Facts: Husband filed for divorce after 25 years of marriage, and Wife filed a counter-complaint.
After the trial had been rescheduled four times and Husband’s third lawyer withdrew, on August 31 the trial court rescheduled the trial for October 31, i.e., 60 days later and five years after the complaint for divorce was filed, and said there would be no further continuances.
Husband met with a new lawyer on September 14 and received a contract that set out the terms of the lawyer’s representation.
Husband did not return to the new lawyer’s office until 4:50 p.m. on October 30, the day before the trial was to begin, when he hired the lawyer.
Wife and her attorney showed up for the scheduled trial. Neither Husband nor his newly-hired attorney appeared. The trial proceeded in his absence.
Wife was granted a divorce, named the primary residential parent of the parties’ child, child support was established, the marital property was divided, and Wife was awarded her attorney’s fees.
Husband moved to set aside the divorce decree on grounds of excusable neglect. He claimed he thought his attorney would have the trial date rescheduled.
The trial court found that Husband failed to inform the new lawyer that the trial was scheduled for October 31. The trial court “emphatically” denied Husband’s motion. (That’s not a good sign.)
On Appeal: The Court of Appeals affirmed the trial court.
Rule 60 of the Tennessee Rules of Civil Procedure gives the court the discretion to relieve a party from a final judgment or order on certain grounds, including mistake, inadvertence, surprise, or excusable neglect.
The party seeking relief from the judgment under Rule 60 carries the burden of proving the basis of his or her claim.
Excusable neglect may have causes ranging from forces beyond the party’s control to forces within its control. Determining whether neglect in a particular circumstance is excusable involves considerations of equity and depends on the circumstances. The equitable considerations include:
- the reason for the neglect,
- the party’s good or bad faith,
- the prejudice to the other party, and
- the impact of the neglect on the proceedings.
The Court found the trial court did not abuse its discretion:
Husband testified that he informed [the new lawyer] about the court date during his initial meeting on September 14, and [the new lawyer] testified that she was not so informed. The trial court did not make a specific finding regarding Husband’s credibility, but it is clear from the court’s order that it believed [the new lawyer’s] and [her assistant’s] testimony that Husband did not inform either of them that his trial was scheduled for October 31. . . . Appellate courts do not reevaluate a trial judge’s credibility determination unless there is clear and convincing evidence to the contrary.
* * * * *
Husband offers no explanation for his failure to appear in court on October 31, 2017, other than his belief that [his new lawyer] would obtain a continuance of the trial. Husband’s testimony . . . does not convince us that he held such belief in good faith. Husband was aware of the trial court’s order [of] August 31 . . . directing him to retain a new attorney within 15 days and clearly stating that there would be no more continuances of the trial. Husband scheduled a meeting with [the new lawyer] within the mandated 15 days from the date of the order, but he did not retain [the new lawyer] to represent him for an additional 46 days. . . . As the trial court found, Husband did not inform [the new lawyer or her assistant] that his trial was scheduled for [October 31].
Husband fails to demonstrate how the trial court applied an incorrect legal standard, reached an illogical or unreasonable result, or based its decision to deny his motion to set the divorce decree aside on a clearly erroneous assessment of the evidence.
The Court affirmed the trial court’s rulings regarding the parenting plan, child support, property division, and the award of attorney’s fees to Wife.