                IN THE COURT OF APPEALS OF TENNESSEE
                             AT JACKSON
                                APRIL 22, 2010 Session

                     IN THE MATTER OF: KEMPTON, L.D.

              Direct Appeal from the Juvenile Court for Shelby County
                     No. K473    George E. Blancett, Magistrate


                  No. W2009-00906-COA-R3-JV - Filed May 7, 2010


While cohabitating with Appellant, Mother gave birth to a child, and shortly thereafter,
Appellant acknowledged paternity. Several years later, a DNA test allegedly indicated that
Appellant was not the child’s biological father. After receiving the DNA test results,
Appellant waited more than two years to file a petition to disestablish paternity, which the
juvenile court denied. Because Appellant failed to file his petition for Rule 60.02 relief
“within a reasonable time,” we affirm the decision of the juvenile court.


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

A LAN E. H IGHERS, P.J., W.S., delivered the opinion of the Court, in which H OLLY M. K IRBY,
J., and J. S TEVEN S TAFFORD, J., joined.

Vanessa Cross, Memphis, Tennessee, for the appellant, Kempton Lamonte Daniels

Robert E. Cooper, Jr., Attorney General and Reporter, Michael E. Moore, Solicitor General,
Amy T. McConnell, Assistant Attorney General, Nashville, Tennessee, for the appellee, State
of Tennessee, ex rel Sherrie Morneet Alexander.
                                         OPINION

                           I.   F ACTS & P ROCEDURAL H ISTORY

       Sherrie Morneet Alexander (“Mother”) gave birth to a child, K.L.D., on June 27,
1998, while she was cohabitating with Kempton Lamonte Daniels (“Appellant”). The
Tennessee Department of Human Services filed a “Petition to Establish Parentage” on
November 12, 1998. The following day, the parties executed a “Consent Order,”
acknowledging Appellant’s paternity of the child. Based on the parties’ admissions, the trial
court decreed the child to be Appellant’s natural child, and it ordered Appellant to pay child
support “as able monthly[.]”

        On January 10, 2007, the State of Tennessee filed a “Petition to Modify to Set
Support,” seeking to modify the Consent Order “to include specific support in accordance
with the Tennessee Child Support Guidelines” to be paid through income assignment. Acting
pro se, Appellant filed a “Petition to Disestablish Paternity” on June 12, 2007. Pursuant to
Tennessee Rule of Civil Procedure 60.02(4) and (5), Appellant petitioned to set aside the
Consent Order and to terminate his child support obligation, or alternatively, sought further
DNA testing. In support of his petition, Appellant alleged that he did not contest the Petition
to Establish Parentage because Mother told him he was the child’s father. However, after
a statement by Mother’s friend caused him to question his paternity, he had a DNA test
performed, which he claims “showed conclusively” that he is not the child’s father.
Appellant’s petition indicates that a copy of the DNA test results was attached thereto;
however, no copy is attached, and the results do not appear elsewhere in the record.

       Following a May 28, 2008 hearing, the juvenile court referee made the following
findings:

       [Appellant] testified that he provided support for the minor child since birth.
       He was informed that the minor child might not be his when the minor child
       was approximately five years old. After questioning, the mother stated the
       child was his. Father testified that he has not visited with the child in
       approximately one year. He stopped supporting the child approximately 11
       months ago.

       [Mother] testified that [Appellant] questioned the parentage of the child since
       the child was two weeks old. That she always told him he could have a DNA




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          test. That sometime in 200[5]1 she was contacted by someone who told her she
          had to submit the child for DNA testing . . . .

          ....

          According to [Mother], [Appellant] questioned parentage of [the child] since
          the child was two weeks old. Despite being informed of his right to testing by
          this Court, Mr. Daniels entered into a consent order establishing the parentage
          of Kempton. Mr. Daniels testified that he has questioned [the child’s]
          parentage since [the child] was five. Despite his doubts [Appellant] did not
          seek relief until June 12, 2007. The veracity of the filing is questioned as it
          coincides with the Mother’s request to obtain child support filed on January
          10, 2007.

