                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                            Assigned on Briefs January 3, 2003



              JOHN OLIVER HARPER v. CATHY LYNN HARPER

                       Appeal from the Circuit Court for Blount County
                           No. E-17805     W. Dale Young, Judge

                                   FILED JANUARY 29, 2003

                                 No. E-2002-01259-COA-R3-CV




John Oliver Harper (“Husband”) sued for a divorce from Cathy Lynn Harper (“Wife”) on the basis
of Wife’s alleged habitual drunkenness. Wife was represented by counsel early in the litigation, but
was not represented when the trial occurred. Early in the morning on the day of trial, Wife was
arrested for public intoxication and was not present at trial as she was in jail. The Trial Court
entered judgment and distributed the property based solely on Husband’s testimony and/or that of
his witnesses. Wife filed a motion for relief from the judgment and attempted to offer proof as to
why she was unable to be at trial. The Trial Court refused Wife the opportunity to present proof why
it was not her fault she was not present at trial, and denied her motion for relief from the judgment.
We vacate and remand.


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


D. MICHAEL SWINEY, J., delivered the opinion of the court, in which HOUSTON M. GODDARD , P.J.,
and HERSCHEL P. FRANKS , J., joined.


Robert W. White, Maryville, Tennessee, for the Appellant Cathy Lynn Harper.


Jerry G. Cunningham, Maryville, Tennessee, for the Appellee John Oliver Harper.
                                             OPINION

                                            Background

                Husband sued Wife for divorce on September 30, 1998. The parties were married
in April of 1995 and had two minor children, ages 3 and 1, when the complaint for divorce was filed.
As grounds for divorce, Husband alleged Wife was guilty of habitual drunkenness or, alternatively,
that irreconcilable difference had arisen between the parties. Husband claimed Wife had threatened
him, and he sought custody of the minor children as well as a restraining order.

                Wife obtained counsel and filed an Answer to the Complaint. Wife denied the
pertinent allegations of the complaint, although she admitted irreconcilable differences between the
parties existed. Wife filed a counter-complaint for divorce, claiming Husband was guilty of habitual
drunkenness and that Husband had physically abused her. Wife sought custody of the children in
the counter-complaint.

               Although not entirely clear from the record, it appears Husband received temporary
custody of the children and Wife was granted visitation. Wife also was restrained from interfering
with Husband’s exercise of custody until a hearing was held on Husband’s motion for a restraining
order.

                The next pertinent document in the record is a Final Judgment of Absolute Divorce
(“Final Judgment”) entered after a trial. Neither Wife nor any attorney representing Wife was
present at the trial. In the Final Judgment, the Trial Court stated as follows:

                       THIS MATTER CAME ON TO BE HEARD on this the 28th
               day of March, 2002, before the Honorable W. Dale Young, Judge of
               the Circuit Court for Blount County, Tennessee, upon the Complaint
               for Divorce of [Husband] …, the Answer and Counter-Complaint of
               [Wife] …, together with the Answer to the Counter-Complaint. The
               Court further finds that … [Wife] has had numerous attorneys and
               was served with proper Notice of today’s hearing and that she has
               failed to appear to defend or prosecute the matter, and after having
               been called by the bailiff to appear the statutory three times, the Court
               is of the opinion that the matter should proceed.

              After the trial, Husband was granted an absolute divorce on the basis of inappropriate
marital conduct of Wife. The Trial Court ordered the parties to divide their personal property
equitably. Husband was awarded the martial residence, subject to the mortgage. Husband also was




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awarded his retirement account as his separate property. Each party was held responsible for his or
her own indebtedness.1

               After entry of the Final Judgment, Wife filed a Motion seeking relief from the Final
Judgment pursuant to Tenn. R. Civ. P. 55, 59, and 60. In this Motion, Wife claimed she was not
properly served with notice of the hearing. As pertinent to this appeal, she also stated:

                           [Wife] would submit that it was an impossibility for her to
                   appear at said hearing on the 28th day of March, 2002, given the fact
                   that she was incarcerated in the Knox County Jail at said date and
                   time.… [Wife] would submit that the division of property both
                   personal and realty is far from equitable ….

