                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                                 March 26, 2013 Session

                HOLLY D. BUTLER v. TIMOTHY K. VINSANT

            Direct Appeal from the Juvenile Court for Robertson County
               No. 1035022          Melanie Earl Stark, Magistrate


                 No. M2012-01553-COA-R3-JV - Filed April 15, 2013


Appellant appeals from the trial court’s denial of a motion to vacate a default judgment.
Discerning no error, we affirm and remand.

 Tenn. R. App. P. 3. Appeal as of Right; Judgment of the Juvenile Court Affirmed
                                  and Remanded

J. S TEVEN S TAFFORD, J., delivered the opinion of the Court, in which D AVID R. F ARMER, J.,
joined, and H OLLY M. K IRBY, J., filed a partial dissenting opinion.

Jonathan A. Garner, Springfield, Tennessee, for the appellant, Timothy K. Vinsant.

Kimberley L. Reed-Bracey, Goodlettsville, Tennessee, for the appellee, Holly D. Butler.

                                        OPINION

                                       I. Background

        On August 30, 2010, Appellee Holly Butler (“Mother”) filed a petition to set child
support for her two minor children, Timothy K., born in 2005, and Reagan E., born in 2006.
The petition was filed against Appellant Timothy K. Vinsant (“Father”), whom Mother
alleged was the biological parent of the two children. Mother asked the court to set child
support and require Father to obtain health insurance for the children. On September 30,
2010, Father filed a response in which he admitted paternity of the children, but denied that
he owed child support because the minor children were living with him the majority of the
time. Father also alleged that Mother was able to obtain more affordable health insurance
for the minor children through her employment. On the same day, Father filed a Petition to
Legitimate and for Custody and Support under another docket number, asking to be named
the children’s primary residential parent.
        Mother subsequently hired another attorney. On December 10, 2010, the trial court
ordered that Mother’s and Father’s petitions be consolidated into one docket number. The
trial court continued the case to allow Mother time to amend her petition to include issues
pertaining to custody, as well as support. On February 1, 2011, Father’s initial attorney
withdrew and was replaced by attorney Jack West. On July 18, 2011, Mother filed an
Amended Petition, seeking to be named primary residential parent of the children, to be
allowed to move for employment purposes, and for child support. Mother’s petition also
alleged that Father had engaged in domestic violence toward Mother, had stalked her, and
had left the children without supervision on at least one occasion. Father never filed an
answer to Mother’s Amended Petition.

       On September 19, 2011, Mother filed a Motion for Default and to set the case for a
final hearing. The trial court granted the motion and set the case for a final hearing on
November 16, 2011. Father did not appear at the hearing.

        On December 7, 2011, the trial court entered a final order in the case. First, the trial
court granted Mother a default judgement, noting that Father had neither answered Mother’s
Amended Petition, nor appeared at the hearing, despite the fact that a notice of the hearing
was sent by U.S. mail to both his current and former attorney. The trial court also established
paternity, based on Father’s action in filing a voluntary notice of paternity. Next the trial
court established Mother as primary residential parent of the children and allowed Mother
to move to Clarksville, Tennessee for employment reasons. The trial court granted Father
standard every-other-weekend visitation and imputed income for child support purposes at
the rate set by the child support guidelines. The trial court further awarded Mother a child
support arrearage of $15,577.00. The arrearage was based on the trial court’s finding that
Mother and Father were spending substantially equal amounts of time with the children prior
to trial. Father was ordered to pay $100.00 per month toward the arrearage, as well as
$1,287.00 per month in base child support. The trial court also awarded Mother a judgment
for half of the children’s medical expenses and attorney fees in the amount of $3,000.00.

