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Orten v. Orten8/26/2005
Background
On October 30, 2003, Wife filed a complaint for divorce seeking dissolution of her twenty-three year marriage to Husband. As grounds for divorce, Wife alleged Husband was guilty of inappropriate marital conduct and/or cruel and inhuman treatment. In the alternative, Wife claimed that irreconcilable differences had arisen between the parties. The parties have four children, two of whom are minors.
Husband's attorney, Robert Wilkinson ("Wilkinson") entered an appearance on December 31, 2003, and Husband formally answered the complaint on March 18, 2004. In Husband's answer, he denied engaging in inappropriate marital conduct or that grounds for divorce otherwise existed.
In April of 2004, Wife filed a motion to compel claiming Husband's responses to Interrogatories and Requests for Production of Documents were past due as they were two days late. A couple of weeks after the motion to compel was filed, the Trial Court entered a Trial Management Order. As pertinent to this appeal, the Trial Management Order provided as follows, with all emphasis being in the original:
This is set for contested trial July 21, 2004. A trial management/settlement conference will be held on April 19, 2004, at 9:00 a.m. Both counsel and both parties must be present in open court for the trial management/settlement conference. There is no exception to this mandatory appearance by all four persons, other than full resolution of all issues, already reduced to a final order taxing costs, approved by all counsel, and presented by one attorney with his/her client on or before the day and time scheduled for the trial management.
Pursuant to Rule 55 TRCP, notice is herewith given that a default judgment may be pronounced against a party failing to comply with a trial management order. See TRCP Rules 16.06 and 37.02 for other consequences.
The Trial Management Order then detailed the matters that would be addressed at the management/settlement conference and what the parties and their attorneys were expected to accomplish before the conference.
On April 16, 2004, the Trial Court entered an Interim Order agreed to by the parties. The Interim Order required Husband to vacate the marital residence within thirty days. This order also set forth which of the marital bills each party would be responsible for paying until the trial took place. Husband's child support payment were set at $813 per month and his co-parenting time with the children also was established.
The first Trial Management Conference took place as scheduled on April 19, 2004, with both parties and their attorneys in attendance. Following the Trial Management Conference, the Trial Court entered an order requiring Husband to respond to Wife's discovery requests by April 30, 2004. Any further discovery requests had to be submitted no later than May 15, 2004, and discovery depositions had to be completed by June 30, 2004. The Trial Court previously had entered an order requiring the parties to submit their dispute to mediation, and the order entered following the Trial Management Conference stated that the parties had selected a mediator. Finally, a second Trial Management Conference was scheduled for June 28, 2004. The July 21, 2004 trial date remained unchanged.
Husband failed to appear at the second Trial Management Conference on June 28. Wilkinson was present but was unable to offer the Trial Court any explanation for his client's unexplained absence. The Trial Court noted that pursuant to Tenn. R. Civ. P. 16.06, if a party fails to obey a scheduling or pre-trial order, then the Trial Court, upon motion or the Trial Court's own initiative, can make
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