                                                                                           05/24/2019
                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                           Assigned on Briefs March 1, 2019

            SUSAN LYNN SLAGLE v. ROBERT WAYNE SLAGLE

        Appeal from the Probate and Family Court for Cumberland County
                  No. 2018-PF-6246 Larry M. Warner, Judge


                             No. E2018-01633-COA-R3-CV


Plaintiff Susan Lynn Slagle (Wife) filed this divorce action in May of 2018. Defendant
Robert Wayne Slagle (Husband) did not file an answer or other responsive pleading.
Wife moved for a default judgment. A hearing was set for August 2, 2018. Husband
appeared pro se at the hearing, still having filed nothing with the trial court. The trial
court, without hearing any proof, granted Wife a default judgment on the ground of
inappropriate marital conduct. Shortly thereafter, the trial court entered its final judgment
dividing the marital property. Husband filed a Tenn. R. Civ. P. 60.02(1) motion for
relief, asking the trial court to set aside the judgment. The trial court denied Husband’s
motion. On appeal, we hold that Tenn. Code Ann. § 36-4-114 (2017) requires a trial
court to hear proof of the facts alleged before granting a divorce on any ground other than
irreconcilable differences, in the absence of a valid stipulation between the parties.
Because the trial court did not in this case, we vacate the judgment and remand for a trial.

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

CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and ANDY D. BENNETT, J., joined.

Cynthia Fields Davis, Crossville, Tennessee, for the appellant, Robert Wayne Slagle.

Kevin R. Bryant, Crossville, Tennessee, for the appellee, Susan Lynn Slagle.




                                             -1-
                                              OPINION

        In support of his Rule 60.02 motion,1 Husband submitted a one-page affidavit that
states, in pertinent part, as follows:

                That I appeared, pro se on August 2, 2018 for a hearing on the
                pending divorce action.

                At said hearing on August 2, 2018, I was not allowed to state
                my position nor testify.

                That neither I nor my wife were sworn in to testify during the
                hearing.

There is no transcript of the hearing. Wife does not deny or contradict husband’s
assertions that the trial court heard no proof at the hearing before granting wife a default
judgment.

        The trial court’s final judgment states as follows in pertinent part:

                The Court affirmatively finds:

                1. That the Defendant was properly before the Court.

                2. That the charges contained in the Plaintiff’s Complaint are
                true, the Defendant, has been guilty of such inappropriate
                marital conduct, as to render further cohabitation unsafe and
                improper and entitle the Plaintiff to a divorce pursuant to
                Tennessee Code Annotated § 36-4- 101(11).

        Tenn. Code Ann. § 36-4-114 provides:

                If the defendant admits the facts charged in the bill or petition
                and relied upon as the ground for a divorce, or the bill is
                taken for confessed, the court shall, nevertheless, before
                decreeing a divorce, except a divorce on the ground of
                irreconcilable differences, hear proof of the facts alleged as
                aforementioned, and either dismiss the bill or petition or grant
                a divorce, as the justice of the case may require.
        1
         Because defendant’s motion was filed less than 30 days after entry of the trial court’s judgment,
we construe defendant’s motion as a Rule 59 motion.
                                                 -2-
        Tennessee courts, construing this statute, have held that a trial court is without
authority to enter a judgment of divorce on a ground other than irreconcilable differences,
in the absence of a hearing where the trial court hears proof, or a valid stipulation for
grounds pursuant to Tenn. Code Ann. § 36-4-129. Hyneman v. Hyneman, 152 S.W.3d
549, 550 (Tenn. Ct. App. 2003) (“absent a mutual stipulation agreed upon by the parties,
... the trial court must conduct a hearing prior to entering a final decree of divorce.”);
Stutz v. Stutz, No. E2004-01399-COA-R3-CV, 2005 WL 2016828, at *16 (Tenn. Ct.
App., filed Aug. 23, 2005) (“Because there was neither a stipulation to nor proof as to
grounds for divorce, the trial court had no authority under Tenn. Code. Ann. § 36-4-129
to grant a divorce to the parties”); McCarter v. McCarter, No. 03A01-9606-CV-000196,
1996 WL 625798, at *2 (Tenn. Ct. App., filed Oct. 30, 1996) (“We hold it to be
reversible error to award a divorce by a judgment on the pleadings even if coupled with
the evidence taken at the pendente lite hearing”); Warren v. Warren, 731 S.W.2d 908,
910 (Tenn. Ct. App. 1985) (“compliance with the statute is a pre-requisite to a valid
divorce”). This Court has observed that the proof need not necessarily be strong,
Mayfield v. Mayfield, No. C.A. 111, 1987 WL 17984, at *1 (Tenn. Ct. App., filed Oct. 7,
1987) (“while the proof is weak indeed, we think it sufficient to sustain the divorce”
under section 36-4-114), nor is it required to be corroborated. Dukes v. Dukes, 528 S.W.
2d 43, 46 (Tenn. Ct. App. 1975). But, as Dukes recognized, Tenn. Code Ann. § 36-4-114
“appears to require some evidence in every case, especially in uncontested cases where
the divorce is granted by default or upon admitted facts.” Id. (emphasis in original).

        If the trial court had heard evidence, then its decision to grant wife a default
judgment would have been discretionary, as wife argues. This is what happened in
Farley v. Farley, No. M2010-01120-COA-R3-CV, 2010 WL 5312722 (Tenn. Ct. App.,
filed Dec. 17, 2010). In Farley, the husband failed to file an answer to the wife’s divorce
complaint and then appeared at the default judgment hearing. Id. at *1. Then, “Wife and
other witnesses testified at the hearing in the presence of Husband.” Id. The trial court
in Farley granted wife a default judgment, husband appealed, and we affirmed. The
difference between the present case and Farley is the absence of any proof heard by the
trial court in this case. Here, the requirement of Tenn. Code Ann. § 36-4-114 has not
been satisfied.2




        2
          In his brief, husband says, “this is a case in which this Court can ‘soldier on’ despite the absence
of detailed findings of fact” and “this Court should elect to proceed and make [its] own determinations
regarding where the preponderance of evidence lies as necessary.” We disagree. There is no evidence in
the record to evaluate. Were we to accept husband’s suggestion, the requirement of Tenn. Code Ann. §
36-4-114 still would not be met.
                                                       -3-
       The judgment of the trial court is vacated, and the case remanded for a hearing
required by statute. Costs on appeal are assessed equally between the appellant, Robert
Wayne Slagle, and appellee, Susan Lynn Slagle.



                                        _______________________________
                                        CHARLES D. SUSANO, JR., JUDGE




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