                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                 February 18, 2004 Session

  STATE OF TENNESSEE, EX REL., JOEANN KEE DAVIS v. FRANKIE
                         LEE DAVIS

                 A Direct Appeal from the Juvenile Court for Shelby County
                  No. M6237     The Honorable Kenneth A. Turner, Judge



                     No. W2002-02521-COA-R3-JV - Filed April 28, 2004


        Appellant seeks relief, under Tenn. R. Civ. P. 60.02, from final order setting child support
obligations. Finding no extraordinary circumstances, extreme hardship, or excusable neglect, 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 HOLLY M. KIRBY , J., joined.

Marcus M. Reaves, Denmark, Tennessee, For Appellant, Frankie Lee Davis

Paul G. Summers, Attorney General and Reporter; Warren A. Jasper, Assistant Attorney General,
For Appellee, State of Tennessee ex rel., Joeann Kee Davis

                                            OPINION

        Frankie Lee Davis (“Mr. Davis,” “Defendant,” or “Appellant”) and Joeann Kee Davis (“Ms.
Davis,” “Petitioner,” or “Appellee”) are separated. They are the parents of E.E.D. (d/o/b April 19,
1986) and A.D.D. (d/o/b August 15, 1988). Mr. Davis’ doctors say he suffers from skin problems,
including “spongiotic dermatitis” and “psoriasis” with skin rash and “pain syndrome.” He is under
the care of a rheumatologist.

       On June 29, 2001, Ms. Davis filed a “Petition for Child Support” in the Shelby County
Juvenile Court against Mr. Davis, seeking support for the couple’s two minor children. A hearing
before the Referee of the Juvenile Court was held on July 25, 2001. On August 22, 2001, the
Referee entered her findings and recommendations, which read, in relevant part, as follows:
                  1. That FRANKIE L. DAVIS shall pay by income assignment
                  $300.00 monthly, plus 5% statutory fee, to the Central Child Support
                  Receipting Unit, P.O. Box 305200, Nashville, Tennessee, 37229,
                  toward the support of the child(ren) named in the petition beginning
                  retroactively July 25, 2001. Unless specifically ordered by the Court,
                  such support shall not be reduced or prorated.
                  2. That the defendant shall provide medical insurance for the
                  child(ren), and that the parties each be responsible for one-half of the
                  child’s necessary medical expenses not covered by insurance. In the
                  event insurance is not provided the defendant shall be responsible for
                  all of the child’s necessary medical expenses.

       The matter was continued until August 22, 2001. At that time, the Order of support was
upheld. On August 24, 2001, Mr. Davis filed a “Request for Hearing before the Judge.” This
Request (characterized as a “Petition to Rehear” at this point in the record) was dismissed on
November 29, 2001 for failure to prosecute.

        On December 20, 2001, Mr. Davis filed a “Motion to Set Aside” the court’s order
establishing his child support obligations. This Motion alleged that Mr. Davis was told that the
hearing on the matter of his support obligation was to be held on August 24, 2001 instead of August
22, 2001. He also sought to set aside the November 29, 2001 Order alleging that he never received
notice to appear on his previously filed “Request for Hearing before Judge.”
Mr. Davis’ Motion was granted by Order of January 3, 2002. That Order set aside the November
29, 2001 Order and set the cause for hearing on February 7, 2002. Following the February 7, 2002
hearing, an Order was entered, which dismissed Mr. Davis’ “Petition to Rehear,” and reconfirmed
the child support obligations outlined in the Referee’s August 22, 2001 ruling. However, the Order
“suspend[ed] enforcement [of the child support obligation] at this time due to defendant’s
testimony.”1

         On May 29, 2002, Mr. Davis filed a “Motion to Modify Order,” claiming “sufficient change
in circumstances to justify a modification....” This Motion was set for hearing on August 5, 2002.
On August 5, 2002, the Juvenile Referee dismissed the Motion “without prejudice due to parties
failure to appear.”

