                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT KNOXVILLE
                                   February 12, 2003 Session

            STATE OF TENNESSEE EX REL. ROBYN L. RUSSELL v.
                         JACKSON B. WEST

                      Appeal from the Chancery Court for Greene County
                       No. 88-195   Thomas R. Frierson, II, Chancellor

                                       FILED APRIL 3, 2003

                                  No. E2002-01667-COA-R3-CV


At an earlier time, on April 26, 1989, the trial court entered a judgment dissolving the four-year-plus
marriage of Robyn L. Russell (“Mother”) and Jackson B. West (“Father”). The judgment
incorporated the parties’ April 20, 1989, marital dissolution agreement (“the MDA”). That
document provides, among other things, that “[Mother] shall have the care, custody and control of
[Jarrod West (DOB: July 2, 1985) (“the child”),] the minor child of the parties.” (Emphasis added).
Father was ordered to pay Mother a specified amount of child support. Following the divorce, the
parties returned to court on a number of occasions to litigate issues pertaining to the appropriate level
of child support and Father’s child support arrearage. Later, on February 11, 1999, some ten years
after the parties’ divorce, Father filed the instant petition seeking genetic testing to determine the
paternity of the child. The trial court entered an order directing the parties and the child to submit
to the requested testing. When DNA testing excluded Father as the biological father of the child, the
trial court granted Father’s Tenn. R. Civ. P. 60.02(5) motion directed at the child support portion,
as previously modified, of the parties’ judgment of divorce and held that “no legal parent/child
relationship exists between [Father], and the minor child.” The trial court terminated Father’s child
support obligations effective as of the date of filing of the petition for genetic testing. The court left
in place all of Father’s child support obligations for all periods of time prior to that date. The State
of Tennessee ex rel. Mother appeals, raising several issues. We reverse.

          Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery County
                                Reversed; Case Remanded

CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which HERSCHEL P. FRANKS , J.,
joined. HOUSTON M. GODDARD , P.J., filed a concurring opinion.

Paul G. Summers, Attorney General and Reporter and Stuart F. Wilson-Patton, Senior Counsel,
Office of the Attorney General, Nashville, Tennessee, for the appellant, State of Tennessee, ex rel.
Robyn L. Russell.

J. Ronnie Greer, Greeneville, Tennessee, for the appellee, Jackson B. West.
                                                     OPINION

                                                           I.

         Mother and Father were married on December 26, 1984. Mother was then pregnant with the
child. During the time frame when the child could have been conceived, Mother had intimate
relations not only with Father, but also with her present husband, Charles Russell. According to
Mother’s testimony, she was completely forthright with Father and Mr. Russell about the access of
each during the critical time frame and about her doubt regarding the identity of the child’s
biological father. Mother testified that both men wanted to marry her. Father disputed aspects of
Mother’s testimony. He denied that mother had told him anything that raised a question in his mind
about the paternity of the child. Father did admit, however, that he was aware of the fact that Mother
and Mr. Russell had been involved in a sexual relationship before Father married Mother. Father
insists that he proposed to Mother, believing, without reservation, that he was the child’s biological
father.

         In ordering DNA testing, the trial court made the following factual findings:

                  In the case sub judice, at the time of the parties’ marriage, [Father]
                  maintained suspicions as to his paternity of the minor child. When
                  confronted, [Mother] did not confirm or deny whether [Father] was
                  in fact the biological father of the child. Instead, the matter was left
                  unresolved and [Father] agreed to care for and support the child as his
                  own in return for [Mother’s] hand in marriage.

Father’s testimony reflects that as early as the mid 1980s, and certainly by the time of the divorce
on April 26, 1989, Father had become very suspicious as to whether he was in fact the child’s
biological father. His uncertainty as to this matter arose, at least in part, from the fact that as the
child grew older, he did not exhibit facial features similar to those of Father.1 In addition, Father
found it unusual that at Christmas time, the child would receive presents from Mr. Russell’s sister
– a person who had no apparent reason to have an interest in the child. Father claims that his doubts
regarding his paternity of the child grew after Mother’ marriage to Mr. Russell in 1992. Based upon
his conversations with the child, Father learned the child had been told that Mr. Russell was his real
biological father. It is not altogether clear from the record when these conversations took place; but
based upon the evidence in the record that the child and Father had not had a close relationship since
about 1993, e.g., there had been no overnight visitation with the child since 1993, we assume these
conversations took place soon after Mother’s marriage to Mr. Russell.




         1
         In fact, early grade school photographs of the child and M r. Russell that are in the record reflect a striking
resemblance between the two of them.

