Tara Janay Swick v. Donovan Robert Swick

                                                                                         03/25/2021
               IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                        February 23, 2021 Session

            TARA JANAY SWICK V. DONOVAN ROBERT SWICK

                   Appeal from the Circuit Court for Knox County
                    No. 145716     Gregory S. McMillan, Judge


                            No. E2020-00661-COA-R3-CV


The husband in this divorce case failed to answer the wife’s complaint for legal separation
or her amended complaint for divorce. The trial court awarded the wife a divorce, entered
a permanent parenting plan, and divided the marital estate. The husband moved to set aside
the judgment, and the trial court denied his motion. The husband appeals, and we affirm
the trial court’s judgment in all respects.

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

ANDY D. BENNETT, J., delivered the opinion of the Court, in which D. MICHAEL SWINEY,
C.J., and THOMAS R. FRIERSON, II, J., joined.

Donovan Robert Swick, Knoxville, Tennessee, pro se.

Michael B. Menefee, Knoxville, Tennessee, for the appellee, Tara Janay Swick.

                                       OPINION

                      I. FACTUAL AND PROCEDURAL BACKGROUND

       Tara Janay Swick (“Mother”) and Donovan Robert Swick (“Father”) were married
for nearly eighteen years when Mother filed a complaint for legal separation in April 2019.
Father failed to file a response and Mother filed an amended complaint for divorce a few
months later, in August. Father failed to file a response to the amended complaint, and
Mother moved for a default judgment in October 2019. The parties have five children who
were between six and seventeen years old when Mother filed her initial complaint.

       On November 15, 2019, the trial court held a hearing, at which Father appeared,
and granted Mother’s motion. The court divided the marital assets and adopted Mother’s
proposed parenting plan, awarding her 365 days of residential parenting time with the
children. Father was awarded supervised visitation up to two times per week.1 The court
awarded Mother child support and alimony in futuro in addition to half of her attorney’s
fees. Father moved to set aside the default judgment pursuant to Tenn. Rs. Civ. P. 55.02
and 60.02 (“Father’s Motion” or “his Motion”). On March 6, 2020, the trial court held a
hearing on Father’s Motion, which it denied by order entered on April 1, 2020.

        Father appeals the trial court’s denial of his Motion. He argues that the trial court
erred in the following ways: (1) entering an erroneous order of protection; (2) denying him
50/50 custody of the children and forcing him to pay for supervised visits; (3) failing to
conduct a best interest analysis; (4) not allowing him to present a meritorious defense; (5)
not appointing a guardian ad litem; (6) not allowing the children whom he subpoenaed to
testify at the hearing on his Motion; (7) awarding 100% of the family home to Mother; (8)
failing to rule that Mother’s withdrawal from Father’s bank account constituted fraud or
theft; (9) denying his Motion; and (10) failing to require Mother to undergo a psychological
evaluation as Father was ordered to do. Mother seeks an award of her attorney’s fees
pursuant to Tenn. Code Ann. § 36-5-103(c).

                                              II. ANALYSIS

A. Order of Protection

        The order of protection that Father asserts was “erroneous” is not included in the
appellate record. The trial court assigned the case number 145716 to the divorce matter on
appeal, and it assigned the case number 145664 to the proceeding in which the order of
protection was entered. The only judgment Father appealed that is currently before this
Court is Father’s Motion. We do not know if the order of protection was appealed, but it
is not at issue in this case. See TENN. R. APP. P. 3(e) (appeal “shall be taken by timely
filing a notice of appeal” with the appellate court clerk). As a result, we dismiss any issue
Father raises concerning the order of protection.

B. Permanent Parenting Plan

        In a non-jury case such as this, an appellate court reviews the trial court’s findings
of fact de novo upon the record, affording the findings of fact a presumption of correctness
unless the evidence preponderates otherwise. TENN. R. APP. P. 13(d); Kelly v. Kelly, 445
S.W.3d 685, 691-92 (Tenn. 2014). We review a trial court’s conclusions of law de novo,

1
 In its final judgment, the trial court stated that a bridging order of protection was in effect “which limits
Defendant/Father’s contact with the children to supervised visits through The Assurance Group.” The court
wrote that when the order of protection was entered, Father was ordered to undergo a psychiatric evaluation
and to supply documentation to the court showing that he was following the recommendations of his
treating professionals. Father was also required to complete the twelve-hour parent education class before
requesting unsupervised visitation with the parties’ children. The court noted in its order that “Father has
failed to complete either of these tasks.”
                                                    -2-
affording them no presumption of correctness. Kelly, 445 S.W.3d at 692; Armbrister v.
Armbrister, 414 S.W.3d 685, 692 (Tenn. 2013).

