Michael Couillard v. Martha Couillard ( 2002 )


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  •                   IN THE COURT OF APPEALS OF TENNESSEE
    AT KNOXVILLE
    May 14, 2002 Session
    MICHAEL BENJAMIN COUILLARD v. MARTHA ANN COUILLARD
    Appeal from the Chancery Court for Carter County
    No. 20181 Thomas J. Seeley, Jr., Judge, by Interchange
    No. E2001-01770-COA-R3-CV             Filed July 3, 2002
    Michael Benjamin Couillard (“Plaintiff”) was absent from a hearing regarding his child support
    obligation. The Trial Court found that Plaintiff was in arrears for child support and also had failed
    to pay a portion of the parties’ minor child’s medical expenses as required by an earlier order of the
    Trial Court. Plaintiff filed a Tenn. R. Civ. P. 60.02 motion to set aside the judgment (“Motion to
    Set Aside”) on the basis of inadvertence and excusable neglect. The Trial Court denied the Motion
    to Set Aside. The record on appeal contains no transcript or statement of the evidence of the hearing
    on Plaintiff’s Motion to Set Aside. Plaintiff appeals. We affirm.
    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the
    Chancery Court Affirmed; Case Remanded.
    D. MICHAEL SWINEY , J., delivered the opinion of the court, in which HERSCHEL P. FRANKS, J., joined.
    HOUSTON M. GODDARD, P.J., filed a concurring opinion.
    M. Stanley Givens, Johnson City, Tennessee, for the Appellant, Michael Benjamin Couillard.
    Judith Fain, Johnson City, Tennessee, for the Appellee, Martha Ann Couillard.
    OPINION
    Background
    This matter arises from a child support dispute between Plaintiff and Martha Ann
    Couillard (“Defendant”). The Trial Court, after a hearing in November 1999, entered an Order
    setting Plaintiff’s child support obligation and finding Plaintiff in arrears for child support. The Trial
    Court also ordered Plaintiff to maintain health and life insurance for the benefit of the parties’ child
    and to pay a portion of the child’s medical expenses not otherwise covered by insurance.
    After the November 1999 hearing, but before the entry of the Order, Plaintiff filed
    a motion seeking a reduction of his child support obligation due to his recent loss of employment.
    Defendant filed a response to this motion in which she opposed any reduction in child support and
    argued essentially that Plaintiff was willfully and voluntarily unemployed.
    The record shows that approximately one year passed before either party took any
    further action. In January 2001, Defendant filed a motion asking the Trial Court to find Plaintiff in
    criminal and civil contempt for failing to pay child support and the child’s medical expenses. In
    March 2001, the Trial Court held a hearing on Plaintiff’s motion to reduce child support and
    Defendant’s motion regarding Plaintiff’s alleged contempt. The record shows that while Plaintiff
    did not appear for the March 2001 hearing, his attorney was present.
    In April 2001, the Trial Court entered a Judgment on the March 2001 hearing. The
    Judgment denied Plaintiff’s motion to reduce child support and granted, in part, Defendant’s motion
    for contempt. The Trial Court held, in its Judgment, that Plaintiff was in arrears for child support
    and had failed to pay the child’s medical expenses as required by the Trial Court’s previous order.
    Regarding Plaintiff’s absence from the hearing, the Judgment provided, in pertinent part, as follows:
    upon . . . the failure of Plaintiff to appear although his counsel stated
    to the Court that he had mailed the Notices to Plaintiff in January,
    that the mail had not been returned to Plaintiff’s counsel; upon the
    oral motion of Plaintiff’s counsel that he be allowed to withdraw
    which Motion is granted. . . .
    The Trial Court, in the Judgment, reserved the issue of whether Plaintiff was in contempt for failure
    to pay child support and the child’s medical expenses “until such time as Plaintiff appears before the
    Court.”
    Shortly thereafter, in May 2001, Plaintiff filed a Tenn. R. Civ. P. 60.02 Motion to Set
    Aside the Trial Court’s Judgment. As grounds for his motion, Plaintiff argued the Judgment should
    be set aside because he missed the March 2001 hearing due to inadvertence and excusable neglect.
    The record shows Plaintiff filed no affidavit in support of his Motion to Set Aside. In June 2001,
    the Trial Court held a hearing on the Motion to Set Aside, but the record contains no transcript of
    this hearing. Thereafter, the Trial Court entered an order (“Final Order”) in which it denied
    Plaintiff’s Motion to Set Aside. The Final Order provided that “Plaintiff has not presented a
    sufficient basis upon which this Court can find reasonable grounds to set aside the Court’s Order.
    [Plaintiff’s] failure to appear for the trial is not excused. . . .”
    Plaintiff appeals.
