                                                                                                      01/27/2017




                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
                            Assigned on Briefs December 2, 2016

                                             IN RE I.G.1

                 Appeal from the Juvenile Court for Rutherford County
                     No. 5908C Donna Scott Davenport, Judge


                               No. M2015-01974-COA-R3-JV
                           _________________________________


This appeal pertains to an effort to set aside a default judgment. M.V. (Mother) filed a
petition seeking a restraining order against M.A.G. (Father) and modification of their
permanent parenting plan. Father was served with Mother’s petition. He did not file a
response. Mother later filed a motion for a default judgment and mailed the same to
Father. He did not respond or attend the noticed hearing. At the hearing, the trial court
granted Mother’s proffered permanent parenting plan and awarded her attorney’s fees.
The court mailed the final judgment to Father. Father then moved to set aside the
judgment, claiming, in part, that he had not received Mother’s motion for default. The
trial court denied his request after finding that the motion for default was mailed to
Father’s address on file with the court and that Father had not asserted just cause as to
why the final judgment should be set aside. Finding no abuse of discretion, we affirm.

        Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court
                             Affirmed; Case Remanded

CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which RICHARD H.
DINKINS and ARNOLD B. GOLDIN, JJ., joined.

Thomas H. Bray, Murfreesboro, Tennessee, for the appellant, M.A.G.

Michelle Blaylock-Howser, Murfreesboro, Tennessee, for the appellee, M.V.




        1
          To preserve the anonymity in cases involving a minor child, we abbreviate the name of the child
and any related individuals. In re Alysia M.S., No. M2011-02008-COA-R3-JV, 2013 WL 1501710, at
*1, n.1 (Tenn. Ct. App., filed Apr. 11, 2013).
                                       OPINION

                                           I.

       Mother and Father have one child together, I.G., who was born in March 2005.
The parents first began litigation involving support and custody of the child in 2007. In
April 2013, Mother filed a petition for an ex parte restraining order and modification of
their parenting schedule. Mother asserted that Father, who had recently been convicted
of reckless aggravated assault, had threatened her. At that time, she was preparing to
relocate to Texas for her work. The parties entered a permanent parenting plan by agreed
order that designated Mother as the primary residential parent and granted Father
seventy-four days of parenting time. On March 16, 2015, Mother again filed a petition
for an immediate ex parte restraining order and modification of the permanent parenting
plan. This time she sought modification because she was preparing to return to
Tennessee and because Father had incurred criminal charges for illegal drugs since the
2013 order. She also asserted Father exhibited “increasingly threatening . . . and
addictive behaviors.”

       Mother’s counsel filed an affidavit of reasonable efforts asserting that she
attempted to notify Father of the petition by telephone. A temporary ex parte restraining
order was entered on March 16, 2015, barring Father “from coming about or contacting”
Mother or the child. The order also stated that a hearing was set for March 23, 2015.
Through a private process server, Mother attempted to serve Father on March 20, 2015 at
his home, 415 Shoshone Place, Murfreesboro, Tennessee. The process server made
several attempts before concluding Father was evading service. He taped the notice of
service to the front door of Father’s residence. Father appeared at the March 23 hearing,
where he proceeded without counsel. He was personally served with process at the
hearing. The trial court granted Father visitation with the child so long as the child’s
paternal grandmother was present to supervise. A temporary order was entered April 8,
2015, and mailed to Father at 415 Shoshone Place, Murfreesboro, Tennessee 37130.

       Father did not file a response to Mother’s March 16, 2015 petition. On April 27,
2015, Mother filed a motion for default judgment. The motion included a certificate of
service, indicating it was mailed to Father at 415 Shoshone Place, Murfreesboro,
Tennessee 37130. The motion also gave notice that a hearing would occur on June 5,
2015. Father did not respond or attend the June 5 hearing. Through a final order entered
June 18, 2015, the trial court found the parenting plan attached to Mother’s petition to
modify serves the best interests of the child. The parenting plan granted Father seventy-
three days of parenting time and again designated Mother as the child’s primary
residential parent. The plan added the following restrictions on Father’s visitation:

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             All visits are to be supervised by paternal grandmother and/or
             paternal grandfather until Father takes an alcohol and drug
             assessment and provides same to Mother and until Father has
             successfully passed two (2) consecutive random drug screens
             requested by Mother. Mother can request up to three (3)
             random 90 day hair follicle tests per year at Father’s expense.
             Once Father has completed the alcohol and drug assessment
             and followed all recommendations and has passed two (2)
             consecutive drug screens requested by Mother, Father may
             have unsupervised visitation with the minor child. In the
             event Father demonstrates insobriety thereafter, his parenting
             time shall cease pending further orders of the court.

