                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                  February 15, 2005 Session

STATE OF TENNESSEE DEPARTMENT OF HUMAN SERVICES, ex rel.,
             TRACY ELLIS v. MALCOLM HUMES

                 A Direct Appeal from the Juvenile Court for Shelby County
                    No. G3291     The Honorable Kenneth Turner, Judge



                     No. W2004-00602-COA-R3-JV - Filed March 10, 2005


        Appellant seeks relief, ostensibly under Tenn. R. Civ. P. 60.02, from final orders establishing
paternity and setting child support obligations. Because Appellant failed to timely file his petition
to establish fraud and/or misrepresentation and because the equities in this matter do not support the
disestablishment of paternity, we affirm.


     Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Juvenile Court Affirmed

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

Edwin C. Lenow of Memphis for Appellant, Malcolm Humes

Paul G. Summers, Attorney General and Reporter; Stuart F. Wilson-Patton, Senior Counsel for
Appellee, State of Tennessee, ex rel., Tracy Ellis

                                             OPINION

       Tracy L. Ellis is the mother of the two minor children at issue in this case: O.T.H.E. (d.o.b.
3/10/93) and N.L.E. (d.o.b. 10/1/94). On August 10, 1994, the State of Tennessee (“State,” or
“Appellee”), as assignee of Tracy Ellis, filed a petition to establish paternity alleging that Malcolm
Todd Humes (“Appellant”) is the natural father of O.T.H.E. On August 30, 1994, the trial court
entered an order finding that Mr. Humes is the natural father of O.T.H.E. and ordering him to pay
support for that child.

        On June 26, 1995, the State filed a “Petition to Establish Paternity” against Mr. Humes to
establish paternity of N.L.E. and to incorporate the previous order legitimizing O.T.H.E. This
Petition asserts that Mr. Humes is N.L.E.’s natural father and that Ms. Ellis is her mother. Ms. Ellis
signed the Petition under oath on June 19, 1995. On January 20, 1998, the Juvenile Court Referee
entered findings and recommendations granting a default judgment against Mr. Humes based upon
Mr. Humes’ failure to appear. The Referee found Mr. Humes to be N.L.E.’s natural father and
ordered him to pay both current and retroactive child support. These findings and recommendations
were confirmed by the trial court on the same day. A second hearing before the Referee was held
and, on January 30, 1998, the Referee entered findings and recommendations setting aside the
previous findings and recommendations of January 20, 1998, and setting current and retroactive
child support. In addition, H.L.E. was found to be a public charge and Mr. Humes was found to be
her natural father. The findings and recommendations of the Referee were confirmed by the trial
court on January 30, 1998.1

         The record contains a “Petition for Citation for Contempt of Court,”which was set for hearing
on January 14, 2002. On that date, Mr. Humes appeared and signed a waiver of his right to an
attorney before the Referee. On January 14, 2002, the Referee entered findings and
recommendations in which she found Mr. Humes in contempt of court for failure to pay monthly
child support of $329.04 as previously ordered by the trial court.2 The Referee ordered Mr. Humes
to be confined to the county jail until he purged himself of contempt by payment of $1,500 of the
arrearage and increased his monthly payment on the arrearage to $75 per month. On the same day,
the trial court confirmed and adopted the findings and recommendations of the Referee.3

        In April of 2003, Ms. Ellis died. On July 15, 2003, Mr. Humes filed a “Petition to Set Aside
Order of Paternity and Child Support.” By his Petition, Mr. Humes sought relief on the grounds that
DNA testing had excluded him from paternity of the children and he requested that the previous
child support orders declaring him to be the children’s father be set aside or, in the alternative, that
he be granted new DNA testing. Mr. Humes attached copies of the alleged parentage test results to
his Petition.4 On August 1, 2003, the State filed an Answer to Mr. Humes’ Petition asserting that
Mr. Humes should be denied relief based, inter alia, upon the doctrines of res judicata and collateral
estoppel. Mr. Humes filed an “Amended Petition to Set Aside Order of Paternity and Child Support”
on September 25, 2003.

       A hearing before the Referee was held on December 12, 2003. Mr. Humes was the only
witness to testify. Mr. Humes’ position at the hearing was that Ms. Ellis had misled or defrauded
him into believing that he was the father of these children. He testified that, as early as June of 2000,
he became suspicious about the parentage of these children after N.L.E., who was then

         1
         The record contains income assignment orders issued to Mr. Humes’ employers from February, April, May
and September 1998.

         2
          Mr. Humes claims that he asked the court to allow him parentage testing at the contempt hearing on January
14, 2002. There is no evidence in the record that he made such a request.

         3
           The record contains an income withholding order issued to Mr. Humes’ employer on June 7, 2002 showing
a total monthly child support obligation of $493.56 per month.

         4
          W hile copies of these parentage test results appear in the record, they were not admitted into evidence based
upon objections by counsel for the State.

