                                                                                       02/17/2017




               IN THE COURT OF APPEALS OF TENNESSEE
                            AT JACKSON
                               January 19, 2017 Session

         LINDA JANE PARIMORE v. GERALD DAVID PARIMORE

                 Appeal from the Chancery Court for Tipton County
                     No. 28658 Martha Brasfield, Chancellor
                     ___________________________________

                           No. W2016-01188-COA-R3-CV
                       ___________________________________


Husband appeals: (1) the denial of his Rule 60.02 motion on the basis of fraud; and (2)
the grant of attorney’s fees to Wife. We affirm the trial court’s denial of Husband’s Rule
60.02 motion but reverse the grant of attorney’s fees to Wife. We also decline the award
of damages to Wife on appeal. Affirmed in part, reversed in part, and remanded.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
                     in Part; Reversed in Part; and Remanded.

J. STEVEN STAFFORD, P.J., W.S., delivered the opinion of the court, in which BRANDON
O. GIBSON, and KENNY ARMSTRONG, JJ., joined.

William G. Hardwick, II and Kelly Pearson, Memphis, Tennessee, for the appellant,
Gerald David Parimore.

J. Barney Witherington, IV, Covington, Tennessee, for the appellee, Linda Jane
Parimore.


                                       OPINION

                                     BACKGROUND

       Because of the limited evidence included in the record on appeal in this case, the
facts are taken largely from the pleadings and the parties’ briefs. The parties,
Plaintiff/Wife Linda Parimore (“Wife”) and Defendant/Husband Gerald Parimore
(“Husband”), were divorced by final decree on June 30, 2011, which incorporated by
reference a Marital Dissolution Agreement (“MDA”) disposing of certain marital
property. The parties subsequently filed several contentious motions regarding the proper
interpretation of the language under the MDA. Because of various disputes over the
terms of the MDA, on November 23, 2015, the parties attended mediation regarding the
division of marital property and entered into a handwritten settlement agreement.
Therein, Husband agreed to pay Wife a “lump sum payment of $80,000[.00] within
[fourteen] days from the effective date of th[e settlement agreement].” In addition, Wife
agreed to “transfer, deed[,] and/or relinquish all rights in the joint timeshare in favor of
[Husband].” The settlement agreement also provided that an order would be entered
effectuating its terms within seven days from the date of execution. Husband decided
shortly after the mediation to revoke his consent to the signed agreement. As a result,
Husband’s then-attorney refused to sign the consent order effecting the terms of the
mediated agreement.

       On December 3, 2015, Wife filed a motion to enforce the mediated agreement,
alleging that Husband “terminated his attorney and informed [the attorney] that
[Husband] would not honor the mediation agreement.” On January 6, 2016, Husband,
through new counsel, filed a response, asserting, inter alia, that Wife may not enforce a
consensual agreement by court order where the other party no longer agrees to the
settlement.

        At the January 7, 2016 hearing on Wife’s motion to enforce the mediation
agreement, Husband testified that he was coerced into signing the mediation agreement
by his then-attorney and the mediator based on their statements that Husband would incur
additional expenses, potentially expose himself to a contempt judgment, or potentially
suffer a worse money judgment if he did not agree to settle.1 Husband further testified
that his “retirement accounts were no one’s business but his own” and acknowledged that
“he did not disclose the details of those accounts until shortly before mediation, and only
did so because his [then-]attorney advised him that he could be held in contempt if he did
not.”

       After the hearing, the trial court entered an order on January 11, 2016, finding that
Husband was not “easily subject to coercion and would have no problem saying ‘no’ if
confronted with an unsatisfactory proposal at mediation.” The trial court further found
that the settlement agreement entered into by the parties constituted a “valid contract”
and ordered Husband to pay the $80,000.00 lump sum pursuant to the agreement.

