In re I.G.
M2015-01974-COA-R3-JV
| Tenn. Ct. App. | Jan 27, 2017Background
- Mother filed for an ex parte restraining order and modification of the permanent parenting plan; temporary orders issued and Father was personally served at a March 23, 2015 hearing.
- Father did not file a written response to the March 16, 2015 petition; Mother mailed a motion for default judgment (with certificate of service) to Father at 415 Shoshone Place, Murfreesboro (zip code listed in the file as 37130).
- A default hearing was noticed for June 5, 2015; Father did not appear and the juvenile court entered a permanent parenting plan (June 5) and final order (June 18) granting Mother primary residential status, restricted supervised visitation for Father pending drug/alcohol compliance, and attorney’s fees.
- Father’s counsel filed a July 2, 2015 motion to set aside the default judgment, asserting Father had not received the motion for default or notice of the June 5 hearing; Father later retained counsel and appeared for a hearing on the motion.
- The trial court denied relief, finding: (1) mailings were sent to the address on file (zip code 37130), (2) Father had been aware of the proceedings and received other mailings, (3) Father failed to show just cause or excusable neglect.
- Father appealed, arguing the judgment should be vacated due to lack of notice and that the court ruled without hearing his proof; the Court of Appeals affirmed for abuse-of-discretion reasons.
Issues
| Issue | Mother's Argument | Father (M.A.G.)'s Argument | Held |
|---|---|---|---|
| Whether trial court erred in denying motion to set aside default judgment | Mailings (including motion for default and final order) were sent to Father’s address of record (415 Shoshone Pl., zip 37130); Father failed to show just cause or excusable neglect | Father claimed he did not receive the motion for default or notice of the June 5 hearing; on appeal argued mail went to wrong zip code (37130 v. 37128) | Affirmed. Court found service to address of record adequate, Father’s failure to respond was willful, and he did not establish excusable neglect under Tenn. R. Civ. P. 59/60 standards |
| Whether court erred by ruling without hearing Father’s proof of merits | Court heard argument on the motion and considered Father’s filings; no showing he informed court he would testify or proffered omitted evidence | Father contends the court ruled immediately and anticipated his testimony; says merits proof was not heard | Affirmed. Issue raised for first time on appeal; no record show notice to trial court of intent to testify or need for additional proof |
Key Cases Cited
- Pryor v. Rivergate Meadows Apt. Assocs. Ltd. P’ship, 338 S.W.3d 882 (Tenn. Ct. App. 2009) (explains interplay of Tenn. R. Civ. P. 59 and Rule 60 standards and relief for mistake/inadvertence/excusable neglect)
- Kirk v. Kirk, 447 S.W.3d 861 (Tenn. Ct. App. 2013) (motion to set aside default reviewed for abuse of discretion)
- Discover Bank v. Morgan, 363 S.W.3d 479 (Tenn. 2012) (willfulness inquiry bars relief for excusable neglect if defaulting party acted willfully)
- Reynolds v. Battles, 108 S.W.3d 249 (Tenn. Ct. App. 2003) (certificate of service creates rebuttable presumption of receipt; pro se parties must keep court apprised of address)
- Whitaker v. Whirlpool Corp., 32 S.W.3d 222 (Tenn. Ct. App. 2000) (pro se litigants are held to same procedural requirements as represented parties)