                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                    July 12, 2001 Session


       JEROME FELIX HAVELY v. ALMEDA MATTHEWS HAVELY

               Appeal from the Domestic Relations Court for Hamblen County
                              No. 1176   Joyce Ward, Judge

                                   FILED AUGUST 15, 2001

                                 No. E2000-02275-COA-R3-CV



In 1983, Jerome Felix Havely and Almeda Matthews Havely were divorced. They had entered into
a Property Settlement Agreement which was incorporated into the Judgment of Divorce (“Divorce
Judgment”). Neither the Divorce Judgment nor the Property Settlement Agreement mentioned the
military pension of Jerome Felix Havely (“Plaintiff”). Approximately one month after the entry of
the Divorce Judgment, Almeda Matthews Havely (“Defendant”) filed a motion essentially seeking
relief under Tenn. R. Civ. P. 60.02 in which she alleged that the Divorce Judgment should be set
aside because she had not been aware of her entitlement to Plaintiff’s military pension. This motion
was dismissed in 1984 by the Trial Court for failure to prosecute. This matter lay dormant for
fourteen plus years until Defendant filed two more Rule 60.02 motions. Defendant’s third and final
Rule 60.02 motion, filed in 1999, is the subject of this appeal. After three notices of hearing were
filed, the Trial Court dismissed Defendant’s motion without providing its reasons for the dismissal.
Defendant appeals. We affirm.


 Tenn. R. App. 3 Appeal as of Right; Judgment of the Domestic Relations Court Affirmed.


D. MICHAEL SWINEY , J., delivered the opinion of the court, in which HOUSTON M. GODDARD, P.J.,
and HERSCHEL P. FRANKS, J., joined.

David W. Blankenship, Kingsport, Tennessee, for the Appellant, Almeda Matthews Havely.

Clinton R. Anderson, Morristown, Tennessee, for the Appellee, Theresa Waller, administratrix for
the Estate of Barbara Havely.
                                                     OPINION

                                                   Background

                The record on appeal in this matter contains only the technical record and is devoid
of any transcript or statement of the evidence or proceedings. See Tenn. R. App. P. 24. In 1983, the
parties obtained a divorce. Plaintiff filed his Complaint for divorce on April 26, 1983, and
Defendant filed her Answer on the same date. In an apparent clerical error, the entry date of the
Divorce Judgment was marked as “April 16, 1983.” (emphasis added). The Divorce Judgment
incorporated by reference an undated Property Settlement Agreement executed by both parties and
their attorneys. The Property Settlement Agreement makes no mention of Plaintiff’s military
pension but states that “[t]he parties hereby declare that there has been no fraud or collusion in the
procurement of this agreement.” No appeal was taken.

                 Thereafter, in June 1983, Defendant, represented by new counsel, filed a Petition to
Rehear (“1983 Motion”) which was essentially a Rule 60.02 motion for relief from the Divorce
Judgment. The grounds for Defendant’s 1983 Motion were that Defendant did not learn of her
entitlement to Plaintiff’s military pension until May 15, 1983, the day before the Divorce Judgment
was entered.1 In her Motion, Defendant alleged, without any supporting affidavit, that she had not
been aware of her entitlement to Plaintiff’s pension but that Plaintiff had told her that he knew she
was entitled to the pension. Thereafter, in March 1984, the Trial Court dismissed the 1983 Motion
for failure to prosecute. No appeal was taken.

               The next pleading contained in the technical record was filed in August 1998, more
than fourteen years after the March 1984 order, and is Defendant’s Motion for Relief from Judgment
(“1998 Motion”). In Defendant’s 1998 Motion, Defendant argued that the Divorce Judgment was
void under Tenn. R. Civ. P. 60.02(3). The 1998 Motion contains a number of grounds, including
1) the Divorce Judgment was erroneously entered by the Trial Court clerk on April 16, 1983; 2) the
Divorce Judgment erroneously states that a hearing was held; and 3) the Trial Court erroneously
granted Plaintiff’s grounds for divorce, which was cruel and inhumane treatment.2

               In December 1998, the Trial Court entered an Order which referenced a November
20, 1998, hearing regarding Defendant’s 1998 Motion in which one of Defendant’s former attorneys
and the court clerk testified. The Trial Court held, in its Order, that the Divorce Judgment should

         1
           The clerical error in entering the Divorce Judgment as of April 16, 1983 was not addressed by Defendant
in the 1983 Motion.