             Once Father has attained unsupervised visitation: Father must
             maintain a residence without roommates and one that has a
             bed/bedroom designated for the minor child. If Father cannot
             provide same, then the parenting shall take place at the
             paternal grandmother’s residence.

(Emphasis in original omitted.) In the June 18 order, the court awarded Mother $2,620 in
attorney’s fees and costs, in accordance with the amount requested in the affidavit of
reasonable attorney’s fees that she had filed June 11. The order was mailed to Father’s
same address – 415 Shoshone Place, Murfreesboro, Tennessee 37130.

       On July 2, 2015, counsel for Father filed a notice of appearance and a motion to
set aside default judgment. In his motion, Father asserted that he had not received
Mother’s motion for default and had no notice of the June 5 hearing. In the same motion,
he verified that his address was 415 Shoshone Place, Murfreesboro, Tennessee 37130 and
had not changed during the proceedings. After a subsequent hearing in which Father was
represented by counsel, the court denied his motion, stating:

             Father was fully aware of the court proceedings pending
             against him as he had attended the hearing on the Temporary
             Restraining Order, was advised to get counsel, and has failed
             to answer the Complaint in the time prescribed by law. The
             Motion for Default was mailed to the same address listed for
             [Father] in the file. There has been no change of address for
             . . . Father, and he received the order of default. The court



                                           3
             finds that the [Father] has failed to state a just cause as to why
             the Motion for Default should be set aside.

Father appeals. He asks this Court to vacate the judgment and remand to the juvenile
court for a trial on the merits.

                                             II.

      Father presents two issues for review, which we repeat verbatim from his brief:

             Whether the trial court erred in denying [Father]’s Motion to
             Set Aside Default Judgment.

             Whether the trial court erred in ruling on [Father’s] Motion to
             Set Aside Default Judgment without hearing proof as to the
             merits of his claim.

(Paragraph numbering in original omitted.)

                                             III.

       The trial court entered the permanent parenting plan on June 5, 2015 and a final
order on June 18, 2015. Father filed a “Motion to Set Aside Default Judgment” on July
2, 2015. In his brief, Father argues the applicability of Tenn. R. Civ. P. 60.02. His focus
on that rule is not correct. Since the motion was filed before the order became final, it
should be deemed a motion to alter or amend the judgment under Tenn. R. Civ. P. 59.04.
Pryor v. Rivergate Meadows Apt. Assocs. Ltd. P’ship, 338 S.W.3d 882, 885 (Tenn. Ct.
App. 2009) (citing Tenn. Dep’t of Human Servs. v. Barbee, 689 S.W.2d 863, 866 (Tenn.
1985)). In Pryor, we said the following:

              . . . Rule 59 can provide relief from a judgment due to
             mistake, inadvertence, surprise, or excusable neglect.
             Henson, 674 S.W.2d at 310. Whether brought under Rule 59
             or Rule 60, the standard for reviewing the motion is the same
             because of Rule 55.02. Estate of Vanleer v. Harakas, No.
             M2001-00687-COA-R3-CV, 2002 WL 32332191, at *4 n. 5
             (Tenn. Ct. App. Dec. 5, 2002)




                                              4
              Tenn. R. Civ. P. 55.02 provides that a default judgment may
              be set aside as provided in Tenn. R. Civ. P. 60.02. Rule 60.02
              provides relief from final judgments 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[.]

Id. (emphasis added). The motion before us is reviewed under the abuse of discretion
standard. Kirk v. Kirk, 447 S.W.3d 861, 870 (Tenn. Ct. App. 2013) (citing Harris v.
Chern, 33 S.W.3d 741, 746 (Tenn. 2000))

       Father asserts the final order should be set aside due to “excusable neglect.” That
ground brings into play three factors: “(1) whether the default was willful; (2) whether
the defendant has a meritorious defense; and (3) whether the non-defaulting party would
be prejudiced if relief were granted.” LeDoux v. Pierce, No. M2003-00671-COA-R3-
CV, 2004 WL 1877357, at *3 (Tenn. Ct. App., filed Aug. 20, 2004) (citing Henry, 104
S.W.3d at 481). The movant bears the burden to prove these factors. Lavonda Kay
Cable v. Lowe’s of Johnson City, Inc., No. E2000-01075-COA-R3-CV, 2001 WL
256159, at *2 (Tenn. Ct. App., filed Mar. 15, 2001) (citing Travis v. City of
Murfreesboro, 686 S.W.2d 68 (Tenn. 1985)). However, it is not required for a movant to
assert a meritorious defense if the default was obtained in a way that violated the rules of
civil procedure. Reynolds v. Battles, 108 S.W.3d 249, 253 (Tenn. Ct. App. 2003)
(quoting Churney v. Churney, No. 02A01-9211-CV-00326, 1993 WL 273891 at *2
(Tenn. Ct. App., filed July 22, 1993)). “A trial court should grant . . . relief on a default
judgment ‘when the plaintiff has failed to comply with required procedural safeguards.’”
Jenkins v. McClannahan, No. M2010-02061-COA-R3-CV, 2012 WL 1070128, at *2
(Tenn. Ct. App., filed Mar. 28, 2012) (quoting Nelson v. Simpson, 826 S.W.2d 483, 486
(Tenn. Ct. App. 1991).