      On March 12, 2012, Father, with the assistance of a new attorney, filed a Rule 60.02
motion to vacate the default judgment. Attached to the motion were affidavits from Father
and an attorney he had previously consulted in response to Attorney West’s inability to
remain on the case, Attorney Jennifer L.E. Williams.1 In these affidavits, Father and


        1
          We note that the attorney Father initially consulted after Attorney West’s inability to proceed with
the case, Attorney Williams, is not the attorney who ultimately represented Father in his request for Rule
60.02 relief, or on this appeal. Instead, by the time Father filed his Rule 60.02 motion on March 12, 2012,
Father had finally retained a new attorney to represent him in this case. The record is unclear at what point
                                                                                                 (continued...)

                                                     -2-
Attorney Williams state that Father’s failure to answer or appear at trial was excusable due
to the neglect of Father’s prior attorney, Mr. West, in allegedly failing to forward Father’s
file to Attorney Williams, as Father had requested that Attorney West do. In addition, Father
attached emails from Mr. West in which the attorney directed Father to retain new counsel
due to the prior attorney’s new employment with a non-profit organization. These emails
show that Attorney West informed Father that he needed to retain a new attorney and,
preferably, inform Mother’s counsel of the change in attorney. The email correspondence
can be summarized as follows:

                June 21, 2011: Attorney West acknowledges that Father has
                agreed to retain new counsel due to Attorney West’s new
                position.

                August 12, 2011: Attorney West requests that Father inform
                him, or preferably Mother’s attorney, of the name of the newly
                retained counsel, so that the trial court may be informed of the
                change.

                September 27, 2011: Father responds that he has an
                appointment to meet with new counsel in the following week.

                November 2, 2011:           Father requests that his file be sent to
                Attorney Williams.2

Mother filed a response, denying that Father was entitled to relief, on April 20, 2012. The
trial court denied the Rule 60.02 motion. This appealed followed.

                                                II. Analysis

      The sole issue in this case is whether the trial court erred in denying Father’s Rule
60.02 motion. Rule 60.02 of the Tennessee Rules of Civil Procedure provides, in pertinent
part:


        1
         (...continued)
Father actually retained his current counsel.
        2
           Although Father requested that Attorney Williams be sent his court file, Father maintains in his
affidavit that he never retained Attorney Williams. Nevertheless, Attorney Williams states in her affidavit
that she consulted with Father, agreed to take on the case for an agreed retainer fee, and received an email
from Attorney West regarding the transfer of Father’s file.

                                                     -3-
              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; . . .

The Tennessee Supreme Court recently explained the standard of review regarding the
denial of a motion pursuant to Rule 60.02.

              We . . . review for abuse of discretion a trial court's ruling on a
              Rule 60.02 motion for relief from a final judgment[.] Henry v.
              Goins, 104 S.W.3d 475, 479 (Tenn. 2003). Abuse of discretion
              is found “‘only when the trial court applied incorrect legal
              standards, reached an illogical conclusion, based its decision on
              a clearly erroneous assessment of the evidence, or employed
              reasoning that causes an injustice to the complaining party.’”
              State v. Jordan, 325 S.W.3d 1, 39 (Tenn. 2010) (quoting State
              v. Banks, 271 S.W.3d 90, 116 (Tenn. 2008)). The abuse of
              discretion standard does not permit an appellate court to merely
              substitute its judgment for that of the trial court. See Eldridge
              v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001); Henry, 104
              S.W.3d at 479. Instead, “[u]nder the abuse of discretion
              standard, a trial court's ruling ‘will be upheld so long as
              reasonable minds can disagree as to [the] propriety of the
              decision made.’” Eldridge, 42 S.W.3d at 85 (quoting State v.
              Scott, 33 S.W.3d 746, 752 (Tenn. 2000)).

Discover Bank v. Morgan, 363 S.W.3d 479, 487 (Tenn. 2012).

