                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                           Assigned on Briefs August 4, 2014

             JENNIFER SCARLETT ROBBINS GOODMAN V.
              TEMITOPE “MICHAEL” BAMIJI OGUNMOLA
                  Appeal from the Chancery Court for Scott County
                  No. 10387 Hon. Andrew R. Tillman, Chancellor




            No. E2014-00045-COA-R3-CV-FILED-SEPTEMBER 4, 2014


This appeal involves Defendant’s motion to set aside a default judgment entered against him
in a divorce action. The trial court denied the motion. Defendant appeals. We affirm the
decision of the trial court.

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

J OHN W. M CC LARTY, J., delivered the opinion of the Court, in which C HARLES D. S USANO,
J R., C.J. and T HOMAS R. F RIERSON, II, J., joined.

Henry D. Forrester, III, Clinton, Tennessee, for the appellant, Temitope “Michael” Bamiji
Ogunmola.

David D. Noel, Knoxville, Tennessee, for the appellee, Jennifer Scarlett Robbins Goodman.

                                         OPINION

                                    I. BACKGROUND

        Jennifer Scarlett Robbins Goodman (“Plaintiff”) married Temitope “Michael” Bamiji
Ogunmola (“Defendant”) in October 2010. Approximately two years later, Plaintiff filed a
complaint for divorce, alleging that irreconcilable differences had arisen and that Defendant
had been guilty of such inappropriate marital conduct that further cohabitation was unsafe
and improper. Plaintiff alleged that Defendant had deceived her to secure his immigration
status and that she had aided him financially in order to secure his status, believing that he
truly wanted to marry her. She requested the return of her personal property, an equitable
division of the marital property, and reimbursement for her financial investment in the
marriage and lost income as a foster parent as a result of the marriage.

        Plaintiff arranged for service of process through the Tennessee Secretary of State
pursuant to Tennessee Code Annotated section 20-2-115 and Rule 4.05(5) of the Tennessee
Rules of Civil Procedure because Defendant lived in Kentucky. The United States Postal
Service made three attempts to deliver the summons and complaint before returning the
certified mail as “unclaimed” on November 1, 2012. Defendant failed to appear or respond
to the complaint. Plaintiff filed a motion for default judgment on December 20, 2012.
Approximately one month later, the trial court granted Plaintiff’s request for divorce, entered
a default judgment against Defendant in the amount of $11,000, and awarded Plaintiff
attorney fees in the amount of $750.

       Approximately one month later, Defendant filed a motion to set aside the default
judgment entered against him. He alleged that he never received the summons or complaint
for divorce. He stated that his actual address was

       1028 Champion Court
       Apartment A
       Frankfurt, Kentucky 40601

but that the service of process was sent to

       1028 Champion Court
       Frankfurt, Kentucky 40601.

He asserted that Plaintiff knew his valid address and had even signed a lease agreement for
the apartment several months prior to filing her complaint for divorce. He claimed that
Plaintiff purposefully neglected to indicate the apartment designation for the process server
in order to secure a default judgment against him and that any neglect, mistake, or
inadvertance on his part was excusable. He opined that he had a “good and valid defense”
to the allegations contained in the complaint and that the $11,000 judgment was inequitable.

       Defendant attached an affidavit to his motion, alleging that Plaintiff took “everything
except the window blinds” when she left, that he was never served with a copy of the
complaint or notified that he had received certified mail, and that he only learned of the
default judgment when he found a letter from Plaintiff’s attorney in the trash bin by his
mailbox. He explained that the letter did not indicate his apartment number and was likely
thrown in the trash bin by the postal worker. Relative to his defense, Defendant stated,



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           I provided significant financial contribution to the marriage, even providing
           money to [Plaintiff] when I first arrived in America. My money was used to
           pay my immigration attorney. When we filed joint taxes for 2010, [Plaintiff]
           kept all the refund and used it to buy her teenage daughter a car. [Plaintiff]
           volunteered to take “lay off” status from her job as an LPN. [Plaintiff’s] foster
           kids were reunited with their biological family - I had nothing to do with the
           loss of that income. I completed foster parent training for Kentucky parents
           (where I thought we were going to live as a family).

