            IN THE COURT OF APPEALS OF TENNESSEE
                       AT NASHVILLE


CHERYL A. WEST,                      )
                                     )
      Plaintiff/Appellee,            )          Appeal No.
                                     )          M1998-00725-COA-R3-CV
v.                                   )
                                     )          Warren County Circuit
DANNY LAMAR WEST,                    )          No. 9307

      Defendant/Appellant.
                                     )
                                     )
                                     )
                                                      FILED
                                                       January 27, 2000
                  APPEAL FROM THE CIRCUIT COURT
                       FOR WARREN COUNTY Cecil Crowson, Jr.
                                          Appellate Court Clerk
                    AT MCMINNVILLE, TENNESSEE

        THE HONORABLE CHARLES D. HASTON, PRESIDING



BERNARD K. SMITH
P.O. BOX 490
MCMINNVILLE, TENNESSEE 37111

THOMAS F. BLOOM
500 CHURCH STREET, 5TH FLOOR
NASHVILLE, TENNESSEE 37219

ATTORNEYS FOR PLAINTIFF/APPELLEE


ROBERT W. NEWMAN
GALLIGAN & NEWMAN
309 WEST MAIN STREET
MCMINNVILLE, TENNESSEE 37110

ATTORNEY FOR DEFENDANT/APPELLANT


                      VACATED AND REMANDED

                                           PATRICIA J. COTTRELL, JUDGE

CONCUR:

CANTRELL, P. J.
KOCH, J.



                              OPINION
         In this divorce case, Danny Lamar West (“Husband”) appeals the

trial court’s decision to award post-divorce alimony to his former wife, Cheryl

Ann McPeak West (“Wife”). For the following reasons, we vacate the award
of alimony and remand.1

           The parties were married in November 1993. It was the second

marriage for both and no children were born of the union. Husband had a

minor child from his previous marriage. In May 1997, the parties separated.

           Wife filed the underlying complaint for divorce in August 1997.

The stated grounds for the divorce were inappropriate marital conduct and

irreconcilable differences. As relief, the complaint prayed for an equitable

division of property and attorney fees. It also sought support pendente lite, or

alternatively, that Husband pay the parties’ debts pending a final hearing.

           On August 15, 1997, after a hearing in which Husband appeared pro

se, the trial court entered an order for support pendente lite which required

Husband to pay Wife $100 per week pending the final hearing in the case.

The court also ordered Husband to apply the parties’ income tax refund to

their joint indebtedness of over $40,000. This order was signed by both

parties and Wife’s counsel.

           After Husband failed to answer the complaint, Wife moved for a

default judgment. On November 14, 1997, the trial court entered an order

granting Wife judgment by default. The order stated that Husband had

personally appeared at the August 15 hearing and had entered into an agreed

order for temporary support but that Husband had failed to answer the

complaint or otherwise defend as provided by law.

           After a December 16, 1997 hearing which Husband likewise did not

attend, the trial court entered a final decree on January 2, 1998. The court

awarded Wife an absolute divorce, the parties’ home, all personal property in

her possession, a 1995 Astro Van, a 1983 Chevy S10 pick-up, and a 1988

Chris Craft boat. Wife was ordered to assume and continue to pay the

approximately $43,000 in debts which arose during the marriage. The parties

had incurred the debts to purchase the van, the S10, the boat and their home.


   1
     This appeal is before the court on the technical record and Husband’s statement of the
evidence. Tenn. R. App. P. 24(c).

                                           -2-
The trial court ordered Husband to pay $2,000 on the debt as an element of

alimony. In addition, it ordered Husband to pay $40,000 in alimony at the

rate of $150 per week and obtain and maintain life insurance on himself at the

face value of $40,000 with Wife as sole beneficiary to insure payment. It also

ordered him to pay Wife $750 in attorney fees. The court permanently

enjoined Husband from calling, contacting, coming around, harassing or

threatening Wife. In addition, it found Husband in contempt for failure to pay

the previously adjudicated pendente lite spousal support which amounted to

$1400. The court ordered that an attachment for contempt be issued and then

set a hearing on the matter.

           After a hearing on January 9, 1998, the trial court found Husband in

contempt for failure to abide by the agreed order for support pendente lite,

again finding an arrearage in the amount of $1,400, which represented

amounts in arrearage from the August 15 order through December 16. The

court gave Husband a month to purge himself of the contempt by making the

payment.

           After a hearing on February 20, the trial court issued another order

on February 27, finding Husband in contempt for failure to pay $2,300 in

support accrued from August 15 to February 20. The court sentenced

Husband to incarceration until he purged himself by payment of that amount.

Husband ultimately paid that amount and was released.

           Wife filed a petition for contempt on April 30, asserting that

Husband had not fully complied with any of the court’s support orders. Wife

maintained, inter alia, that Husband had paid only $468 in alimony payments

since February of 1998.