       Despite this strict standard of review, Rule 60.02 motions should be viewed liberally
when the movant seeks relief from a default judgment. Pryor v. Rivergate Meadows
Apartment Assocs. Ltd. P’ship, 338 S.W.3d 882, 885 (Tenn. Ct. App. 2009) (citing Tenn.
Dep't of Human Servs. v. Barbee, 689 S.W.2d 863, 866 (Tenn. 1985)). Therefore, “the
court should grant the application whenever there is reasonable doubt as to whether the
default judgment should be set aside.” Rivergate Meadows, 338 S.W.3d at 885 (citing
Tenn. State Bank v. Lay, 609 S.W.2d 525, 527 (Tenn. Ct. App. 1980)).

     This Court recently discussed the burden on the party seeking relief from a default
judgment due to “mistake, inadvertence, surprise or excusable neglect” in Pryor v. Rivergate
Meadows Apartment Assocs. Ltd. P’ship, 338 S.W.3d 882 (Tenn. Ct. App. 2009):


                                              -4-
                      The party seeking relief under Rule 60.02(1) has the
              burden to “offer proof of the basis on which relief is sought.”
              Henry v. Goins, 104 S.W.3d 475, 482 (Tenn. 2003). To meet
              this burden, the movant must “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.” Lay, 609 S.W.2d at 527. Three factors must be
              considered when determining if a default judgment should be
              vacated under Rule 60.02(1): “(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 v. Goins, 104 S.W.3d 475, 481
              (Tenn. 2003) (citing Tenn. Dep't of Human Servs. v. Barbee,
              689 S.W.2d 863, 866 (Tenn. 1985)). Again, the trial court “is in
              the best position to assess the various factors that should be
              considered in determining whether a default judgment should
              be vacated.” Barbee, 689 S.W.2d at 867.

                      These factors—willfulness, meritorious defense, and
              prejudice—have not replaced the Rule 60.02(1) reasons of
              mistake, inadvertence, surprise or excusable neglect. Bowers v.
              Gutterguard of Tenn., Inc., No. M2002-02877-COA-R3-CV,
              2003 WL 22994302, at *7 (Tenn. Ct. App. Dec. 17, 2003).
              Specifically, Tennessee courts have wrestled with the apparent
              incompatibility of “excusable neglect” and “willfulness.” A
              recent Tennessee decision explained the relationship as follows:
              “[t]his approach has been to find that negligence, a form of
              neglect, may be excusable and to employ wilfulness as a critical
              factor in distinguishing neglect that is excusable from that
              which is not.” World Relief Corp. of Nat'l Ass'n of
              Evangelicals v. Messay, No. M2005-01533-COA-R3-CV, 2007
              WL 2198199, at *7 n.9 (Tenn. Ct. App. July 26, 2007).

Rivergate Meadows, 338 S.W.3d at 886. Accordingly, this Court must consider whether the
Father’s inaction was willful, whether he has set forth a meritorious defense, and whether
Mother would be prejudiced if the relief were granted.

       Because his failure to do so is dispositive of a number of issues in this case, we begin
with the question of whether Father has set forth a meritorious defense to the default
judgment. As explained by this Court:

                                              -5-
              The Tennessee Supreme Court has found that excusable neglect
              is insufficient to set aside a default judgment; the movant must
              also demonstrate a meritorious defense to the plaintiff's claim.
              Patterson v. Rockwell Int'l, 665 S.W.2d 96, 100 (Tenn. 1984).
              A conclusory statement, such as “[the movant] believes itself to
              have a good and valid defense,” is insufficient. Id. at 101. See
              also Turner v. Turner, 739 S.W.2d 779, 781 (Tenn. Ct. App.
              1986) (finding that an affidavit, which stated “[m]y wife has
              taken a considerable amount of our property which I feel the
              court would have awarded to me if I could have been present at
              the hearing,” did not assert a meritorious defense).

Rivergate Meadows, 338 S.W.3d at 886 (emphasis added). As such, Father had the burden
to set forth a meritorious defense to Mother’s claims in his motion for Rule 60.02 relief and
accompanying affidavits.

