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Winning Brief on PostJudgment Relief and a Motion to Amend the Trial Court Judgment

STATEMENT OF FACTS.The appellant has filed a Statement of Evidence to reiterate the lack of a factual basis for the trial court's decision [R. 62] to incarcerate the defendant-appellant and that she was capable of paying a $1,000 purge clause. The Attorney General correctly notes that the trial court approved the appellant's affidavit of indigency on July 9, 1998 [R. 37-39]. The trial court did not raise any objection to the affidavit of indigency or question its validity; the trial court ratified the contents of the affidavit by appointing counsel.

[R. 37-39]. The trial court entered no finding that the appellant had access to $1,000.On December 17, 1998, the Attorney General correctly notes that the trial court approved the appellant's second affidavit of indigency. The trial court entered no finding that the appellant had access to $1,000 at the time it approved the affidavit. The trial court ratified the contents of the affidavit by appointing counsel to represent the indigent defendant-appellant.

[R. 56-58].The trial court's order of incarceration entered on Feb. 4, 1999 [R. 62] failed to state under what statute the defendant-appellant's incarceration was authorized, failed to state whether the contempt was civil or criminal, and contained no statement of any evidence whatsoever that contradicted the appellant's prior affidavits of indigency or otherwise justified the $1,000 purge clause amount.

[R. 61-62].The Attorney General correctly notes that on March 2, 1999, the trial court received a copy of the appellant's "Second Petition to Vacate and Modify the Court's Orders" within 30 days of its order of Feb. 4, 1999, from which relief was sought by that Second Petition. [R.

66-68] The Attorney General correctly notes that the Second Petition contained a handwritten notation on the Second Petition indicated that the Tenn. R. of Juv. Proc. required a hearing on that petition within 30 days.

[R. 66]. However, the Attorney General failed to evince the fact that the trial court chose to disregard the 30-day hearing requirements of Tenn.

R. of Juv. Proc., Rule 34 e(1) [entire Rule 34 printed at pp.

9-10 of the Appellant's Brief] and assigned the petition to be heard at its convenience. Despite repeated requests in March 1999 from appellant's counsel that the court hear the Second Petition in 30 days, the trial court chose to disregard the Tennessee Rules of Juvenile Procedure.On June 3, 1999, the trial court received another affidavit of indigency from the appellant, which it approved and ratified by appointing counsel for the appellant's appeal to this court. [R. 96-97, 99]. The trial court entered no findings that the appellant had access to $1,000 at the time of it ratified the contents of the affidavit of indigency.

[R. 96-97, 99].All three affidavits of indigency in this case present essentially the same economic circumstances and sources of income for the appellant.

All three affidavits of indigency reflect the fact that the appellant had access to very little money at all and certainly did not have access to $1,000 at any time in the period Sept. 10, 1998 (when the first of three affidavits of indigency were filed) to June 3, 1999 (when the last of three affidavits of indigency were filed). [R.

37-39, 56-58, 96-97].In September 1999, the appellant Gwen Knox entered the Oak Ridge hospital for surgery, and when she returned home, she learned that an arsonist had burned her trailer home to the ground. She lost what few items of personal property she owned (clothes, furniture, etc.) in that fire. She remains in impoverished circumstances reflected by her last affidavit of indigency in this matter [R.

96-97] and is seeking public housing assistance. She continues to suffer from the trial court's revocation of her driver's license. [R. 62].SUMMARY OF THE ARGUMENT.The Attorney General essentially restates the same arguments in his brief that he made in his failed Motion to Dismiss in this matter.

The appellant's reply will necessarily repeat some of the same arguments contained in her Opposition to that motion.The Attorney General claims that the appellant has "misapprehended" the distinction between mistake and legal error. But in fact, the distinctions in this case turn on the difference between mistake in objective, verifiable facts versus mistakes in interpretation of the law versus a mistake about the existence of contradictory case law authority. The central issue in this case concerns a single objective fact: whether the appellant, Gwen Knox, had access to $1,000 to secure her own release from jail.Second, the Attorney General argues that the appeal is untimely. The appellant responds that Rule 59.

04 of the Tennessee Rules of Civil Procedure provides authority for the submission of a Second Petition to Modify the Court's Orders, and that provision would toll or extend the period required to file an appeal. The Attorney General even concedes that a Rule 59.04 Motion would have that effect. The appellant is not to blame for the trial court's decision to hear that petition/motion more than 60 days after it was filed, rather than within 30 days as required by the Tenn. R.

of Juv. Proc. Timely notice of appeal was filed within 8 judicial days [R. 98] of the trial court's final order dismissing that petition entered on May 21, 1999. [R.

95].Third, the Attorney General claims that the absence of evidence in this case supports the trial court's decision. To the contrary, the record in this case comprises three affidavits of indigency filed by the appellant, and those affidavits strongly support the appellant's claims. The appellant has filed a Statement of the Evidence concurrently with this Reply Brief, but it merely restates the absence of any other evidence already identified in the appellant's Brief and the appellant's Opposition to the Motion to Dismiss.ARGUMENT.I.



