Facts: After 23 years of marriage and two children, Wife filed for divorce. Husband did not hire an attorney or file an answer. This was because he believed the parties would reconcile and Wife would dismiss her complaint. She did not.

Forty-five days after Husband was served with the complaint, Wife moved for default judgment. Although Husband received Wife’s motion in the mail, he did not open or read it. He did not appear at the hearing, and the trial court entered an order granting Wife’s motion for a default judgment.

When Husband received a copy of the order granting the partial default judgment, he hired a lawyer and moved to set aside the partial default judgment.

The trial court found Husband’s failure to respond to Wife’s complaint was willful. Husband’s motion to set aside was denied.

At the final hearing, the trial court set child support and divided the marital property 60% to Wife and 40% to Husband.

Husband appealed.

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

Tennessee Rule of Civil Procedure 60.02 applies to motions to set aside a partial default judgment. This Rule allows judgments to be set aside on the grounds of mistake, excusable neglect, fraud, and a few other reasons.

To set aside a partial default judgment under Rule 60.02(1), Tennessee courts must consider

• whether the conduct leading to the default was willful,
• whether the moving party had a meritorious defense, and
• whether the nonmoving party would be prejudiced by granting relief.

If the court finds the defaulting party acted willfully, the partial default judgment cannot be set aside on the grounds of excusable neglect, and the court need not consider other factors.

Willful conduct is deliberate conduct, but it also includes conduct that is flagrant and unexplained.

The Court found Husband could not have the partial default judgment set aside:

At the hearing on Husband’s motion to set aside, Husband conceded that he read Wife’s Complaint and that he knew he had to file an answer within 30 days. Husband also acknowledged in his testimony that he sent an email to Wife asking for more time to file his answer, and Wife granted a two-week extension. Yet, Husband did not file an answer within the two-week extension because, as he explained, he wanted to “fight for my family and my marriage as long as I could.” In a similar fashion, Husband ignored Wife’s motion for default because he was depressed and did not want the divorce.

It is clear from the testimony and the evidence that Husband made the conscious decision not to respond to Wife’s divorce filings as a part of his efforts to keep his marriage intact. And, though Husband’s plan was ill-conceived, and perhaps a “mistake” in one sense of the word, it does not constitute a mistake under Rule 60.02(1). This is because Rule 60.02(1) applies only when the mistake is inadvertent.

Here, Husband was clearly aware of Wife’s Complaint; he read it, and he knew he had to respond to it. However, he made the deliberate choice not to file an answer. And, while Husband may have been ignorant of Wife’s motion for default, he was willfully so in that he received her motion in the mail and chose not to open or read it.

The trial court’s judgment was affirmed.

K.O.’s Comment: Being served with a complaint for divorce is one of the worst feelings in the world. Even if you know the complaint is coming, it’s traumatic when it arrives. It is understandable that you would want to ignore it or wish it away.

Once you are served with a complaint for divorce, important legal deadlines start to run. You ignore them at your peril.

Pack v. Pack (Tennessee Court of Appeals, Middle Section, April 30, 2019).