                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                         Assigned on Briefs September 20, 2010

                BENEDICTA KURUNWUNE OBI v. GEORGE OBI

                   Appeal from the Circuit Court for Davidson County
                        No. 08D-1360      Philip E. Smith, Judge


                   No. M2010-00485-COA-R3-CV - Filed June 1, 2011


The trial court granted the wife a judgment of divorce after the husband failed to respond to
requests for discovery and a motion to compel. After the judgment became final, the husband,
who had been represented by counsel earlier in the proceedings, filed a pro se Rule 60 motion
for relief, arguing that he was deprived of proper notice because the address on the certificates
of service appended to each unanswered motion and notice was not accurate, with the result
that he did not receive the motions and notices. The trial court denied the husband’s Rule 60
motion, but since husband’s address was incorrect on the certificates of service, we conclude
the trial court erred and should have granted the husband relief from the parenting plan and
child support provisions of the judgment. Accordingly, we reverse the trial court’s order as to
those provisions and remand the case for further proceedings.

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

P ATRICIA J. C OTTRELL, P.J., M.S., delivered the opinion of the Court, in which A NDY D.
B ENNETT, J., joined. FRANK G. C LEMENT, JR., J., filed a concurring opinion.

George Obi, Nashville, Tennessee, Pro Se.

Phillip L. Davidson, Nashville, Tennessee, for the appellee, Benedicta Kurunwune Obi.

                                          OPINION

                                   I. PRIOR PROCEEDINGS

       George Obi (“Husband”) and Benedicta Kurunwune Obi (“Wife”) were married and had
two children. Wife filed a complaint for divorce on May 9, 2008. Husband filed an Answer
denying Wife’s grounds for divorce and denying Wife was entitled to the relief she was
seeking.
       Wife served discovery on Husband, which Husband did not respond to, prompting
Wife to file a Motion to Compel. The parties agreed Husband would have an additional
twenty days in which to respond to Wife’s discovery, and the parties’ counsel jointly filed
an Agreed Order on December 11, 2008. The Agreed Order is the last document in the
record indicating that either Husband or his counsel participated in the divorce proceedings
until November 24, 2009, when Husband filed a motion pro se under Rule 60 of the
Tennessee Rules of Civil Procedure asking the court to set aside its judgment granting Wife
a divorce.

       When Wife filed her complaint Husband was living in Antioch, and the Complaint
was properly served on him at his residence, which was not on Millwood Lane. At some
point after the Complaint was served, however, Husband moved to Millwood Lane in
Nashville, but not at the address listed on subsequent certificates of service. He apparently
never received any of the filings in this case at that address from that time forward.

        On January 9, 2009, shortly after the parties’ Agreed Order was entered, Husband’s
counsel filed a motion to withdraw from representing Husband. Husband’s counsel’s
certificate of service indicated Husband was served by first class mail at 305 Millwood
Drive, C-139. This was the first appearance in the record of the incorrect address for
Husband. On January 16, 2009, the circuit court held a hearing on this motion, and by Order
entered February 12, 2009, it granted Husband’s counsel’s motion to withdraw from the case.
The court instructed Husband to obtain new counsel within 15 days or proceed pro se. This
order from the court contained a certificate of service indicating that Husband was being
served by mail at 305 Millwood Drive, C-139.

      On January 30, 2009, and again on February 4, 2009, Wife filed a motion to set trial
and hold a hearing on her motion to compel. The certificates of service attached to her
motions indicated Wife was serving Husband by mail at 305 Millwood Drive, C-135.

      On March 11, 2009, the court issued an order granting Wife’s motion to compel, and
ordered as follows:

       [T]he Defendant should have ten (10) days from the entry of this Order to
       respond to the Plaintiff’s discovery request. If the Defendant does not answer
       the Plaintiff’s discovery request within this time period, the Defendant’s
       pleadings shall be dismissed.

