MARY ALICE (WILLIAMS) GRIFFIN,      )
                                    )
      Plaintiff/Appellee,           )
                                    )    Appeal No.
vs.                                 )    01-A-01-9802-CH-00084

LACY FLOYD GRIFFIN,
                                    )
                                    )       FILED
                                         Montgomery Chancery
                                    )    No. 95-08-0149
      Defendant/Appellant.          )        October 27, 1998

                                            Cecil W. Crowson
                                           Appellate Court Clerk
                  COURT OF APPEALS OF TENNESSEE


 APPEAL FROM THE MONTGOMERY COUNTY CHANCERY COURT

                     AT CLARKSVILLE, TENNESSEE


      THE HONORABLE CAROL A. CATALANO, CHANCELLOR




THOMAS R. MEEKS
137 Franklin Street
Clarksville, Tennessee 37040

GREGORY D. SMITH
One Public Square, Suite 321
Clarksville, Tennessee 37040
      ATTORNEYS FOR PLAINTIFF/APPELLEE



FRANK J. RUNYON
P. O. Box 1023
Clarksville, Tennessee 37041
      ATTORNEY FOR DEFENDANT/APPELLANT




                      AFFIRMED AND REMANDED




                                        WILLIAM B. CAIN, JUDGE
                                OPINION


        Lacy Floyd Griffin married Mary Alice Williams in November of 1964.
They had been married for thirty-one years, when Mrs. (Williams) Griffin filed
suit for divorce from the bonds of matrimony on the grounds of irreconcilable
differences and cruel and inhuman treatment. The complaint was filed August
29, 1995. The parties executed a Marital Dissolution Agreement on August 30,
1995. Mr. Griffin was not represented by counsel in the divorce. The agreement
reads in pertinent part:
              The HUSBAND shall be responsible for making the
              house payments in the amount of $469.44 per month
              until paid in full and hold the WIFE harmless from
              any remaining indebtedness owed and outstanding on
              the real property located at 112 Bagsby Hill Lane,
              Stewart County, Dover, Tennessee 37058. HUSBAND
              shall indemnify WIFE for all damages inclusive of
              attorneys fees for his failure to make and pay all
              remaining indebtedness owed on said real property.

Though the complaint for divorce listed no children born of the marriage, Mr.
and Mrs. Griffin had two adult children of the marriage. At the time of the
divorce, Mr. Griffin was suffering from miscellaneous maladies due to his age
and line of work. The Final Decree of Divorce was entered in this case on
October 30, 1995. On March 10, 1997, a full eighteen months after the original
final decree, Mr. Griffin filed a “Petition to Terminate Payment” stating, inter
alia:
              3. In support of same the Petitioner would allege that
              he is in ill health and the making of [the house
              payment] creates an undue hardship upon him.
              Further, the Petitioner would state that the reason the
              Petitioner agreed to pay said payments was because at
              the time the Respondent was unable to do so. Since
              then the Respondent has remarried on August 2, 1996
              and she and her husband are both residing in the
              residence. Therefore your Petitioner alleges that
              [Respondent] is receiving support from other sources
              and is well able to manage the payment on the
              residence at this time.


        On June 20, 1997, Appellant filed a motion to set aside the Final Decree
of Divorce on the following grounds:


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    1. Lacy Floyd Griffin and Plaintiff/
Respondent, Mary Alice Williams (Griffin - Earhart),
were married on November 1964.

     2. Tim Griffin was born on 12/7/68 and lived
as the biological son of Lacy Floyd Griffin and Mary
Alice Williams (Griffin - Earhart).

     3. Donald Griffin was born on 10/25/65 and
lived as the biological son of Lacy Floyd Griffin and
Mary Alice Williams (Griffin - Earhart).

     4. Mary Alice Williams (Griffin - Earhart) was
married and divorced from Eddie Earhart prior to
marrying Lacy Floyd Griffin..

     5. Mary Alice Williams (Griffin - Earhart) and
Earhart had a continuous affair which lasted
throughout the marriage of Mary Alice Williams
(Griffin - Earhart) and Lacy Floyd Griffin.

     6. Lacy Floyd Griffin was experiencing severe
chest pains during the latter part of 1995, and sought
medical treatment at St. Thomas Hospital in Nashville,
Tennessee.

     7. While Lacy Floyd Griffin was seeking
treatment for said chest pains, Mary Alice Williams
(Griffin - Earhart) filed a complaint for divorce,
seeking the divorce on the grounds of 1. Irreconcilable
Differences, and 2. Cruel and Inhuman Treatment.

