Julie Marie Alexander v. Sean Stephen Alexander ( 2019 )


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  •                                                                                         06/13/2019
    IN THE COURT OF APPEALS OF TENNESSEE
    AT NASHVILLE
    June 5, 2018 Session
    JULIE MARIE ALEXANDER v. SEAN STEPHEN ALEXANDER
    Appeal from the Circuit Court for Sumner County
    No. 2010-CV-1377      Joe Thompson, Judge
    No. M2017-01475-COA-R3-CV
    This post-divorce appeal concerns the court’s denial of the mother’s motion for relief
    from an order of the court calculating her child support arrearage. We reverse the court’s
    denial of relief and hold the challenged judgment void. We remand for further hearing.
    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
    Reversed; Case Remanded
    JOHN W. MCCLARTY, J., delivered the opinion of the Court, in which ANDY D. BENNETT,
    and RICHARD H. DINKINS, JJ., joined.
    Julie Marie Alexander, Hendersonville, Tennessee, pro se.
    Joseph Y. Longmire, Jr., Hendersonville, Tennessee, for the appellee, Sean Stephen
    Alexander.
    OPINION
    I.     BACKGROUND
    Julie Marie Alexander (“Mother”) and Sean Stephen Alexander (“Father”) were
    married on March 19, 2005. Two children (“the Children”) were born of the marriage.
    The Parties separated in August 2010 and then filed for an uncontested divorce on
    November 2, 2010, with an attached marital dissolution agreement (“MDA”). The MDA
    provided that neither party would remit child support “[d]ue to the income of each party
    and the number of overnights the [Children] spend with each party.”
    The case proceeded to hearing on February 4, 2011, at which the trial court
    considered the MDA submitted by the parties that included a waiver of child support.
    The court adopted the MDA but entered a permanent parenting plan that tasked Mother
    with remitting child support in the amount of $773 per month. However, the supporting
    child support worksheet cited in the parenting plan and also adopted by the trial court
    provided for a downward deviation of support to $0 per month in light of Mother’s
    agreement to “take responsibility for college education fund.” Further, the worksheet
    provided a final child support obligation of $0 and included the following comment:
    Child support will not be necessary. Neither party wishes to accept money
    from the other parent.
    Mother never remitted child support; however, she remitted some payment to a
    college savings account for the Children. On July 6, 2015, Mother filed a petition for
    modification of the permanent parenting plan referenced in the 2011 divorce decree. She
    sought increased co-parenting time and designation as the primary residential parent
    based upon an alleged material change in circumstances.
    Father responded by requesting dismissal of Mother’s petition and filing a
    counter-petition of his own, requesting the court to hold Mother in contempt for her
    failure to remit child support pursuant to the terms of the permanent parenting plan.
    Father then filed a motion to dismiss Mother’s petition, citing her failure to include a
    proposed parenting plan as required by Tennessee Code Annotated section 36-6-405.
    Mother then filed a proposed parenting plan that provided for her designation as the
    primary residential parent and awarded each party equal co-parenting time. The
    proposed plan included the following provision for retroactive child support:
    A judgment is hereby awarded in the amount of $TBD to [Father] against
    the child support payor representing retroactive support required under [the
    income shares child support guidelines] dating from February 4, 2011[,]
    which shall be paid (including pre/post judgment interest) at the rate of
    $100 per month until the judgment is paid in full.
    The case proceeded to a hearing, after which the court entered a judgment, dated
    June 1, 2016, providing for Mother’s voluntary nonsuit of her petition to modify and
    awarding Father $59,169.21 in unpaid child support and $8,500 in attorney’s fees.
    Mother then filed a motion to quash the execution of the judgment on August 11,
    2016, alleging that she did not owe the debt, that she was not notified of the action, and
    that the amount garnished exceeded the allowable amount and included exempt property,
    leaving her without funds to purchase gas, pay her mortgage and utilities, and buy
    groceries. The case proceeded to a hearing, after which the court found that Mother was
    only entitled to a return of $1,009.11.
    -2-
    Mother then filed a petition for reduction of her child support obligation on
    September 22, 2016, claiming that a significant variance or change in circumstances
    based upon Father’s income and a failure to properly calculate the amount owed. Mother
    also cited Rule 60.02 of the Tennessee Rules of Civil Procedure in support of her request
