FILED

October 27, 1998

Cecil W. Crowson

Appellate Court 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/Appellant. )

COURT OF APPEALS OF TENNESSEE

APPEAL FROM THE MONTGOMERY COUNTY CHANCERY COURT

AT CLARKSVILLE, TENNESSEE

THE HONORABLE CAROL A. CATALANO, CHANCELLOR

THOMAS R. MEEKS

137 Franklin Street

Clarksville, Tennessee 37040

GREGORY D. SMITH

One Public Square, Suite 321

Clarksville, Tennessee 37040

ATTORNEYS FOR PLAINTIFF/APPELLEE

FRANK J. RUNYON

P. O. Box 1023

Clarksville, Tennessee 37041

ATTORNEY FOR DEFENDANT/APPELLANT

AFFIRMED AND REMANDED

WILLIAM B. CAIN, JUDGE
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O P I N I O N

Lacy Floyd Griffin married Mary Alice Williams in November of 1964.

They had been married for thirty-one years, when Mrs. (Williams) Griffin filed

suit for divorce from the bonds of matrimony on the grounds of irreconcilable

differences and cruel and inhuman treatment. The complaint was filed August

29, 1995. The parties executed a Marital Dissolution Agreement on August 30,

1995. Mr. Griffin was not represented by counsel in the divorce. The agreement

reads in pertinent part:

The HUSBAND shall be responsible for making the

house payments in the amount of $469.44 per month

until paid in full and hold the WIFE harmless from

any remaining indebtedness owed and outstanding on

the real property located at 112 Bagsby Hill Lane,

Stewart County, Dover,Tennessee 37058.HUSBAND

shall indemnify WIFE for all damages inclusive of

attorneys fees for his failure to make and pay all

remaining indebtedness owed on said real property.

Though the complaint for divorce listed no children born of the marriage, Mr.

and Mrs. Griffin had two adult children of the marriage. At the time of the

divorce, Mr. Griffin was suffering from miscellaneous maladies due to his age

and line of work. The Final Decree of Divorce was entered in this case on

October 30, 1995. On March 10, 1997, a full eighteen months after the original

final 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 health and the making of [the house

payment] creates an undue hardship upon him.

Further, the Petitioner would state that the reason the

Petitioner agreed to pay said payments was because at

the time the Respondent was unable to do so. Since

then the Respondent has remarried on August 2, 1996

and she and her husband are both residing in the

residence. Therefore your Petitioner alleges that

[Respondent] is receiving support from other sources

and is well able to manage the payment on the

residence at this time. 

On June 20, 1997, Appellant filed a motion to set aside the Final Decree

of Divorce on the following grounds:
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1. Lacy Floyd Griffin and Plaintiff/

Respondent, Mary Alice Williams (Griffin - Earhart),

were married on November 1964.

2. Tim Griffin was born on 12/7/68 and lived

as the biological son of Lacy Floyd Griffin and Mary

Alice Williams (Griffin - Earhart).

3. Donald Griffin was born on 10/25/65 and

lived as the biological son of Lacy Floyd Griffin and

Mary Alice Williams (Griffin - Earhart).

4. Mary Alice Williams (Griffin - Earhart) was

married and divorced from Eddie Earhart prior to

marrying Lacy Floyd Griffin..

5. Mary Alice Williams (Griffin - Earhart) and

Earhart had a continuous affair which lasted

throughout the marriage of Mary Alice Williams

(Griffin - Earhart) and Lacy Floyd Griffin.

6. Lacy Floyd Griffin was experiencing severe

chest pains during the latter part of 1995, and sought

medicaltreatment at St. Thomas Hospital in Nashville,

Tennessee.

7. While Lacy Floyd Griffin was seeking

treatment for said chest pains, Mary Alice Williams

(Griffin - Earhart) filed a complaint for divorce,

seeking the divorce on the grounds of 1. Irreconcilable

Differences, and 2. Cruel and Inhuman Treatment.

8. Mary Alice Williams (Griffin - Earhart)

then, through her attorney Thomas Meeks, caused a

“Marital Dissolution Agreement” (MDA) to be drawn.

The MDA cited the sole ground for divorce as being

“Irreconcilable Differences,” pursuant to T.C.A. 36-4-

101.