Wife’s counsel approved the entry of this order and certified that he sent this order to
Husband at 305 Millwood Drive, C-135. Each additional document Wife’s counsel filed
with the court contained a certificate of service indicating Husband was being served by mail

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at 305 Millwood Drive, C-135.1

        On May 20, 2009, the circuit court entered an Order dismissing Husband’s Answer
because Husband had failed to respond to Wife’s discovery as ordered on March 11. Then,
following a hearing on June 24, 2009, the court granted Wife a Final Judgment of Divorce
dated September 11, 2009. The court based its order on Wife’s testimony, witnesses who
apparently testified in court, and the documentary record. Among other things, the court
adopted the Parenting Plan Wife submitted, awarded Wife custody of the parties’ one
remaining minor child, and ordered Husband to pay Wife child support in the amount of
$131.00 each week. Again, Wife’s counsel approved the entry of this final judgment and
certified he sent the final judgment to Husband at 305 Millwood Drive, C-139.

        On November 24, 2009, Husband, acting pro se, filed a Tenn. R. Civ. P. 60 motion
for relief and to set aside the judgment.2 In his motion, Husband explained 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.” Husband wrote: “I do not reside in that address and have never resided in that
address. I was therefore denied the opportunity to present my side of the issue.” Husband
also explained in his motion that he is a full-time student, he is currently unemployed, and
that the amount Wife listed in the Child Support Worksheet as Husband’s monthly income
was incorrect. Husband asserted Wife’s income and retirement benefits were much higher
than his income and that the weekly amount of child support the court ordered Husband to
pay was more than what Husband was able to pay. Husband also complained the Parenting
Plan Wife submitted, that the court adopted, denied Husband the parental rights to which he
is entitled.

       The court held a hearing on January 25, 2010 to consider Husband’s Rule 60 motion,
which it denied in an Order dated January 29, 2010. In support of its decision, the court
wrote:

        1. The Court entered an Order on February 12, 2009, granting the Defendant’s
        attorney of record J. Todd Faulkner, permission to withdraw. In that same
        Order, the Court gave the Defendant fifteen (15) days to obtain law counsel or
        proceed pro se.



        1
            According to Husband, however, he resided at 319 Millwood Drive, not 305 Millwood Drive.
        2
         It is not apparent from the record how Husband ultimately learned of the Final Judgment of Divorce,
but clearly he became aware of it at some point after it was entered.

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       2. The Defendant did not obey the Court’s Order, failing to notify the Court
       and the attorney for the Plaintiff of his future intentions in this case.

       3. The Defendant claims the address listed on the February 12, 2009 Order
       was incorrect. If this was true, Defendant had a duty to provide the Plaintiff
       and the Court of his correct address. Defendant’s failure to provide the
       Plaintiff and the Court with his correct address prevents him from complaining
       of a lack of notice of subsequent actions by the Plaintiff and the Court.

       Husband, acting pro se, duly filed a notice of appeal. Husband claims the trial court
erred in denying his Rule 60 motion because he did not receive notice of Wife’s divorce
proceedings once his attorney withdrew from the case and, through no fault of his own, he
was unable to defend Wife’s allegations against him. Husband also claims he was denied
due process of law.

                                II. S TANDARD OF R EVIEW

        We give great deference to the trial court in reviewing its decision to grant or deny
relief pursuant to a motion filed under Rule 60.02 and will not set aside the trial court’s
ruling unless we find the court has abused its discretion. Henry v. Goins, 104 S.W.3d 475,
479 (Tenn. 2003) (citing Underwood v. Zurich Ins. Co., 854 S.W.2d 94, 97 (Tenn. 1993)).
An abuse of discretion is found in the following circumstances:

       a trial court has applied an incorrect legal standard, or reached a decision
       which is against logic or reasoning that caused an injustice to the party
       complaining. The abuse of discretion standard does not permit an appellate
       court to merely substitute its judgment for that of the trial court.

Henry, 104 S.W.3d at 479 (citing State v. Stevens, 78 S.W.3d 817, 832 (Tenn. 2002)
(quotations and additional citations omitted)).

