Cecilia Gonzalez v. Mauricio Gonzalez

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs July 26, 2013

CECILIA GONZALEZ v. MAURICIO GONZALEZ

Direct Appeal from the Chancery Court for Shelby County
No. CH-10-0635-2 Arnold B. Goldin, Chancellor

No. W2012-02564-COA-R3-CV - Filed September 5, 2013

This case involves the propriety of the trial court’s dismissal of a Rule 60.02 Motion
to Set Aside a Final Judgment. The trial court previously dismissed Mother’s Petition for
Divorce, after finding that the marriage was void due to Mother’s preexisting marriage in
Chile. Mother subsequently filed a Rule 60.02 Motion, with supporting documentation
purporting to show that she was never legally married in Chile. The trial court refused to set
a hearing and dismissed the Rule 60.02 Motion. We conclude that the trial court erred in
dismissing Mother’s Rule 60.02 Motion. Reversed and remanded.

Tenn. R. App. P. 3. Appeal as of Right; Judgment of the Chancery Court Reversed
and Remanded

J. S TEVEN S TAFFORD, J., delivered the opinion of the Court, in which A LAN E. H IGHERS,
P.J.,W.S., and D AVID R. F ARMER, J., joined.

Matthew R. Macaw, Memphis, Tennessee, for the appellant, Cecilia Gonzalez.

Jeff Mueller, Jackson, Tennessee, for the appellee, Mauricio Gonzalez.

OPINION

I. Background

On April 5, 2010, Plaintiff/Appellant Cecilia Gonzalez (“Mother”) filed a complaint
for divorce from Defendant/Appellee Mauricio Gonzalez (“Father”), alleging that the parties
were married on April 16, 2001. The parties have one child, born in 2002. Father retained an
attorney, who filed a notice of appearance on May 7, 2010. However, Father did not file an
Answer to the complaint and on June 10, 2010, Mother filed a Motion for Default Judgment.
Father subsequently filed an Answer and Petition to Set a Parenting Schedule for the minor
child on June 15, 2010 and June 18, 2010, respectively. Father’s Answer alleged that the
parties were not legally married because at the time of the parties’ marriage ceremony in
2001, Mother was still married to her first husband. On June 30, 2010, Mother filed a Petition
for an Order of Protection against Father, alleging that Father was abusive and requesting
that an order be entered preventing Father from having contact with the child. On July 2,
2010, Father filed a response to the petition, denying the material allegations contained
therein. On the same day, Father also filed an Amended Proposed Permanent Parenting Plan,
in which Father requested parenting time pending a final resolution in the case.

On July 26, 2010, Mother’s attorney filed a Motion to Withdraw from representation.
On August 13, 2010, Father filed a motion, captioned Motion to Dismiss Mother’s Complaint
for Divorce and to Set Aside the Marriage Contract or in the Alternative Father’s Motion for
Summary Judgment for Lack of Subject Matter Jurisdiction. In the motion, Father argued that
the parties’ marriage was void because Mother was married to another man at the time of the
marriage ceremony. Father attached to the motion documents from Mother’s home country
of Chile, which note that Mother married another man in 1991 and that the previous marriage
was “declared null” on April 11, 2005.1 Mother’s new counsel was substituted for Mother’s
prior counsel by consent order entered on August 25, 2010. Mother, by and through her new
counsel, filed her own Proposed Permanent Parenting Plan on September 3, 2010.

On September 22, 2010, the trial court entered an order on Mother’s Petition for a
Protective Order and Father’s request for parenting time. Specifically, the trial court
appointed a psychologist to interview the child and make recommendations to the court
regarding parenting time. Father was not granted any visitation with the child pending the
report of the psychologist. However, on November 18, 2010, Father filed a Motion to
Compel Mother to comply with the trial court’s order regarding the psychologist, alleging
that Mother refused to schedule an appointment with the psychologist due to the scheduling
conflicts of Mother’s chosen interpreter.2

On March 4, 2011, Father’s initial counsel was allowed to withdraw from the case.
On June 21, 2011, Mother’s Petition for an Order of Protection, Father’s Petition to Set a
Parenting Schedule, Father’s Motion to Compel Mother to comply with the trial court’s order
regarding the psychologist, and Father’s Motion to Dismiss the complaint for divorce were
all dismissed by the trial court for lack of prosecution. On July 27, 2011, the trial court
granted Mother’s request to waive mediation in the divorce. Father’s initial attorneys began

1
Although the Chilean marriage documents are in Spanish, Father attached an official translation
of the documents into English. There is no dispute that the English translation of the documents is accurate.
2
Mother asserted in the trial court that she spoke only limited English.

