Facts: Wife filed for divorce after 16 years of marriage.

A year and a half later, Wife moved for a default judgment because Husband never filed an answer.

Husband also did not appear at the hearing on Wife’s motion for default judgment. Wife appeared and testified.

The trial court granted a default judgment, equitably divided the marital estate, and ordered Husband to pay $1000 per month as alimony in futuro.

Within 30 days of the final judgment’s entry, Husband retained counsel and moved to set aside the final judgment. While Husband admitted he was served with the complaint for divorce, he claimed that he and Wife continued to reside together in the marital residence, that they had discussed reconciling on several occasions, and that Wife intentionally withheld his mail related to the divorce so he would not know to participate in the divorce proceedings.

Wife denied these claims and filed the transcript from Husband’s deposition that challenged his claims.

The trial court denied Husband’s motion.

Husband appealed.

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

Husband argued he was entitled to relief from the default judgment because of “excusable neglect.”

When a party seeks relief from a default judgment on grounds of excusable neglect, Tennessee courts must first consider whether the conduct leading to the default was willful. Only if the conduct is not willful do Tennessee courts consider whether the defaulting party has a meritorious defense and whether the nondefaulting party would be prejudiced by granting relief.

But if the conduct of the defaulting party is willful, the default judgment cannot be set aside on grounds of excusable neglect.

Willful conduct includes deliberate choices and conduct that is flagrant and unexplained.

The Court found “excusable neglect” inapplicable because Husband acted willfully:

Here, the conduct that precipitated the default was willful. Husband acknowledged being served with the complaint for divorce and deciding to represent himself….

[H]usband approached the divorce as if it was not going to happen. In refusing to respond to questions or produce subpoenaed information, he stated, “[W]e’re not going to get a divorce right now.” The following exchange from his deposition typified his attitude:

Wife’s Counsel: And as far as you know, it hasn’t been—your wife has not dismissed her Complaint for Divorce as we sit here today, correct?

Husband: That is correct.

Wife’s Counsel: Have you had any conversations with your wife about the divorce? Has she indicated to you that she’s not going through with the divorce?

Husband: No, we haven’t spoken.

Wife’s Counsel: So what makes you think that you’re not going to get a divorce?

Husband: That’s just my wishful thinking.

Reality proved Husband wrong.

Husband’s conduct in failing to respond to the complaint, in failing to meaningfully participate in the proceedings, and in failing to consult with legal counsel until after the entry of the [judgment] of divorce was deliberate and not adequately explained; thus, it was willful.

The trial court’s default judgment was affirmed.

Wilson v. Wilson (Tennessee Court of Appeals, Middle Section, February 11, 2021).

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