### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE May 14, 200 2 Session MICHAEL BENJAMIN COUILL ARD v. MARTHA ANN COUILLARD

Appeal from the Chancery Court for Carter County No. 20181 Thomas J. Seeley, Jr., Judge, by Interchange

No. E2001-01770-COA-R3-CV Filed July 3, 2002

Micha el Benjamin Couillard (“Plaintiff”) was absent from a hearing re garding his child suppor t obligation. The Trial Court found that Plaintiff was in arrears for child support and also had failed to pay a portion of the parties’ minor child’s medical expenses a s required by an earlier order of the T rial Court. Plaintiff filed a Tenn. R. Civ. P. 60. 02 motion to set aside the judgme

nt (“Motio n t o SetAside”) on the basis of inadvertence and e xcusable neglect. The

Trial Court

denied the Motion to Set Aside. The record on appeal contains no transcr ipt or statement of the evidence of the hearing on Plaintiff’s Motion to Set Aside. Plaintiff appeals. We affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery

Court Af

firmed; Case Remanded.

D. M ICHAEL S WINEY , J., delivered the opinion of the court, in which H ERSCHEL P. F RANKS , J., joined. H OUSTON M. G ODDARD , P.J., filed a concurring opinion.
M. Stanley Givens, Johnson City, Tennessee, for the Appellant, Michael Benjamin Couillard. Judith Fain, Johnson City, Tennessee, for the Appellee, Martha Ann Couillard.

OPINION Background This matter a

rises fr om a child

support di spute bet

ween Pla in t iff and Martha Ann Couillard (“Defen dant”). T he Trial Court, after a hearing in November 1999, e ntered an Order setting Plaintiff

’s child su pport obli gation an d finding Pl aintiff i n arrea rs for c hild

support. The Trial-2-

Courtalso orde

red Plain tiff to ma intain he alth

and life insurance for the benefit of the part ies’ chil d and to pay a portion of the child’s medical expenses not otherwise c overed by insurance.

After the November 1999 hearing, but before the entry of the Order, P lai ntiff filed a motion se eking a r

eduction of his child supp ort obliga tion due to

his recent

loss of emp loyment. Defendant

filed a response to this motion in which she opposed any reducti on in child support and argued essentially that Plaintiff was willfully and voluntarily unemployed.

The re c ord shows that approximately one year passed before either party took any further action. In January 2001, Defendant filed a motion asking the Trial Cour

t to find Pla

intiff in criminal and civil

contempt for fail ing to pay child support and the child’s medical expenses. In March 2001, the Trial Court held a hearing on Plaintiff’s motion to reduce child support and Defendant’s motion regarding Plaintiff ’s allege d contemp t. The record shows that while Plaintiff did not app ear for

the Marc h 2001 hea

ring, his a ttorney w as prese

nt. In April 2001, the Trial Court entered a Judgment on the March 2001 hearing. The Judgmentdenied Plaintiff’s motion to reduce child support and granted, in part, Defe ndant’s motion for contempt. The Trial Court held, in its Judgment, that Plaintiff was in arrears for

child support and had failed to pay the child’s medical expenses as required by the Trial Court’s previous orde r. Regarding Plaintiff’s absence from the hearing , the Judgm

ent provi ded, in pe

rtinent pa rt, as follow s: upon . . . the failure of Plaintiff to appear although his counsel stated to the Court that he had mailed the No tices to Plaintiff in January, that the mail ha

d not been r eturned to Plaintiff’s counsel; upon the oral motion of Plaint iff’ s counsel that he be allowed to withdraw which Motion is granted. . . . The Trial Court, in the Judgment, reserved the issue of whether Plaintiff was in contempt for failure to pay child support and the child’s medical expenses “until such time as Plaintiff appears before the Court.” Shortlythereafter, in May 2001, Plaintiff filed a Tenn. R. Ci v. P. 60.02 Motion to Set Aside the Tria

l Court’s J

udgment. A s grounds f

or his motio n, Plaintif

f argue d the Judgm

ent should be set aside

because he missed

the Marc h 2001 hea

ring due t o inadver tence a nd excus able neg lect. The record shows Plaintiff filed no affidavit in support of his Motion to Set Aside. In June 2001, the Trial Cour

t held a he aring on t

he Motion t

o Set Aside, but the record contains no transcript of this hearing. Thereafter, the Trial Court ente red an order (“Final Order”) in which it denied Plainti ff’s Motion to Set Aside. The Final Order provided that “Plaintiff has not pre sented a sufficient basis upon which this Court can find reasonable grounds to set aside the Court’s Order. [Plaintiff’s] failure to appear for the trial is not excuse d. . . .”

Plaintiff appeals

.-3- Discussion On appeal and although not exactly stated as such, Plaintiff raises one issue for this Court’s consideration: whether the Trial Court erred in denying Plaintiff’s Te nn. R. Civ. P. 60.02 Motion to Set Aside.

