eement provi ding: 1. Husband and wife agree to sha re the joint legal custody

of the minor children of the parties, Jonathan Michael Harris and Hamilton Ca

rter Ha rris, an d they

agree to partic ipate join

tly in the formu lation of major par

ental de cisions regarding said minor children. The partes further ag ree 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) weeke nds per month from approxima

tely 6:00 p.m. on

Friday evening until appr

oximately 12:00 p.m. on Sunday evening s; privileges during three (3) weeks during the summer vacation period, said such pr ivileges to be esta blished by

agree ment of the

parties in suffic ient time to al lo w e ac h o f t he pa rt ie s t o p la n t he ir va ca ti on s a cc or di ng ly; privileges for one-half (1⁄2) of a ny long va

cation periods; and privileges on Easter Day , Memorial Day, July 4th, Labor Day and Than ksgiving Day on an alte

rnating basis fro m ye ar [to year]; as well as pr

ivileges at such other times as may be mutually agr

eed upon.-3- 2. Commencing upon the execution of this Marital Dissolution Agreement, husband agr

ees to pay to wife

the sum of $580.00 per month

as child s upport fo

r the minor

childre n of the pa

rties.

. . . 3. As additional ch

ild suppor

t, husband

agree s that he w ill maintain major med

ical and hospitaliza

tion insura

nce on be half of the minor children of the parties until each child attains majority or marrie s, whichever event occurs first. . . . On April 11, 1994, the husband initiated the present proceeding by filing a “Petition to Modify” where

in he alleged: . . . 2. That during the parties first marriag e, on July 24, 1983, respondent gave birth to Jonathan Michael Harris, whom responde nt 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 aff irmative misrepresentations as to the true paternity of the minor child, from June, 1992, thro

ugh Mar ch 15, 199 4, the pet

itioner pa id 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 pr oceeding, the responde nt affir matively and fra udulently misrepre sented 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 ch

ild, Jonatha

n Michael Harris , to DNA te sts to establish the true paternity o f the chi ld. The re sults of sa id DNA tests established that petitioner is excluded as the biological father of the child, Jonathan Michael Harris, by DN A p ro be te ch no lo gy. The petition praye d: 2. That at a hearing of this cause, the F inal 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 maintena nce of th e minor c hild, Jonath an Micha el Harr is. The wife answered deny

ing any misrepresentation of the parentage of Jonathan and asserting her belief that the petitioner was his fa ther. The answer further denied that ther e was any leg al basis for modifying child support, and asserted that the time for retroactive-4-

modification had passed and that retroactive modification would not be for the best interest of the child.
By counter -petition , as amended, the wife asse rted tha t the husba

nd had re duced c hild support payments without authorization; had failed to exercise visitation as authorized; and had failed to provide health care insurance ordered. The counter-petition pray ed for enforcement of arrear s support and insurance requirements by judgment and contempt, and for sole custody a

nd control of both children.
On October 25, 1994, the parties filed the following stipulation: It is hereby

stipulated by and betwee n counsel for the respec tive par

ties that t he writte n report of the DN

A test re sults by Genetic D esign, Inc., c oncerning the paternity of Jonathan Michael Harris is admissible without the need for any fo un da ti on , t es ti mo ny o r o th er pr oo f o f t he au th en ti ci ty. On November 7, 1994, the husband filed a response to the wife’ s counter-petition and an “Ame nded Petit

ion to Modif

y or Set Aside”

allegi ng that t

he wife s hared a

residence with her boyfr iend, had neglected the cleanliness a nd health of the children, and had permitted her boyfriend to cor

porally punish the children.

