Facts: Mother and Father are the parents of Child. They entered an agreed parenting plan designating Mother as the primary residential parent and granting Father 74 days of parenting time.

A few years later, Mother petitioned for an ex parte restraining order and modification of the parenting plan because Father had incurred criminal charges for illegal drugs and, she asserted, exhibited increasingly threatening and addictive behaviors.

A temporary ex parte restraining order was entered that prevented Father from contacting Mother or Child.

A hearing occurred shortly thereafter, where Father appeared without counsel and was personally served with the petition and ex parte restraining order. The trial court granted Father visitation with Child so long as Child’s paternal grandmother was present to supervise.

Father never filed a response to Mother’s petition. Mother filed a motion for a default judgment and mailed it to Father’s address. The motion gave notice that a hearing would occur on a certain date. Father did not respond or attend the hearing.

In a default judgment, the trial court found the parenting plan attached to Mother’s petition was in the best interest of Child. The parenting plan requires that Father’s visitation be supervised by one of his parents. It further provides that Father could have unsupervised visitation after completing an alcohol and drug assessment, following all recommendations therefrom, and passing two consecutive drug screens. Finally, the trial court awarded Mother $2620 in attorney’s fees and expenses.

Shortly thereafter, counsel for Father appeared and filed a motion to alter or amend the default judgment. In the motion, Father asserted he had not received Mother’s motion for default and had no notice of the hearing.

The trial court denied Father’s motion, finding that Father was fully aware of the proceedings as he had attended the hearing on the restraining order, was advised to get counsel, and failed to respond to Mother’s petition in the time prescribed by law. It also found Father’s address had not changed, and he received the order of default.

Father appealed.

On Appeal: The Court of Appeals affirmed the trial court.

Father argued the default judgment should be set aside because of “excusable neglect.”

Rule 55.02 of the Tennessee Rules of Civil Procedure provides that a default judgment may be set aside pursuant to Rule 60.02. Rule 60.02 provides relief from final judgment as follows:

On motion and upon such terms as are just, the court may relieve a party or the party’s legal representative from a final judgment, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect [.]

Obtaining postjudgment relief for “excusable neglect” involves three inquiries: (1) whether the default was willful; (2) whether the defendant has a meritorious defense; and (3) whether the nondefaulting party would be prejudiced if relief were granted. However, it is not required that the moving party assert a meritorious defense if the default judgment was obtained in a way that violates the Rules of Civil Procedure. The trial court should grant relief on a default judgment when the plaintiff has failed to comply with required procedural safeguards.

After reviewing the record, the Court rejected Father’s argument:

It is well-established that pro se litigants are not excused from complying with the same substantive and procedural requirements that other represented parties must adhere to. Further, [Father] was given an alias summons at the [ex parte restraining order] hearing that expressly stated he had 30 days to file a defense or “judgment by default can be rendered against you for the relief sought in the complaint.”

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The trial court found Father failed to file a timely response to Mother’s petition, despite being “fully aware” of the court proceedings. When a defendant fails to answer a complaint, the plaintiff may obtain a default judgment without a hearing on the merits. Father offered the trial court no explanation for his failure to receive or respond to the motion for default. Conduct that is flagrant and unexplained are characteristics of willful conduct. Further, a defendant acts willfully if he reads the summons and does nothing to respond to the complaint as directed by the summons. For these reasons, we find Father’s failure to respond was willful. Willfulness is a threshold inquiry to determine whether relief from a judgment is proper for “excusable neglect.” If the court finds that the defaulting party has acted willfully, the judgment cannot be set aside on “excusable neglect” grounds, and the court need not consider the other factors.

Thus, the trial court’s decision to deny Father’s motion was affirmed.

In re I.G. (Tennessee Court of Appeals, Middle Section, January 27, 2017).

Information provided by K.O. Herston: Knoxville, Tennessee Divorce and Family-Law Attorney.