MATHIVATHANI MOHAN,                       )
                                          )
       Plaintiff/Appellee,                )   Appeal No.
                                          )   01-A-01-9708-CV-00415
v.                                        )
                                          )   Davidson Circuit
RATHNASABAPATHY MOHAN,                    )   No. 96D-373
                                          )
       Defendant/Appellant.               )
                                          )               FILED
                                                           October 9, 1998

                                                         Cecil W. Crowson
                                                        Appellate Court Clerk
                     COURT OF APPEALS OF TENNESSEE


     APPEAL FROM THE CIRCUIT COURT FOR DAVIDSON COUNTY

                             AT NASHVILLE, TENNESSEE


            THE HONORABLE MARIETTA H. SHIPLEY, JUDGE




JERRY L. VANCE
6202 Charlotte Avenue
Nashville, Tennessee 37209-3030
       ATTORNEY FOR PLAINTIFF/APPELLEE



ANDREW M. CATE
Waynick & Cate
211 Donelson Pike, Suite 2
P. O. Box 148058
Nashville, Tennessee 37214
       ATTORNEY FOR DEFENDANT/APPELLANT




                              VACATED AND REMANDED




                                    WALTER W. BUSSART, SPECIAL JUDGE
                                OPINION
          This is an appeal from the final divorce decree of Rathnasabapathy
Mohan ("the Husband") and Mathivathani Mohan ("the Wife") which was
entered by the lower court in December of 1996. The contested divorce action
initiated by the Wife involved issues of custody, visitation, child support,
alimony, classification and division of marital property, and apportionment of
marital debt. This appeal by the Husband emanates from the fact the Husband
was not present when the final hearing took place.


          On December 12, 1996, when the lower court heard this matter, the
Husband was in India. Two weeks before trial, he had moved for a continuance
citing as his reason a family emergency which required overseas travel. The
court denied said motion stating that it was not well taken, and when the
Husband renewed the continuance motion on the date of the final hearing, it was
again denied. In the statement of evidence, the court indicated that said motion
was denied because the Husband had been present at the pre-trial conference
which took place on November 19, 1996 and because the Wife already possessed
her air line ticket for the December 12 hearing. In addition, the court stated that
there were no documents to verify the illness of the Husband's mother.


          At the trial, the only testimony was from the Wife. In the court's
statement of evidence, the Wife's testimony was summarized as follows:
          [She] testified that the [H]usband was living and working in
          the United States at the time of the separation of the parties.
          She had to flee to Colorado to be with her relatives, due to
          his physical and emotional abuse and his failure to help
          support them. She had left about February 28, 1996. She
          stated that there had been little contact with the minor child.
          He had not come to Colorado to visit them pursuant to the
          order of the court. She testified that the child was afraid of
          his father and did not want to go to India, as he enjoyed his
          friends in the United States. She testified that his mother had
          chronic health problems, including diabetes mellitus with
          ischemic heart disease, resulting in periodic hospitalizations.
          She further testified that the [H]usband had allowed the
          house to be foreclosed. They had much expensive furniture
          in the house, but he had allowed all the furnishing also to be
          lost. The [W]ife testified that the [H]usband had told her that
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         the parties' automobile had been totally destroyed in a wreck,
         so she was unsure where the car was. She did not have the
         car, nor the furnishings. She had simply left in February,
         1996, when the abuse got so bad, without anything but her
         and the child's clothing. She testified finally that the
         [H]usband had paid her no child support or alimony.
                As to his income, the [W]ife testified that she could
         identify a 1994 joint income tax return showing a total
         income of $37,261 from her husband's dental income. He
         was capable of being a practicing dentist and earning at least
         this much income. This return was the last and only tax
         return received from [the Husband]. . . . [The Wife ] testified
         that she was just beginning to get some income, but that it
         was difficult to do so in the area where her sister lived.
         Obviously, she had some difficulty with the language and the
         culture. She testified that she needed alimony and child
         support to survive.
                Finally [the Wife ] testified that she would allow
         contact with her son, so long as it could be supervised in
         Colorado. At this point, the court told [the Husband's
         attorney] that [the Husband] would not be allowed to take the
         child out of the United States, until he had established some
         trust relationship with the court such as following the court
         orders and visiting with the child in Colorado for a period of
         time. Since [the Husband] apparently claimed that he was
         not working as a dentist, this should have presented no
         problem.