        On September 9, 2002, Mr. Davis filed a “Motion to Set Aside Judgment,” apparently under
Tenn. R. Civ. P. 60.02, along with an Affidavit in support thereof. This Motion reads, in relevant
part, as follows:[14]

                         Comes the Defendant, Frankie Lee Davis, and moves this
                  Court for an Order to Set Aside Judgment entered in against [sic] him
                  on August 5, 2002 and states as grounds the following:


       1
           A transcript of this testimony is not in the record on appeal.

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                      1. That the Defendant was given the date of August 8, 2002
               to appear before the Court.

                      2. That the Defendant appeared on August 8, 2002 and was
               advised that this case had been dismissed for failure to appear.

                       3. That the Defendant[‘s] failure to appear was not willful.

                      4. That the Defendant was given unt[il] this date to bring
               records regarding his medical condition from the expert.

                      5. That the Defendant hereby attaches...said letters from his
               physic[ian] stating his medical condition.

               WHEREFORE DEFENDANT PRAY[S]:

               1. That this Court set aside all Orders subsequent to the August 5,
               2002 hearing.

       Following a hearing on October 1, 2002, the Juvenile Referee ordered that Mr. Davis’ Motion
should be denied and that his child support obligations should not be modified or set aside. The
Juvenile Court affirmed the Referee. Mr. Davis appeals from this Order and raises one issue for
review as stated in his brief:

               Whether the court erred in refusing to set aside the judgment of
               August 5, 2002 in dismissing the motion to modify.

Tennessee Rule of Civil Procedure 60.02 provides, in relevant part:

               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 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


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23, 2001) (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)). However, “parties are not justified in neglecting their cases merely because of the
stress or importance of their own private business and such neglect is ordinarily not excusable.”
Food Lion, Inc. v. Washington County Beer Board, 700 S.W.2d 893, 896 (Tenn.1985) (citations
omitted). 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)).

        Mr. Davis first asserts the ground of excusable neglect, under Tenn. R. Civ. P. 60.02(1). Mr.
Davis failed to appear at several hearings in this matter, including the August 22, 2001 hearing to
set support before the Referee, the November 29, 2001 hearing before the judge to set support and
on his Motion to Set Aside, and at the hearing on his Motion to Modify Order. As noted, supra,
“parties are not justified in neglecting their cases merely because of the stress or importance of their
own private business and such neglect is ordinarily not excusable.” Food Lion, Inc. v. Washington
County Beer Board, 700 S.W.2d 893, 896 (Tenn.1985). Furthermore, 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). From our review of
the record, Mr. Davis has not explained his numerous absences from hearings on this matter to the
extent necessary to satisfy the heavy burden of proof required for Rule 60.02 relief.

        Mr. Davis next seeks relief under the section (5) “any other reason” clause of the rule. Mr.
Davis relies upon Gaines v. Gaines, 599 S.W.2d 561 (Tenn. Ct. App. 1980), in which this Court
noted that a “proper case” for relief under the “other reason” clause is “only one of ‘extraordinary
circumstances’...or ‘extreme hardship’....” Id. at 564 (quoting United States v. Cirami, 563 F.2d 26,
32 (2d Cir. 1977)). In asserting an “extreme hardship” basis for setting aside the judgment in this
case, Mr. Davis misapplies the standard set forth in Gaines. The extreme hardship cited in Gaines
occurred where counsel allowed entry of default judgment after “constructively” disappearing due
to mental illness. In the case at bar, Mr. Davis is alleging that the Order itself constitutes a hardship.
As aptly pointed out in Appellee’s brief, such is the case with most court orders. Here, we have a
father who has a support obligation yet claims to be unable to work. The record contains two
unsworn statements from physicians to this effect. In addition, Mr. Davis provided a Statement of
Evidence. In the face of this evidence, the trial court found that the support obligation could be met
by Mr. Davis. We have reviewed the entire record in this case and we find no extraordinary
circumstance or extreme hardship such as to require the setting aside of the trial court’s Order under
Tenn. R. Civ. P. 60.02(5)

       For the foregoing reasons, we affirm the Order of the trial court. Costs of this appeal are
assessed against the Appellant, Frankie Lee Davis, and his surety.




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




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