                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                   March 6, 2001 Session

           PAMELA J. WRIGHT (QUILLEN) v. DALE M. QUILLEN

                 Direct Appeal from the Circuit Court for Davidson County
                 No. 91D-4249     Robert E. Corlew, III, Designated Judge


                     No. M2000-01852-COA-R9-CV - Filed July 11, 2001


This appeal arises from the trial court granting a Rule 60 motion to suspend the judgment in a
divorce action and allow a new trial. Husband and Wife were divorced in 1994. At that time, Wife
was awarded the entirety of Company upon the condition she pay Husband $500,000 for the portion
of Company awarded to him in the property division. Shortly after Wife paid Husband the money,
Company sold an asset previously believed to be worthless for $1.7 million. Husband filed a Rule
60 motion in 1998 to set aside the trial court’s 1994 property division on the basis that Wife had
fraudulently valued the asset at $0 during the divorce hearing. The trial court granted the Rule 60
motion, setting a new trial to redetermine the value of Company at the time of the divorce. We
reverse.

   Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed; and
                                       Remanded

DAVID R. FARMER , J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., W.S.,
and ALAN E. HIGHERS, J., joined.

Helen Sfikas Rogers, Nashville, Tennessee, for the appellant, Pamela J. Wright.

John L. Whitfield, Jr. and Irene R. Haude, Nashville, Tennessee, for the appellee, Dale M. Quillen.
                                                           OPINION

          On February 8, 1994, Pamela J. Wright and Dale M. Quillen were divorced through the

entry of a final divorce decree.1 Among the marital property allocated in the decree was Wright

Travel, a travel agency operated by Ms. Wright. The decree awarded Mr. Quillen 29.4% of

Wright Travel with a stated value of $500,000. It also dissolved a restraining order which had

prohibited Ms. Wright from renegotiating a contract for the computer reservation system used by

the company. However, the decree required Ms. Wright to treat Mr. Quillen as a minority

shareholder until she paid him $500,000 for his awarded portion of the business.2 On March 24,

1999, the court entered an order recognizing that Ms. Wright had paid Mr. Quillen $500,000 for

his portion of Wright Travel. As a result, the court ruled that Ms. Wright would “have no further

obligation to provide to [Mr. Quillen] any additional financial information concerning The

Wright Travel Agency.” Both parties appealed the final judgment of the trial court.3



          In his appeal, Mr. Quillen argued that Ms. Wright had misrepresented the value of the

computer system and her willingness to change suppliers for the system.4 In addition, Mr.

Quillen argued that he had “newly discovered evidence” that the actual value of this system was




          1
              This dec ree was ente red after the co mpletion o f a lengthy and c ontentious ju ry trial.

          2
         In his status as a minority shareholder, Ms. W right was requ ired to inform Mr. Quillen of the details of any
computer reservation c ontract negotiations.

          3
              Ms. Wright’s appeal of the initial divorce decree involved issues having no bearing on the case currently before
this court.

          4
          Mr. Quillen requested a new trial on the basis of “newly discovered evidence” on the valuation of Wright
Travel, as well as requesting relief on several other matters not relevant to the current case.

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between 1.5 million and 2 million dollars instead of the much lower figure returned by the jury.5

On October 4, 1995, this court refused to grant a new trial and found the valuation of Wright

Travel to be proper.6



         As this previous appeal was being considered by this court, Ms. Wright entered into a

contract to sell the computer system of Wright Travel for $1.7 million.7 On December 17, 1998,

Mr. Quillen filed a Rule 60 motion for relief from judgment or, in the alternative, for a final

order distributing marital property. Mr. Quillen argued that the trial court had never valued the

computer reservation system and that he had only become aware of the May, 1994 sale of the

computer system in June of 1998. After a hearing on the motion, the trial court granted a new

trial on the issue of the value of Wright Travel. Ms. Wright filed an application for an

interlocutory appeal which was granted.8 This appeal followed.



