1 

### IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE March 7, 2001 Session DON NA J O RU SSE LL (F REE MA N), ET AL 

### vs. JOHN ROBERT RUSSELL

A Direct Appeal from the Circuit Court for Sumner County. No. 18543-C and 20233-C The Honorable Arthur McClellan, Judge.

No. M2000-01101-COA-R3-CV - Filed July 31, 2001

No. M2000-01127-COA-R3-CV

________________________ On August 5, 1998, Donna Jo Russell Freeman filed a complaint for divorce against John Robert Russell. The parties entered into a Marital Dissolution Agree me nt (“MDA”) and sh ortly therea ft er the trial court en

tered a final de

cree of divorce

on December 21,

1998. The MDA did notaddress the legal rights and responsibilities with regard to the two children (hereinafter referred c oll ectively as “the minor children”). The children’s biologica l father is Carl Robert Freeman. Donna Jo Russell and Carl Robert Freeman married on Nove mber 29, 1999. Sub seq uen tly, Carl Robert Fr eeman filed a petition to establish parentage of John and Josiah Russell. John Robert Russell fil ed a motion seeking

temporary

visitation rights o

f the min o r childrena nd a Rule

60.02 motion. The trial court denied John Robert Russell’s temporary visitation rights and conso lidated his Rule 60 mo

tion with Carl Rober

t Freeman’s paren tage petition. On March 10, 2000, the Circui t Court of Sumner County granted Carl Robert Freeman’s petition to establi sh parentage , effectively making him the father of the minor children. The trial court further denied John Robert Russell’s Rule 60.02 motion. On April 24, 2000, John Robert Russe

ll filed this appea

l. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
D ON R. A SH , S P
. J., delivered the op inion of the court,

in which F ARMER , J., and C RAWFORD , J joined. John R. Phillips, Jr., for t he appellant, John Ro

bert Russell. Joseph Y. Longmire, Jr., for the appellee, Donna Russell Freeman. Bryce C. Ruth, Jr., for the appellee, Carl Robert Freeman. OPINION
I. Donna

Jo Russell Freeman (

“Mrs. Freeman

”) and John Robert Ru

ssell (“M r. Russell”) weremarried in 1979. Following the birth of their third ch ild on December 14, 1983, Mr.2

Russell underwent a vasectomy. During the marriage,

Mrs. Freeman be

gan an extra-ma

rital affair

with Carl Robert Freeman (“Mr. Freeman”). Consequent ly, Mrs. Fr eeman became pregnant in the later part of 1990. The first child (“child one”) fathered by Mr. Fre eman was born in September of 1991. Following the b irth, Mrs. Freem an assured Mr. Rus sell that the child w as his child. She als

o reminded him vasectomies are not 100% effective.
In late 1995 Mrs. Freeman became pre gnant with a sec ond child. The sec

ond child (“child two”) fathered

by Mr. Fre

eman was born in Se

ptember 1996. Ag

ain, Mr. Russell confronted

Mrs. Freeman about the b i rth of these two children (“minor children”). Her explana tion was the same as before, that vasectomies are not 100% effective. Consequent ly, Mr

. Rus sell treated t he minor children as his own. However, it was not until Mr. Russell had problemswith his reproduc ti ve organs did hefind out he was not the father of the two minor ch ildren. Sadly, Mrs. Freeman admitted to Mr. Russell she and Mr. Freeman have be en havin g an extra-marital affair, which ultimately led to the births of the minor children. Upon learning of this information , Mr. Russell continued to live with Mrs. Freeman whi le atte mpting to work on th e marriage. T

heir attempts at r

econciliation fa

ltered and shortl

y ther eafter Mrs. Freeman fi

led for divorce i

n August of 1998 c

iting irreconc

ilable differen

ces. During the divorce proce edin gs, Mr. Russell and Mrs. Freeman entered into a Marital Dissolution Agreement

