IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE

CHERYL A. WEST, ) ) Plaintiff/Appellee, ) Appeal No. ) M1998-00725-COA-R3-CV v. ) ) Warren County Circuit DANNY LAMAR WEST, ) No. 9307 ) Defendant/Appel

lant. )

) APPEAL FROM THE CIRCUI T COURT FOR WARREN COUNTY AT MCMINNVILLE, TENNESSEE THE HONORABLE CHARLES D. HASTON, PRESIDING

BERNARD K. SMITH P.O. BOX 490 MCMINNVILL

E, TENNES SEE 37111 THOMAS F. BLOOM 500 CHURCH STREET, 5 TH FLOOR NASHVILL

E, TENNES SEE 37219 ATTORNEYS FOR PLAINTIFF/APPELLEE

ROBERT W. NEWMAN GALLIGAN & NEWMAN 309 WEST MAIN STREET MCMINNVILL

E, TENNES SEE 37110 ATTORNEY FOR DEFENDANT/APPELLANT

VACATED AND REMAND ED PATRICIA J. COTTRELL, JUDGE CONCUR: CANTRELL , P. J. KOCH, J.



# OPINION

In this divorce case , Danny Lam ar West (“

Husband”) appeals t

he trial c ourt’s d ecisio n to awar d post -divor ce alimon y to his f ormer wif e, Cheryl Ann McPeak West (“Wife”). For the following reasons, we vacate the award



# FILED

January 27, 2000 Cecil Crowson, Jr. Appellate Cou rt Clerk1 This appeal is before the court on the technical record a

nd Husband’s statement of the evidence. Tenn. R. App. P. 24(c). -2- of alimony a

nd remand. 1 The parties wer

e married in N

ovember 1993. I

t was the second marriage for

both and no children w

ere born of the union.

Husband had a minor child from his previou s marriage. In May 1997, the parties separated. Wife filed the underlying co mplaint for divorce in Aug ust 1997. The stated grounds f

or the divorce wer

e inappropriate m

arital conduct and irreconcilable dif

ferences. As r

elief, the com

plaint prayed f

or an equitable division of property

and attorney fe

es. It also sought supp

ort pendente lite , or alternatively , that Husband pay the parties’ deb

ts pending a final hea

ring. On August 15, 1997, a

fter a hearing in w

hich Husband appear

ed pro

se , the trial court e

ntered an order fo

r support pendente lite which required Husband to pay Wife $100 pe r week pending the fin al hearing in the case

. The court also orde

red Husband to apply

the parties’ inc

ome tax refund to their joint indebte

dness of over $40,000.

This order was si

gned by both parties and Wife’s counsel

. After Husband failed to answer the complaint, Wife m oved for a default judgment. On November 14, 1997, the trial court entered an order granting Wife judgment by default. The order stated that Husband had personally appeared at the August 15 hearing and had entered into an agreed order for tem

porary support but

that Husband had fai

led to answer the complaint or otherwise d efend as provided b y law. After a Decem

ber 16, 1997 hearing w

hich Husband likewise did not attend, the trial court entered a final decree on January 2, 1998. The court awarded Wife

an absolute divorce,

the parties’ hom

e, all personal pr

operty in her possession, a 1995

Astro Van, a 1983 Chevy S10 pick-u p, and a 1988 Chris Craft boat.Wife was orde red to assume a

nd continue to pay t

he approximately $43,000 in debts which arose during the marriage. The parties had incurred the deb ts to purchase the v an, the S10, the boat an d their home.-3-