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    Discussion
    On appeal and although not exactly stated as such, Plaintiff raises one issue for this
    Court’s consideration: whether the Trial Court erred in denying Plaintiff’s Tenn. R. Civ. P. 60.02
    Motion to Set Aside.
    Defendant, on appeal, contends it was not an abuse of discretion for the Trial Court
    to deny Plaintiff’s Rule 60.02 motion. Defendant also argues Plaintiff’s appeal should be dismissed
    because the Final Order is not a final judgment under Tenn. R. Civ. P. 54.02 from which an appeal
    as of right lies. Furthermore, Defendant contends Plaintiff’s appeal is frivolous because Plaintiff,
    as the appellant, failed to preserve an adequate record.
    We first address the issue regarding whether the Final Order is a final judgment from
    which an appeal as of right lies. Defendant contends the underlying Judgment which Plaintiff sought
    to have set aside is not a final judgment pursuant to Tenn. R. Civ. P. 54.02, and, accordingly,
    Plaintiff’s appeal should be dismissed. See Tenn. R. App. P. 3(a). Defendant points to the language
    in the Judgment showing the Trial Court reserved the issue of Plaintiff’s contempt. In addition,
    while Defendant does not raise this in her argument, we note that Tenn. R. Civ. P. 60.02, the rule
    upon which Plaintiff’s Motion to Set Aside is based, provides that it applies to “final judgments.”
    The Judgment does not meet the definition of a “final judgment” under Tenn. R. Civ. P. 54.02 since
    it does not adjudicate all claims. In the exercise of our discretion and in the interest of judicial
    economy, however, we will treat this appeal as a Tenn. R. App. P. 10 extraordinary appeal and
    consider the merits of this appeal. See also Tenn. R. App. P. 1 (providing the Tennessee Rules of
    Appellate Procedure “shall be construed to secure the just, speedy, and inexpensive determination
    of every proceeding on its merits”).
    We now turn to whether or not it was error for the Trial Court to deny Plaintiff’s Rule
    60.02 Motion to Set Aside. The determination of whether to grant a Tenn. R. Civ. P. 60.02 motion
    for relief from judgment lies within the sound discretion of the trial court and will not be reversed
    on appeal absent an abuse of discretion. Holiday v. Shoney’s South, Inc., 
    42 S.W.3d 90
    , 92 (Tenn.
    Ct. App. 2000). We should not reverse for “‘abuse of discretion a discretionary judgment of a trial
    court unless it affirmatively appears that the trial court’s decision was against logic or reasoning, and
    caused an injustice or injury to the party complaining.’” Marcus v. Marcus, 
    993 S.W.2d 596
    , 601
    (Tenn. 1999) (quoting Ballard v. Herzke, 
    924 S.W.2d 652
    , 661 (Tenn. 1996)).
    Plaintiff’s Motion to Set Aside was based upon Tenn. R. Civ. P. 60.02(1) which
    provides, in pertinent part, as follows:
    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 . . . .
    -3-
    The moving party who seeks relief from a judgment under Rule 60.02 has the burden of proof to
    “‘describe the basis for relief with specificity . . .’” and to establish, by clear and convincing
    evidence, that such relief is warranted. Howard v. Howard, 
    991 S.W.2d 251
    , 255 (Tenn. Ct. App.
    1999) (quoting Duncan v. Duncan, 
    789 S.W.2d 557
    , 563 (Tenn. Ct. App. 1990)).
    On appeal, Plaintiff argues the Trial Court erred in denying his Motion to Set Aside
    because he established, pursuant to Tenn. R. Civ. P. 60.02(1), that he missed the March 2001 hearing
    due to inadvertence or excusable neglect. In his brief, Plaintiff contends he missed the hearing
    because he literally forgot about it due to a number of personal issues and a family medical
    emergency. Plaintiff also argues he suffered prejudice due to the Trial Court’s allowing his attorney
    to withdraw as counsel before the March 2001 hearing began.
    Short of Plaintiff’s statements in his brief, the record on appeal contains no hint, let
    alone proof, of the reasons for Plaintiff’s absence from the March 2001 hearing. The only stated
    bases provided in Plaintiff’s Motion to Set Aside are the grounds of inadvertence and excusable
    neglect. Under Tenn. R. App. P. 24, the appellant has the duty “‘to prepare a record which conveys
    a fair, accurate and complete account of what transpired in the trial court with respect to the issues
    which form the basis of the appeal.’" Nickas v. Capadalis, 
    954 S.W.2d 735
    , 742 (Tenn. Ct. App.
    1997) (quoting State v. Boling, 
    840 S.W.2d 944
    , 951 (Tenn. Crim. App. 1992)). In the absence of
    an adequate record on appeal, this Court will presume the trial court’s rulings were supported by
    sufficient evidence. State Dep’t of Children’s Serv. v. D.G.S.L., E2001-00742- COA-R3-JV, 2001
    Tenn. App. LEXIS 941, at * 27 (Tenn. Ct. App. Dec. 28, 2001), no appl. perm. app. filed; State v.
