IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

April 18, 2012 Heard at Memphis

JEAN ANN FIORAZO BECK v. JAMES MARTIN BECK

Direct Appeal from the Circuit Court for Shelby County

No. CT-004891-04 Gina C. Higgins, Judge

No. W2011-01806-COA-R3-CV - Filed May 11, 2012

This is a post-divorce action, concerning the Appellant Husband’s obligation to pay alimony

in futuro to Appellee Wife. Husband and Wife entered into a marital dissolution agreement

(“MDA”), which was incorporated and made part of the final decree of divorce. The MDA

provided that both parties would exchange tax returns each year and that, if these returns

were not proferred, then alimony would be suspended until they were. Wife provided her tax

returns after redacting her personal information. Husband concluded that the redaction was

a breach of contract and, without prior court approval, unilaterally stopped making alimony

payments. Because the MDA provision for alimony in futuro lost its contractual nature upon

being incorporated into the trial court’s order, and because Husband failed to obtain court

approval before he suspended payments, we conclude that he lacked authority to stop those

payments. Therefore, the award of arrears was proper. Affirmed and remanded.

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

Remanded

J. STEVEN STAFFORD,J., delivered the opinion of the Court, in which ALAN E. HIGHERS, P.J.,

W.S., and HOLLY M. KIRBY, J., joined.

Kevin A. Snider, Germantown, Tennessee, for the appellant, James Martin Beck.

Justin K. Thomas, Memphis, Tennessee, for the appellee, Jean Ann Fiorazo Beck.

OPINION

After twenty-six years of marriage, Appellee Jean Ann Fiorazo Beck filed a complaint

for absolute divorce against Appellant James Martin Beck. Therein, Ms. Beck alleged, inter

alia, that, “[t]hroughout the course of the parties’ marriage, Husband had been abusive to

Wife, physically, verbally, and emotionally.” Following the filing of the complaint for
divorce, the parties engaged in approximately three years of contentiouslitigation before they

were divorced by final decree, entered on March 5, 2008. Prior to the entry of the divorce

decree, the parties were able to agree on a Marital Dissolution Agreement (“MDA”), which

was incorporated into the final decree of divorce. As is relevant to the instant appeal, the

MDA provides, at Paragraph 1, that:

Alimony. The Husband shall pay alimony in futuro, which shall

be modifiable by the Court, taxable to Wife, and tax-deductible

to Husband. The alimony shall cease upon Wife’s death,

remarriage, or cohabitation with anyone other than her son, or

upon Husband’s turning 65 years old. Husband shall pay

$2,600.00 per month beginning on September 1, 2007 through

the month of closing or six month, whichever occurs first. The

$2,600.00 shall be payable as follows: Husband shall pay the

mortgage, MLGW bill, association fee, car note, and car

insurance directly to each creditor and shall pay $270.00 directly

to Wife. Wife shall be responsible for payment of all of her

other bills and shall hold Husband harmless and indemnify him

on these debts. Husband shall pay Wife $2,000.00 per month

beginning the month following the last $2,600.00 payment.

At least one-half of the monthly support payments to Wife shall

be paid on or before the first day of each month beginning

September 1, 2007, and the remaining amount shall be paid by

the 15 of each month by direct deposit. Wife shall provide

th

Husband with deposit slips. Both parties shall provide the other

party a copy of their tax return, including W-2's and supporting

documents, by April 30 of each year. Provided Husband’s gross

income exceeds $80,000.00 per year, the following calculation

shall apply: If the sum of Wife’s gross income and alimony

received exceeds the Husband’s gross income minus alimony

paid, thisshall constitute a material change of circumstances and

the Court shall reduce the alimony obligation to the extent that

each party shall have the same amount of income including

alimony payments. If Wife fails to produce her return, alimony

payments shall be suspended until production.

More than two years after the divorce, on May 14, 2010, Mr. Beck filed a motion

titled “Motion to Clarify.” In his motion, Mr. Beck asks for clarification of Paragraph 1 of

the MDA, supra. Specifically, Mr. Beck avers, in relevant part, that:

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3. . . . [Mr. Beck] has had repeated and continuous problems

with Wife producing her tax returns. In particular, the Wife has

refused and/or otherwise failed to timely provide her tax return

for the year of 2008 and when produced it was a “Tax Return

Transcript” and not a true and correct copy of the signed tax

return. In addition, for 2008, the Wife produced an unsigned

copy of what appears to be her 2009 Form 1040 in which the

Wife has unilaterally redacted her social security number (for

which [Mr. Beck] does not have an issue with [sic]), her bank

account information, her occupation, and employer and

employment information from the attached W-2.