The trial court or

dered Husband to pay

$2,000 on the debt as a

n element of alimony. I

n addition, it ordere

d Husband to pay $40 ,000 in alimony at the rate of $150 per we

ek and obtain and m

aintain life insura

nce on himself a

t the face value of $40, 000 with Wife as s ole beneficiary to insure paym

ent. It also ordered him to pa

y Wife $750 in a

ttorney fees.The court perm anently enjoined Husband f

rom calling, c

ontacting, com

ing around, harassin

g or threat ening Wi fe. In ad ditio n, it fo und Hus band in contemp t for fai lure to pay the previously ad

judicated pendente lite spousal support which a mounted to $1400. The court ordered that an attachment for contempt be issued and then set a hearing on the matter. After a hearing o

n January 9, 1998,

the trial court foun

d Husband in contempt for f

ailure to abide by

the agreed order f

or support pendente lite , again finding an arrearage in the amount of $1,400, which represented amounts in arre

arage from t

he August 15 order thr

ough December

16. The court gave Husband a

month to purge him

self of the contem

pt by making t

he payment

. After a hearing on February 20, the trial court issued another order on February 27,

finding Husband in cont empt for fail

ure to pay $2,300

in support accrued from August 15 to February 20. The court sentenced Husband to incarcerat ion until he purg ed himself by payment of that amount. Husband ultimat

ely paid that am

ount and was released. Wife filed a petition for contempt on April 30, asserting that Husband had not fully complied with any of the court’s support orders. Wife maintained, inter alia, that Husband had paid only $468 in alim ony paym ents since February

of 1998. On May 21, 1998,

Husband’s newly

retained counsel fi

led a motion to set aside the final decree or, alternatively, to terminate his spousal support obligation. Husband argued that he could not afford the alimony awarded because his annual inc

ome was only

$26,000 and he owed w

eekly child2 Husband’s stateme nt of the evidence

sta tes that his we ekly child support obligation was $93. -4- support of $ 90. 2 He also asserted that Wife had only requested alim

ony until the final hearing on t

he divorce, not the p

ost-divorce support a

warded by the

court. On June 10, 1988, after hearings on both filings, the trial court dismissed Husba

nd’s motion to se

t aside and again foun

d him in contem

pt for failure to mak

e his weekly al

imony pay

ments. It als o found him in conte mpt for failure to obey

the court’s Janua

ry 2 order requ

iring him to pay

$2,000 to a specified lender.Husband was given th irty (30) day s to purge himself of the contempt by making paym ents on the note or refinancing. The court determined tha

t Husband’s arre

arage totaled $1,1 00 and permitted him to purge the contem

pt by paying $1, 155 by June 26, 1998. While the court found that Husband had complied with its order to obtain life insurance naming Wife

as beneficiary , it held him in c ontempt for fa

ilure to pay the previously awa

rded $750 in attorney

fees. Husband app

ealed. I. Husband argues on appeal that the trial court erred in awarding Wife the $40,000 in lump

sum alimony

when she sought only

support pendente lite

. He maintains that the sua sponte award, arising i n the context of a def

ault judgment, viol

ated Tenn. R. C

iv. P. 54.03, w

hich limits the r

elief available in default judgm

ents to that sought in the

complaint, an

d was fundamen

tally unfair. Tenn. R. Civ. P . 54.03 states: A judgment by

default shall not be di

fferent in kind fro

m or exceed in am

ount that prayed f

or in the demand for judgment. E

xcept as to a party

against whom a

judgment is entered by de

fault, every

final judgmen

t shall grant the relief to which the

party in whose f

avor it is rendered

is entitled, even if t

he party has not de

manded such rel

ief in his pleadings; but the c

ourt shall not give the s

uccessful party relief

, though he may

be entitled to it, w

here the propriety of suc

h relief was not li

tigated and the opposing party had no opportun ity to assert defenses to such relief.-5-

“The purpose of

the Rule 54.03 requi

rement is to insu

re that defendants receive adequate notice of the claim against them.” Rosche v. Von H olton , 01A01-9012-CH-0046,

