Facts: Husband and Wife were embroiled in a contentious divorce where each accused the other of marital misconduct. During the divorce, Wife made numerous abuse allegations against Husband to the police, the Tennessee Department of Children’s Services, and Husband’s military superiors. These accusations prompted investigations in both Tennessee and Florida (where Husband was stationed with the Air Force). All investigations concluded with no action against Husband; one detective even found Wife’s abuse claim “unfounded.” Husband was never arrested, and no order of protection was granted.

Frustrated by what he deemed false accusations, Husband petitioned to hold Wife in criminal contempt for allegedly lying to authorities and his employer. That criminal contempt petition—and a second military investigation into Wife’s claims—remained pending when it came time for Wife’s deposition.

At her deposition, Wife refused to answer almost every question, invoking her Fifth Amendment privilege against self-incrimination at each turn. She even declined to provide basic information, such as her name and address. Wife’s attorney urged her to cooperate, warning that she “ha[d] to answer these questions,” but Wife persisted in her blanket refusal. Some of the specific questions she stonewalled involved her allegations of Husband’s adultery and her request for alimony. Wife claimed the open investigations gave her carte blanche to stay silent. She later insisted she was acting on advice from a military lawyer to only answer “in a broad sense, but not in detail” so as not to jeopardize the ongoing inquiries. At one point, Wife even complained that being deposed on these issues felt like “witness tampering” and that she was “being penalized as a victim of crime” for reporting Husband to the authorities.

For obvious reasons, Wife’s conduct halted the discovery process. Husband’s counsel telephoned the trial judge mid-deposition for guidance. The judge instructed the parties to move the deposition into the courtroom so the court could address the impasse immediately.

Once before the judge, Wife continued to defy orders to answer. The judge explicitly directed Wife to respond on at least three occasions. The judge also warned Wife multiple times that refusing to answer could result in civil contempt, which can include jail time for failing to comply with a court order. Despite these warnings, Wife stood firm, insisting she would not answer because she was “a witness in a federal [military] investigation” and claiming the deposition questions violated federal law. She mistakenly believed her role in the military’s inquiry shielded her from having to answer anything in the divorce case.

Then, without any motion pending or advance notice to the parties, the trial judge abruptly changed course from contempt and invoked Rule 37.02 of the Tennessee Rules of Civil Procedure to sanction Wife. With no prior warning that this was even a possibility, the trial court struck Wife’s pleadings and entered a default judgment against her on all issues. In other words, the judge terminated Wife’s ability to present her side of the case. This ad hoc sanctions hearing took place on the same day as the deposition, catching Wife completely off guard. The judge did not actually hold Wife in contempt after all; instead, he later explained that he feared Wife “wanted to go to jail and be a martyr,” so he opted for what he viewed as a “less drastic” remedy of defaulting her case.

Wife’s deposition ended with pleadings struck such that the litigation proceeded as if only Husband had filed claims. Husband’s own deposition, which had been scheduled next, was canceled.

Wife quickly hired a new attorney to try to undo the damage. Her new counsel filed a motion asking the court to reconsider the sanctions, arguing that Wife “was never given any notice” that her refusal might lead to such extreme consequences. The motion noted that no party had ever filed a written request for sanctions, and the judge’s only prior warning had been a threat of contempt, not of default. Wife also maintained that her Fifth Amendment invocation was legitimate at least for questions touching on the pending criminal contempt allegations (for example, questions about whether she fabricated the adultery claims could potentially incriminate her for making false reports).

The trial judge was unmoved. At the hearing on Wife’s motion, the judge acknowledged understanding why Wife asserted the Fifth “as relates to certain questions,” but he emphasized that the Fifth Amendment only covers answers that could truly expose her to criminal prosecution. As for the lack of notice, the judge expressed the view that he didn’t “have to give notice” before imposing sanctions under Rule 37, especially since he had repeatedly ordered Wife to answer and had warned her that she could be held in contempt. The judge denied Wife’s request to set aside the default, citing her “level of disrespect” and “blatant obstruction” of the discovery process. After obtaining the default judgment, Husband voluntarily dismissed his criminal contempt petition against Wife.

The case proceeded to a multi-day divorce trial on the merits without Wife’s pleadings. Essentially, only Husband’s claims were before the court. Following that one-sided proceeding, the trial court granted Husband a divorce on grounds of Wife’s inappropriate marital conduct. Because Wife’s counterclaims had been struck, she had no pending request for alimony, and none was awarded. The court divided the marital property.

Most dramatically, the court fashioned a new permanent parenting plan that gave Husband all parenting time with the parties’ minor child. Wife was reduced to whatever supervised visitation Husband might allow or any temporary arrangement on remand. The court ordered Wife to pay child support and entered several money judgments against her, i.e., $1,200 as a sanction for her willful failure to participate in discovery, $4,508.70 under TCA § 36-4-135 for litigation expenses caused by her false abuse allegations, $7,885.50 for Husband’s attorney’s fees as the prevailing party on custody per § 36-5-103(c), and $5,504 plus interest for retroactive child support.

Wife appealed, specifically challenging the discovery sanctions imposed.

On Appeal: The Court of Appeals vacated the trial court’s sanctions and final judgment and remanded for a do-over of the divorce trial.

Tennessee law provides that trial courts have broad discretion to sanction parties for discovery misconduct, but that discretion is bounded by principles of notice and fairness. Tennessee Rule of Civil Procedure 37.02 authorizes various sanctions when a party fails to obey a discovery order, including striking pleadings or rendering a default judgment against the disobedient party. However, Rule 37.02 must be applied consistently with other procedural rules and due process requirements.

