Napier v. Napier

• Court: Tennessee Court of Appeals
• Writing for the Court: J. STEVEN STAFFORD, JUDGE
• Decision Date: 27 July 2020
• Docket Number: No. M2019-00978-COA-R3-CV,M2019-00978-COA-R3-CV
• Citation: Napier v. Napier, No. M2019-00978-COA-R3-CV (Tenn. App. Jul 27, 2020)
• Parties: TODD RANDOLPH NAPIER v. KRISTEN C. NAPIER

TODD RANDOLPH NAPIER v. KRISTEN C. NAPIER

No. M2019-00978-COA-R3-CV

COURT OF APPEALS OF TENNESSEE AT NASHVILLE

Assigned on Briefs June 1, 2020

July 27, 2020

Appeal from the Chancery Court for Williamson County

No. 31211

James G. Martin, III, Judge

Father appeals the trial court's denial of his motion to set aside a default judgment. Discerning no abuse of discretion in the trial court's decision, we affirm and remand for a determination of Mother's fees incurred in this appeal.

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

J. STEVEN STAFFORD, P.J., W.S., delivered the opinion of the court, in which RICHARD H. DINKINS, and THOMAS R. FRIERSON, II, JJ., joined.

Kevin W. Teets, Jr., Nashville, Tennessee, for the appellant, Todd Randolph Napier.

William Phillip Holloway, Franklin, Tennessee, for the appellee, Kristen C. Napier.

OPINION

BACKGROUND

The parties, Plaintiff/Appellee Kristen C. Napier (Hopkins) ("Mother") and Defendant/Appellee Todd Randolph Napier ("Father") were divorced in 2005. At that time, a permanent parenting plan was entered naming Mother the primary residential parent and allowing Father visitation. The genesis of this appeal began on January 7, 2015, when Father filed a petition to enforce the parties' permanent parenting plan. According to the petition, following a dispute between the parties,¹ the parties entered into an agreed order modifying the parenting plan in certain respects.² According to Father, however, Motherwas misconstruing and violating the agreed order, by, inter alia, denying Father visitation and contact with the children. Additionally, Father asserted that the agreed order was intended to only be a temporary modification of the parenting plan. As such, Father asked that the agreed order be declared void and the original permanent parenting plan be reinstated, that Mother be held in contempt, and that child support be recalculated. On February 4, 2015, Father filed a motion to have his petition heard on February 26, 2015. At the time of these filings, Father indicated that he resided on Chelsey Cove in Franklin, Tennessee.

On February 13, 2015, Mother entered a limited appearance for the purpose of filing a motion to dismiss Father's motion to hear the petition. Mother asserted that Father had failed to issue process and serve Mother with the petition. On March 13, 2015, the trial court found that Mother's motion was well-taken, as Father had not served Mother with the petition. In response, Father filed a second motion for his petition to be heard on April 23, 2015. Mother again objected on the basis of lack of service.

On July 27, 2015, Father, now represented by counsel, filed another petition; this one specifically for the purpose of modifying child support. Therein, Father alleged that his income had substantially decreased due to a decrease in business revenue, while Mother's income had increased. Mother filed an answer to Father's petition on August 26, 2015. Mother admitted that she was not employed at the time of the divorce and that she was now employed. Mother denied, however, that a significant variance existed. Mother also filed a counter-petition to modify child support on the basis that Father spends zero days with the children, rather than the eighty days originally awarded to Father. The counter-petition also alleged that Father "quit his prior job and any such voluntary action by Father which results in a decrease in his income should not be considered for purposes of modifying child support." Mother also filed a petition for civil contempt against Father for non-payment of child support from August 2015 to February 2016. Mother also sought attorney's fees pursuant to the parties' marital dissolution agreement ("MDA").

On October 5, 2016, the trial court entered an order allowing Father's counsel to withdraw. The certificate of service indicates that the order was mailed to Father at 414 Brick Path Lane, #207, Franklin, TN 37064. On January 17, 2017, Mother filed a second motion for civil contempt, this time alleging that Father failed to pay child support from March 2016 to January 2017. Mother's petition was mailed to Father at his Brick Path Lane address. At some point, Mother also filed a motion for sanctions related to Father's failure to respond to discovery.³ On April 3, 2017, Father, having retained substitute counsel, filed a response to Mother's requests for contempt and sanctions, alleging that his non-payment of child support was due to financial strain and that many of his legal documents were illegally taken.

