                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                OCTOBER 13, 2009 Session

                 DAMON A. TATUM v. MERCEDEAS A. TATUM

                   Direct Appeal from the Circuit Court for Shelby County
                         No. CT-002175-08     Kay S. Robilio, Judge



                     No. W2009-00566-COA-R3-CV - December 10, 2009


Wife filed a divorce complaint in Judge Robilio’s court, which she later voluntarily dismissed. Wife
then filed a complaint in the Court of the Judiciary against Judge Robilio. Subsequently, Husband
filed a complaint for divorce, and the matter was set in Judge Robilio’s court. Wife filed a motion
to dismiss for insufficient service of process of Husband’s divorce complaint, which was denied after
the process server identified Wife as the person he had served.

Wife failed to appear at the hearing on Husband’s divorce complaint, and a guardian ad litem was
appointed. Husband then filed a motion for default. Wife was notified that the default hearing
would take place on October 24, but the hearing was actually held on October 23. When Wife failed
to appear, a default judgment was entered against her. After entry of the final decree of divorce,
Wife filed a motion for recusal, which was denied.

On appeal, Wife claims that service of process was falsified, that she did not receive notice of the
October 23 hearing, and that Judge Robilio should have recused herself. We affirm the trial court’s
finding that service of process was properly made, and that a guardian ad litem was properly
appointed. We also affirm the trial court’s denial of Wife’s motion for recusal. However, because
Wife was not afforded notice of the default hearing, we vacate, as void, the default judgment entered
against Wife. This case is remanded for a trial on the merits. All matters, including custody, shall
remain in status quo pending further resolution in the trial court.


 Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Circuit Court Affirmed in Part,
                             Vacated in Part and Remanded

ALAN E. HIGHERS, P.J.,W.S., delivered the opinion of the court, in which DAVID R. FARMER , J., and
HOLLY M. KIRBY , J., joined.

Ivan D. Harris, Jr., Collierville, TN, for Appellant

Gail W. Horner, Germantown, TN, for Appellee
                                             OPINION

                               I. FACTS & PROCEDURAL HISTORY

         Damon A. Tatum (“Husband”) and Mercedeas A. Tatum (“Wife”) separated and initially
filed a divorce action in the State of Missouri, which was subsequently dismissed. Thereafter, Wife
and the parties’ three minor children moved to Shelby County, Tennessee, where a second divorce
action was initiated by Wife. Wife voluntarily dismissed her complaint for divorce, and Husband
filed a complaint for divorce on May 2, 2008, in the Shelby County Circuit Court. Husband’s
divorce complaint was set for a hearing on June 23, 2008.

        Wife filed a motion to dismiss for insufficient service of process on June 6, 2008, claiming
that the service of process filed with the court had been falsified. Wife’s motion was set for a
hearing on August 7, 2008. Wife failed to appear on August 7, and instead had her parents appear
to contest service of process. The matter was continued to August 29, 2008.

       Wife’s parents appeared on August 29 pursuant to a subpoena to appear and produce the
minor children of the parties. Wife’s parents failed to produce the minor children, and they stated
under oath that neither of them had any information as to the whereabouts of Wife or the children
except that they were in California. Wife’s father then telephoned Wife from the courtroom, and
Wife was placed on a conference call. Wife stated that she and the children were in California, and
she requested that her motion to dismiss be heard. The trial court, in its order, noted its “reasonable
concern regarding the welfare of the minor children [due to the court’s inability] to obtain any
information regarding the location or status of the children[,]” and Wife verbally agreed to appear
on September 19, 2008, the date to which the matter was reset.

       Wife, again, failed to appear at the special hearing on September 19. At the hearing,
Husband’s counsel presented a sworn statement of the private process server stating that the person
served on May 8, 2008, was, in fact, Wife. Additionally, the process server identified a photograph
of Wife as the person served. The trial court found that Wife was properly served, and it dismissed
Wife’s motion to dismiss for failure to prosecute. The trial court issued an Attachment Pro Corpus
based on Wife’s failure to appear.

       Meanwhile, Wife failed to appear at the June 23 hearing on Husband’s divorce complaint.
Following the hearing, the trial court entered an order appointing a Guardian Ad Litem and allowing
Husband supervised parenting time with the children. Husband filed a “Motion for Judgment by
Default” on July 23, 2008. Husband’s motion was initially set for a hearing on September 5, 2008,
but Wife was notified that the motion had been reset for Friday, October 24, 2008.