        Father argues that his conduct was not willful. First, he states that he intended to
hire counsel and file the appropriate pleadings, but proceeded pro se “while gathering the
money to retain counsel.” He says that without formal legal training, he did not know to
file a responsive pleading within thirty days of being served. This argument is without
merit. It is well established that “[p]ro se litigants are not excused from complying with
the same substantive and procedural requirements that other represented parties must
adhere to.” Whitaker v. Whirlpool Corp., 32 S.W.3d 222, 227 (Tenn. Ct. App. 2000)
(internal citations and italics omitted); see also Edmundson v. Pratt, 945 S.W.2d 754,
755 (Tenn. Ct. App. 1996). Further, he was given an alias summons at the March 23,

                                             5
2015 hearing that expressly stated he had thirty days to file a defense or “judgment by
default can be rendered against you for the relief sought in the complaint.”

        Second, Father maintains that, “through no fault of his own,” he never received the
motion for default judgment and had no knowledge of the June 5, 2015 hearing. At the
hearing on his motion to set aside, Father’s counsel stated there was “no reason” Father
had not received the motion. Now, for the first time on appeal, Father asserts that the
motion for default was sent to the wrong address, or rather, the wrong zip code.
Throughout the recent litigation, Mother and the court mailed items to Father at 415
Shoshone Place, Murfreesboro, Tennessee 37130, as indicated by the corresponding
certificates of service. See McBride v. Webb, No. M2006-01631-COA-R3-CV, 2007 WL
2790681, at *3 (Tenn. Ct. App., filed Sept. 25, 2007) (“A certificate of service is prima
facie evidence that a motion was served in the manner described in the certificate, and
raises a rebuttable presumption that it was received by the person to whom it was sent”).
Father asserts that his zip code is actually 37128. His counsel admits that he “only
became aware of the error when reviewing the record in preparation for the appeal.” He
further admits that he “was not aware of the address issue at the time of the hearing and
failed to raise that issue with the trial court.” On appeal, Father “offers this discrepancy
in zip codes as possible explanation” for why he never received the motion for default.

      We are not persuaded. Under Tenn. R. Civ. P. 55.01,2 “a default judgment is
improper where the defendant was not given notice of the motion for default and the
proposed date of the hearing on [the] same.” Pirkle v. Parker, No. E2002-01751-COA-
R3-CV, 2003 WL 104622, at *2 (Tenn. Ct. App., filed Jan. 13, 2003) (citations omitted).
        2
            Tenn. R. Civ. P. 55.01 states, in part:

                   When 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, judgment by default
                   may be entered as follows:

                   The party entitled to a judgment by default shall apply to the court.
                   Except for cases where service was properly made by publication, all
                   parties against whom a default judgment is sought shall be served with a
                   written notice of the application at least five days before the hearing on
                   the application, regardless of whether the party has made an appearance
                   in the action. . . .

Further, service on a party “shall be made by delivering to him or her a copy of the document to be
served, or by mailing it to such person’s last known address . . . . Delivery of a copy within this rule
means: handing it to the attorney or to the party; or . . . leaving it at the person’s dwelling house[.]” Tenn.
R. Civ. P. 5.02(1).


                                                       6
However, Father received other materials mailed to him at his address ending in zip code
37130. For example, his counsel specifically told the trial court that Father “received”
the final order – sent via Father’s address ending in zip code 37130 – “in the mail.”

