John Leslie Byrnes v. Joyce Marie Byrnes

IN THE COURT OF APPEALS OF TENNESSEE
AT KNIOXVILLE
March 5, 2012 Session

JOHN LESLIE BYRNES v. JOYCE MARIE BYRNES

Appeal from the Circuit Court for Knox County
No. 64110 Bill Swann, Judge

No. E2011-00025-COA-R3-CV-FILED-MAY 14, 2012

The parties, John Leslie Byrnes (“Husband”) and Joyce Marie Byrnes (“Wife”), were
divorced in 1998. Under the divorce judgment, they were to have equal parenting time with
their two minor children. Some six years later, in 2004, Husband filed a petition to change
the custody arrangement. The petition was granted ex parte on an “emergency” basis. The
ex parte order temporarily placed sole custody of the children with Husband and required
Mother to pay monthly child support of $652. For reasons that Wife blames on Husband and
the trial court, and Husband blames on Wife, a hearing was not held on the custody and
support issues until 2009, more than five years after Husband was named the sole custodian.
Eventually, the court entered an order, to which Wife agreed, decreeing that Wife was liable
to Husband for a child support arrearage of $20,874.24, a figure that includes interest and
Wife’s share of medical expenses. In the same order, the court decreed that Husband was
entitled to an award of attorney’s fees in an amount to be determined at a future hearing.
That hearing was later scheduled for a date certain. Wife’s counsel did not appear at the
hearing on attorney’s fees and the court proceeded, in counsel’s absence, to hold Wife liable
for fees of $30,315. Wife filed a motion to set aside the award of attorney’s fees which the
court denied. She appeals, challenging the child support arrearage and the denial of her
motion to set aside the award of attorney’s fees. We affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Affirmed; Case Remanded

C HARLES D. S USANO, J R., J., delivered the opinion of the Court, in which H ERSCHEL P.
F RANKS, P.J., and D. M ICHAEL S WINEY, J., joined.

Lori F. Fleishman and Thomas M. Leveille, Knoxville, Tennessee, for the appellant, Joyce
Marie Byrnes.

Lauren G. Stange-Boston, Knoxville, Tennessee, for the appellee, John Leslie Byrnes.
 OPINION

I.

In 1998, Husband was granted a divorce from Wife on stipulated grounds. The parties
were awarded joint custody of their children, with each parent to have equal parenting time.
The court ordered Husband to pay Wife monthly child support of $475. The divorce
judgment divided the parties’ property and their debts and awarded each “their own savings
and individual retirement accounts in their name.” Husband’s monthly support obligation
was later increased to $835 beginning March 1, 2000.

On April 15, 2004, Husband filed a petition to change custody and motion for
emergency relief based on sworn allegations of alcohol abuse by Wife that allegedly resulted
in abuse and neglect of the children. The court entered a temporary restraining order
prohibiting Mother from “coming about . . . the . . . minor children.” The court also entered
a temporary parenting plan requiring Wife to pay monthly child support of $652 based upon
an income of $30,000 per year. At some point, the parties agreed to an order allowing Wife
limited parenting time with the children.

Instead of paying the amount ordered, Wife began paying $50 per month. On or about
August12, 2005, Wife filed a “Complaint for Declaratory Judgment” in this same action
under the same docket number. She claimed that the original judgment “failed to provide for
any pension benefits that may have accrued during the marriage” and she alleged that
Husband “is entitled to a military pension.” Wife claimed she “was under the impression that
a portion of the pension payments would automatically be paid to her.” On December 13,
2005, the trial court dismissed Wife’s complaint for declaratory judgment for failure to state
a claim. The court directed the entry of a final order on that claim upon the court’s finding
that there was “no just reason for delay.” The order itself does not further elaborate on the
court’s reasons for granting Husband’s motion to dismiss, but the transcript of the hearing
reveals that the court held the clear and unambiguous language of the divorce judgment
“does not cover the military pension” and that the omission was due to Wife’s “mistake of
law.” The court further concluded that Wife’s remedy for the alleged omission, if any, would
have been to timely file a Tenn. R. Civ. P. 60.02 motion for relief from the judgment. Since
no such motion was filed, the court held that “the res judicata effect [of the divorce
judgment] is inescapable and [W]ife is barred from the relief that she seeks.” On January 9,
2006, Wife filed a “motion to reconsider” the dismissal.

