                                                                                       06/24/2019
               IN THE COURT OF APPEALS OF TENNESSEE
                          AT KNOXVILLE
                           Assigned on Briefs May 1, 2019

             KRISTIN MARIE MICLAUS v. ANDREI MICLAUS

              Appeal from the Probate Court for Cumberland County
                No. 2016-PF-5061 Larry Michael Warner, Judge
                     ___________________________________

                           No. E2018-02134-COA-R3-CV
                       ___________________________________

Appellant appeals the trial court’s denial of his Tennessee Rule of Civil Procedure 60.02
motion, which sought relief from the final decree of divorce entered against him on the
ground that he did not receive notice of the trial setting. Because Appellant did not
receive proper notice, relief under Rule 60.02(1) should have been granted by the trial
court. As such, we vacate the final decree of divorce and remand the case for further
proceedings.

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

KENNY W. ARMSTRONG, J., delivered the opinion of the court, in which THOMAS R.
FRIERSON, II, and W. NEAL MCBRAYER, JJ., joined.

Joe R. Judkins, Oak Ridge, Tennessee, for the appellant, Andrei Miclaus.

Kevin R. Bryant, Crossville, Tennessee, for the appellee, Kristin Marie Miclaus.

                                       OPINION

                                    I. Background

        Appellant Andrei Miclaus (“Father”) and Appellee Kristin Marie Miclaus
(“Mother”) were married in January 2004. Four children were born to the marriage. On
May 9, 2016, Wife filed a complaint for divorce in the Cumberland County Probate Court
(“trial court”). By order of July 8, 2016, the trial court named Wife temporary primary
residential parent of the children and reserved ruling on Father’s parenting time until a
later date. The trial court also ordered Father to pay Mother temporary child and spousal
support. Father filed an answer to the original complaint for divorce on July 29, 2016
and filed a counter-complaint for divorce on October 20, 2017. Mother answered
Father’s counter-complaint on November 6, 2017.

       On June 22, 2018, the trial court heard Mother’s complaint for divorce. On July 5,
2018, the trial court entered a final decree of divorce, which granted Mother a divorce,
divided the marital estate, and entered a permanent parenting plan. Father was not
present for the trial. It is undisputed that, on June 15, 2018, Mother’s attorney mailed
Father notice of the June 22, 2018 trial setting. The notice, however, was mailed to an
incorrect address, which Father asserts that Mother knew was no longer his address.

       On July 30, 2018, Father filed a “Motion to Set Aside Final Decree and Permanent
Parenting Plan and for a New Trial;” he attached his affidavit to the motion. In his
motion, Father asserted that: (1) the notice of the final trial setting was not timely; (2) he
did not receive notice of the final trial; (3) the notice was sent to an address that Mother
knew was not valid for Father; (4) Father has a meritorious defense to the complaint; and
(5) Father has a meritorious counter-complaint against Mother for divorce. By order
dated November 5, 2018, the trial court denied Father’s motion, stating only “[t]he
Motion to Set Aside the Final Decree, Parenting Plan and Motion for New Trial is not
well taken and as such same is denied.” Father appeals.

                                          II. Issue

      The sole issue on appeal is whether the trial court erred in denying Father’s
“Motion to Set Aside Final Decree and Permanent Parenting Plan and for a New Trial.”

                             III. Nature of Father’s Motion

        As an initial procedural issue, it is unclear whether Father’s motion falls under
Tennessee Rule of Civil Procedure Rule 59 or Rule 60.02. In determining which rule to
apply, “courts must consider the substance of a motion,” rather than the title. Fielder v.
S. Health Partners, No. M2014-01819-COA-R3-CV, 2016 WL 399777, at *3 (Tenn. Ct.
App. Feb. 1, 2016) (quoting Tennessee Farmers Mut. Ins. Co. v. Farmer, 970 S.W.2d
453, 455 (Tenn. 1998)). Although we are cognizant that Father filed his motion within
thirty (30) days of the final judgment (a fact that would implicate Rule 59), the substance
of his motion and the relief sought therein are more aligned with Rule 60.02, which
provides:

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

Tenn. R. Civ. P. 60.02. As noted above, Father’s motion alleged that the “Notice setting
the cause for trial was not timely, not received by [Father] before the trial in this cause,
and was sent to an address that [Mother] knew was not a valid address for Father.” In the
affidavit attached to his motion, Father requested that the trial court set aside the final
decree and schedule a new trial. From the content of his motion, we glean that Father
was proceeding under Rule 60.02 because his ultimate request was for the trial court to
relieve him from the final decree because of lack of notice of the trial setting.

