# FILED

October 9, 1998 Cecil W. Crowson Appellate Cou rt Clerk MATHIVATHANI MOHAN, ) ) Plaintiff/Appellee, ) Appeal No. ) 01-A-01-9708-CV-00415 v. ) ) Davidson Circuit RATHNASABAPATHY MOHAN, ) No. 96D-373 ) Defendant/Appe

llant. )

)

COURT OF APPEALS OF TENNESSEE

APPEAL FROM THE CIRCUIT COURT FOR DAVIDSON COUNTY

AT NASHVILLE, TENNESSEE

THE HONORABLE MARIETTA H. SHIPLEY, JUDGE

JERRY L. VANCE 6202 Charlotte Avenue Nashville, Tennessee 37209-3030 ATTORNEY FOR PLAINTIF F/APPELLEE

ANDREW M. CATE Waynick & Ca

te 211 Donelson Pike, Suite 2 P. O. Box 148058 Nashville, Tennessee 37214 ATTORNEY FOR DEFENDANT/APPELLANT

VACATED AND REMANDED

WALTER W. BUSSART, SPECIAL JUDGE-2- 

# OPINION

This is an a ppeal from the final divorce decree of Rathnasabapathy Mohan ("the Husband") an d Mathivathani Mohan ( "the Wife") w hic h was entered by

the lower court in

December of

1996. The contested divor ce action initiated by the Wif

e inv olved issues of custody, visitation, child support, alimony, classification and division of marit al property, a

nd apportionment of maritaldebt. This appeal by the Husband em

anates from th

e fact the Husband was not present when th e final hearing took place.

On December 12 , 1996, when the low er court heard this

matter, the Husband was in India. Two weeks before trial, he had moved for a continuance citing as his reaso n a family emergency

which required ove

rseas travel. T

he courtdenie d said mo tion stating that it was no t well taken, and w

hen the Husband renewed the continuance motion on the date of the final hearing, it was againdenied. In the stateme nt of evidence, the

court indicated that

said motion

w as denied because the H usband had been prese

nt at the pre-tria

l c onferenc e which took place on November 19, 1996 and because the Wife already possessed her air line ticket for

the Decembe

r 12 hearing. In additi

on, thecourt stated that there were no documents to v erify the illness of the Hu sband's mother.

Atthe trial, the onl y t estimony was from the Wif e. In the court's statement of e

vidence, the Wi

fe's testimony

was summa

rized as follows: [She] testified thatthe [H]usband w as living and

working in the United States at the time of t he separation of the

parties. She had to flee to Colora do to be with her relati ves, due to his physical and em

otional abuse and

hi s failure to help support them. She had lef t about Februa ry 28, 1996. She stated that there had been little contact with the minor c

hild. He had not come to C

olorado to v isit t hem pursuant to th e order of the court. She testi fied that the child wa s afraid of his father and did not

want to go to India, as he en joyed his friends in the United State s. She testified that his mother had chronic he a lth problems, i ncluding diabetes m

ellitus with ischemic heart disease, r

esulting in periodic

hospitalizations. She fu rther testified tha

t the [H]usband ha

d allowed the house to be foreclosed. They had much expensive furniture in the house, but

he had allowed all t

he furnishing

also to be lost. The [W]ife testified that the [H]usband had told her that-3- the parties' automobile had beentotally destroy ed in a wreck, so she was unsure whe

re the car was.She did not ha v e the car, nor the furnishings. She ha d si mply left i n Febru ary, 1996, when the abuse g ot so bad, without anything but her and the child's clothing.She testified fina lly tha t the [H]usba nd had p aid her no chil d supp ort or a limony. As to his income, t

he [W]ife testified that she could iden tify a 1994 joint incom e tax return showing

a tot a l inco me of $37,261 from

he r husban d's dental income. He was capable of

being a practicing

dentist and earning a

t least this much income. This return was the last and only tax return received from

[the Husband]. . . . [The Wife ] testified that she wa s just begin ning to get some in come , but that it was difficult to d o so in the area whe re her sister live

d. Obviou sly, she had some dif ficulty with

the language and the culture. She testified that she needed alim

ony and child support to survi ve. Fi nally [the Wife ] testified that she w ould all o w con tact with her son, so long as it c ould be supervised in Colorado. At this point, the court told [the H usb and's attorn ey] that [the Husband] would not be allowedto takethe childout of the