1991 WL 74263 at * 3 (

Tenn. Ct. App.May 10, 1991) (No Tenn. R. App. P. 11 application filed). Our Supreme Court has enlarged upon this stateme

nt, citing a treati se discussing the Rule’ s federal counter part: The first sentenc

e of Rule 54(c) sta

tes that a judgm

ent by default is limited to th e relief demanded in the complai nt. The theory of t

his provision is that once the defending party receives the original pleadin g he should be able to decide on the basis of

the relief reques

ted whether he wants to expend the ti

me, effort , and money

necessary to defend the action. It would be fundam entally unfair

to have th e complai nt lead defend ant to b elieve that on ly a certain type a

nd dimension of re

lief was being sought

and then, should he attem

pt to limit the sc

ope and size of the potential judgm

ent against him by

not appearing or otherwise default

ing, allow the cour

t to give a differe

nt type of relief

or a larger dam

age award. In a

similar vein, unless all the partie s in interest have ap peared and voluntarily litiga

ted an issue not within

the pleadings, the court should consider o

nly those issues pr

esented in the pleadings. In sum

, then, a default

judgment m

ay not extend to matte

rs outside the issues r

aised by the plea

dings or beyond the scope

of the relief dem

anded. Qualls v. Qualls , 589 S.W.2d 906 , 909-10 (Tenn.197 9) (quoting Wright and Miller, Federal Practice

and Procedure , § 2663 at 99-100 (1973) ); accord Holder v. Drake 908 S.W.2d 393, 394-95 ( Tenn. 1995). “It is a fundam

ental rule of law that in order to rec eive relief, a party must plead it, r

equest it, and prove

it in court with the op

posing party having the opportunity to offer proof opposing the items requested.” Lewis v. Lewis , No. 89-287-II,

1990 WL 14022 at *3 (

Tenn. Ct. App.Feb. 16, 1990) (no Tenn. R. App. P. 11 appli cation filed). To that en d, Tenn. Code Ann. § 36-4-106(a) (Supp. 1999) requires divorce complaints to specify “such other and further relie

f to which the com

plainant may

think to be entitled” be

yond the divorce itself. Wife’s com

plaint described the

relief she sought. The prayers for relief included: (C) That the Cour

t make an equita

ble division of the parties’ proper

ty if the parties are unable to agre e on said division prior to a fina

l hearing in this cause

of action;-6- (D) That the cour

t make an equita

ble division of the parties’ debts an

d obligations if the par

ties are unable to agree on said division prior to a final hea ring in this cause of action; (E) That a [sic] the Court requir ed [sic] to Def

endant to pay support pendente lite to the Plaintiff,

or in the alternative, tha

t the Defendant be required to pay any and all of the parties’ debts and obligations pending a final hearing in this cause

of action, and that

a hearing be held on the 15 th day of August 1997 , at 10:00 o’clock A.M., for the purpose of determining the amount of temporary suppo rt the De fendan t will b e requi red to p ay. The only other m

ention of support in the complaint was the following: Plaintiff avers t

hat she is in need of su

pport pendente lite and would hereinafter pray that the Defendant be required to pay her tem

porary alim

ony, or in the al

ternative, that th

e Defendant be requ

ired to pay the pa

rties’ debts and obligations pen ding a final hearing in this cause of acti on. Further, Plainti

ff prays that a

hearing be held on the

15 th day of August 1997,

at 10:00 A.M., f

or the purpose of determining the

amount of support pendente lite that the defend ant wil l be req uired t o pay. It is undisputed that H

usband attended a hea

ring on August 15 in which he agreed to pay support “ pending the final hea

ring of this cause” i

n the weekly amou nt of $100 . Husband d id not att end the hea ring on Wife ’s motion for defa

ult judgment. Nor did he attend the subsequent hearing in which the court re

ached the mer

its of the compla

int, awarded W

ife the bulk of the marit al prop erty and ordered Husban d to pay $ 40,000 in alimo ny. Nothing in the record shows that Husband received notice that Wife sought post-di vorce alimony. Compare Jones v. Jones , No. 01A01-9806-CV00298, 1999 WL 248735 at * 2 (Tenn. Ct. App. Apr. 29, 1999)(no Tenn. R. App. P. 11 application filed). Nowhere in the complaint was this monetary relief sought. Nothing in the language framed in Wife’s pleadings provided Husband with notice that she desired suppor t beyond the final

hearing in the

case. Compare Moore v. Moore, No. 87-92-II, 1 988 WL 63498 at * 2 (T enn. Ct. App. June 24, 1988) (no Tenn. R. App. P. 11 application filed). In Qualls v. Qualls , 589 S.W.2d at 909, our Supreme Court affirm ed the reversal of an