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to represent him again on August 17, 2011.

On August 17, 2011, Father refiled his Motion to Dismiss Mother’s complaint for
divorce, raising the same argument as in his previous motion. On October 26, 2011, the trial
court granted Father’s Motion to Dismiss. The trial court ruled that because Mother was
married to another man at the time of the parties’ marriage, her marriage to Father was void.
Accordingly, the trial court dismissed the divorce complaint for lack of subject matter
jurisdiction. The order also allowed Mother’s attorney to withdraw.

On April 4, 2012, Father filed a Petition in the trial court to annul his purported
marriage to Mother. Father amended his Petition for Annulment on April 20, 2012, which
Amended Petition alleged that Mother’s present whereabouts were unknown despite diligent
inquiry. The petition was thus served on Mother by publication. On June 18, 2012, Father
filed a Motion for Default Judgment on his Annulment Petition. Father later filed a Notice
of Final Hearing on the Default, which hearing was to be held on August 13, 2012.

Prior to any order being entered granting a default judgment to Father, however,
Mother filed an Answer to Father’s Petition on August 21, 2012, denying the material
allegations contained therein and asserting a counter-claim for divorce.3 Although the record
does not contain an order granting a default judgment to Father, on August 22, 2012, Mother
filed a Motion to Set Aside the Default Judgment. A notice of hearing on this Motion was
filed, setting a hearing date of September 28, 2012.

On September 18, 2012, Mother filed her Motion to Set Aside the Order on Father’s
Motion to Dismiss Mother’s complaint for divorce (“Mother’s Motion” or “Rule 60.02
Motion”), which motion is at issue in this case. In the Rule 60.02 Motion, Mother argued that
she was, in fact, not legally married at the time of her marriage to Father. Mother asserted
that new evidence showed that she was entitled to relief pursuant to Rule 60.02 of the Rules
of Civil Procedure, under the following provisions: “(4) the judgment has been satisfied,
released or discharged, or a prior judgment upon which it is based has been reversed 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 the judgment.”
Mother supported her argument with documents from Chile that showed that because the
marriage in Chile did not conform to the law regarding who may perform the marriage
ceremony, the marriage was, under Chilean law, rendered “null and void.” In addition,
Mother included a document from a Chilean attorney, which document stated that the effect
of the nullification of the marriage was that “their situation is restored back to their status
before the celebration of the void act, thus they retake their civil status as single.” The

3
Mother had retained new counsel at this time.

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attorney further stated:

Further, it is worth noting that by decreeing the
nullification of a legal act, it is regarded that it never lawfully
came to life; i.e., it never existed. This means that the marriage
between [Mother and her first husband] rendered null and void
by court judgment never existed in legal terms and, therefore,
the parties are reputed as if always having single status,
notwithstanding the date of declaration of such nullification. ]

Thus, Mother argued that because she was never legally married prior to her marriage to
Father, her marriage to Father was valid.

The trial court entered an order denying Mother’s Motion to Set Aside and Dismissing
Father’s Petition for Annulment on October 3, 2012. Specifically, the trial court stated that
after a conference requested by the trial court on September 19, 2012, the trial court ruled
that:

As the Court has found the marriage between [the
parties], is and was null and void, parties are declared to be of
unmarried status.
As the Court has found the marriage between [the
parties], is null and void, all custody and child support issues
pertaining to the minor child of the parties . . . should be decided
by the Juvenile Court.
As the Court has found the marriage between [the
parties] is null and void, [Mother’s] Motion to Set Aside Default
Judgment shall not be set for hearing, [] and the same is her[e]by
dismissed.
As the Court has found the marriage between [the
parties] is null and void, [Mother’s] Motion to Set Aside [the
Order on Father’s Motion to Dismiss Mother’s Complaint for
Divorce and to Set Aside] the Marriage Contract Pursuant to
[Rule] 60.02(4) and (5) [of the Tennessee Rules of Civil
Procedure] shall not be set for hearing by the Court.
IT IS THEREFORE ORDERED, ADJUDGED and
DECREED that the marriage between [the parties] is and was
null and void and an annulment hearing is unnecessary as the
marriage is void and was never legally effective.
IT IS ALSO ORDERED, ADJUDGED and DECREED