         2
             At some point during th e 14 plus year lapse in activity in this matter, Plaintiff died. Defendant’s 1998
Motion alleges that she filed a claim against Plaintiff’s estate. After Defendant’s 1998 Motion was filed, Plaintiff’s
widow, Barbara Ha vely, filed a P etition to Inter vene w hich wa s granted in Nov embe r 1998. T hereafter, w hile this
matter was pen ding on appeal, Barbara Havely died and the adm inistratrix of her estate, Theresa Waller, was allowed
to substitute as party appellee. For simplicity’s sake, we will refer to Jerome Felix Havely, Barbara Havely and Barbara
Havely ’s estate’s adm inistratrix as “P laintiff.”

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have been dated May 16, 1983, and assessed costs against Defendant. The remaining grounds of
Defendant’s 1998 Motion were not addressed in the Trial Court’s 1998 Order (“1998 Order”). No
appeal was taken from this order.

               In November 1999, Defendant filed a third Rule 60.02 motion attacking the Divorce
Judgment (“1999 Motion”). This 1999 Motion and its dismissal is the subject of this appeal. In her
1999 Motion, Defendant reiterated the objections to the Divorce Judgment made in her previous
motions filed in 1983 and 1998. As in her 1983 Motion, Defendant alleges that the Divorce
Judgment should be set aside because Plaintiff fraudulently concealed Defendant’s entitlement to
his military pension, citing as authority the “entire range of relief available to her under Rule 60.02
. . . .” Moreover, despite the Trial Court’s 1998 Order which corrected the erroneous date of entry
on the Divorce Judgment, Defendant specifically pled the relief provided by Tenn. R. Civ. P.
60.02(3) for void judgments and again argued the Divorce Judgment’s date of entry shows that the
divorce was entered prior to the filing of the Divorce Complaint.

               Defendant filed a Notice of Hearing with her 1999 Motion setting a January 2000,
hearing date. The 1999 Motion apparently was not heard in January 2000. The technical record
contains two more Notices of hearing apparently issued by the Trial Court clerk for the 1999 Motion,
setting two hearing dates in August. After the two hearing dates passed, presumably without a
hearing, the Trial Court entered an Order of Dismissal which contained no explanation for the
dismissal. Defendant appeals. We affirm.

                                             Discussion

               Defendant’s argument on appeal is rather unclear, and she cites no legal authority in
support of her argument. See Tenn. R. App. P. 27(a)(7). Although not exactly stated as such, it
appears that Defendant argues on appeal that: 1) the divorce judgment should be set aside under
Tenn. R. Civ. P. 60.02(2) or 60.02(3); 2) the Trial Court erred in failing to investigate the fraudulent
concealment of Plaintiff’s military pension; 3) the Trial Court erred in dismissing Defendant’s 1999
Motion without any notice to either party; and 4) Defendant’s due process rights were violated by
the Trial Court’s dismissal of the 1999 Motion without a hearing. Plaintiff raises no additional
issues on appeal but contends that Defendant’s appeal is frivolous.

                 “A motion for relief from a judgment pursuant to Rule 60.02 addresses the sound
discretion of the trial judge[, and] the scope of review on appeal is limited to whether the trial judge
abused his discretion.” Banks v. Dement Constr. Co., Inc., 817 S.W.2d 16, 18 (Tenn. 1991). A
discretionary judgment of the Trial Court will not be reversed for abuse of discretion unless it
“‘affirmatively appears that the Trial Court’s decision was against logic or reasoning, and caused an
injustice or injury to the party complaining.’” Marcus v. Marcus, 993 S.W.2d 596, 601 (Tenn. 1999)
(quoting Ballard v. Herzke, 924 S.W.2d 652, 661 (Tenn. 1996)).

                Tenn. R. Civ. P. 60.02 provides, in pertinent part, the following:


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               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:

               (2) fraud (whether heretofore denominated intrinsic or extrinsic),
               misrepresentation, or other misconduct of an adverse party;

               (3) the judgment is void . . .