In addition, the statement of the evidence reveals certain comments by the
Husband's attorney who was present at the hearing. He said that he did not know
exactly how serious the emergency was with the Husband's mother but "that [the
Husband] apparently did not want to return to Tennessee for the court date." He
also stated that he was not sure whether the Husband planned to stay in India or
return to the United States. In the statement of evidence, the court stated that in
rebuttal to the Wife's testimony regarding the Husband's income, his attorney
"presented earnings for the first four months of 1996, but upon realizing that this
would represent a higher income, he withdrew the materials."


          Pursuant to the Final Divorce Decree, the Wife was awarded all marital
property, custody of the parties' minor child, child support in the amount of $493
per month, rehabilitative alimony in the initial amount of $1007 per month and
alimony in solido in the amount of $2000 as part of her attorney fees. Costs of
the cause were assessed against the Husband. Finally, the Husband was granted


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a limited visitation with the child -- one week per year in Colorado or in
Nashville if the Husband lives in Nashville.


         The Husband filed a pro se Motion for New Trial in which he alleged
that he left the country because his mother suffered an acute heart attack and was
hospitalized in India. The court denied the Husband's request. The Husband
then filed a Motion to Supplement the Record which the court granted. The
record was supplemented with Husband's affidavit in which he stated that, at the
time of divorce hearing, he was in India attending to his seventy-one year old
mother who was hospitalized for a two-month period due to a serious heart
condition. In addition, the Husband supplemented the record with a hospital
record which showed that a Mrs. Parvathi stayed at the Aysha Hospital in Madras
from October 25, 1996 until November 2, 1996 for symptoms involving heart
trouble and diabetes. Another supplemented hospital record indicated a second
hospital stay from November 18, 1996 to December 24, 1996. In the Husband's
supplemented affidavit, he stated that he was prejudiced by not being present at
the hearing as the court's property division was inequitable and the court's
scheduled visitation with the parties' child was inadequate.


          On appeal, the Husband has raised one issue: whether the trial court
erred in denying his Motion for New Trial. We review the court's denial for an
abuse of discretion. Esstman v. Boyd, 605 S.W.2d 237, 240 (Tenn. Ct. App.
1979). The Husband argues first that since the only testimony at trial was the
Wife's, the final decree should be treated as a default judgment. He thus asserts
that according to Rule 55.02 of the Tennessee Rules of Civil Procedure, for
good cause shown, the court may set aside a judgment by default in accordance
with Rule 60.02 which provides in pertinent part as follows:
          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; . . . or
          (5) any other reason justifying relief from the operation of
          the judgment.

The Husband notes that the supreme court has cited with approval the distinction
made by the federal courts in applying Rule 60 to default judgments indicating


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that great liberality should be applied in granting Rule 60 Motions in cases of
default judgments since the interests of justice are best served by a trial on the
merits only after a careful study of all relevant evidence. Tennessee Dep't of
Human Servs. v. Barbee, 689 S.W.2d 863, 866 (Tenn. 1985); see Nelson v.
Simpson, 826 S.W.2d 483, 485 (Tenn. Ct. App. 1991) ("The courts should
construe Tenn.R.Civ.P. 60.02's requirements liberally when a party is seeking
relief from a default judgment.")


          Initially, we reject the Husband's characterization of the decision below
as a default judgment. Rule 55.01 of the Tennessee Rules of Civil Procedure
provides that a default judgment may be entered "[w]hen a party against whom
a judgment for affirmative relief is sought has failed to plead or otherwise defend
as provided by these rules and that fact is made to appear by affidavit or
otherwise." The Husband did not fail to plead or defend in this case. The
Husband, through his attorney, filed an answer and counter complaint to the
Wife's complaint for divorce. He filed other motions including a motion to
continue the case in light of an alleged "family emergency." The Husband's
attorney was present at the trial. The statement of evidence included in the
record indicates that the Husband's attorney presented at least some evidence in
rebuttal and argued before the court at the final hearing.