       For example in Rivergate Meadows, this Court held that a Rule 60.02 motion, in
which the moving party set forth no defense, was insufficient to justify relief from the default
judgment, regardless of whether the failure to appear and defend the case was willful. Id. In
another case, State of Franklin Bank v. Riggs, No. E2010-01505-COA-R3-CV, 2011 WL
5090888 (Tenn. Ct. App. Oct. 27, 2011), this Court held that mere conclusory allegations
contained in a Rule 60.02 motion or affidavit were insufficient to meet the moving party’s
burden to show a meritorious defense. In Riggs, the defendants failed to file an answer to a
complaint for the remaining balance on a construction loan after foreclosure of the property
and a default judgment was ultimately awarded against them. Id. at *1. The defendants
subsequently sought Rule 60.02 relief from the judgment. Regarding their defense to the
relevant count by the bank, the defendants asserted that the property appraised at a much
higher value than realized at the foreclosure sale. The trial court denied the defendants’
motion on that count, finding that the defendants failed to assert a meritorious defense. Id.
at *2. On appeal, this Court agreed, stating:

              The [d]efendants are correct in their assertion that they were not
              required to prove their defense, but they were required to assert
              a meritorious defense, namely a defense that at least had the
              potential of succeeding at trial. We, like the trial court, believe
              the defense was not meritorious because the [d]efendants did not
              submit evidence that could have overcome the presumption that
              the foreclosure price was commensurate with the fair market
              value of the properties.



                                              -6-
Id. at *5 (emphasis added). Accordingly, a party seeking Rule 60.02 relief from a default
judgment must “submit evidence” that, at least, has the potential of succeeding at trial. Id.
Therefore, we will consider the evidence submitted by Father in support of his defense.

         Father included an affidavit, signed under oath, supporting his claim for Rule 60.02
relief. In his affidavit, Father states:

              I had originally filed a petition seeking custody and to set
              visitation with my children. I also wanted to establish a child
              support payment. I have reviewed my original petition and I
              renew my statement I made under oath in that document. I did
              not get an opportunity to offer my own evidence with regard to
              any of these issues.

Thus, Father averred that he was raising all of his original allegations contained in his
previous sworn petition. Turning to Father’s sworn petition, he asserts, in relevant part:

              11. That from the time of the children’s births until October 5,
              2008, the parties resided together with the minor children, and
              [Father] was the primary provider for both [Mother] and the
              minor children.
              12. That since the parties separated on October 5, 2008, the
              parties have exercised substantially equal parenting time with
              the children, by alternating the children’s time with each parent
              week-to-week, and the children have resided with [Father] 53%
              of the time, specifically 382 of the 725 days to date since the
              parties separation.
              13. That [Father] can provide a loving moral, and stable
              environment for the minor children and further provide for the
              children’s financial, educational and medical needs.
              14. That [Father] further avers that he is ready, willing, and
              able to provide all things necessary for the proper care and
              development of the minor children.

Despite the proffer in Father’s affidavit, this Court has held that “[a] sworn petition is not
evidence.” State v. Hartley, No. 89-74-II, 1989 WL 44905, at *4 (Tenn. Ct. App. 1989),
aff’d, 790 S.W.2d 276 (Tenn. 1990). Therefore, the sworn petition may not meet the
requirement in Riggs to “submit evidence” supporting the defense. See Riggs, 2011 WL
5090888, at *5. Even assuming arguendo that Father’s sworn petition may be considered
evidence, we conclude that Father has only set forth a meritorious defense on the child

                                             -7-
custody issue, but has failed to set forth anything other than conclusory allegations regarding
his child support obligation, arrearage, and the award of medical expenses.