9. Mary Alice Williams (Griffin - Earhart) then

drove Lacy Floyd Griffin to the office of her attorney,

and asked him to sign the MDA.

10. Lacy Floyd Griffin has an eighth-grade

education, has difficulty reading and at the time he

was asked to sign the MDA was experiencing further

physical problems with his eyes.

11. Mary Alice Williams (Griffin - Earhart) was

aware of the facts recited in paragraph ten, and asked

Lacy Floyd Griffin to sign the MDA.
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12. Lacy Floyd Griffin did not thoroughly read

the MDA and the MDA was not read to him.

13. The terms of the MDA were oppressive,

unconscionable, extremely one-sided, and not true.

14. The MDA recites that “no children were

born of the marriage,” and this is not true.

15. Donald Griffin was born of the marriage,

and Lacy Floyd Griffin is his biological father.

16. Tim Griffin was born during the marriage of

Lacy Floyd Griffin and Mary Alice Williams (Griffin -

Earhart), but recently, since the filing of the “Final

Decree of Divorce,” Mary Alice Williams (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

never told Lacy Floyd Griffin that Tim Griffin was not

his son.

In essence, after the divorce decree was entered in this case, Mr. Griffin

discovered that one of the adult children born during his marriage might not be

his. He also discovered 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 before this court paint a sad

picture.

The most unfortunate part of this story, however, is that under 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 pertinent

part: 

60.02 Mistakes - Inadvertence - Excusable Neglect -

Fraud, etc. On motion and upon such terms as are

just, the court may relieve a party or the party's legal
5

representative from a final judgment, order or

proceeding for the following reasons: (1) mistake,

inadvertence, surprise or excusable neglect; (2) fraud

(whether heretofore denominated intrinsic or

extrinsic), misrepresentation, or other misconduct of

an adverse party; (3) the judgment is void; (4) the

judgment has been satisfied, released or discharged, or

a prior judgment upon which it is based has been

reversed or otherwise vacated, or it is no longer

equitable that a judgment should have prospective

application; or (5) any other reason justifying relief

from the operation of the judgment. The motion shall

be made within a reasonable time, and for reasons (1)

and (2) not more than one year after the judgment,

order or proceeding was entered or taken. A motion

under this Rule 60.02 does not affect the finality of a

judgment or suspend its operation, but the court may

enter an order suspending the operation of the

judgment upon such terms as to bond and notice as to

it shall seem proper pending the hearing of such

motion. This rule does not limit the power of a court

to entertain an independent action to relieve a party

from a judgment, order or proceeding, or to set aside

a judgment for fraud upon the court. Writs of error

coram nobis, bills of review and bills in the nature of

a bill of review are abolished, and the procedure 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 motion, the request to set aside the decree of the

trial court sounds clearly in fraud. The “statutory” period in which to bring an

action has lapsed. Appellant attempts to bypass this obstacle by asserting that

his motion is actually grounded in the “any other reason” portion of the rule.

Even were this court persuaded by such an argument, relief would still be beyond

Appellant’s reach. In the case at bar, Appellant did not appear to defend his

wife’s divorce petition. His signature appears in the Acceptance of Service dated

August 19, 1995. In addition, Mr. Griffin forwarded a note to the trial court,

bearing the file date of October 2, 1995, in which he stated "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-established rule in this jurisdiction is that the decision whether

or not to set aside a default judgment is within the sound discretion of the

Chancellor, which will not be overturned absent a showing of abuse of that

discretion. Turner 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 may not technically be a default judgment, it is

a judgment entered without the benefit of the presence of the aggrieved party.

The above rule applies in this situation.

It seems that Mr. Griffin, by the instant motion, attempted to persuade the

trial court to reexamine the fairness of the original Marital Dissolution

Agreement after failing to appear himself to question the document in the first

instance. In circumstances such as these, this court 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. Day, 936 S.W.2d 931 (Tenn. Ct. App. 1996).

Under the authorities cited above, this court affirms the trial court’s

dismissal and remands the cause for such further proceedings as are necessary.

Costs on appeal are taxed against Appellant.

__________________________________

WILLIAM B. CAIN, JUDGE

CONCUR:

________________________________________

BEN H. CANTRELL, PRESIDING JUDGE,M.S.

________________________________________

WILLIAM C. KOCH, JR., JUDGE