                                 IV. Standard of Review

       Having determined that Father’s motion falls under Rule 60.02, we review the trial
court’s decision to deny the motion under the 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). In Eldridge v. Eldridge, 42 S.W.3d 82 (Tenn. 2001),
our Supreme Court explained that

       [u]nder the abuse of discretion standard, a trial court’s ruling “will be
       upheld so long as reasonable minds can disagree as to propriety of the
       decision made.” State v. Scott, 33 S.W.3d 746, 752 (Tenn. 2000); State v.
       Gilliland, 22 S.W.3d 266, 273 (Tenn. 2000). A trial court abuses its
       discretion only when it “applie[s] an incorrect legal standard, or reache[s] a
       decision which is against logic or reasoning that cause[s] an injustice to the
       party complaining.” State v. Shirley, 6 S.W.3d 243, 247 (Tenn. 1999).
       The abuse of discretion standard does not permit the appellate court to
       substitute its judgment for that of the trial court. Myint v. Allstate Ins. Co.,
       970 S.W.2d 920, 927 (Tenn. 1998).

Eldridge, 42 S.W.3d at 85.

                                        V. Analysis

       In Obi v. Obi, No. M2010-00485-COA-R3-CV, 2011 WL 2150733, at *3 (Tenn.
Ct. App. June 1, 2011), this Court applied subsections (1) and (5) of Rule 60.02 where a
party averred lack of notice of pleadings or hearings. Id. As in this case, Obi involved a
divorce. Husband was originally represented by counsel, but his counsel withdrew before
the final trial. Id. at *1. For the remainder of the case, wife’s attorney mailed husband’s
notices of pleadings and hearings to an incorrect address where husband never resided.
                                            -3-
Id. at *2. When husband failed to respond to wife’s discovery, the trial court dismissed
husband’s answer and, after a hearing, granted wife a divorce. Id. After the final
judgment, husband filed a Rule 60 motion. Id. In his motion, husband argued that “he
did not reside at the address included in the certificates of service attached to [wife’s]
court filings after his counsel withdrew from representing him, and that he ‘was never
served with notice of the proceedings.’” Id. The trial court denied his Rule 60 motion,
and husband appealed to this Court. Id. at *2-3.

       In reversing the trial court’s denial of husband’s Rule 60.02 motion, the Obi Court
considered two subsections of Rule 60.02—subsection (1) addressing “mistake,
inadvertence, surprise or excusable neglect,” and subsection (5) allowing relief for “any
other reason justifying relief from the operation of the judgment.” Tenn. R. Civ. P.
60.02. The Obi Court cited the Tennessee Supreme Court’s decision in Henry v. Goins,
104 S.W.3d 475 (Tenn. 2003). In Henry, the trial court, without providing plaintiff
notice or opportunity to be heard, dismissed plaintiff’s case for failure to prosecute. The
Obi Court explained that, in the Henry case,

      [t]he Supreme Court [clarified] that “[w]hen a party has no notice of a
      critical step in a court proceeding, the circumstances may make out a case
      of excusable neglect.” Id. at 480.

             In determining whether lack of notice constitutes excusable neglect
      for purposes of Rule 60.02(1), the Henry [C]ourt looked to cases involving
      default judgments and whether courts in those cases set aside default
      judgments pursuant to Rule 60.02(1) motions. Id. at 481. The [C]ourt
      explained that a dismissal for failure to prosecute is similar to a default
      judgment because in both situations one party receives a judgment in his or
      her favor without a hearing on the merits, to the potential detriment of the
      other party(ies) [sic]. Id.

              The [C]ourt described both dismissals for failure to prosecute and
      default judgments as “drastic sanctions” that are not favored by the courts.
      Id. The Henry [C]ourt explained, “[d]ismissals based on procedural
      grounds like failure to prosecute and default judgments run counter to the
      judicial system’s general objective of disposing of cases on the merits.” Id.
      (citing Childress v. Bennett, 816 S.W.2d 314, 316 (Tenn. 1991) (courts are
      reluctant to prevent litigants from having claims adjudicated on the merits)
      and Tenn. Dep’t of Human Serv. v. Barbee, 689 S.W.2d 863, 866 (Tenn.
      1985) (courts prefer trials on the merits to granting default judgments)); see
      also Reynolds v. Battles, 108 S.W.3d 249, 251 (Tenn. Ct. App. 2003)
      (courts have a clear preference for deciding a case on the merits rather than
      pursuant to a default judgment, and thus will construe Rule 60.02 liberally
      when default judgments are at issue).
                                           -4-
             The Henry [C]ourt explained further:

                     A request to vacate a default judgment in accordance
             with Rule 60.02 should be granted if there is reasonable doubt
             as to the justness of dismissing the case before it can be heard
             on the merits. . . .