                                                          -2-
approximately five years old, told him that she had two daddies. At the time, Ms. Ellis was married
and Mr. Humes testified that he thought N.L.E. was referring to her step-father. Additionally, Mr.
Humes testified that a Ms. Vanessa Williams, whom he claimed was a friend of Ms. Ellis’, gave him
some reason to doubt his paternity. Ms. Williams did not testify and, from Mr. Humes’ testimony,
it is unclear exactly what Ms. Williams allegedly said that gave rise to his suspicions. Based upon
this information, Mr. Humes testified that he had DNA tests performed on July 7, 2000 when the
children were visiting him.5 Mr. Humes testified that he did not receive the results of these tests
until February 11, 2003. Despite his belief that he was not the father of these children, the evidence
adduced at the hearing indicates that he continued to hold himself out as the children’s father, even
as late as the date of the hearing when he brought lunch money to them at school. At the close of
proof, the State made an oral motion that the petitions for relief be dismissed on grounds that Mr.
Humes had failed to introduce any competent evidence of fraud, and that there was no legal or
equitable basis for relief from the orders of paternity or child support. On January 28, 2004, the
Referee entered findings and recommendations dismissing Mr. Humes’ petitions.6 The trial court
confirmed the Referee’s findings and recommendations on the same day.

       Mr. Humes appeals and raises one issue for review as stated in his brief: Whether the
Juvenile Court should have set aside the Paternity Orders and Child Support Orders.

         Tennessee Rule of Civil Procedure 60.02 reads, in relevant 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; (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....

The burden of proof under Rule 60.02 is on the party seeking relief, and that party carries a heavy
burden. Gilliland ex rel. Gilliland v. Pinkley, 2001 WL 557985, at * 4 (Tenn.Ct.App. May 23, 2001)

         5
           The only DNA test results in the record were those attached to Mr. Humes’ Petition and these tests were not
admitted into evidence. The test results, however, indicate that they were conducted in June of 2002 and the results are
dated July 16, 2002. These tests were conducted by Memorial Blood Centers in Minneapolis, MN.

         6
             The original findings and recommendations entered on December 12, 2003 were amended and filed on January
28, 2004.

                                                          -3-
(citations omitted). Rule 60.02 is intended to be an "exceptional remedy" that serves as "'an escape
valve from possible inequity that might otherwise arise from the'" Tennessee Rules' principles of
finality. Id. (quoting Thompson v. Fireman's Fund Ins. Co., 798 S.W.2d 235, 238 (Tenn.1990)).
The disposition of motions under Rule 60.02 is best left to the discretion of the lower court, and such
decisions are reversed only if they constitute an abuse of that discretion. Spruce v. Spruce, 2 S.W.3d
192, 194 (Tenn. Ct. App .1998) (quoting Underwood v. Zurich Ins. Co., 854 S.W.2d 94
(Tenn.1993)).

        Although Mr. Humes does not clearly indicate which provision(s) of Rule 60.02 he is relying
upon, in his brief, he asserts as grounds “newly discovered evidence,” “fraudulent
misrepresentation,” “change of circumstances,” and “results of the DNA test.” Consequently, it
appears that he is asking for relief based upon two of the five provisions of Rule 60.02. Mr. Humes
first asserts the grounds of fraud and misrepresentation under Tenn. R. Civ. P. 60.02(2).
Specifically, he contends that Ms. Ellis perpetrated a fraud upon him by misleading him about his
paternity of these children. We first note that the paternity and child support orders in this case were
entered on September 13, 1994 for O.T.H.E. and on January 30, 1998 for N.L.E. As discussed
above, Mr. Humes’ request for relief from these orders was not made until July 15, 2003. Under the
provisions of Rule 60.02, any request for relief under Rule 60.02 on the grounds of fraud or
misrepresentation must be made “not more than one year after the judgment, order or proceeding was
entered or taken.” Consequently, Mr. Humes waited eight years too long as to O.T.H.E. and four
years too long for N.L.E. to seek relief under Rule 60.02(2).

        However, even if we assume arguendo that Mr. Humes’ request for relief under Rule
60.02(2) was timely made, from the record before us, we would still conclude that he failed to meet
his burden for establishing fraud or misrepresentation. The law on fraud is well established in
Tennessee and, in order to state a claim for fraud, the following elements must be established: (1)
an intentional misrepresentation with regard to a material fact; (2) knowledge of the
representation['s] falsity--that the representation was made "knowingly" or "without belief in its
truth," or "recklessly" without regard to its truth or falsity; (3) that the plaintiff reasonably relied on
the misrepresentation and suffered damage; and (4) that the misrepresentation relates to an existing
or past fact, or, if the claim is based on promissory fraud, then the misrepresentation must "embody
a promise of future action without the present intention to carry out the promise." Shahrdar v.
Global Hous., Inc., 983 S.W.2d 230, 237 (Tenn. Ct. App.1998) (quoting Stacks v. Saunders, 812
S.W.2d 587, 592 (Tenn. Ct. App.1990)).

