Kimberly Diane Ramsey v. Elmer Cole Ramsey

Citation: Not availableDocket: E1999-00577-COA-R3-CV

Court: Court of Appeals of Tennessee; March 18, 1999; Tennessee; State Appellate Court

Original Court Document: View Document

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On March 4, 1999, Kimberly Diane Ramsey filed for divorce from Elmer Cole Ramsey, who was served the next day. A hearing was scheduled for July 20, 1999, after the Defendant filed an answer on April 14, 1999. On the hearing date, neither the Defendant nor his counsel appeared, despite attempts by Plaintiff’s counsel to contact the Defendant’s attorney beforehand. The trial court proceeded with the hearing, ultimately granting the divorce, awarding custody of the child to the Plaintiff, setting child support at $103.00 per week, dividing marital property, and awarding the Plaintiff $850 in attorney fees. Following the judgment on July 23, 1999, the Defendant filed a motion to vacate the default judgment, claiming he had no notice of the hearing and that his counsel was otherwise occupied. The trial court denied this motion after a hearing on September 7, 1999. The appellate court affirmed the trial court's decision, confirming the judgment of divorce and related orders.

The Court confirmed that a docket sounding was scheduled for March 19, 1999, with a final hearing for the case set on July 20, 1999. It emphasized that it is the responsibility of each party and their attorney to attend the docket sounding and be aware of trial settings. On July 20, the Plaintiff was present with subpoenaed witnesses, while the Defendant's attorney was unreachable despite the Court's efforts to contact them and the case being placed at the end of the docket for hearing. Consequently, the Court denied the Defendant's motion to vacate the judgment.

On September 22, 1999, the Defendant's counsel filed an affidavit from the Defendant asserting his desire for custody of his daughter, his lack of psychological issues, and his readiness to pursue the case. The Defendant also filed a timely notice of appeal. On the same day, the Defendant's counsel submitted an affidavit stating that he had made numerous attempts to communicate with the Plaintiff's attorney regarding the case but received no notification about the court setting. Additionally, an affidavit from Jill Berry indicated a late-night phone call to the Defendant's counsel, during which he agreed to represent her in a related court matter.

The Defendant raised the issue of improper judgment being rendered in the Plaintiff's favor without adequate notice to him or his attorney, contrary to Tennessee procedural rules. The appellate review is conducted de novo, presuming the trial court's factual findings as correct unless evidence strongly contradicts them. Legal conclusions from the trial court, however, are reviewed without such deference. The Court noted that affidavits and exhibits submitted after the September hearing were not considered, as they were not part of the record before the trial court at that time, in accordance with Tennessee appellate rules limiting record modifications.

Defendant referred to the final judgment as a “default” judgment, but it was established that it was not. According to Tenn. R. Civ. P. 55.01, a default judgment can only be entered when a party fails to plead or defend, and written notice of the application for such judgment must be served at least thirty days before the hearing. It is undisputed that Defendant filed an answer and had counsel present at the trial court. Defendant's counsel acknowledged at the September hearing that the judgment was not a default judgment, confirming that it was appropriately entered.

Regarding the claim that Defendant’s counsel lacked notice of the July 20 hearing, it was noted that Judge Wexler holds three docket soundings annually, with notices posted in multiple locations. Local attorneys are expected to attend these soundings, and case information is available from the Circuit Court Clerk’s office. The case was set for hearing on July 20, 1999, during a docket sounding held on March 19, 1999, providing over 90 days' notice to all parties.

Additionally, it was argued that the judgment violated T.R.C.P. Rule 55.01, which mandates written notice at least five days before a hearing for parties who have appeared. However, the judgment was not a default judgment and was properly docketed for trial with sufficient notice. The trial court is positioned to assess witness credibility, and the judge noted the impracticality of notifying every local attorney about their cases being set. Thus, the motion to vacate was denied.

Parties are responsible for tracking the status of their cases, as excessive efforts to locate lawyers could hinder case progress. The case spanned from March to July, indicating a prolonged absence of notice about its status. The discussion highlights that this case was contested and not subject to default judgment requirements. A precedent is cited from Barber, McMurry, Inc. v. Top-Flite Development Corporation, where the defendant's attorney sought a continuance against the plaintiff’s readiness to proceed, resulting in a judgment favoring the plaintiff. The appellate court affirmed that attorney absence due to other commitments does not justify overturning a judgment. Thus, the trial court's decision to proceed with the plaintiff's case and enter judgment was upheld, with costs assigned to the defendant. The matter is remanded for further proceedings as necessary.