          Thus, the real issue here is whether the lower court erred in denying the
Husband a new trial in light of the fact that he was not present at the final hearing
for the reasons given. The crux of the Husband's argument that the lower court
erred in denying him a new trial is that the court should have granted him the
continuance that his attorney twice requested. He contends that, without his
testimony, the court did not have all the relevant considerations before it at trial.
Moreover, taking care of a sick parent overseas constitutes a justifiable absence
and warrants a continuance.


          From the statement of evidence, we can glean the court's rationale for
denying the Motion for Continuance. As stated, the court first noted that the
motion had been denied because the Husband had been present at the pre-trial
conference and because the Wife already had her airline ticket for the December

                                         -5-
12 hearing.       In addition, the court stated that no documents verified the
Husband's mother's illness, that there was very little at issue, and that the
Husband had not followed prior orders of visitation. Finally, the court stated that
there was very little property at issue due to a foreclosure on the house and that
the information regarding the Husband's income had been presented to the court
at the pretrial conference where the Husband was present.


          As does the grant of a new trial, "[t]he granting or denial of a motion
for a continuance lies in the sound discretion of the court." Blake v. Plus Mark,
Inc., 952 S.W.2d 413, 415 (Tenn. 1997) (citing Moorehead v. State, 409 S.W.2d
357, 358 (Tenn. 1966)). On the record before us, we must conclude that the trial
court abused its discretion in not granting the Husband a continuance. We
cannot agree with the court's assessment that there was little at issue. In the final
hearing, the court had to determine the grounds for divorce, the proper parent to
have custody of the minor child, the appropriate amount of child support and
alimony, the classification and division of marital property and apportionment
of marital debt.
          The law is clear that "in order to show an abuse of discretion, the
plaintiff must show some prejudice or surprise which arises from the trial court's
failure to grant the continuance." Commissioner of Dept. of Transp. v. Hall,
635 S.W.2d 110, 111 (Tenn. 1982) (citing Brady v. State, 584 S.W.2d 245
(Tenn. Crim. App.1979)). The prejudice to the Husband is obvious here. The
Husband's own testimony is no doubt the best evidence he has in this case.
Without benefit of this testimony, the court made a decision which greatly
impacted the Husband's life. The Wife received custody of the parties' child with
the Husband being given extremely minimal visitation. All marital property was
awarded the Wife. She was awarded child support, and alimony and attorneys
fees without consideration of any proof from the Husband himself regarding his
ability to pay.


          Lastly, we dismiss the court's concern about the Wife having already
purchased airline tickets. As the Husband asserts, plane tickets are generally
refundable or transferable and if the Wife's were not, the Court could have
remedied any prejudice to the Wife by requiring the Husband to purchase new

                                         -6-
tickets. While we can understand the court's initial problem with the Husband's
failure to present proof of his mother's illness with his motions for continuance,
the fact is that he did supplement the record with such proof for our review on
appeal. These hospital records verifying his mother's hospital stays along with
the Husband's affidavit are sufficient to convince us on appeal of the veracity of
the Husband's need to be absent.


          In light of the significance of this decision to both parties and of the
prejudice suffered by the Husband at the court's decision not to grant a
continuance and to thereby hold the trial without him, we conclude that the lower
court should have granted the Husband a new trial. We therefore vacate the
judgment of the trial court and remand this case for a re-trial on the merits. The
lower court is directed to make such orders so that the Wife is not financially
prejudiced by the continuance. Costs of this appeal are taxed to the appellee.




________________________________
                                             WALTER W. BUSSART, SPECIAL JUDGE




CONCUR:



_________________________________
WILLIAM C. KOCH, JR., JUDGE


DISSENTING OPINION
BEN H. CANTRELL, JUDGE




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