       On February 22, 2016, Husband filed a sworn motion for relief from judgment
pursuant to Rule 60.02 of the Tennessee Rules of Civil Procedure based on fraud and
misrepresentation. Therein, Husband alleged that he agreed to pay Wife $80,000.00 in
the settlement agreement “[b]ecause of the difference in the amount of the assets of
[Wife] and [Husband], particularly in retirement assets.” The motion further alleged that

        1
        A transcript of the January 7, 2016 hearing is not included the record on appeal. Our recitation
of Husband’s testimony is based on the trial court’s January 11, 2016 order.
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after January 11, 2016, he retained an investigator and discovered that Wife did not
disclose all assets prior to the mediation, particularly her military pension. Husband
alleged that Wife only applied for this pension after the divorce, and this amount was not
included in the settlement. As a result, Husband alleged that “the parties did not reach a
fair and equitable division of the marital property” and sought to set aside the $80,000.00
judgment against him. Attached to Husband’s sworn motion are two letters, dated July
29, 2015, and September 29, 2015, from Wife’s counsel to Husband’s counsel disclosing
her assets. Neither letter mentions Wife’s military pension.

       On April 22, 2016, Wife filed an answer essentially denying all material
allegations relating to fraud. On the same day, Wife also filed a motion for contempt2
and other relief, asserting, inter alia, Husband “continues to pay exorbitant sums to
attorneys and investigators in a frivolous effort to delay payment to [Wife]” in violation
of a court order. Wife also asserted that it was “impossible that [Husband] was unaware
that [Wife] would receive a military pension because the parties met in the military
reserves and did not retire until they reached their [twenty] year pension entitlements.”
As a result, Wife asked that Husband be found in contempt and ordered to pay her
attorney’s fees. Attached to Wife’s motion is her counsel’s affidavit, asserting that he
and Husband’s then-attorney “discussed the parties’ military pensions” and “agreed that
the pensions would roughly offset one another.” As a result, counsel contended that the
pensions were not used in calculating the division of marital assets. On May 4, 2016,
Husband filed a response to Wife’s motion for contempt and other relief. Therein,
Husband “admit[ted] that the attorneys might have discussed the matter of the military
pensions” but that “the matter was never discussed with him.”

       After a May 5, 2016 hearing on the outstanding motions, the trial court entered the
following order on May 9, 2016:

                 Upon arguments of counsel, the pleadings, and the record as a
         whole, the [trial court] finds that the manner in which the parties’ military
         pensions were calculated in determining the division of marital property is
         not a proper basis upon which to grant relief to [Husband]. The [trial court
         finds that [Husband] is only before the [trial court] in a further attempt to
         stall payment of the $80,000.00 that he was ordered to pay.

                IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED,
         that the $80,055.00 held by the [trial court] shall be released to [Wife] by
         check made payable to [Wife] and her attorney, to satisfy the judgment
         against [Husband] and that [Husband] is required to pay [Wife’s] attorney’s
         fees, totaling $1800.00, incident to the motions heard on May 5, 2016.

         2
             The motion is unclear as to whether Wife was seeking civil or criminal contempt, as discussed
infra.
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       [Husband] shall pay the $1800.00 into the Chancery Clerk within ten (10)
       days of the entry of this Order.

This appeal followed.

                                          ISSUES

       Husband raises the following issues for our review, which we have slightly
restated:

       1.    Did the trial court err in denying Husband’s motion for relief from
       judgment pursuant to Rule 60 of the Tennessee Rules of Civil Procedure
       based on an incorrect valuation of the pensions that were marital property?
       2.    Did the trial court err in granting Wife’s motion for sanctions against
       Husband and awarding the Wife’s attorney fees against Husband?

Wife, additionally, raises the following issue:

       3.     Whether Wife is entitled to damages for a frivolous appeal?


                                       DISCUSSION

        We begin first with Husband’s contention that the trial court erred in denying him
relief pursuant to Rule 60.02 of the Tennessee Rules of Civil Procedure. Rule 60.02
provides, in pertinent part:

       On motion and upon such terms as are just, the court may relieve a party ...
       from a final judgment, order or proceeding for the following reasons: . . .
       (2) fraud (whether heretofore denominated intrinsic or extrinsic),
       misrepresentation, or other misconduct of an adverse party[.]