                                                          -2-
        Despite having some real pre-divorce doubts regarding his paternity of the child, Father
entered into the MDA, a document that expressly identifies the child as his offspring. As previously
noted, the MDA also designates Mother as the child’s custodian and orders Father to pay child
support. On May 20, 1996, Father filed a petition to modify his child support obligation, stating in
part, that he “[was] unable to pay the child support for my child/children as previously ordered by
[the] [c]ourt because [of] deduction [sic] in income.” (Emphasis added). Furthermore, no pleading
filed by Father prior to his 1999 petition for genetic testing challenges the notion that he is the child’s
biological father. Father testified that he orally raised the issue of paternity at a hearing in 1992, a
hearing that was apparently focused on his failure to pay child support. However, there are no
pleadings or orders prior to February 11, 1999, that intimate, in any way, that Father is not the child’s
biological father. On the contrary, no fewer that three orders entered post-divorce judgment refer,
directly or indirectly, to Father as the father of the child.

                                                              II.

                                                              A.

        Father contends that the trial court’s decision to grant his petition for genetic testing – testing
that eliminated him as the biological father of the child – was not an abuse of discretion given the
facts of the case and controlling law. As primary support for this contention, Father points to Tenn.
Code Ann. § 24-7-112 (2000).2 Father asserts that this statute vests a trial court with discretion to
decide, in a given case, whether genetic testing to determine parentage is equitable. Father argues
that it would be inequitable to require him to continue to pay support for a child who is not his
biological offspring. In essence, Father asserts the court below properly exercised its discretion
when it decided that equity favored the granting of his petition. Finally, Father argues that once the
testing established that he could not possibly be the child’s biological father, the trial court equitably
relieved him, prospectively, of any child support obligation.




        2
            Tenn. Co de A nn. § 2 4-7-1 12 (200 0), reads, in pertinent part:

                    [(a)](2) During any other civil or criminal proceeding in which the question of
                    parentage arises, upon the motion of either party or on the court’s own motion, the
                    court shall at such time as it deems equitable order all nec essary p arties to su bmit
                    to any tests and comparisons which have been developed and adapted for purposes
                    of establishing or disproving parentage.

(Emphasis added).

                                                              -3-
                                                               B.

        Mother, through the State of Tennessee in this ex rel. proceeding, 3 raises several issues on
this appeal. She contends that Father’s failure to raise the issue of paternity at the time of the divorce
precludes him from raising the issue now. Mother relies on the theory of waiver. Mother also
contends that Father did not file his Rule 60.02(5) petition within a reasonable period of time.4 In
addition, Mother argues that the doctrine of res judicata bars Father’s petition. She contends that
the issue of whether Father was the biological father of the child is an issue that could have been and
should have been raised at the time of the divorce, or, at the latest, in connection with one of the
several post-judgment proceedings that addressed (1) whether child support should be modified
and/or (2) the issue of Father’s alleged child support arrearage. In addition, Mother contends that
the version of Tenn. Code Ann. § 24-7-1125 in place when the parties’ divorce was granted, rather
than the statute as currently written, controls this case. Under the former language of that statute,
Mother argues, Father waived the paternity issue by failing to raise it “at the initial appearance” in
the original divorce proceedings.

                                                              III.

      As previously indicated, the trial court treated Father’s petition as a motion for relief from
judgment pursuant to Tenn. R. Civ. P. 60.02(5), which provides as follows:



         3
             The brief of the State of Tennessee ex rel. Robyn L. Russell states the following:

                     The State of Te nnessee is providing child support enforcement services to M s.
                     Russe ll, pursuant to T itle IV-D of the Social Security Act, 42 U.S.C. Section 651,
                     et seq., and T enn. C ode Ann. § 71-3 -124 (c). T he Attorney G eneral’s Office is
                     providing its services on appeal by agreement with the Tennessee Department of
                     Human Services pursuant to the same authority and pursuant to its duty to represent
                     the interests of the State in Tennessee appellate courts. Tenn. Code Ann. § 8-6-
                     109(b)(2).

         4
          Tenn. R. Civ. P. 60.02 requires that a motion for relief un der subsection (5) of that rule “shall be made within
a reasonable time ,....”

         5
          Tenn. Code Ann. § 24-7-112 (West, WESTLA W through 1989), Chapter 459, Public Acts of 1983, § 1, reads,
in pertinent part, as follows:

                     (a) In the trial of any civil or criminal proceeding in which the question of parentage
                     arises, the court before whom the matter may be brought, upon the motion of either
                     party at the initial appearance, shall order that all necessary parties submit to any
                     tests and comparisons which have been developed and adapted for purposes of
                     establishing or disp roving parentage . Failure to make a timely motion for
                     submission to such tests and comparisons shall constitute a waiver and shall not
                     be grounds for a continuance....