        From what we can discern from the conclusory allegations in the record on this issue,3
we conclude that Father’s alleged error with the trial court’s child support rulings concerns
the imputation of income to Father at an amount far exceeding his actual income. Indeed, the
trial court apparently agreed with Father’s allegations that prior to trial, Father spent a
substantially equal amount of time with the child. Thus, Father’s alleged defense concerns
only his actual income. However, Father’s petition contains no allegations regarding his
current income from which the trial court or this Court could possibly conclude that the trial
court’s calculations on this issue were in error. Father likewise fails to include any such
evidence or allegations in his sworn affidavit. Instead, his affidavit simply contains the
conclusory statement that he “wanted to establish a child support payment.” However, it is
well-settled that conclusory statements are insufficient to establish a meritorious defense.
Turner v. Turner, 739 S.W.2d 779, 781 (Tenn. Ct. App. 1986). In addition, nothing in
Father’s Rule 60.02 motion or accompanying affidavit assigns any other error to the trial
court’s calculation of the alleged child support arrearage or the award of medical expenses.
Thus, Father has failed to “submit evidence” from which a court could possibly conclude that
the income imputed to Father for child support purposes or that the arrearage or medical
expenses awarded to Mother were in error. See Riggs, 2011 WL 5090888, at *5.

       Father’s allegations in his complaint, however, if taken as true, show that he has a
loving relationship with the children and that he has been the children’s primary caregiver
as much, or even more so, than Mother. The question of which parent is the primary
caregiver of the children is certainly relevant to questions of custody and parenting time. See
Tenn. Code Ann. 36-6-106(a) (outlining the factors to be considered in naming a primary
residential parent). Accordingly, if we assume arguendo that allegations in a sworn petition
are sufficient to “submit evidence” of a meritorious defense, we must conclude that Father
has met his burden to assert a defense that had the possibility of succeeding at trial with
regard to the child custody issues in this case. Having met his burden to set forth a
meritorious defense on the child custody issues, we move on to consider the remaining
requirements to succeed on a Rule 60.02 motion for relief from a default judgment.



        3
          In Father’s Motion to Suspend Child Support Payments pending resolution of his motion for Rule
60.02 relief, Father alleges that the his child support obligation requires him to pay more than 50% of his
disposable income in child support and that the child support calculations are “inaccurate.” However, Father
does not reference the allegations in this motion in his request for Rule 60.02 relief, nor does he include any
evidence of his current income from which this Court could possibly conclude that the calculations are
indeed inaccurate. Further, the allegations contained in the Motion to Suspend are not sworn to by Father.
Therefore, Father has failed to meet his burden to establish a meritorious defense on this issue.

                                                     -8-
        As previously discussed, the Court must also consider whether the moving party’s
failure to appear and defend the case was willful. Rivergate Meadows, 338 S.W.3d at 886.
(citing Henry, 104 S.W.3d at 481). The term “willful” has been defined by the Tennessee
Supreme Court:

               [W]illful conduct consists of acts or failures to act that are
               intentional or voluntary rather than accidental or inadvertent.
               Conduct is “willful” if it is the product of free will rather than
               coercion. Thus, a person acts “willfully” if he or she is a free
               agent, knows what he or she is doing, and intends to do what he
               or she is doing.

Konvalinka v. Chattanooga-Hamilton County Hosp. Auth., 249 S.W.3d 346, 356 (Tenn.
2008); see also McBride v. Webb, No. M2006-01631-COA-R3-CV, 2007 WL 2790681, at
*3 (Tenn. Ct. App. Sept. 25, 2007) (providing that willfulness includes a strategic decision
and conduct that is more than mere negligence or carelessness but is egregious and not
satisfactorily explained). With regard to willfulness, the trial court found that Father’s failure
to appear was willful because he was put on notice by his prior attorney that he needed to
quickly retain a new attorney in order to proceed with his case. Specifically, the trial court
stated:

               The Court finds that [Father’s] conduct was willful because he
               was on notice and was encumbered to do something, take some
               kind of action or steps to retain new counsel, proceed pro se, or
               notify the Court of then existing client-attorney dilemma.
               [Father] knew litigation was pending of great importance that
               concerned his children, his own rights to his children and that
               he had an obligation to act promptly. It is this Court’s opinion
               that [Father’s] actions or lack thereof are willful when [Father]
               does nothing after repeated advice and notice and does not
               respond to nor advance the litigation upon repeated advice of
               former Attorney of Record . . . for [Father] to take some kind of
               action. It is evidence to the Court that [Father’s] lack of
               action/response was to further frustrate the legal process and
               delay proceedings; further delaying [Father’s] legally required
               financial obligation to support his children.