The referee recommended that Appellant’s Petition to Disestablish Paternity be denied, and
that the Consent Order be modified to set Appellant’s child support obligation at $214.00 per
month to be paid through income assignment.2                The referee’s “Findings and
Recommendations” were confirmed by the juvenile court judge. Following a hearing on
February 24, 2009, the juvenile court special judge issued an “Order,” on March 17, 2009,
dismissing Appellant’s Petition to Rehear, and “reconfirm[ing]” the referee’s May 28, 2008
ruling. On April 9, 2009, Appellant filed his notice of appeal, appealing from the March 17,
2009 Order.

                                           II.   I SSUES P RESENTED

          Appellant presents the following issues for review:

1.        Whether the juvenile court referee erred in ruling that only proof regarding court
          approved DNA test reports are allowed into evidence, not proof of private DNA
          testing reports; and

2.        Whether on rehearing, the court erred in sustaining the juvenile court referee’s ruling
          that waiver had occurred to bar Appellant from proceeding to re-open the issue of


          1
         The “Findings and Recommendations” cite the year as “2006.” However, this is apparently a
typographical error by the court or misstatement by Mother, as the alleged DNA test results were dated April
1, 2005.
          2
              Retroactive child support was also set at $25.00 per month, apparently in addition to the $214.00
amount.

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       paternity and neither Tenn. R. Civ. P. 60.02 (4) or (5) was applicable to provide
       judicial relief.

For the following reasons, we affirm the decision of the juvenile court.


                                        III.   D ISCUSSION

       On appeal, Appellant contends that the juvenile court erred in “reconfirm[ing]” the
referee’s denial of Rule 60.02 relief. Tennessee Rule of Civil Procedure 60.02 3 provides in
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: . . . (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
       ....

        Rule 60.02 relief is “an exceptional remedy.” Nails v. Aetna Ins. Co., 834 S.W.2d
289, 294 (Tenn. 1992). Its function is “to strike a proper balance between the competing
principles of finality and justice.” Jerkins v. McKinney, 533 S.W.2d 275, 280 (Tenn. 1976).
It operates 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.”
Thompson v. Fireman’s Fund Ins. Co., 798 S.W.2d 235, 238 (Tenn. 1990). But, “[b]ecause
of the ‘principle of finality,’ the ‘escape valve’ should not be easily opened.” Banks v.
Dement Constr. Co., 817 S.W.2d 16, 18 (Tenn. 1991) (quoting Toney v. Mueller Co., 810
S.W.2d 145, 146 (Tenn. 1991)). The party seeking to set aside a judgment under Rule 60.02
bears the burden of proving entitlement to relief, “and there must be proof of the basis on
which relief is sought.” Brumlow v. Brumlow, 729 S.W.2d 103, 106 (Tenn. Ct. App. 1986)
(citing Rhea v. Meadowview Elderly Apartments, Ltd., 676 S.W.2d 94 (Tenn. Ct. App.
1984)).

      “The denial of a motion to set aside a judgment pursuant to Rule [ ] . . . 60.02 of the
Tennessee Rules of Civil Procedure is reviewed on an abuse of discretion standard.” Smith


       3
        Tennessee Rule of Juvenile Procedure 1(b) provides that the Tennessee Rules of Civil Procedure
govern paternity cases.