Rule 59.04 of the Tennessee Rules of Civil Procedure Specifically Tolls the Period for Filing an Appeal, and the relief sought by the Appellant's Second Petition Comes Within the Purview of Rule 59.04.Tenn. Rule of Civ. Procedure Rule 59.

04 provides for post-judgment relief by authorizing parties to move for an order that would alter or amend judgment. The Attorney General concedes that a motion to alter or amend judgment is one of the four motions that automatically extends the 30-day period for filing an appeal. "The thirty day time period may be extended by filing one of only four motions filed under the Tennessee Rules of Civil Procedure: a Rule 50.02 motion for a directed verdict, a Rule 52.02 motion to amend or make additional findings of fact, a Rule 59.02 motion for a new trial, and a Rule 59.

04 motion to alter or amend the judgment." Attorney General's Motion to Dismiss the Appeal submitted on Aug. 17, 1999, at page 4.The appellant's second petition [R.

67-86] was captioned as a petition to vacate and modify the court's order of judgement entered on Feb. 4, 1999. The word "modify" in the appellant's caption of her second petition means "alter or amend" the judgment/order on Feb.

4, 1999. The relief sought in the petition was to amend the court's finding of a $1,000 purge clause amount, amend the court's revocation of the appellant's driver's license, amend the child support arrearage amount, amend and reduce the appellant's monthly child support obligation consistent with the Tennessee guidelines, etc. That petition comes under the purview of Tenn. R.

Civ. P. 59.04.The Tennessee Supreme Court requires parties who find an error in the trial court's conduct of a hearing to bring that error to the attention of the trial judge.

State v. Mounce, 859 S.W.2d 319, 323 (Tenn. 1993).

Otherwise, there will be needless appeals clogging up the Court of Appeals docket, when these matters could have been addressed and potentially resolved by the trial courts. The Attorney General is once again asking you to penalize Ms. Knox by dismissing her claim, when she took the extraordinary step of giving the trial court an opportunity to correct its various errors in fact determination contained in its judgment entered on Feb. 4, 1999.

It would be grossly unfair to penalize a party for requesting a trial court to correct its own factual determination error prior to appeal. That would create a terrible public policy for the Court of Appeals to establish and it would violate the spirit, if not the letter, of the law established by our Supreme Court in State v. Mounce, 859 S.W.2d 319, 323 (Tenn.

1993).The court entered an order in this case on Feb. 4, 1999. [R. 61-62]. The defendant-appellant filed her Second Petition [R.

66-86] seeking relief from the Feb. 4, 1999 order approximately 26 days later on March 2, 1999. The Attorney General concedes that the appellant's "time to file a notice of appeal of the February 4, 1999, contempt order ran [until] March 6, 1999.

" (Appellee Brief at 14). Therefore, this petition or motion [R. 66-86] was filed within the 30-day time period for an appeal. Because it fell within the purview of Tenn. R. Civ.

P. 59.04, it tolled or extended the period for filing an appeal until Judge Hess arranged a date at her convenience to hear the petition. Judge Hess entered her decision on that Second Petition on May 21, 1999, [R.

95] and the notice of appeal was filed eight judicial days after that decision [R. 98]. Therefore, the appellant's appeal was timely filed within the 30 days required for an appeal.B. A Party Appearing Before the Anderson County Juvenile Court Has a Reasonable Expectation that the Presiding Judge Would be Familiar with Tenn. R.

Civ. Proc. 59.04.

When the appellant filed her second petition, the State of Tennessee responded by offering a motion to dismiss the second petition at the time of the hearing. Thus, the legal posture of the May 6, 1999 hearing became a motion to dismiss/motion for summary judgment with opposition provided by the arguments contained in the appellant's second petition. When a trial court is facing a summary judgment motion, it is obligated to consider the facts in the case in a light most favorable to the party opposing the dismissal/summary judgment. The trial court is obligated to consider whether the claims, contained in her second petition [R. 66-86], of the party opposing the summary judgment motion were valid or viable not only under the legal theory or statutory authority advanced by that party, but also under any legal theory or statute known to court.

A party to a civil trial in a Tennessee state court, such as the Anderson County Juvenile Court, has a reasonable expectation that the presiding judge would be familiar with the Tennessee Rules of Civil Procedure, specifically Rule 59.04. Therefore, the trial court should have considered whether the appellant's second petition was authorized by Tenn. R. Civ.

P. 59.04, rather than holding no statutory authority allowed the court to hear such a petition. [R.95]. The appellant should have been given an opportunity to argue her claims on their merits, and not denied that opportunity due to the trial court's unfamiliarity with Rule 59.

04.The trial court claimed it lacked any knowledge of any rule of civil procedure or juvenile procedure that would have allowed a petition or motion to amend the court's judgment. Yet trial courts make mistakes and errors just like any fallible human. Obviously, the legislators and judges who drafted the rules of civil procedure for every jurisdiction provided a means for parties to redress errors or mistakes by the court. No trial court judge should consider herself infallible or that once she has determined facts, no one has a right to request amendments or modifications to those factual determinations.

Judge Hess should have heard the appellant's Second Petition under authority of Rule 59.04, but she refused to do so.C.