Soon, however, Father's second attorney was allowed to withdraw. The October 18, 2017 order allowing the withdrawal specifically noted that Father would be given thirty days beginning on October 6, 2017 to retain new counsel "or shall proceed pro se." The order of withdrawal stated that it was served on Father at his email address, toddnapier19@yahoo.com. No physical address was listed on this order for Father.

On May 7, 2018, Mother filed a motion for a default judgment against Father and to set a final hearing. Therein, Mother noted that Father had been ordered to complete discovery by May 1, 2018, or else "a default judgment shall be entered against Father relative to Mother's pending Petition." Mother alleged, however, that Father has not complied. As such, Mother asked that a default judgment be entered against Father. Mother's motion stated that it was served on Father in two ways: (1) by mail at the Brick Path Lane address; and (2) by email at todd@getresultsmedia.com.

The trial court entered an order on or about June 1, 2018, noting that Father did not respond to Mother's discovery requests or motion for default judgment. In addition, Father was not present for the hearing on the motion for default. The trial court found that Father failed to comply with its prior order requiring Father to respond to discovery. As such, the trial court granted Mother's motion for default and set a final hearing for July 27, 2018. The certificate of service indicated that the motion was sent to Father by mail and email at the above addresses.

On or about August 8, 2018, the trial court entered an order disposing of the pending requests filed in the case. Because Father failed to appear for the final hearing, the trial court dismissed Father's petition to enforce the parenting plan and his petition to modify child support. The trial court further noted that at the final hearing, Mother elected not to proceed on her petition for contempt, but to simply seek a judgment for the arrearage. As such, the trial court dismissed Mother's contempt petitions. The trial court found that a significant variance existed and modified Father's child support. Moreover, the trial court found that Father "has woefully failed to" pay child support, and entered an arrearage judgment in Mother's favor for $50,182.00. The trial court awarded Mother interest on the arrearage, which the trial court reduced to a $5,356.26 judgment. Finally, the trial court awarded Mother attorney's fees in the amount of $8,255.00. Again, the certificate of service on the order from Mother's counsel indicates that it was sent to Father at the Brick Path Lane address and by email.⁴

On March 8, 2019, Father, proceeding pro se, filed a motion for relief from the trial court's final order. Therein, Father alleged that Mother was aware of Father's correct physical address and email address, but she "purposely sent notice to the wrong addresses, in order to achieve a default judgment[.]" The motion alleged that the correct email address was used in previous court documents, including the order allowing Father's most recent counsel to withdraw. Moreover, Father alleged that he informed Mother of his new mailing address by phone. As such, Father argued that the default judgment was void and should be set aside pursuant to Rule 60.02 of the Tennessee Rules of Civil Procedure. This motion indicated that Father's current address was 2009 Cypress Way, Pleasant Hill, MO 64080 and that his email address was toddnapier19@yahoo.com.

Mother responded in opposition to Father's motion on April 25, 2019, contending that she sent copies of all motions and orders to Father's last known address. Mother included various letters sent by her counsel and by Father to show that she used his most recent addresses; the correspondence from Father, however, occurred in 2015. Mother sent this response to Father at the addresses he listed on his Rule 60.02 motion. Mother later filed a motion requesting that she be awarded attorney's fees for defending against the Rule60.02 motion.

A hearing was held on Father's motion on April 30, 2019. At the start of the hearing, counsel for Mother framed Father's motion as seeking to set aside the judgment on the basis of fraud. Father testified upon his own behalf; much of his testimony occurred through questioning from the trial court or cross-examination. Father testified that following the October 18, 2017 order of withdrawal of his second counsel, he received no further notice of any ongoing proceedings in the trial court. Father asserted that Mother was on notice by this order that Father's email address was no longer the Get Results Media address, but rather toddnapier19@yahoo.com. Father testified that he still used this email address.

Father also testified that his physical address changed around the time that this order was entered. According to Father, in October 2017 when the order was entered, he was living with his parents at a Wiregrass Lane address in Franklin, Tennessee, which was his permanent address.⁵ In November 2017, however, he moved to Missouri. For a time, he lived on Cypress Way in Missouri. By March 2019, however, Father had moved to a new address in Missouri at Buckeye Lane. Father later admitted that he had moved several other times during the pendency of the court proceedings, including to Florida.

When asked whether Fath...