Moore v. Palmer

• Decision Date: 15 June 1984
• Citation: 675 S.W.2d 192
• Parties: Terry Dewayne MOORE and wife, Karen Owens Moore, Plaintiffs-Appellees, v. William Houston PALMER, Defendant-Appellant.
• Court: Tennessee Court of Appeals

Page 192

675 S.W.2d 192

Terry Dewayne MOORE and wife, Karen Owens Moore, Plaintiffs-Appellees, v.William Houston PALMER, Defendant-Appellant.

Court of Appeals of Tennessee Middle Section, at Nashville.

June 15, 1984.

Application for Permission to Appeal

Denied by Supreme Court Aug. 20, 1984.

Clinton H. Swafford, Joe S. Bean, Winchester, for plaintiffs-appellees.

William Kennerly Burger, Murfreesboro, for defendant-appellant.

OPINION

LEWIS, Judge.

AppellantWilliam Houston Palmer and appelleeKaren Owens Moore were divorced on December 15, 1980.Custody of the parties' minor child, William Tyler Palmer, was awarded to Karen Moore.On July 25, 1981, appellees were married.On December 7, 1981, appellees filed their petition to adopt William Tyler Palmer.A copy of the petition was served on the appellant on January 8, 1982.

Appellant did not answer, and an order for default judgment was entered on February 15, 1982.On March 8, 1982, a "FINAL DECREE OF ADOPTION" was entered.On March 19, 1982, appellant filed an answer.After his answer was filed, he learned of the default and, on March 24, 1982, filed a "Motion to Set Aside Judgment by Default."After a full evidentiary hearing, the Court overruled appellant's motion.

In this Court, appellant states the issue as

whether the trial court erred in failing to set aside the judgment by default, where the proof demonstrated unequivocally that the original Petitioner mis-stated under oath in the petition that she had received no support from the Appellant, and where she was engaged in active discussions with him regarding the sale of their real estate, during the period of time that she was undertaking to finalize the adoption proceedings.

Rule 55.02 of Tennessee Rules of Civil Procedure provides: "For good cause shown the court may set aside a judgment by default in accordance with Rule 60.02."Rule 60.02,Tennessee Rules of Civil Procedure, provides, in pertinent part:

On motion and upon such terms as are just, the court may relieve a party or his 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; ... or (5) any other reason justifying relief from the operation of the judgment.

Appellant did not show any of the factors set out in Rule 60.02 for which the judgment should be set aside in either the Trial Court or in this Court.

The record is clear that appellant was served with the petition for adoption.He knew it was necessary to answer within thirty days.At the time he was served with the petition, he was represented by two attorneys in other matters.He did not attempt to talk with either of them regarding the adoption petition.He knew the petition alleged that he had abandoned his child.He also knew that the petition alleged that he had "paid nothing toward the support of the child."He and his former wife were actively engaged in negotiations regarding the sale of the home they had purchased during their marriage.At no time did he attempt to discuss the adoption petition with his former wife.The only discussion appellant had with appelleeKaren Moore concerning the adoption was regarding her request that he consent to the adoption.He testified at the hearing on his motion that, while he did not mean it, he told Karen Moore that he would sign a consent to adopt if she would agree to sell the home.

The record shows that appellant had ample opportunity to file an answer and contest the adoption if he had so...