4. [Mr. Beck] would aver that the production of these two items

(i.e., the 2008 Tax Return Transcript and the unilaterally

redacted 2009 Tax Return— assuming that both of these

documents are accurate, true and correct) are not in compliance

with the requirements of the Marital Dissolution Agreement

and/or [are] certainly not within the spirit and intent of the

requirements of disclosure so that [Mr. Beck] can verify the

accuracy of the tax returns and/or be provided a true and correct

signed copy (which could greatly impact his alimony payment.).

It is undisputed that the motion to clarify was not served on Ms. Beck by private

process or by certified mail. Rather, it was simply mailed to Ms. Beck’s last known address.

Ms. Beck contends that she did not receive notice of this motion or of the May 28, 2010

hearing scheduled as a result of the motion. Consequently, she failed to appear at the hearing

on the motion to clarify. On June 30, 2010, the trial court granted Mr. Beck’s motion,

specifically ordering that copies of the tax returns “shall be provided to the other party in an

unredacted form and any previously redacted returns, including W-2s and supporting

documents, shall be provided to the other party in an unredacted form within sixty (60) days

of the entry of this Order.” However, we note that the June 30 order does not go so far as

th

to order a suspension of alimony at that time.

On September 16, 2010, Mr. Beck petitioned the court for a finding of civil contempt

against Ms. Beck. He stated that, although his attorney had sent a demand letter “addressed

to [Ms. Beck], [she] had not yet produced her 2008 Federal and/or state Income Tax Return

in a timely manner. . . .” Based upon this allegation, Mr. Beck informed the court that he had

“suspended all alimony payments to [Ms. Beck] during the periods that she has refused

and/or otherwise failed to produce her 2008 Federal Tax return along with supporting

documentation.” On March 24, 2011, Ms. Beck filed a response to the petition for civil

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contempt. Therein, she alleged that she “ha[d] produced her 2008 and 2009 tax transcripts,

which show her exact income for those years,” and that “Mr. Beck [has] simply refus[ed] to

pay. . . alimony.” Ms. Beck further responded that “Mr. Beck was an abusive Husband,” and

that Ms. Beck “is in a witness protection type program for domestic violence victims in an

undisclosed location.” Consequently, Ms. Beck averred that Mr. Beck was seeking

unredacted tax returns “so that he c[ould] find Ms. Beck.” Concurrent with her response,

Ms. Beck filed a counter-petition for civil contempt against Mr. Beck, alleging that Mr. Beck

was “currently delinquent in his alimony paymentsin the approximate amount of $9,000.00.”

Also on March 24, 2011, Ms. Beck moved the court, under Tennessee Rule of Civil

Procedure 60.02, to set aside the June 3, 2010 order granting Mr. Beck’s motion to clarify

Paragraph 1 of the MDA. In support of her motion, Ms. Beck asserted that she had not

received service on the motion, and that she had received no notice of the hearing. Mr. Beck

opposed all of Ms. Beck’s motions.

All pending motions were heard on April 8, 2011. On July 19, 2011, the trial court

entered its order, granting Ms. Beck’s motion to set aside the order clarifying the MDA,

denying Mr. Beck’s motion for civil contempt, and granting, in part, Ms. Beck’s counterpetition for civil contempt against Mr. Beck. The court further determined that Mr. Beck was

in arrears on his alimony payments in the amount of $34,997.25. This amount was reduced

to judgment as follows:

4. . . . Mr. Beck shall pay Ms. Beck $10,000.00 on or before

August 12, 2011. With respect to the remaining arrearages still

owed after application of the $10,000.00 payment, ($24,997.00),

Mr. Beck shall pay $1,000 per month towards those arrearages

beginning in July 2011 with the first payment due on or before

July 30, 2011. This payment shall be in addition to the

$2,000.00 per month in alimony that Mr. Beck is required to pay

Ms. Beck pursuant to the parties’ divorce.

5. The total amount due Ms. Beck each month ($2,000 alimony

+ $1,000.00 arrearage) shall be paid to Ms. Beck in equal

installments of $1,500.00 on the 15 and 30 of each month

th th

until it is paid in full.

The trial court’s order goes on to state that, “[f]rom this point forward, the parties

shall exchange tax returns and W-2's each year and Ms. Beck shall be allowed to redact her

personal address and telephone number from the tax return produced to Mr. Beck.”