United States, un

til he had estab lish ed some trust relationship with the court such as following the court orders and visiting with the c hild in Colorado for a

period of time. Since [the Husban d] apparently

claimed tha

t he was not working as a dentist, this should have p resented no prob lem.
In addition, the statem

ent of th e evidence reveal s certain comm ents by the Husband's attorney who was present a t the hearing. He

saidthat he did not know exactly how serious the eme

rgency was w

ith the Husband's m

other but "that [the Husband] apparently did

not want to return to Tennes see for the court date." He also stated that he was not sure whether the Husband planned to stay in India or return to the United States. In the statement of e vidence, the court

stated that in rebuttal to the Wife's testimony regard ing the Husband's income, his attorney "presented earnings for the first four months of 199 6, but upon realizing that this would represent a higher income, he withdrew the materials."

Pursuant to the Final Divorce Decree, the Wife was awarded all marital proper ty, custody of the par ties' minor child, c

hild support in the

amount of $493 per month, rehabil

itative alimony

in the initial amount of $1007 per month and alimony in solido in the amount of $2000 as part of her attorne y fees. Costs of the cause were assessed against the Husband. Finally, the Husband was granted-4-

alimited visitati

on with the child -- o

n e week per y ear in Colorado or i n Nashville if the Husb and lives in Nashvi lle.

The Husband filed a pro se Motion for New Trial

in which he alleged that he left the

country because

his mother suff

ered an acute hea

rt attack and

was hospitalized in India. The cour t de n ied the Husband's r

equest. The Husba

nd then filed a Mot

ion to Supplement the Record which the c ourt granted. The record was supplemented with Husband's affidavit in which he stated that, at the time of divorce hearing, he was in In dia att ending to his seventy -one year old mother who was h ospitalized for a two-month period due to a serious heart

c ondition. In addition, the Husband supplemented the record with a hospital record which showed thata Mrs. Parvathi stayed at the Aysha Hospital in Madras from October 25, 1996 until November 2, 1996 fo r s ymptoms involving heart troubleand diabetes. Another supplemented hosp

ital record indica

ted a second hospital stay from

November 18,

1996 to December

24, 1996. In the Husband's supplementedaffidavit, he stated that he was prejudiced by not being prese

ntat the hearing as th

e court 's property division was inequitable and the court's scheduled visitation with the parties' child was inadequate.

On appeal, the Husband has raised one issue: whether the tri al court erred in denying his Motion for New Trial. We review the court's denial for an abuse of discretion. Esstman v. Boyd , 605 S.W.2d 237 , 240 (Tenn. Ct. A pp. 1979). The Husband argues fi rst that since the only te stimony at tr ial was the Wife's, the final decree should be treated as a default judgment. H

e thus asserts that according to Rule 55.02 of the Tennessee Rules of C ivil Procedure, for good cause shown, the court may set as

ide a judgment

by default in accordance with Rule 60.02 whi

ch provides in pertine

nt part as follows: On motion and upon such terms as are

just, the cour

t m ay relieve a party or the party's legal representative from a final judgment,order or proceedi ng for the followingreasons: (1) mistake, inadvertenc e, s urprise or excusabl e neglect; . . . or (5) any other reas on justifying re lief from the

operation of the judgment.
The Husband notes that the supreme court has cited with appr

oval the distinction made by the federal court

s in applying Rule

60 to default judgm

ents indicating-5-

that great liberali ty should be applie d in granting Rule 60 Mot ions in cases of default judgments since the interests of justice are best served by a trial on th e meritsonly after a careful study of al l relevant evidence. Tennessee Dep 't of Human Servs. v. Barbee , 689 S.W.2d 863, 866 (Tenn. 1985) ; see Nelson v. Simpson , 826 S.W.2d 483, 485 (Tenn. C t. App. 1991) (" The courts should constr ue T enn.R.Civ.P.60.02's requirem ents liberally w

hen a party is se

eking relief from a default judgment.")

Initia lly, we reject the Husband 's characteri zation of the decisio n below

as a default judgm

ent. Rul e 55 .01 of the Tennessee Rules of Civil Procedure provides that a default judgment may be entered "[w ]hen aparty against w

hom

ajudgment for affirmative relief is sought has failed to plead or otherwi se defend

as provided by these

rules and that fact

is made to appea

r by affidavit or otherwi se." The Husband did not fail to plead or defend in this case. Th e Husband, through his attorney , filed an answer and counter complaint to the Wife's complaint for divorce. He f iled other motions including a motio n to continueth e case in light of an alleged "family emergency ." The Husband's attorney was present at the trial. The state

ment of evidenc

e included in the record indicates that the Husband's attorney presented at least some e

vidence in rebuttal and argued before the court at the final hearing.

