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State ex rel. Hockett v. Joy

Court of Appeals of Tennessee, Nashville

October 31, 2019

STATE OF TENNESSEE EX REL. ANGELA HOCKETT
v.
TRACY JOY

          Session August 7, 2019

          Appeal from the Juvenile Court for Davidson County No. PT196675 Sheila Calloway, Judge

         The trial court entered an order awarding a mother retroactive child support and calculating the amount of support the father owed. The father filed a motion for relief from the judgment pursuant to Tenn. R. Civ. P. 60.02. Several months later, he amended his motion to assert that he was entitled to relief from the judgment because his attorney sustained an injury and died, which prevented the father from timely receiving a copy of the judgment so he could appeal it. The trial court denied the motion, finding that the father failed to raise the issue within a reasonable time, and then awarded the mother one-half of her attorney fees. The father appeals. We affirm the trial court's denial of the motion, but we vacate the award of attorney fees because the trial court failed to consider their reasonableness.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed in Part, Vacated in Part, and Remanded

          Mike J. Urquhart, Nashville, Tennessee, for the appellant, Tracy Joy.

          Herbert H. Slatery, III, Attorney General and Reporter, and Erin A. Shackelford, Assistant Attorney General, for the appellee, Child Support Services of Tennessee ex rel. Angela Hockett.

          Andy D. Bennett, J., delivered the opinion of the Court, in which Richard H. Dinkins and W. Neal McBrayer, JJ., joined.

          OPINION

          ANDY D. BENNETT, JUDGE

         Factual and Procedural Background

         Angela Hockett ("Mother") and Tracy Joy ("Father") are the biological parents of a child born in March 1998. On October 7, 2014, over sixteen years after the child's birth, the Department of Human Services (the "Department") initiated this action on behalf of Mother by filing a petition to establish parentage and set child support. After two days of trial, the trial court concluded that child support should be awarded retroactively to the date of the child's birth. In an order entered on June 21, 2017, the court calculated Father's retroactive child support obligation as $124, 436.50 and ordered him to pay Mother $576 per month until the judgment was satisfied.

         Father filed a petition to rehear on June 29, 2017. After granting the petition and rehearing the matter on November 28 and 29, 2017, the trial court entered an order on January 26, 2018, again awarding child support retroactively and calculating Father's retroactive child support obligation as $124, 436.50.[1] The order included a certificate of service stating that "a true and exact copy of this Order has been delivered to the parties at the last known address in the Court file. On this the 26 day of January 2018." Father's copy of the order was delivered to his attorney, Edward Gross. Shortly after receiving the order, Mr. Gross fell and fractured his hip, which required him to be hospitalized for several weeks. Sadly, Mr. Gross died approximately forty-five days after sustaining the injury.

         More than thirty days after Mr. Gross's injury, the personal effects that had been in his possession when he was admitted to the hospital were delivered to his paralegal, Mary Howden. Ms. Howden found that the January 26, 2018 order was included amongst these personal effects. She immediately notified Carrie Searcy, one of Mr. Gross's colleagues, about the order. By this time, however, the thirty-day deadline for appealing the January 26, 2018 order had passed. Ms. Searcy attempted to protect Father's interests by filing a petition for rehearing on March 12, 2018, asserting that a rehearing was necessary because the trial court had incorrectly calculated the retroactive child support amount.

         The trial court heard Father's motion on May 8, 2018, and on that same day, entered an order denying the motion based on a finding that Father failed to raise any new issues. In its order, the trial court indicated that Father should have appealed the January 26, 2018 order rather than filing a petition for rehearing. Thereafter, Father retained new counsel and, on June 5, 2018, he filed a motion to alter or amend the May 8, 2018 order pursuant to Tenn. R. Civ. P. 59, asserting that relief should be granted on the basis that "neither party would be prejudiced by altering or amending the order denying the Motion for Rehearing." That same day, Father also filed a motion to set aside the January 26, 2018 order pursuant to Tenn. R. Civ. P. 60, asserting that relief should be granted because "neither party would be prejudiced by setting the order of dismissal aside." Father later filed an amended motion to alter or amend the May 8, 2018 order and an amended motion to set aside the January 26, 2018 order on August 9, 2018. In both amended motions, Father asserted for the first time that the circumstances surrounding Mr. Gross's untimely death constituted good cause for granting relief from the judgments.

         The trial court heard Father's motions on September 18, 2018, and in an order entered on October 15, 2018, the court denied the motions and awarded Mother one-half of her attorney fees incurred in defending against Father's motions. Father appealed and raises the following issues: (1) whether the trial court erred in denying Father's amended Rule 60 motion to set aside the January 26, 2018 order, (2) whether the trial court erred in denying Father's amended Rule 59 motion to alter or amend the May 8, 2018 order, and (3) whether the trial court erred in awarding Mother one-half of her attorney fees.

         Analysis

         I. Rule 60.02 Motion.

         Father argues that the trial court erred in denying his request for relief from the January 26, 2018 order pursuant to Rule 60.02. He insists that he was entitled to relief from the order because his right to appeal was "usurped" through no fault of his own. Father asserts that he was prevented from filing a timely appeal because of the delay in receiving a copy of the order due to his attorney's injury, hospitalization, and death. Father further argues that this case involves an extreme hardship entitling him to relief pursuant to Rule 60.02.

         Tennessee Rule of Civil Procedure 60.02 allows a party to obtain relief from a final judgment 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 ...

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