        Plaintiff filed a response to Defendant’s affidavit, in which she alleged that Defendant
refused to move to Tennessee when they married even though she was employed in
Tennessee, that he chose to live with friends instead, that he only procured his own apartment
in Kentucky after she discovered that he was “partying and drinking with other women,” and
that she only lived with him in his apartment for two weeks before she discovered that she
could not trust him. She claimed that she and her attorney spoke with him on two occasions
prior to the hearing and that she maintained the same telephone number until February 2013.
She also included a list of expenses for items she purchased for Defendant, totaling $4,937
and income lost as a foster parent, totaling $6,000.

      Following a hearing, the trial court denied Defendant’s motion to set aside the default
judgment.1 This timely appeal followed.


                                                  II. ISSUES

           We restate the issue raised on appeal by Defendant as follows:

           A. Whether the trial court erred in denying the motion to set aside the default
           judgment.

Plaintiff also raised an issue for our consideration on appeal that we restate as follows:

           B. Whether this court must affirm the trial court’s judgment when Defendant
           failed to include a transcript or statement of the evidence on appeal.




1
    Neither a transcript nor a statement of the evidence was filed for this court’s review.
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                             III. STANDARD OF REVIEW

        We review a trial court’s award or denial of relief pursuant to Rule 60.02 of the
Tennessee Rules of Civil Procedure under an abuse of discretion standard. Federated Ins.
Co. v. Lethcoe, 18 S.W.3d 621, 624 (Tenn. 2000); Underwood v. Zurich Ins. Co., 854 S.W.2d
94, 97 (Tenn. 1993); Ferguson v. Brown, 291 S.W.3d 381, 386 (Tenn. Ct. App. 2008).
Unless the trial court abused its discretion, its ruling on such motions may not be reversed
on appeal. Id. A trial court abuses its discretion only when it “applies an incorrect legal
standard, or reaches a decision which is against logic or reasoning or that causes an injustice
to the party complaining.” Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001); State v.
Shirley, 6 S.W.3d 243, 247 (Tenn. 1999).

                                     IV. DISCUSSION

                                           A. & B.

        As a threshold issue, we must address Plaintiff’s assertion that the trial court’s
judgment must be affirmed because Defendant failed to include a statement of the evidence
or a transcript of the hearing. Defendant’s failure to file a transcript or statement of the
evidence of the proceedings in the trial court generally frustrates this court’s review. An
appellant must prepare a record that “conveys a fair, accurate and complete account of what
transpired with respect to those issues that are the bases of the appeal.” Tenn. R. App. P.
24(b); Nickas v. Capadalis, 954 S.W.2d 735, 742 (Tenn. Ct. App. 1997). When an appellant
fails to produce a record of trial, it is presumed that the evidence supports the ruling of the
trial court. Bishop v. Bishop, 939 S.W.2d 109 (Tenn. Ct. App. 1996). Nevertheless, in the
event of further appellate review, we will address the issue before us with the limited record
provided on appeal.

       A final judgment may be set aside pursuant to Rule 60.02 of the Tennessee Rules of
Civil Procedure when

       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 [ ], 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

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       (1) and (2) not more than one year after the judgment, order or proceeding was
       entered or taken.

Relief under this rule is considered “an exceptional remedy.” Nails v. Aetna Ins. Co., 834
S.W.2d 289, 294 (Tenn. 1992). The function of the rule is to “strike a proper balance
between the competing principles of finality and justice.” Banks v. Dement Constr. Co., Inc.,
817 S.W.2d 16, 18 (Tenn. 1991) (quoting Jerkins v. McKinney, 533 S.W.2d 275, 280 (Tenn.
1976)). “Rule 60.02 is meant to be used only in those few cases that meet one or more of the
criteria stated.” Toney v. Mueller Co., 810 S.W.2d 145, 146 (Tenn. 1991).