award of alim

ony that was “

both different in kind

from and exceeded in amount the relief prayed for in the original complaint” as3 Rule 60.02 provide s: On motion and upon such terms as are just, the court may relieve a par ty or the party's legal representative from a final judgment, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusabl e neglect; (2) fraud (whether

heretofore den

omi nate d intrinsic or extrinsic), misrepresentation, or other misco nduct of an adverse party; (3) the judgment is void; (4) the judgment has been satisfied, released or discharged, or a prior judgment upon which it is based has been reve rsed or otherwise vacated, or it is no longer equitable that a judgment should have prospective application; or (5) any other reason justifying relief from the operation of thejudgment. 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. A motion under this Rule 60.02 does not affect the finality of a judgment or suspend its op eration, but the court may enter an order suspending the oper ation of the judgment upon such terms as to bondand notice as to it shall seem proper pending the hearing of such motion. This rule

does not limit the power of a court to entertain an independent action to relieve a party from a judgment, or der or proce eding, or to set aside a judgment for fraud upon the court. . . .

-7- violative of Tenn. R. Civ. P. 54.03. The Court expla ined that: In this State a d ivorce may be gran ted wit hout al imony, and alimony may be granted without decreeing a divorce, there being no necessary or absolute connection between divorce and alimony under t he statute, Tenn. Code Ann . § 36-820. Williams v. W

illiams, 146 Tenn. 38, 236 S.W. 938 (1921); McBee v. McBee, 48 Tenn. 558 (1870). Therefore, a prayer for general relief is not sufficient to support an award of alimony in a case in which the judgment is taken upon default of the de

fendant. Qualls v. Qualls , 589 S.W.2d a t 909. Wife’s reli

ance on both Moore v. Moore , 1988 WL 63498 at * 2 and Bulla v. Bulla , No. 01A0109004-C V-00133, 1990 WL

160291 at * 3 (Tenn. Ct. App . Oct. 24, 1990) (Tenn. R. no Ap p. P. 11 applicati

on filed), is misplaced. Neither of those cases involve default judgments; rather they involve the ques tion of whether an iss ue was tried by consent of b oth parties. Moreover, in Moore , the wife was s ufficiently de

bilitated from

schizophrenia durin g the d urati on of t he par ties’ marria ge to b e unab le to h old a f ull t ime job. Her com

plaint sought support “

until she is able to get

straightened out mentally and secure employm ent.” Mrs. Moore had also prayed for pendente lite support and for general relief. Thus, the court found that the record supported the conclusi

on that Mr. Moore ha

d notice that his wif

e was seeking maintenance and suppo rt. See Moore , 1988 WL 63498 at * 2. In contrast, Wife’s co mplaint provid es no hi nt of a r equest for pos t-divo rce alimo ny. In Qualls , the Court grante d relief from

the judgment pu

rsuant to Tenn. R. Civ. P . 60.02. 3 We believe such r elief is appropria

te here. As in-8-

Qualls , we believe it “

only just and re

asonable that as a c

ondition to awarding relief . . .under Rule 60.02 the issue of alimony should be reopened in the trial court” and this actio

n should be reman

ded to permit W

ife to make app

ropriate amendments to her complaint praying for alim ony, for Husband to file an answer thereto and for a h earing on the merits of th e alimony claim. See Qualls , 589 S.W.2d a

t 910-11; Tenn. Code

Ann. § 36-5-101(d) (enumerating the appropriate factors to consider in setting alimony). II. Accordingly, we hold that the default judgment entered by the trial court was errone

ous insofar as it awarded post-divorce periodic paym ents of alimony in th

e absence of a req

uest for such in the c

omplaint. Tha

t award is vacated and this case is remanded f or proceedings consis

tent with this opinion. Costs of this appeal are to be taxed to Wife for which execution may issue i f necess ary.

________________________________ PATRICIA J. COTTRELL, JUDGE CONCUR:

_______________________________ BEN H. CANTRELL, PRESIDING JUDGE, (M. S.)

_______________________________ WILLIAM C. KOCH, JR., JUDGE