                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                                 July 13, 2010 Session

    CRISTINA SUZANNE WARREN v. TIMOTHY THOMAS WARREN

               Appeal from the Circuit Court for Montgomery County
                No. MC-CC-CV-DV-07-484         Ross H. Hicks, Judge


                 No. M2009-02255-COA-R3-CV - Filed April 29, 2011


Wife filed a complaint seeking a divorce and child support from Husband. Husband filed
no answer or counterclaim, but caused to be served upon Wife a summons directing Wife to
defend a civil action against her. Husband then filed and served upon Wife a notice of a
hearing for default divorce. The trial court entered a Final Decree of Absolute Divorce
awarding Husband a divorce based on inappropriate marital conduct and entered Husband’s
proposed parenting plan designating Husband as the primary residential parent. Nearly a year
later Wife filed a Rule 60.02 motion seeking to have the Final Decree set aside on the
grounds of (1) mistake, inadvertence or surprise, (2) fraud, misrepresentation, and
misconduct, and (3) the judgment was void. The trial court denied Wife’s Rule 60.02
motion, and Wife appeals. Because the Final Decree of Divorce was not void and because
of the circumstances surrounding Wife’s motion, we affirm the trial court.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

P ATRICIA J. C OTTRELL, P.J., M.S., delivered the opinion of the Court, in which F RANK G.
C LEMENT, J R. and A NDY D. B ENNETT, JJ., joined.

Benjamin K. Dean, Clarksville, Tennessee, for the appellant, Cristina Suzanne Warren.

Mark R. Olson, Clarksville, Tennessee, for the appellee, Timothy Thomas Warren.


                                        OPINION

      This appeal concerns the trial court’s denial of a Rule 60.02(3) motion under the
Tennessee Rules of Civil Procedure to set aside the Final Decree of Divorce and
accompanying Parenting Plan entered by the trial court.
                                      I. B ACKGROUND

       The following facts are not in dispute. In May of 2007, Cristina S. Warren (“Wife”)
filed a complaint seeking a divorce from Timothy Warren (“Husband”) based upon
irreconcilable differences. Her complaint requested child support for the parties’ five year
old daughter and contemplated that the parties would enter into a Marital Dissolution
Agreement and Parenting Plan. Almost a year later, in April of 2008, Husband filed an
answer wherein he admitted all statistical data in Wife’s complaint and admitted
irreconcilable differences existed as a grounds for divorce. The only denial of substance was
Wife’s request for child support. Husband did not file or include a counterclaim in his
answer.

        Although Husband filed no counterclaim against Wife, he caused to be served upon
her a summons in July of 2008 to defend a civil action against her. The printed summons
noted failure to defend would result in a default judgment. There was no document attached
to the summons or described therein and no counterclaim was filed.

       Then, while Husband filed no motion for default judgment, Husband filed and served
upon Wife a Notice of Hearing for Default Divorce set for September 12, 2008. The notice
likewise failed to describe or attach any other pleading. Consequently, although Husband
filed no counterclaim or motion for default judgment, Wife was given notice of a hearing.

        On September 12, 2008, the trial court entered a Final Decree of Absolute Divorce
awarding Husband a divorce based on inappropriate marital conduct. Although Wife was
not present, the court found Wife had been properly served. As to marital property and debts,
the trial court found it appeared that the parties had separated their property and debts, so it
awarded the parties the property in their possession and their own debts. The trial court
entered Husband’s proposed Parenting Plan which designated Husband as the primary
residential parent and gave Wife 75 days of visitation annually. The order also restored
Wife’s maiden name. As to child support, the Parenting Plan provided as follows:

       Both Parties agree that the Father shall be responsible for the child’s expenses
       and care and no child support shall be owed by Mother to Father because of
       the disparity in income.

       The record shows that a copy of the Final Decree was sent to Wife at the same address
as was used throughout.