           On May 21, 1998, Husband’s newly retained counsel filed a motion

to set aside the final decree or, alternatively, to terminate his spousal support

obligation. Husband argued that he could not afford the alimony awarded

because his annual income was only $26,000 and he owed weekly child



                                       -3-
support of $ 90.2 He also asserted that Wife had only requested alimony until

the final hearing on the divorce, not the post-divorce support awarded by the

court.

          On June 10, 1988, after hearings on both filings, the trial court

dismissed Husband’s motion to set aside and again found him in contempt for

failure to make his weekly alimony payments. It also found him in contempt

for failure to obey the court’s January 2 order requiring him to pay $2,000 to a

specified lender. Husband was given thirty (30) days to purge himself of the

contempt by making payments on the note or refinancing. The court

determined that Husband’s arrearage totaled $1,100 and permitted him to

purge the contempt by paying $1,155 by June 26, 1998. While the court

found that Husband had complied with its order to obtain life insurance

naming Wife as beneficiary, it held him in contempt for failure to pay the

previously awarded $750 in attorney fees. Husband appealed.

                                            I.

           Husband argues on appeal that the trial court erred in awarding Wife

the $40,000 in lump sum alimony when she sought only support pendente lite.

He maintains that the sua sponte award, arising in the context of a default

judgment, violated Tenn. R. Civ. P. 54.03, which limits the relief available in

default judgments to that sought in the complaint, and was fundamentally

unfair.

           Tenn. R. Civ. P. 54.03 states:

           A judgment by default shall not be different in kind from
           or exceed in amount that prayed for in the demand for
           judgment. Except as to a party against whom a judgment
           is entered by default, every final judgment shall grant the
           relief to which the party in whose favor it is rendered is
           entitled, even if the party has not demanded such relief in
           his pleadings; but the court shall not give the successful
           party relief, though he may be entitled to it, where the
           propriety of such relief was not litigated and the opposing
           party had no opportunity to assert defenses to such relief.



   2
   Husband’s statement of the evidence states that his weekly child support obligation was
$93.

                                           -4-
“The purpose of the Rule 54.03 requirement is to insure that defendants

receive adequate notice of the claim against them.” Rosche v. Von Holton,

01A01-9012-CH-0046, 1991 WL 74263 at * 3 (Tenn. Ct. App. May 10, 1991)

(No Tenn. R. App. P. 11 application filed). Our Supreme Court has enlarged

upon this statement, citing a treatise discussing the Rule’s federal counterpart:

          The first sentence of Rule 54(c) states that a judgment by
          default is limited to the relief demanded in the complaint.
          The theory of this provision is that once the defending
          party receives the original pleading he should be able to
          decide on the basis of the relief requested whether he
          wants to expend the time, effort, and money necessary to
          defend the action. It would be fundamentally unfair to
          have the complaint lead defendant to believe that only a
          certain type and dimension of relief was being sought and
          then, should he attempt to limit the scope and size of the
          potential judgment against him by not appearing or
          otherwise defaulting, allow the court to give a different
          type of relief or a larger damage award. In a similar vein,
          unless all the parties in interest have appeared and
          voluntarily litigated an issue not within the pleadings, the
          court should consider only those issues presented in the
          pleadings. In sum, then, a default judgment may not
          extend to matters outside the issues raised by the pleadings
          or beyond the scope of the relief demanded.

Qualls v. Qualls, 589 S.W.2d 906, 909-10 (Tenn.1979) (quoting Wright and

Miller, Federal Practice and Procedure, § 2663 at 99-100 (1973)); accord

Holder v. Drake 908 S.W.2d 393, 394-95 (Tenn. 1995).

          “It is a fundamental rule of law that in order to receive relief, a party

must plead it, request it, and prove it in court with the opposing party having

the opportunity to offer proof opposing the items requested.” Lewis v.

Lewis, No. 89-287-II, 1990 WL 14022 at *3 (Tenn. Ct. App. Feb. 16, 1990)

(no Tenn. R. App. P. 11 application filed). To that end, Tenn. Code Ann. §

36-4-106(a) (Supp. 1999) requires divorce complaints to specify “such other

and further relief to which the complainant may think to be entitled” beyond

the divorce itself.

          Wife’s complaint described the relief she sought. The prayers for
relief included:
          (C) That the Court make an equitable division of the
          parties’ property if the parties are unable to agree on said
          division prior to a final hearing in this cause of action;


                                       -5-
         (D) That the court make an equitable division of the
         parties’ debts and obligations if the parties are unable to
         agree on said division prior to a final hearing in this cause
         of action;

         (E) That a [sic] the Court required [sic] to Defendant to
         pay support pendente lite to the Plaintiff, or in the
         alternative, that the Defendant be required to pay any and
         all of the parties’ debts and obligations pending a final
         hearing in this cause of action, and that a hearing be held
         on the 15th day of August 1997, at 10:00 o’clock A.M., for
         the purpose of determining the amount of temporary
         support the Defendant will be required to pay.