     8. Mary Alice Williams (Griffin - Earhart)
then, through her attorney Thomas Meeks, caused a
“Marital Dissolution Agreement” (MDA) to be drawn.
The MDA cited the sole ground for divorce as being
“Irreconcilable Differences,” pursuant to T.C.A. 36-4-
101.

     9. Mary Alice Williams (Griffin - Earhart) then
drove Lacy Floyd Griffin to the office of her attorney,
and asked him to sign the MDA.

     10. Lacy Floyd Griffin has an eighth-grade
education, has difficulty reading and at the time he
was asked to sign the MDA was experiencing further
physical problems with his eyes.

    11. Mary Alice Williams (Griffin - Earhart) was
aware of the facts recited in paragraph ten, and asked
Lacy Floyd Griffin to sign the MDA.


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                   12. Lacy Floyd Griffin did not thoroughly read
              the MDA and the MDA was not read to him.

                  13. The terms of the MDA were oppressive,
              unconscionable, extremely one-sided, and not true.

                   14. The MDA recites that “no children were
              born of the marriage,” and this is not true.

                   15. Donald Griffin was born of the marriage,
              and Lacy Floyd Griffin is his biological father.

                   16. Tim Griffin was born during the marriage of
              Lacy Floyd Griffin and Mary Alice Williams (Griffin -
              Earhart), but recently, since the filing of the “Final
              Decree of Divorce,” Mary Alice Williams (Griffin -
              Earhart) told Tim Griffin that Eddie Earhart was his
              father.

                   17. Tim Griffin and Donald Griffin had always
              known Lacy Floyd Griffin to be their father, and both
              were supported and loved by Lacy Floyd Griffin as a
              father.

                   18. Mary Alice Williams (Griffin - Earhart) has
              never told Lacy Floyd Griffin that Tim Griffin was not
              his son.


        In essence, after the divorce decree was entered in this case, Mr. Griffin
discovered that one of the adult children born during his marriage might not be
his. He also discovered that his wife had been conducting an ongoing affair; that
the paramour is now her new husband; and that the couple now occupy his
former home. There is no doubt that the facts before this court paint a sad
picture.


        The most unfortunate part of this story, however, is that under these
circumstances, the allegations raised in the instant petition do not rise to the level
required.


        Rule 60.02 of the Tennessee Rules of Civil Procedure provides in pertinent
part:
              60.02 Mistakes - Inadvertence - Excusable Neglect -
              Fraud, etc. On motion and upon such terms as are
              just, the court may relieve a party or the party's legal

                                          4
               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 (1998).


      Reading only Appellant’s motion, the request to set aside the decree of the
trial court sounds clearly in fraud. The “statutory” period in which to bring an
action has lapsed. Appellant attempts to bypass this obstacle by asserting that
his motion is actually grounded in the “any other reason” portion of the rule.
Even were this court persuaded by such an argument, relief would still be beyond
Appellant’s reach. In the case at bar, Appellant did not appear to defend his
wife’s divorce petition. His signature appears in the Acceptance of Service dated
August 19, 1995. In addition, Mr. Griffin forwarded a note to the trial court,
bearing the file date of October 2, 1995, in which he stated "I Lacy F. Griffin
know today the 2nd of Oct. is court date. I agree to the papers we signed. s/Lacy
F. Griffin."




                                         5
      The well-established rule in this jurisdiction is that the decision whether
or not to set aside a default judgment is within the sound discretion of the
Chancellor, which will not be overturned absent a showing of abuse of that
discretion. Turner v. Turner, 739 S.W.2d 779, 780 (Tenn. Ct. App. 1986),
(Citing Moore v. Palmer, 675 S.W.2d 192, 194 (Tenn. Ct. App. 1984)). While
the judgment in the instant case may not technically be a default judgment, it is
a judgment entered without the benefit of the presence of the aggrieved party.
The above rule applies in this situation.


      It seems that Mr. Griffin, by the instant motion, attempted to persuade the
trial court to reexamine the fairness of the original Marital Dissolution
Agreement after failing to appear himself to question the document in the first
instance. In circumstances such as these, this court is loath to readdress the trial
court’s decision. See Brown v. Brown, 863 S.W.2d 432 (Tenn. Ct. App. 1993).
See also Day v. Day, 936 S.W.2d 931 (Tenn. Ct. App. 1996).


      Under the authorities cited above, this court affirms the trial court’s
dismissal and remands the cause for such further proceedings as are necessary.
Costs on appeal are taxed against Appellant.




                                        __________________________________
                                        WILLIAM B. CAIN, JUDGE


CONCUR:



________________________________________
BEN H. CANTRELL, PRESIDING JUDGE,M.S.


________________________________________
WILLIAM C. KOCH, JR., JUDGE




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