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Orten v. Orten8/26/2005
such orders as provided for in Tenn. R. Civ. P. 37.02. Wife's attorney made such a motion, which the Trial Court granted by entering a default judgment against Husband. After granting the default against Husband, the Trial Court stated that Wife would be allowed to testify regarding distribution of the marital property and her request for alimony, etc., and Husband would be allowed only to cross-examine Wife and could not put on any direct proof on these issues. After the Trial Court explained how the case would proceed, Wilkinson orally moved to withdraw from representing Husband. The Trial Court granted the motion stating:
Mr. Wilkinson prays for withdrawal and the same is allowed. That would then mean, Mr. Wilkinson, from this point forward there will be no cross- examination and [Wife's attorney] will prepare the decree.... There being no cross-examination, then, we can take the wife's proof ....
Husband's attorney presumably left the courtroom and then Wife was called to testify. Following the hearing, the Trial Court entered a Final Judgment of Divorce . In summary, the Final Judgment stated that Husband had sufficient notice of the second Trial Management Conference and was not present, that Husband had stated he would not comply with written discovery requests seeking documentation of financial accounts, including credit card accounts, and that a judgment by default was being entered against Husband. Accordingly, the Trial Court granted Wife a divorce based on her unrefuted testimony as to her grounds for divorce. The Trial Court found Wife could not be rehabilitated and established Husband's alimony payment at $25 per month while he was paying child support for both minor children, $325 per month when the next oldest minor child became emancipated, and $1,000 per month when Husband's child support obligation ceased altogether. The Trial Court awarded Wife 60% of the equity in the marital residence, which equaled $30,000. Husband was awarded the remaining 40%. The Trial Court equally divided Husband's retirement account. Wife was awarded a 2000 GMC Safari Van and Husband was awarded a 2004 Volkswagen. Each party was awarded the personal property in their possession.
With regard to the marital debts, Husband was required to pay all of the following: (1) $1,700 on the Bank of America Visa, (2) $5,000 on the Chase Visa, (3) $6,000 on the Discover Card; and (4) the $6,000 in remaining debt on a piano purchased by the parties. The Trial Court ordered Husband to pay approximately $10,000 of Wife's credit card debt as attorney fees awarded to Wife. Wife was ordered to pay a total of $1,106.64 in credit card debt.
Husband immediately obtained new counsel and filed a motion to alter or amend or, in the alternative, motion for new trial. In this motion, Husband claimed he simply forgot about the Trial Management Conference scheduled on June 28, 2004, although he admitted receiving the order setting the second conference for that date. Husband claimed that had his attorney, Wilkinson, simply reminded him of the conference or called him that morning, he would have been present. A hearing was held on Husband's motion and Husband testified at the hearing. In summary, Husband testified consistent with the points raised in the motion for new trial and further pointed out that he was present for all other necessary events during the course of the proceedings. Since Husband tried to cast partial blame on Wilkinson for his alleged failure to keep Husband properly apprised, the Trial Court reserved ruling on Husband's motion until Wilkinson's testimony could be obtained. Wilkinson's deposition was taken and he testified, among other things, that he discussed the scheduled second Tria
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