                                           *    *    *



                                               -9-
                       The record shows that [Father] simply "dropped off" and
               chose to do nothing for a period of approximately [six] months
               or until wage assignment became effective pursuant to Default
               Judgment Order entered December 6, 2011. Then new counsel
               retained and Motion to Vacate Judgment Pursuant to [] Rule []
               60.02 is filed on March 12, 2012. Over the aforementioned six
               month period, [Father] knew or having reason to know there
               was pending litigation of great important and priority
               concerning his children, his rights, his cause of action to
               custody and visitation and that he has a duty to support, he did
               nothing and chose to "wait and see." [Father] had more than
               sufficient knowledge and notice of his former Attorney of
               Record's situation and status concerning the litigation and
               [Father] was encumbered to notify the Court of any changes of
               counsel, need of time to retain new counsel, or if [he] would be
               proceeding pro se. There was no mistake inadvertence, surprise,
               nor excusable neglect.

        Father urges us to hold that the trial court abused its discretion in deeming his inaction
“willful” because he did not have actual notice of the proceedings and, therefore, did not
make an intentional decision not to appear. Mother does not dispute Father’s contention that
he did not have actual notice of the proceedings. As a general rule, Tennessee courts have
found that “failure of notice of a critical step in a lawsuit can constitute justification for
excusable neglect” under Tenn. R. Civ. P. 60.02(1). Rivergate Meadows, 338 S.W.3d at 886
(citing Estate of Vanleer v. Harakas, No. M2001-00687-COA-R3-CV, 2002 WL 32332191,
at *6 (Tenn. Ct. App. Dec. 5, 2002)). However, this Court has also held that a mere finding
that a party’s action was not willful does not, ipso facto, require a finding that the failure to
appear was the result of excusable neglect. See Riggs, 2011 WL 5090888, at *5. For example
in Riggs, this Court held that, although the defendants failure to appear and defend the action
was not willful, their neglect was nevertheless inexcusable. Id. The Court explained that the
defendants were aware of the deadlines in the case and the fact that they had not received an
extension. Despite this knowledge, the defendants elected to hire another attorney during the
pendency of the proceedings, further delaying any response to the complaint. Id. Thus, the
Court focused on the defendants’ knowledge of the pendency of the proceedings and their
delay in obtaining a new attorney as evidence that their failure to defend the action was not
excusable. Accordingly, the Court of Appeals affirmed the denial of Rule 60.02 relief. Thus,
the question presented in this case is whether Father’s inaction in promptly obtaining a new
attorney and staying abreast of the proceedings was (1) willful; (2) something less than
willful, yet still not excusable; (3) or excusable. Only if Father’s neglect was excusable, will
this factor militate in favor of vacating the default judgment.

                                              -10-
        Father contends that his inaction was excusable because it was based on the
negligence of Attorney West, on whom he relied to his detriment. To support his argument,
Father relies on the case of Dotson v. Dotson, No. M2002-02578-COA-R3-CV, 2004 WL
73269 (Tenn. Ct. App. Jan. 16, 2004). In Dotson, the trial court granted a default judgment
in a divorce case due to the defendant-husband’s delay in filing an answer to the complaint,
which was filed on April 18, 2002. Id. at *1–2. The plaintiff-wife in Dotson filed a motion
for a default judgment on June 13, 2002, after husband failed to answer for nearly sixty days.
A hearing on the motion was set for July 19, 2002. Husband filed an answer and
counterclaim on July 18, 2002. Due to this filing, husband’s attorney informed him that he
was not required to be present and defend against the motion for default judgment. Id. at *1.
The trial court nevertheless granted the default judgment. Husband filed a motion for a new
trial pursuant to Rule 60.02, which the trial court denied. Id. at *2.The Court of Appeals
affirmed the trial court’s grant of the default judgment, but reversed the court’s refusal to
grant relief pursuant to rule 60.02. Id. at *2–*3. The Court of Appeals explained that
husband’s failure to appear was based on his reasonable reliance on his attorney’s advice:

                      The undisputed evidence supporting [husband’s] motion
              for relief from [wife’s] default judgment shows that his former
              lawyer told him that he would not be required to attend the July
              19, 2002 hearing on [wife’s] motion for default because an
              answer had been filed. It is also undisputed that when his lawyer
              called him from the courthouse on the morning of July 19, 2002,
              [husband] was unable to attend court because he had no driver's
              license and because he was unable to arrange transportation on
              such short notice. While his lawyer's advice is questionable, we
              decline to find that [husband] acted unreasonably by following
              his lawyer's advice. Accordingly, his lawyer's unexpected
              telephone summons to court amounts to surprise, and
              [husband’s] failure to come to court was excusable in light of
              his transportation difficulties.

Id. at *3. In addition, the Court noted that husband’s lawyer did not participate in the hearing
on the default judgment motion because he planned to withdraw due to a conflict of interest.
The Court noted that:

              The record does not reveal whether [husband] was aware prior
              to July 19, 2002 that his lawyer intended to withdraw from his
              case. To the extent that [husband] anticipated that his lawyer
              would represent him during the July 19, 2002 proceeding even
              if he was not present himself, his lawyer's sudden departure

                                              -11-
              from the case placed [husband] in just the sort of quandary that
              Tenn. R. Civ. P. 60.02(1) is intended to remedy.

Id. Thus, the husband in Dotson was not on notice of his attorney’s refusal to represent him
at the hearing, and instead followed his attorney’s advice until it became clear that the advice
was erroneous, at which point it was too late for husband to appear.

       Mother argues, however, that Father’s reliance on Dotson is misplaced because Father
was not reasonably relying on advice of counsel in failing to retain a new attorney and
appear. Instead, Mother points out that Father was on notice that he should retain another
attorney to represent him in this matter as early as June 21, 2011, when he received an email
correspondence from his prior attorney, Attorney West, regarding retaining new counsel.
Thus, Father knew he needed to retain a new attorney nearly five months prior to the hearing
on the default judgment. The record shows that Attorney West again contacted Father,
seeking to know the name of the newly retained attorney on August, 12, 2011. In this letter,
Attorney West explained that another attorney needed to be listed with the trial court so that
notices could be sent to Father’s newly retained counsel. In addition, Attorney West advised
Father to inform Mother’s counsel of the change in attorneys. Nothing in the record indicates
that Father followed this advice. Instead, more than a month later on September 27, 2011,
Father replied that he would be meeting with another attorney in the next week. Indeed,
Attorney Williams’ affidavit states that she consulted with Father on October 5, 2011.
However, Father’s affidavit states that he did not retain Attorney Williams; therefore, she
filed no notice with the trial court informing it of the change in counsel, nor did Attorney
Williams contact Mother’s counsel. Lacking knowledge that Attorney West could no longer
represent Father in the case, the trial court proceeded to enter a default judgment against
Father. In addition, the emails also show that Father did not request his file from Attorney
West until November 2, 2011, nearly a month after consulting with Attorney Williams and
more than four months after being advised to retain new counsel by Attorney West. Finally,
despite informing Attorney West that he was consulting with an attorney and actually asking
Attorney West to send his file to that attorney, Father did not actually retain any attorney to
represent him in this case until at some point prior to filing his Rule 60.02 motion, several
months after receiving notice from Attorney West that he could no longer represent Father.
As previously discussed, it is Father’s burden to show that he is entitled to Rule 60.02 relief.
See Henry, 104 S.W.3d at 482. In this case, the record shows that, unlike the husband in
Dotson, Father voluntarily and intentionally disregarded the advice of his prior counsel, who
repeatedly advised Father to retain new counsel. See Dotson, 2004 WL 73269, at *3. In
addition Father, unlike the husband in Dotson, knew well in advance of Mother’s Default
Judgment Motion and the final hearing that Attorney West could no longer represent him.
The situation is similar to that presented in Riggs, where the defendants voluntarily chose to
delay proceedings to obtain a new attorney. See Riggs, 2011 WL 5090888, at *5. Although,