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 As the Court has found the marriage between [the parties] is and
was null and void, parties are declared to be of unmarried status.
IT IS ALSO ORDERED, ADJUDGED and DECREED
all custody and child support issues pertaining to the minor child
of the parties . . . should be decided by the Juvenile Court as [the
parties] are unmarried persons.
IT IS ALSO ORDERED, ADJUDGED and DECREED
the Petition for Annulment, be and the same is hereby dismissed,
at the cost of [Father].
IT IS ALSO ORDERED, ADJUDGED and DECREED
the Answer to Petition for Annulment By Publication and
Counter-Complaint for Divorce, Motion to Set Aside Default
Judgment, and Motion to Set Aside [the Order on Father’s
Motion to Dismiss Mother’s Complaint for Divorce and to Set
Aside] the Marriage Contract Pursuant to [Rule] 60.02(4) and
(5) [of the Tennessee Rules of Civil Procedure] be and the same
is hereby dismissed, at the cost of Mother.

Thus, the trial court dismissed all pending motions and petitions, including Father’s Petition
for Annulment and Mother’s Rule 60.02 Motion.

Mother filed a Notice of Appeal of the trial court’s order on October 26, 2012. On
February 7, 2013, Mother filed a Notice in the trial court of the filing of her Statement of the
Evidence pursuant to Rule 24 of the Tennessee Rules of Appellate Procedure 4 . Father lodged

4
Rule 24 of the Tennessee Rules of Appellate Procedure states, in pertinent part:

(c) Statement of the Evidence When No Report, Recital, or Transcript
Is Available. If no stenographic report, substantially verbatim recital or
transcript of the evidence or proceedings is available, the appellant shall
prepare a statement of the evidence or proceedings from the best available
means, including the appellant's recollection. The statement should convey
a fair, accurate and complete account of what transpired with respect to
those issues that are the bases of appeal. The statement, certified by the
appellant or the appellant's counsel as an accurate account of the
proceedings, shall be filed with the clerk of the trial court within 60 days
after filing the notice of appeal. Upon filing the statement, the appellant
shall simultaneously serve notice of the filing on the appellee, accompanied
by a short and plain declaration of the issues the appellant intends to
present on appeal. Proof of service shall be filed with the clerk of the trial
court with the filing of the statement. If the appellee has objections to the
(continued...)

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no objections to the Statement of the Evidence and the trial court took no action with regard
to the Statement.

II. Issues Presented

In her brief, Mother raised the following issues:

1. Whether the trial court erred in failing to consider the
new evidence presented by Mother before dismissing her
Motion to Set Aside the Order on Father’s Motion to
Dismiss Mother’s Complaint for Divorce and to Set
Aside the Marriage Contract pursuant to Rule 60.02 of
the Tennessee Rules of Civil Procedure?
2. Whether the trial court erred in holding that Mother was
still married to another man when she married Father,
and therefore concluding that her marriage to Father was
void?

4
(...continued)
statement as filed, the appellee shall file objections thereto with the clerk
of the trial court within fifteen days after service of the declaration and
notice of the filing of the statement. Any differences regarding the
statement shall be settled as set forth in subdivision (e) of this rule.

* * *

(f) Approval of the Record by Trial Judge or Chancellor. The trial judge
shall approve the transcript or statement of the evidence and shall
authenticate the exhibits as soon as practicable after the filing thereof or
after the expiration of the 15-day period for objections by appellee, as the
case may be, but in all events within 30 days after the expiration of said
period for filing objections. Otherwise the transcript or statement of the
evidence and the exhibits shall be deemed to have been approved and shall
be so considered by the appellate court, except in cases where such
approval did not occur by reason of the death or inability to act of the trial
judge. In the event of such death or inability to act, a successor or
replacement judge of the court in which the case was tried shall perform the
duties of the trial judge, including approval of the record or the granting of
any other appropriate relief, or the ordering of a new trial. Authentication
of a deposition authenticates all exhibits to the deposition. The trial court
clerk shall send the trial judge transcripts of evidence and statements of
evidence.