The only other mention of support in the complaint was the following:

         Plaintiff avers that she is in need of support pendente lite
         and would hereinafter pray that the Defendant be required
         to pay her temporary alimony, or in the alternative, that the
         Defendant be required to pay the parties’ debts and
         obligations pending a final hearing in this cause of action.
         Further, Plaintiff prays that a hearing be held on the 15th
         day of August 1997, at 10:00 A.M., for the purpose of
         determining the amount of support pendente lite that the
         defendant will be required to pay.

         It is undisputed that Husband attended a hearing on August 15 in

which he agreed to pay support “pending the final hearing of this cause” in

the weekly amount of $100. Husband did not attend the hearing on Wife’s

motion for default judgment. Nor did he attend the subsequent hearing in

which the court reached the merits of the complaint, awarded Wife the bulk of

the marital property and ordered Husband to pay $40,000 in alimony.

         Nothing in the record shows that Husband received notice that Wife

sought post-divorce alimony. Compare Jones v. Jones, No. 01A01-9806-CV-

00298, 1999 WL 248735 at * 2 (Tenn. Ct. App. Apr. 29, 1999)(no Tenn. R.

App. P. 11 application filed). Nowhere in the complaint was this monetary

relief sought. Nothing in the language framed in Wife’s pleadings provided

Husband with notice that she desired support beyond the final hearing in the

case. Compare Moore v. Moore, No. 87-92-II, 1988 WL 63498 at * 2 (Tenn.

Ct. App. June 24, 1988) (no Tenn. R. App. P. 11 application filed).

         In Qualls v. Qualls, 589 S.W.2d at 909, our Supreme Court affirmed

the reversal of an award of alimony that was “both different in kind from and

exceeded in amount the relief prayed for in the original complaint” as

                                      -6-
violative of Tenn. R. Civ. P. 54.03. The Court explained that:

           In this State a divorce may be granted without alimony,
           and alimony may be granted without decreeing a divorce,
           there being no necessary or absolute connection between
           divorce and alimony under the statute, Tenn. Code Ann. §
           36-820. Williams v. Williams, 146 Tenn. 38, 236 S.W. 938
           (1921); McBee v. McBee, 48 Tenn. 558 (1870). Therefore,
           a prayer for general relief is not sufficient to support an
           award of alimony in a case in which the judgment is taken
           upon default of the defendant.

Qualls v. Qualls, 589 S.W.2d at 909.

           Wife’s reliance on both Moore v. Moore, 1988 WL 63498 at * 2

and Bulla v. Bulla, No. 01A0109004-CV-00133, 1990 WL 160291 at * 3

(Tenn. Ct. App. Oct. 24, 1990) (Tenn. R. no App. P. 11 application filed), is

misplaced. Neither of those cases involve default judgments; rather they

involve the question of whether an issue was tried by consent of both parties.

Moreover, in Moore, the wife was sufficiently debilitated from schizophrenia

during the duration of the parties’ marriage to be unable to hold a full time

job. Her complaint sought support “until she is able to get straightened out

mentally and secure employment.” Mrs. Moore had also prayed for pendente

lite support and for general relief. Thus, the court found that the record

supported the conclusion that Mr. Moore had notice that his wife was seeking

maintenance and support. See Moore, 1988 WL 63498 at * 2. In contrast,

Wife’s complaint provides no hint of a request for post-divorce alimony.

           In Qualls, the Court granted relief from the judgment pursuant to

Tenn. R. Civ. P. 60.02.3 We believe such relief is appropriate here. As in

   3
    Rule 60.02 provides:
         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. The motion shall be made within a reasonable time,
and for reasons (1) and (2) not more than one year after the judgment, order or proceeding was
entered or taken. A motion under this Rule 60.02 does not affect the finality of a judgment or
suspend its operation, but the court may enter an order suspending the operation of the
judgment upon such terms as to bond and notice as to it shall seem proper pending the hearing
of such motion. This rule does not limit the power of a court to entertain an independent action
to relieve a party from a judgment, order or proceeding, or to set aside a judgment for fraud
upon the court. . . .


                                              -7-
Qualls, we believe it “only just and reasonable that as a condition to awarding

relief . . .under Rule 60.02 the issue of alimony should be reopened in the trial

court” and this action should be remanded to permit Wife to make appropriate

amendments to her complaint praying for alimony, for Husband to file an

answer thereto and for a hearing on the merits of the alimony claim. See

Qualls, 589 S.W.2d at 910-11; Tenn. Code Ann. § 36-5-101(d) (enumerating

the appropriate factors to consider in setting alimony).

                                       II.

         Accordingly, we hold that the default judgment entered by the trial
court was erroneous insofar as it awarded post-divorce periodic payments of
alimony in the absence of a request for such in the complaint. That award is
vacated and this case is remanded for proceedings consistent with this
opinion. Costs of this appeal are to be taxed to Wife for which execution may
issue if necessary.
                                      ________________________________
                                      PATRICIA J. COTTRELL, JUDGE

CONCUR:


_______________________________
BEN H. CANTRELL,
PRESIDING JUDGE, (M. S.)


_______________________________
WILLIAM C. KOCH, JR., JUDGE




                                       -8-