       Our Supreme Court has discussed the standard applicable to a Rule 60.02 motion
challenging a trial court’s final judgment:

              Tennessee law is clear that the disposition of motions under Rule
       60.02 is best left to the discretion of the trial judge. Underwood v. Zurich
       Ins. Co., 854 S.W.2d 94, 97 (Tenn. 1993); Banks v. Dement Constr. Co.,
       817 S.W.2d 16, 18 (Tenn. 1991); McCracken v. Brentwood United
       Methodist Church, 958 S.W.2d 792, 795 (Tenn. Ct. App. 1997). The
       standard of review on appeal is whether the trial court abused its discretion
       in granting or denying relief. This deferential standard “reflects an
       awareness that the decision being reviewed involved a choice among
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      several acceptable alternatives,” and thus “envisions a less rigorous review
      of the lower court’s decision and a decreased likelihood that the decision
      will be reversed on appeal.” Lee Med[.], Inc. v. Beecher, 312 S.W.3d 515,
      524 (Tenn. 2010).

             A trial court abuses its discretion when it causes an injustice by
      applying an incorrect legal standard, reaching an illogical decision, or by
      resolving the case “on a clearly erroneous assessment of the evidence.” Id.
      The abuse of discretion standard does not permit the appellate court to
      substitute its judgment for that of the trial court. Eldridge v. Eldridge, 42
      S.W.3d 82, 85 (Tenn. 2001). Indeed, when reviewing a discretionary
      decision by the trial court, the “appellate courts should begin with the
      presumption that the decision is correct and should review the evidence in
      the light most favorable to the decision.” Overstreet v. Shoney’s, Inc., 4
      S.W.3d 694, 709 (Tenn. Ct. App. 1999); see also Keisling v. Keisling, 196
      S.W.3d 703, 726 (Tenn. Ct. App. 2005).

Henderson v. SAIA, Inc., 318 S.W.3d 328, 335 (Tenn. 2010). In addition:

      [W]e have characterized relief under Rule 60.02 as an “exceptional
      remedy,” Nails v. Aetna Ins. Co., 834 S.W.2d 289, 294 (Tenn. 1992),
      “designed to strike a proper balance between the competing principles of
      finality and justice,” Jerkins v. McKinney, 533 S.W.2d 275, 280 (Tenn.
      1976). Rule 60.02 provides an “escape valve,” Thompson v. Firemen’s
      Fund Ins. Co., 798 S.W.2d 235, 238 (Tenn. 1990), that “should not be
      easily opened.” Toney v. Mueller Co., 810 S.W.2d 145, 146 (Tenn. 1991).
      We have reversed relief granted under Rule 60.02 where the judgment was
      “not oppressive or onerous.” Killion v. Tenn. Dep’t of Human Servs., 845
      S.W.2d 212, 214 (Tenn. 1992). “[R]elief under Rule 60.02 is not meant to
      be used in every case in which the circumstances of a party change after the
      entry of a judgment or order, nor by a party who is merely dissatisfied with
      a particular outcome.” Henderson, 318 S.W.3d at 336.

             A party seeking relief under Rule 60.02 must substantiate the request
      with clear and convincing evidence. McCracken v. Brentwood United
      Methodist Church, 958 S.W.2d 792, 795 (Tenn. Ct. App. 1997). “Clear
      and convincing evidence means evidence in which there is no serious or
      substantial doubt about the correctness of the conclusions drawn from the
      evidence.” Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n. 3 (Tenn.
      1992). “In other words, the evidence must be such that the truth of the facts
      asserted [is] ‘highly probable.’” Goff v. Elmo Greer & Sons Constr. Co.,
      297 S.W.3d 175, 187 (Tenn. 2009) (quoting Teter v. Republic Parking
      Sys., Inc., 181 S.W.3d 330, 341 (Tenn. 2005)). In general, “the bar for
                                          -5-
       attaining relief is set very high and the burden borne by the movant is
       heavy.” Johnson v. Johnson, 37 S.W.3d 892, 895 n.2 (Tenn. 2001).