                                              -12-
here, Father had no choice but to retain a new attorney when Attorney West accepted a new
position, it was Father’s choice to delay the hiring of a new attorney for several months. In
fact, even after consulting with an attorney, Father voluntarily chose not to retain her.
Moreover, Father failed to inform either Mother’s counsel, or the trial court, of the change
until the Rule 60.02 motion was filed on March 12, 2012, approximately ten months after
Father learned that Attorney West could no longer represent him.

        Father places all the responsibility for the delays in this case on Attorney West,
alleging that he failed to inform Father of the proceedings while he was his counsel of record
and also failed to timely send Father’s file to Attorney Williams. We do not disagree with
Father that Attorney West’s actions put him at a disadvantage, nor do we condone Attorney
West’s failure to abide by his ethical obligations to protect his client’s legal interests.
However, Attorney West’s failure to live up to the professional obligations applicable to all
attorneys does not excuse Father’s own negligence in this case. The record shows that Father
failed to promptly retain a new attorney, despite receiving repeated instruction to do so. At
the time Father finally consulted an attorney, however, there was still significant time
available in which Father could have prevented the entry of the default judgment. Instead of
acting promptly to protect his interests, Father allowed several months to pass before
retaining a new attorney and also failed to inform either the trial court or opposing counsel
of his lack of representation until he filed his Rule 60.02 motion in March 2012. Had Father
acted promptly in retaining a new attorney, seeking his file from Attorney West, or in
informing the court or opposing counsel of his situation, the entry of the default judgment
could have been avoided in this case.

        The trial court made detailed factual findings that Father disregarded his prior
attorney’s repeated advice in delaying to retain a new attorney despite his knowledge that
important litigation was pending regarding his children. Based on these facts, the trial court,
who “[wa]s in the best position to assess the various factors that should be considered in
determining whether [the] default judgment should be vacated,” Rivergate Meadows, 338
S.W.3d at 886 (citing Barbee, 689 S.W.2d at 867), concluded that Father’s inaction
amounted to willfulness. While we agree with Father that his actions may not have amounted
to a calculated decision to avoid his obligations, see McBride, 2007 WL 2790681, at *3, we
cannot conclude that the trial court abused its discretion in finding that Father’s negligence
in failing to appear was inexcusable. Because Father’s failure to appear and defend Mother’s
Amended Petition was inexcusable, he is not entitled to Rule 60.02 relief. See Riggs, 2011
WL 5090888, at *5 (holding that because the defendant failed to prove that their negligence
was excusable, they “failed to carry their burden of proving entitlement to relief under Rule
60.02 of the Tennessee Rules of Civil Procedure.”).




                                             -13-
       For the foregoing reasons, the judgment of the Robertson County Juvenile Court is
affirmed and this cause is remanded for all further proceedings as may be necessary and are
consistent with this opinion. Costs are taxed to Appellant Timothy K. Vinsant, and his surety.




                                                    _________________________________
                                                    J. STEVEN STAFFORD, JUDGE




                                             -14-
               IN THE COURT OF APPEALS OF TENNESSEE
                          AT NASHVILLE

               HOLLY D. BUTLER v. TIMOTHY K. VINSANT

                        Juvenile Court for Robertson County
                                    No. 1035022




                No. M2012-01553-COA-R3-JV - Filed May 13, 2013




                                       ORDER

      The Majority Opinion and Partial Dissent filed in this case on April 15, 2013 are
hereby withdrawn.


                                              PER CURIAM