One such rule is Tennessee Rule of Civil Procedure 55.01, which mandates that any party against whom a default judgment is sought must receive written notice of the application for default at least five days before the hearing. This notice requirement explicitly applies to “all parties against whom a default judgment is sought,” even if they have appeared in the case.

Tennessee courts had previously suggested that Rule 55.01’s notice provisions apply when a default judgment is imposed as a discovery sanction under Rule 37.02 such that a party should be given advance warning if their opponent is seeking a default. This aligns with the broader principle that lack of notice generally renders discovery sanctions improper under Tennessee law. Even apart from Rule 55, a litigant is entitled to know the potential penalties so they have a fair opportunity to either comply or argue against the sanction.

The Fifth Amendment was also central to this case. The privilege against self-incrimination can be invoked in civil proceedings, but its scope is limited. A witness may refuse to answer only if the response could be used in a criminal prosecution or would furnish a link in the chain of evidence in a criminal case. There is “no right to refuse to answer any and every question” in a civil lawsuit. It applies only to questions that pose a real danger of criminal exposure. Notably, the privilege “does not protect witnesses in circumstances in which the answer may subject them only to civil liabilities.” The trial court has discretion to evaluate whether a Fifth Amendment claim is properly invoked, and a blanket refusal to participate in discovery is rarely justified.

Here, the trial judge correctly noted that Wife’s Fifth Amendment right would cover some questions directly tied to possible criminal charges, such as questions that might incriminate her in Husband’s contempt proceeding but would not excuse her from answering everything. Tennessee law makes clear that a litigant who invokes the Fifth Amendment in a civil case may face consequences, such as adverse inferences or sanctions, if their silence thwarts the discovery of truth. Still, any sanction must be imposed in a procedurally fair way.

Applying these principles, the Court of Appeals held that the trial court abused its discretion by imposing the harshest of discovery sanctions with inadequate notice to Wife and without adhering to the required procedure:

In the present case, Husband filed no written motion seeking sanctions, nor was written notice provided to Wife in any form indicating that sanctions were being sought against her. In fact, there was no written notice that any type of hearing would be occurring before the trial court. Rather, the hearing before the trial court emerged out of an ad hoc same day process stemming from Wife’s recalcitrance to answer questions at her deposition. At this hearing, the trial court was not silent as to the potential sanction that it might impose if Wife persisted in not answering questions. Quite to the contrary, the trial court was clear in communicating with precision as to the sanction the court was considering imposing if Wife refused to answer questions. The trial court indicated that it was considering holding her in civil contempt of court. Instead of doing so, the trial court ultimately surprised Wife by striking her pleadings and entering a default judgment against her without having afforded any notice that it was considering doing so.

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In determining whether a trial court acted properly in imposing sanctions under Rule 37, this court has repeatedly indicated that the absence of notice renders sanctions improper.

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Ultimately, despite the general lack of notice in this case and despite having apprised Wife that it was a different sanction that the court would impose upon her for noncompliance, the trial court struck without notice Wife’s pleadings and entered a default judgment. These sanctions are of a qualitatively different nature than the threatened sanction of civil contempt and are not clearly lesser sanctions than the sanction the trial court threatened to impose. The court’s actions took place in the absence of any written motion for sanctions or notice as to potential sanctions, including even a written reference to Rule 37.02. Accordingly, under the unusual circumstances of this case, … we simply cannot ultimately conclude that notice in this case was proper.

Accordingly, we vacate the trial court’s order imposing sanctions striking Wife’s pleadings and entering a default judgment. Because this determination results in the reinstatement of Wife’s pleadings, including her claims as related to the parties’ parenting plan, the division of property, and alimony, we must also vacate the final order and remand for further proceedings.

The Court of Appeals found that Wife did not receive proper notice that such a severe outcome was at stake. The only sanction the judge warned about was contempt, but the punishment he actually handed down—terminating Wife’s case—was “qualitatively different” and arguably even more severe. No written notice or motion ever put Wife on notice that a default judgment was being sought, and the issue was decided in a surprise hearing on the same day as the deposition.

Under Tennessee law, that process was fundamentally unfair. As a result, the default judgment and everything that flowed from it, e.g., the new parenting plan, property division, etc., were thrown out. Wife’s pleadings are reinstated, and the case is remanded to the trial court for a retrial on all issues, with both sides’ claims restored. The previously imposed parenting plan remains in effect as a temporary measure, but it is not a permanent determination. On remand, both parties will have another chance to litigate the divorce with full due process.

K.O.’s Comment: Striking a party’s pleadings and entering a default judgment is often called the “death penalty” of sanctions for a reason: it ends the case in one fell swoop, as it did for Wife. But when a default judgment is used as a discovery sanction, Tennessee precedent is quite clear that the notice protections of Rule 55.01 cannot be ignored. The idea is simple: if you’re going to effectively hand victory to one side by defaulting the other, you must give the losing party a heads-up and a chance to be heard.

Wife’s predicament also highlights the risk of broadly invoking the Fifth Amendment in civil litigation. Yes, a deponent can refuse to answer specific questions that might lead to criminal jeopardy. Here, Wife pleaded the Fifth to everything, even routine identifiers. It gave the impression of obstinacy rather than a carefully limited assertion of privilege. In civil cases, unlike in criminal cases, the factfinder may draw a negative inference when someone invokes the Fifth Amendment.

Source: Gordon v. Gordon (Tennessee Court of Appeals, Middle Section, April 21, 2026).

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