                                III. R ULE 60.02 M OTIONS

       Tennessee Rule of Civil Procedure 60.02 provides in relevant part:

               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

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       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.

       The burden is on Husband to set forth facts explaining why the final judgment should
be set aside. Tennessee Dep’t. of Human Serv. v. Barbee, 689 S.W.2d 863, 866 (Tenn.
1985); Tennessee State Bank v. Lay, 609 S.W. 2d 525, 527 (Tenn. Ct. App. 1980). Husband
did not specify in his Rule 60 motion which subsection he was relying on. However, in other
cases in which a party has complained about not receiving notice of pleadings in similar
circumstances, Tennessee courts have found subsections (1) and (5) to be applicable and to
provide a basis for relief.

        In Henry v. Goins, the plaintiffs filed suit to recover damages for personal injuries
arising out of a traffic accident. 104 S.W.3d at 477. The trial court dismissed the case for
the plaintiffs’ failure to prosecute without providing any notice to the plaintiffs or an
opportunity to be heard. Id. The plaintiffs filed a Rule 60.02 motion asking for their
complaint to be reinstated, which the trial court granted. Id. at 478. The defendants appealed
and this Court reversed the trial court’s grant of the Rule 60.02 motion. Id. at 478-79. The
plaintiffs appealed to the Tennessee Supreme Court, which reinstated the trial court’s
decision pursuant to the excusable neglect section of Rule 60.02(1). The Supreme Court
explained 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 court 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 court 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). Id.

        The court described both dismissals for failure to prosecute and default judgments as
“drastic sanctions” that are not favored by the courts. Id. The Henry court explained,
“Dismissals 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

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pursuant to a default judgment, and thus will construe Rule 60.02 liberally when default
judgments are at issue).

       The Henry court 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 court 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).

       Applying the Rule 60.02(1) factors to the facts of Henry, the court explained:

              Turning to the first factor, the Henrys were not personally at fault for
       the sua sponte dismissal of their claims. The trial court’s failure to provide
       notice that it was contemplating dismissal precluded the Henrys from
       addressing the merits of the dismissal for failure to prosecute before the final
       judgment was entered.

Id. at 482. Finding next that the plaintiffs had a meritorious claim and the defendants having
to proceed to trial did not constitute prejudice, the Henry court concluded the Henrys
demonstrated excusable neglect pursuant to Rule 60.02(1) and that the trial court did not
abuse its discretion in reinstating the plaintiffs’ complaint. Id. at 482.

       Although 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, Husband was not properly served with notice
of Wife’s divorce proceedings from the time his attorney withdrew from the case until after
the court entered the final judgment granting Wife a divorce. There is no evidence in the



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record to suggest Husband had independent knowledge of the proceedings after that date.3
Without notice of Wife’s proceedings against him, Husband was unable to defend against
Wife’s complaint and present evidence to counter Wife’s charges against him. Under these
circumstances, we conclude that Husband’s failure to defend against Wife’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 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 court
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).

        In addition to section (1) of Rule 60.02, courts have set aside judgments pursuant to
section (5) in cases with facts similar to those here. In Melton v. Bowman, the Supreme
Court explained that section (5) of Rule 60.02 “provides relief where there exist
extraordinary circumstances and extreme hardship.” 2001 WL 950008, at *3 (Tenn. 2001).
In that case, the defendant had failed to comply with discovery, he was not represented by
counsel by the time of trial, and he did not receive notice of the trial. Id. at *1-2. The trial
court granted the plaintiff a default judgment and entered an award against the defendant in
the amount of $47,205.33. Id. at *2. In response to the defendant’s filing of a Rule 60.02
motion to set aside the default judgment, the court wrote:



        3
         The trial court suggested in its Order dated January 29, 2010 that as a result of its Order on February
12, 2009, Husband was required to notify the court and Wife’s attorney of replacement counsel or “of his
future intentions in this case.” However, the court did not send its February 12 Order to Husband’s
residence, so Husband cannot be charged with failing to comply with the court’s Order.