       The Armbrister Court described the review appellate courts apply to cases involving
parenting plans:

               Because decisions regarding parenting arrangements are factually
       driven and require careful consideration of numerous factors, Holloway v.
       Bradley, 190 Tenn. 565, 230 S.W.2d 1003, 1006 (1950); Brumit v.
       Brumit, 948 S.W.2d 739, 740 (Tenn. Ct. App. 1997), trial judges, who have
       the opportunity to observe the witnesses and make credibility determinations,
       are better positioned to evaluate the facts than appellate judges. Massey-Holt
       v. Holt, 255 S.W.3d 603, 607 (Tenn. Ct. App. 2007). Thus, determining the
       details of parenting plans is “peculiarly within the broad discretion of the trial
       judge.’” Suttles v. Suttles, 748 S.W.2d 427, 429 (Tenn. 1988) (quoting
       Edwards v. Edwards, 501 S.W.2d 283, 291 (Tenn. Ct. App. 1973)). “It is not
       the function of appellate courts to tweak a [residential parenting schedule] in
       the hopes of achieving a more reasonable result than the trial court.” Eldridge
       v. Eldridge, 42 S.W.3d 82, 88 (Tenn. 2001). A trial court’s decision
       regarding the details of a residential parenting schedule should not be
       reversed absent an abuse of discretion. Id. “An abuse of discretion occurs
       when the trial court . . . appl[ies] an incorrect legal standard, reaches an
       illogical result, resolves the case on a clearly erroneous assessment of the
       evidence, or relies on reasoning that causes an injustice.” Gonsewski v.
       Gonsewski, 350 S.W.3d 99, 105 (Tenn. 2011).

Armbrister, 414 S.W.3d at 693; see also Kelly, 445 S.W.3d at 692. “A trial court’s broad
discretion on custody matters extends to the question of which parent should be named
primary residential parent.” Grissom v. Grissom, 586 S.W.3d 387, 391 (Tenn. Ct. App.
2019); see also Kathryne B.F. v. Michael David B., No. W2014-01863-COA-R3-CV, 2015
WL 4366311, at *8 (Tenn. Ct. App. July 16, 2015). As the Armbrister Court stated, “A
trial court abuses its discretion in establishing a residential parenting schedule ‘only when
the trial court’s ruling falls outside the spectrum of rulings that might reasonably result
from an application of the correct legal standards to the evidence found in the
record.’” Armbrister, 414 S.W.3d at 693 (quoting Eldridge, 42 S.W.3d at 88). To prevail
on appeal, Father must demonstrate that the trial court abused its discretion in naming
Mother the primary residential parent and adopting her proposed parenting plan.

       When a trial court is faced with divorcing parents who have one or more minor
children, the court must determine the child(ren)’s primary residential parent by conducting
a “‘comparative fitness’ analysis.” Grissom, 586 S.W.3d at 392 (quoting Chaffin v. Ellis,
211 S.W.3d 264, 286 (Tenn. Ct. App. 2006)). In conducting this analysis, the court is
required to consider the factors set forth in Tenn. Code Ann. § 36-6-106(a). Id.; see also

                                             -3-
Chaffin, 211 S.W.3d at 286. “‘[D]etermining a child’s best interest is a fact-sensitive
inquiry,’” Grissom, 586 S.W.3d at 393 (quoting Solima v. Solima, No. M2014-01452-
COA-R3-CV, 2015 WL 4594134, at *4 (Tenn. Ct. App. July 30, 2015)), that

      “does not call for a rote examination of each of [the relevant] factors and then
      a determination of whether the sum of the factors tips in favor of or against
      the parent. The relevancy and weight to be given each factor depends on the
      unique facts of each case. Thus, depending upon the circumstances of a
      particular child and a particular parent, the consideration of one factor may
      very well dictate the outcome of the analysis.”

Id. (quoting Solima, 2015 WL 4594134, at *4).

       Father argues the trial court erred in failing to award him 50% of the residential
parenting time. However, the only proposed parenting plan in the appellate record is the
one Mother filed in which she asked for 365 days of parenting time. She requested that
Father “exercise supervised visits up to twice per week at such times as may be arranged
with the supervising agency.” The appellate record contains no pleadings by Father and
no requests for relief other than his Motion.

