Issue: Whether Respondent was required under Tenn. R. Civ. P. 60.02 to file her petition to set aside within a reasonable time and, if not, whether exceptional circumstances exist in this case that require a different rule.
Facts: Father obtained a default judgment in 2001 to terminate Mother’s parental rights after she apparently moved with no forwarding address and was not served. In 2010, Mother filed a petition to set aside the default order, alleging that Father had the ability to get her new address from her family members but failed to do so. The trial court ruled that Father’s failure to comply with the statutory notice requirements rendered the termination judgment void.
Appellate Decision: The intermediate court affirmed, holding that the initial order was “void” rather than “voidable” such that Mother is not required to assert a meritorious defense in her motion to set aside the judgment within the time limits. The court also found that Father failed to take reasonable steps to locate Mother. Special Judge Summers concurred, urging the Supreme Court to take the case and establish the order was “voidable” because of various policy and practical concerns with allowing custody to be voided years after the fact.
Review Granted: November 20, 2014.
Prediction: Ben thinks the Supreme Court will adopt Judge Summers’s reasoning and hold the order voidable rather than void. Even if Father was partially to blame for the default judgment, Mother still had ample opportunity to challenge the custody order before the children had grown up with the Father’s new wife as their adopted mother.