               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.

                 To set aside a judgment under Rule 60.02, the moving party has the burden to prove
“that he is entitled to relief, and there must be proof of the basis on which relief is sought.” Banks
v. Dement Constr. Co., Inc., 817 S.W.2d at 18; Federated Ins. Co. v. Lethcoe, 18 S.W.3d 621, 624
(Tenn. 2000). The moving party must establish by clear and convincing evidence that relief from
the judgment is warranted. Duncan v. Duncan, 789 S.W.2d 557, 563 (Tenn. Ct. App. 1990).

                “Rule 60.02 ‘was designed to strike a proper balance between the competing
principles of finality and justice.’” Banks v. Dement Constr. Co., 817 S.W.2d at 18 (quoting Jerkins
v. McKinney, 533 S.W.2d 275, 280 (Tenn. 1976)). Our Supreme Court, in examining the purpose
of Tenn. R. Civ. P. 60.02, held as follows:

               “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 . . . .” Because of the
               importance of this “principle of finality,” the “escape valve” should
               not be easily opened.

Id. (quoting Toney v. Mueller Co., 810 S.W.2d 145, 146 (Tenn. 1991).

                In this matter, the determinative issue on appeal is whether the Trial Court abused its
discretion in dismissing Defendant’s 1999 Rule 60.02 Motion. The Trial Court’s Order of Dismissal
does not provide the reason the Trial Court dismissed the 1999 Motion. The technical record clearly
shows, however, that Defendant’s 1999 Motion was not filed timely according to the requirements
of Tenn. R. Civ. P. 60.02.

               With respect to Defendant’s claim that the Divorce Judgment should be set aside
because of fraud under Tenn. R. Civ. P. 60.02(2), the rule clearly states that such a motion for relief
from judgment should be filed within a reasonable time and “not more than one year after the
judgment . . . was entered. . . .” Accordingly, Defendant’s 1999 Motion, filed more than sixteen


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years after the entry of the Divorce Judgment, fails to comply with Rule 60.02. Therefore, we find
no abuse of discretion in the Trial Court’s dismissal of Defendant’s 1999 Rule 60.02(2) Motion. See
Banks v. Dement Constr. Co., 817 S.W.2d at 18; Marcus v. Marcus, 993 S.W.2d at 601.

                 Moreover, even if Defendant’s Rule 60.02(2) 1999 Motion was timely filed,
Defendant presents no proof in the record to show that Plaintiff made a fraudulent misrepresentation
regarding his military pension before the Divorce Judgment was entered. See Tenn. R. Civ. P.
60.02(2); Brown v. Brown, 863 S.W.2d 432, 434 (Tenn. Ct. App. 1993). In fact, in Defendant’s first
Rule 60.02 motion, the 1983 Motion, Defendant alleged that the Property Settlement Agreement was
incorporated into the divorce decree dated May 16, 1983. Defendant also alleged that she learned
of her entitlement to a portion of Plaintiff’s retirement on May 15, 1983, the day before the Divorce
Judgment was entered. See Brown v. Brown, 863 S.W.2d at 434 (holding that to support a Rule
60.02 motion, defendant needed evidence that a fraudulent misrepresentation was made by plaintiff
prior to the final judgment). Defendant does not allege that she did not know about Plaintiff’s
military pension but alleges only that she did not know that she was entitled to it until the day before
the Divorce Judgment was entered. Defendant’s allegation, even if true, is not fatal to the Divorce
Judgment as “this is a mistake of law and not a mistake of fact. A mistake of law ‘occurs when a
party knows the facts of the case but is ignorant of the legal consequences.’” Spruce v. Spruce, 2
S.W.3d 192, 195 (Tenn. Ct. App. 1998) (quoting Haas v. Haas, No. 02A01-9709-CV-00241, 1998
WL 599529, at * 4 (Tenn. Ct. App. Sept. 11, 1989) (alterations in original)). Our Supreme Court
held that “if ‘ignorance of the law is a proper ground for relief under Rule 60.02 . . ., it is hard to
conceive how any judgment could be safe from assault on that ground.’” Id. (quoting Food Lion, Inc.
v. Washington Co. Beer Bd., 700 S.W.2d 893, 896 (Tenn. 1985) (alterations in original)). Moreover,
Defendant’s unsworn allegations in her three Rule 60.02 motions do not constitute proof. See State
v. Draper, 800 S.W.2d 489, 493 (Tenn. Ct. App. 1990) (holding that “[a]llegations contained in
pleadings and statements made by counsel during a hearing or the trial are not evidence”).
Accordingly, we hold that even if Defendant’s Rule 60.02(2) 1999 Motion was timely filed, which
it was not, the Trial Court did not abuse its discretion in dismissing the Motion since Defendant
failed to establish by clear and convincing evidence that the Divorce Judgment needed to be set aside
due to fraud. See Banks v. Dement Constr. Co., 817 S.W.2d at 18; Marcus v. Marcus, 993 S.W.2d
at 601.

