                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                        Assigned on Briefs November 15, 2010

                   TAMMY SUE FARLEY v. RICKY FARLEY

               Appeal from the Chancery Court for Cheatham County
                       No. 14413   George C. Sexton, Judge


              No. M2010-01120-COA-R3-CV - Filed December 17, 2010


Wife filed a complaint for divorce. Husband did not file an answer. Wife sought and
received a default judgment. Husband filed a motion to set aside the default judgment based
on excusable neglect as a result of depression. The trial court denied the motion. We affirm.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed

A NDY D. B ENNETT, J., delivered the opinion of the Court, in which P ATRICIA J. C OTTRELL,
P.J., M.S., and R ICHARD H. D INKINS, J., joined.

Melanie Totty Cagle, Centerville, Tennessee, for the appellant, Ricky Farley.

Jerry Wayne Hamblin, Ashland City, Tennessee, for the appellee, Tammy Sue Farley.

                                        OPINION

        Tammy Sue Farley (“Wife”) filed for divorce from Ricky Farley (“Husband”) on
October 8, 2009, after ten and one-half years of marriage. Husband was served on October
10. On November 16, Wife filed a motion for a default judgment, stating that more than
thirty days had passed since service and Husband had not filed an answer or otherwise
defended the suit. The motion indicated that it would be heard on December 7, 2009. It was
sent to Husband, who acknowledged receiving it.

       Husband appeared at the hearing. His request for a court-appointed attorney was
denied and he represented himself pro se. According to the trial court’s order, Wife and
other witnesses testified at the hearing in the presence of Husband. The court granted the
divorce to Wife, divided the marital assets and awarded Husband and Wife their individual
property. The order was entered December 22, 2009.
       On January 21, 2010, husband filed a motion to set aside the default judgment,
pursuant to Tenn. R. Civ. P. 60.02, based on excusable neglect and a meritorious defense.
At a hearing on April 5, 2010, Husband and his clinical psychologist testified. The trial court
denied the motion, stating that Husband knew what he was doing, and even if he had filed
an answer, the outcome would probably not have been any different. Husband appealed.

       The party seeking to set aside a default judgment has the burden of showing
entitlement to relief. Tenn. Dept. of Human Servs. v. Barbee, 689 S.W.2d 863, 866 (Tenn.
1985); Walker v. Baker, 738 S.W.2d 194, 196 (Tenn. Ct. App. 1987). The appropriate
standard of review with respect to a trial court’s decision to grant or deny a motion to set
aside a default judgement is the abuse of discretion standard. Henry v. Goins, 104 S.W.3d
475, 479 (Tenn. 2003). Under this standard, the appellate court does not substitute its
judgment for that of the trial court. Id. The appellate court will find an abuse of discretion
only where the trial court “applie[d] an incorrect legal standard or reache[d] a decision which
is against logic or reasoning and which causes an injustice to the complaining party.” Doe
1 ex rel. Doe 1 v. Roman Catholic Diocese of Nashville, 154 S.W.3d 22, 42 (Tenn. 2005).

      Husband represented himself at the December hearing. Therefore, we must be
mindful of the following principles regarding pro se litigants:

               Parties who decide to represent themselves are entitled to fair and equal
       treatment by the courts. The courts should take into account that many pro se
       litigants have no legal training and little familiarity with the judicial system.
       However, the courts must also be mindful of the boundary between fairness to
       a pro se litigant and unfairness to the pro se litigant’s adversary. Thus, the
       courts must not excuse pro se litigants from complying with the same
       substantive and procedural rules that represented parties are expected to
       observe.

Hessmer v. Hessmer, 138 S.W.3d 901, 903 (Tenn. Ct. App. 2003) (citations omitted).

      Husband seeks to have the divorce decree set aside due to excusable neglect. When
examining Husband’s claim of excusable neglect, we consider the following concepts:

       [A] party’s failure to meet a deadline may have causes ranging from forces
       beyond its control to forces within its control. . . . The former will almost
       always substantiate a claim of excusable neglect; the latter will not. However,
       neglect extends to more than just acts beyond a party’s control and intentional
       acts. It encompasses “simple faultless omissions to act and, more commonly,
       omissions caused by carelessness.”

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Williams v. Baptist Mem’l Hosp., 193 S.W.3d 545, 551 (Tenn. 2006) (quoting State ex rel.
Sizemore v. United Physicians Ins. Risk Retention Group, 56 S.W.3d 557, 567 (Tenn. Ct.
App. 2001) (quoting Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380,
388 (1993))).

        The failure of Husband to file an answer to Wife’s divorce complaint was negligent.
Not all negligence may be forgiven; otherwise, the excusable portion of the excusable neglect
requirement in Tenn. R. Civ. P. 60.02 would be nullified. Sizemore, 56 S.W.3d at 567. The
determination of whether the failure to file an answer is excusable is an equitable
determination in which all the relevant circumstances must be considered. Id.

        Husband claims the failure to file the answer is excusable because of his depression.
The clinical psychologist, Dr. Gale, testified that based on the medical records, “I don’t think
he was able to understand the nature of the proceedings,” and that Husband was “mentally
compromised.” Yet, the evidence showed that after he was served with the complaint,
Husband consulted a friend, an attorney in private practice, and Legal Services. He
understood that Wife had filed a divorce proceeding, and after service of the motion for
default, he understood that there would be a hearing on December 7, 2009. Husband testified
at the April 2010 hearing that he did not feel incompetent but that he did not understand the
procedures and did not have enough money to hire a lawyer at the time. He attended the
December 2009 hearing and acted competently. The trial court found that Husband “knew
exactly what was going on.”

       The trial court observed Husband at the December 2009 hearing. The court witnessed
Husband’s demeanor and actions. We do not find the trial court’s denial of the motion to set
aside the judgment to be an abuse of discretion.

       Since we find that the trial court’s decision that “there was no excusable neglect in
this case” is not an abuse of discretion, we need not consider Husband’s claims of the
existence of a meritorious claim or Husband’s analysis of prejudice to the non-defaulting
party as these are merely factors to consider when evaluating the justifications for invoking
Rule 60.02. Barbee, 689 S.W.2d at 866.

       The judgment of the trial court is affirmed. Costs of appeal are assessed against the
appellant, Ricky Farley, for which execution may issue.


                                                        ______________________________
                                                             ANDY D. BENNETT, JUDGE



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