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DEFAULT DIVORCE OVERTURNED DUE TO LACK OF NOTICE

In the matter of Farley v. Farley, (No. M2014-00814-COA-R3-CV- February 2, 2015), Husband appeals the court's judgment granting Wife a divorce while Husband was incarcerated on the grounds that he was not given fair opportunity to participate in the hearing or process.

Facts

Wife filed a petition for divorce in April of 2013, citing irreconcilable differences and incarceration as grounds for divorce. Husband responded with a request for an extension of time to respond. He also denied irreconcilable differences. Husband asserts that his diagnosis with Lou Gehrig's disease had limited his ability to respond. He requested that he participate in any future hearings via telecommunication. Husband also claims that Wife's attorney had previously worked for Husband and was using his confidential personal information to aid Wife in her efforts. Husband moved for dismissal. In January, Husband filed a "Petition for Dissolution of Marriage, Notice of Settlement Agreement and Mutual Release," where he requested an equal division of all assets and debts. In a final order from March of 2014, the trial court granted Wife a divorce and ordered the sale of all real property. Wife was granted alimony, the automobile, and all of the household possessions. Husband quickly appealed.

Review

Husband's reason for appeal is that he was not provided with the opportunity to participate in the divorce hearing. The court of appeals first notes that the March 2014 order did not include the signature of Husband or of any counsel on his behalf. On further review of the record, the court of appeals found that Husband had received no notification of the final hearing. There is no indication that Husband's motion to conduct the hearing by telecommunication from the prison was granted or denied. Husband's complaint of misconduct by Wife's counsel was never addressed or resolved. Additionally, the court showed no findings or support of its division of property and debt or award for alimony to Wife. Under Tenn. R. Civ. P. Rule 5.01, Wife was required to send a notice of hearing to Husband. Due to Wife's failure to provide Husband notice, along with the previously mentioned issues cited by the court of appeals, the trial court's judgment is vacated and the case remanded for further proceedings.

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