# FILED

October 27, 1998 Cecil W. Crowson Appellate Cou rt Clerk MARY ALICE (WILLIAMS) GRIFFIN, ) ) Plaintiff/Appellee, ) ) Appeal No. vs. ) 01-A-01-9802-CH- 00084 ) LACY FLOYD GRIFFIN, ) Montgomery Chancery ) No. 95-08-0149 Defendant/Appel

lant. )

COURT OF APPEALS OF TENNESSEE

APPEAL FROM THE MONT GOMERY COUNTY CHAN CERY COURT AT CLARKSVILLE, TENNESSEE
THE HONORABLE CAROL A. CATALANO, CHANCELLOR

THOMAS R. MEEKS 137 Franklin Street Clarksville, Te

nnessee 37040 GREGORY D. SMITH One Public Square , Suite 321 Clarksville, Te

nnessee 37040 ATTORNEYS FOR PLAINTIFF/APPELLEE

FRANK J. RUNYON P. O. Box 1023 Clarksville, Te

nnessee 37041 ATTORNEY FOR DEFENDANT/APPELLANT

AFFIRMED AND REMANDED

WILLIAM B. CAIN, JUDGE2 

### O P I N IO N
Lacy Floyd G

r iffin married Ma

ry Alice William

s in November of 1964. They had been married for thir ty-one years, whe

n Mrs. (Williams)

Griffin filed suit for divorce from the b on ds of matrimony on the grounds of irreconci lable differences and c

ruel and inhuman tre

atment. The com

plaint was filed August 29, 1995. The parties executeda Marital Dissolut ion Agreement on A

ugust 30, 1995. Mr. Griffin w

as not represented b

y counsel in

the divorce. The

agreement reads in pertinent pa

rt: The HUSBAND sha

ll be responsible for mak ing the house payments i n t he amount of $469.44 pe r month until paid in full and

hold the WIFE har

mless from any remaining

indebtedness owed an

d outstanding on the real property loca

ted at 112 B agsby Hill Lane, Ste wart County, Dov er, Tennessee 37058. HUSBAN D shall indemnify WIFE f

or all damages inclu sive of attorneys fees for his failu re to make a nd pay all remaining indebtedne ss owed on said real property. Thoughthe complaint for di vorce listed no childr

en born of th e marriage, Mr. and Mrs. Griffin ha

d two adul t children of the ma rriage. At the t

ime of the divorce, Mr. G

riffin was suffering fr

om miscellaneous ma

ladies due to his

age and line of work. The Final Decree o f D ivorce was enter ed in this case on October 30, 1995. On March 10, 1997, a full eighteen months after the original f inal decree, Mr. Griffin filed a “Petition to Terminate Payment” stating, inter alia: 3. In support of same the Petitioner would allege that he is in ill heal th and the making of [the house payment] creates an undue h ardsh ip upon him. Further, the Petitioner would state that the reason the Petitioneragreed topay said payments was because at the time the Res ponden t was unable to do so. Since then the Respondent has re married on August 2,

1996 and s he a nd her husband are both residing in the residence. The refor e your Petitioner alleges that [Respondent] is receiving support from other sources an d is well able to mana ge the payment

on th e residence at this ti me.
On June 20, 1997, Ap

pellant filed a moti

on to set aside the Final Decree of Divorce on the f

ollowing grounds:3 1. Lacy Fl oyd Griffin and Plaintiff

/ Respondent, Mary Alice Williams (Griffin - Earhart), were married on

November 1964. 2. Tim Griffin was bor

n on 12/7/68 and lived as the biological son of

Lacy Floyd Griffin and Mary Alice Williams (Griffin - Earhart). 3. Donald

Gri f fin was born on 10/25/65 and lived as the biological son o f L acy Floyd Griffin

and Mary Alice Williams (Griffin - Earhart). 4. Mary Alice Williams ( Griffin - Earhart) was married and divorced from Eddi e Earhart prior to marrying Lacy Floyd Gri ffin.. 5. Mary Alice Williams (Griffin - Ea rhart) and Earhart had a c ontinuous affair which lasted throughout

the marriage of Mary Al ic e Williams (Griffin - Ear

hart) and Lacy Fl

oyd Griffin. 6. Lacy Floyd Griffin was experiencing severe chest pains during the latte

r pa rt o f 1995, and sought medi cal tre atment at St. Thomas Hospital in Nashville, Tennessee. 7. Whil e Lacy Floyd Griff in was seeking treatment for said ch e st pains, Mary Alice Williams (Griffin - Earhart) fil ed a complaint for divorce, seeking the divorce on the gro unds of 1. Irreconc

ilable Differences,

and 2. Cruel and In

human Treatment. 8. Mary Alice Williams ( Griffin - Earhart) then, through her attorney Tho mas Meeks, cause d a “Marital Dissolution Agr

ee ment” (MDA) to b

e drawn. The MDA c ited the sole ground fo r divorce as being “Irreconcilable

Di f ferences,” purs

uant to T.C.A.36-4- 101. 9. Mary Alice Williams (Griffin - Earhart ) then drove Lacy Floyd Griff

in to the office of

her attorney, and asked him to si gn the MDA. 10. Lacy Floyd Griffin h as an eighth-grade educati on, has difficulty rea ding and at the time he was asked to sign the MDA was experiencing further physical problems wi

th his eyes. 11. Mary Alice Williams ( Griffin - Earhart) was aware of the factsrecited in paragraph ten, and asked Lacy Floyd Griffin to si gn the MDA.4 12. Lacy Floyd Griffin did not thoroughly read the MDA and the MDA was not read to him. 13. T he terms of the MDA were oppressiv

e , unconscionable, extremely one-sided, and not true. 14. Th e MD A recites that “no children were born of the marriage,” and this is not true. 15. Donald