      Almost a year later, on August 17, 2009, Wife filed a combined Petition to Modify
Child Custody and Support, Motion to Set Aside Default Judgment and Motion to Compel

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Mediation. Wife sought to have the Final Decree set aside under Rule 60 on the grounds of
(1) mistake, inadvertence or surprise, (2) fraud, misrepresentation, and misconduct and, (3)
the judgment was void.1 The trial court denied Wife’s request to set aside the Final Divorce
Decree and found as follows:

        Came the Plaintiff by and through counsel, pursuant to Rule 60, and did move
        the Court to set aside the default judgment entered against the Plaintiff on the
        12th day of September 2008, based upon argument that the default judgment
        entered by the Court is a void judgment because the Defendant did not ever
        file a Counter Claim or appropriate Motion for Default with the Court upon
        which to obtain a default judgment.

        After . . . hearing the argument of counsel for both parties and reviewing the
        entire court file in this matter, the Court finds that the Notice of Hearing for
        the Default Judgment has a certificate of service indicating the Plaintiff was
        served with a copy of the Notice of Entry of Default. Further, the Court heard
        proof from witnesses at the September 12, 2008 default hearing prior to
        granting the Default Judgment. For these reasons, the Court finds that the
        Plaintiffs’ Rule 60 Motion is not well taken, and is hereby denied.

                        II. S TANDARDS FOR R ELIEF U NDER R ULE 60.02

        Wife appeals arguing that the trial court erred in denying relief under Tenn. R. Civ.
P. 60.02. As Husband correctly asserts, this court’s review of a trial court’s decision to grant
relief under Rule 60 is limited to whether the trial court abused its discretion. Henry v.
Goins, 104 S.W.3d 475, 479 (Tenn. 2003). The abuse of discretion standard requires us to
consider whether the court “applied an incorrect legal standard or reached a decision which
is against logic or reasoning that caused an injustice to the party complaining.” Id. Rule
60.02 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)


        1
         As part of the petition to modify, Wife alleged that Husband allowed Wife to have custody
significantly more than that described in the Parenting Plan, and Wife believed that Husband’s cooperation
would diminish with this filing. Wife also alleged she should be awarded child support given her increased
time with the child. It does not appear Wife objected to the divorce itself or the division of the parties’
property.


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       fraud (whether heretofore denominated as 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 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.

Tenn. R. Civ. P. 60.02.

        Relief under Rule 60.02 is considered “an exceptional remedy,” Nails v. Aetna Ins.
Co., 834 S.W.2d 275, 294 (Tenn. 1992), and the burden is on the movant to prove entitlement
to relief, Banks v. Dement Constr. Co., Inc., 817 S.W.2d 16, 18 (Tenn. 1991). The function
of the rule is “to strike a proper balance between the competing principles of finality and
justice.” Banks, 817 S.W.2d at 18. In examining the purpose of Tenn. R. Civ. P. 60.02, our
Supreme Court has said:

       Rule 60.02 acts as an escape valve from possible inequity that might otherwise
       arise from the unrelenting imposition of the principle of finality imbedded in
       our procedural rules. Because of the importance of this “principle of finality,”
       the “escape valve” should not be easily opened.

Banks, 817 S.W.2d at 18 (quoting Toney v. Mueller Co., 810 S.W.2d 145, 146 (Tenn. 1991)
(internal quotation and citation omitted)).

       A. Void Judgment

      On appeal, Wife argues that the trial court erred in denying relief under Rule 60.02(3)
because the Final Decree of Divorce was void.

       To be found void under Rule 60.02(3), a judgment must have been rendered by a court
lacking jurisdiction over the subject matter or the parties or acting in some other manner
inconsistent with the requirements of due process. Magnavox Co. v. Boles & Hite Constr.
Co., 583 S.W.2d 611, 613 (Tenn. Ct. App. 1979). In New York Casualty Co. v. Lawson, 24
S.W.2d 881 Tenn. (1930), our Supreme Court said:

       A void judgment is one which shows upon the face of the record a want of
       jurisdiction in the court assuming to render the judgment, which want of
       jurisdiction may be either of the person, or of the subject-matter generally, or
       of the particular question attempted to be decided or the relief assumed to be
       given.

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24 S.W.2d at 883 (citations omitted).

      More recently the Tennessee Supreme Court has clearly stated the test for determining
whether a judgment, specifically a divorce decree, is void:

       . . . where the Court has general jurisdiction of the subject matter and
       jurisdiction over the parties, and where the Court’s decree of divorce is not
       “wholly outside of the pleadings,” a divorce decree will not be deemed void.
       It follows that absent such a prima facie void decree, a flaw in procedure will
       not render a decree void.