       Due to a “conflict,” Husband’s motion for default judgment was heard on Thursday, October
23, 2008, and a default judgment was taken against Wife on that date. A “Final Decree of Absolute
Divorce” was entered on December 8, 2008, naming Husband as the primary residential parent and
awarding him immediate physical custody of the parties’ children. Wife’s motion to alter or amend


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the final decree or to set aside the default judgment pursuant to Tennessee Rule of Civil Procedure
60.01 was denied on February 13, 2009. Wife timely appealed to this Court. Wife filed a motion
to transfer the case or for a recusal of the trial judge, which was denied on May 13, 2009.

                                      II. ISSUES PRESENTED

        Appellant has timely filed her notice of appeal and presents the following issues for review,
restated as follows:

1.     Was the service of process valid;
2.     Was the Guardian Ad Litem properly appointed;
3.     Was the default judgment proper;
4.     Should the trial judge have recused herself; and
5.     Was the Attachment Pro Corpus valid.


                                    III.    STANDARD OF REVIEW

        On appeal, a trial court’s factual findings are presumed to be correct, and we will not overturn
those factual findings unless the evidence preponderates against them. Tenn. R. App. P. 13(d)
(2008); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001). For the evidence to preponderate
against a trial court’s finding of fact, it must support another finding of fact with greater convincing
effect. Watson v. Watson, 196 S.W.3d 695, 701 (Tenn. Ct. App. 2005) (citing Walker v. Sidney
Gilreath & Assocs., 40 S.W.3d 66, 71 (Tenn. Ct. App. 2000); The Realty Shop, Inc. v. RR
Westminster Holding, Inc., 7 S.W.3d 581, 596 (Tenn. Ct. App. 1999)). When the trial court makes
no specific findings of fact, we review the record to determine where the preponderance of the
evidence lies. Ganzevoort v. Russell, 949 S.W.2d 293, 296 (Tenn. 1997) (citing Kemp v. Thurmond,
521 S.W.2d 806, 808 (Tenn. 1975)). We accord great deference to a trial court’s determinations on
matters of witness credibility and will not re-evaluate such determinations absent clear and
convincing evidence to the contrary. Wells v. Tennessee Bd. of Regents, 9 S.W.3d 779, 783 (Tenn.
1999) (citations omitted). We review a trial court’s conclusions of law under a de novo standard
upon the record with no presumption of correctness. Union Carbide Corp. v. Huddleston, 854
S.W.2d 87, 91 (Tenn. 1993) (citing Estate of Adkins v. White Consol. Indus., Inc., 788 S.W.2d 815,
817 (Tenn. Ct. App. 1989)).

                                            IV. DISCUSSION

                                       A.    Service of Process

        As we stated above, Wife filed a motion to dismiss Husband’s divorce complaint, alleging
that the service of process filed with the court had been falsified. Wife failed to attend the hearing
on her motion on September 19, 2008, in which Grant Oster, of Brewer Detective Service, Inc.,
identified a photograph of Wife as the person whom he served on May 8, 2008. Detective Oster’s


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sworn statement was also introduced, stating that he personally served Wife on May 8, 2008.
Following the hearing, the trial court entered an order on September 24, 2008, expressly finding that
Wife was properly served.

        On January 29, 2009, after the decree of divorce was entered, Wife filed the affidavit of Amy
Suvansin, Wife’s supervisor, stating that Wife was in the State of California from May 7, 2008, to
May 9, 2008. On appeal, Wife contends that service of process was not accomplished, as she “was
out of state and not available for service of process.”

       Wife has offered no explanation as to why she did not appear at the September 19, 2008
hearing on her motion. Likewise, she has made no indication that the delay in producing Ms.
Suvansin’s affidavit was reasonable or necessary. Accordingly, the trial court’s finding that service
was properly made upon Wife is affirmed. See Tenn. R. App. P. 36(a).


                                      B.    Guardian Ad Litem

        Next, Wife argues that the appointment of the Guardian Ad Litem arising from the June 23,
2008 hearing was invalid, as Wife was not properly served with notice of such hearing. For the
reasons set forth above, this issue is without merit.

                                       C.   Default Judgment

        Tennessee Rule of Civil Procedure 55.01 requires that “[a]ll parties 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.” Rule 55.02 further provides that “[f]or good cause shown the court may set aside
judgment by default in accordance with Rule 60.02.” Tenn. R. Civ. P. 55.02.