Griffin was born of the mar ria ge, and Lacy Floyd Griffin is his biological father. 16. Tim Griffin was born during the m

arriage of Lacy Floyd Griffin

and Mary Alice Williams ( Griffin - Earhart), but recently, since the filingof the “Final Decree of Divorce,” Ma

ry Alice William

s (Griffin - Earhart) told Tim Griffin that Eddie Earhart was his father. 17. Tim Griffin and

Donald Griffin

had always known Lacy Floyd Griffin to be their father, and both were supported and loved by Lacy Floyd Griffin as a father. 18. Mary Alice Williams ( Griffin - Earhart) has nevertold Lacy FloydGriffin that Tim Griffin was not his son.

In e ssence , after the divorc e decree was ent

ered in this case,

Mr. Griffin discovered that one of the adult children born during his marriage might not be his. He also discovere

d that his wife had been conducting an ongoing affair; that the paramour is now her new husband; and that the couple now occupy his former home. There is no doubt that the facts bef ore this co urt paint a sad picture.

The most unfortunate par t of this story, howe

ver, is that und

er these circumstances,

the allegations raised in the instant petition do not rise to the level required.

Rule 60 .02 of the Tennessee Rules of Civil Procedure provides in pert inen t part: 60.02 M ista kes - Inadvertence - Excusable Negl

ect - Fraud, etc. On motion and upon such terms as are just, the court may relievea party or the party's legal5 representative

fro m a final judgment, order or pr ocee ding for the following reasons: (1) mistake, inadvertence, surprise or excusab le neglect; (2) fraud (whetherheretofore denominate d intrinsic o r extrinsic), misrepresentation , or other miscondu ct o f an adverse party; (3)

the judgm en t is void; (4) the judgment has been satisfied, r

eleased or dischar

ged, or a prior judgment upon wh ich it is base d has be en reversed or oth erwise vacated, or it is no longer equitable that a judgment should ha ve prospe ctiv e application; or (5) any other reason justify ing r elief from the operation of the judgment. The motion shall be made within a rea

sonable time, and f

or reasons (1) and (2) no t mor e than one year aft er the judgment, order or proc eedin g was entered or ta ken. A motion under this Rule 60.02

does not affect the

finalityof a judgment or suspend its operation, but the c ou rt may enter an order suspending the operatio n of the judgment upon such terms as to bond and not ice as to itshall seem proper pending the hearing of such motion. This rule does not lim it the power of

a court to entertain an independent action to relieve a party from a judgment, order

or p roceeding, or to se

t aside a judgment for fraud u

pon the court. Writ

s of error coram nobis, bills of review and bills in the nature of a b ill of review are

abolished, and the pr

ocedure for obtaining relief

from a judgment shall be by motion as prescribed in these rules or by an independent action. Tenn. R. Civ. P. 60.02 (1998).
Reading only Appellant’s mot ion, the request to set aside

the decree of the trial courtsounds clearly in fraud. The “statutory” period in which to bring an actionhas lapsed. Appell ant attempts to bypa ss this obstacle by asserting that his mot ion is actua

lly grounded in the “any other reason” portion of the rule. Even were this court pe

rsuaded by such an ar

gument, relief w

ould stillbe beyond Appellant’s reach. In the case at bar, Appellant did not appe

ar to defend his wife’s divorce petition. His signature appe ars in the Accepta

nce of Service dated August 19, 1995. In addition, Mr. G riffin forwarde

d a note to the trial c

ourt, bearing the file date of O ctober 2, 1995, in w

hich he state d "I Lacy F. Griffin know today the 2nd

of Oct. is court

date. I agree to the papers we signed. s/Lacy F. Griffin."6 The well-establ

ished rule in this juri sdiction is that the decision whether
or not to set aside a def

ault judgment is wit

hin the s ound discretion of the Chanc ellor, which will not be ove rturned absent a show

ing of abuse of th a t discretio n. Turne r v. Turner , 739 S.W.2d 779, 780 (Tenn. Ct. App. 1986), (Citing Moore v. Palmer, 675 S.W.2d 192, 194 ( Tenn. Ct. App.1984)). While the judgment in

the instant case ma

y not technically be a

default judgment, it is
a judgment entered without the benefit of the presence of the aggriev ed party. The above rule appl

ies in this situation.

Itseems that Mr. G

riffin, by the insta

ntmotion, attempted t

o persuade the trial court to reexamine the fa irness o f the original Mari tal Dissolution Agreement

a ft er failing to appea

r himself to question t

he document in the fir

st instance. In circumstances such as these, this c ourt is loath to readdress the trial court’s decision. See Brown v. Brown , 863 S.W.2d 432 (Tenn. Ct. App. 1993). See also Day v. D

ay , 936 S.W.2d 931 (Tenn. Ct. App. 1996).

Under the authorities cite

d above, this court a

ffirms the tria

l c ourt’s dismissal and remands the cau se for such further proceedings as are necessary. Costs on appeal are t

axed against Appell

ant.

_____________

_________________

___ _ WILLIAM B. CAIN, JUDGE

CONCUR:

__________________________________ ______ BEN H. CANTRELL, P

RESIDING JUDGE,M.S.

__________________________________ ______ WILLIAM C. KOCH, JR., JUDGE