    for relief from the judgment. A flurry of litigation then ensued; a Rule 60.02 motion to
    vacate the June 2016 judgment was included in the filings. In this motion, Mother sought
    to set aside the judgment entered against her for unpaid child support and attorney fees,
    claiming, inter alia, that she was not present at the hearing and that the June 2016
    judgment was void because it was predicated upon a final decree that incorporated a
    provision not requiring child support.
    As pertinent to this appeal, the court denied the motion for Rule 60.02 relief.
    Mother then filed a renewed Rule 60.02 motion to vacate the June 2016 order as void and
    a request for interlocutory appeal. The court denied the request for interlocutory appeal
    and also denied the second motion for Rule 60.02 relief. This appeal followed. Father
    sought dismissal of the appeal for lack of a final judgment. We denied Father’s request
    for dismissal but held that the only issue this court will consider on appeal raised by
    Mother is whether the trial court erred in denying the Rule 60.02 motion.
    II.    ISSUES
    We consolidate and restate the issues raised on appeal as follows:
    A.     Whether the court abused its discretion in denying Rule 60.02 relief.
    B.     Whether Father is entitled to attorney fees on appeal.
    III.   STANDARD OF REVIEW
    A trial court’s award or denial of relief pursuant to Rule 60.02 of the Tennessee
    Rules of Civil Procedure is generally reviewed under an abuse of discretion standard.
    Federated Ins. Co. v. Lethcoe, 
    18 S.W.3d 621
    , 624 (Tenn. 2000); Underwood v. Zurich
    Ins. Co., 
    854 S.W.2d 94
    , 97 (Tenn. 1993); Ferguson v. Brown, 
    291 S.W.3d 381
    , 386
    (Tenn. Ct. App. 2008). However, our Supreme Court recently held that a Rule 60.02(3)
    motion to set aside a judgment as void must be reviewed under a de novo standard of
    review with no presumption of correctness. Turner v. Turner, 
    473 S.W.3d 257
    , 268-69
    (Tenn. 2015). The Court further determined that “[a]ny factual findings a trial court
    makes shall be reviewed de novo, with a presumption of correctness, unless the evidence
    preponderates otherwise.” 
    Id. (citing Tenn.
    R. App. P. 13(d)).
    -3-
    IV.    DISCUSSION
    A.
    Mother asserts that the court abused its discretion in denying her Rule 60.02
    motion for relief from the June 2016 order. Father responds that the court did not abuse
    its discretion in denying relief when her arguments can only be construed as a challenge
    to the 2011 divorce decree and the attached parenting plan. He notes that neither party
    challenged the court’s modification of the parenting plan and the inclusion of a child
    support provision.
    A final judgment may be set aside pursuant to Rule 60.02 of the Tennessee Rules
    of Civil Procedure when
    On motion and upon such terms as are just, the court may relieve a party or
    the party’s legal representative from a final judgment, order or proceeding
    for the following reasons: (1) mistake, inadvertence, surprise or excusable
    neglect; (2) fraud [ ], 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.
    Relief under this rule is considered “an exceptional remedy.” Nails v. Aetna Ins. Co., 
    834 S.W.2d 289
    , 294 (Tenn. 1992). The function of the rule is to “strike a proper balance
    between the competing principles of finality and justice.” Banks v. Dement Constr. Co.,
    Inc., 
    817 S.W.2d 16
    , 18 (Tenn. 1991) (quoting Jerkins v. McKinney, 
    533 S.W.2d 275
    ,
    280 (Tenn. 1976)). “Rule 60.02 is meant to be used only in those few cases that meet one
    or more of the criteria stated.” Toney v. Mueller Co., 
    810 S.W.2d 145
    , 146 (Tenn. 1991).
    Mother’s argument at the trial court level was based upon her allegation that the
    June 2016 judgment was void. Our Supreme Court provided the following guidance on
    the issue:
    A judgment of a court of general jurisdiction is presumed to be valid and
    will be held void only when its invalidity is disclosed by the face of that
    judgment, or in the record of the case in which that judgment was rendered.
    A judgment is absolutely void if it appears on the face of the record itself
    -4-
    either that the Court had no general jurisdiction of the subject matter, or
    that the judgment is wholly outside of the pleadings, and no consent thereto
    appears. A judgment is void as to any person shown by the record itself not
    to have been before the Court in person, or by representation. A judgment
    not prima facie void is valid and binding.
    ***
    If the defect allegedly rendering the challenged judgment void is not
    apparent from the face of the judgment or the record of the proceeding from
    which the challenged judgment emanated and must instead be established
    by additional proof, the judgment is merely voidable, not void.
    