        It is uncontroverted that Wife was notified that the default hearing would take place on
October 24, when, in fact, the hearing was held on October 23. Included in the record before us is
the affidavit of courtroom clerk Mary Anderson, who stated that neither Wife, nor anyone on her
behalf, was present on October 24 for the default hearing. Husband suggests that this failure to
appear on October 24 “is a clear indication that [Wife] had no intention of appearing even had [Wife]
been informed the date was moved one day ahead to October 23, 2008.” Essentially, he claims that
Wife’s conduct does not constitute “mistake, inadvertence, surprise, or excusable neglect” for which
Rule 60.02 provides relief.

         This Court has previously explained “the distinction between cases holding that ‘a default
judgment entered without proof of proper notice is void’ and other cases stating that ‘failure of notice
is justification for excusable neglect, implying that the default judgment is merely voidable, not
void.’” Frierson v. Johnson, No. M2006-02598-COA-R3-CV, 2008 WL 555721, at *6 (Tenn. Ct.



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App. Feb. 28, 2008) (quoting Estate of Vanleer v. Karakas, No. M2001-00687-COA-R3-CV, 2002
WL 32332191, at *6 (Tenn. Ct. App. Dec. 5, 2002)).

       We think the distinction may lie in the proof of service presented to the trial court
       when the default judgment is requested. Where, as in this case, the default judgment
       was granted on the basis of counsel’s certificate of service, which constitutes proof
       of service, the judgment was validly entered at the time, and the question is whether
       it should have been set aside based upon equitable principles. Thus, the judgment
       was not void. The question of whether a default judgment entered without notice or
       compliance with other procedural requirements is primarily relevant herein to the
       question of whether, to obtain relief from the judgment, the defendant is required to
       demonstrate a meritorious defense. Generally, a party seeking to set aside a default
       judgment must show that he or she has a meritorious defense to the suit, but that
       requirement does not apply where the default judgment is void.

Id. (quoting Vanleer, at *6, n.7).


        In Reynolds v. Battles, 108 S.W.3d 249, 251 (Tenn. Ct. App. 2003), notices concerning the
motion for a default judgment and the hearing on such motion were sent to the wrong address, and
the defendants denied receiving them. Based on the improper notice, which was apparent from the
certificates of service, this Court found the “defendants’ failure to assert a meritorious defense was
not fatal to their motion to set aside the default judgment.” Frierson, 2008 WL 555721, at *6 (citing
Reynolds, 108 S.W.3d at 253); see also Decker v. Nance, No. E2005-2248-COA-R3-CV, 2006 WL
1132048, at *3 (Tenn. Ct. App. Apr. 6, 2006) (“The showing of a meritorious defense is not required
‘where the default judgment was procured in violation of the Rules of Civil Procedure.’”). However,
in Vanleer, where the defendants denied receiving notice of the default hearing, “‘though the
certificate of service appear[ed] proper in all respects[,]’” this Court found that if the defendants
could demonstrate a lack of actual notice, then they would be entitled to have the default judgment
set aside based on excusable neglect. 2002 WL 32332191, at *7.

        Rule 55.01 implicitly requires that the notice sent to the party against whom a default
judgment is sought convey the correct hearing date. Thus, the notice afforded to Wife in this case
did not meet the required procedural safeguards of Rule 55.01. Accordingly, based on the above-
cited cases, we find that the default judgment against Wife is void, rather than voidable, as it was
issued with insufficient notice, which was evident from the face of the notice. Because of the
facially insufficient notice, we need not address the issue of excusable neglect under Rule 60.02.
Id. at *7.




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                                            D.   Recusal

       Next, Wife argues that the trial judge erred in denying her motion for recusal. The basis for
Wife’s motion is somewhat unclear. Wife describes the circumstances as follows:

       The parties initially separated and filed a divorce proceeding in the State of Missouri
       which was subsequently dismissed. [Wife] relocated to Shelby County, Tennessee,
       the County where her parents reside. A new divorce action was filed in Shelby
       County; custody of the parties’ minor children was not initially at issue in that
       proceeding, however, during the course of that proceeding the trial judge sua sponte
       raised the custody issue. As a result [Wife] took a voluntary non-suit in the case and
       subsequently a complaint was filed by [Wife] with the Court of the judiciary
       concerning the conduct of the trial judge.

On appeal, Wife argues that recusal is warranted, as “the existing complaint to the Court of the
judiciary . . . . creates the potential appearance of bias[.]”