(“MDA”). Mr. Russell and Mrs. Freeman were both represented by attorn eys during the divorce proceedings. The MDA provided provisions for Joel Thom a s Russell, the only remaining minor child fathered by Mr. Russell. Ho wever, the MDA did not make provisions for the two minor children fathered by Mr. Freema n. The trial court granted a divorce on December 21, 1998, to the parties based upon irreconcilable

differences a

nd awarded joint l

egal custody

of Joel Thomas Russellwith primary custody being awarded to the wife. Following the divo rce, Mrs . Freeman allow ed Mr. Russell visitation with the two mino r ch ildren born of the relationship betw

een Mr. Freema

n and Mrs. Freeman with no support obligations. Thereafter, Mr. and Mrs. Freeman began living together withthe two minor childr en. In Septemb

er 1999, Mr. Russe

ll’s liber al visitation with the minor children was limited to Thursdays. On November 29, 1999, Mr. and Mrs. Freeman mar ried.
On Decemb er 20, 1999, husband filed a Motion pursuant to T.R.C.P. 60.02 for relief from the December

21, 1998 , final order of divorce. Shortly thereafter Mr. Russell’s liberal visitation with the minor children was terminated. On January 21, 2000, Mr. Freeman, biological father of the children, filed a petition wi th the trial court to establish parentage of the minor children. In the January 21, 2000, pleading Mr. Freeman states that gene tic testing had confirmed that he was the biological father of the minor children. Sub seq uen tly, Mr. Russell filed a motion asking Circuit Court for temporar y visitation withthe minor children. On Mar ch 3, 2000, the trial court denied the husband’s motion for temporary

visitation with the minor children and consolidated M r. Russell’s Rule 60 moti on with Mr. Freeman’s petition to establish paternity. A hearing was held on Mar ch 10, 2000, regarding Mr. Russell’s Rule 60 motion and Mr. Fre eman’s petition to establish paternity. After a hearing3

on the matter, the tr

ial court grant

ed Mr. Freeman ’s petit

ion to esta

blish parentage and denied Mr. Russell’ s Rule 60.02 motion. O n April 24, 2000, Mr.

Russell filed notice

of appeal citi

n g that his constitutionally protected rights of parenthood have been i mpinged , that the doctrine of equitable estoppel operates to bar Mrs. Freeman from denying his paterni ty of the minor children, and that the t rial court abused its di scretion in not gr

anting relief p

ursuant to Tenn.R.Civ.P. 60.02. II. The first issue to consider is whether T.C.A. § 36-2-304, as app lied by the tr ial court, violatedMr. Russell’s const itutionally pr

otected rights o

f parenthood. The

relevant portion

s o f T.C.A. § 36-2-304 a

re as follows: Presumption of parentage. – ( a) A man i s rebuttably presumed to be the father of a child if: (1) He and the child’s mother are married or have been ma rried to each other and the child i s born during the marriage or within three hundred (300) day s after the marriage is terminated by death, annulment o

r dec laration of invalidity, or divorce;

*** (A) He has acknowledged hi s paternity of the child in writing filed under a putative father regi stry establi shed by the d

epartment of chi

ldren services, pursuant to § 36-2-318;

*** (4) While the child is under the age of maj or ity, he rec eives the child into his home and openly holds the child out as his natural child; or (5) Genetic tests have been administered as provided in § 24-7 -112, an exclusion has not occurre d, and the te st resu lts show that a statis tical probability of parentage of ninety-five perce nt (95%) or greater.

*** (c) All prior presu m ptions of parentage established by the previous paternity and legitimization statutes and cases are abolished. Recently in Cihlar v. Crawford , 2000 WL 1183068 *8 (Tenn. App. 2000), the court spe cifically

addressed the c

onstitutionality

of the parentag

e statutes enact

ed by the leg

isl ature

. The court identified five compelling governmental interests that give pu tative biological fathers a right to establish paternity of a child born to a married woman. 1 See Id. at *12. When asserting a claim of parent

age, the biol

ogical fat

her must asser

t “two essen

tial in gredients. ” Id. Cihlar provides :4

First, the procedure must com ply with minimum proced ural due proces s requirements

which include adequate notice, an opportunity to present evidence, anda decision based on the evidence by an impartial trier-of-fa ct. Second, the procedureshould e nablethe trier-of-f act to consider th

e level of commitme

nt to parenthood that the presumptive father or fathers have demonstrated.
Id. at *12-13. This case, like Cihlar , is a disagreement between two m en who are p resumptively the father of the two minor chi

ldren. Mr. Russell i

s presumptively

the minor child

re n’s father be cause he was married to

Mrs. Freeman a

t the time they

were conceive

d. In fact, Mr

s. Freema n hadmade numerous representations to him that he was the father of the two minor children even after Mr. Russell underwent a vasectomy following the birt h of his third child, Joel. See T.C.A. § 36-2-304 (a)(1). Howev er, genetic te

sting has confir

med that Mr. Free

man is also presumptively

the minor c hildren’s father by a stat istical pr obabilit y of 95% or gr eat er. See T.C.A. § 36-2-304 (a)(

