Recently in Post-Judgment Relief Category


Misrepresentation May Lead to New Trial in Tennessee Divorces

In the case titled Stamps v. Stamps, Jr., No. M2012-02512-COA-R3-CV Slip Copy, 2013 WL 6795411 (Tenn. Ct. App. Dec. 19, 2013) Tennessee divorce attorneys learn whether the application of Local Rule of Practice 6.02 for the Twenty-First Judicial District gives a trial court discretion to deny a Motion to Alter or Amend and/or for a New Trial in relation to a mediated agreement where facts may have been distorted by a party without a hearing on the matter, without discussing the evidence filed to support said motion in its denial, and without discussing its basis for the denial of said motion.

Facts

Husband and Wife were married for 26 years and had two minor children at the time of filing for Divorce. Wife filed a Complaint for Divorce and the parties attended mediation which resulted in the parties entering into a Marital Dissolution Agreement ("MDA").

The parties amassed several pieces of commercial and residential properties during the marriage, one of which was the subject of this appeal. This was a rental property that was awarded to Wife in the MDA.

After the MDA and Final Decree were entered with the court, Wife filed a Motion to Alter or Amend and/or for a New Trial. In her motion Wife averred that Husband had misrepresented the condition and status of the rental property in question. She alleged that Husband did not disclose that the property was in "significant disrepair" and "not rentable or inhabitable." Further, she stated that Husband represented in his deposition that the property was worth $215,000.00 which was supported by an appraisal, and was bringing in $1,600.00 per month in rent. She stated that the tenant had vacated the property due to its poor condition. She supported her motion with her own affidavit, an affidavit of the former tenant, Husband's deposition, letters between counsel, the property appraisal, the MDA and Final Decree. The record did not show that an Answer was filed by Husband.

The trial court did not set the matter for hearing. Instead it denied Wife's motion citing Rule 6.02 of the Local Rules of Practice for the Twenty-First Judicial District and entered an order denying Wife's motion. Rule 6.02 states as follows:

Motions for new trial, motions for judgment n.o.v. and motions to alter or amend will not be set for hearing exception upon direction of the Judge. Such motions should be accompanied by any citation of authorities and written argument which the moving party wishes the Judge to consider. No such motion will be sustained by he Judge without affording the adverse parties an opportunity either to file responsive briefs and written argument or to be heard in oral argument.

Wife appealed the court's decision averring the court erred in denying her motion without a hearing, in not giving the court's basis for the denial, and in not applying contract principles in its consideration of her motion.

Analysis and Conclusion

Tenn. R. Civ. P. 59.04 allows a motion to alter or amend a judgment in order for a trial court to fix errors as to the law or facts that it failed to consider in certain matters. Chadwell v. Knox Cnty., 980 S.W.2d 378, 383 (Tenn. Ct. App. 1998). According to Vaccarella v. Vaccarella, 49 S.W.3d 307, 312 (Tenn. Ct. App. 2001), these motions "may be granted (1) when the controlling law changes before a judgment becomes final, (2) when previously unavailable evidence becomes available, or (3) when, for sui generis reasons, a judgment should be amended to correct a clear error of law or to prevent injustice." Decisions based on Tenn. R. Civ. P. 59.04 are reviewed under an abuse of discretion standard. Ferguson v. Brown, 291 S.W.3d 381, 386 (quoting McCracken v. Brentwood United Methodist Church, 958 S.W.2d 792, 795 (Tenn. Ct. App. 1997)). A trial court is deemed to have abused its discretion when it "causes an injustice by applying an incorrect legal standard, reaching an illogical decision, or by resolving the case 'on a clearly erroneous assessment of the evidence.'" Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn. 2010). When reviewing these cases the appellate court "should begin with the presumption that the decision is correct and should review the evidence in the light most favorable to the decision." Henderson v. SAIA, Inc., 318 S.W.3d 328, 335 (Tenn. 2010) (quoting Overstreet v. Shoney's, Inc., 4 S.W.3d 694, 709 (Tenn. Ct. App. 1999)). The appellate court may not substitute its own judgment for the trial court's under the standard. Henry v. Goins, 104 S.W.3d 475, 479 (Tenn. 2003).