Defend ant, on appeal, contends it was not an abuse of discretion for the Trial Court to deny Plaintiff’s Rule 60.02 motion. Defendant also argues Plaintiff’s appeal should be dismissed because the Final Order is not a final judgment under Tenn. R. Civ. P. 54.02 from which an appeal as of right lies. Furthermore, Defendant contends Plaintiff’s appeal is frivolous because Plaintiff, as the appellant, failed to preserve an ade quate record. We first add

ress the issue re garding w

hether t he Final Order is a

final judgment from which an appe al as of r

ight lies. Defendant contends the underlying Judgment which Plaintiff sought to have set

aside is not a fina

l j udgment pursuant to Tenn. R. Civ. P. 54.02, and, accordingly, Plaintiff’s appeal should be dismissed. See Tenn. R. App. P. 3(a). Defendant points to the language in th e J udgment showing the Trial Court reserved the issue of Plaintiff’s contempt. In addition, w hile Defend ant does n ot raise t his in her argumen t, we note that Tenn . R. Civ. P. 60 .02, th e rul e upon which Plaintiff

’s Motion to

Set Aside i s based, p

rovides t hat it applies to “final judgments.” The Judgment does not meet th e definition of a “ final judg ment” und er Tenn . R. Civ. P. 54.02 since it does not a

djudicat e all cla ims. In the

exerci s e of our d

iscreti on and in the interest of judicial e conomy, however, we will treat this appeal as a Tenn. R. App. P. 10 extra ordinary app eal an d consider the merit s of this appeal. See also Tenn. R. App. P. 1 (providing the Tennessee Rules of Appellat e Proced ure “sha ll be construed to secure the just, speedy, and inexpensive determination of every proceeding on its merits”).

We now turn to

whether or not it was error for the Trial Court to deny Plaintiff ’s Rule 60.02 Motion to Set Aside. The determination of whether to grant

a Tenn. R. Civ. P. 60.02 motion for reli ef from j udgment lie s within the sound discretion of the trial court and will not be reversed on appeal absent an abuse of discretion. Holiday v. Shoney’s South, Inc. , 42 S.W.3d 90, 92 (Tenn. Ct. App. 2000). We should no t rever se for “ ‘abuse of discretion a discretionary judgment of

a trial court unless it a

ffirmat ively appear s that the t

rial cou rt’s dec ision was a

gainst l ogic or reasoning, and caused an injustice or injury to the party complaining .’” Marcus v. Marcus, 993 S.W.2d 596, 601 (Tenn . 1999 ) (quo ting Ballard v. Herzke , 924 S.W.2d 652, 661 (Tenn. 1996)).

Plaintiff’s Motion to Set As ide was ba sed upon Tenn. R. Civ. P. 60.02(1) which provides , in pertin

ent part , as follo ws: On motion and upon such terms as are jus t, the court may relieve a partyor the party’s legal representative from a fina l judgment, order or proceeding for the following reasons: (1) mistake, i na dvertence, surprise or excusable neglect . . . .-4-

The moving party who seeks relief from a judgment under Rule 60.02 has the bu rden of pro of to “‘describethe basis for relief wi th specif ic ity . . .’” and to establish, by clear and convincing evidence, that such relief is warranted. Howard v. Howard

, 991 S.W.2d 251, 255 (Tenn. Ct. App. 1999) (quoting Duncan v. Duncan , 789 S.W.2d 557, 563 (Tenn. Ct. App. 1990)).

On appea l, Plaintif f argue s the Tria

l Court er red in de nying his Motion to

SetAside because he estab lished, pu

rsuant to Tenn. R. Civ. P. 60.02(1), that he missed the March 2001 hearing due to inadvertence or excusable neglect. In his brief, Plaintiff contends he missed the hearin g because he litera lly forgo t about it d

ue to a number of personal issues and a family medical emergency. Plaintiff also argues he suffered prejudice due to the Trial Court’s allowing his attorney to withdraw as counsel before the March 2001 he aring began.

Shortof Plaintiff’s statements in his brief, the record on appeal contains no hint, let alone proof, of the reasons for P laintiff’s absence from the March 2001 hear ing. The only stated bases provided

in Plaint iff’s Mot

ion to Set As ide are

the grounds of inad

vertenc e and ex cusable neglect

. Under Tenn. R. App. P. 24, the appellant has the duty “‘to prepare a recordwhich conveys a fair, accurate and complete a ccount of what transpired in the trial court with respect to the issues w h ich form the b asis of the appeal. ’" Nickas v. Capadalis , 954 S.W.2d 735, 742 (Tenn. Ct. App. 1997) (quoting State v. Boling , 840 S.W.2d 944, 951 (Tenn. Crim. App. 1992)). In the absence of an adequate record on appeal, this Court will presume the trial c ourt’s ru l ings were supported by sufficient evidence. State Dep’t of Children’s Serv. v. D.G.S.L., E2001-00742- COA-R3-JV, 2001 Tenn. App. LEXIS 941, at * 27 (Tenn. Ct. App. Dec. 28, 2001), no appl. perm. app. filed ; State v. Oody , 823 S.W.2d 554, 559 (Tenn. Crim. App. 1991).