Mr. Beck filed a timely notice of appeal. However, upon initial review of the record,

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this Court determined that the July 19, 2011 order was not final and appealable as it

specifically reserved the issue of Ms. Beck’s attorney fees. Upon order of this Court, on

November 16, 2011, the trial court filed an order clarifying its July 19, 2011 order, and

specifically denied Ms. Beck her attorney’s fees. It appears that the order is now final for

purposes of this appeal. Mr. Beck raises three issues for review as stated in his brief:

1. Whether the Court below erred in awarding suspended

alimony retroactively to the Plaintiff Appellee Jean Fiorazo

Beck once she provided all of her income tax return documents

to the Defendant/Appellant James Martin Beck pursuant to the

parties’ Marital Dissolution Agreement.

2. Whether the Court below erred in setting aside the June 3,

2010 Order granting the Defendant/Appellant James Martin

Beck’s Motion to Clarify and/or Alter or Amend Paragraph

Number 1 of the parties’ Marital Dissolution Agreement and

Reducing alimony arrearages to judgment.

3. Whether the court below erred in refusing to hold the

Plaintiff/Appellant Jean Ann Fiorazo Beck in civil contempt for

failing to comply with the orders of the Court.

1

Because this case was tried by the court sitting without a jury, we review the case de

novo upon the record with a presumption of correctness of the findings of fact by the trial

court. Unless the evidence preponderates against the findings, we must affirm, absent error

of law. See Tenn. R. App. P. 13(d).

Mr. Beck’s authority to suspend payments under the MDA

As set out in full context above, the parties’ MDA states that, “[i]f Wife fails to

produce her return, alimony payments shall be suspended until production.” We find nothing

in this record to indicate that the trial court ever specifically ruled that Mr. Beck could

suspend his alimony payments. In fact, as noted above, Mr. Beck is the one who informed

the court in his petition for contempt that he had unilaterally suspended the alimony

payments, presumably under some contractual authority arising from the MDA. But Mr.

Beck’s action begsthe question of whether he had authority to suspend alimony without prior

court approval. Although not specifically raised as an issue, we have determined that this

We note that the attorneys, who are representing these parties on appeal, did not represent them at 1

the trial level.

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question is paramount to proper disposition of this appeal. Therefore, pursuant to our

authority under Tennessee Rule of Appellate Procedure 13(b), we will address the question

sua sponte.

2

The parties’ MDA was incorporated and made part of the trial court’s final decree of

divorce. Although, for purposes of interpretation, MDAs are treated as contracts,see Barnes

v. Barnes, 193 S.W.3d 495, 498 (Tenn. 2006), the question here is whether the MDA lost its

contractual nature once it became the order of the trial court. This Court first addressed the

question of whether an MDA, which is incorporated into a court order, loses its contractual

nature in Osborne v. Osborne, 197 S.W.2d 234 (Tenn. Ct. App. 1946), stating:

A case is here presented where childless parties to a

marriage have entered into a valid agreement, after proper

representation by able counsel and without any element of fraud

or duress, which is incorporated into a decree awarding the

plaintiff an absolute divorce. Is such an agreement a binding

contract wherein the court in a divorce action is bound to adhere

to?

The general rule is that such agreements are merely

evidential in value and may be followed by the court in its award

of alimony—they should be given great consideration but are

subject to close scrutiny by the court. When such agreements or

their terms are adopted in the decree fixing alimony they are not

absolute and binding when the court retainsjurisdiction for their

modification or the statute law of the state provides that such

decrees remain open and subject to modification. 27 C.J.S.,

Divorce, § 234, p. 961. See notes in 58 A.L.R. 639, and 109

A.L.R. 1068, where numerous cases are collected. The author

 Tennessee Rule of Appellate Procedure 13(b) provides:

2

(b) Consideration ofIssues Not Presented for Review. Review generally

will extend only to those issues presented for review. The appellate court

shall also consider whether the trial and appellate court have jurisdiction

over the subject matter, whether or not presented for review, and may in its

discretion consider other issues in order, among other reasons: (1) to

prevent needless litigation, (2) to prevent injury to the interests of the

public, and (3) to prevent prejudice to the judicial process.

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states that the above rule is supported by the weight of authority.