Until approved by a court, a mediated agreement is contractual in nature. Ledbetter v. Ledbetter, 163 S.W.3d 681, 685 (Tenn. 2005). Whether a mediated agreement is enforceable is a question of law. Id. At 683. Proof of misrepresentation of facts that were used for the basis of entering into a mediated agreement can be grounds for vacating or amending the agreement. Coleman v. Coleman, E2011-00974-COA-R30CV, 2012 WL 1622240. at *5 (Tenn. Ct. App. May 8, 2012).

In the appellate court's review of the trial court's record it found the trial court to cite its basis for denying Wife's motion as follows:

"The Court now having carefully considered the Plaintiff's motion, respectfully denies the motion pursuant to Rule 6.02 of the Local Rules of Civil court for the 21st Judicial District. IT IS SO ORDERED."

It also reviewed the documents that Wife filed in support of her Motion and found that if the facts asserted by Wife were true, that a misrepresentation of the rental property may have occurred. It further averred that this could justify a new trial or amendment to the MDA and/or Final Decree.

According to Eldrige v. Eldrige, 42 S.W.3d 82,88 (Tenn. 2001) "[a]n abuse of discretion can be found only when the trial court's ruling falls outside the spectrum of rulings that might reasonably result from an application of the correct legal standards to the evidence found in the record." In the case at bar, the trial court did not discuss the grounds for Wife's motion or the evidence she provided to support it in its denial. Therefore, the appellate court could not review the trial court's discretion in denying the motion.

For these reasons, the appellate court vacated the order that denied Wife's Motion to Alter or Amend and/or New Trial and remanded the case back to the trial court to enter an order that discussed the evidence that Wife filed in support thereof and ordered the trial court to discuss its basis for its denial.


Court's Refusal to Grant Continuance Due to Counsel's Conflict of Interest Found To Be Reversible Error

September 20, 2013 by The McKellar Law Firm, PLLC

In the case titled In re: M.J.H, Hart v. Lewis, NO. W2012-01281-COA-R3-JV Slip Copy, 2013 WL 3227044 (Tenn. Ct. App. June 25, 2013) Knoxville family law attorneys learn what constitutes a conflict of interest in a custody matter and when it is appropriate for a court to continue a matter when a conflict of interest for an attorney arises.

Facts When M.J.H. was conceived Mother was married; however, she was also having an extramarital affair. She did not believe her paramour to be the biological father of M.J.H. as he told her that he had a vasectomy. For the first two years of M.J.H.'s life, Mother and her husband raised the child together. After two years Mother and her husband commenced divorce proceedings. DNA testing was done, and the paramour was proven to be the biological father. Mother filed a parentage petition in juvenile court asking for DNA testing, to establish a biological father, designate Mother as the primary residential parent, grant Father supervised visitation, and set support. Prior to the hearing, the parties separated and Father hired his own attorney.

At the hearing, Mother's attorney explained that he had a conflict as he had met with both Mother and Father in the early stages of litigation when it was thought the petition was agreed upon. Opposing counsel advised the court that he would not object to a continuance to allow Mother to retain new counsel. Mother's counsel also advised the court that he was representing both Mother and her husband in their agreed divorce, and that while the divorce was almost complete, this created another conflict with the juvenile court litigation.

Despite this information, the trial court held a hearing, with no no sworn testimony, exhibits, or evidence. Instead the hearing was held as a conversation between the judge, attorneys, and clients. On several occasions, Mother's attorney requested the court to enter temporary orders of support and visitation, so the parties could have time to discuss the issues further. However, the court decided to proceed stating there was "no sense in us coming back if we can get it done right now." The court then created a parenting plan appointing Mother as the primary residential parent and granting father visitation; Father was established as M.J.H.'s biological father; M.J.H.'s surname was changed to Father's last name despite this not being part of the petition, and child support was set at $383 per month despite no evidence of Father's income being shown. A child support arrearage was determined by the court to begin when Mother left Father's home. The court then instructed the parties to let it know if they disagreed with any of the information as it was going to make these items an Order of the court. At that point, Mother's attorney again tried to get the court to recognize his conflict of interest in the matter; however, the trial court ignored it.