The wife’s answer asserted that her residence facilities were adequa te and denied abuse of the children by

her boyfr iend.
On November 22, 1994, the Trial Judge heard the ca use without a jury. On June 14, 1995, the Tr ial J udge en tered a n orde r cont ainin g the fo llow ing:

. . . [ T]he Court finds that t he chi ld bo rn dur ing mar riage presumption continues and has continued through two (2) divorce cases in volving t hese par ties; that the DNA te st 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 re ferred 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-5- custody should remain as it was with the pa rties having joint custody of the minor childre n; 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 f

or chang e of cust

ody of the pa rties’ y ounges t child is hereby de

nied. 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. Ha rris is hereby awarded judgment aga

inst Mr. Harris for the child support existing in

arrea rs and Mr . Harrisshould con tinue pay ing chil d support as previously orde red. On July 14, 1995, the petitioner-husband moved to alter or a mend or grant a new trial on the following g

rounds: 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 dire cted verdict had bee n made by

responde nt. II . The Trial Court erred in apply ing 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 f iled 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 tria l 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 deny ing change of custody

and modification of the February ‘93 order?

. . . . The Court : Would y ou addre ss those iss ues?-6- 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 f ather of the child. The Court : Is th at in this Court? Mr. Brent: Yes, Your Honor, it’s right there
. The Court : That wa sn’t put int o the proo f, was it? Mr. Brent: It was submitted for the Court; it’s in the record. We have st

ipulated to the test
. The Court : Well, you stipula ted to the test, but d

id y ou stipula

te

-- Mr. Young : We did not st ipulate to the admiss ibility , if it please the Court; it hasn’t been put in the proof. Mr. Brent: It’s bee

n 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 c lerk, 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 corr ect me if I’m wrong, but the fil

ing of do cuments d

oesn’t c onstitute admissibility of evidence; does it -- Mr. Young: No, sir. The Court : -- Mr. B rent; I mean, do y

ou agr ee with th at? 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 a dmit it. Mr. Bre nt: Well, if t

hat be the case, th en I would re spectfully move the Co

urt to reo pen my proof to a

dmit it.-7- The Court: Well now, we have got a directed verdict you’re faced with and I c an’t reopen the proof now that he’s raised it. I would have do ne that g ladly prior to th at. Mr. Brent: That’s okay , I’ll back up then. We have stipulated to the admissibility of the DNA test; that has been done. Th e C ou rt : T he ad mi ss ib il it y? Mr. Brent: Yes, Your Honor. The Co urt: Is t hat ri ght, M r. You ng? Mr. Young: No, sir. Mr. Brent: To the authenticity of it, so -- Mr. Young: Without the need for a foundation testimony of pr oo f o f t he au th en ti ci ty. Mr. Brent: He’s correct, Your H onor, we submitted it only for authenticity, so that’s part of the record. The Court : Well, that

just say s the docu

ment is wha

t it say s it is. Mr. Brent: That the document say s 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 judgmen t or directed verd

ict, once that motion

is made you ca

n’t go back and reopen the proof
. Now, there’s some things that you can allow to be done on certain motions where y ou can reopen the proof, but I think on motions for summary judgment a nd directed verdict, and they both have the same standards, I don’t think you can re open 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 a s to reopening the proof. The Court: Show me some authority that say s I can do it and I’ll do it.-8- Mr. Brent: I don’t have

that and I’m not possessed with that authority rig

ht now. The Court: I don’t know of any law, but if I’m wrong

I’ll be glad to let you r

eopen your c ase. . . .
The br ief of

appel lant c ontai ns th e foll owing: . . . In fact, the DNA Repor t 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 cite d portion o f the tra nscript st ates: 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 bac k identifying wha

t had to be deleted from the stipulation. He did not prepare it; he wrote me back say

ing what had to be from the stipulation for the report to be admissible or authenticated. I correcte d the stipulation and mailed it back to him with a copy of the te st; I r

eceive d it back s igned b y him indicating it was a co py a nd my instructi ons to him in t

he letter was file this with the Court.
The rec ord is unc lear as to whethe r the lab oratory

report w as ever

filed. I t is not so marked.