‘Other contracts may be modified, restricted, or enlarged,

or entirely released upon the consent of the parties. Not so with

marriage. The relation once formed, the law steps in and holds

the parties to various obligations and liabilities. It is an

institution, in the maintenance of which in its purity the public

is deeply interested, for it is the foundation of the family and of

society, without which there would be neither civilization nor

progress.’ Maynard v. Hill, 125 U.S. 190, 8 S. Ct. 723, 729, 31

L. Ed. 654.

A divorce action is really a triangular proceeding where

in addition to the parties the State through the court is a quasi

party. It is for this basic reason that the courts afford the fullest

possible hearing in the matter and at all times must guard against

collusion, fraud and any unfair practice or undue advantage that

one party might take of the other. Adhering to these principles

the courts do not take the agreements of the parties as conclusive

but merely use them as a basis on which an alimony decree is

fixed. When the circumstances of the parties change the court's

decree may be changed. Code, section 8446, provides among

other things that, ‘the order or decree to remain in the court's

control; and, on application of either party, the court may decree

an increase or decrease of such allowance on cause being

shown.’ In Davenport v. Davenport, 178 Tenn. 517, 160 S.W.2d

406, the court held that the above Code section and section 8454

is incorporated in every divorce decree. The decree in the instant

case retains the matter on the docket and open for modification.

Id. at 236. Relying upon the Osborne holding, in Penland v. Penland, 521 S.W.2d 222

(Tenn. Ct. App. 1975), this Court explained:

[F]rom a careful reading of Osborne v. Osborne. . . it is clear

that the reason for stripping the agreement of the parties of its

contractual nature is the continuing statutory power of the Court

to modify its terms when changed circumstances justify. It

follows, and we so hold, that only that portion of a property

settlement agreement between husband and wife dealing with

the legal duty of child support, or alimony over which the court

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has continuing statutory power to modify, loses its contractual

nature when merged into a decree for divorce.

Id. at 224.

3

The merger of MDA provisions into court orders is succinctly addressed in Janet

Richards, Richards on Tennessee Family Law, § 13-9, wherein she explains:

A Court has the authority to modify its own orders

pertaining to custody and support, even if the provisions of the

court’s order were incorporated by reference from the parties’

MDA. The provisions of the marital agreement are merged into

the decree and lose their contractual nature to the extent that

they address matters over which the court has continuing

statutory power to modify.

On the other hand, those provisions that are not within

the power of the court to modify do not lose their contractual

nature upon incorporation into the decree. Additionally, the

court may not modify such provisions because to do so would

violate the constitutional prohibition against interference with

contracts.

To avoid confusion, we note that the foregoing analysis does not apply to awards of 3

alimony in solido, but only to awards (such as the one in the instant case) of alimony in futuro. As

explained by this Court in Dennis v. Dennis, No. CA-45, 1986 WL 7608 (Tenn. Ct. App. July 9,

1986), perm. app. denied (Tenn. Jan. 5, 1987):

[T]he alimony awarded respondent by the divorce decree. . .is clearly

alimony in solido. The Trial Judge, after the expiration of thirty days,

no longer had jurisdiction to make any modification in the award of

alimony in solido.

***

The cases relied upon by the Plaintiff are inapposite. The principal

one is Osborne v. Osborne, 29 Tenn. App. 463, 197 S.W.2d 234

(1946), but in that case it is apparent that the award was for periodic

alimony, not alimony in solido.

Id. at *2. 

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Id. (footnotes omitted).

Based upon the foregoing authority, the parties’ MDA, insofar as it addresses

alimony in futuro payments, lost its contractual nature when it became the trial court’s order.

Mr. Beck, therefore, had no contractual right to treat Ms. Beck’s alleged failure to provide

tax returns as a suspensory condition, i.e., a “condition[] precedent that suspend[s] the

operation of a contractual promise [in this case, Mr. Beck’s promise to pay alimony] until

those conditions are met.” Bryan A. Garner, A Dictionary of Modern Legal Usage 862 (2nd

ed. 1995). In short, the decision whether to suspend, modify, or terminate alimony in futuro

was not Mr. Beck’s to make; it was the trial court’s. The fact that the trial court somehow

overlooked its authority in this matter is not fatal to its conclusions. The trial court appears

to have incorrectly treated the MDA as a contract. Although its reasoning was incorrect, the

trial court ultimately reached the correct result—i.e., that Mr. Beck was never relieved of his

obligation to pay alimony and could, therefore, properly be charged with arrears. Shutt v.

Blount, 249 S.W.2d 904, 907 (Tenn. 1952) (“If the Trial Judge reached the right result for

the wrong reason, there is no reversible error.”). We reach the same conclusion regardless

of whether Ms. Beck complied with the tax return requirement. This is because neither Ms.