About a month later, Father filed a Motion for Contempt, averring Mother had not changed the child's last name per the court's order. On the same day, Mother's attorney filed a Motion to Withdraw. Mother hired new counsel who filed a Petition to Vacate the court's order pursuant to Rule 34 of the Tennessee Rules of Juvenile Procedure. Mother cited the following as reasons for the court's order to be vacated: the order was not final because she did not sign it; Attorney's signature on the order was not valid as he was not representing her at the hearing; Mother never received a copy of the order; Father did not submit proof that changing M.J.H.'s last name was in the child's best interest; the child support arrearage was not valid; the court failed to issue written findings as required in regards to its deviation from child support guidelines for the arrearage amount; the child support obligation was set based on incomplete and/or erroneous information and should be reconsidered.

At the beginning of the hearing on the matter, the trial judge let Mother know he was not receptive to her petition. He then recapped the prior hearing from which the order originated and advised Mother that the prior attorney did represent her interests at the hearing. He further pointed out that Mother did not object to her representation at that time, and the prior attorney did not withdraw from the case until two months after the hearing.

The Judge inaccurately stated that the burden of proof was on Mother to show that it was in the best interest of the child not to change the last name of M.J.H. Mother's new attorney respectfully disagreed and pointed out that the burden was actually on Father. Mother's attorney further averred that the order to change the name had to be vacated because it was not relief sought in the parentage petition, and Father did not submit any evidence to support his position.

Moving forward, the Court advised Mother, "[w]ell, it's your motion to modify the child support. You should have the proof with you to show that what he is entering is not right." Mother's attorney attempted to correct the court, advising that Mother's petition was to vacate, not modify. The judge then denied Mother's petition in its entirety, and changed M.J.H.'s surname to Lewis (Father's last name). Mother appealed the decision.

While the appeal was pending and more than one year after the appeal was filed, the trial court filed an eighteen page order titled "Amended Finding of Fact and Response to the Finding of Fact and Order of April 25, 2012." In this order the trial court averred that it had listened to recordings of the original hearing when Mother's attorney attempted to withdraw, and it realized the order entered from that hearing should have been an agreed order instead of just an order. It went on to explain its impressions and reasons from that trial in detail which were not explained during the hearing.

Mother then filed a motion with the appellate court asking it to supplement the appellate record with the new order and strike the order for lack of jurisdiction. The appellate court ordered Father to file a response to Mother's motion and gave additional time at oral arguments to address the issue.

Analysis
On appeal the appellate court had several issues to decide with the most prudent being whether the trial court should have proceeded in a hearing regarding paternity when Mother's attorney attempted to withdraw due to a conflict of interest after having conferred with both Mother and Father when the parentage petition was agreed upon.

Mother based her motion to vacate on Rule 34 of the Tennessee Rules of Juvenile Procedure. This rule permits relief from judgment or orders when there are the following: if the order was obtained via fraud or mistake; clerical error; if the court did not have proper jurisdiction over the matter; or if there was a change in circumstances regarding the best interests of the child. Rule 60 of the Tennessee Rules of Civil Procedure also governs relief from judgments or orders. Rule 60.02 gives five grounds on which relief may be sought:

1. Mistake, inadvertence, surprise or excusable neglect;
2. Fraud,...misrepresentation, or other misconduct of an adverse party;
3. The judgment 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.

When reviewing a denial of a motion for relief from a judgment by a trial court, the appellate court follows Rule 34 of Tennessee Rules of Juvenile Procedure or Rule 60.02 of Tennessee Rules of Civil Procedure which dictates an abuse of discretion standard. This is defined as only being found 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."

The appellate court found that Mother's attorney had an obvious conflict and was correct to request to withdraw from the matter and that the trial court committed error in "steamrolling" through the hearing despite having this information.

Father's argument that Mother did not object to the hearing proceeding was rejected by the appellate court as Mother was not a pro se litigant, because the court did not permit her attorney to withdraw. Therefore, she could not have objected.

Conclusion

The appellate court found the trial court to have abused its discretion in refusing to continue the hearing to allow Mother's attorney to withdraw and Mother to retain new counsel. Therefore, the order from the hearing was vacated and the trial court's denial of Mother's motion to vacate was reversed.


Inequitable Property Division in Divorce Remedied by Motion to Alter/Amend

In the case titled Haggard v. Haggard, No. W2012-003600-COA-R3-CV, 2013 WL 2304186 (Tenn. Ct. App. May 28, 2013) Knoxville divorce attorneys learn what constitutes an equitable division of property in a divorce and when a Motion to Alter or Amend is appropriate post-judgment.