                    Because of the similarity between default judgments
             and dismissals, we find instructive those factors that are used
             to determine if a default judgment should be vacated under
             Rule 60.02(1). Those factors include: (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.

      Henry, 104 S.W.3d at 481 (citations omitted). The Henry [C]ourt
      concluded the same factors should apply to cases in which a party is
      seeking relief from an order of dismissal under Rule 60.02(1). Id.; see
      Reynolds, 108 S.W.3d at 251 (court should grant relief pursuant to Rule
      60.02(1) if court has any reasonable doubt about whether judgment should
      be set aside).

Obi, 2011 WL 2150733, at *4-5.

      Applying the Henry factors, the Obi Court held that

              [a]lthough the judgment in this case is technically not a default
      judgment since the trial court heard evidence, the effect was the same. The
      facts we have here are akin to the facts of Henry, because like the plaintiffs
      in Henry, [the h]usband was not properly served with notice of [the w]ife’s
      divorce proceedings from the time his attorney withdrew from the case
      until after the court entered the final judgment granting [the w]ife a divorce.
      There is no evidence in the record to suggest [the h]usband had independent
      knowledge of the proceedings after that date. Without notice of [the w]ife’s
      proceedings against him, [the h]usband was unable to defend against [the
      w]ife’s complaint and present evidence to counter [the w]ife’s charges
      against him. Under these circumstances, we conclude that [the h]usband’s
      failure to defend against [the w]ife’s complaint was not willful.

              We now turn to the second factor to determine whether Husband has
      a meritorious defense. Husband states in his Rule 60 motion that he is a
      full-time student, he is not working, and he is collecting unemployment
                                         -5-
      benefits. This information would be important for the trial court to
      consider in determining whether Husband should be required to pay any
      child support, and if so, what the proper amount should be. It does not
      seem Husband had any input into the Parenting Plan Wife proposed, which
      the court adopted without making any modifications. The Parenting Plan
      affects Husband’s rights and financial obligations with respect to his
      children, and he should not be denied the opportunity to present his
      arguments to the court on these matters.

             Finally, Wife has not demonstrated she will be prejudiced by
      granting Husband’s Rule 60 motion as to the parenting arrangement and
      child support. Just as the Henry [C]ourt concluded the defendants’ having
      to proceed to trial did not constitute prejudice in that case, we conclude
      Wife’s having to prove her case against Husband in a trial where both sides
      are provided the opportunity to present evidence in his or her favor does not
      constitute prejudice. See Barbee, 689 S.W.2d at 868 (where defendant’s
      counsel withdrew from case and defendant did not receive notice of trial
      date, court concluded plaintiff was not prejudiced by having to try its case
      on the merits).

Obi, 2011 WL 2150733, at *5.

        Finding guidance from Obi, we now turn to address whether Father is entitled to
relief under Tennessee Rule of Civil Procedure 60.02(1). We first consider “whether the
default was willful.” Id. at *4 (citing Henry, 104 S.W.3d at 481). While the judgment in
our case was technically not a default, the effect was the same. See Obi, 2011 WL
2150733, at *5. Similar to the husband in Obi, Father was not properly served with
notice of the final trial on Mother’s complaint for divorce. See id. As noted above,
Father filed his affidavit in support of his motion, and from our review of the record, his
statements therein are undisputed. In relevant part, Father stated:

      1. I am the Defendant in the above-captioned matter.

      2. A divorce trial was held in this cause on June 22, 2018.

      3. I was not present at the trial of this cause, and did not know about the
      scheduling for the trial on or before June 22, 2018.

                                           ***

      6. The notice setting the case was not timely under the Tennessee Rules of
      Civil Procedure.

                                           -6-
      7. The notice was mailed by the Plaintiff’s attorney to an address that I no
      longer use, and the fact that I no longer use that address was known to the
      Plaintiff, and presumably her attorney, because I called the attorney’s office
      assistant before the notice was sent and provided my correct mailing
      address.

As in Obi, “[w]ithout notice of [Mother’s] proceedings against him, [Father] was unable
to defend against [Mother’s] complaint and present evidence to counter [Mother’s]
charges against him.” Obi, 2011 WL 2150733, at *5. Based on Father’s averments, we
conclude that his failure to defend against Mother’s complaint was not willful. See id.