         The issue, as we perceive it, is as follows:



         Did the trial court abuse its discretion in granting a new trial on the basis of a Rule
         60.02 motion filed five years after a final judgment?

         5
           In an order reltated to this previous appeal, this court found that the “newly discovered evidence” consisted
only of “a bare alle gation” and that no new ev idence wa s presented by Mr. Q uillen. Wright v. Quillen, 01-A-01-9406-
CV-00 284, (T enn. Ct. Ap p. Sept. 23 , 1994).

         6
             In our order, this court did find for M r. Quillen in several of these unrelated matters.

         7
         This contract was signed in May, 1994, four months after the parties’ final divorce in February, 1994, and three
months after Ms. Wright “bought out” Mr. Quillen of his share of Wright Travel in March, 1994.

         8
           Ms. Wright had previously appealed the tr ial court’s ord er under R ule 3 of the T ennessee R ules of Civil
Procedure. This initial appeal was dismissed without prejudice because the trial court’s dec ision to grant a new trial was
not a final judg ment.

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This court’s review of the trial court’s legal conclusions is de novo with no presumption of

correctness. See, e.g., Bell ex rel. Snyder v. Icard, Merrill, Cullis, Timm, Furen and Ginsburg,

P.A., 986 S.W.2d 550, 554 (Tenn. 1999); Tenn. R. App. P. 13(d).



                                       Rule 60.02 Motion



       Rule 60.02 of the Tennessee Rules of Civil Procedure states:



               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 (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 (emphasis added).



                                               -4-
         Mr. Quillen, in his December 17, 1998, Rule 60.02 Motion, states that he is seeking his

post-judgment relief on the basis of “perjured testimony and a fraud perpetrated on the Court.”

Under Rule 60.02, a motion seeking relief for “fraud . . . misrepresentation, or other misconduct

of an adverse party . . . shall be made . . . not more than one year after the judgment, order or

proceeding was entered.” See id. Mr. Quillen filed his Rule 60.02 motion four years and ten

months after the entry of the final decree of divorce. Thus, Mr. Quillen’s motion should be

invalid on its face because it was filed in an untimely manner. However, Mr. Quillen has

presented several arguments to both this court and the trial court as to why the clear language of

Rule 60.02 should not apply in this case.



         Mr. Quillen first argues that section 36-4-113 of the Tennessee Code allows a trial court

to order a new trial even after the one year limitation. Section 36-4-113 provides for the

possibility that a trial court could review a jury decision in a divorce case and subsequently order

a new trial.9 The statute specifically states:



         Issues may be made up at the request of either party upon matters of fact charged
         in the bill or petition and denied in the answer, and be tried by a jury in presence
         of the court, and a new trial may be granted of the issues, should the court deem it
         necessary.



Tenn. Code Ann. § 36-4-113 (1996).




        9
          While we note that Mr. Quillen’s mo tion was bro ught under R ule 60 and not Rule 59 of the Tennessee Rules
of Civil Procedure, we feel it necessary to address this issue.

                                                        -5-
         Mr. Quillen notes that the statute contains no time limits or specific requirements that

must be met before a trial court may grant a new trial. While we agree that the statute does not

contain such language, we also note that the statute contains no language suggesting that any

determination requiring a new trial is exempted from the normal rules contained in the Tennessee

Rules of Civil Procedure. This court feels that it was not the intent of the legislature for this

statute to usurp these rules. As such, any motion for a new trial under this statute must meet the

requirements of Rule 59.0210 or Rule 59.0511 of the Tennessee Rules of Civil Procedure, both of

which contain 30 day limits. Clearly, Mr. Quillen’s motion does not meet this 30 day filing

requirement nor is the trial court ordering a new trial within 30 days of the final entry of

judgment. As a result, section 36-4-113 of the Tennessee Code has no bearing on the timeliness

of Mr. Quillen’s Rule 60.02 motion.