Furlough v. Spherion Atl. Workforce, LLC, 397 S.W.3d 114, 127–28 (Tenn. 2013)
(alteration in original).

       In his motion in the trial court, Husband relied on Rule 60.02(2)—fraud,
misrepresentation, and misconduct—to support his request for relief. The quanta of proof
required to show fraud, misrepresentation, or other conduct sufficient to warrant relief
pursuant to Rule 60.02(2), as stated above, is “clear and convincing[.]” Duncan v.
Duncan, 789 S.W.2d 557, 563 (Tenn. Ct. App. 1990) (quoting Leeson v. Chernau, 734
S.W.2d 634, 638 (Tenn. Ct. App. 1987)).

       Husband argues that Wife in this case withheld information regarding her military
pension prior to the party’s mediation; as a result “the values of the pensions were not
calculated properly in the property settlement.” In contrast, Wife asserts that the parties’
attorneys previously discussed the military pensions and agreed not to include the
pensions in any asset calculation.

       The trial court, while denying Husband’s motion, gave no explanation for its
decision nor squarely addressed the allegations in his Rule 60.02 motion. We concede
that the express language of Rule 60.02 places no affirmative duty on the trial court to
make findings of fact or conclusions of law in disposing of a Rule 60.02 motion.
However, this Court has previously indicated that, with respect to a Rule 60.02 motion,
we are “unable to adequately review” a trial court’s discretionary decision and provide
the appropriate amount of deference to that decision when the trial court fails to make
appropriate findings of fact and conclusions of law. Spigner v. Spigner, No. E2013-
02696-COA-R3-CV, 2014 WL 6882280, at *6 (Tenn. Ct. App. Dec. 8, 2014) (quoting
Rogin v. Rogin, No. W2012-01983-COA-R3-CV, 2013 WL 3486955, at *7 (Tenn. Ct.
App. 2013)). Accordingly, while we will go on to consider whether Husband met his
burden in this case, we note that the better method of disposing of a Rule 60.02 motion is
to include appropriate findings of fact and conclusions of law so that the decision may be
given the appropriate deference.

       At the outset, we note that our review is severely hampered by the limited
evidence contained in the record. The record on appeal does not contain any transcripts
or Statements of Evidence from any of the multiple hearings that took place in this case.
Instead, the “evidence” in the record before us contains only: (1) Husband’s sworn
motion asserting that Wife failed to disclose her military pension; (2) Wife’s counsel’s
affidavit asserting that he discussed with Husband’s then-attorney the parties’ pensions,
and both attorneys agreed the pensions should not be included in any calculation; and (3)
Husband’s concession that the attorneys “might have discussed” the pensions but that he

                                           -6-
himself was not aware of this discussion in his answer to Wife’s motion for contempt and
other relief.