        From the record before us, Mr. Humes failed to meet his burden on the issue of fraud and
misrepresentation on the part of Ms. Ellis. Specifically, he failed to establish that Ms. Ellis knew
he was not the father of these children before the paternity orders were entered, that she knowingly
misrepresented to him that he was the father, and that he reasonably relied upon her
misrepresentation to his detriment. Consequently, the trial court did not err in denying Mr. Humes
relief under Rule 60.02(2).




                                                   -4-
        Despite the fact that the trial court excluded the results of the parentage tests from the
evidence in this case and the fact that Mr. Humes raises no issue as to whether the trial court erred
in so doing, Mr. Humes next asserts that these parentage tests that allegedly excluded him from
paternity, automatically entitled him to relief under Rule 60.02(4). To support his position, Mr.
Humes relies upon this Court’s opinions in White v. Armstrong, No. 01A01-9712-JV-00735, 1999
WL 33085 (Tenn. Ct. App. Jan. 27, 1999) (No Tenn. R. App. P. 11 application filed) and Richards
v. Read, No. 01A01-9708-PB-00450, 1999 WL 820823 (Tenn. Ct. App. July 27, 1999) (No Tenn.
R. App. P. 11 application filed) to support his position. In White v. Armstrong, this Court
disestablished paternity by granting relief under Tenn. R. Civ. P. 60.02(4) on grounds that it was not
equitable for the child support orders to have prospective application. Although the impetus for the
Court’s decision was parentage test results that excluded the legal father from paternity, this case
does not establish a bright-line rule that such test results, even if properly admitted into evidence,
automatically entitled a legal father to relief under Rule 60.02(4). Rather, the White Court cautions
that Rule 60 relief “should not be granted without analyzing the burdens that granting relief or failing
to grant relief will place on all who have an interest in the proceeding.” Likewise, the case of
Richards v. Read does not stand for the proposition that parentage testing alone should result in
automatic relief under Rule 60 absent a weighing of the equities in such cases. Judge Cottrell’s
separate concurring opinion in Richards reads, in relevant part, as follows:

               I am concerned that the majority opinion, and the other recent
               opinions discussed therein, may be construed as establishing a
               black-letter rule that every father who has voluntarily acknowledged
               paternity and who is later proved not to be the child's biological father
               may be relieved from the parental obligation he previously undertook.
               That is not the current state of the law, and I do not believe it is the
               majority's intent to make it so. However, the majority opinion
               includes the statement that "it is no longer equitable to require child
               support from a man conclusively established not to be the biological
               father of the child." I do not believe it would be inequitable in every
               factual situation to require a person to continue to live up to
               responsibilities he voluntarily assumed. Nor do I believe that in every
               situation it would be just to deprive a child of the support and
               parental relationship, established by law, upon which the child has
               relied. In balancing the equities of each case, as Rule 60.02 requires
               us to do, the financial interests of a father at law who is not also the
               biological father cannot be presumed to always outweigh the interests
               of a child.

1999 WL 820823 at *11.

        Clearly from the relevant case law, regardless of whether there are parentage tests excluding
a legal father from parentage, the gravamen of Rule 60.02(4) relief in these types of cases lies in
equity. In terms of equitable considerations, this record indicates that the mother of these children


                                                  -5-
is now deceased and there is no evidence to suggest that the children have established any
meaningful or continuing relationship with any father-figure except for Mr. Humes. The evidence,
however, supports a finding that Mr. Humes has nurtured such a relationship with these children.
He has exercised visitation with them and has continued to pay support for them. And, even as late
as the day of the hearing in this matter, Mr. Humes held himself out as the father of these children
when he visited their school. In light of Mr. Humes’ actions and the rather precarious position of
these two children, Mr. Humes’ financial interests simply do not outweigh the value of continuing
the parent-child relationship in this case. Consequently, we cannot say that the trial court abused its
discretion in denying Mr. Humes relief under Rule 60.02.

         At oral argument, Mr. Humes asserted that the trial court abused its discretion in denying his
alternate request for additional parentage testing. We disagree. As this Court noted in State ex rel.
Russell v. West, 115 S.W.3d 886 (Tenn. Ct. App. 2003), parentage testing should be denied when
the equitable considerations do not support the disestablishment of paternity. Since Mr. Humes has
failed to establish that he is entitled to relief under Rule 60.02, and since there is no equitable basis
for such relief, we cannot conclude that the trial court erred in failing to order further parentage
testing.

       For the foregoing reasons, we affirm the judgment of the trial court. Costs of this appeal are
assessed against the Appellant, Malcolm Humes, and his surety.




                                                __________________________________________
                                                W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.




                                                  -6-