       In approving Mother’s proposed parenting plan, the trial court made the following
findings of fact, among others:

      9. At the time of the entry of this Order, there is in place a Bridging Order
      of Protection entered in the case of Tara Swick v. Donovan Swick, Knox
      County Fourth Circuit Court Docket #145664 which limits
      Defendant/Father’s contact with the children to supervised visits through The
      Assurance Group. In that case, this Court ordered that Father shall undergo
      a psychiatric evaluation and supply documentation that he is following the
      recommendations of his treating professionals and that he shall complete the
      twelve (12) hour parent education class before he moves this Court for
      unsupervised visits with the parties’ children. Defendant/Father has failed to
      complete either of these tasks.

      10. During the course of the parties’ marriage, Defendant/Father regularly
      lost his temper and made threatening and inappropriate remarks to and in the
      presence of the parties’ children. Both before and during the pendency of this
      case and the related Order of Protection, Defendant/Father has made several
      disparaging remarks about the Plaintiff/Mother to the children both on the
      telephone and in person. Defendant/Father likewise made concerted efforts
      to alienate the children from their mother, their church, and family friends.
      The Court finds that the Defendant/Father regularly places his own interest
      ahead of the parties’ minor children.

                                           -4-
      11. Mother has filed a Proposed Permanent Parenting Plan limiting
      [Father]’s contact with his children to supervised visits at The Assurance
      Group or other such agency or supervisor as the parties may agree. This
      Court finds Mother’s Proposed Permanent Parenting Plan to be in the best
      interest of the minor children.

      ....

      20. . . . Per the agreement of the parties, [Mother] did not work outside of
      the home from the birth of the parties’ oldest child until the parties separated.
      For several years, [Mother] acted as a home-school teacher for the children
      and, upon agreement of the parties, has made it her priority to care for the
      children since birth. . . .

      21. [Mother] was primarily responsible for keeping the home and raising the
      parties’ children during the course of the marriage. [Mother]’s contributions
      to the home and children allowed [Father] to build his independent design
      business, a customer base, and reputation as a designer that allows him to
      earn a substantial income. [Mother] is expected to continue to spend the vast
      majority of her time raising the parties’ children for several years to come to
      the detriment of any job/career opportunities.

       Trial courts are required to consider the following factors in determining which
party should be named the primary residential parent:

      (1) The strength, nature, and stability of the child’s relationship with each
      parent, including whether one (1) parent has performed the majority of
      parenting responsibilities relating to the daily needs of the child;

      (2) Each parent’s or caregiver’s past and potential for future performance of
      parenting responsibilities, including the willingness and ability of each of the
      parents and caregivers to facilitate and encourage a close and continuing
      parent-child relationship between the child and both of the child’s parents,
      consistent with the best interest of the child. In determining the willingness
      of each of the parents and caregivers to facilitate and encourage a close and
      continuing parent-child relationship between the child and both of the child’s
      parents, the court shall consider the likelihood of each parent and caregiver
      to honor and facilitate court ordered parenting arrangements and rights, and
      the court shall further consider any history of either parent or any caregiver
      denying parenting time to either parent in violation of a court order;

      (3) Refusal to attend a court ordered parent education seminar may be
      considered by the court as a lack of good faith effort in these proceedings;

                                            -5-
(4) The disposition of each parent to provide the child with food, clothing,
medical care, education and other necessary care;

(5) The degree to which a parent has been the primary caregiver, defined as
the parent who has taken the greater responsibility for performing parental
responsibilities;

(6) The love, affection, and emotional ties existing between each parent and
the child;

(7) The emotional needs and developmental level of the child;

(8) The moral, physical, mental and emotional fitness of each parent as it
relates to their ability to parent the child. The court may order an examination
of a party under Rule 35 of the Tennessee Rules of Civil Procedure and, if
necessary for the conduct of the proceedings, order the disclosure of
confidential mental health information of a party under § 33-3-105(3). The
court order required by § 33-3-105(3) must contain a qualified protective
order that limits the dissemination of confidential protected mental health
information to the purpose of the litigation pending before the court and
provides for the return or destruction of the confidential protected mental
health information at the conclusion of the proceedings;