Rule 34 of Tennessee Rules of Juvenile Procedure Subsumes Elements of Rules 59 and 60 of the Tenn. R. of Civ.

Proc.Rule 34 of the Tenn. R. Juv.

Proc. has been reprinted in the Appellant's Brief at pp. 9-10. Juv. Rule 34 contains the "motion to amend judgment" authority of Tenn. R.

Civ. P. 59 but also some of the post-judgment relief mentioned in Tenn.

R. Civ. P. 60. Much of the appellee's brief is devoted to arguments about the inapplicability of Rule 60 to the appellant's Second Petition [R.

66-86]. But the Attorney General concedes that the primary case law authority upon which he relies, "Brumlow, of course, does not apply directly address a motion filed under Tenn. R. Juv. P.

34, and no such case was found." [Appellee Brief at 14].The appellee's brief argues at length that a petition or motion filed under Rule 34 of the Tenn.

R. Juv. P. would not toll the thirty-day period for filing an appeal. But he goes on to state "It appears that the Rules of Civil Procedure, rather than the Rules of Juvenile Procedure, apply to motions filed in the trial court in this case.

" The appellant accepts the Attorney General's declaration of court procedure law, because it means the Attorney General must concede that the Second Petition [R. 66-86] is governed by the Tenn. Rules of Civil Procedure.The Second Petition [R. 66-86] was captioned "Respondent's Second Petition to Vacate or Modify the Court's Orders.

" That petition or motion best fits within the Tenn. Rules of Civil Procedure under Rule 59.04 (Motions to Alter or Amend Judgments) (1) not under Rule 60.02. And as previously mentioned, the Attorney General has already conceded that a Rule 59.04 Motion is one of four motions that automatically extends the period for filing an appeal.

("If one of the listed motions is timely filed, the time to file an appeal runs from the entry of the order granting or denying the motion." Appellee Brief at 12).Nevertheless, the AG's cavalier attitude towards incarcerating destitute, impoverished, and indigent child support obligors has not escaped the notice of legal commentators. In principle, our country does not tolerate debtor prison regimes for any type of civil debt. In practice, some jurisdictions, such as Tennessee, have reinvented these prison regimes for destitute child support debtors.The demonization of noncustodial parents is used to justify all manner of inhumane treatment.

Sylvia Folk, a noncustodial mother, testified before Congress that she was incarcerated for seventy-two days for nonpayment. The judge candidly acknowledged his awareness that she lacked the money to pay but vowed to, and did, hold her until the ransom was paid by her church. Ms. Folk's treatment is by no means uncommon.

As Family Court Judge L. Mendel Rivers, Jr., explained: "The problem is, chronic non-supporters do not have dependable jobs, nor tax refunds, nor seizable property. That's why they are chronic. . .

. As cruel as it sounds, the one remedy that almost always works is incarceration. We family court judges call it "the magic fountain." .

. . Of course, there is no magic. The money is paid by his mother, or by the second wife, or by some other innocent who perhaps had to liquidate her life's savings.".The theory is that child support is set to meet the child's needs within the limits of the obligor's ability to pay.

When the difference between theory and reality is so great that the required revenue can only be generated through medieval kidnappings for ransom, in the style of Judge Rivers, the system must ultimately collapse of its own weight. This is exactly what is happening.Ronald K.

Henry, Child Support at a Crossroads: When the Real World Intrudes Upon Academics and Advocates, 33 Family Law Quarterly 235, 240 (Spring 1999) (citations omitted). The article goes on to describe deplorable debt collection practices, not unlike those experienced by the appellant in the case at bar.Every year the federal and state governments spend more money on child support enforcement only to report larger caseloads, backlogs, and arrearages. The collection tactics practiced for child support debt are tolerated for no other form of debt in American society, yet after every round of new coercions, we find that the problem has only worsened.

We have delayed the realization that child support obligations imposed on low-income obligors are not sustainable but the truth cannot be suppressed forever. Frontline enforcement workers who begin with zeal their crusade against deadbeats end up reporting that "I just couldn't stand what they were doing to people. I got a call from a homeless shelter and was told that I had put a man and . . . his four children on the street because I had put an enforcement order .

. . for 50% of his income. I was devastated. That was the beginning of the end for me, because I think that was the first time I was in touch with the ramifications of what I was doing.

".Ibid., at 240 - 241, (quoting former Los Angeles deputy district attorney Elisa Baker). That law review article is such a fantastic piece of forward-looking research that the appellant has chosen to reproduce the entire article for this court's consideration and include it in the appendix to this Reply Brief.For more information, please go to web site http://riskmgmt.biz/briefi.


.Dr. Michael A. S. Guth, Ph.

D., J.D., is an attorney at law based in Oak Ridge, Tennessee.

His practice focuses on enabling people to represent themselves pro se without a lawyer (and thereby save on legal fees), as well as full representation for appellate practice. One area his work has particularly emphasized is child support defense and elimination of the unconstitutional debtor prisons that now saturate our court jurisdictions across the nation. For more information, see URL http://riskmgmt.biz/prose.htm and http://riskmgmt.


By: Dr. Michael A. S. Guth

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