Beck, nor Mr. Beck could usurp the trial court’s authority by treating the MDA provisions

on alimony as a contract between them and not as a direct order of the court. In short, even

if Ms. Beck was in contempt, that fact does not function as a suspensory condition to stop

the alimony payments unless and until the trial court orders that it does. The trial court in this

case never ordered suspension of the alimony payments. Therefore, Mr. Beck was not

entitled to suspend Ms. Beck’s alimony. Accordingly, the trial court’s award of $34,997.25

to Ms. Beck was proper.

Rule 60.02 Motion

We next consider Mr. Beck’s argument that the trial court erred in granting Ms.

Beck’s Tennessee Rule of Civil Procedure 60.02 motion to set aside the June 3, 2010 order.

As noted above, when Ms. Beck failed to appear for the hearing on Mr. Beck’s motion to

clarify, the trial court entered judgment against her. Tennessee Rule of Civil Procedure 55.01

provides that, “[w]hen a party against whom a judgment for affirmative relief is sought has

failed to plead or otherwise defend as provided by these rules. . .default may be entered

[against that party].” However, Tennessee Rule of Civil Procedure 55.02 provides that,

“[f]or good cause shown[,] the court may set aside a judgment by default in accordance with

Rule 60.02.”

Rule of Civil Procedure 60.02 provides, in relevant part, that:

On motion and upon such terms as are just, the court may relieve

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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. . .(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. . . .

Tennessee law is clear that the disposition of motions under Rule 60.02 is best left to

the discretion of the trial judge. Underwood v. Zurich Ins. Co., 854 S.W.2d 94, 97 (Tenn.

1993); Banks v. Dement Constr. Co., 817 S.W.2d 16, 18 (Tenn. 1991); McCracken, 958

S.W.2d at 795. The standard of review on appeal is whether the trial court abused its

discretion in granting or denying relief. This deferential standard “reflects an awareness that

the decision being reviewed involved a choice among several acceptable alternatives,” and

thus “envisions a less rigorous review of the lower court's decision and a decreased

likelihood that the decision will be reversed on appeal.” Lee Medical, Inc. v. Beecher, 312

S.W.3d 515, 524 (Tenn. 2010). Here, the trial court set aside the June 3, 2010 order on the

ground that the motion for clarification, which gave rise to that order, was not properly

served on Ms. Beck, and that she did not otherwise receive notice of the hearing on that

motion. We agree.

It is undisputed that Mr. Beck did not attempt to issue a new summons to Ms. Beck

on the motion to clarify, nor did he send the copy of that motion by certified mail. Rather,

Mr. Beck simply used regular mail to send the motion to Ms. Beck’s last known address. In

Wilson v. Blount County,207 S.W.3d 741 (Tenn. 2006) the Tennessee Supreme Court

reiterated that service by mail requires that a copy of the summons and complaint be sent by

certified or registered mail, not merely by regular mail. That being said, failure to properly

issue new service of process is not fatal to Mr. Beck’s motion. Rather, as discussed in 1

Lawrence A. Pivnik, Tennessee Circuit Court Practice § 9:21 (2011):

By statute, a court that has granted a divorce decree, based on

personal jurisdiction and personal service or substitute service,

generally has continuing jurisdiction to entertain petitions to

modify or alter its orders regarding support and custody,

including visitation rights, regardless of one party's change of

residence to another state. When a petition to modify or alter is

filed, a new original summons is not required since the parties

are already before the court, but notice of the petition must be

given to the adverse party in a manner reasonably calculated to

actually inform him of the pendency of the modification

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petition.

Id. (Footnotes omitted). In Jarvis v. Jarvis, 664 S.W.2d 694 (Tenn. Ct. App. 1983), this

Court explained:

Since jurisdiction is continuing, notice requirements upon

commencement of an action to modify or enforce the decree are

not so stringent as those for a new action. Sowell v. Sowell, 493

S.W.2d 86 (Tenn. 1973); Burden v. Burden, 44 Tenn. App. 312,

313 S.W.2d 566 (1957); Darty v. Darty, 33 Tenn. App. 321, 232

S.W.2d 59 (1949). All that is required is that the adverse party

be given “reasonable notice,” Darty v. Darty, 33 Tenn. App.

321, 232 S.W.2d 59, 61; that is, “such as one desirous of

actually informing the absent party might reasonably adopt.”