5). In additio

n to the genetic p

roof, Mr. And Mrs.

Freeman have lived in a traditional family setting fo r more than t wo years with Mr. Freeman openly holding the minor childrenout as his natural children. Furthermore, Mr. Freeman consented in wri ting to be named the minor child

ren’s fathe r on their birth certificates and requested the that their names be changed on the Parentage Petition he filed.
In order to resolv

e the issue of parentage, this court should take into consideration: (1) the stability of the child’s current family environment; (2) the existence of the on going family unit; (3) the source or

sources of the child’s support; (4) the child’s relationship with the presumptive fathe r; and (5) the child’s physical, mental and emotional needs. Cihlar , 2000 WL 1183068 at *13.
Donna Jo Russell Freeman married the bi ological father, Carl Robert Freeman, on November

29, 1999. Sinc e the marriage they have lived in a traditional family atmosphere. Shortly following the marriage, Mr. And Mrs. Freema n decided it would b

e in the best intere

sts of the minor children to sever their relation sh ip with Mr. Russell due to the confusion surrounding Mr. Russell’s claims that he was the father of the minor children. Similarto Cihlar , this court finds that the “parent’s inter est and ability

to provide a child monetary and parental support are relevant.” Id. at *14. The weight of this consideration favors Mr. Freeman. Mr. Freeman provides and continues to provide child suppor t to t he minor children. Following the Freemans marriage and during Mr. Russel l’s periodic visitation with the minor children, Mr. Russ

ell ne ver provided child support for them. We do recognize that Mr. Russell provided support to the mi nor children during his marriage with Mrs. Freeman, however, the support ended with the MDA. The record clearly shows that Mr. Russell entered into the MDA knowing the agreement did not provide provisions regarding his visitation or child support obligations. We are convinced by this affirmative act that Mr. Russell waived any legal right he might have to the minor children. Consequently, we find the wei ght o f the evidence overwhelmingly

favors Mr. Freeman. Accordingly, the judg ment of the trial court finding Mr. Freeman the father of John Lawrence Free man and Josiah M. Freeman is affirmed.5

III. The secondissu e for this court to consider is whether the doctrine of equitable estoppel should ope rat e to prev ent Mr. and Mrs . Fre ema n fr om d enyi ng Mr. Russ ell’s rights to the minor children. While estoppel doctrines are not fa vored under Ten

nessee law, the e

ssential elements in proving a successful equitable estoppel claim is well settled. Sturkie v. Bottoms , 310 S.W.2d 451 (Tenn. 1958); Callahan v . Town of Middleton , 292 S.W.2d 501 (1954) . The court in Consumer

Credit Union v. Hite , 801 S.W.2d 822, 825 (Tenn. Ct. App. 1990), provided the essential elemen

ts to be proven: The essential elemen

ts of an equitable estoppel as related to the party estopped are said to be (1) Cond uct whic h amounts to a false representation or concealment of material facts, or, at least, which is calculated to convey the impression that the facts ar e otherwise than, a nd inconsistent with