Gentry v. Gentry, 924 S.W.3d 678, 681 (Tenn. 1996).

     In Gentry, the Court relied upon the following excerpt from Gibson's Suits in
Chancery:

       The Chancery Court is a Superior Court of general Equity jurisdiction, and all
       of its decrees are presumed to be valid, and this presumption is conclusive
       against collateral attack, unless it affirmatively appears, on the face of the
       record itself: (1) that the Court had no general jurisdiction of the subject matter
       of the litigation; or (2) that the decree itself is wholly outside of the pleadings,
       and no binding consent thereto is shown in the record; or (3) that the Court had
       no jurisdiction of the party complaining, in person or by representation of
       interest; in which case it is void only as to such party, or his privies.

       A decree is absolutely void if it appears on the face of the record itself either
       that the Court had no general jurisdiction of the subject matter, or that the
       decree is wholly outside of the pleadings, and no consent thereto appears. A
       decree is void as to any person shown by the record itself not to have been
       before the Court in person, or by representation. A decree not prima facie void
       is valid and binding, until it is either (1) reversed by the Supreme Court, or by
       the Court of Appeals; or (2) is set aside on a complaint filed to impeach it.

Gentry, 924 S.W.3d at 680 (citing William H. Inman, Gibson’s Suits in Chancery § 228 at
219-20 (7th ed. 1988)); see Dykes v. Compton, 978 S.W.3d 528, 529 (Tenn. 1998) (holding
that a void judgment is one in which the judgment is facially invalid because the court did
not have the statutory authority to render such judgment, while a voidable judgment is one
which is facially valid and requires proof beyond the face of the record or judgment to
demonstrate its voidableness); Tate v. Ault, 771 S. 416, 419 (Tenn. Ct. App. 1989) (holding
that a judgment is void “only if the court rendering it lacked jurisdiction of the subject matter

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or of the parties, or if it acted in a manner inconsistent with due process of law”).

        Wife’s appeal of the trial court’s denial of relief under Rule 60.02(3) must fail because
the Final Decree was not void. The procedures followed herein do not comply with the
requirements for default judgment set out in Tenn. R. Civ. P. 55.2 Those defects would have
resulted in a vacating of the judgment had they been raised in a direct appeal. However, as
disturbing as these procedural flaws are, they do not render the judgment void. Gentry, 924
S.W.3d at 681 (holding that a flaw in procedure will not render void a decree that is valid on
its face).

         The judgment herein is not void on its face. Wife acknowledges, as she must since
she filed the complaint for divorce, that the trial court had jurisdiction over the subject matter
and both parties. Similarly, she cannot contest that the trial court had authority to render the
relief it did.

        Accordingly, we find that the judgment was not void, but rather, was voidable.

        B. Other Rule 60.02 Grounds

       Wife also argues that the default judgment should have been set aside pursuant to
Tenn. R. Civ. P. 60.02 and the principles relating to default judgments. The rule governing
default judgments provides, in pertinent part, that a default judgment may be set aside “for
good cause shown” and in accordance with Tenn. R. Civ. P. 60.02. Tenn. R. Civ. P. 55.02.
Wife does not specify the section of Rule 60.02 upon which she relies. Based upon context,
however, we believe her argument relates to Rule 60.02(1). That section authorizes relief
where the judgment was the result of mistake, inadvertence, surprise, or excusable neglect.

       “In determining whether excusable neglect existed on behalf of the moving party, ‘the
burden is on the movant to set forth, in a motion or petition and supporting affidavits, facts
explaining why the movant was justified in failing to avoid the mistake, inadvertence,
surprise or neglect.’” Ferguson v. Brown, 291 S.W.3d 381, 388 (Tenn. Ct. App. 2008)
(quoting Tennessee Dep’t. of Human Services v. Barbee, 689 S.W.2d 863, 866 (Tenn. 1985)).

        Additionally, the question of whether any neglect was excusable is to be determined


        2
         For example, we are puzzled that Husband’s attorney did not file a motion for default judgment, but
nonetheless sent Wife a notice of a default judgment hearing. Similarly, Husband did not file a counterclaim,
but nonetheless sent Wife a summons requiring her to answer a nonexistent pleading. We find these actions
problematic, and, in other circumstances, they would surely have been unsuccessful. It should be noted that
Husband’s counsel on appeal did not represent Husband before the trial court.