        Further, while a movant may use new evidence as the basis for a motion to set
aside a default judgment, “under either Rule 59 or Rule 60.02, [the movant] must show
that ‘the new evidence was not known to the moving party prior to or during trial and that
it could not have been known to him through exercise of reasonable diligence.’ ” Pryor,
338 S.W.3d at 887 (quoting Seay v. City of Knoxville, 654 S.W.2d 397, 399 (Tenn. Ct.
App. 1983)). The zip code error would have been easily discoverable. The record on
appeal dates back to 2007. Father states that it “contains numerous instances” of mail
being sent from Mother and the trial court to Father’s address ending in zip code 37130.
Notably, Father was handed an alias summons on March 23, 2015 that listed his address
as ending in zip code 37130. He could have identified and corrected the error, but did
not. A pro se litigant has a duty to keep his or her address current with the court. See
Reynolds, 108 S.W.3d at 251 (holding, in part, that a pro se litigant who relocates during
the course of litigation is “encumbered with the responsibility of notifying the clerk of the
court with his new address”); see also Jenkins, 2012 WL 1070128, at *2 (holding, in
part, “Father had an affirmative duty . . . to notify Mother and the court of the change of
his address”). The trial court found Mother mailed the motion for default judgment “to
the same address listed for [Father] in the file.” Challenging that finding, Father states
that two documents from their earlier litigation – a summons filed by Mother in 2012 and
an order of recusal filed by a magistrate in 2013 – were sent to him at his address ending
in zip code 37128. However, Father himself told the court he lived at zip code 37130 in
his motion to set aside the default judgment, stating“[t]he Movant has lived at 415
Shoshone Place, Murfreesboro, Tennessee 37130 throughout these proceedings and has
not changed his address.” If a litigant uses an address as his address of record and has
received mail at that address, he is estopped from denying that it is the appropriate
address for notice purposes. Reynolds, 108 S.W.3d at 252. Throughout the current
litigation, Mother and the court listed Father’s address as ending in zip code 37130.
Father had knowledge of that. He had a duty to notify the court of his correct address.

       Finally, the zip code error was not part of Father’s motion to set aside the default
judgment at trial. As described above, Father’s motion to set aside confirmed his address
as ending in zip code 37130. At the subsequent hearing, Father’s counsel stated,
“There’s no reason for [Father] not to receive [the motion for default judgment] . . . but
he didn’t.” He also stated at the same hearing that the certificate of service indicated the
motion for default was sent to Father’s correct address. Father did not raise the zip code
issue before the trial court. Instead, he asserted the opposite. “[I]ssues raised for the first
time on appeal are waived.” Dye v. Witco Corp., 216 S.W.3d 317, 321 (Tenn. 2007).

                                              7
       The trial court found Father failed to file a timely response to Mother’s petition,
despite being “fully aware” of the court proceedings. “When a defendant fails to answer
a complaint, the plaintiff may obtain a default judgment without a hearing on the merits.”
Henry, 104 S.W.3d at 481. Father offered the trial court no explanation for his failure to
receive or respond to the motion for default. “‘[C]onduct that is flagrant and
unexplained’ are characteristics of willful conduct.” In re Justin A.H., No. M2013-
00292-COA-R3-CV, 2014 WL 3058439, at *14 (Tenn. Ct. App., filed June 7, 2014),
appeal denied (Nov. 19, 2014) (citing Discover Bank v. Morgan, 363 S.W.3d 479, 493
(Tenn. 2012)). Further, a defendant acts willfully if he reads the summons and does
.nothing to respond to the complaint as directed by the summons. McBride, 2007 WL
2790681, at *3. For these reasons, we find Father’s failure to respond was willful.
Willfulness is a “threshold inquiry” to determine whether relief from a judgment is
proper for “excusable neglect.” Discover Bank, 363 S.W.3d at 493. “If the court finds
that the defaulting party has acted willfully, the judgment cannot be set aside on
‘excusable neglect’ grounds, and the court need not consider the other factors.” Id. at
494. We hold that Father failed to establish grounds for relief under Tenn. R. Civ. P.
59.04. The trial court did not abuse its discretion in declining Father’s motion.

                                             IV.

        Father also asks us to consider “[w]hether the trial court erred in ruling on [his]
[m]otion to [s]et [a]side [d]efault [j]udgment without hearing proof as to the merits of his
claim.” The trial court heard Father’s motion August 24, 2015. Father asserts that the
trial court judge “ruled on the motion immediately following argument of counsel” but
that “it was anticipated that [Father] would testify[.]” Father cites no law that would
support his position that the trial court erred in ruling on his motion after argument.
Additionally, Father has failed to establish that the trial court was made aware of his
intention to testify or that he raised this issue before the trial court. In his brief, he does
not cite to any such instance in the record. We find this issue also has been raised for the
first time on appeal and, therefore, is waived. Dye, 216 S.W.3d at 321.

                                              V.

       The judgment of the trial court is affirmed. Costs on appeal are assessed to the
appellant, M.A.G. The case is remanded for the collection of costs and enforcement of
the permanent parenting plan entered June 5, 2015 and final order entered June 18, 2015.


                                                     _______________________________
                                                     CHARLES D. SUSANO, JR., JUDGE

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