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In re I.G.

Court of Appeals of Tennessee, Nashville

January 27, 2017

In re I.G.[1]

          Assigned on Briefs December 2, 2016

         Appeal from the Juvenile Court for Rutherford County No. 5908C Donna Scott Davenport, Judge

         This appeal pertains to an effort to set aside a default judgment. M.V. (Mother) filed a petition seeking a restraining order against M.A.G. (Father) and modification of their permanent parenting plan. Father was served with Mother's petition. He did not file a response. Mother later filed a motion for a default judgment and mailed the same to Father. He did not respond or attend the noticed hearing. At the hearing, the trial court granted Mother's proffered permanent parenting plan and awarded her attorney's fees. The court mailed the final judgment to Father. Father then moved to set aside the judgment, claiming, in part, that he had not received Mother's motion for default. The trial court denied his request after finding that the motion for default was mailed to Father's address on file with the court and that Father had not asserted just cause as to why the final judgment should be set aside. Finding no abuse of discretion, we affirm.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court

         Affirmed; Case Remanded

          Thomas H. Bray, Murfreesboro, Tennessee, for the appellant, M.A.G.

          Michelle Blaylock-Howser, Murfreesboro, Tennessee, for the appellee, M.V.

          Charles D. Susano, Jr., J., delivered the opinion of the court, in which Richard H. Dinkins and Arnold B. Goldin, JJ., joined.

          OPINION

          CHARLES D. SUSANO, JR., JUDGE.

         I.

         Mother and Father have one child together, I.G., who was born in March 2005. The parents first began litigation involving support and custody of the child in 2007. In April 2013, Mother filed a petition for an ex parte restraining order and modification of their parenting schedule. Mother asserted that Father, who had recently been convicted of reckless aggravated assault, had threatened her. At that time, she was preparing to relocate to Texas for her work. The parties entered a permanent parenting plan by agreed order that designated Mother as the primary residential parent and granted Father seventy-four days of parenting time. On March 16, 2015, Mother again filed a petition for an immediate ex parte restraining order and modification of the permanent parenting plan. This time she sought modification because she was preparing to return to Tennessee and because Father had incurred criminal charges for illegal drugs since the 2013 order. She also asserted Father exhibited "increasingly threatening . . . and addictive behaviors."

         Mother's counsel filed an affidavit of reasonable efforts asserting that she attempted to notify Father of the petition by telephone. A temporary ex parte restraining order was entered on March 16, 2015, barring Father "from coming about or contacting" Mother or the child. The order also stated that a hearing was set for March 23, 2015. Through a private process server, Mother attempted to serve Father on March 20, 2015 at his home, 415 Shoshone Place, Murfreesboro, Tennessee. The process server made several attempts before concluding Father was evading service. He taped the notice of service to the front door of Father's residence. Father appeared at the March 23 hearing, where he proceeded without counsel. He was personally served with process at the hearing. The trial court granted Father visitation with the child so long as the child's paternal grandmother was present to supervise. A temporary order was entered April 8, 2015, and mailed to Father at 415 Shoshone Place, Murfreesboro, Tennessee 37130.

         Father did not file a response to Mother's March 16, 2015 petition. On April 27, 2015, Mother filed a motion for default judgment. The motion included a certificate of service, indicating it was mailed to Father at 415 Shoshone Place, Murfreesboro, Tennessee 37130. The motion also gave notice that a hearing would occur on June 5, 2015. Father did not respond or attend the June 5 hearing. Through a final order entered June 18, 2015, the trial court found the parenting plan attached to Mother's petition to modify serves the best interests of the child. The parenting plan granted Father seventy-three days of parenting time and again designated Mother as the child's primary residential parent. The plan added the following restrictions on Father's visitation:

All visits are to be supervised by paternal grandmother and/or paternal grandfather until Father takes an alcohol and drug assessment and provides same to Mother and until Father has successfully passed two (2) consecutive random drug screens requested by Mother. Mother can request up to three (3) random 90 day hair follicle tests per year at Father's expense. Once Father has completed the alcohol and drug assessment and followed all recommendations and has passed two (2) consecutive drug screens requested by Mother, Father may have unsupervised visitation with the ...

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