                                                 -4-
v. Shaw, No. W2004-01772-COA-R3-CV, 2005 WL 1323294, at *2 (Tenn. Ct. App. June
3, 2005) (citing Howell v. Tucker, No. W2002-0222-COA-R3-CV, 2003 WL 22213215, at
*2 (Tenn. Ct. App. Sept. 24, 2003); Bowers v. Gutterguard of Tenn., Inc., No. M2002-02877-
COA-R3-CV, 2003 WL 22994302, at *2 (Tenn. Ct. App. Dec.17, 2003)). “The abuse of
discretion standard requires us to consider: (1) whether the decision has a sufficient
evidentiary foundation; (2) whether the trial court correctly identified and properly applied
the appropriate legal principles; and (3) whether the decision is within the range of
acceptable alternatives.” Bronson v. Umphries, 138 S.W.3d 844, 851 (Tenn. Ct. App. 2003)
(citing State ex rel. Vaughn v. Kaatrude, 21 S.W.3d 244, 248 (Tenn. Ct. App. 2000)). Under
the abuse of discretion standard, we uphold the trial court’s ruling “‘so long as reasonable
minds can disagree as to the propriety of the decision made.’” Eldridge v. Eldridge, 42
S.W.3d 82, 85 (Tenn. 2001) (quoting State v. Scott, 33 S.W.3d 746, 752 (Tenn. 2000); State
v. Gilliland, 22 S.W.3d 266, 273 (Tenn. 2000)). We do not simply substitute our judgment
for that of the trial court. Id. (citing Myint v. Allstate Ins. Co., 970 S.W.2d 920, 927 (Tenn.
1998)). “Whether a Rule 60.02[] motion is filed within a reasonable time is a question of
fact for the trial court, and this Court will review the trial court’s determination under the
abuse of discretion standard.” Walker v. Nissan N.A., Inc., No. M2009-00273-COA-R3-
CV, 2009 WL 2589089, at *2 (Tenn. Ct. App. Aug. 21, 2009) (citing Rogers v. Estate of
Russell, 50 S.W.3d 441, 445 (Tenn. Ct. App. 2001)).


        As grounds for re-opening his paternity order, Appellant cites independent DNA test
results which he claims indicate that he is not the child’s father, as well as “concealment by
[] mother regarding the likelihood that another is the biological father[.]” Appellant cites
several cases which he claims support the application of Rule 60.02’s extraordinary relief.

        In Coppage v. Green, No. W2006-00767-COA-R3-JV, 2007 WL 845909, at *1 (Tenn.
Ct. App. Mar. 21, 2007), to which Appellant first cites, the mother gave birth to a child in
1990, and in 1997, the juvenile court referee entered findings and recommendations
determining that Coppage was the child’s father. However, the results of an April 2005
independent DNA test excluded Coppage as the child’s father, and three months later, in July
2005, Coppage filed a petition to disestablish paternity. Id. at *2. The referee found that the
case warranted Rule 60.02’s “exceptional relief” and ordered DNA testing. Id. at *3. The
mother filed a motion for a stay of the ordered DNA testing, arguing that Coppage was
barred from challenging his paternity established eight years prior. Id. at *4. The juvenile
court dismissed Coppage’s petition to disestablish paternity, but this Court reversed, finding
that the trial court abused its discretion in denying Coppage’s Rule 60.02 motion for court-
approved DNA testing. Id. at *4, *6. In so ruling, this Court specifically noted that Coppage
“first sought a DNA test early in the process, within a year after entry of the paternity order
and this request was denied,” and we gave “substantial consideration” to the fact that

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Coppage “was on active duty with the military when the child was born and during most of
the intervening years[.]” Id. at *6. Furthermore, we stated that “we cannot ignore the
evidence of the DNA test” which was attached to Coppage’s petition to disestablish
paternity. Id. at *2, *6.


       Appellant also recites the “equitable principles” set forth in White v. Armstrong, No.
01A01-9712-JV-00735, 1999 WL 33085, at *3 (Tenn. Ct. App. M.S. Jan. 27, 1999) to
determine whether a Rule 60.02 motion for relief from a final order involving paternity has
been filed within a reasonable time:


       (1) the circumstances under which the original paternity order was entered, (2)
       the timing and circumstances of the previously adjudicated father’s
       questioning that he was the child’s father, (3) whether the previously
       adjudicated father presented or attempted to present the results of genetic,
       DNA, or blood testing; and (4) the burdens imposed on the previously
       adjudicated father and on the child by the continued enforcement or by the
       reopening of the judgment of paternity.


