# FILED September 11, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF APPEALS OF TENNESSEE WESTERN SECTION AT JACKSON

______________________________________________ MARGARET SCHINDLER HAAS, Appellant, Shelby Law No. 141090 Vs. C.A. No. 02A01-9709-CV-00241 MICHAEL LEE HAAS, Appellee.

__________________________________________________ __________________________ FROM THE CIRCUIT COURT OF SHELBY COUNTY THE HONROABLE JAMES E. SWEARENGEN, JUDGE
David E. Caywood and Marc E. Reisman of Causey, Caywood, T

aylor, McManus & Ba

iley of Memphis For Appellant Kathleen Day Nor

fleet of Memphis For Appellee

REVERSED AND REMANDED Opinion filed:

W. FRANK CRAWFORD,

PRESIDING JUDGE, W.S.
CONCUR: DAVID R. FARMER,

JUDGE DAVID G. HAYES, JUD GE
This case, which

is before us a

second time, involv

es a petition to red

uce child support. Appellant, Margaret Schindler Haas (Mother), appeals the trial court’s order reducing the amount of the monthly child support obligation of appellee, Michael Lee Haas (Father).2 The parties wer e married on November 8, 1986, and two children were born of the marriage. On January 4, 1993, Mother filed for divorce alleging irreconcilable differences and inappropriate

marital conduct.

In an attempt to resolve disputed issues, Mother’s a

ttorney wrote
a letter to Father, who was then unrepresented by counsel, which sta ted in part that Father’s monthlychild support obligation would be approximately $1,700.00 pe r month. Shortly therea fter, Mother and Father met at a restaurant where the two reached an agree ment that Father’s child support obligation would be $2,000.00 per month. Subsequently, the parties entered i nto a Marital Dissolution Agreement (MDA) which

was approved and

ratified by the trial court in the final decree of divorce entered May 12, 1993. Pursuant to the MDA, the trial court awarded t he parties joint le

gal custody of the c

hildren, with primary physical cus tody to Mother and reasonable visitation rights to Father. The MDA providedthat Father would pay $2,000.00 per month as support for the two children based

upon his annual income of approximately $75,000.00. The MDA further provided that Fathe

r would provide health

insurance for the children and pay all the children’s uncov

ered medical ex

penses. On March 23, 1994, Father filed a “Petition for Relief from Final Decree of Absolut e Divorce,” wherein he requested, inter alia , a reduction in his child support obligation. Father contended

that he only agree

d to pay $2,00 0.00 per month for child support after Mother informedhim that he was res ponsible for payment of ch

ild support in such a

n amount per month in accordance

withthe Child Support Guidelines. Father also contended that it was only after he hired an attorney of his own in January 1994 that he learned that his child support obligation exceeded the guideline amount by approximately $600.00. As grounds for the re

duction in child supp

ort, Father asserted that a material change in circumstances warranted a re duction in the child support amount. In addition, Father argued that pursuant to Tenn. R. Civ. P. 60.0

2 he is entitled to relief

from the judgment “due to the mistake, inadvertenceand misre present ation of the correct amount of guideline child support for one having an income of $75,000 per year.” Upon Father’s request and after the trial judge entered an Order of Reference,the matter

was referred to t

he di vorce referee for hearing. The divorce refere e denied Father’s petition requesting a reduction of his child support obli

ga tion. Thereafter, Father filed a “Motion Appealing Referee’s Ruling” and, in February 1995, an “Amended Petition for Relief from Final3

Decree of Absolute Divorc

e.” In the latter

, Father asserte

d that a s ignificant variance existed betweenthe amount of

child support which he should pay under the Child Support Guidelines and the amount of child support he is currently required to pay. After a hearing, the trial judge entered an order finding that a significant variance greater than fifteen percent existed between the Child Support Guideline amountand the support order and reduced the child support from $2,000.00 per month to $1,394.00 per month. Mother appealed to this

Court, and this Court reversed the trial court’s reduction in child support becau se t he record did not reveal any change in circumstances since the entry of the divorce d ecree no r any material changes in Father’s annual salary that would have warranted such reduct ion under T. C.A. § 36-5-101(a)(1). However, we remanded the cause to the trial court for a determination of whether Father should be granted relief pursuant to Tenn. R. Civ. P. 60.02. On remand, the trial court again reduced Father’s child support obligation as previously ordered pursuant to Tenn. R. Civ. P. 60.02. In granting such relief, the trial court found that the parties mis taken ly applied the Child Support Guidelines by calculating child support using Father’s gross income rath er than his net income. Mother