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by considering “all relevant circumstances surrounding the party’s omission.” Id. (quoting
State ex rel. Sizemore v. United Physicians Ins. Risk Retention Group, 56 S.W.3d 557, 567
(Tenn. Ct. App.2001)). Among the circumstances that may be involved in the “big picture
of both causes and effects” are:

        (1) the danger of prejudice to the party opposing the late filing, (2) the length
        of the delay and its potential impact on proceedings, (3) the reason why the
        filing was late and whether that reason or reasons were within the filer’s
        reasonable control, and (4) the filer’s good or bad faith. These circumstances
        must be weighed both with and against each other because, if considered
        separately, they may not all point in the same direction in a particular case.

Ferguson v. Brown, 291 S.W.3d 388. Tennessee Rule of Civil Procedure 60.02 allows a
trial court to relieve a party from a final judgment “on motion and upon such terms as are
just.” Thus, the decision is an equitable one, considering all relevant circumstances.

        Wife primarily argues that the law governing default judgments applies and would
require that the judgment be set aside. Generally, a trial court should set aside such a
judgment if there is a reasonable question as to the grounds for relief. The relevant criteria
are: 1) whether the failure to respond or answer (the default) was willful; 2) whether the
defendant has asserted a meritorious defense; and 3) the extent of any prejudice to the
plaintiff if relief is granted. Nelson v. Simpson, 826 S.W.2d 483, 485 (Tenn. Ct. App. 1991);
Tennessee Dep’t of Human Servs. v. Barbee, 689 S.W.2d at 867; see Henry v. Goins, 104
S.W.3d 475, 482 (Tenn. 2003).

        Wife failed to introduce any proof at the Rule 60 hearing to establish a defense or any
error by the court in the Final Decree. Wife asked for and received a divorce and appears to
agree with the distribution of the property and assets. She has presented arguments only as
to the residential placement and child support decisions.

        Among the relevant circumstances herein is the fact that Wife did not file her Rule 60
motion until eleven months after the entry of the judgment she seeks to set aside. Wife
argued to the trial court that she did not receive actual notice of the default hearing, but the
trial court found that the certificate of service on the notice indicated Wife had been served.3
 In any event, Wife does not argue that she received notice that the decree had been entered.


        3
          Wife argues that since the certificate was not dated, it was not effective. The trial court actually
said that the certificate on the notice of the default hearing indicated Wife had been served with the Notice
of Entry of Default. We think the trial court simply misstated and that it meant that the certificate of service
on the notice of the default hearing indicated Wife was served with notice of the default hearing.

                                                      -7-
She acknowledged that she received “the already executed divorce decree by default, which
was missing several pages.” Nowhere in the record do we find any explanation for Wife’s
delay in seeking to set aside the divorce decree. During the period of time between entry of
the decree and the filing of Wife’s motion, residential placement of the child has followed
the plan set out in the decree. Presumably, both parties have proceeded as unmarried persons
and have enjoyed use of the property each received in the divorce decree.

         Had Wife sought to have the decree set aside promptly upon notice of it, we would
agree that it should have been set aside due to the deficiencies in the procedures. However,
we do not believe that it would be appropriate to set it aside after such a long delay. Rule
60.02 does not “permit a litigant to slumber on her claims and then belatedly attempt to
relitigate issues long since laid to rest.” Thompson v. Firemen’s Fund Ins. Co., 798 S.W.2d
235, 238 (Tenn. 1990). Although Rule 60.02 gives the courts broad authority, “this power
‘is not to be used to relieve a party from free, calculated and deliberate choices it has made.’”
Federated Ins. Co., 18 S.W.3d at 625 (quoting Banks, 817 S.W.2d at 19).

       We affirm the trial court’s denial of the motion to set aside the divorce decree.

                                      III. C ONCLUSION

       The trial court is affirmed. Costs are assessed against Cristina S. Warren for which
execution may issue if necessary.


                                                     _________________________________
                                                     PATRICIA J. COTTRELL, P.J., M.S.




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