Husband Can’t prove that he was not served papers in jail
Tennessee case summary on the divorce process.
Husband didn’t meet burden to show he wasn’t served papers in jail
Alanna Lee Kummer v. Johnny Kummer, III
The husband and wife were married for twenty years when the wife filed for divorce in Davidson County, Tennessee in 2022. She claimed irreconcilable disagreements and inappropriate marital behavior and asked for an equitable division of their estate. He did not respond. Around two months later, her husband filed for default judgment. Three months later, the trial judge granted her divorce and divided marital property. The court amended its decree a month later to correct a clerical mistake. The husband received all the documents at the correctional facility by mail. He claimed that the papers had been delivered to the correctional institution, but that it was only later that a correctional official personally delivered them to him. He also claimed that some documents were sent to jail after he had been released.
An hearing was held and the husband’s attorney described the general procedures of the correctional facility. The facility did not appear at the hearing and the husband testified by phone from his halfway house. The husband argued there was a strong preference to have trials on the merits and that any doubts should be resolved to his favor. The appeals court argued that the defaulting party’s willful actions should not be disregarded. The party seeking relief must refute the presumption of his being personally served. It cited, for example, a 1982 case in which the defaulting party presented a logbook and credit card receipts as well as a truck repair invoice to prove that he was not in the city he claimed he had been served. In this case, although the husband denied the allegations, his attorney’s description of the general procedure was not enough to overcome the burden.
Under these circumstances, the appeals judge concluded that the husband had acted with intent and was not entitled for the default to be set aside. The Court of Appeals affirmed and remanded this case to the lower court.
Judge W. Neal McBrayer wrote the opinion of the Court of Appeals.