                Defendant also alleges on appeal that the Divorce Judgment should be set aside
because it is void under Tenn. R. Civ. P. 60.02(3). As already discussed in this Opinion, the Trial
Court in its 1998 Order resolved this issue by correcting the Trial Court Clerk’s erroneous entry date
of the Divorce Judgment. The Trial Court’s 1998 Order resolving this question renders this issue
moot.

               In light of our holding, we find that Defendant’s remaining issues on appeal are moot.
We, therefore, need not address them any further.

               We now address Plaintiff’s argument that Defendant’s appeal is frivolous. It appears
from the record on appeal that Defendant is attempting to use Tenn. R. Civ. P. 60.02 to obtain more

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than one bite at the apple. In fact, Defendant has used this rule, albeit unsuccessfully, to obtain three
bites after entry of the Divorce Judgment. Defendant raised the issue of fraud in her 1983 Motion
which was dismissed for failure to prosecute. She raised it again in her 1999 Motion, which also was
dismissed. Defendant also twice raised the issue that the Divorce Judgment was void, citing the
same grounds, that is, the clerical error in the date of entry of the Divorce Judgment. The Trial Court
held a hearing on Defendant’s 1998 Motion and entered an Order correcting this clerical error. That
Order is final as no appeal was taken as to it.

                Plaintiff argues that Defendant’s appeal is frivolous and requests an award of
attorneys’ fees. Tenn. Code Ann. § 27-1-122 provides:

                When it appears to any reviewing court that the appeal from any court
                of record was frivolous or taken solely for delay, the court may, either
                upon motion of a party or of its own motion, award just damages
                against the appellant, which may include but need not be limited to,
                costs, interest on the judgment, and expenses incurred by the appellee
                as a result of the appeal.

A frivolous appeal is one “‘devoid of merit,’. . . or one where there is little prospect that [an appeal]
can ever succeed.” Industrial Dev. Bd. of the City of Tullahoma v. Hancock, 901 S.W.2d 382, 385
(Tenn. Ct. App. 1995) (quoting Combustion Eng’g, Inc. v. Kennedy, 562 S.W.2d 202 (Tenn. 1978)).
In addition, this Court has held that “[f]ailure to cite any evidence or rule of law entitling the
appealing party to relief is one indicator than the appeal may be frivolous.” Jackson v. Aldridge, 6
S.W.3d 501, 504 (Tenn. Ct. App. 1999).

                Plaintiff has incurred attorneys’ fees because Defendant appealed the Trial Court’s
dismissal of her third Rule 60.02 motion disputing the 1983 Divorce Judgment. Defendant’s appeal
is devoid of merit and had no realistic prospect of success. Additionally, Defendant failed to cite
any law supporting her position. Defendant’s appeal is frivolous, and, therefore, we award
Plaintiff’s reasonable attorneys’ fees and expenses incurred as a result of the appeal. On remand,
the Trial Court shall determine the amount of Plaintiff’s reasonable expenses and attorneys’ fees
incurred because of this appeal.

                                           CONCLUSION

               The judgment of the Trial Court is affirmed and this cause is remanded to the Trial
Court for such further proceedings as may be required, if any, consistent with this Opinion, and for
collection of the costs below. The costs on appeal are assessed against the Appellant, Almeda
Matthews Havely, and her surety.



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      D. MICHAEL SWINEY, JUDGE




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