Thus, the real issue

here is whether the lower court erred in denyin

g the Husband a new trial in light

of the fact that he was not present at the final hearing for the reasons given. The

crux of the Husband's argument that the lower court erred in denying him

a new trial is that

the court sh ould have granted him the continuance that his attorney twice requested.

He contends that,

without his testimo ny, the court did not have a ll the relevant consi

derations before it at trial. Moreover, taking care of a sick par ent overseas constitutes a justifiable absence and warrants a continu ance.

From the statement of evidence, we can glean the court's rationale for denyingth e Motion for

Continuance. As st

ated, the court fi

rst noted that the motion had been denied because the Husban d had been present at the pre-trial conference and because

the Wife already had her

airline ticket for the December-6-

12 hearing. In additi

on, the court stated

that no documents

ve rified the Husband's mother's illness , tha t there was very little at issue, an

d that the Husband had not followed prior orders of visitation. Finally, the court stated that there was very littl

e property at is sue due to a foreclosure on the house and that the infor mation regar ding the Hu sban d's in come had been presented to the court at the pretrial confere nce where the Husband was present.

As does the grant of a ne w trial, "[t]he granting or denial of a motion for a continuance lies i

n the sound discretion of

the court." Blake v. Plus Mark, Inc. , 952 S.W.2d 413,

415 (Tenn. 1997) (citing Moorehead v. State , 409 S.W.2d 357, 358 (Tenn. 1966)).

On the record bef

ore us, we mu st conclude that the trial courtabus ed its discretio n in not gr anting th e Husband a continua nce. We cannot agree with the court's assessment that there was little at issue. In the final hearing, the court had to dete rmine the ground

s for divorce, the

proper parent to have custody of the m

inor child, the appr

opriate amount o

f child support and alimony, the classification and division of ma

rital property

and apportion

me nt of marital debt. The la w i s clear that "in ord er to show an abuse of

discretion, the plaintiff must show

some prejudice or surprise which arises from the trial court's failure to grant the continuance. " C ommissioner of Dept. of Transp. v. Hall , 635 S.W.2d 110, 111 (Tenn. 1982) (citing Br ady v. State , 584 S.W.2d 245 (Tenn. Crim. App. 1979)). The prej udice to the Husband i s obvi ous here. The Husband's own testimony is no doubt the best evidence he has in this case. Without benefit of this testi

mony, th e court made a decisio

n which greatly impacted the Husband's life. The Wife rec eived custody of t

he parties' child w

ith the Husband being

given extremely minim

al visitation. All marital property was awardedthe Wife. She

was awarded chi

ld su p port, a nd alimo ny and at torneys fees without considerati

on of any proof from

the Husband himself

regarding his ability to pay.
Lastly, we dismiss the court's concer n about the

Wife having alre

ady purchased airline tickets. As the Husband asse rts, plane tickets ar e generally

r efund able or transferable a nd if the Wife's

were not, the Cou

rt could have remedied any prejudice

to the Wife by

requiring the Husb and to purchase new-7-

tickets. While we can understand the court's initial problem with the Husband's failure to present proof of his mother's illness with his motions for continuance, the fact is that he did su

pple me nt the record with s uch proof for our re

view on appeal. These hospital records verifying his mother's hospital stays along with the Husband's affida

vit are sufficient

to convince us on

appeal of the veracity of the Husband's need t o be absent.

In light of

the sig nificance of this de cision to both parties a

nd of the p re judice suffered by the

Husband at the court

's decision not to gra

nt a continuance and to there by hol d the t rial w itho ut hi m, we conclude that the lower courtshould have granted the Husband a new trial . We t herefore vacate

the judgment of the trial court and re

mand this case f

or a re-trial on the m

erits. The lower court is directed to ma ke such orders so that the Wife is not fi

nancially prejudiced by the continuance. Costs of this appeal are taxed to the appellee.

________________________________ WALTER W. BUSSAR T, SPE CIAL JUDG E

CONCUR:

_________________________________ WILLIA M C. KOCH, JR., JUDGE

DISSENTING OPINI

ON BEN H. CANTRELL, JUDGE-8-