The husba

nd-appe llant has p

resente d two issue s on appe al, of wh ich the f irst is: 1. Whether

the Speci al Judge e

rroneou sly

held that a Court is without authority to allow a reope ning of proof after the opposing party has filed a motion fo

r a dire cted ver

dict. A motion for directed verdict has no place in a non-jury proceeding, for there is no jury to rece ive such a directio n or to re

nder suc h a verdi ct.-9- If, in a non-jury

trial, at the conclusion of his evidence, a plaintiff has failed to pre sent evidenc e requir

ed to suppo

rt his cla im, the pro

per motion

is a motion t

o dismiss. T .R.C.P. Rule 41.02 (2); City of Columbia v. CFW Constr. Co., Tenn. 1977, 557 S.W.2d 734.

The reo pening of proof is within the

sound disc

retion of the Tria l Judge; Simpson v. Frontier Communications, Tenn. 1991, 810 S.W.2d 147.
A Trial Judge has discretion to permit a plaintiff to introduce further evide nce after the defendant has moved for a directed ve rdict. 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).

Howeve r, it is er ror for a Trial Judge to re open the p roof and continue the case to permit a party to c all a witness who was available on the trial date. Higgins v. Stride, 47 Tenn. App. 42, 335 S.W.2d 533.

In re sponse to t

he first i ssue, this Court holdsthat the T rial Judg e erroneously

held that he was without authority to reope n the plaintiff’s proof after a defenda nt’s motion for dismissal.
Appellan t’s seco nd issue is : 2. Whether the Special Judge erroneously held that a plaintiff cannot ta ke a volun

tary nonsuit af

ter the d efenda nt files a motion for

directe d verdic t.
In a non-jury case, th e plaintif f has the right of voluntar y di smissal unt

il the cas e is finally submitted t

o the Cour

t for con siderati on. T.R.C.P. Rule 41.01 ; Weedman v. Searc y, Tenn. 1989, 781 S.W.2d 855.
Thus, the Trial Judge was in error in holding that plaintiff could not take a voluntar y dismissal because a “motion for directed verdict” ha d been made. However, it does not-10-

appear that petitioner actually filed or announced a non-suit, and no official action wa s taken to nullify such a fi ling, or

announc ement.
The foregoing disposes of the issues pre sented by appe llant, but is not dispositive of the primary issue of w

hether the Trial Judge should have dismissed the petition.

Essentia lly, the husba

nd sued to s et aside

two divorc e 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 pa rents of the subject child. It must be presume d that the

1986 dec ree whic h is not in thi s recor

d recog nized the s ame fact.
T.R.C.P. Rule 60.02 (1) and (2) authorizes relief from final judgments for mistakes or fraud if brought within one y ear after the judgment. This suit was not broug ht within one ye ar afte r the late st, 1993, ju dgment.
The same rule preserves existing right to re lief 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 anyother ground, even if nonparentage should be conclusively shown by competent evide nce.
Rule 60.02(5) provides for actions “for any other reason justifying

relief from the operation of the judgment.” The one y ear 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) auth orizes re lief if “ it is no long er equit able tha t a judgm ent should have pro spective

applica tion.” The

period of limitation f

or claimsunder thi s section is-11-

“within a reasona ble time.” This Court c annot fin d as a mat ter of la w that pla intiff’s claim under subsection (4) is barred by lapse of “a reasonable time.”
Although the ref

usal to re open the p

roof wa s harmles s as to the effort o f petitioner to alter the previous judgments, it was prejudicial and reve rsible 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 fa ther of the subject child and whether the claim under Rule 60.02(4) was brought within a rea sonable time, for the sole purpose of determining whether it is no longer equitable that the judg ment should have prospective applica tion, i.e. , whethe

r plaintif f should be

require d to pay

further child supp ort for sa

id child.
As modified, the judgment of the Trial Court is affirmed. Costs of this appeal are taxed equa

lly t o the par ties. Tha t is, eac h party

is requir ed to pay one-half of the c osts of this appeal. The cau se is rema nded to the

Trial Cour

t for fur ther pro ceeding s.
Modified, Affirmed and Remanded.

_______________________________________ HENRY F. TODD PRESIDING

JUDGE, MIDDL

E SECTION

CONCUR:

_____________________________________ BEN H. CANTRELL , JUDGE-12-

_____________________________________ WILL IAM C. KOCH, JR., JUDGE