Facts: Mother and Father are the never-married parents of Child. Mother lived in Kentucky, and Father lived in Tennessee.

A Kentucky court awarded custody to Mother with parenting time for Father every other weekend.

Four years later, Mother contacted Father to discuss a temporary change in the parenting arrangement. She was commuting to Tennessee each day for her seasonal employment, which made caring for Child difficult. She asked Father for help.

When Mother and Father met to discuss this, Father agreed to take custody of Child provided Mother signed a custodial power of attorney, an agreed order, and a modified parenting plan, which Father represented was necessary for Child to be enrolled in school in Tennessee. Mother did not have an attorney. Believing she had no other choice, Mother acquiesced. Still, Mother thought this new arrangement was temporary.

Unbeknownst to Mother, three days later, Father petitioned a Tennessee court to domesticate and modify the Kentucky custody order. In his petition, Father swore that he, Child, and Mother were residents during the six months preceding the filing of the petition. Father also swore that while a Kentucky court made the initial custody determination, none of the parties still lived in Kentucky.

Mother claimed she never saw this petition and was not served with it.

The Tennessee court entered an agreed order changing custody, which was signed by Mother when she met with Father months earlier, i.e., the meeting where he required her to sign various documents before he would take Child.

Mother moved to set aside the agreed order under Rule 60.02 on the grounds of fraud and lack of subject-matter jurisdiction. Mother disputed that she and Child resided in Tennessee. She also claimed to sign the agreed order under duress and complained that she was never served with the petition. Mother submitted Child’s school records from Kentucky to support her residency claim.

The trial court denied Mother’s motion, finding she waived any objection to subject-matter jurisdiction by signing the agreed order. The trial court did not address Mother’s fraud argument.

Mother appealed.

On Appeal: The Court of Appeals vacated the trial court’s decision.

The Court agreed with the trial court’s decision not to set aside the agreed order for lack of subject-matter jurisdiction because Mother cannot attack the validity of the judgment via Rule 60.02(3) by offering evidence not in the record. Thus, it was not improper for the trial court to do what it did based on Father’s representations in the petition and the agreed order.

Under Rule 60.02(2), a court may set aside a final judgment for fraud, misrepresentation, or other misconduct. Rule 60 motions based on fraud must be filed within a reasonable time and no more than a year after the judgment was entered. Mother’s motion was filed three months after the agreed order became final, so it was timely.

To establish fraud, Mother must present clear and convincing evidence that Father intentionally acted to keep her and the court ignorant of the real facts, whereby a wrong conclusion that affects Mother’s rights was reached. The fraudulent conduct must be of a type that prevented the other party from fully and fairly presenting its case. Withholding evidence and the knowing use of perjured testimony are prime examples of the type of misconduct justifying relief under Rule 60.02(2).

The Court found the trial court erred by not addressing Mother’s fraud argument:

Mother claimed Father committed multiple fraudulent acts. He coerced her into signing the agreed order and modified parenting plan against her will. Then he filed false allegations in the Tennessee court. So she claimed she was unable to discover his fraud until after the agreed order was final.

The court did not address Mother’s [] argument when it denied the Rule 60 motion. So we vacate the denial of the Rule 60 motion and remand for the court to determine whether the agreed order should be set aside for fraud. While Mother’s additional proof of residency cannot be used to establish that the judgment was void [for lack of subject-matter jurisdiction], it may be considered for other purposes, such as whether Father procured the entry of the agreed order through fraudulent conduct.

Because the trial court failed to consider whether the judgment should be set aside for fraud, the denial of the Rule 60.02 motion was vacated and remanded for further proceedings.

In re Hailey C. (Tennessee Court of Appeals, Middle Section, February 3, 2022).

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