(Emphasis added).

                                                              -4-
                  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:...(5) any other reason
                  justifying relief from the operation of the judgment. The motion shall
                  be made within a reasonable time,....

(Emphasis added). A trial court’s decision to grant relief pursuant to Tenn. R. Civ. P. 60.02 is
discretionary and may be disturbed only if the court below abuses its discretion. Ellison v. Alley,
902 S.W.2d 415, 418 (Tenn. Ct. App. 1995); Steioff v. Steioff, 833 S.W.2d 94, 97 (Tenn. Ct. App.
1992). A trial court abuses its discretion if its decision

                  is based on a misapplication of controlling legal principles or a clearly
                  erroneous assessment of the evidence, Overstreet v. Shoney’s, Inc.,
                  4 S.W.3d 694, 709 (Tenn. Ct. App. 1999), or unless it affirmatively
                  appears that the trial court’s decision was against logic or reasoning,
                  and caused an injustice or injury to the complaining party. Marcus
                  v. Marcus, 993 S.W.2d 596, 601 (Tenn. 1999); Douglas v. Estate of
                  Robertson, 876 S.W.2d 95, 97 (Tenn. 1994).

Robinson v. Clement, 65 S.W.3d 632, 635 (Tenn. Ct. App. 2001).

         While the language of Tenn. R. Civ. P. 60.02(5) could be read to suggest a broad application
of its terms, it has been “very narrowly” construed by the courts of this state. Holiday v. Shoney’s
South, Inc., 42 S.W.3d 90, 94 (Tenn. Ct. App. 2000); Steioff, 833 S.W.2d at 97; Duncan v.
Duncan, 789 S.W.2d 557, 564 (Tenn. Ct. App.1990). Two applications of the rule have been
recognized. One is limited to worker’s compensation cases,6 and the other is directed at those cases
presenting “extraordinary circumstances or extreme hardship.” Gaines v. Gaines, 599 S.W.2d 561,
564 (Tenn. Ct. App.1980); see also Duncan, 789 S.W.2d at 564 (“relief [is provided] only in the
most unique, exceptional, or extraordinary circumstances.”). A petitioner has a “heavy burden”
under Rule 60.02(5). Steioff, 833 S.W.2d at 97. In addition, we have previously noted that “[t]he
purpose of Rule 60.02(5) is not to relieve a party from his or her free, calculated, and deliberate
choices. See Underwood [v. Zurich Ins. Co.], 854 S.W.2d [94,] 97 [(Tenn. 1993)].” Holiday, 42
S.W.3d at 94 (additional citations omitted).

       With respect to the issue of res judicata, the Supreme Court has stated the following:

                  The term “res judicata” is defined as a “[r]ule that a final judgment
                  rendered by a court of competent jurisdiction on the merits is
                  conclusive as to the rights of the parties and their privies, and, as to
                  them, constitutes an absolute bar to a subsequent action involving the
                  same claim, demand or cause of action.... [T]o be applicable, it


       6
           See Brown v. Consolidation Coal Co., 518 S.W .2d 234, 238 (Tenn. 1974 ).

                                                       -5-
              requires identity of cause of action, or person and parties to action,
              and of quality in persons for or against whom claim is made.”
              Black’s Law Dictionary 1172 (5th ed. 1979) (citations omitted). We
              have recently discussed the doctrine [...] as follows:

                      The doctrine of res judicata bars a second suit
                      between the same parties or their privies on the same
                      cause of action with respect to all issues which were
                      or could have been litigated in the former suit.[...]

              Goeke v. Woods, 777 S.W.2d 347, 349 (Tenn. 1989) (quoting from
              Massengill v. Scott, 738 S.W.2d 629, 631 (Tenn. 1987)). Res
              judicata [...] appl[ies] only if the prior judgment concludes the rights
              of the parties on the merits. A.L. Kornman Co. v. Metropolitan
              Gov’t of Nashville & Davidson County, 216 Tenn. 205[, 212], 391
              S.W.2d 633, 636 (1965). One defending on the basis of res judicata
              [...] must demonstrate that 1) the judgment in the prior case was final
              and concluded the rights of the party against whom the defense is
              asserted, and 2) both cases involve the same parties, the same cause
              of action, or identical issues. Scales v. Scales, 564 S.W.2d 667, 670
              (Tenn. [Ct.] App. 1977), cert. denied, (Tenn. 1978).

Richardson v. Tennessee Bd. of Denistry, 913 S.W.2d 446, 459 (Tenn. 1995).

       We have addressed the issue of waiver in litigation thusly:

               The failure to assert a claim or defense in a timely manner is deemed
               a waiver of the right to rely on the claim or defense later in the
               proceeding.