Burden v. Burden, 44 Tenn. App. 312, 313 S.W.2d 566, 570

(citing Mullane v. Central Hanover Bank & Trust Co., 339

U.S. 306, 70 S. Ct. 652, 94 L.Ed. 865). The issue before us is

whether this “fairness” test, Sowell v. Sowell, supra, has been

met in this case.

Jarvis, 664 S.W.2d at 696; accord 19 W. Walton Garrett, Tennessee Practice: Divorce,

Alimony & Child Custody § 20:7 (2011–2012 ed.).

Ms. Beck argued thatshe received no notice of the hearing and that she, therefore, had

no opportunity to be heard on the question of whether redacted tax returns were sufficient.

We find nothing in the record to dispute her contention. The only “notice” was the attempted

service of the motion itself by regular mail. Ms. Beck contends that she never received this

piece of mail. In the absence of any return receipt or other documentation to show that Ms.

Beck was noticed on the motion or the hearing, we cannot conclude that the trial court erred

in setting aside the default judgment entered against her. Because she received no notice of

the May 28, 2010 hearing, Ms. Beck had no opportunity to inform the trial court of her

reason for redacting the tax returns (i.e., because she was allegedly abused, she wished to

keep her whereabouts from Mr. Beck) before default judgment, requiring her to submit

unredacted returns, was entered. As stated by our Supreme Court, in Henry v. Goins, 104

S.W.3d 475 (Tenn. 2003), default judgments are not favored in Tennessee:

[D]efault judgments are drastic sanctions. See United Coin

Meter Co. v. Seaboard Coastline R.R., 705 F.2d 839, 845 (6th

Cir. 1983); Barish v. Metro. Gov't of Nashville & Davidson

County, Tenn., 627 S.W.2d 953, 955 (Tenn. Ct. App. 1981).

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Neither dismissals nor default judgments are favored by the

courts. See Barbee, 689 S.W.2d at 866; Mfrs. Consolidation

Serv., Inc. v. Rodell, 42 S.W.3d 846, 864 (Tenn. Ct. App. 2000).

Dismissals based on procedural groundslike failure to prosecute

and default judgments run counter to the judicial system's

general objective of disposing of cases on the merits. See, e.g.,

Childress v. Bennett, 816 S.W.2d 314, 316 (Tenn. 1991)

(observing that “it is the general rule that courts are reluctant to

give effect to rules of procedure ... which prevent a litigant from

having a claim adjudicated upon its merits”); Barbee, 689

S.W.2d at 866 (stating that in the interests of justice, courts

express a clear preference for a trial on the merits).

Rule 55.02 of the Tennessee Rules of Civil Procedure

permits trial courts to set aside default judgments in accordance

with Rule 60.02. Courts construe requests for relief pursuant to

Rule 60.02 much more liberally in cases involving default

judgment than in cases following a trial on the merits. See

Barbee, 689 S.W.2d at 866; Nelson v. Simpson, 826 S.W.2d

483, 485 (Tenn. Ct. App. 1991). A request to vacate a default

judgment in accordance with Rule 60.02 should be granted if

there is reasonable doubt as to the justness of dismissing the

case before it can be heard on its merits. See Nelson, 826

S.W.2d at 486. A request to vacate an order of dismissal

pursuant to Rule 60.02 should be granted under the same

circumstances. Such liberality is especially warranted when an

order of dismissal is entered with prejudice and without such

procedural safeguards as notice, considering that Rule 55.01 of

the Tennessee Rules of Civil Procedure requires notice to be

given before a default judgment is granted.

Henry, 104 S.W.3d at 481.

These principles apply to the instant case. Because Ms. Beck received no notice of

the hearing, and because she did not have the opportunity to present her case, we conclude

that it would have been error for the trial court to deny her Rule 60 relief. The grant of Rule

60 relief allowed Ms. Beck the opportunity to present evidence so that the trial court could

decide the issue on the merits. We conclude that the trial court’s decision was in the best

interest of fair play and substantial justice and, therefore, we decline to hold that the grant

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of the Rule 60.02 motion was error. In addition, from the evidence presented, we conclude

that the trial court properly determined that Ms. Beck could provide redacted tax returns

going forward. We pretermit all remaining issues.

It is, therefore, ordered and adjudged by this Court that the judgment of the trial court

is affirmed. Costs on appeal are taxed to the Appellant, James Martin Beck, and his surety.

The case is remanded, pursuant to applicable law, for collection of costs for all of which

execution may issue, if necessary.

J. STEVEN STAFFORD, JUDGE

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