    Turner, 473 S.W.3d at 270-71
    (internal citations and quotations omitted).
    The challenged judgment, dated June 1, 2016, concerns the amount of child
    support arrearage owed pursuant to the permanent parenting plan and attached child
    support worksheet, entered on February 4, 2011. In this state, child support is governed
    by Tennessee Code Annotated section 36-5-101. “In making the court’s determination
    concerning the amount of support of any minor child or children of the parties, the court
    shall apply, as a rebuttable presumption, the child support guidelines” that are
    promulgated by the Tennessee Department of Human Services Child Support Service
    Division. Tenn. Code Ann. § 36-5-101(e)(1)(A). The guidelines “are a minimum base
    for determining child support obligations. The presumptive child support order may be
    increased according to the best interest of the child for whom support is being considered,
    the circumstances of the parties, and the rules of [the] chapter.” Tenn. Comp. R. & Regs.
    1240–02–04–.01(4). The guidelines provide,
    (1) Required Forms
    (a)    These rules contain a Child Support Worksheet, a Credit Worksheet,
    Instructions for both Worksheets, and the Child Support Schedule which
    shall be required to implement the child support order determination.
    (b)   The use of the Worksheets promulgated by the Department is
    mandatory in order to ensure uniformity in the calculation of child support
    awards pursuant to the rules.
    ***
    -5-
    (e)   The completed Worksheets must be maintained as part of the official
    record either by filing them as exhibits in the tribunal’s file or as
    attachments to the order.
    Tenn. Comp. R. & Regs. 1240–02–04–.04(1) (emphasis added).
    Here, the arrearage at issue in the June 2016 judgment was calculated pursuant to
    the amount listed in the 2011 permanent parenting plan; however, the permanent
    parenting plan adopted the child support worksheet that provided for a downward
    deviation from the adjusted support obligation to an amount of $0 per month. This
    worksheet was also included in the official record of the court as required. Accordingly,
    we conclude that the challenged June 2016 judgment, calculating the amount of the child
    support arrearage and attorney fees owed for failure to pay support, is void.
    Relief from the judgment is also warranted pursuant to Rule 60.02(5) given the
    nature of the record before this court. The record reflects that the Parties adhered to the
    downward deviation reflected in the child support worksheet and that Father did not
    request support until Mother filed her petition to modify the permanent parenting plan, all
    while Mother contributed to the Children’s college fund as agreed. With all of the above
    considerations in mind, we reverse the judgment of the trial court and hold the June 2016
    judgment void.
    B.
    Father asserts that this appeal is frivolous and not in good faith. He seeks an
    award of his attorney’s fees and costs pursuant to Tennessee Code Annotated section 27-
    1-122.1 We deny Father’s request because this appeal was not frivolous.
    V.       CONCLUSION
    We reverse the decision of the trial court and remand for further proceedings.
    Costs of the appeal are taxed to the appellee, Sean Stephen Alexander.
    _________________________________
    JOHN W. McCLARTY, JUDGE
    1
    “When it appears to any reviewing court that the appeal from any court of record was frivolous or taken
    solely for delay, the court may, either upon motion of a party or of its own motion, award just damages
    against the appellant, which may include, but need not be limited to, costs, interest on the judgment, and
    expenses incurred by the appellee as a result of the appeal.”
    -6-
    

Document Info

Docket Number: M2017-01475-COA-R3-CV

Judges: Judge John W. McClarty

Filed Date: 6/13/2019

Precedential Status: Precedential

Modified Date: 4/17/2021