The case appears to have laid essentially dormant for another three years. Then
Husband, on January 23, 2009, filed a motion seeking a determination of Wife’s child
support arrearage. On October 7, 2009, the court entered an order (“the October 2009

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order”) nunc pro tunc to the hearing date of September 16, 2009. The order states, in
pertinent part, as follows:

The parties agree and the Court finds that [Wife] has accrued a
child support arrearage in the principle amount of $12,057,
which consists of $5,868 from the period beginning in April
2004 through December 2004, during which Wife’s child
support obligation was $652 per month as ordered in the
Temporary Parenting Plan entered on April 15, 2004; $2,325
from the period . . . January 2005 through May 2005, during
which Wife’s child support obligation was $465 per month . . . ;
$2,408 from the period . . . June 2005 through December 2005,
during which Wife’s child support obligation was $344 per
month . . . ; $4,668 from the period . . . January 2006 through
December 2006, during which Wife’s child support obligation
was $389 per month . . . ; and $2,070 from the period . . .
January 2007 through May 2007, during which Wife’s child
support obligation was $414 per month . . . , which figures
comply with the Child Support Guidelines.

Interest at the rate of 12% per annum is due on the unpaid
portion of each child support payment from the time that
payment was due until it is paid. The parties agree the amount
of interest accrued through October 7, 2009, totals $6,435.17.

To the extent she has not already done so, [Wife] is obligated to
reimburse [Husband] for 50% of the medical . . . expenses not
paid by insurance . . . . The parties agree Wife’s 50% of that
sum totals $2,382.07.

[Husband] is entitled to an award of attorney fees, [the amount
to be determined in a hearing scheduled for October 7, 2009, at
9:00 a.m.]

(Paragraph numbering in original omitted; emphasis added.)

The “attorney’s fees” hearing was postponed to December 2, 2009. That hearing was
held as scheduled. It was followed by an order entered December 10, 2009 (“the December
2009 order”). The court awarded Husband attorney’s fees in the amount of $30,315
“incurred in conjunction with the April 2004 change in custody of the parties’ two children

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and his attempts to collect child support since that date.” The order recites that Wife’s
attorney was not present at the hearing but that Wife was and that she did not object to the
amount of fees as claimed in the affidavit of Husband’s counsel. The affidavit had been
served on Wife on October 7, 2009.

On January 13, 2010, Wife filed a motion to set aside the December 2009 order. The
motion does not state whether it was made pursuant to Tenn. R. Civ. P. 54.02, 59, or 60.02.
As grounds for the motion, Wife asserts that her counsel had advised both the court and
Husband’s counsel of her obligation to be in a Loudon County court on another matter on the
morning of the hearing in the trial court. Wife’s counsel expected to be able to attend both
matters but could not make it back to Knox County in time for the hearing on fees. As
further grounds, Wife asserted that the award was “unjust and inappropriate” and included
time “not expended on this particular matter.”

In an order entered December 8, 2010 (“the December 2010 order”), the court denied
the motion to set aside the December 2009 order. Among other things, the court determined
that the motion was not timely under Tenn. R. Civ. P. 59 and did not qualify for relief
pursuant to Tenn. R. Civ. P. 60. The court stated in the December 2010 order that “[t]his
matter is over and final pursuant to rule 54 of the Tennessee Rules of Civil Procedure.” A
transcript of the hearing on the motion to set aside shows that Wife argued, among other
things, that the fees awarded included time spent defending the declaratory judgment action.
She also pointed out that, because of her pending motion for reconsideration, the dismissal
of her complaint for declaratory judgment had not yet become final. In announcing it
decision against Wife, the court stated from the bench, “[t]his case is over.” Wife filed a
timely notice of appeal.

