                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                  August 27, 2001 Session


             JEANNE ALICE GABEL v. TODD EDWARD GABEL

                      Appeal from the Circuit Court for Sevier County
                         No. 98-52-II   Richard R. Vance, Judge

                                FILED SEPTEMBER 18, 2001

                                No. E2000-02585-COA-R3-CV



The Trial Court entered a default judgment against the defendant in this divorce case even though
the defendant had filed an answer within the time frame set forth in Rule 12.01. We conclude that
entry of the default judgment was not appropriate when the defendant timely filed an answer, and,
therefore, vacate the judgment of the Trial Court.


                      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 CHARLES D. SUSANO, JR., J., joined.

Donald K. Vowell and Elizabeth K. Johnson, Knoxville, Tennessee, for the Appellant Todd Edward
Gabel.

J. Patrick Stapleton, Sevierville, Tennessee, for the Appellee Jeanne Alice Gabel.



                                           OPINION

                                          Background

              On January 19, 1998, Jeanne Alice Gabel ("Wife") filed a Complaint seeking a
divorce from Todd Edward Gabel ("Husband"). The parties had one minor child at the time the
Complaint was filed. On January 29, 1998, Husband filed an Answer to the Complaint, responding
to the various allegations and effectively putting the matters set forth by Wife at issue. In May of
1998, Husband filed a motion to modify his child support payments previously agreed to by the
parties and to set reasonable visitation. The next document contained in the record is an Order dated
February 12, 1999, which states, in pertinent part, as follows:

                       This cause came onto be heard on this the 5th day of
               February, 1999 by and before the Honorable O. Duane Slone.… The
               record reflects that the Complaint for Divorce was originally filed by
               the Plaintiff in January of 1998, that the Defendant was represented
               by counsel and filed an Answer to said Complaint in January 1998,
               and that subsequent to that time the attorney for the Plaintiff has been
               replaced …and the attorney for the Defendant … has withdrawn. The
               Court further finds that the Defendant has been given notice pursuant
               to a Motion for Default filed on December 3, 1998, as verified by the
               Certificate of Service, that a Default Judgment would be taken if he
               did not file an Answer within thirty (30) days from the date of said
               Motion. The Court further finds that February 5, is more than sixty
               (60) days from the date of the original filing of said Motion.

The Trial Court then granted Wife a default judgment for an absolute divorce from Husband on the
basis of inappropriate martial conduct. The Trial Court also granted Wife exclusive custody of the
minor child and required Husband to seek visitation rights "through appropriate order of the Court."
Although Husband was not granted any visitation with his child, he was ordered to pay child support
in the amount of $355.00 per month.

                  On March 9, 1999, Husband filed a motion to set aside the default judgment claiming,
among other things, that he never received notice of the hearing as required by Rule 55.01. Husband
also pointed out that his Answer had been filed. In Wife's response to the motion to set aside the
default judgment, she admitted that "it is possible" that Husband did not receive notice of the hearing
and that no such notice was contained in the Trial Court's file. Wife's counsel also stated that he was
in the process of several staff changes, "and it is quite possible that, although his file showed those
notices had been mailed to the Defendant, that in fact, they may not have been mailed."
Notwithstanding these admissions by Wife and her attorney, the Trial Court overruled Husband's
motion to set aside the default judgment. The Trial Court stated that there was sufficient information
in the file "to satisfy the Court that the Defendant had notice of the Motion for Default Judgment and
therefore the Court finds that this Judgment shall not be set aside based on any defect in the record."
Husband then filed a motion to amend the judgment, motion to reconsider, and/or motion for new
trial. The Trial Court denied these motions as well. Husband appeals. There is no motion for
default or any notice setting the motion for default for a hearing contained in the record on appeal.




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                                            Discussion

                A review of findings of fact by a trial court is de novo upon the record of the trial
court, accompanied by a presumption of correctness, unless the preponderance of the evidence is
otherwise. Tenn. R. App. P. 13(d); Brooks v. Brooks, 992 S.W.2d 403, 404 (Tenn. 1999). Review
of questions of law is de novo, without a presumption of correctness. See Nelson v. Wal-Mart
Stores, Inc., 8 S.W.3d 625, 628 (Tenn. 1999).

                On appeal, Husband raises four issues: 1) whether the Trial Court erred in granting
a default judgment when Husband did not have proper notice; 2) whether the Trial Court erred in
granting a default judgment when a timely answer had been filed; 3) whether the Trial Court erred
in granting a divorce based on inappropriate martial conduct absent proof from corroborating
witnesses as required by statute; and 4) whether the Trial Court erred by making no provision for
child visitation when Husband had filed a motion requesting same.

                 Our resolution of this appeal requires us to address only Husband's second issue. In
relevant part, Rule 55.01 of the Tenn. R. Civ P. provides that "[w]hen a party against whom a
judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these
rules… judgment by default may be entered …." Rule 12.01 provides that a "defendant shall serve
an answer within thirty (30) days after the service of the summons and complaint upon him.…" It
is undisputed in this case that Husband filed his Answer within the time limits set forth in Rule
12.01. In order to determine if the Trial Court acted "within the range of permissible alternatives
available to it in granting the motion for default judgment, we must examine the prerequisite that the
nonmovant failed to defend the lawsuit as provided by the rules." State of Tennessee v. Looper, No.
M1999-00662-COA-R3-CV, 2000 WL 354404 at *4 (Tenn. Ct. App. Apr. 7, 2000). This generally
becomes a question of whether an answer or other allowable defensive pleading was filed within the
applicable time limits. Id. In discussing the effect of filing a timely answer insofar as Rule 55.01
is concerned, this Court in Looper stated:

               We think a timely answer precludes default judgment under the clear
               language of Tenn. R. Civ. P. 55.01, but that same language clearly
               authorizes entry of default judgment where no answer has been filed
               which complies with the time limitations established by the rules.

Looper, 2000 WL 354404 at * 6 (relying, in part, on Tolbert v. Tolbert, No. 03A01-9406-CV-00230,
1994 WL 705230 *1 at n.1 (Tenn. Ct. App. Dec. 15, 1994)(no Tenn. R. App. P. 11 application
filed)(A default judgment is not appropriate when an answer has been timely filed)). See also Witter
v. Nesbit, 878 S.W.2d 116, 119 (Tenn. Ct. App. 1993)(Although Tenn. R. Civ. P. 55.01 provides for
the entry of a default judgment against a party who has failed to plead, this rule should not apply
when pleadings are filed on behalf of a defendant pursuant to the Tennessee Uninsured Motorist
statute.).



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                We conclude that the Trial Court committed reversible error when it entered a default
judgment against Husband who had filed his Answer within the applicable time frame set forth in
Rule 12.01. Because of this the Trial Court's judgment is hereby vacated in its entirety, and,
therefore, the remaining issues raised by Husband are pretermitted.

                                            Conclusion

                The judgment of the Trial Court is vacated. This case is remanded to the Trial Court
for further proceedings, as necessary, consistent with this Opinion. Costs of the appeal are taxed to
the Appellee Jeanne Alice Gabel.




                                                      ____________________________________
                                                      D. MICHAEL SWINEY




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