         Defendant argues that his failure to appear and to respond was due to “mistake,
inadvertence, surprise or excusable neglect,” Plaintiff’s fraud as evidenced by her failure to
identify his apartment on the summons and complaint, and his failure to actually receive the
summons and complaint. Tenn. R. Civ. P. 60.02(1), (2), and (5). A party seeking relief from
a final judgment under Rule 60.02 bears the burden of offering proof of the basis upon which
relief is sought. Henry v. Goins, 104 S.W.3d 475, 482 (Tenn. 2003). In determining whether
a default judgment should be set aside, Tennessee courts also must consider, in addition to
the justifications provided under Rule 60.02, the following three criteria: “(1) whether the
default was willful; (2) whether defendant has a meritorious defense; and (3) the level of
prejudice that may occur to the non-defaulting party if relief is granted.” Tenn. Dept. of
Human Servs. v. Barbee, 689 S.W.2d 863, 866 (Tenn. 1985) (quoting Davis v. Musler, 713
F.2d 907, 915 (2d Cir. 1983)); see, e.g., Henry, 104 S.W.3d at 481; Pryor v. Rivergate
Meadows Apartment Assocs. Ltd. P’ship, 338 S.W.3d 882, 886 (Tenn. Ct. App. 2009). The
trial court’s findings based on a consideration of these factors are accorded great weight. See
Barbee, 689 S.W.2d at 867 (“[T]he trial court is in the best position to assess the various
factors that should be considered in determining whether a default judgment should be
vacated.”). While Rule 60.02 is construed with liberality, the defaulting party must prove
entitlement to relief pursuant to Rule 60.02. Henry, 104 S.W.3d at 481-82 (citing Federated
Ins. Co. v. Lethcoe, 18 S.W.3d 621, 624-25 (Tenn. 2000)).

        An absence of willfulness does not necessarily mean that the neglect was excusable
because willfulness has not replaced the Rule 60.02(1) reason of excusable neglect. Pryor,
338 S.W.3d at 886. “A recent Tennessee decision explained the relationship as follows:
‘[t]his approach has been to find that negligence, a form of neglect, may be excusable and
to employ wilfulness as a critical factor in distinguishing neglect that is excusable from that
which is not.”’ Id. (quoting World Relief Corp. of Nat’l Ass’n of Evangelicals v. Messay, No.
M2005-01533-COA-R3-CV, 2007 WL 2198199, at *7, n.9 (Tenn. Ct. App. July 26, 2009)).

       Plaintiff argues that Defendant’s failure to respond was not due to his mistake, her
alleged fraud, or his failure to receive the summons and complaint. She asserts that his

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actions were willful as evidenced by his refusal to accept delivery of the summons and
complaint. Rule 4.05 of the Tennessee Rules of Civil Procedure provides, in pertinent part,

       (5) When service of summons, process, or notice is provided for or permitted
       by registered or certified mail, under the laws of Tennessee, and the addressee,
       or the addressee’s agent, refuses to accept delivery, and it is so stated in the
       return receipt of the United States Postal Service, the written return receipt, if
       returned and filed in the action, shall be deemed an actual and valid service of
       the summons, process, or notice. Service by mail is complete upon mailing.
       For purposes of this paragraph, the United States Postal Service notation that
       a properly addressed registered or certified letter is “unclaimed,”or other
       similar notation, is sufficient evidence of the defendant’s refusal to accept
       delivery.

(Emphasis added). The record reflects that the United States Postal Service made three
attempts to deliver the summons and complaint before declaring that the certified mail was
“unclaimed.” Unlike the letter from Plaintiff’s attorney, these notices were not located in the
trash bin by Defendant’s mailbox. The notices contained the Defendant’s name and correct
address of the apartment complex and were not returned as undeliverable because the address
was insufficient. Relative to his meritorious defense, Defendant asserted that he also
financially contributed to the marriage. Plaintiff responded, in kind, with an affidavit
containing a list of expenses she incurred as a result of the marriage. Likewise, she asserts
on appeal that she would be prejudiced if the judgment were set aside because she had
“overextended herself financially” to secure the divorce judgment and then defend the
judgment on appeal. With these considerations in mind, we conclude that the trial court did
not abuse its discretion in denying the motion to set aside the default judgment.

                                     V. CONCLUSION

       The judgment of the trial court is affirmed, and this case is remanded to the trial court
for enforcement of the court’s judgment and for collection of costs assessed below. Costs
of the appeal are taxed to the appellant, Temitope “Michael” Bamiji Ogunmola, for which
execution may issue, if necessary.




                                            ______________________________________
                                            JOHN W. McCLARTY, JUDGE




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