Facts: Husband and Wife were married for nine (9) years with no children. Wife filed for divorce in 2010; Husband responded with a counter-complaint. Wife entered a proposed division of marital property as an exhibit with the trial court requesting it award her a lump sum (or in monthly payments) for her marital share of the assets that she proposed be given to Husband.

The trial court took Wife's proposal under advisement. However, in its Final Decree it awarded marital assets valued at $119,847.49 (including three parcels of property) to Husband while only awarding assets valued at $16,598.01 to Wife with no mention of a monetary award for her marital share of the assets given to Husband.

Wife filed a Motion to Alter the Final Decree arguing that although she had not specifically asked for any of the property awarded to Husband she did not intend to forfeit her claim in said property. She also pointed out the proposed division of the marital property she entered with the court as an exhibit. As a remedy, Wife asked the court to award her unencumbered marital assets. Husband filed a response arguing that the division of property was equitable and no "mistake" was made in the final decree. He averred that under the Rules of Civil Procedure there were no grounds to alter or amend the final decree. The trial court stated that it misunderstood Wife's intention at trial regarding the marital assets and found the division to be inequitable. Therefore, it awarded wife a parcel of property valued at $47,000 with no debt. Husband appealed.

Analysis: On appeal the appellate court had to determine whether the trial court abused its discretion when awarding Wife additional real property, without additional proof presented, based on the trial court's misunderstanding of Wife's intention at trial in regards to marital assets.

Husband argued that the division of the marital property was equitable when factoring in the award of alimony ($450 for 24 months) and attorney's fees (approximately $5,000) awarded to Wife. Husband also pointed out that Wife had no debt. The appellate court did the math which showed Wife's total share of the marital assets as $36,297.51 once the alimony and attorney's fees were added. The court conceded that an "equitable" division of marital property does not have to balance mathematically; however, it stated that the division of assets in this case was "plainly inequitable."

Husband also argued that the trial court abused its discretion in allowing Wife's Motion to Alter or Amend. He averred that in the motion Wife spoke of her "intention" regarding the marital property which was new evidence after the final order was entered in the case. The appellate court pointed out that Husband never asked for an evidentiary hearing from the trial court on the matter.

The appellate court quoted Tennessee case law stating a Motion to Alter or Amend allows a trial court to amend a judgment to correct an error or prevent injustice to a party. Its purpose is to allow trial courts, when it has overlooked or failed to consider important matters, to fix its errors to prevent unnecessary appeals.

Conclusion: The appellate court found that the initial division of marital property was inequitable and the trial court did not abuse its discretion in allowing Wife's motion to amend. The trial court's opinion was affirmed with costs of the appeal taxed to Husband.


Relief from Default Judgment Difficult, Not Impossible

In the case of Butler v. Vinsant, No. M2012-01553-COA-R3-JV (Tenn. Ct. App. April 15, 2013), Knoxville divorce lawyers learn that obtaining relief from a default judgment requires proof of mistake, inadvertence, surprise or excusable neglect.

Facts: In 2010, Mother filed a Petition to Set Child Support against Mr. Vinsant, the alleged biological father in Juvenile Court. Father filed a Response admitting paternity but denying that he owed support due to the fact that the children resided with him the majority of the time. Simultaneously but under a different docket number, Father also filed a Petition to Legitimate and for Custody, requesting that he be named the primary parent. The two actions were consolidated and Mother was allowed to amend her petition to include custody. Mother then filed an Amended Petition asking to be the primary parent. Meanwhile, Father's attorney withdrew. Father never filed an Answer to Mother's Amended Petition, so Mother filed a Motion for Default Judgment and set a hearing. Father failed to appear at that hearing. The trial court found the following: Mother was entitled to a default based upon Father' s failure to answer or appear; that Father's paternity was established; that Mother was primary residential parent with Father having every-other-weekend visitation; that child support was set and Mother was awarded an arrearage.

Father then filed a Rule 60.02 Motion to Vacate Default Judgment. In said Motion, Father provided affidavits stating that his failure to answer or appear was excusable because his prior attorney failed to forward his file to the new counsel. The Rule 60.02 motion was denied by the trial court and Father appealed.