        From our review of the record, we conclude that Husband failed to meet his
burden to prove, by clear and convincing evidence, that he was harmed by “an intentional
contrivance . . . to keep [him] and the Court in ignorance of the real facts touching the
matters in litigation.” Duncan, 789 S.W.2d 563 (quoting Leeson, 734 S .W.2d at 638).
Husband has presented no evidence supporting his allegation that the parties’ pensions
had never been discussed. In light of Wife’s attorney’s uncontroverted affidavit asserting
that the issue of the parties’ pensions had been previously disclosed and discussed,
Husband’s sworn statement that he himself was not aware of her pension is unavailing.
Indeed, Husband does not deny that his then-attorney might have had knowledge of
Wife’s military pension. Even assuming arguendo that the then-attorney never imparted
his knowledge of Wife’s pension to Husband, a “person generally is held to know what
his attorney knows and should communicate to him, and the fact that the attorney has not
actually communicated his knowledge to the client is immaterial.” Smith v. Petkoff, 919
S.W.2d 595, 597–98 (Tenn. Ct. App. 1995) (quoting 7A C.J.S. Attorney and Client § 182
(1980)). “Once it has been established that the attorney obtained the relevant knowledge
during the course of representing the client, ‘the constructive notice thereof to the client
is conclusive, and cannot be rebutted by showing that the attorney did not in fact impart
the information so acquired.’” Boote v. Shivers, 198 S.W.3d 732, 742 (Tenn. Ct. App.
2005) (Smith, 919 S.W.2d at 597–98). Based on the scant evidence in the record, we
conclude that Husband has not met his burden to prove clearly and convincingly the
existence of any fraud in this case to warrant reversal of the trial court’s adjudication of
this issue. Accordingly, we affirm the trial court’s denial of Husband’s Rule 60.02
motion.

        We next address whether the trial court erred in awarding Wife attorney’s fees in
the proceedings below. Under Tennessee law, courts follow the “American Rule,” which
generally provides that litigants must pay their own attorney’s fees unless a party can
demonstrate the existence of a specific contractual agreement or statutory basis to support
an award of attorney’s fees. House v. Estate of Edmondson, 245 S.W.3d 372, 377
(Tenn. 2008) (citing John Kohl & Co. v. Dearborn & Ewing, 977 S.W.2d 528, 534
(Tenn. 1998)). From our review of the record, neither the MDA nor the mediated
agreement contains any provision providing for attorney’s fees. We will therefore
proceed to determine whether a statutory basis exists to support the award of attorney’s
fees to Wife in this case.

       As is relevant to this appeal, one statutory basis for the award of attorney’s fees is
contained in Tennessee Code Annotated section 29-9-102, allowing Tennessee courts “to
punish for acts of contempt.” Reed v. Hamilton, 39 S.W.3d 115, 117 (Tenn. Ct. App.
2000); see Black v. Blount, 938 S.W.2d 394, 397–98 (Tenn. 1996) (stating that
Tennessee Code Annotated section 29-9-102 was enacted to “limit and define the conduct
                                             -7-
punishable by contempt” in order to curb potential abuses). “A contempt [finding] may
be either civil in nature or criminal in nature.” Reed, 39 S.W.3d at 118. Civil contempt
proceedings are remedial in nature and are brought by private parties to enforce their
rights under an order that has been violated, whereas criminal contempt proceedings are
designed to “vindicate the court’s authority and maintain the integrity of its orders and
thus is generally punitive rather than remedial in nature.” Id. Among the conduct that
Tennessee courts have the authority to punish as contempt is “[t]he willful disobedience
or resistance of any officer of the said courts, party, juror, witness, or any other person, to
any lawful writ, process, order, rule, decree, or command of such courts.” Tenn. Code
Ann. § 29-9-102(3). “Thus, to find contempt under this statute, a court must find the
misbehavior, disobedience, resistance, or interference to be wilful.” Ahern v. Ahern, 15
S.W.3d 73, 79 (Tenn. 2000). “[A] trial court’s use of its contempt power is
discretionary[.]” Outdoor Mgmt., LLC v. Thomas, 249 S.W.3d 368, 377 (Tenn. Ct. App.
2007) (citing Robinson v. Air Draulics Eng’g Co., 214 Tenn. 30, 377 S.W.2d 908, 912
(Tenn. 1964)). As a result, this Court “will review a trial court’s contempt citation using
the abuse of discretion standard.” Id. (citing Powell v. Powell, 124 S.W.3d 100, 108
(Tenn. Ct. App. 2003)). “A trial court abuses its discretion only when it ‘applie[s] an
incorrect legal standard, or reache[s] a decision which is against logic or reasoning that
cause[s] an injustice to the party complaining.’” Eldridge v. Eldridge, 42 S.W.3d 82, 85
(Tenn. 2001) (quoting State v. Shirley, 6 S.W.3d 243, 247 (Tenn. 1999)). “Furthermore,
the award of attorneys’ fees based upon a finding of contempt is also reviewed under the
less stringent abuse of discretion standard and we will not modify a punishment imposed
for contempt unless the complaining party can show that the trial court abused its
discretion.” Outdoor Mgmt., LLC, 249 S.W.3d at 377 (citations omitted).