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 III. Analysis

Mother first argues that the trial court erred in dismissing her Motion to set aside the
order dismissing her complaint for divorce pursuant to Rule 60.02 of the Tennessee Rules
of Civil Procedure. Rule 60.02 provides a litigant an opportunity to gain relief from a final
judgment, and states, in pertinent part:

On motion and upon such terms as are just, the court may relieve
a party or the party's legal representative from a final judgment,
order or proceeding for the following reasons: (1) mistake,
inadvertence, surprise or excusable neglect; (2) fraud (whether
h e r e t o f o r e d e n o m i n a t e d i n t r i n s i c o r e x tr i n s i c ) ,
misrepresentation, or other misconduct 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 reversed 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 the
judgment. 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. . . .

Id. Specifically, Mother asserted that the fact that she was not ever legally married in Chile
met the requirements for relief under provisions (4) “a prior judgment upon which it is based
has been reversed or otherwise vacated, or it is no longer equitable that a judgment should
have prospective application;” and (5) “any other reason justifying relief from the operation
of the judgment.” Tenn. R. Civ. P. 60.02. Recently, this Court explained:

Rule 60.02 “provides an exceptional remedy that enables
parties to obtain relief from a final judgment.” DeLong v.
Vanderbilt Univ., 186 S.W.3d 506, 511 (Tenn. Ct. App. 2005)
(citing Nails v. Aetna Ins. Co., 834 S.W.2d 289, 294 (Tenn.
1992); Hungerford v. State, 149 S.W.3d 72, 76 (Tenn. Ct. App.
2003)). The rule “acts as an escape valve from possible inequity
that might otherwise arise from the unrelenting imposition of the
principle of finality imbedded in our procedural rules.”
Thompson v. Firemen's Fund Ins. Co., 798 S.W.2d 235, 238
(Tenn. 1990). “Because of the importance of this ‘principle of
finality,’ the ‘escape valve’ should not be easily opened.” Toney
v. Mueller Co., 810 S.W.2d 145, 146 (Tenn. 1991).

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Lindsey v. Lambert, 333 S.W.3d 572, 576 (Tenn. Ct. App. 2010). Accordingly, the burden
on the litigant seeking relief pursuant to Rule 60.02 is high:

The burden to demonstrate a basis for relief under Rule
60.02 is on the movant. Banks v. Dement Constr. Co., 817
S.W.2d 16, 18 (Tenn. 1991) (citing Brumlow v. Brumlow, 729
S.W.2d 103, 106 (Tenn. Ct. App. 1986); Jefferson v. Pneumo
Servs. Corp., 699 S.W.2d 181, 186 (Tenn. Ct. App. 1985)).
“The bar for obtaining relief is set very high, and the burden
borne by the moving party is heavy.” DeLong, 186 S.W.3d at
511 (citing Johnson v. Johnson, 37 S.W.3d 892, 895 n.2 (Tenn.
2001)). Even if grounds for relief are proven, the trial court may
refuse in its discretion to set aside a judgment. John Barb, Inc.
v. Underwriters at Lloyds of London, 653 S.W.2d 422, 423
(Tenn. Ct. App. 1983) (citing Tenn. R. Civ. P. 60.02). A failure
to persuade the trial court to exercise its discretion in favor of
granting relief is difficult to overcome: “In practical effect, a
trial court's determination of whether to grant relief pursuant to
Rule 60.02 is virtually conclusive.” Robert Banks, Jr. & June F.
Entman, Tennessee Civil Procedure § 12–3[d], at 12–56 (3d ed.
2009) (footnote omitted).

Lindsey, 333 S.W.3d at 576.