         Mr. Quillen notes that a trial court has jurisdiction to reconsider alimony awards and

child support obligations after the entry of a final decree of divorce.12 This argument has no

bearing on the post-divorce change in value of the computer system of Wright Travel. The

division of Wright Travel by the trial court was clearly division of marital property as stated in

the trial court’s final decree and not related to alimony or child support awards.



         10
           This rule states that “[a] motio n for new trial an d all other mo tions permitte d under this rule shall be filed and
served within 30 days after judgment has been entered in accordance with Rule 58.” Tenn. R. Civ. P. 59.02.

         11
           This rule states that “[w]ithin 30 days after entry of judgment the court on its own initiative may alter or
amend the judgme nt, or the cour t may order a new tria l for any reason for which it might have granted a new trial on
motion of a party where no such motion has been filed.” Tenn. R. Civ. P. 59.05.

         12
           Ms. Wright w as given prim ary custody o f the couple’s m inor child, and thus not requ ired to pay a ny child
support. S he was, how ever, orde red to pay $ 3000 p er month alim ony in futuro to Mr. Quillen.

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            Mr. Quillen then argues that this court, in Croley v. Tiede, No. M1999-00649-COA-R3-

CV, 2000 WL 1473854, at *1 (Tenn. Ct. App. Oct 5, 2000) (no perm. app. filed), found that,

according to Mr. Quillen, “some property division issues remain open long post-divorce; post-

appeal; and post finality of decree.”13 Croley v. Tiede was a post-divorce case dealing with the

division of Husband’s retirement plan. In Croley, the retirement plan existed during the marriage

and Wife was awarded a percentage of the plan in the final divorce decree. However, the

retirement plan’s method of distribution gave added weight to post-divorce, pre-retirement

service. This court adopted the time rule formula for calculating Wife’s amount of retirement

award, allowing Wife to benefit from this post-divorce, pre-retirement service.



            We note that this court specifically found that it was “simply divid[ing] the marital

property which existed at the time of the divorce” using the time rule formula. Id. at *7 fn 5.

We find nothing in the language of the opinion which suggests that, as a general rule, the division

of marital property remains open to re-litigation post divorce, post appeal or post finality of

decree. Mr. Quillen’s reliance on this court’s ruling in the Croley case is in error.



            Ms. Wright has argued that the trial court incorrectly granted Mr. Quillen’s Rule 60.02

motion for a new trial. This motion was based upon “a fraud perpetrated on the Court sufficient

to grant post-judgment relief.” Ms. Wright has cited the clear language of Rule 60.02 as stating




            13
                 W e also note that this case has not been formally released by the court and is thus subject to withdraw or
revision.

                                                               -7-
that such Rule 60.02 motions “shall be made . . . not more than one year after the judgment, order

or proceeding was entered.” Tenn. R. Civ. P 60.02. We agree.



               “Rule 60.02 acts as an escape valve from possible inequity that might
       otherwise arise from the unrelenting imposition of the principle of finality
       imbedded in our procedural rules.” Thompson v. Fireman's Fund Ins. Co., 798
       S.W.2d 235, 238 (Tenn. 1990). Because of the importance of this “principle of
       finality,” the “escape valve” should not be easily opened. Toney v. Mueller Co.,
       810 S.W.2d 145, 146 (Tenn. 1991).



Banks v. Dement Const. Co., Inc., 817 S.W.2d 16, 18 (Tenn. 1991). Mr. Quillen has presented

no reason why this “escape valve” should be opened nearly three years and ten months after the

limitation on filing a Rule 60 motion has passed. We find that the trial court was in error when it

granted Mr. Quillen’s Rule 60.02 motion. Mr. Quillen’s motion was clearly not filed in a timely

manner. Therefore, we reverse the trial court and remand this case for entry of an order denying

Mr. Quillen’s Rule 60.02 motion.



                                           Conclusion



       Based on the foregoing conclusions, we hereby reverse the trial court’s ruling granting a

new trial. Costs on appeal are assessed against the Appellee, Dale M. Quillen, and his surety, for

which execution may issue if necessary.




                                                -8-
      ___________________________________
      DAVID R. FARMER, JUDGE




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