, those which the pa rty subsequently

attempts to assert; (2) Intenti on, or at least expectation that such conduc t shall be acted upon by the other party ; (3) Knowledge, actual or constructive of the real facts. As related to the party claiming the e s toppel they are (1) Lack of knowledge and of the m e ans of knowledge of the truth as to the facts in question; (2) Relian ce upon the conduct of the party estopped; and (3) Act ion bas ed t here on o f su ch a c hara cte r as to c han ge hi s po sit ion prej udi cia lly. citing Callahan , 292 S.W.2d 501 (1954). Here, Mr. Russell contends equitable estoppel applies in the instant case be cause Mrs. Freeman represented to him for several years that bo th minor children w

ere fathered b

y him. Acco rdi ngly, Mr. Russell treated these children as his own for over five years a nd provided financial and emotional suppo rt to these childre

n during that p eriod of time. How ever, prior to the divorce action, Mr. Russell became aware that he was not the biological father of the children. During negotiations for a divorce settlement, both Mr. Russell and Mrs. Freeman acknowledged

that the minor children were the biological children of M r. Carl Fre eman. Sub seq uen tly, they entered into a MDA. The MDA made no provision for visitation or support of the two min or ch ild ren b orn by M r. Freeman nor did the agreement make special provisions regarding potential legal

rights Mr. Russell

might h ave with the minor c hildren. Mr. Russe

ll assertsthat he and Mrs. F reeman had a sile

nt agreement a

llowing him vis

i tation with the chi ldren. In t

he interim Mr. Russell visited with the children, but shortly thereafter the Freemans disallowedMr. Russell visitation with the children. Mr. Russel l failed to provide support to these children during this interim basis. WhileMr. Russell contends there was a silent agreement regarding visitation rights, we are of the opinion that s

omething as impor

tant as visit

a tion rights should h

ave been specif

ied in the MDA. Both of the parties were represent ed by separate attorney s during the course of the MDA. The MDA made no pr ovisions f or visitation or support regarding the minor children. These omi ssi ons are c ent ral to t his iss ue b ecau se M r. R uss ell effe cti vel y r ecognized that he was notthe father of the

se two mi nor children, thus, waiving any claim to parentag

e he might have to the m inor chi ldren by signing off on the MDA. Based on the above -mentioned facts, we are of the opinion that Mr.

Russell’s equitabl

e estoppel claim h

as no merit.6

IV. Th e fina l issue for this cour t to consider on app

eal is whether the

trial court erre

d in rulin g that Tenn.R. Civ.P. 60.02 was not a viable relief option for Mr. Russell. The scope of review on appeal is limited to whether the trial judge abused h is discretion i n granting or not grantingthe relief reque sted pursuant to Rule 60. Banks v. Dement Const. Co., Inc. , 817 S.W.2d 16, 18 (Tenn. 1 991). The rule pr ovides: Rule 60.02 Mistakes; Inadvertence; Excusable Neglect; Fraud, etc.
On motion and upon such t erms as are j ust, the co urt may relieve a party or the par ty's legal represe

ntative from a fin

al judgment, orde

r or proceeding

for the following

reasons: (1) mistake, inadver

tence, surprise

or excusable neg

lect; (2) Fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or oth er m isc ond uct of an adv ers e par ty; * * * (5) any other reason justifying relief from the operation of the judgment. The party moving

for Rule 60 relief

has the burden of

proving that he is

e ntitled to relief, andthere must be proo

f of the basis on wh

ich relief is soug

ht. Federated Ins. Co. v. Lethcoe , 18 S.W.3d 621, 623-624

(Tenn. 2000); Banks , 817 S.W.2d at 18. The trial court in it’s ruling denied the relie f requested by Mr. Russell. In it’s ruling, the trial court specifically found:
Mr. Russell testified that at the time of the entry of the co ntract and at the time of the approv al of the Marital Dissolution Agreement and entry of the divorce b y Judge Goodall, he was r epresented by counsel, he understood what was in the Marital Dissolution Agre ement and he ack

nowledged to Mr.

Longmire th

at there was no m istake, there was no adverse, there was no surprise, there was no ne glec t on his part, that he knew the contents. C onversely , he introduces parole evidence as it pertains to the entry of the MDA wherei n he indicat es that he was assured an d Mrs. F reeman concur s that he was assur

ed that he would be

permitted certa

in visitation and to maintain a c ertain relati

onship with the two boys that are the subject matter of this motion. The question that wo uld arise at that point in an effort to do an analysis is whether or not that would give rise under 60.02(5) for the Court to grant him relief. The cases that I’ve read under 60.02(5) construe that section very narrowly, and fran kly, I’ m of the opinion that the ca ses I’ve re

ad with this one woul

d not fall within the parameters of 60.02(5).7

We agree with the trial court’s assessment. First, Mr. Russell testified that he was not surprisedor mistaken, nor w ere any mis

representation

s made to him when he en tered the MDA. Cle arl y, Rule 60.02(1) would not be a viable option of relief for Mr. Russell. Next, Mr. Rus sell argues that Rule 6 0.02(2) wou ld apply. The t rial court h ad gr eat conce rns regarding Rule 60.02(2) as it applied to this case: Whatbothers me is that pe rhaps under 60.02