       The second factor for consideration is “whether the defendant has a meritorious
defense.” Id. at *4 (citing Henry, 104 S.W.3d at 481). In his Rule 60 motion, Father
averred that he has a meritorious defense against Mother’s divorce complaint and would
have presented proof in support of his counter-complaint for divorce. Father’s affidavit
specifically stated:

      4. I would have been present at the trial of this case, and would have
      presented a defense to the Complaint filed by the Plaintiff, and would have
      presented proof in opposition to the Complaint and proof in support of my
      Counter-Complaint.

      5. I have a meritorious defense to the divorce action, and I have filed a
      counter-complaint for divorce against [Mother], as shown by the pleadings
      in this cause and as shown by the record of this proceeding.

                                           ***

      8. The provisions of the Final Decree and the Permanent Parenting Plan are
      not in the best interests of the parties’ minor children.

      9. The provisions of the Final De[c]ree is not a fair and equitable division
      of the parties’ property and debts.

      10. I have a meritorious defense to the alimony claim, and I am unable to
      pay alimony to [Mother]. [Mother] is not entitled to an award of alimony
      [in] this cause.

From these undisputed statements, Father presumably has a meritorious defense to
Mother’s complaint for divorce and his own claim for divorce. Father’s rights
concerning his children and his financial obligations with respect to his property were
adversely affected by the trial court’s final order, “and he should not be denied the
opportunity to present his arguments to the court on these matters.” Obi, 2011 WL
                                          -7-
2150733, at *5.

       We next consider “whether the non-defaulting party would be prejudiced if relief
were granted.” Id. at *4 (citing Henry, 104 S.W.3d at 481). Mother has not
demonstrated that she would be prejudiced by the trial court granting Father’s Rule 60
motion. See Obi, 2011 WL 2150733, at *5. Mother filed no response to Father’s motion
and provided no proof to refute Father’s allegations concerning his lack of notice. “Just
as the Henry [C]ourt concluded [that] the defendants’ having to proceed to trial did not
constitute prejudice in that case, we conclude [Mother’s] having to prove her case against
[Father] in a trial where both sides are provided the opportunity to present evidence in his
or her favor does not constitute prejudice.” Id. (citing Barbee, 689 S.W.2d at 868 (where
defendant’s counsel withdrew from case and defendant did not receive notice of trial
date, court concluded plaintiff was not prejudiced by having to try its case on the
merits)).

      Finally, in her appellate brief, Mother concedes that Father did not receive
adequate notice, to-wit:

       [Mother] concedes [Father]’s issue concerning notice. Under the facts of
       the case the notice was mailed to [Father] on Friday, June 15th for a hearing
       set for Friday, June 22nd. Based on [Father]’s brief [Mother] takes no issue
       with the argument stated by Appellant concerning timeliness of the notice.

It is well settled that “all parties to litigation are entitled to receive notice of important
hearings and other proceedings; due process requires it.” Bryant v. Edwards, 707
S.W.2d 868, 870 (Tenn. 1986); see also Tenn. R. Civ. Pro. 40. Further, “whe[n] there is
a reasonable doubt as to whether a [final] judgment should be set aside . . . the court
should exercise its discretion in favor of granting the application so as to permit a
determination of the cause upon the merits.” Obi, 2011 WL 2150733, at *6 (quoting
Melton v. Bowman, No. M2000-02960-WC-R3-CV, 2001 WL 950008, at *3 (Tenn.
Workers Comp. Panel Aug. 20, 2001)).1 Based on the foregoing, we conclude that the
trial court erred in denying Father’s motion. Having determined that Father was entitled
to relief under Rule 60.02(1), we pretermit discussion of whether he is also entitled to
relief under Rule 60.02(5). Obi, 2011 WL 2150733, at *6.

                                      VI. Conclusion

       Because Father was entitled to relief under Tennessee Rule of Civil Procedure
60.02(1), we vacate the trial court’s final order of divorce. We remand the case for such
further proceedings as may be necessary and are consistent with this Opinion. Costs of

       1
        We note that Melton v. Bowman was a Special Workers’ Compensation Appeals Panel case,
which was designated as “not for publication” under Tennessee Supreme Court Rule 4.
                                            -8-
the appeal are assessed against Appellee, Kristin Marie Miclaus, for all of which
execution may issue if necessary.


                                            _________________________________
                                            KENNY ARMSTRONG, JUDGE




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