Thus, this Court will only overturn a trial court’s decision to “grant or deny relief
under Rule 60.02” if the court has abused its discretion. Id. at *576–77 (citing Henry v.
Goins, 104 S.W.3d 475, 479 (Tenn. 2003)). “The abuse of discretion standard requires us to
consider: (1) whether the decision has a sufficient evidentiary foundation; (2) whether the
trial court correctly identified and properly applied the appropriate legal principles; and (3)
whether the decision is within the range of acceptable alternatives.” Thompson v. Chafetz,
164 S.W.3d 571, 574 (Tenn. Ct. App. 2004) (citing State ex rel. Vaughn v. Kaatrude, 21
S.W.3d 244, 248 (Tenn. Ct. App. 2000)). This standard does not allow this Court to
substitute the panel's judgment for the judgment of the trial court. Henry, 104 S.W.3d at 479
(citation omitted). We will uphold the decision of a trial court so long as reasonable minds
can disagree about its correctness, Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001), and
will set aside the court’s decision only if the court has applied an incorrect legal standard or
has reached an illogical or unreasoned decision that causes an injustice to the complaining
party, Pegues v. Ill. Cent. R.R. Co., 288 S.W.3d 350, 353 (Tenn. Ct. App. 2008) (citing
Mercer v. Vanderbilt Univ., Inc., 134 S.W.3d 121, 131 (Tenn. 2004)).

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 In this case, however, we are not confronted with the trial court’s decision to deny
Mother’s request for Rule 60.02 relief, but rather with its decision to dismiss her Motion and
refuse to allow a hearing. According to Mother, the trial court “apparently acting sua sponte,
requested that the parties appear for a conference in chambers.” Mother further asserts that
there is no indication in the record that the trial court considered Mother’s proffered new
evidence. Instead, Mother asserts that the trial court simply dismissed her Rule 60.02 Motion
on the basis that her marriage to Father was void.

The record in this case contains a Statement of the Evidence pursuant to Rule 24 of
the Tennessee Rules of Appellate Procedure. Neither Father nor the trial court objected to
the Statement of Evidence offered by Mother. Accordingly, the Statement “shall be deemed
approved” pursuant to Rule 24(f) of the Tennessee Rules of Appellate Procedure. With
regard to the conference subsequent to the filing of Mother’s Rule 60.02 Motion, the
Statement recounts:

14. At the request of the Shelby County Chancery Court, the
parties participated in a conference with the Court on September
19, 2012. To the best of Mother’s knowledge and recollection,
the conference was conducted in chambers and neither party was
able to employ the services of a court reporter to transcribe the
events taking place in chambers.
15. During the conference, the Court informed the parties it
would dismiss Father’s Petition for Annulment and Mother’s
Counter-Complaint for Divorce because the Court previously
ordered that the marriage between Mother and Father was null
and void in the Order on Father's Motion to Dismiss Mother’s
Complaint for Divorce and Set Aside Marriage Contract, entered
with the Court on October 26, 2011.
17. Mother’s counsel attempted to introduce the document to the
Court in chambers but the Court refused to entertain the
document.
18. To the best of Mother’s recollection and knowledge,
Mother's counsel asserted that the certified document from the
Chilean government constituted the basis for her Motion to Set
Aside the Marriage Contract Pursuant to T.R.C.P. 60.02(4) and
(5), but the Court denied Mother’s attempts.

Despite his failure to object to the Statement of Evidence, Father now disagrees with
Mother’s interpretation of the events in the trial court. Specifically, Father argues that the
trial court did consider the new evidence and that any indication otherwise is due to Father’s

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“trial counsel’s order writing skills,” which “may be lacking.” Accordingly, Father would
have us disregard both the approved Statement of the Evidence and the plain language in trial
court’s order that: (1) specifically denied Mother the right to a hearing on Mother’s Motion;
and (2) dismisses Mother’s Rule 60.02 Motion without any indication that the trial court
reviewed Mother’s proffered evidence. Further, the trial court’s order fails to indicate what
procedure or basis the trial court utilized to dismiss Mother’s Motion other than the trial
court’s previous ruling declaring that the parties’ marriage was void. This we cannot do.