       Not all contempt findings, however, allow the trial court to award attorney’s fees.
Specifically, we have held that a trial court may not award attorney’s fees in the context
of a criminal contempt proceeding. See Watts v. Watts, No. M2015-01216-COA-R3-CV,
2016 WL 3346547, at *11 (Tenn. Ct. App. June 8, 2016) (“[A]ttorney’s fees are not
within the statutory limits to criminal contempt under Tenn[essee] Code Ann[otated
section] 29-9-103.”). On the other hand, the trial court is authorized in civil contempt
proceedings to award attorney’s fees upon a finding of contempt. See Reed, 39 S.W.3d at
119 (construing the “payment of damages” provision under Tennessee Code Annotated
section 29-9-105 to mean that attorney’s fees are allowed in civil contempt proceedings).

       Here, it is not clear from the record whether civil contempt or criminal contempt
was pursued in the court below. In the event that criminal contempt was at issue, the trial
court is not permitted to award Wife attorney’s fees in the criminal contempt proceeding.
See Watts, 2016 WL 3346547, at *11. Even assuming that civil contempt was at issue,
see Reed, 39 S.W.3d at 119, the record is utterly devoid of any order actually finding
Husband’s conduct to be willful or finding him in contempt, nor is there any indication in
the record that an evidentiary hearing was ever held on Wife’s contempt petition. Indeed,
the trial court’s exiguous order contains only the following finding, in relevant part:
                                            -8-
“[The trial court] finds that [Husband] is only before the Court in a further attempt to stall
payment of the $80,000.00 that he was ordered to pay.” As previously discussed,
however, where the trial court fails to make appropriate findings of fact and conclusions
of law, we are “unable to adequately review” a trial court’s decision and provide the
appropriate amount of deference to that decision. Spigner, 2014 WL 6882280, at *6. In
the absence of both an evidentiary hearing on Wife’s contempt petition and specific
findings supporting the award of attorney’s fees, we reverse this portion of the trial
court’s judgment.

        Finally, Wife seeks an award for damages on appeal. The decision to award
damages based on the filing of a frivolous appeal rests solely in the discretion of this
Court. Whalum v. Marshall, 224 S.W.3d 169, 180 (Tenn. Ct. App. 2006). “Imposing a
penalty for a frivolous appeal is a remedy which is to be used only in obvious cases of
frivolity and should not be asserted lightly or granted unless clearly applicable, which is
rare.” Henderson v. SAIA, Inc., 318 S.W.3d 328, 342 (Tenn. 2010). An appeal is
frivolous when it has “no reasonable chance of success,” Jackson v. Aldridge, 6 S.W.3d
501, 504 (Tenn. Ct. App. 1999), or is “so utterly devoid of merit as to justify the
imposition of a penalty.” Combustion Eng’g, Inc. v. Kennedy, 562 S.W.3d 202, 205
(Tenn. 1978). Because Husband prevailed on at least one issue on appeal, we decline to
award Wife any damages in this appeal.

                                       CONCLUSION

       For the forgoing reasons, the judgment of the Tipton County Chancery Court is
affirmed with respect to its denial of Husband’s Rule 60.02 motion based on fraud and
misrepresentation and reversed with respect to its award of attorney’s fees to Wife. We
further deny Wife’s request for damages on appeal. Costs of this appeal are taxed one-
half to Gerald Parimore, and his surety, and one-half to Linda Parimore, for all of which
execution may issue if necessary.



                                                  _________________________________
                                                  J. STEVEN STAFFORD, JUDGE




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