Even allowing Plaintiff

the benefit of all

doubts and treating his Rule 60.02 motion as an appropriate one to file con cerning the non-f inal Judgm

ent, the r ecord on appeal i s woefull

y inadequa te for this Court to determine that the Trial Court abused it s discretion in denying Plaintiff’s Rule 60.02 Mot ion to Set Aside. The record contains no affidavit in support of the motion, no transcript of the June 2001 hearing, and no statement of the evidence. See Tenn. R. App. P. 24(b) - (c). As the re cord con

tains no pr

oof of the reasons for Plain

tiff’s a bsence from the March 2001 hearing, we cannot consider the rea sons Plaintiff provides in his brief since those allegations are outside the record. See Tenn. R. Ct. App. 6; see also Church v. Perales , 39 S.W.3d 149, 160 (Tenn. Ct. App. 2000) (holding “[w]e cannot take judicial knowledge of . . . te stimony, even if parts o f it are cited in the briefs, because it is outside the rec ord”).

Due to the ina

dequac y of the r

ecord on appeal, this Court cannot possibly determine it was an a buseof discr

etion todeny Plain

tiff’s Mo tion to Set A side. To do so would r equire t his Court to speculate as to whether Plaintiff, at the June 2001 hearing, ca rried his bu rden o f establishing, by clear

and convincing ev

idence, his stated gr

ounds of in adverte

nce or e xcusable neglect sufficie nt to warr ant settin g aside the Judgmen t under Te nn. R. Civ. P. 60.02(1). Moreover, in the compl ete absence of any proof in the record to the contrary, we must presume the Tria l Court’s denial of Plaintiff’s Motion to Set Aside was supported by sufficient evidence. See State Dep’t of-5-

Children’s Serv. v. D.G.S.L., Tenn. Ap p. LEXIS 9 41, at * 27 ; Sta te v. Oo dy , 823 S.W.2d at 559. Accordingly, we affirm the Trial Court’s Final Order on this issue.

Next, we address Plaintiff’s argument on appeal that he was prejudiced by the Trial Court’s decision t o grant his attorney’s motion to withdraw as counsel before the Marc h 2001 hearing began. First, a party has no absolute right to counsel in a civil trial. Knight v. Knight , 11 S.W.3d 898, 900 (Tenn. Ct. App. 1999). Second, the record as presented to us by Plaintiff contains nothing to support Plaintiff’s position he was prejudiced by the Trial Court’s decision to grant h is attorney’s motion to withdraw. Defend ant conte nds on app eal that while Plaintiff’s counsel was allowed to withdraw, that

same attorney participated in the March 2001 hear ing, as evide

nced by h is signature on the Judgment. Defendant also points out that the same attorney represented Plaintiff on the Motion to Set Aside. Accordingly, we find no rever sible error and hold this issue to be without me

rit. We next consider the remaining issue on appeal regarding whether Plaintiff’s appeal is frivolous. Defendant contends the appeal is frivolous due to Plaintiff’s failure to prepare and preserve a n adequate r ecord on appeal pursuant to Tenn. R. App. P. 24 and requests an a ward of legal expenses incurred on appeal. We agr ee this appeal is frivolous. Plaintiff failed to take any steps to prepare an adequate rec ord, either by transcript or a statement of the evidence. See Tenn. Code Ann. § 27-1-122 ; Industrial Dev. Bd. of the City of Tullahoma v. Hancock , 901 S.W.2d 382, 385 (Tenn. Ct . App. 199 5) (holdi ng that a “ frivolo us appeal is one that is ‘devoid of merit,’. . . or one in which th

ere is lit tle prosp ect that i

tcan ever succeed”). Tenn. Code Ann. § 27-1-122 provides that in the event of a

frivolous appeal, this Court may award the appellee “expenses incurred . . . a s a result of the appeal.” Defendant has incurred further le gal expenses due to Plaintiff’s appeal, an appeal that is dev oid of mer it and had little prospect to succeed. Accordingly, we grant De fendant her reasonable attorneys’ fees and e xpenses incurred on appeal. On remand, the Trial Court shall determ ine the amount of D efenda nt’s rea sonable a

ttorneys ’ fees a

nd expen ses incur

red in thisappeal. Conclusion The judgment o f the Tri al Court is affirme d, and this cause is remanded to the Trial Courtfor further proceedings consistent with this Opinion and for collection of the costs below. Costs on appeal are assessed against the Appellant, Micha el Benjamin Couillard, and his sur ety

.

___________________________________ D. MICHAEL SWINEY, JUDGE