                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                        Assigned on Briefs September 20, 2010

     JAMES DANIEL MARSHALL v. JENINE ESTELLE MARSHALL

                  Appeal from the Circuit Court for Davidson County
                       No. 8D-3477     Carol Solomon, Judge


              No. M2009-02463-COA-R3-CV - Filed November 16, 2010


Husband appeals the entry of a default judgment and the resulting Final Decree in a divorce
action. Wife filed a complaint for divorce; Husband filed an answer and counter-complaint.
Later in the proceedings, Wife filed a motion for default judgment and other relief against
Husband due to his failure to comply with the court’s discovery deadline. The trial court
entered an order granting a default judgment against Husband, striking his pleadings, and
deeming Wife’s discovery requests admitted. Husband timely filed a motion to set aside the
order on the ground he did not receive proper notice of the hearing, which the trial court
denied. We have determined that Husband did not receive proper notice; as a consequence
the order granting the default judgment and other relief is void. Therefore, the trial court
erred as a matter of law in denying Husband’s motion to set aside the order. The court’s
failure to set aside the order also greatly impaired Husband’s right to assert the defenses and
affirmative claims that were stricken. Accordingly, the Final Decree is also reversed and we
remand for a new trial of the issues properly raised by the parties in their pleadings subject,
of course, to Husband complying with discovery and the trial court’s orders.

        Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
                             Reversed and Remanded

F RANK G. C LEMENT, J R., J., delivered the opinion of the Court, in which A NDY D. B ENNETT
and R ICHARD H. D INKINS, JJ., joined.

James Daniel Marshall, Nashville, Tennessee, Pro Se.

Jennifer Sheppard, Nashville, Tennessee, for the appellee, Jenine Estelle Marshall.
                                              OPINION

       Husband and Wife were married in 1996 in Florida. They have one child, a minor,
who was born in 1997. The parties moved to Tennessee in 2008; shortly thereafter, Wife
discovered Husband was having an affair. Husband left the marital residence in November
2008, and Wife filed for divorce on December 19, 2008, alleging the grounds of
irreconcilable differences, inappropriate marital conduct, indignities, and adultery. In her
complaint, Wife sought to be named the primary residential parent of the parties’ minor child.
On January 30, 2009, Husband filed an answer and counter-complaint. Husband admitted the
ground of irreconcilable differences, but denied the ground of adultery, indignities, and
inappropriate marital conduct. Husband also asserted affirmative defenses and sought to be
named the primary residential parent of the minor child.

       On February 25, 2009, an Agreed Order was entered naming Wife as the temporary
primary residential parent of the child and granting Wife pendente lite child support and
spousal support. On March 6, 2009, Husband filed a motion to determine the division of the
parties’ income tax refund and liabilities. The trial court issued an order on March 27
declining to address the tax issue. Wife filed an answer on May 5, 2009. On May 13, 2009,
Husband filed a motion to change the pendente lite custody, which the trial court denied in
a hearing entered on June 1, 2009. The order also stated a scheduling deadline that all
discovery in the action was to be completed within forty-five days, making the deadline for
completion July 6, 2009.

      In the interim, on May 27, 2009, Wife submitted interrogatories and requests for
production of documents to Husband. One week later, Wife submitted requests for
admissions to Husband. Husband objected to the discovery in an email stating the requests
were “overbroad” and “childish,” but no motion was filed with the court.1

       Husband did not comply with discovery. As a consequence, Wife filed a motion on
July 17, 2009, pursuant to Tenn. R. Civ. P. 37.02 to have her requests for admissions deemed
admitted and for a default judgment. A hearing was held on July 24, 2009, which Husband
did not attend and no one appeared on his behalf. On August 3, 2009, the trial court entered
an order granting a default judgment against Husband, striking his pleadings, and deeming
Wife’s requests for admissions admitted. The portion of the order granting the default


        1
         Husband was initially represented by counsel in this action. At some point in the proceedings,
Husband’s attorney of record stopped participating; however, there is no record that his attorney filed a
motion or was granted leave to withdraw. In any event, it appears Husband was pro se from this point
forward.

                                                  -2-
judgment reads as follows: “The Plaintiff/Wife, Jenine Marshall, is hereby granted a
judgment by default pursuant to Tennessee Rule of Civil Procedure 55.01.” The default
judgment did not specify the relief granted to Wife; specifically, the default judgment did not
state whether Wife was granted a divorce or a ground for the divorce, it did not address the
parenting plan or child support, and it did not divide the marital estate or address Wife’s
prayer for alimony. Therefore, a final hearing was necessary to address the remaining issues.2

        On August 19, 2009, before the final hearing occurred, Husband filed a motion to set
aside the August 3 order on the ground that he did not receive proper notice of the motion
or hearing. A hearing on Husband’s motion was held on August 28, 2009, following which
the trial court denied the motion finding that Husband still had not complied with discovery
and that the default judgment was a sanction for Husband’s failure to comply.