                 Although Wife was represented by counsel early in the litigation, the parties
reconciled for a brief period of time and her attorney had withdrawn from the case. Wife was not
represented by an attorney on March 28, 2002, the date of the trial. A hearing was held on Wife’s
motion seeking relief from the judgment. Wife was represented by counsel at this hearing. The issue
of whether or not Wife was served properly with notice of the March 28, 2002 hearing was resolved
against Wife, and Wife does not raise that as an issue on appeal. When discussing why Wife was
not present at the trial, Wife’s counsel informed the Trial Court that Wife had been arrested for
public intoxication, but the charge was later dismissed. Wife claims she called, while in jail, Jean
Monroe of the Knoxville bar asking her to notify the Court about her situation. Wife left a message
on Ms. Monroe’s answering machine, but the message was not retrieved in time for Ms. Monroe to
notify the Court.2

                 The Trial Court overruled Wife’s motion for relief from the Final Judgment and, as
stated in the Court’s Order, refused “to hear any proof related to said motion.” Accordingly, Wife
made an offer of proof setting forth why she was not present at trial. In her offer of proof, Wife
explained she was living with a cousin who had gone out of town. Her cousin’s son and Wife do
not get along. Wife had a couple glasses of wine; there was an argument; and her cousin’s son
proceeded to lock Wife out of the house. This occurred at approximately 12:30 in the morning.
Wife decided to call a cab to take her to her daughter’s house. Wife knocked on various neighbors’
doors asking to use a phone to call a cab. According to Wife, an elderly gentleman apparently
became “scared” and called the police. Wife eventually was able to call a cab, which arrived about
the same time as the police. The police would not let Wife leave in the cab. Wife stated the police
officer(s) realized she was not intoxicated and attempted to find Wife a place to stay by calling her
daughter and ex-husband. When the police were unable to get in touch with anyone, they told Wife
they could not just leave her outside, and so they took her to jail.

         1
            Apparently, while this divorce case was pending, custody of the parties’ two minor ch ildren w as plac ed with
the paternal Grandparents pursuant to an Order of the Blount County Juvenile Court. The custody of the children is not
at issue on app eal.

         2
             It does not ap pear M s. Monro e ever actually represented W ife during the divorce pro ceed ings.

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              Wife appeals the Trial Court’s refusal to grant her relief from the Final Judgment.
On appeal, Wife claims she is entitled to relief pursuant to Rules 55 and 60 of the Tenn. R. Civ. P.

                                               Discussion

                The factual findings of the Trial Court are accorded a presumption of correctness, and
we will not overturn those factual findings unless the evidence preponderates against them. See
Tenn. R. App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001). With respect to legal
issues, our review is conducted “under a pure de novo standard of review, according no deference
to the conclusions of law made by the lower courts.” Southern Constructors, Inc. v. Loudon County
Bd. Of Educ., 58 S.W.3d 706, 710 (Tenn. 2001). The Trial Court’s decision to deny relief under
Rule 60.02 is reviewed under an abuse of discretion standard. See, e.g., Day v. Day, 931 S.W.2d
936, 939 (Tenn. Ct. App. 1996).

                 Initially, Wife claims the Final Judgment was a default judgment pursuant to Rule
55 because it was entered without her presence at trial. Wife claims pursuant to Rule 55.02, a default
judgment can be set aside in accordance with Rule 60.02. A similar situation was confronted by this
Court in Mohan v, Mohan, 1998 Tenn. App. LEXIS 669 (Tenn. Ct. App. Oct. 9. 1998). In Mohan,
the husband answered his wife’s complaint for divorce and also filed a counter-complaint. Mohan,
1998 Tenn. App. LEXIS 669 at *8. The husband was unable to be at trial because of a “family
emergency”. The trial court proceeded with the trial and entered judgment based on the wife’s
testimony. Id. at *6 - *8. On appeal, the husband characterized the final judgment as a default
judgment, noting the Tennessee Supreme Court has cited with approval federal cases indicating “that
great liberality should be applied in granting Rule 60 Motions in cases of default judgments since
the interests of justice are best served by a trial on the merits only after a careful study of all relevant
evidence.” Mohan, 1998 Tenn. App. LEXIS 669 at *7 (citing Tennessee Dep’t of Human Servs. v
Barbee, 689 S.W.2d 863, 866 (Tenn. 1985)). The Mohan court flatly rejected the husband’s
argument that the judgment was properly characterized as a default judgment, stating:

                        Initially, we reject the Husband's characterization of the
                decision below as a default judgment. Rule 55.01 of the Tennessee
                Rules of Civil Procedure provides that a default judgment may be
                entered "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 affidavit or otherwise." The
                Husband did not fail to plead or defend in this case. The Husband,
                through his attorney, filed an answer and counter complaint to the
                Wife's complaint for divorce. He filed other motions including a
                motion to continue the case in light of an alleged "family emergency."
                The Husband's attorney was present at the trial. The statement of
                evidence included in the record indicates that the Husband's attorney
                presented at least some evidence in rebuttal and argued before the
                court at the final hearing.


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Mohan, 1998 Tenn. App. LEXIS 669 at *7, *8.

                We agree with both the reasoning and the result in Mohan. In the present case, Wife
filed an answer and a counter-complaint. Other motions were filed by Wife during the course of the
litigation and an agreed order was entered. Wife did not fail to plead or otherwise defend in this
case. She did plead and did defend. She just was not present at trial. Wife’s absence at trial does
not magically convert the final judgment into a default judgment. We reject Wife’s argument that
a default judgment was entered in this case.