It is axiomatic that the trial court speaks through its orders. Morgan Keegan & Co.,
Inc. v. Smythe, 401 S.W.3d 595, 608 (Tenn. 2013) (citing In re Adoption of E.N.R., 42
S.W.3d 26, 31 (Tenn. 2001)). “Like other written instruments, orders and judgments should
be interpreted and enforced according to their plain meaning.” Smythe, 401 S.W.3d at 608
(citing Konvalinka v. Chattanooga–Hamilton Cnty. Hosp. Auth., 249 S.W.3d 346, 359
(Tenn. 2008)). The trial court’s order in this case clearly denied Mother a hearing on her
Motion to Set Aside and dismisses her Motion, despite the fact that Father had not filed any
Motion to Dismiss or Motion for Involuntary Dismissal in response for Mother’s Rule 60.02
Motion. Further, there is no mention of the trial court’s consideration of Mother’s newly
presented evidence or as to whether the requirements of Rule 60.02 have been met. In
addition, Mother’s Statement of the Evidence clearly states that the trial court “refused to
entertain” Mother’s purported evidence regarding her alleged marriage in Chile and
dismissed Mother’s Motion solely on the basis of the trial court’s previous ruling that the
marriage was void. To dismiss Mother’s petition without first considering whether her Rule
60.02 Motion met the grounds for relief pursuant to Rule 60.02, and without stating either
the procedure utilized to dismiss the case or the grounds for the dismissal, was in error. See
generally Lawrence A. Pivnick, Tennessee Circuit Court Practice § 28:8 (2012–13 ed.)
(“[T]he first duty of the court is to determine if the motion for relief is legally sufficient.”).

In this case it is entirely unclear what procedure the trial court used to dismiss
Mother’s Rule 60.02 Motion, be it for failure to state a claim upon which relief can be
granted or pursuant to the trial court’s authority to grant an involuntary dismissal. We will
consider each procedure in turn.

First, we consider a Motion to Dismiss for failure to state claim upon which relief can
be granted. As explained by our Supreme Court:

A Rule 12.02(6) . . . motion to dismiss for failure to state
a claim upon which relief can be granted tests only the legal
sufficiency of the complaint, not the strength of a plaintiff's
proof. Such a motion admits the truth of all relevant and
material averments contained in the complaint, but asserts that

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 such facts do not constitute a cause of action. In considering a
motion to dismiss, courts should construe the complaint liberally
in favor of the plaintiff, taking all allegations of fact as true, and
deny the motion unless it appears that the plaintiff can prove no
set of facts in support of her claim that would entitle her to
relief. Cook v. Spinnaker’s of Rivergate, Inc., 878 S.W.2d 934,
938 (Tenn. 1994). In considering this appeal from the trial
court's grant of the defendant's motion to dismiss, we take all
allegations of fact in the plaintiff's complaint as true, and review
the lower courts' legal conclusions de novo with no presumption
of correctness.

Stein v. Davidson Hotel Co., 945 S.W.2d 714, 716 (Tenn. 1997). Trial courts do, in fact,
have the power to dismiss actions sua sponte for failure to state a claim upon which relief
could be granted. Reid v. Power, No. E2012-02480-COA-R3-CV, 2013 WL 3282916, at *3
(Tenn. Ct. App. June 26, 2013) (perm. app. pending). That power, however, is limited. Our
Supreme Court has stated:

On behalf of appellants it is insisted that the trial court
had no authority, under the Tennessee Rules of Civil Procedure,
to dismiss the complaints sua sponte and in the absence of a
motion to dismiss filed pursuant to Rule 12. Although there is a
split of authority on this subject, we are of the opinion that the
trial court does have such authority, and that when he is of the
opinion that the complaint fails to state a claim upon which
relief may be granted, he may dismiss it, although such practice
is not to be encouraged. In considering such action, the court
should construe the complaint liberally in favor of the plaintiff,
taking all of the allegations of fact therein as true.

Huckeby v. Spangler, 521 S.W.2d 568, 571 (Tenn.1975). If the trial court utilized this
authority to dismiss Mother’s petition, however, we must conclude this action was
inappropriate, based on this Court’s decision in Duncan v. Duncan, No. 85-264-II, 1986 WL
15666 (Tenn. Ct. App. 1986) (perm. app. denied Jan. 5, 1987).