       The final hearing was held on September 28, 2009. The introductory paragraph of the
Final Decree, which was entered on October 15, 2009, stated:

       This matter came on to be heard . . . upon the Complaint for Divorce filed by
       the Plaintiff/Wife, Jenine Marshall, a judgment of default having been granted
       against the Defendant/Husband, James Marshall, statements of Wife,
       corroborating witnesses, and of the Husband, and the entire record as a whole,
       the Court finds that the Plaintiff/Wife, should be awarded an absolute Divorce,
       from the Defendant/Husband, on the grounds of inappropriate marital conduct,
       indignities and adultery.

The Final Decree further ordered and decreed that Wife was the primary residential parent
of the parties’ minor child, adopted the Permanent Parenting Plan proposed by Wife – with
minor changes to the parenting schedule, set child support, awarded Wife rehabilitative
alimony for twelve months at $700 per month, awarded Wife the 2008 income tax refund of
$3,702.43 as alimony in solido, divided the marital estate, and awarded Wife her attorney’s
fees of $7,490.29. Husband filed a timely appeal.




       2
           Tenn. R. Civ. P. 55.01 states in pertinent part:

       If, in order to enable the court to enter judgment or to carry it into effect, it is necessary to
       take an account or to determine the amount of damages or to establish the truth of any
       averment by evidence or to make an investigation of any other matter the court may conduct
       such hearings or order such references as it deems necessary and proper and shall accord a
       right of trial by jury to the parties when and as required by any statute.

                                                       -3-
                                               A NALYSIS

       Husband raises several issues on appeal, however, we have determined that one issue
is dispositive, that being the trial court’s failure to set aside the order of August 3, 2009
because it is void.3

        “A party, upon reasonable notice to other parties and all persons affected thereby, may
apply for an order compelling discovery. . . .” Tenn. R. Civ. P. 37.01. If a party fails to
answer an interrogatory submitted under Rule 33, the discovering party may move for an
order compelling an answer. Tenn. R. Civ. P. 37.01(2). If a party fails to obey an order to
provide discovery, or if a party fails to obey an order entered under Rule 26.06, the court may
make such orders in regard to the failure as are just.4 Tenn. R. Civ. P. 37.02. Options stated
in the rule include:

        (A) An order that the matters regarding which the order was made or any
        other designated facts shall be taken to be established for the purposes of the
        action in accordance with the claim of the party obtaining the order;

        (B) An order refusing to allow the disobedient party to support or oppose
        designated claims or defenses, or prohibiting that party from introducing
        designated matters in evidence;

        (C) An order striking out pleadings or parts thereof, or staying further
        proceedings until the order is obeyed, or dismissing the action or proceeding
        or any part thereof, or rendering a judgment by default against the disobedient
        party;

Tenn. R. Civ. P. 37.02(A)-(C).

       “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



        3
          Wife argues that Husband should not be allowed to assert insufficient notice as a defense since he
filed other motions in the proceedings that also failed to comply; however, those motions are not before this
court. Wife’s contention that Husband’s motion to set aside the default did not comply with the rules is not
persuasive as Wife did not raise this in her response to the motion and therefore she waived the issue.
        4
          It should be noted that when Wife filed her motion for discovery sanctions and default, Husband
had not failed to comply with an order issued pursuant to Tenn. R. Civ. P. 37.01(2) compelling discovery or
failed to obey an order entered under Tenn. R. Civ. P. 26.06.

                                                    -4-
affidavit or otherwise, judgment by default may be entered. . . .”5 Tenn. R. Civ. P. 55.01. The
rule goes on to provide that the party “against whom a default judgment is sought shall be
served with a written notice of the application for judgment at least five days before the
hearing on the application, regardless of whether the party has made an appearance in the
action.” Tenn. R. Civ. P. 55.01 (emphasis added). If service of the motion is made by mail,
as was the case here, an additional three days is required. Tenn. R. Civ. P. 6.05; Tenn. R. Civ.
P. 55.01 adv. commission cmt. Pursuant to Tenn. Code Ann. 6.01, holidays and weekends
are excluded from the calculation since the time period is shorter than eleven days.6

       Wife placed her motion for default and sanctions in the mail on July 17, 2009. Based
upon our calculation, the earliest permissible hearing date was July 28, 2009; however, the
hearing was held on July 24, 2009. Moreover, no one appeared on behalf of Husband at the
hearing.

       Husband filed a timely motion to set aside the order that resulted from the July 24
hearing on the ground that the notice was insufficient. Tenn. R. Civ. P. 55.02 expressly
authorizes a court to set aside a default judgment “for good cause,” in accordance with Tenn.
R. Civ. P. 60.02. Reasons under Rule 60.02 include: mistake, inadvertence, surprise,
excusable neglect, or a finding that the judgment is void.