(9) The child’s interaction and interrelationships with siblings, other relatives
and step-relatives, and mentors, as well as the child’s involvement with the
child’s physical surroundings, school, or other significant activities;

(10) The importance of continuity in the child’s life and the length of time
the child has lived in a stable, satisfactory environment;

(11) Evidence of physical or emotional abuse to the child, to the other parent
or to any other person. The court shall, where appropriate, refer any issues of
abuse to juvenile court for further proceedings;

(12) The character and behavior of any other person who resides in or
frequents the home of a parent and such person’s interactions with the child;

(13) The reasonable preference of the child if twelve (12) years of age or
older. The court may hear the preference of a younger child upon request.
The preference of older children should normally be given greater weight
than those of younger children;



                                      -6-
        (14) Each parent’s employment schedule, and the court may make
        accommodations consistent with those schedules; and

        (15) Any other factors deemed relevant by the court.

Tenn. Code Ann. § 36-6-106(a).

       It is apparent from reviewing the trial court’s factual findings that it considered
factors 1, 2, 4, 5, 7, 11, and 14, and that they favored Mother. In addition, the trial court
found that Father had failed to comply with the court’s order to attend the parent education
seminar (factor 3) or its order to undergo a Rule 35 examination (factor 8). Father does
not contest the trial court’s factual findings.

        Given the broad discretion the trial court has in determining who should be
designated the children’s primary residential parent and in determining the parenting
schedule, we conclude that Father has failed to demonstrate that the court abused its
discretion or reached a decision that “‘falls outside the spectrum of rulings that might
reasonably result from an application of the correct legal standards to the evidence found
in the record.’” Armbrister, 414 S.W.3d at 693 (quoting Eldridge, 42 S.W.3d at 88). We
affirm the trial court’s decision designating Mother as the children’s primary residential
parent and adopting Mother’s proposed permanent parenting plan.

C. Father’s Defense Against Mother’s Allegations

       Father contends that the trial court did not allow him to defend himself against
Mother’s allegations at the hearing on Mother’s motion for default judgment.2 In his
appellate brief, Father does not raise a defense to Mother’s complaint for divorce or argue
that she was not entitled to a decree of divorce. Instead, he complains that he was unable
to defend the case against him “for the best interest of our children.” Father focuses on the
order of protection and the terms of the parenting plan, both of which we have already
addressed. By not submitting a proposed parenting plan, Father failed to apprise the court
of his wishes with respect to the children.

        Father failed to file an answer to Mother’s complaint for legal separation, and he
failed to file an answer to her complaint for divorce. Father acknowledged that he was
served with both of these documents. Tennessee Rule of Civil Procedure 8.02 states: “A

2
 The appellate record does not contain a transcript of the hearing on November 15, 2019; a CD rom is in
the record that is an audio-visual recording of the hearing. Mother and two of her witnesses testified at the
hearing. Father appeared and was permitted to make a statement, but he was not permitted to introduce any
witnesses. Father told the judge that he is a changed man. The judge told Father that, although he was
physically before the court, he was not legally before the court because he had not filed an answer to
Mother’s complaint for divorce.


                                                   -7-
party shall state in short and plain terms his or her defenses to each claim asserted and shall
admit or deny the averments upon which the adverse party relies.” (Emphasis added.) The
use of the word “shall” in Rule 8.02 shows that its requirements are mandatory, not
discretionary. See Bellamy v. Cracker Barrel Old Country Store, Inc., 302 S.W.3d 278,
281 (Tenn. 2009).

        Tennessee Rule of Civil Procedure 8.04 provides that “[a]verments in a pleading to
which a responsive pleading is required are admitted when not denied” and then lists five
exceptions to this rule. One of the exceptions is divorce actions, in which allegations
“necessary to sustain an action for divorce” must be proved. TENN. R. CIV. P. 8.04(3); see
Sample v. Sample, 605 S.W.3d 629, 638 (Tenn. Ct. App. 2018) (stating that a party may
not obtain a divorce by default judgment). In its final order granting Mother a divorce, the
trial court wrote that it “heard proof on the Permanent Parenting Plan, [Mother]’s grounds
for divorce, and the equitable distribution of the parties’ marital property.” Thus, despite
Mother’s request for a default judgment and the trial court’s title of its order (“Final
Judgment by Default”), the trial court heard the proof necessary to sustain Mother’s request
for a divorce as required by Tenn. R. Civ. P. 8.04(3).