To recap – in order to assist the reader – the following relevant chronology is
presented:

Complaint for declaratory judgment filed. August 2005

Court dismisses complaint; directs entry of final
order, finding “no just reason for delay.” Order
entered December 13, 2005

Wife files “motion to reconsider.” January 9, 2006

Husband files “motion” for child support
arrearage and attorney’s fees. January 23, 2009

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“Agreed order entered setting Wife’s child
support arrearage at $20,874.24. This is
the October 2009 order. October 7, 2009

Order entered awarding Husband attorney’s
fees of $30,315. This is the the December
2009 order. December 10, 2009

Wife files “motion to set aside” the
December 2009 order. January 13, 2010

Wife’s motion is denied in the December
2010 order. December 8, 2010

II.

Wife articulates the following issues:

Whether the Trial Court was in error in failing to set [Wife’s]
child support obligation in compliance with the income shares
guidelines (effective January 18, 2005), for the period of April
15, 2004 through December 2004.

Whether the Trial Court was in error in awarding a judgment of
all attorney fees incurred by [Husband] whereby a substantial
portion of the fees dealt with a matter which remains pending
before the [Trial] Court and is unrelated to [Husband’s] custody
modification and his attempts to collect child support.

Whether the Trial Court is in error in awarding a judgment of all
attorney fees incurred by [Husband] based upon the parties’
respective incomes and financial needs and abilities to meet
those needs.

Whether the Trial Court abused its discretion in awarding
$30,315 for attorney fees and expenses in favor of [Husband]
and against [Wife], as a reasonable attorney fee under the
overall circumstances of this case.

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Husband raises his own issue – whether he should be awarded his attorney’s fees and
expenses incurred in defending what he characterizes as a frivolous appeal.

III.

Wife argues that the trial court erred in calculating the child support arrearage for the
period April 15, 2004 through December 2004. She asserts the court based its calculation
on the wrong version of the Child Support Guidelines (“Guidelines”). Wife now argues that
the trial court should have used “those [Guidelines] in effect at the time of the hearing, which
occurred in 2009.” Wife’s brief does not verbalize or otherwise demonstrate whether or how
the alleged error affected the calculation. Further, we note that her argument appears to be
inconsistent with the language of her statement of the issues with regard to which version of
the Guidelines controls. Nevertheless, we need not tarry long over these details because
Wife waived the issue she is now pursuing when, in the trial court, she agreed to the amount
of the arrearage and by her further agreement that the amount was calculated in accordance
with the Guidelines. We are not required to grant relief “to a party responsible for an error
or who failed to take whatever action was reasonably available to prevent or nullify the
harmful effect of an error.” Tenn. R. App. P. 36 (a); see also Advisory Commission
Comment to Rule 36 (“The last sentence of this rule is a statement of the accepted principle
that a party is not entitled to relief if the party invited error, waived an error, or failed to take
whatever steps were reasonably available to cure an error”). To the same effect is the
holding of Levine v. March, 266 S.W.3d 426, 440 (Tenn. Ct. App. 2007) (parties cannot
obtain relief based on an alleged error they could have prevented).

As we noted in our recitation of the facts, the order setting the child support arrearage
was approved by counsel for both parties. The order specifically states that “[t]he parties
agree . . .[Wife] has accrued a child support arrearage . . . of $5,868 from the period
beginning in April 2004 through December 2004 . . . , which figures comply with the Child
Support Guidelines.” (Emphasis added.) The order further recites that both parties agreed
to “the amount of interest accrued” and to Wife’s share of the unpaid medical expenses.
Wife makes no argument on appeal that the order mistakenly recites an agreement that did
not exist. Our review of the record has revealed nothing to refute the court’s recitation of an
“agreement.” On the contrary, counsel’s approval of the order for entry is further proof that
the order correctly states the position of the parties on the issue of child support.
Accordingly, we hold that no relief is available to Wife because she expressly agreed in the
trial court to the child support award that she now seeks to challenge.

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 IV.

A.

Wife also challenges the award of attorney’s fees to Husband. She argues that a
substantial portion of the fees awarded pertains to the defense of the declaratory judgment
action and she further contends (a) that her motion to reconsider the declaratory judgment
action remains unresolved and (b) that the defense of the declaratory judgment action was
unrelated to the custody and child support issues. Wife also argues that her finances are so
poor compared to Husband’s that the court erred in awarding attorney’s fees to him. In her
brief, Wife largely ignores the fact that her challenge to the award of attorney’s fees does not
come into play unless and until her motion to set aside is granted. Husband argues that the
trial court correctly denied that motion as an untimely Tenn. R. Civ. P. 59 motion and a non-
meritorious Tenn. R. Civ. P. 60.02 motion. Wife asserts in her reply brief that the motion
was actually neither a Rule 59 motion nor a Rule 60 motion because her motion for
reconsideration of the order dismissing the declaratory judgment had not been decided. She
argues that her motion fell within the parameters of Rule 54.02 because the order she was
seeking to set aside was not final and was, according to the language in Rule 54.02, “subject
to revision at any time.”

