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Miclaus v. Miclaus

Court of Appeals of Tennessee, Knoxville

June 24, 2019

KRISTIN MARIE MICLAUS
v.
ANDREI MICLAUS

          Assigned on Briefs May 1, 2019

          Appeal from the Probate Court for Cumberland County No. 2016-PF-5061 Larry Michael Warner, Judge.

         Appellant appeals the trial court's denial of his Tennessee Rule of Civil Procedure 60.02 motion, which sought relief from the final decree of divorce entered against him on the ground that he did not receive notice of the trial setting. Because Appellant did not receive proper notice, relief under Rule 60.02(1) should have been granted by the trial court. As such, we vacate the final decree of divorce and remand the case for further proceedings.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Probate Court Vacated and Remanded

          Joe R. Judkins, Oak Ridge, Tennessee, for the appellant, Andrei Miclaus.

          Kevin R. Bryant, Crossville, Tennessee, for the appellee, Kristin Marie Miclaus.

          Kenny W. Armstrong, J., delivered the opinion of the court, in which Thomas R. Frierson, II, and W. Neal McBrayer, JJ., joined.

          OPINION

          KENNY ARMSTRONG, JUDGE.

         I. Background

         Appellant Andrei Miclaus ("Father") and Appellee Kristin Marie Miclaus ("Mother") were married in January 2004. Four children were born to the marriage. On May 9, 2016, Wife filed a complaint for divorce in the Cumberland County Probate Court ("trial court"). By order of July 8, 2016, the trial court named Wife temporary primary residential parent of the children and reserved ruling on Father's parenting time until a later date. The trial court also ordered Father to pay Mother temporary child and spousal support. Father filed an answer to the original complaint for divorce on July 29, 2016 and filed a counter-complaint for divorce on October 20, 2017. Mother answered Father's counter-complaint on November 6, 2017.

         On June 22, 2018, the trial court heard Mother's complaint for divorce. On July 5, 2018, the trial court entered a final decree of divorce, which granted Mother a divorce, divided the marital estate, and entered a permanent parenting plan. Father was not present for the trial. It is undisputed that, on June 15, 2018, Mother's attorney mailed Father notice of the June 22, 2018 trial setting. The notice, however, was mailed to an incorrect address, which Father asserts that Mother knew was no longer his address.

         On July 30, 2018, Father filed a "Motion to Set Aside Final Decree and Permanent Parenting Plan and for a New Trial;" he attached his affidavit to the motion. In his motion, Father asserted that: (1) the notice of the final trial setting was not timely; (2) he did not receive notice of the final trial; (3) the notice was sent to an address that Mother knew was not valid for Father; (4) Father has a meritorious defense to the complaint; and (5) Father has a meritorious counter-complaint against Mother for divorce. By order dated November 5, 2018, the trial court denied Father's motion, stating only "[t]he Motion to Set Aside the Final Decree, Parenting Plan and Motion for New Trial is not well taken and as such same is denied." Father appeals.

         II. Issue

         The sole issue on appeal is whether the trial court erred in denying Father's "Motion to Set Aside Final Decree and Permanent Parenting Plan and for a New Trial."

         III. Nature of Father's Motion

         As an initial procedural issue, it is unclear whether Father's motion falls under Tennessee Rule of Civil Procedure Rule 59 or Rule 60.02. In determining which rule to apply, "courts must consider the substance of a motion," rather than the title. Fielder v. S. Health Partners, No. M2014-01819-COA-R3-CV, 2016 WL 399777, at *3 (Tenn. Ct. App. Feb. 1, 2016) (quoting Tennessee Farmers Mut. Ins. Co. v. Farmer, 970 S.W.2d 453, 455 (Tenn. 1998)). Although we are cognizant that Father filed his motion within thirty (30) days of the final judgment (a fact that would implicate Rule 59), the substance of his motion and the relief sought therein are more aligned with Rule 60.02, which provides:

On motion and upon such terms as are just, the court may relieve a party or the party's legal representative from a final judgment, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (3) the judgment is void; (4) the judgment has been satisfied, released or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that a judgment should have prospective application; or (5) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1) and (2) not more than one year after the judgment, order or proceeding was entered or taken. . . .

Tenn. R. Civ. P. 60.02. As noted above, Father's motion alleged that the "Notice setting the cause for trial was not timely, not received by [Father] before the trial in this cause, and was sent to an address that [Mother] knew was not a valid address for Father." In the affidavit attached to his motion, Father requested that the trial court set aside the final decree and schedule a new trial. From the content of his motion, we glean that Father was proceeding under Rule 60.02 because his ultimate ...


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