Analysis: Rule 60.02 of the Tennessee Rules of Civil Procedure states that a court may relieve a party from a final judgment or order based upon mistake, inadvertence, surprise or excusable neglect. A trial court's ruling shall only be overturned upon a finding of abuse of discretion (meaning application of an incorrect legal standard, an illogical conclusion, a clearly erroneous assessment of the evidence or reasoning causing injustice to the complaining party).

Further, three factors are used to determine if the default should be vacated: whether the default was willful; whether there was a meritorious defense; and whether the other party would be prejudiced.

Here, the Appeals Court found that Father only had a meritorious defense regarding the custody issue. The evidence in the record submitted by Father - an affidavit and his original petition (which is not evidence by itself) - only contains allegations regarding child custody factors and failed to include facts about his income, child support obligation or arrearage. Further, his Rule 60 Motion fails to dispute or point out any error in the trial court's calculation of child support or the arrearage. However, his Petition avers that he has a loving relationship with the child, and had been the primary caretaker.

Next, the Appeals Court looked to see whether Father's failure to appear and answer was willful. "Willful" means intentional and voluntary rather than accidental and not due to coercion. Father argues he did not have actual notice of the hearing. Therefore, the question becomes whether Father's inaction in promptly obtaining a new attorney and failing to stay updated on the proceedings was willful, less than willful but not excusable, or excusable. Even though Father's first attorney failed to keep Father informed, Father failed to promptly obtain new counsel even after being advised to do so; Father further failed to inform opposing counsel or the court of his lack of representation for several months, until the filing of the Rule 60 Motion. The record also showed that Father ignored his prior attorney's repeated advice to quickly obtain substitute counsel. Therefore, although these actions were not calculated to avoid the court proceedings, the Appellate Court found his actions were not inexcusable, meaning Father is not entitled to any relief under Rule 60.02.


Tennessee Default Divorce Requires Notice, Proper Address

August 22, 2011 by The McKellar Law Firm, PLLC

Obi v. Obi, No. M2010-00485-COA-R3-CV, 2011 WL 2150733 (Tenn. Ct. App. June 1, 2011) shows that if a person never received notice to a default judgment made during a Tennessee divorce proceeding, they may be relieved from that judgment.

Husband and Wife were married and had two children. Wife filed a complaint for divorce, and Husband filed an Answer denying Wife's grounds for divorce. Husband did not respond to any of the discovery requests, but when Wife filed a Motion to Compel, Husband and Wife jointly filed an Agreed Order. After the Agreed Order was entered, Husband's attorney withdrew from representation. Wife then filed a motion to set trial and hold a hearing on her motion to compel. Since Husband never responded to the discovery request, the court dismissed Husband's Answer and granted Wife a Final Judgment of Divorce. The trial court also adopted the Parenting Plan that Wife submitted and ordered Husband to pay child support in the amount of $131.00 a week.
1316747_letter_box.jpg
Six months later, Husband, acting pro se, filed a Tenn. R. Civ. P. 60 motion for relief and to set aside the judgment. Husband explained that he did not live at the address listed on the certificates of service attached to Wife's court filings after his counsel withdrew representation, and was therefore never served with notice of the divorce proceedings. Husband also showed that he was a full-time student, unemployed, that his supposed income that Wife listed in the Child Support Worksheet was incorrect, and therefore he had no way of paying child support. He also objected to the Parenting Plan that Wife submitted. The trial court denied his motion and Husband appealed.

When filing a Tenn. R. Civ. P. 60 motion, the burden is on the movant to set forth facts explaining why the final judgment should be set aside. Also, the motion should be granted if there is reasonable doubt as to the justness of dismissing the case before it can be heard on the merits. To determine this a court considers (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.

Regarding Husband, the appellate court found that since he never received notice to the motions due to them being sent to the wrong address, his failure to defend against Wife's complaint was not willful. The appellate court also found that Husband had a meritorious defense since he was a full-time student who was not working. This information would have been important for the trial court to consider regarding child support. Husband also should not have been denied the opportunity to present his arguments regarding the parenting plan. Lastly, Wife did not demonstrate that she would be prejudiced if Husband's Rule 60 motion was granted. Having Wife prove her case against Husband in a trial where both sides are provided the opportunity to present evidence in their favor did not constitute prejudice.

Most importantly, Husband was denied due process of law when he did not receive notice of actions in the divorce proceedings. For the above reasons, the appellate court held that the trial court erred when it denied Husband's Rule 60 motion regarding the parenting plan and the child support.