D. Guardian ad Litem

       Father contends the trial court erred in failing to appoint a guardian ad litem to
represent the children’s interests. However, the record contains no motion or other filing
by Father requesting that a guardian ad litem be appointed. Issues not raised in the trial
court may not be raised for the first time on appeal. PNC Multifamily Capital Institutional
Fund XXVI Ltd. P’ship v. Mabry, 402 S.W.3d 654, 662-63 (Tenn. Ct. App. 2012). Thus,
Father has waived this issue. See id.

E. Children’s Testimony

        Father had subpoenas issued for each of the children in an effort to have them testify
at the hearing on his Motion. Mother moved to quash the subpoenas, arguing that the
children had no knowledge or information regarding any matter Father raised in his
Motion. At the hearing, Father asked the court to hear the preferences of only two of the
children, one aged fifteen and one aged nine. The court denied Father’s request, writing
that “the children’s preference does not have bearing on the issues raised in Defendant’s
motion and given the facts surrounding this case, that the preference of the children would
not constitute a successful showing of a meritorious defense.”

        In his brief, Father contends: “It is the right of children in the State of Tennessee to
be allowed to testify.” Father provides no citation to support this statement as required by
Tennessee Rule of Appellate Procedure 27(a)(7), and he fails to explain how his children’s
testimony could have been relevant to the issue of setting aside the judgment. We affirm
the trial court’s decision to quash the subpoenas Father had issued to the children.

                                             -8-
F. Award of Family Home to Mother

        In divorce cases, after classifying the parties’ property as marital or separate, “the
trial court is directed to ‘equitably divide, distribute or assign the marital property between
the parties without regard to marital fault in proportions as the court deems
just.’” Blakemore v. Blakemore, No. W2018-01391-COA-R3-CV, 2020 WL 3468292, at
*2 (Tenn. Ct. App. June 25, 2020) (quoting Tenn. Code Ann. § 36-4-121(a)(1)); see also
Snodgrass v. Snodgrass, 295 S.W.3d 240, 246 (Tenn. 2009). An equitable division is not
necessarily an equal division. Snodgrass, 295 S.W.3d at 255, n.16; Baggett v. Baggett, 422
S.W.3d 537, 543 (Tenn. Ct. App. 2013). The trial court has broad discretion in equitably
distributing marital property between the parties, and we will defer to the trial court’s
distribution on appeal unless it is not consistent with the statutory factors or is not supported
by a preponderance of the evidence. Blakemore, 2020 WL 3468292, at *2 (citing Baggett,
422 S.W.3d at 543); see also Keyt v. Keyt, 244 S.W.3d 321, 328 (Tenn. 2007); Woodward
v. Woodward, 240 S.W.3d 825, 828 (Tenn. Ct. App. 2007). In making an equitable
division, the trial court is guided by the twelve factors set forth at Tenn. Code Ann. § 36-
4-121(c).

       Father objects to the trial court’s valuation of the marital house and its award of the
property to Mother. In its order granting Mother a judgment, the trial court found that the
parties “own an interest in a marital home” and that they “have approximately $70,402.00
of equity in the home.” The court awarded Mother “all right, title, and interest in the marital
home” and declared that she was responsible for the mortgage and any debt secured by or
related to the home. The court awarded Father a 2019 Ford Mustang that Mother valued
at $34,000; it awarded Mother a motorcycle she valued at $1,500, a 2006 minivan she
valued at $300, and a 2008 Honda Pilot she valued at $1,500. The court then proceeded to
divide the parties’ personal property and debts between Mother and Father. The value of
the personal property the court awarded Father totaled about $23,750, based on values
provided by Mother, and the personal property the court awarded Mother totaled about
$17,680, which values were also provided by Mother. The court awarded Father a
retirement account that Mother valued at approximately $60,000.3 The trial court did not
assign a value to the marital home in either its order awarding Mother a divorce or its order
denying Father’s Motion.

           In its order denying Father’s Motion, the court wrote, in part:

           On October 11, 2019, this matter came on for hearing on Plaintiff’s Motion
           to Declare Facts Admitted and Plaintiff’s Motion to Compel Discovery.
           Both parties were present for said hearing and the Court admonished and
           reminded [Father] to file with the Court his Local Rule 14 list of marital and
           separate property. The Court finds that [Father] failed to file a list of marital

3
    The trial court noted that Father failed to produce records reflecting the value of his retirement account.
                                                       -9-
       and separate property and failed to file or offer anything to compete with
       [Mother]’s list of marital property and values.