B.

It is apparent to us that before we can sensibly address the merits of the motion to set
aside the December 2009 order, we must decide where the motion, and the orders being
discussed, fit within the scheme of our Rules of Civil Procedure. The Supreme Court
recently had occasion in Discover Bank v. Morgan, ___ S.W.3d ____, No. E2009-01337-
SC-R11-CV, 2012 WL 1005074 (Tenn., Mar. 27, 2012), to articulate the distinctions
between motions made pursuant to Rule 54, 59, and 60. In pertinent part, the Court stated:

Pursuant to Tennessee Rule of Civil Procedure 54, “any order or
other form of decision, however designated, that adjudicates
fewer than all the claims or the rights and liabilities of fewer
than all the parties ... is subject to revision at any time before the
entry of the judgment adjudicating all the claims and the rights
and liabilities of all the parties.” Tenn. R. Civ. P. 54.02; see
also Tenn. R. App. P. 3(a) (“[A]ny order that adjudicates fewer
than all the claims or the rights and liabilities of fewer than all
the parties is not enforceable or appealable and is subject to
revision at any time before entry of a final judgment
adjudicating all the claims, rights, and liabilities of all parties.”).

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Thus, motions seeking relief from a trial court’s decision
adjudicating fewer than all the claims, rights, and liabilities of
all the parties, should be filed pursuant to Rule 54.02.

Tennessee Rule of Civil Procedure 59 expressly authorizes four
categories of motions: “(1) under Rule 50.02 for judgment in
accordance with a motion for a directed verdict; (2) under Rule
52.02 to amend or make additional findings of fact, whether or
not an alteration of the judgment would be required if the
motion is granted; (3) under Rule 59.07 for a new trial; or (4)
under Rule 59.04 to alter or amend the judgment.” Tenn. R.
Civ. P. 59.01. Furthermore, the specified motions are the only
means “for extending the time for taking steps in the regular
appellate process.” Id.; see also Tenn. R. App. P. 4(b).

Rule 59.02 provides that “[a] motion for new trial and all other
motions permitted under this rule shall be filed and served
within 30 days after judgment has been entered in accordance
with Rule 58.” Tenn. R. Civ. P. 59.02. Rule 58 states in
relevant part: “Entry of a judgment or an order of final
disposition is effective when a judgment containing one of the
following is marked on the face by the clerk as filed for entry
. . . .” Tenn. R. Civ. P. 58. Reading Rule 59.02 in conjunction
with Rule 58, it is clear that Rule 59 motions relate to final
judgments—judgments adjudicating all the claims, rights, and
liabilities of all the parties. See Harris v. Chern, 33 S.W.3d
741, 743-44 (Tenn. 2000) (“Rule 59.04 addresses final
judgments and requires a motion to alter or amend to be made
within 30 days of the entry of judgment.”). “The purpose of
Tenn. R. Civ. P. 59 motions is to prevent unnecessary appeals by
providing the trial courts with an opportunity to correct errors
before a judgment becomes final.” Bradley v. McLeod, 984
S.W.2d 929, 933 (Tenn. Ct. App. 1998) (emphasis added),
overruled on other grounds by Harris, 33 S.W.3d at 744. Thus,
for thirty days after entry of a final judgment, motions for relief
should be premised upon Rule 59.

In the event that a party waits to seek relief for more than thirty
days after entry of a final judgment, the trial court cannot grant
relief under Rule 59. See Tenn. R. Civ. P. 59.02. After this

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time, relief must be sought pursuant to Tennessee Rule of Civil
Procedure 60.02. See, e.g., Campbell v. Archer, 555 S.W.2d
110, 112 (Tenn. 1977) (“The function of [Rule 60.02] is to give
relief from final judgments; Rule 59, providing for motion for
new trial, is the appropriate remedy for asserting alleged errors
affecting a judgment which has not yet become final.” (emphasis
added)). Rule 60.02 states 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 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.