    Oody, 
    823 S.W.2d 554
    , 559 (Tenn. Crim. App. 1991).
    Even allowing Plaintiff the benefit of all doubts and treating his Rule 60.02 motion
    as an appropriate one to file concerning the non-final Judgment, the record on appeal is woefully
    inadequate for this Court to determine that the Trial Court abused its discretion in denying Plaintiff’s
    Rule 60.02 Motion to Set Aside. The record contains no affidavit in support of the motion, no
    transcript of the June 2001 hearing, and no statement of the evidence. See Tenn. R. App. P. 24(b) -
    (c). As the record contains no proof of the reasons for Plaintiff’s absence from the March 2001
    hearing, we cannot consider the reasons Plaintiff provides in his brief since those allegations are
    outside the record. See Tenn. R. Ct. App. 6; see also Church v. Perales, 
    39 S.W.3d 149
    , 160 (Tenn.
    Ct. App. 2000) (holding “[w]e cannot take judicial knowledge of . . . testimony, even if parts of it
    are cited in the briefs, because it is outside the record”).
    Due to the inadequacy of the record on appeal, this Court cannot possibly determine
    it was an abuse of discretion to deny Plaintiff’s Motion to Set Aside. To do so would require this
    Court to speculate as to whether Plaintiff, at the June 2001 hearing, carried his burden of
    establishing, by clear and convincing evidence, his stated grounds of inadvertence or excusable
    neglect sufficient to warrant setting aside the Judgment under Tenn. R. Civ. P. 60.02(1). Moreover,
    in the complete absence of any proof in the record to the contrary, we must presume the Trial Court’s
    denial of Plaintiff’s Motion to Set Aside was supported by sufficient evidence. See State Dep’t of
    -4-
    Children’s Serv. v. D.G.S.L., Tenn. App. LEXIS 941, at * 27; State v. Oody, 823 S.W.2d at 559.
    Accordingly, we affirm the Trial Court’s Final Order on this issue.
    Next, we address Plaintiff’s argument on appeal that he was prejudiced by the Trial
    Court’s decision to grant his attorney’s motion to withdraw as counsel before the March 2001
    hearing began. First, a party has no absolute right to counsel in a civil trial. Knight v. Knight, 
    11 S.W.3d 898
    , 900 (Tenn. Ct. App. 1999). Second, the record as presented to us by Plaintiff contains
    nothing to support Plaintiff’s position he was prejudiced by the Trial Court’s decision to grant his
    attorney’s motion to withdraw. Defendant contends on appeal that while Plaintiff’s counsel was
    allowed to withdraw, that same attorney participated in the March 2001 hearing, as evidenced by his
    signature on the Judgment. Defendant also points out that the same attorney represented Plaintiff
    on the Motion to Set Aside. Accordingly, we find no reversible error and hold this issue to be
    without merit.
    We next consider the remaining issue on appeal regarding whether Plaintiff’s appeal
    is frivolous. Defendant contends the appeal is frivolous due to Plaintiff’s failure to prepare and
    preserve an adequate record on appeal pursuant to Tenn. R. App. P. 24 and requests an award of
    legal expenses incurred on appeal. We agree this appeal is frivolous. Plaintiff failed to take any
    steps to prepare an adequate record, either by transcript or a statement of the evidence. See Tenn.
    Code Ann. § 27-1-122; Industrial Dev. Bd. of the City of Tullahoma v. Hancock, 
    901 S.W.2d 382
    ,
    385 (Tenn. Ct. App. 1995) (holding that a “frivolous appeal is one that is ‘devoid of merit,’. . . or
    one in which there is little prospect that it can ever succeed”). Tenn. Code Ann. § 27-1-122 provides
    that in the event of a frivolous appeal, this Court may award the appellee “expenses incurred . . . as
    a result of the appeal.” Defendant has incurred further legal expenses due to Plaintiff’s appeal, an
    appeal that is devoid of merit and had little prospect to succeed. Accordingly, we grant Defendant
    her reasonable attorneys’ fees and expenses incurred on appeal. On remand, the Trial Court shall
    determine the amount of Defendant’s reasonable attorneys’ fees and expenses incurred in this appeal.
    Conclusion
    The judgment of the Trial Court is affirmed, and this cause is remanded to the Trial
    Court for further proceedings consistent with this Opinion and for collection of the costs below.
    Costs on appeal are assessed against the Appellant, Michael Benjamin Couillard, and his surety.
    ___________________________________
    D. MICHAEL SWINEY, JUDGE
    -5-