       In a case with surprisingly similar facts as here, Frierson v. Johnson, No. M2006-
02598-COA-R3-CV, 2008 WL 555721, at *1 (Tenn. Ct. App. Feb. 28, 2008), we held that
an order granting a default judgment was void because the order resulted from a hearing on
a motion for which the defendant received insufficient notice. As is the case here, a default
judgment was granted pursuant to Tenn. R. Civ. P. 37.02 as a sanction for failure to comply
with discovery. Id. at *2. The defendant in Frierson sought to set the order aside because he


        5
         In addition to our comment in footnote 4, it should also be noted that when Wife filed her motion
for default, Husband had not “failed to plead or otherwise defend” as contemplated in Tenn. R. Civ. P. 55.01;
to the contrary, Husband had previously filed a proper answer.
        6
            Tenn. R. Civ. P. 6.01 states in its entirety:

        In computing any period of time prescribed or allowed by these rules, by order of court, or
        by any applicable statute, the date of the act, event or default after which the designated
        period of time begins to run is not to be included. The last day of the period so computed
        shall be included unless it is a Saturday, a Sunday, or a legal holiday, or, when the act to be
        done is the filing of a paper in court, a day on which weather or other conditions have made
        the office of the court clerk inaccessible, in which event the period runs until the end of the
        next day which is not one of the aforementioned days. When the period of time prescribed
        or allowed is less than eleven (11) days, intermediate Saturdays, Sundays, and legal holidays
        shall be excluded in the computation.

                                                            -5-
did not receive proper notice of the motion for default. Id. As occurred here, the trial court
denied the motion to set aside the order; however, we held that the trial court erred in
granting a default judgment, dismissing the defendant’s counter-complaint, and in denying
the motion to set the order aside. Id. at *7. We determined that “the trial court abused its
discretion in failing to grant [the defendant’s] motion for Rule 60 relief due to the premature
hearing in violation of the procedural requirements of Tenn. R. Civ. P. 55.01,” because the
default judgment was void. Id. In explaining its reasoning, the Frierson court quoted from
two opinions, Decker v. Nance, E2005-2248-COA-R3-CV, 2006 WL 1132048 (Tenn. Ct.
App. Apr. 6, 2006) and Churney v. Churney, No. 02A01-9211-CV-00326, 1993 WL 273891,
at *2 (Tenn. Ct. App. July 22, 1993), stating that “the showing of a meritorious defense is not
required ‘where the default judgment was procured in violation of the Rules of Civil
Procedure.”’ Id. at *5.

        As we noted earlier, Husband did not receive proper notice of the motion and hearing
as the Tennessee Rules of Civil Procedure require. Therefore, as a matter of law, the August
3 order resulting from that hearing is void. Id.

          When a party seeks to set aside an order that was procured in violation of the
Tennessee Rules of Civil Procedure “the showing of a meritorious defense is not required.
Id. (citing Decker, 2006 WL 1132048, at *3; Churney, 1993 WL 273891, at *2). The record
reveals, however, that the trial court denied Husband’s motion to set aside the August 3 order
because he had not yet responded to discovery and the order was a sanction for his failure to
do so. Rule 37.02 sanctions are appropriate when a party fails to comply with discovery or
the trial court’s orders; that, however, was not the issue in Husband’s motion to set aside the
August 3 order.7 The issue was whether the August 3 order was void due to insufficient
notice and it was. Therefore, the trial court erred by applying an incorrect legal standard in
denying Husband’s motion to set aside the August 3, 2009 order. See Doe 1 ex rel. Doe 1 v.
Roman Catholic Diocese of Nashville, 154 S.W.3d 22, 42 (Tenn. 2005) (stating an abuse of
discretion will be found “where the trial court applied an incorrect legal standard”).

       Accordingly, we remand with instructions that the trial court set aside the August 3
order in which it granted the default judgment, struck Husband’s pleadings, and deemed
Wife’s requests for admissions admitted by Husband.



        7
          We must emphasize, however, that aside from the insufficient notice, which was Wife’s fault, not
the fault of the trial court, the trial court was acting within its discretion when it entered a default judgment,
struck Husband’s pleadings, and deemed Wife’s requests for admissions admitted by Husband. Moreover,
we do not condone Husband’s disregard of the deadline set by the trial court, and, like all litigants, Husband
must comply with deadlines properly established by the trial court and comply with the rules of discovery.

                                                       -6-
        Our decision also requires us to examine what occurred in the trial court following the
decision to deny Husband’s motion to set aside the August 3, 2009 order. After the trial court
denied Husband’s motion, the case went to trial solely on Wife’s complaint for divorce since
Husband’s pleading had been stricken, a default judgment had been entered, and he had been
precluded from challenging the evidence he had been deemed to have admitted. Accordingly,
Husband’s ability to oppose Wife’s case and to present his case at trial was unjustly impaired
by the trial court’s denial of Husband’s motion to set aside the August 3, 2009 order, which
constitutes grounds for reversing the Final Decree. Accordingly, we also reverse the Final
Decree and remand this case for further proceedings consistent with this opinion.

                                           I N C ONCLUSION

       The judgment of the trial court is reversed, and this matter is remanded for further
proceedings in accordance with this opinion. Costs of appeal are assessed against the parties
equally.8




                                                               ______________________________
                                                               FRANK G. CLEMENT, JR., JUDGE




        8
          The other issues raised by Husband on appeal are moot, and, as we have ruled against Wife in this
appeal, we deny her requests for attorney’s fees. Moreover, our decision to assess costs equally against the
parties is due to the fact that this appeal would not have been necessary had Husband complied with
discovery and the trial court’s orders.

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