Tenn. R. Civ. P. 60.02 (emphasis added).

Applying the foregoing principles to the facts of this case, we
conclude that the motion seeking relief from the trial court’s
May 22, 2007 order of default judgment should have been
premised on Rule 54.02. The order of default judgment did not
adjudicate all of the claims, rights, and liabilities of all the

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 parties. Rather, liability on Discover’s complaint and damages
on Morgan’s counter-complaint remained unresolved. Because
the trial court did not adjudicate all the claims between all the
parties, or certify the order of default judgment as final pursuant
to Rule 54.02, neither Rule 59 nor Rule 60.02 applied.

Id. at *5 -7 (footnotes and headings omitted; bracketing and emphasis in Discover).

Wife, in her role as appellant in this case, strangely enough argues that the order from
which she appeals, i.e., the December 2010 order, is not a final order. If she is correct, the
result would be that we would lack subject matter jurisdiction over this appeal and Wife
would find herself in the troublesome position of having appealed a non-final order as if it
were a final order. See Bayberry Assocs. v. Jones, 783 S.W.2d 553, 559 (Tenn. 1990); In
re Estate of Boykin, 295 S.W.3d 632, 635 (Tenn. Ct. App. 2008). However, we disagree
with Wife about the finality of the December 2010 order, but, under the teachings of
Discover Bank, we find ourselves in agreement with Wife with respect to the finality of the
order dismissing the declaratory judgment and, in turn, the October 2009 and December 2009
orders. A brief explanation is in order.

In dismissing the declaratory judgment aspect of the case, the trial court attempted to
make its order final. It expressly directed entry of a final judgment and recited a finding that
there was no just reason to delay entry of a final judgment. That was enough to make the
order of dismissal final and appealable as of right pursuant to Tenn. R. Civ. P. 54.02. See
Cooper v. Powers, No. E2011-01065-COA-R9-CV, 2011 WL 5925062 at *5-6 (Tenn. Ct.
App. E.S., filed Nov. 29, 2011). However, Wife’ motion to reconsider1 filed within 30 days
of the entry of the otherwise final order, arrested the finality of the order. See Discover Bank
at *5-6 (describing the role of Rule 59 motions to extend the time for the appellate process).
Wife’s motion to reconsider remained pending and not addressed even after the entry of the
October 2009 order as well as the December 2009 order. It necessarily follows that when
this matter came before the court on Wife’s motion to set aside the December 2009 order,
there was no final judgment in the case. Therefore, the court erred in evaluating the motion
to set aside as a motion made pursuant to Tenn. R. Civ. P. 59. It was not; we again stress that
Rule 59 does not come into play until a trial court has entered a final judgment.

1
We construe Wife’s “motion to reconsider” as a motion to alter or amend. McCracken v.
Brentwood United Methodist Church, 958 S.W.2d 792, 794 n.3 (Tenn. Ct. App. 1997).

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 Before moving to the next point in our analysis, we note that we are not unsympathetic
to the trial court. Wife’s counsel did not specify in her motion to set aside whether it was
being made pursuant to Rule 54, 59, or 60.

We cannot agree with Wife’s assertion that her motion for reconsideration of the order
dismissing the declaratory judgment claim prevented the December 2010 order, from which
she appeals, from becoming final. Wife argued at the hearing on the motion to set aside the
December 2009 order that the dismissal of the declaratory judgment had never become final
because of her pending motion for reconsideration. At the conclusion of the hearing, the
court stated, “This case is over.” In the body of the December 2010 order, the court stated,
“This matter is over and final pursuant to [R]ule 54 of the Tennessee Rules of Civil
Procedure.”

As Wife correctly points out, the December 2010 order does not contain either the
“express determination that there is no just reason for delay” or the “certification by the trial
judge . . . that the court has directed the entry of a final judgment as to one or more but fewer
than all of the claims . . . .” Cooper, 2011 WL 5925062 at *5. However, this argument
misses the point. In our judgment, the December 2010 order is not entered pursuant to Tenn.
R. Civ. P. 54.02.2 Rather, it is a final order.