(2), which was not plead, but there might be an argument tha

t there was frau

d in the inducement

, based upon Mrs. Russell’s assertion that he would be permitted continue d contact with thes

e boys.

Whilethe trial court expressed some concerns regarding Rule 60.02, we do not think there was fraud in the inducement . The reco rd reflects that Mr. Russell did exercise some form of visi tation with the minor children for a small period of time following the divorce. H owever , soon thereafter Mrs . Freeman felt i t was i n t he best interest o f the children to te

rminate their r elations hip with Mr. Russell. Her reasoning for making this decision was based on the confusion it was causing thetwo children. Mrs. Freeman a grees that she a

llowed Mr. Russell visitation with the children, b ut not for a s pecific period of time. Further, Mr. Russell did not pay child support for t

he children while

he was exercising

visitation with

th em. During the settlement

negotiations Mr. Russell was represented by counsel, however they failed to provide provisions in the MDA reflecting visitation or support. We cannot f ind a demonstration of fraud on behalf of Mrs. F

reeman when she

terminated Mr. Rus sell’s periodic vi sitation privileg

es. Last ly, Mr. Russell contends that relief should be g ranted based on Rule 60.02(5) catchall provision. Courts have h eld that Rule 60.02(5) can only be raised in the most unique, except ion al or extraordinary circumstances. NCNB Bank of North Car olina v. Thrailkill , 856 S.W.2d 150 (Tenn. Ct. App. 1993); Gai n es v. Gaines , 599 S.W.2d 561 (Tenn. Ct. App. 1980). F urthe rmore, courts construe R ule 60.02(5) nar

rowly due to

the value of fina

lity in judgme

nts. Id.
Mr. Russell contends that Mr. and Mrs. Fr eeman actions caused him to forego defining his rights in the MDA, thus, making it a very uniq ue, exceptional or extraordinary case. Construing R ule 60 .02(5) narrowly , we cannot find th

at the circumstan

ces surrounding

this case are unique, exceptional or extraordinary. In fact, Mr. Russel l free ly entered

into the MDA while represented

by counsel. As import ant as visitation wit h these children s

eem to be to Mr. Russe

ll he should have simply preserved any leg al rights he might have with these chi ldren in the MDA. He f a iled to do so and by

doing so we do not f

ind this is a unique c

ase for Rule 60.02

(5) relief in lieu of Mr. Freeman being the biological father of these t wo min or children. Accordingly, we cannot find that the trial court abused its discretion in denying relief under Rule 60.02.
V.
For

the reasons set forth ab ove, the order of the trial court establishing parentage in favor of Mr. Freeman an d the deni al of Mr. Russell’s Rule 60 motion is affirmed. In addition, we find8 OPINION FOOTNOTES

1 First, the Stat

e has an interest i

n eliminating uncertainty and confusion regarding achil d’s parentage. Second, the Stat

e has an i

nteres t in enf orcing a biological

father’s obligat

ion to support his children i n order to pr event

them fro m enterin g welfare rolls. Third , the State h as a respo nsibility to elim inate disp arate treat ment between mar

ital and non-mar

ital childr en. Fourt

h, the Sta te has a

n inter est i n protec ting t he interests of

the biological f

athers who have made, or prepared to make, a substantial personal investm ent in their relationsh ip with th eir childre n. Fifth, th e State ha s an intere st i n enab ling child ren to a scert ain the identity of their biologi cal parents for medical or other health re asons. Cihlar v. Crawfo rd , 2 000 WL 11830 68 *12 (T enn. Ap p. 2000 ). that Mr. Russell’s equitable estoppel claim has no merit. Costs on appe al are assessed ag ainst Mr. Russell.

_________________________________ DON R. ASH, SPECIAL JUDGE