Id. (citing Ex Parte Jenkins, Nos. 1961520 & 1961531, 1998 WL 399866, at *8 (Ala. July
17, 1998)). Appellant argues that because he believed he was the child’s biological father
when paternity was initially established, and because he presented testimony regarding the
alleged DNA test results, that post-judgment relief is appropriate.


        In White, White resided with the mother when the child at issue was born, and White
had no reason to believe that he was not the child’s biological father. 1999 WL 33085, at *1.
When the parties separated, White filed a petition to legitimate the child, and an order was
entered declaring him as the child’s biological father. Id. Several years later, the child
“repeatedly told Mr. White that he had two fathers,” and, apparently without delay, White
obtained genetic testing, which “categorically excluded” White as the child’s father. Id.
“Armed with this [DNA] evidence,” White filed a petition to terminate his child support
obligation, but the juvenile court denied relief, stating that he had “‘willingly undert[aken]’”
the obligation and that he had “‘perpetrated a fraud upon the Court’” by obtaining the initial
legitimation order. Id. at *2. This Court reversed, finding that White’s voluntary
legitimation of the child did not bar him from pursuing relief, and further that the “irrefutable
evidence that Mr. White is not [the child’s] biological father” provided sufficient grounds
for relief. Id. at *4.



                                               -6-
         We acknowledge that Rule 60.02 relief may be available for previously adjudicated
fathers who later wish to contest paternity, as recognized in the above-cited cases. However,
we distinguish those cases from the instant case. In both Coppage and White, Rule 60.02
relief was not precluded despite a delay between the establishment of paternity and the
adjudicated fathers’ petitions to disestablish paternity or to terminate support. Here,
however, a significant period of time passed not only between the Consent Order
acknowledging Appellant’s paternity and his Petition to Disestablish Paternity, but more
importantly, between his questioning paternity and alleged discovery of non-paternity and
his disestablishment petition. At the hearing, Mother testified that Appellant had questioned
his paternity since the child was two weeks old, while Appellant set the date at approximately
2003, when the child was five years old. In his “Statement of the Evidence,” Appellant
concedes that “around 2004 or 2005 [] he heard statements . . . which led him to believe that
he may not be the biological father[,]” and that the results of an April 1, 2005 DNA test
indicated that he was not the child’s father. Thus, by his own admission, Appellant
questioned his paternity by 2003, and allegedly learned that he was not the child’s father by
April 2005. However, Appellant took no action to disestablish parentage for more than four
years after questioning paternity and two years after receipt of the DNA test results, until he
filed his June 12, 2007 Petition to Disestablish Paternity. Moreover, Appellant apparently
continued to support the child, despite his alleged knowledge that the child was not his own,
until the time his disestablishment petition was filed. Appellant’s only explanation for delay
is that he “believed the issue of parentage had been and could be solely resolved by the
parties without court intervention.” This assertion, though, is undercut by the fact that
Appellant was a party to court proceedings to establish his paternity. “Rule 60.02 does not
. . . permit a litigant to slumber on [his] claims and then belatedly attempt to relitigate issues
long since laid to rest.” Thompson v. Firemen’s Fund Ins. Co., 798 S.W.2d 235, 238
(Tenn. 1990). Under the facts of this case, we find that Appellant’s petition seeking Rule
60.02 relief was not filed within a reasonable time, and therefore, that the trial court did not
abuse its discretion in dismissing such. Having so found, we need not address the
introduction of DNA test results into evidence.


                                      IV.   C ONCLUSION


        For the aforementioned reasons, we affirm the decision of the juvenile court. Costs
of this appeal are taxed to Appellant, Kempton Lamonte Daniels, for which execution may
issue if necessary.


                                                     _________________________________
                                                     ALAN E. HIGHERS, P.J., W.S.

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