perfected this appeal

and basically pre se nts one issue for our r eview: Whether

the trial court er

red in reducing Fa

ther’s child support obligation pursuant to Tenn. R. Civ. P. 60.02. Mother asserts that the trial court erred in finding that there was a mistake by either party in the calculation of child support. She states that the child support amount Father agreed to pay for the benefit

of the two minor children was a conscious decision which was reached between the parties after determining the needs of the chil dren and that Father voluntarily assumed payment in an amount in

exces s of the minimum amount prescribed by the Child Support Guidelines. Mother further c ontends that even

if there was a mis

take in basing child support on gross income rather than net income, this mistake would constitute a mistake of law which does not entitle Father to relief pursuant to Tenn. R. Civ. P. 60.02. On the other hand, Father contends that the trial court correctly reduced his child support obligation pursua nt to Te nn. R. Civ. P. 60.02 upon finding that there had been an error in the initial calculation of child support and a mistake of fact regarding Father’s income upon which the child support obligation was initially calculated. Father asserts that there was a mistake of4

fact due to his mistaken belief that basing child support on gross income was the proper method of calculating such. Therefore, due to such a mistake, relief under Tenn. R. Civ. P. 60.02 was warranted. A motion for relief pursuant to Ten n. R. Ci v. P. 60.02 lies within the sound discretion of the trial court. On appeal, the scope of review is limite

d to whether the tr

ial judge abused h

is discretion. Underwood v. Zurich Ins. Co. , 854 S.W.2d 94, 97 (Tenn. 1993). Tenn. R. Civ. P. 60.02 p

rovides in pertine

nt part: Rule60.02 Mistakes - Ina dvertence - Exc

us able N eglect - Fraud, etc. - On motion and upon such terms as are just, th e court may relieve a pa

rty or the party’s legal representative from a final judgment, order or proceedingfor the following r easons: (1) mistake, inadvertence, surprise or excusable negle

ct; (2) fraud (whether heretofore den

ominated intrinsic

or extrin sic ), misr epresentation, or other misconduct of an adverse party; (3) the judgment is void; (4) the judgment has been satisfied, released or discharge d, or a pr ior judgment upon which it is based has been reversed or otherw ise vaca ted, or it is no longe r equitable that a judgment should have pros pective application; or (5) any other reason justifying relief from the operation of the judgment.

. . . The Supreme Court of Tennessee has stated, “Rule 60.02 acts as an escape valve from possible inequity that might ot

herwise arise

from the unrelenting imposition of the principle of finality imbedded in our procedural rules.” Thompson v. Firemen’s Fund Ins. Co. , 798 S.W.2d 235, 238 (Tenn. 1990).

“Because of the

importance of this

‘prin cip le of finality,’ the ‘escape valve’ should not be easily opened.” Toney v. Mueller Co. , 810 S.W.2d 145, 146 (Tenn. 1991). Tenn. R. Civ. P. 60.02 is not a mechanism to be utilized by a party who is me rely dissatisfied with the result of their case. Id . The rule is meant to be used in only those cases that meet one or more of the criteria listed wi thin the rule

. Id. While Father alle ges that relief is warranted under Tenn. R. Civ. P. 60.02 “due to the mistake, inadvertence and misrepresentation of the correct

amount of guideline child support,” the only possible basis in the record for relief under Tenn. R. Civ. P. 60.02 is under subsection (1) of the rule since the proof does not reveal any misrepresentation on Mother’s part. Specifically, in order to grant Father’s requested

relief under Tenn. R. Civ. P. 60.02(1), there must exist some “mistake” that would warrant such relief. Where the extraordinary relief provided for in Tenn. R. Civ. P. 60.02(1) is requested, the movant carries the bur

den to set forth in a petition or motion facts establishing why movant was justified in failing to avoid the mistake, inadvertence, surprise or negle ct. Hopkins v. Hopkins ,5

572 S.W.2d 639, 640 (Tenn. 1978). The party seekingrelief from a judgment under T

enn. R. Civ. P. 60 .02(1) carries the burden of proof to establish facts which give rise to the requested relief. Bivins v. Hospital Corp. of Am. , 910 S.W.2d 441, 446 (Tenn. App. 1995). This Court has stated tha

t “a party ‘must ma

ke some showing of why he was justified in failing to avoid mistake or inadvertence. Gross carelessness is not enough. Ignorance of the rules is not enough, nor is ignorance of the law.’” Kilby v. Sivley , 745 S.W.2d 284, 287 (Tenn. App. 1987) (quoting 11 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure

§ 2858 (1973)); see also Algee v. State Farm Gen. Ins. Co. , 890 S.W.2d 445, 447 (Tenn. App. 1994). Additionally, the Supreme Court of Tennessee has stated that if “ignorance of the law is a proper

ground for relief under Rule 60.02, Tennessee Rules of Civil Procedure, it is hard to conceive how any judgment could be safe from assault on that ground.” Food Lion, Inc. v. Washington County Beer Bd. , 700 S.W.2d 893, 896 (Tenn. 1985). “It is, o f course, a general rule of law that the courts will sometimes grant relief from a mistake of fac

t, but not a mistake of law.” Metropolitan Dev. & Hous. Agency v. Hill , 518 S.W.2d 754, 768 (Tenn. App. 1974). See also Nails v. Aetna Ins. Co. , 834 S.W.2d 289, 293- 94 (Tenn. 1992) (“our examination of

the medical and other proof leads us to conclud

e that there was n

o mistake within the meaning of Tenn. R. Civ. P. 60.02, in t hat there was no m istake of fact c

oncerning Nails' injury and disability then existing at the time of the original hearing in the case”). Accordingly, it is well-est ablished that a mistake of law will not warrant the relief providedfor under Tenn. R . Civ. P. 60.02(1). Therefore, in order for Father to be granted relief pursuant to Tenn. R. Civ. P. 60.02(1), h is alleged mistake

n belief that it

was proper to base the calculation of child support on gross income must be a mistake of fact rather than a mistake of law. Pursu ant to T. C.A. § 36-5-101, the Tennessee Child Support Guidelines set forth the minimum amo unt of chi ld support a non-custodial parent is required to pay to the custodial parent. The Child Su

pport Guidelines p

rovide in pertine

nt part: The child support awa

rd is based on a fla

t percentage of

th e obligor’s net income as def ined in paragraph (4) below depending on the number of children for whom support is being set in the instant case. . . .

* * *6 After determining the net income of the obligor, tha t amount is to be rounded up to the next dollar amount. That amount is then multiplied by the percenta ge below that cor

responds t o the number of children for whom

supp ort is being set in the instant case. . . . Tenn. Comp. R. & Regs. tit. 10, ch. 1240-2-4-.03 (2) and (5) (1989, revised 19 94) (emphasis added). Mother

relies heavily upon Hampton v. Hampton , No. 01A01-9108CH00311, 1992 WL 1400 (Tenn. App. M.S. Jan. 8, 1992) for her contention that Father’s alleged mistaken belief that his child support obliga

tion was based on hi

s gross income

constitutes a mistake of law thereby preventing relief under Tenn. R. Civ. P. 60.02(1). In Hampton , the parties ente red into a child custody and property settlement agreement which was incorporat ed into t heir divorce decree. The agreement provided in pertinent part that the father was to provide supp

ort for the partie

s’ minor child until the child was twenty-one years of age. In anattempt to void the agreement, the father contended that he

was mistaken as to t

he age of majorit

y when agreeing

to pay sup port until the child was twen

ty-one years o

f age, and that such mistake warranted relief from the agreement. Id. at *1. This Court characterized the father’s mist

ake regarding th

e age of majority

as a mistake of law and held that such a mistake did not void an otherwise valid agreement. Id. at *3. Father

attempts to distinguish Hampton by arguing that understanding the Child Support Gu idelines is a much more complicated and onerous task than determining the legal age of majority. However, a plain reading of the Child Support Guidelines clearly states that ch il d support is to be based upon a percentage of net income. Mistake of law occurs wh en a party knows th

e factsof the case but is ignorant of the legal consequences. State ex rel. McCormack v. American Bldg. & Loan Ass’n , 177 Tenn. 385, 428, 150 S.W.2d 1048, 1065 (1941). It is clear that the law in Tennessee is that child support is to be based upon net income. See Tenn. Comp. R. & Regs. tit. 10, ch. 1240-2-4-.03(2) and (5). A mistake basing child support on gross income in contravention of the plain directives of the law necessitate

s the conclusion tha

t such a mistake is c

learly a mistake of law. From the record, it is evid

ent that Father wa

s aware of the f

acts of the case, but was ignorant of the law. This is not the type of mistake that Tenn. R. Civ. P. 60. 02 is desi gned to correct. Thus, we conclude t hat Father ’s alleged mistake n belief that child

support was based

on gross income7

constitutes a mistake of law. As such, relief pursuant to Tenn. R. Civ. P. 60.02 should not have been granted since a mistake of law is not a valid ground for relief as contemplated by the rule. Accordingly, the order of the trial court is re versed, and the case is remanded for such further proceedings as may be necessary. Costs of appeal are assessed against the appe llee.

_________________________________ W. FRANK CRAWFORD, PRESIDING JUDGE, W.S. CONCUR:

____________________________________ DAVID R. FARMER,

JUDGE

____________________________________ DAVID G. HAYES, JUD GE