James Glover v. Tetyana Glover ( 2003 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
February 13, 2003 Session
JAMES EUGENE GLOVER v. TETYANA GLOVER
Appeal from the Circuit Court for Hamblen County
No. 01CV277 Kendall T. Lawson, Judge
FILED FEBRUARY 25, 2003
No. E2002-01690-COA-R3-CV
The trial court entered a judgment granting the complaint for annulment filed by James Eugene
Glover (“Husband”). Within 30 days of the entry of the judgment, Tetyana Glover (“Wife”) filed
a motion seeking to set aside the judgment. She claims that she did not have prior notice that the
complaint was to be considered on June 19, 2002, the date on which the record reflects this case was
heard. The trial court, finding that it lacked jurisdiction to consider Wife’s motion, denied her
request to set aside the judgment. Wife appeals. We vacate the trial court’s order refusing to
consider Wife’s motion and remand this matter to the trial court for consideration of the motion.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Vacated; Case Remanded with Instructions
CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which HOUSTON M. GODDARD ,
P.J., and D. MICHAEL SWINEY, J., joined.
Ronald J. Attanasio, Knoxville, Tennessee, for the appellant, Tetyana Glover.
Douglas R. Beier, Morristown, Tennessee, for the appellee, James Eugene Glover.
OPINION
I.
Husband filed a complaint for annulment on September 17, 2001, alleging that “Wife entered
into the marriage under fraud and false pretenses with the sole purpose of marrying [Husband] so
she could become a[] U.S. citizen.”1 On December 6, 2001, Wife filed an answer, denying the fraud
and false pretenses allegations of the complaint.
1
At the time of the marriage, Wife was apparently a citizen of Russia.
On June 28, 2002, the trial court entered a judgment granting Husband an annulment and
declaring the parties’ marriage “a nullity and void ab initio.” The judgment recites that the complaint
was “heard on the 19th day of June, 2002.” It is signed by the trial judge. It also bears the signature
of Douglas R. Beier, attorney for Husband. Neither Wife nor her counsel signed the judgment;
however, it does contain a certificate of service signed by Mr. Beier reflecting service by mail on
Ronald J. Attanasio, attorney for Wife.
On July 10, 2002, Wife filed what she styled a “Motion for Relief from Judgment.” Even
though the motion was filed within 30 days of the entry of the judgment, Wife asserted in her motion
that it was being filed “pursuant to Rule 60 of the Tennessee Rules of Civil Procedure.” In her
motion, Wife acknowledged receipt of a copy of the judgment “in the mail without a cover letter.”
The motion goes on to assert that
[p]rior to receipt of the [j]udgment, counsel for [Wife] did not receive
notice of a trial date or a docket sounding from the Clerk of the Court
or from counsel for the [p]laintiff and therefore had no knowledge of
the trial date, the need to appear before the Court and/or the entry of
a [j]udgment.
On the same day – July 10, 2002 – Wife also filed in the trial court a notice of appeal to the Court
of Appeals from the trial court’s judgment of June 28, 2002.
On October 17, 2002, the trial court entered an order denying Wife’s motion, finding that it
“lacked jurisdiction as the matter had been appealed to the Court of Appeals.” Wife then filed
another notice of appeal, this time as to the trial court’s order of October 17, 2002.
Wife appeals. She asserts a single issue:
Whether or not sufficient notice was given to [Wife] or [Wife’s]
Counsel allowing a Judgment to be entered without [Wife] having an
opportunity to be heard.
II.