We note that Father also failed to comply with Court of Appeals Rule 7, which provides,
in pertinent part, as follows:

       (a) In any domestic relations appeal in which either party takes issue with the
       classification of property or debt or with the manner in which the trial court
       divided or allocated the marital property or debt, the brief of the party raising
       the issue shall contain, in the statement of facts or in an appendix, a table in
       a form substantially similar to the form attached hereto. This table shall list
       all property and debts considered by the trial court, including: (1) all separate
       property, (2) all marital property, and (3) all separate and marital debts.

       (b) Each entry in the table must include a citation to the record where each
       party’s evidence regarding the classification or valuation of the property or
       debt can be found and a citation to the record where the trial court’s decision
       regarding the classification, valuation, division, or allocation of the property
       or debt can be found.

       We have ruled on numerous occasions that an appellant who fails to comply with
Court of Appeals Rule 7 waives his or her right to object to the trial court’s equitable
division of marital property. See Adams v. Adams, No. M2019-00309-COA-R3-CV, 2020
WL 2062302, at *5 (Tenn. Ct. App. Apr. 29, 2020); Harden v. Harden, No. M2009-01302-
COA-R3-CV, 2010 WL 2612688, at *8 (Tenn. Ct. App. June 30, 2010); Slaughter v.
Slaughter, No. W2007-01488-COA-R3-CV, 2008 WL 1970491, at *2 (Tenn. Ct. App.
May 8, 2008). Father provides no reason for this Court to suspend the requirements of
Rule 7. As a result, we deem Father’s issue concerning the valuation and award of the
marital home to Mother waived. See Adams, 2020 WL 2062302, at *5.

G. Mother’s Withdrawals of Funds from Father’s Account

        At the hearing on his Motion, Father testified that Mother unlawfully withdrew
about $30,000 from his personal money market account and moved it to the parties’ joint
bank account, and that she then moved this money to another account that was under her
sole control. Father stated that the money Mother withdrew from his money market account
included an inheritance he received from his relatives and contended that Mother had no
right to these funds. However, Father admitted that he deposited at least $35,000 of marital
funds into his money market account before Mother withdrew any of the money about
which Father complains. Mother acknowledged withdrawing $26,000 from Father’s
account. She testified that she used this money to pay the parties’ mortgage, utility bills,
credit card bills, family food expenses, car repairs that totaled over $3,000, and lawyer fees.


                                            - 10 -
       In its order denying Father’s Motion, the court wrote:

       [Father] offered evidence that [Mother] made withdraws from an account
       that once contained his separate inheritance. However, [Mother] offered
       evidence reflecting deposits into the account from marital funds in excess of
       any withdraws made. The Court finds that [Father] did not meet his burden
       to show any type of fraud related to said withdraws.

Father fails to establish that the evidence preponderates against the trial court’s findings on
this issue. Accordingly, we affirm the trial court’s judgment that Mother’s withdrawal of
funds was not improper.

H. Denial of Father’s Motion

       Father contends that the trial court erred in denying his Motion. Father moved the
court to set aside the judgment pursuant to Tenn. Rs. Civ. P. 55.02 and 60.02. Rule 55.02
provides: “For good cause shown the court may set aside a judgment by default in
accordance with Rule 60.02.” Rule 60.02 provides, 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.

Although he was not specific in his Motion or appellate brief, Father appears to rely on
Rule 60.02(1) ‒ that the court erred in failing to set aside the judgment due to mistake,
inadvertence, surprise or excusable neglect. “In reviewing a trial court’s decision to grant
or deny relief pursuant to Rule 60.02, we give great deference to the trial court.” Henry v.
Goins, 104 S.W.3d 475, 479 (Tenn. 2003)) (citing Underwood v. Zurich Ins. Co., 854
S.W.2d 94, 97 (Tenn. 1993)). An appellate court will not set aside a trial court’s ruling in
the absence of evidence that the trial court “‘applied an incorrect legal standard, or reached
a decision which is against logic or reasoning that caused an injustice to the party
complaining.’” Id. (quoting State v. Stevens, 78 S.W.3d 817, 832 (Tenn. 2002)). An
appellate court may not substitute its judgment for that of the trial court. Id.; Eldridge, 42
S.W.3d at 85.