       Our Supreme Court recently discussed motions to recuse:

       Whether a trial judge should grant a motion for recusal is within the discretion of the
       trial judge. [Bd. of Prof’l Responsibility of Sup. Ct. of Tenn. v.] Slavin , 145 S.W.3d
       [538] at 546 [(Tenn. 2004)]. Such a decision “will not be reversed unless a clear
       abuse [of discretion] appears on the face of the record.” Davis v. Liberty Mut. Ins.
       Co., 38 S.W.3d 560, 564 (Tenn. 2001) (alteration in original). “[A] trial court has
       abused its discretion only when the trial court has applied an incorrect legal standard,
       or has reached a decision which is illogical or unreasonable and causes an injustice
       to the party complaining.” State v. Ruiz, 204 S.W.3d 772, 778 (Tenn. 2006).
       Tennessee Supreme Court Rule 10, Canon 3(E)(1) states, “A judge shall disqualify
       himself or herself in a proceeding in which the judge’s impartiality might reasonably
       be questioned, including but not limited to instances where: (a) the judge has a
       personal bias or prejudice concerning a party or a party’s lawyer....” We have held
       that a recusal motion should be granted when “the judge has any doubt as to his or
       her ability to preside impartially in the case” or “ ‘when a person of ordinary
       prudence in the judge’s position, knowing all of the facts known to the judge, would
       find a reasonable basis for questioning the judge’s impartiality.’ ” Davis, 38 S.W.3d
       at 564-65 (quoting Alley v. State, 882 S.W.2d 810, 820 (Tenn. Crim. App. 1994)).
       Even if a judge believes he can be fair and impartial, the judge should disqualify
       himself when “ ‘the judge’s impartiality might be reasonably questioned’ ” because
       “the appearance of bias is as injurious to the integrity of the judicial system as actual
       bias.” Id. (quoting Tenn. Sup. Ct. R. 10, Canon 3(E)(1)).




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Bean v. Bailey, 280 S.W.3d 798, 805 (Tenn. 2009).


        “A motion for recusal should be filed when the facts forming the basis of that motion become
known.” Id. at 803 (citing Davis v. Tenn. Dep’t of Employment Sec., 23 S.W.3d 304, 313 (Tenn. Ct.
App. 1999)); see also Kinard v. Kinard, 986 S.W.2d 220, 228 (Tenn. Ct. App. 1998). “The failure
to seek recusal in a timely manner may result in the waiver of any complaint concerning the judge’s
impartiality.” Id. (citing Davis, 23 S.W.3d at 313). In the instant case, Wife filed her complaint
against Judge Robilio with the Court of the Judiciary at some time prior to the filing of Husband’s
divorce complaint on May 2, 2008. On May 2, Judge Robilio set Husband’s divorce complaint for
a hearing, and Wife was properly served on May 8, 2008. Thus, on May 8, Wife was afforded notice
that Judge Robilio would hear the matter. However, wife failed to file her motion to recuse until
February 27, 2009–more than nine months after Husband’s divorce complaint was filed, and nearly
three months after the entry of the final decree of divorce. “A party cannot ‘know of [allegedly]
improper judicial conduct, gamble on a favorable result by remaining silent as to that conduct, and
then complain that he or she guessed wrong and does not like the outcome.’ ” Id. (quoting State v.
Lotter, 255 Neb. 456, 586 N.W.2d 591, 610 (1998)) (alteration in original). Because Wife failed to
timely assert her recusal basis, we find that she has waived her right to question Judge Robilio’s
impartiality. See Kinard, 986 S.W.2d at 228 (“Courts frown upon the manipulation of the
impartiality issue to gain procedural advantage and will not permit litigants to refrain from asserting
known grounds for disqualification in order ‘to experiment with the court . . . and raise the objection
later when the result of the trial is unfavorable.’” (quoting Holmes v. Eason, 76 Tenn. (8 Lea) 754,
757 (1882); Gotwald v. Gotwald, 768 S.W.2d 689, 694 (Tenn. Ct. App. 1988)).


                                   E.    Attachment Pro Corpus

       Finally, Wife asserts that the attachment pro corpus was invalidly issued against her. At oral
argument, Wife conceded that the attachment pro corpus against her has been withdrawn, and she
requested no further action of this Court. Thus, we decline to address this issue.




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                                        V. CONCLUSION

        For the aforementioned reasons, we affirm the trial court’s finding that proper service of
process was made, and we affirm its decision to deny Wife’s motion for recusal. However, we set
aside the default judgment entered against Wife, and we remand for a trial on the merits. All
matters, including custody, shall remain in status quo pending further resolution in the trial court.
Costs of this appeal are taxed equally to Appellant, Mercedeas A. Tatum, and her surety, and
Appellee, Damon A. Tatum, for which execution may issue if necessary.



                                                      ___________________________________
                                                      ALAN E. HIGHERS, P.J., W.S.




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