In Duncan, wife filed a Rule 60.02 motion for relief from a divorce judgment,
alleging that husband had fraudulently sold one of his businesses at a price far more than
what husband had valued the business at during the divorce. Husband filed a Motion to
Dismiss wife’s Rule 60.02 motion on the basis that the motion failed to state a claim upon
which relief can be granted. The trial court granted the Motion to Dismiss. Id. at *2. This

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Court reversed, concluding that the trial court erred in dismissing wife’s Rule 60.02 motion
without allowing her an opportunity to be heard on the merits of her motion. First, the court
noted that in considering a motion to dismiss, the trial court must take all allegations
contained in the pleading sought to be dismissed as true. Id. at *3 (citing Pemberton v.
American Distilled Spirits Company, 664 SW2d 690, 691 (Tenn. 1984)). The Court then
explained:

In deference to the authorities just cited [regarding the
duty of the court to take all factual allegations of the non-
moving party as true when faced with a motion to dismiss], this
Court is constrained to give the [wife] an opportunity of proving
facts in support of her motion[] which would entitle her to relief.
It results that the action of the Trial Court erred in dismissing
[wife]’s motion[] for failure to state a claim for which relief
could be granted.

Duncan, 1986 WL 15666, at *3. As noted by another court dealing with the same parties
after remand, “the Supreme Court concurred in the results [in Duncan], holding that a [Rule]
12.02 motion ‘is an inappropriate response to a Rule 60 motion.’” Duncan v. Duncan, 789
S.W.2d 557, 560 (Tenn. Ct. App.1990) (citing Duncan v. Duncan, Davidson Law (Tenn.
Jan. 5, 1987)).

The Duncan decision is consistent with a recent case in which the Court of Appeals
concluded that it was an abuse of discretion for the trial court to deny a party’s Rule 60.02
motion without allowing the party to present any proof. See Harper v. Harper, No.
E-2002-01259-COA-R3-CV, 2003 WL 192151 (Tenn. Ct. App. 2003). In Harper, wife
attempted to obtain relief from a final divorce judgment by arguing that she was unable to
attend the final hearing in the cause due to being in jail. Id. at *2. The trial court refused to
hear any evidence and denied the motion. The trial court did allow wife to put on an offer of
proof, however. According to wife’s offer of proof, she had been taken to jail when she was
locked out of the home where she was residing. Mother asserted that she was not arrested or
found to have committed any crime, but that after she could not find a place to stay for the
night in question, the police escorted her to jail because “they could not just leave her
outside.” Accordingly, wife asserted that she was entitled to Rule 60.02 relief. Id. The Court
of Appeals, like the Court in Duncan, took the allegations in wife’s offer of proof as true,
and concluded that the trial court erred in refusing to consider wife’s evidence. The Court
of Appeals did not determine that wife was entitled to Rule 60.02 relief, but only that the
“[t]rial ‘[c]ourt’s refusal to hear any proof related to said motion . . .’ was error.” Id. at *4.
The Court explained that:

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 We do not hold that [w]ife’s absence is sufficient, by itself, to
justify Rule 60 relief from the judgment. We hold only that
[w]ife shall be given an opportunity to explain the events which
occurred on the morning of trial that resulted in her being unable
to be present at trial. Husband, likewise, shall be given the
opportunity to offer countervailing proof.

Id. at *5. Thus, the failure to allow a party to present proof to support his or her Rule 60.02
motion may be considered an abuse of discretion. See also Robert Banks, Jr., & June F.
Entman, Tennessee Civil Procedure, § 12-3(d) (2004 ed. 2012) (“The trial court abuses its
discretion if it refused to hear proof in support of a Rule 60 motion.”).

The trial court in this case likewise dismissed Mother’s Rule 60.02 motion without
allowing Mother a hearing to present her proof in support of her motion for relief. Indeed,
the trial court specifically denied Mother a hearing on her Rule 60.02 Motion and the
Statement of Evidence provides that the trial court “refused to entertain” Mother’s proof in
the conference in chambers on September 19, 2012. Further, nothing in the record suggests
that the trial court actually considered either the sufficiency or the merits of Mother’s Motion
before deciding to dismiss it. However, from our review of Mother’s Motion, it is fully
compliant with Rule 60.02: the motion states with particularity the grounds that Mother
asserts support her entitlement to relief; Mother also supports her argument with evidence,
that if taken as true, corroborates her claim that she was, indeed, unmarried at the time of her
marriage to Father. Accordingly, based on the authority in Duncan and Harper, we conclude
that if the trial court’s dismissal of Mother’s Motion is construed as a sua sponte grant of a
motion to dismiss for failure to state a claim upon which relief can be granted, then the trial
court erred in summarily dismissing the Rule 60.02 Motion without any indication that the
trial court considered either the sufficiency or the merits of Mother’s Motion.