       “‘The bar for obtaining relief [pursuant to Rule 60.02] is set very high, and the
burden borne by the moving party is heavy.’” Pruitt v. Pruitt, No. W2018-00453-COA-

                                            - 11 -
R3-CV, 2019 WL 450416, at *2 (Tenn. Ct. App. Feb. 5, 2019) (quoting DeLong v.
Vanderbilt Univ., 186 S.W.3d 506, 511 (Tenn. Ct. App. 2005)); see also Henry, 104
S.W.3d at 482. “‘To obtain relief under Rule 60.02, the moving party “must describe the
basis of relief with specificity” and establish by clear and convincing evidence that [he or]
she is entitled to relief.’” Pruitt, 2019 WL 450416, at *3 (quoting Hussey v. Woods, 538
S.W.3d 476, 483 (Tenn. 2017) (internal citations omitted)).

       Father asserts that he believed his attorney was going to file an answer to Mother’s
complaint for legal separation. Father’s attorney was permitted to withdraw from
representing Father before Mother filed her amended complaint for divorce, and Father
does not explain why he did not file an answer to the amended complaint or file any other
papers with the trial court before the final judgment was granted. The trial court found that
Father’s Motion “failed to set out any grounds or reasons to set aside [the judgment]” and
that Father “likewise failed to prove any grounds or reasons to set aside the judgment at
the hearing” on his Motion. We conclude that Father failed to describe the basis of relief
he was seeking with specificity or to establish by clear and convincing evidence that he
was entitled to relief from the trial court. See Pruitt, 2019 WL 450416, at *3. Because
Father does not demonstrate that the trial court abused its discretion in denying his Motion,
we affirm the trial court’s judgment in this regard.

I. Rule 35 Examination

      Father’s final argument is that the trial court erred in failing to require Mother to
undergo a Rule 35 examination. Tennessee Rule of Civil Procedure 35.01 provides:

       When the mental or physical condition (including the blood group) of a party,
       or of a person in the custody or under the legal control of a party, is in
       controversy, the court in which the action is pending may order the party to
       submit to a physical or mental examination by a suitably licensed or certified
       examiner or to produce for examination the person in custody or legal
       control. The order may be made only on motion for good cause shown and
       upon notice to the person to be examined and to all parties and shall specify
       the time, place, manner, conditions, and scope of the examination and the
       person or persons by whom it is to be made.

Our review of the appellate record reveals that Father did not raise this issue before the
trial court. As discussed above, he is precluded from raising an issue for the first time on
appeal. See Fayne v. Vincent, 301 S.W.3d 162, 171 (Tenn. 2009); Stephens v. Home Depot
U.S.A., Inc., 529 S.W.3d 63, 76 (Tenn. Ct. App. 2016). We thus hold that Father has
waived his right to raise this issue on appeal.




                                           - 12 -
J. Mother’s Request for Attorney’s Fees on Appeal

      Mother requests an award of the attorney’s fees she incurred on appeal pursuant to
Tenn. Code Ann. § 36-5-103(c). This statute provides:

       (c) A prevailing party may recover reasonable attorney’s fees, which may be
       fixed and allowed in the court’s discretion, from the non-prevailing party in
       any criminal or civil contempt action or other proceeding to enforce, alter,
       change, or modify any decree of alimony, child support, or provision of a
       permanent parenting plan order, or in any suit or action concerning the
       adjudication of the custody or change of custody of any children, both upon
       the original divorce hearing and at any subsequent hearing.

Our Supreme Court has instructed courts to exercise discretion in determining whether
attorney’s fees are warranted in a particular case and has written that “‘[a]lthough there is
no absolute right to such fees, . . . their award in custody and support proceedings is familiar
and almost commonplace.’” Eberbach v. Eberbach, 535 S.W.3d 467, 476 (Tenn. 2017)
(quoting Taylor v. Fezell, 158 S.W.3d 352, 360 (Tenn. 2005)). We hereby utilize our
discretion to award Mother the reasonable attorney’s fees she incurred in defending
Father’s appeal.

                                      III. CONCLUSION

       The judgment of the trial court is affirmed in all respects. This case is remanded for
a determination of the reasonable attorney’s fees Mother incurred on appeal, which Father
shall be ordered to pay. Costs of this appeal are assessed against the appellant, Donovan
Robert Swick, for which execution shall issue if necessary.


                                                      _/s/ Andy D. Bennett_______________
                                                      ANDY D. BENNETT, JUDGE




                                             - 13 -
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