The interpretation of a court’s order is a question of law, which this court can
determine de novo. Lamar Advertising Co. v. By-Pass Partners, 313 S.W.3d 779, 785
(Tenn. Ct. App. 2009). In making that determination, we ascertain the intent of the court,
and, if possible, make the order in harmony with the entire record in the case and to be such
as “ought to have been rendered.” Id. at 786.

It is apparent to us that the court intended that its order would bring this case to an end
despite any pending motions. It is also apparent to us that the court was confident in its
dismissal of the declaratory judgment claim and that it had no intention of changing its ruling
as argued for by Wife in her motion for reconsideration. We are mindful, also, that the trial
court had the record available to it and the record shows that Wife had allowed her motion
to reconsider the dismissal of the declaratory judgment action to remain pending for almost
five years without obtaining a hearing. We believe, and so hold, that the December 2010
order – with its finality language – denied Wife’s motion for reconsideration of the dismissal
of the declaratory judgment claim sub silentio. Accordingly, so construed, the December

2
The trial court’s reference in the December 2010 order to Rule 54 is curious. The court does not
mention what part of Rule 54 the court is referencing. We do not believe the court was referring to Rule
54.02 because this would be totally at odds with the court’s statement in the December 2010 order that “[t]his
matter is over and final.”

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2010 order is a final order from which an appeal as of right lies. After that order was
entered, there were no matters pending before the trial court. This is the clear import of the
trial court’s statements, i.e., “this case is over” and “[t]his matter is over and final.”

C.

Before proceeding through the final step of our analysis, we look again to Discover
Bank for the standard by which we review the trial court’s denial of the motion to set aside
the December 2010 order. In Discover Bank, the court held that regardless of whether the
motion to set aside is being made pursuant to Rule 54.02, Rule 59, or Rule 60, the standard
of review is the same. 2012 WL 1005074 at *4. A trial court has a wide range of discretion
in all such rulings, therefore appellate courts review the trial court’s order denying a motion
to set aside under the abuse of discretion standard:

Abuse of discretion is found only when the trial court applied
incorrect legal standards, reached an illogical conclusion, based
its decision on a clearly erroneous assessment of the evidence,
or employed reasoning that causes an injustice to the
complaining party. The abuse of discretion standard does not
permit an appellate court to merely substitute its judgment for
that of the trial court. Instead, under the abuse of discretion
standard, a trial court’s ruling will be upheld so long as
reasonable minds can disagree as to the propriety of the decision
made.

Id. at *5 (citations and internal editing omitted).

D.

The Discover Bank opinion provides further guidance in that it articulates the
standard for evaluating a motion to set aside, whether it be made pursuant to Rule 54.02, 59,
or 60:

Today we clarify that when a party seeks relief from a default
judgment due to “excusable neglect,” whether pursuant to Rule
54.02 (for interlocutory judgments), Rule 59.04 (for final
judgments within thirty days of entry), or Rule 60.02 (for final
judgments more than thirty days after entry), a reviewing court
must first determine whether the conduct precipitating the
default was willful. If the court finds that the defaulting party

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 has acted willfully, the judgment cannot be set aside on
“excusable neglect” grounds, and the court need not consider the
other factors. If the conduct was not willful, however, then the
court must consider whether the defaulting party has a
meritorious defense and whether the non-defaulting party
would be prejudiced by the granting of relief. The court may
also consider any other factor that it deems relevant.

We recognize that the interest in finality is heightened once a
final judgment has been entered. While the same factors must
guide the inquiry, relief from a partial default judgment may be
granted more liberally under Rule 54.02 than relief from final
default judgments under Rule 59.04 or Rule 60.02. Cf. Dayton
Elec. Mfg. Co., 140 F.3d at 783 (holding that the same factors
apply when relief is sought from a final judgment, Fed.R.Civ.P.
60(b), as from a mere entry of default, Fed.R.Civ.P. 55(c), but
that relief should be granted more liberally where no final
judgment has been entered).

Having determined that the same test for relief applies under
Rule 54.02 and Rule 60.02, it follows that the trial court did not
abuse its discretion by applying an incorrect legal standard.

