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IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE June 10, 2004 Session MARK K. McGEHEE v. JULIE A. McGEHEE
Appeal from the Circuit Court for Hamilton County No. 01D1915 Jacqueline E. Schulten, Judge

No. E2003-01555-COA-R3-CV

Filed August 12, 2004

In this divorce case, Mark K. McGehee ("Father") appeals the Trial Court's order regarding child support, its award of primary residential parenting responsibility to Julie A. McGehee ("Mother"), the propriety of the Court's decision to amend its final decree of divorce pursuant to Mother's Tenn.R.Civ.P. 60 motion and the granting of Tenn.R.Civ.P. 11 sanctions against Father's attorney. We reverse the order of sanctions and affirm the Court's judgment in all other respects. Tenn.R.App.R. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed in Part and Reversed in Part; Case Remanded SHARON G. LEE, J., delivered the opinion of the Court, in which CHARLES D. SUSANO , JR. and D. MICHAEL SWINEY , JJ., joined. Jes Beard, Chattanooga, for Appellant Mark K. McGehee. Vicki L. James, Stuart F. James and Michelle C. McFadyen, Chattanooga, for Appellee Julie A. McGehee. MEMORANDUM OPINION1 I. The parties were married on July 27, 1998. One child was born of the marriage. On October 3, 2001, Father filed this action for divorce. Mother answered and filed a countercomplaint; each party filed a proposed parenting plan. Although Mother was represented by counsel at the time of

Rule 10 of the Rules of the Court of Appeals provides that "[t]his Court, with the concurrence of all judges participating in the case, may affirm, reverse or modify the actions of the trial Court by memorandum opinion when a formal opinion would have no precedential value. W hen a case is decided by memorandum opinion it shall be designated "M EMORANDUM OPINION", shall not be published, and shall not be cited or relied on for any reason in any unrelated case.

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filing of her initial motions, her counsel had withdrawn by the hearing and she proceeded pro se at the hearing. After hearing the parties' proof on September 16, 2002, the Trial Court issued an oral memorandum opinion from the bench and requested that Father's attorney, Jes Beard, prepare a draft of the divorce decree. Mr. Beard complied, and on December 2, 2002 the Court entered the order granting Father a divorce, dividing the parties' property, and establishing a parenting plan and child support. On January 21, 2003, Mother, who had at that point retained other counsel, filed a motion pursuant to Tenn.R.Civ.P. 60 for relief from the Court's decree, arguing, among other things, that "the order submitted by Jes Beard does not comport with the Court's ruling from the bench, and in fact, differs in a number of material respects[.]" Mother attached a transcript of the Court's oral ruling to her Rule 60 motion, which presented a number of discrepancies between the entered divorce decree and the transcript. One of these discrepancies pointed out by Mother was that the Court had ordered Father to pay child support in the amount of $455 per month, and the order drafted by Mr. Beard and entered by the Court set the amount at $433 per month. Mother also filed a motion for sanctions pursuant to Tenn.R.Civ.P. 11, in which she argued that "[t]he transcript clearly reveals that Mr. Beard either negligently, recklessly or intentionally misstated the Court's ruling in order to gain an unfair advantage for his client." The Trial Court heard Mother's Rule 60 motion on February 10, 2003. A transcript of this hearing is not included in the record before us. On March 12, 2003, the Trial Court entered the order submitted by the Mother nunc pro tunc to December 2, 2002, which stated that "for good cause shown, the Final Decree and Parenting Plan entered in this cause on December 2, 2002, is hereby amended by substituting the entire Final Decree and Parenting Plan with the following language[.]"

After a hearing of Mother's Rule 11 motion, the Trial Court entered an order on May 12, 2003, which granted sanctions against Mr. Beard, and awarded Mother attorney's fees in the amount of $2,383.80. On appeal, Father argues that the Court erred in the amount of child support it ordered him to pay, and that it should have designated him the primary residential custodian of their child instead of Mother. Father also argues that it was error for the Trial Court to have amended its judgment under Rule 60 when more than 30 days had passed since the entry of the original decree. Mr. Beard appeals the Rule 11 sanctions imposed against him. II. We first address the Tenn.R.Civ.P. 60 issue. In reviewing a trial court's decision to grant or deny relief pursuant to Tenn. R. Civ. P. 60, we give great deference to the trial court. We will not set aside the trial court's ruling unless the trial court has abused its discretion by applying an incorrect legal standard, or reached a decision which is against logic or reasoning that caused an injustice to -2-

the party complaining. State v. Stevens, 78 S.W.3d 817, 832 (Tenn.2002) (quoting State v. Shuck, 953 S.W.2d 662, 669 (Tenn.1997)). The abuse of discretion standard does not permit an appellate court to merely substitute its judgment for that of the trial court. See Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn.2001).

Rule 60.02 provides relief from final judgments 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.

Significantly, in this case Father does not dispute that there are discrepancies between the draft order submitted by Mr. Beard and the oral ruling made by the Court at the conclusion of the divorce hearing. The Trial Court's ruling does not state which subsection of Rule 60 it found to be applicable. We find that under the circumstances of this case, the discrepancies between the Trial Court's oral memorandum opinion and its initial divorce decree could support a finding under Rule 60.02(1) or (2). The Trial Court could reasonably have found that the errors in the initial decree resulted from "mistake, inadvertence. . .or excusable neglect," or "misrepresentation, or other misconduct of an adverse party." Under either scenario, we are of the opinion that the Trial Court ruled properly and appropriately and did not abuse its discretion in granting Rule 60.02 relief to Mother, whose motion was timely filed within the one-year time limit provided in Rule 60.02(1) and (2). Regarding child support, the Trial Court's amended final decree found that "[t]he father is capable of earning a gross weekly income of $599.20 as demonstrated by his current earnings, such amount giving him monthly earnings of $2,576.56." Father filed an income and expense statement showing weekly earnings of $599.20. Father testified without contradiction that subsequent to his filing of that statement, his weekly wages increased "by about $40.00." Thus, the undisputed evidence shows, and we find, that Father's weekly earnings were $639.20. The Trial Court set Father's child support payments at $455 per month, which correctly corresponds to Father's income

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level under the Tennessee child support guidelines. Father's argument that the Trial Court deviated from the guidelines is without merit. The Trial Court awarded Mother primary residential parenting responsibility. Father argues that the Court erred by not naming him the primary residential parent. In reviewing a trial court's order regarding custody and visitation, we start with the premise that the details of custody and visitation are peculiarly within the broad discretion of the trial judge. Edwards v. Edwards, 501 S.W.2d 283, 291 (Tenn.Ct.App.1973). Accordingly, we will not reverse a trial court's decision regarding custody unless the record clearly demonstrates that the court has abused that discretion. Otis v. Cambridge Mut. Fire Ins. Co., 850 S.W. 2d 439, 442 (Tenn. 1992). We do not substitute our judgment for that of the trial court. Myint v. Allstate Ins. Co., 970 S.W.2d 920, 927 (Tenn.1998). A trial court abuses its discretion only when it applies an incorrect legal standard, or reaches a decision which is against logic or reasoning, and causes an injustice or injury to the party complaining. Marcus v. Marcus, 993 S.W. 2d 596, 601 (Tenn. 1999). State v. Shirley, 6 S.W. 2d 243, 247 (Tenn.1999). Tenn. Code Ann.

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