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       Bowman’s failure to inquire as to the status of the suit, his carelessness in not
       staying in touch with his attorney, and passive reliance on alleged assurances
       by Officer are mitigating factors against setting the judgment aside; however,
       “where 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.”

Id. at *3 (quoting Keck v. Nationwide Sys., Inc., 499 S.W.2d 266, 267 (Tenn. Ct. App.
1973)); see also Sullivan v. Sullivan, 2008 WL 836365, at *7 (Tenn. Ct. App. 2008) (default
judgment entered in the absence of proper notice deprives wife of due process, and “can
fairly be described as ‘extraordinary circumstance,’” justifying setting aside the default
judgment pursuant to Rule 60.02(5)); McNair v. Smith, 1999 WL 233404, at *3-4 (Tenn. Ct.
App. 1999) (default judgment entered against individual who had no notice of lawsuit
constitutes unique, exceptional, or extraordinary situation, and under Rule 60.02(5), justice
requires it to be set aside).

       Husband also argues that in not receiving notice of actions in the divorce proceedings,
he has been denied due process of law because he has been denied the opportunity to present
his position. We agree. In several cases where defendants have claimed they did not receive
notice of the plaintiff’s proceedings and the courts have entered a default judgment without
proof that the defendants had been served, courts have set aside the default judgments
pursuant to Rule 60.02 motions because the defendants were denied due process. See, e.g.,
McNair, 1999 WL 233404, at *4 (default judgment vacated because defendant did not
receive notice of proceedings and constitutional right to due process requires notice and
opportunity to be heard); Pittman v. Pittman, 1994 WL 456348, at *4 (Tenn. Ct. App. 1994)
(adequate notice is integral part of due process since the right to a hearing means little if
affected parties are not informed of matter’s pendency, and they are denied the opportunity
to decide whether to appear or default, acquiesce, or contest); see also Sullivan, 2008 WL
836365, at *7 (court awarded defendant property distribution alteration after granting default
judgment to plaintiff because defendant was not properly served and fundamental
requirement of due process is notice and opportunity to be heard).

       Based on the case law and facts of this case, we conclude Husband has satisfied the
requirements of Rule 60.02(1) and (5). Accordingly, we hold the trial court erroneously
denied Husband’s Rule 60 motion and failed to set aside those portions of the Final Judgment
of Divorce that deal with the parenting arrangement and child support.

      We decline, however, to vacate that portion of the judgment granting Wife a divorce.
Husband does not seek relief from that part of the judgment, and possible prejudice to Wife,
who had the legal status of an unmarried person after the judgment, weighs against setting

                                              -8-
aside the divorce itself.

        Thus, on remand, the case should be placed in the procedural posture it enjoyed prior
to the erroneous address being used to notify Husband, except that the judgment of divorce
remains in effect.

                                       IV. C ONCLUSION

        Concluding the trial court erred in denying Husband’s Rule 60 motion, we reverse the
trial court’s January 29, 2010 Order denying Husband’s Rule 60 motion. We vacate that
portion of the Judgment of Divorce that addresses the Parenting Plan and child support and
remand this case for further proceedings. The parties shall comply with the custodial terms
of the Parenting Plan the trial court adopted into its Final Judgment until such time as the trial
court modifies those terms. Going forward, Husband shall be relieved from making the
weekly child support payments the trial court ordered in its Final Judgment until such time
as the trial court revisits this issue and Husband has an opportunity to be heard. However,
Husband shall not be entitled to recover any child support payments he has made thus far
pursuant to the Final Judgment of Divorce entered on September 11, 2009.

       Costs of this appeal shall be taxed to Wife, Benedicta Kurunwune Obi, for which
execution shall issue, if necessary.




                                                     _________________________________
                                                     PATRICIA J. COTTRELL, JUDGE




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