Id. at *10 (headings and footnotes omitted). We realize that Discover Bank involves a
motion for default and this case involves a motion filed after the issues have been joined; but
we believe that Discover Bank is still applicable because the present case involves a failure
to appear and contest the motion at issue.

Having determined that the three-part test articulated in Discover Bank is applicable,
we will not prolong our analysis. When an attorney knows a matter is pending, and yet
chooses to attend to other matters, that is not the type of conduct that has been found to be
“excusable” in the context of a motion to set aside. Barber & McMurry, Inc. v. Top-Flite
Development Corp., 720 S.W.2d 469, 471 (Tenn. Ct. App. 1986). Even if we give Wife the
benefit of the doubt on the willfulness inquiry, Wife has not shown a meritorious defense to
the fees claimed. Her defense rests solely on the idea that some of the fees were incurred in
defending the declaratory judgment claim. Yet, Wife has cited no authority for the
proposition that the fees Husband incurred in fending off her declaratory judgment claim are
not allowable. Furthermore, Wife took the position in the trial court that the child support
was intertwined with her attempt to revise the original judgment because the result could be
to shift income from one parent to another and thereby directly affect the child support

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determination. Husband, on the other hand, asserts that the granting of relief to Wife would
prejudice him by prolonging the inevitable and forcing him to incur additional fees and
expenses. Even if we treat the prejudice to Husband as minimal, we believe that a reasonable
judicial mind could easily reach the same conclusion reached by the trial court in this case.
Accordingly, we hold that the trial court did not abuse its discretion in denying Wife’s
motion to set aside the award of attorney’s fees.

V.

We decline Husband’s invitation to further burden Wife with an additional award of
fees, this time pursuant to Tenn. Code Ann. § 27-1-122 (2000). The statute states:

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 that is so “devoid of merit . . . that it had no reasonable chance of
succeeding.” Clark v. Nashville Mach. Elevator Co., 129 S.W.3d 42, 50 n. 4 (Tenn. 2004).
The Supreme Court has recently stated, with regard to the statute, that “imposing a penalty
for a frivolous appeal is a remedy which is to be used only in obvious cases of frivolity and
should not be asserted lightly or granted unless clearly applicable—which is rare.”
Henderson v. SAIA, Inc., 318 S.W.3d 328, 342 (Tenn. 2010). We believe it is sufficient
to state that this is not one of those “rare” cases. This is especially true given the confusion
of all the parties and the court regarding the finality of the December 2009 order.

VI.

Before concluding, we will briefly revisit the issue of what type of motion relates to
what kind of action by the trial court. The bench and bar would be well advised to remember
the following capsule of the pertinent law as found in the language of the Supreme Court
addressing a different but related concept in the Discover case:

Today we clarify that when a party seeks relief from a default
judgment due to “excusable neglect,” whether pursuant to Rule
54.02 (for interlocutory judgments), Rule 59.04 (for final
judgment within thirty days of entry), or Rule 60.02 (for final
judgments more than thirty days after entry), . . .

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2012 WL 1005074 at *10. Thus, if “any order or other form of decision, however
designated, . . . adjudicates fewer than all the claims or the rights and liabilities of fewer than
all the parties” and if the trial court has not properly “direct[ed] the entry of a final judgment”
with respect to that determination, a party can move, pursuant to Tenn. R. Civ. P. 54.02, to
“revis[e]” it “at any time before the entry of the judgment adjudicating all the claims and the
rights and liabilities of all the parties.” If, on the other hand, the trial court has entered a final
judgment as to all parties and all claims, and an aggrieved party wants to challenge it, the
party can contest it within 30 days of its entry by filing a motion pursuant to Tenn. R. Civ.
P. 59.04. Finally, if a final judgment has been entered for more than thirty days, it can only
be challenged by way of a Rule 60.02 motion. In summary form, this says it all.

VII.

The judgment of the trial court is affirmed. Costs on appeal are taxed to the appellant,
Joyce Marie Byrnes. This case is remanded, pursuant to applicable law, for enforcement of
the judgment including collection of costs assessed by the trial court.

_______________________________
CHARLES D. SUSANO, JR., JUDGE

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