As a general proposition, the timely filing of a notice of appeal from a trial court’s judgment
or order deprives the trial court of further jurisdiction in the matter. See, e.g., Reed v. Alamo Rent-
A-Car, Inc., 4 S.W.3d 677, 691 n.8 (Tenn. Ct. App. 1999). There are several exceptions to this
general principle.2 One of these exceptions pertains to a timely-filed motion that falls within one of
2
For example, a trial court can consider a petition for post-judgment contempt even while one of the parties is
pursuing an appeal. Poff v. Poff, C/A No. 01A01-9301-CV-00024, 199 3 W L 73 897 , at *2 (Tenn. Ct. App. M.S., filed
March 17, 1 993 ). W ith an ap pellate court’s prior approval, a trial court can also consider a Rule 60.02 motion for relief
from a final judgment even after a notice of appeal has been filed. In such a case, the moving party must petition the
app ellate court to remand the case to the trial court for consideration of the Rule 60.0 2 mo tion in order to avoid a
situation where a case is pending in both a trial court and a n app ellate co urt at the same time. Spen ce v. Allstate Ins.
Co., 883 S.W .2d 586, 595 -96 (Tenn. 199 4).
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the categories stated in Tenn. R. Civ. P. 59.01. It is clear that a trial court has jurisdiction to consider
such a motion even if a notice of appeal has been filed prior to the filing of the motion or
contemporaneously with the filing of the motion. See Steele v. Wolfe Sales Co., 663 S.W.2d 799,
802 (Tenn. Ct. App. 1983).
Speaking generally, a direct appeal is only appropriate with respect to a final judgment in the
trial court. See Tenn. R. App. P. 3(a). If there are matters pending before the trial court, and the
provisions of Tenn. R. Civ. P. 54.02 are not implicated and not invoked in the judgment or order
appealed from, a direct appeal pursuant to Tenn. R. App. P. 3(a) is not appropriate. Hutchinson v.
ARO Corp., 653 S.W.2d 738, 740 (Tenn. Ct. App. 1983).
“A prematurely filed notice of appeal shall be treated as filed after the entry of the judgment
from which the appeal is taken and on the day thereof.” Tenn. R. App. P. 4(d).
III.
In the instant case, Wife recited in her motion that she was proceeding under Tenn. R. Civ.
P. 60. Such an assertion was in error. Generally speaking, Rule 60 pertains to final judgments. See,
e.g., Federated Ins. Co. v. Lethcoe, 18 S.W.3d 621, 625 (Tenn. 2000). When Wife filed her motion
on July 10, 2002 – within 30 days of the entry of the judgment of June 28, 2002 – the judgment as
to which the motion was addressed was not then final. This is because Wife’s motion filed July 10,
2002, was still pending before the trial court.
We construe Wife’s motion as one to alter or amend under Tenn. R. Civ. P. 59. The motion
recites that Wife did not have prior notice of the hearing date. In seeking to set aside the subject
judgment, she is clearly seeking to “alter” it. In construing a motion, we look to the substance of the
motion rather than its form. Tennessee Farmers Mut. Ins. Co. v. Farmer, 970 S.W.2d 453, 455
(Tenn. 1998); Bemis Co., Inc. v. Hines, 585 S.W.2d 574, 575 (Tenn. 1979); State v. Minimum
Salary Dept. of A.M.E. Church, Inc., 477 S.W.2d 11, 12 (Tenn. 1972); Hawkins v. Hawkins, 883
S.W.2d 622, 624 (Tenn. Ct. App. 1994).
Since Wife’s motion of July 10, 2002 – which we have construed as one to alter the trial
court’s judgment of June 28, 2002 – was filed within 30 days of the entry of that judgment, we hold
that the trial court had jurisdiction to consider it. The notice of appeal, which was filed on the same
date as the motion seeking to set aside the judgment of June 28, 2002, was prematurely filed. See
Tenn. R. App. P. 4(d). Accordingly, we hold that the trial court erred in determining that it lacked
jurisdiction to consider Wife’s motion.
IV.
We vacate the trial court’s order of October 17, 2002. Exercising our discretion, we tax the
costs of the appeal to the appellant, Tetyana Glover. This case is remanded to the trial court with
instructions to consider Wife’s motion filed there on July 10, 2002.
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___________________________________
CHARLES D. SUSANO, JR., JUDGE
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