Rawlings v. The John Hancock Mut. Life Ins. Co., 78 S.W.3d 291, 300 (Tenn. Ct. App. 2001)
(citations omitted).

                                                IV.

                                                A.

       We have concluded that there are a number of reasons why the facts of this case and
applicable law support a holding that Father cannot pursue the relief sought in this case. We will
address each of these reasons in turn.




                                                -6-
                                                   B.

        At the outset, we hold that Father did not pursue his Rule 60.02(5) motion within a
reasonable period of time. The Supreme Court has offered the following guidance on the issue of
timely filing under the rule:

                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. Rule 60.02 does not,
                however, permit a litigant to slumber on [his] claims and then
                belatedly attempt to relitigate issues long since laid to rest.

Thompson v. Fireman’s Fund Ins. Co., 798 S.W.2d 235, 238 (Tenn. 1990). In the present case,
the information that ultimately led Father to bring the instant petition was known to him for a
number of years prior to his filing of the Rule 60.02(5) motion. It seems clear that Father first had
his doubts regarding whether he was the child’s biological father as early as the time of the parties’
marriage and certainly no later than when Mother filed for divorce. Despite these doubts, Father
refrained from raising this issue. Instead, he waited some ten years after the divorce to file his Rule
60.02(5) motion, while, in the interim, continuing to claim to be the child’s father. A delay of years,
given the facts of this case, is clearly unreasonable.

        We also hold that the trial court abused its discretion in determining that it was equitable to
allow Father’s petition to proceed. On the contrary, we believe such relief in this case was not
equitable. Allowing equitable relief from a judgment so long after that judgment becomes final
violates one of the principal maxims of equity jurisprudence, i.e., “equity aids the vigilant, not those
who sleep upon their rights.” William H. Inman, Gibson’s Suits in Chancery, § 93, p. 89 (7th ed.
1988), quoted in Brown v. Ogle, 46 S.W.3d 721, 726 (Tenn. Ct. App. 2000). We believe that, by
waiting almost ten years from the divorce judgment, Father has surrendered his right to seek
equitable relief. This being the case, we conclude that the trial court abused its discretion in ordering
genetic testing and granting relief based upon the results of that testing.

        Having decided that the trial court’s decision was not equitable, we conclude that the parties’
arguments regarding which version of Tenn. Code Ann. § 24-7-112 applies address a moot issue.
Regardless of which version of the statute applies, Father cannot prevail. See State ex rel. Whitfield
v. Honeycutt, No. M1999-00914-COA-R3-CV, 2001 WL 134597, at *2 (Tenn. Ct. App. M.S., filed
February 16, 2001) (“Although the [newer version of the] statute contains the mandatory ‘shall,’ it
also has the discretionary language ‘at such time as it deems equitable.’ We read the statute as
allowing the trial court the discretion to apply equitable principles and determine whether to permit
the parentage test.” (citation omitted)). If the former version applies, it is clear that Father waived
the issue of parentage testing by failing to raise it “at the initial appearance” in the divorce case. If
the later version of the statute applies, there must still be a finding that testing is equitable.
Therefore, regardless of which version applies, the trial court reached the wrong conclusion.



                                                  -7-
        In addition to the timeliness-of-filing issue and the equity issue, we conclude that Father’s
petition is barred by the doctrines of waiver and res judicata. The MDA and the orders arising from
the post-divorce judgment petitions identify Father as the father of the child. He indicates that on
one occasion he orally raised the issue of paternity. If this be true, the trial court must have resolved
this issue against him because the order following that hearing continued to treat him as the father
of the child. Since Father was aware of a real possibility that he was not the child’s biological parent
at an early date, he cannot now in good faith argue that he was not afforded an opportunity to pursue
this matter in the divorce proceedings, or, at the latest, in one of the post-judgment hearings.7 See
Richardson, 913 S.W.2d at 459; see also Scales, 564 S.W.2d at 670. We conclude that he waived
this issue and, in any event, the issue is res judicata.

                                                            V.

        The judgment of the trial court is reversed. This case is remanded to the trial court for the
entry of an order denying Father’s Rule 60.02(5) motion at his costs. Costs on appeal are also taxed
to the appellee, Jackson B. West.



                                                                  _______________________________
                                                                  CHARLES D. SUSANO, JR., JUDGE




         7
          This court has previously stated that genetic testing to determine parentage has be en viab le since 1 983 . State
ex rel. Cox v. Jones, 198 9 W L 12 284 6, at *3 (Tenn. Ct. A pp. W .S., filed O ctober 18 , 198 9).

                                                            -8-