The trial court also has inherent authority to control its docket and, therefore, has the
power to, sua sponte, order an involuntary dismissal of a party’s claim. As explained by the
Tennessee Supreme Court:

Although Rule 41.02 does not expressly so provide, we are of
the opinion that a trial court may under certain circumstances
and upon adequate grounds therefor[e], [s]ua sponte order the
involuntary dismissal of an action. However, this power must be
exercised most sparingly and with great care that the right of the
respective parties to a hearing shall not be denied or impaired.
. . . In short, the occasions for the proper exercise of this power
are considered by this Court to be few indeed.

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 Harris v. Baptist Memorial Hospital, 574 S.W.2d 730, 731 (Tenn. 1978).
Involuntary dismissals prior to proof being presented are governed by Rule 41.02 of
the Tennessee Rules of Civil Procedure, which states: “For failure of the plaintiff to
prosecute or to comply with these rules or any order of court, a defendant may move for
dismissal of an action or of any claim against the defendant.” 5 Thus, the Court is only
authorized to order an involuntary dismissal prior to the presentation of proof when the
plaintiff has failed to prosecute the action or has otherwise failed to comply with the Rules
of Civil Procedure or court order. There is no indication in this case that Mother failed to
prosecute her case; indeed, the trial court’s conference on her Rule 60.02 occurred the day
after the Rule 60.02 Motion was filed. In addition, nothing in the record, the trial court’s
order, or in Mother’s Motion leads this Court to conclude that Mother failed to comply with
any court rules or orders. Accordingly, if the trial court’s dismissal of Mother’s Rule 60.02
motion is construed as an involuntary dismissal pursuant to Rule 41.01(1), the dismissal was
in error.

Based on the foregoing, we conclude that the trial court erred in dismissing Mother’s
Motion to Set Aside the trial court’s previous order dismissing her divorce complaint
pursuant to Rule 60.02 of the Tennessee Rules of Civil Procedure. The trial court’s order
dismissing the Motion is, therefore, reversed. Ms. Gonzalez further argues that this Court
should consider the substantive issue in this case: whether she is entitled to Rule 60.02 relief
from the trial court’s order dismissing her divorce complaint. As this issue was not
considered and decided by the trial court, we decline to address it on appeal. See White v.
Target Corp., No. W2010-02372-COA-R3-CV, 2012 WL 6599814l, at *8 (Tenn. Ct. App.
Dec. 18, 2012) (“Because the trial court below apparently did not address these arguments

5
Rule 41.01 provides a different procedure, however, when the involuntary dismissal occurs after
the presentation of plaintiff’s proof. According to Rule 41.01(2):

After the plaintiff in an action tried by the court without a jury has
completed the presentation of plaintiffs evidence, the defendant, without
waiving the right to offer evidence in the event the motion is not granted,
may move for dismissal on the ground that upon the facts and the law the
plaintiff has shown no right to relief. The court shall reserve ruling until all
parties alleging fault against any other party have presented their respective
proof-in-chief. The court as trier of the facts may then determine them and
render judgment against the plaintiff or may decline to render any judgment
until the close of all the evidence. If the court grants the motion for
involuntary dismissal, the court shall find the facts specially and shall state
separately its conclusions of law and direct the entry of the appropriate
judgment.

Tenn. R. Civ. P. 41.01(2).

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. . . , we also decline to address them on appeal.”). Instead, consideration of the sufficiency
and merits of Mother’s Rule 60.02 Motion are left to the discretion of the trial court on
remand.

IV. Conclusion

Based on the foregoing, we reverse the trial court’s ruling and remand to the trial court
for all further proceedings as may be necessary and are consistent with this opinion. Costs
of this appeal are taxed to Appellee, Mauricio Gonzalez, for which execution may issue if
necessary.

_________________________________
J. STEVEN STAFFORD, JUDGE

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