              Wife makes a separate argument that the Trial Court erred in denying her relief from
the judgment pursuant to Rules 60.02(1) and 60.02(5) of the Tenn. R. Civ. P. These Rules provide
as follows:

               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; . . . or (5) any other reason justifying
               relief from the operation of the judgment.

                Rule 60.02 is not for use by a party merely because she is dissatisfied with the results
of the case. Toney v. Mueller Co., 810 S.W.2d 145, 146 (Tenn. 1991); NCNB National Bank of
North Carolina v. Thrailkill, 856 S.W.2d 150, 153 (Tenn. Ct. App. 1993). The principle of finality
is firmly embedded in the procedural rules and, therefore, Rule 60.02 is an escape valve that should
not be easily opened. Toney v. Mueller Co., 810 S.W.2d 145, 146 (Tenn. 1991); NCNB National
Bank of North Carolina v. Thrailkill, 856 S.W.2d 150, 153 (Tenn. Ct. App. 1993). “[M]ere
negligence or inattention of a party is no ground for vacating a judgment against him. Carelessness
is not synonymous with excusable neglect.” Food Lion v. Washington County Beer Bd., 700 S.W.2d
893, 896 (Tenn. 1985); NCNB National Bank of North Carolina v. Thrailkill, 856 S.W.2d 150, 153
(Tenn. Ct. App. 1993). The burden is on Wife in the present case to show why she was justified in
failing to avoid any mistake, inadvertence, surprise, or neglect. Toney v. Mueller Co., 810 S.W.2d
145, 146 (Tenn. 1991); Hopkins v. Hopkins, 572 S.W.2d 639, 640 (Tenn. 1978).

                Despite its broad language, Rule 60.02(5) is construed narrowly. Federated
Insurance Co. v. Lethcoe, 18 S.W.3d 621, 625 (Tenn. 2000); NCNB National Bank of North
Carolina v. Thrailkill, 856 S.W.2d 150, 154 (Tenn. Ct. App. 1993); Steioff v. Steioff, 833 S.W.2d
94, 97 (Tenn. Ct. App. 1992). The standards of Rule 60.02(5) are even more demanding than those
applicable to the other grounds for Rule 60.02 relief. NCNB National Bank of North Carolina v.
Thrailkill, 856 S.W.2d 150, 154 (Tenn. Ct. App. 1993); Duncan v. Duncan, 789 S.W.2d 557, 564
(Tenn. Ct. App. 1990)(citing Tenn. Dept. of Human Services v. Barbee, 689 S.W.2d 863, 866 (Tenn.
1985)).

               In her offer of proof, Wife describes a series of events which, if true, could lead one
to believe she was the innocent victim of circumstance when she was arrested. We note the charge


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of public drunkenness was dismissed, at least according to Wife’s offer of proof. The dismissal of
the criminal charge could have come about for various reasons. For example, she may have been
found not guilty. The charge may have been dismissed for reasons not related to her guilt or
innocence. The record contains no explanation as to why the criminal charge was dismissed. If Wife
was not intoxicated and had otherwise engaged in no conduct warranting her arrest, as she claims,
then we believe she would be entitled to relief from the Final Judgment under either Rule 60.02(1)
or 60.02(5). Wife should not lose her day in court if she did nothing to justify her arrest. On the
other hand, if Wife’s arrest was justified by her actions, such as public intoxication or disorderly
conduct, then she has no basis under Rule 60 to complain of the result reached by the Trial Court in
her absence. Unfortunately, Wife never was given the opportunity to present proof as to what
happened. Under the record before us, we hold the Trial “Court’s refusal to hear any proof related
to said motion . . .” was error.

                 Accordingly, we vacate and remand the decision of the Trial Court overruling Wife’s
Rule 60 motion for relief from the judgment. On remand, Wife has the burden of proving that her
arrest was not justified by her actions that morning. We do not hold that Wife’s absence is
sufficient, by itself, to justify Rule 60 relief from the judgment. We hold only that Wife shall be
given an opportunity to explain the events which occurred on the morning of trial that resulted in her
being unable to be present at trial. Husband, likewise, shall be given the opportunity to offer
countervailing proof. If Wife meets this burden of showing that her arrest was not justified by her
actions, then she is entitled to relief under Rule 60. If she does not, she is entitled to no relief under
Rule 60.

                                              Conclusion

                The judgment of the Trial Court is vacated, and this cause is remanded to the Trial
Court for such further proceedings as required consistent with this Opinion. The costs on appeal are
assessed against the Appellee, John Oliver Harper.




                                                         ___________________________________
                                                         D. MICHAEL SWINEY, JUDGE




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