1 Court of Appeals Rule 10(b): The Court, with the concurrence of all judges part icipating in the

case, may affirm, reverse or modify

the act ions of t he tria l court by memorandum opi nion when a formal

opinion would have no precedential value. When a case is decided by memorandum o pinion, it shall be desi

gnated "MEMORANDUM OPINIO N," shall not be published, and shall not be cited or relied on for any reason in a su bsequen t unrelated ca se. 

### IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE Assigned on Briefs A

ugust 2, 2001 RONALD DWAYNE CARTER v. PAULETTE D’ANNE CAR TER Appeal from the Chancery Court for Sumner County No. 2000D-599 Tom E. Gray, Chancellor

No. M2001-00692-COA-R3-CV - Filed September 18, 2001

This is an appeal by Paulette D’Anne C arter from the r

efusal of the tria

l court to set aside

a default judgment and a fina

l judgment adjudica

ting divorce and c

ustody. We affir

m the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed W ILLIAM B. C AIN , J., delivered the opinion of the cour

t, in which B EN H. C ANTRELL , P.J., M..S. and P ATRICIA J. C OTTRELL , J., joined. Michael W. Edwards, Hendersonville, Tennessee, for the appellant, Paulette D’Anne Carter. James M. Hunter, Jr., Gallatin, Tennessee, for the appellee, Ronald Dwayne Carter.

MEMORANDUM OPIN ION 1 On October 13, 2000, Ronald Dwayne Carter filed suit for divor

ce against Paulette D’Anne Carter in the Chancery Court for Sumner County. The complaint sought divorce on ground s o f inappropriate

marital conduct and custody of the minor child of the parties. The complaint contained a prayer for temporary

custody of the chil

d and sought a

show cause order relative to custody on the 17th day of Novemb

er, 2000 at 8:00 a. m. On October

16, 2000, the Chancellor issued a show cause order to Paulette D’Anne Carter to appear for a temporary custody hearing on November 17, 2000 at 8:00 a.m.-2-

Process was served on Defendant on October 27, 2000 along with a copy of the show cause order. On November 17, 2000 , a temporary cus

tody and support he

aring was held

in which the trial court heard the “testimony of the parties in open court.” On November 29, 2000, the Chancellor entered a decr ee base d on the testimony given on November 17, 2000, that it was in the best interest of the minor child for temporary custody to be placed with the father pending a final hearing in this matter “which is to be set January, 2001.” On December 6, 2000, Plaintiff filed a motion for judgment by defau

lt pursuant to

T.R.C.P. 55.01 as Defendant had not timely answered the complaint. Thi s motion was accompanied by a notice to Defend

ant that the motion f

or default would b

e heard on Janua

ry 5, 2001 at 8:00 a. m. Such hearing was held on January 5, 2001, and the Chancellor entered judgment on January 19, 2001 reflecting his findings and holding: It further appearing to the Court from the testimony of the plaintiff and witnesses in open court and from all of the proof that the allegations of the plaintiff’s complaint are sustained by the proof in that the defendant has been g u ilty of inappropria te marital conduct to such an extent that the plaintiff is entitled to an absolute divorce. This decree also granted custody to the father. On February 15, 2001, the mother filed a T.R.C.P. Rule 60 motion even though the January 19, 2001 order

was not at that

time final. She sought to set aside the judgment on the basis that she had been unable t

o employ counsel a

nd that she had a go

od faith defense

to the complaint. On March 9, 2001, the Chancellor denied the Rule 60 motion and on March 15, 2001, Wife filed her notice

of appeal. On March 26, 2001, Appellant filed her notice that no transcript or statement of

the evidence would be filed in the cause. The only issue on appeal is wh ethe r or not the trial judge erred in failing to set aside the judgment by default and the final decree of divorce. The setting aside of a

default j udgment lies within th e sound discretion

of the trial court

. Henson v. Diehl Machs., Inc. , 674 S.W.2d 307 (Tenn. Ct. App. 1984). The record shows that on No vem ber 17, 2000, a tem porary custody he

aring was held in which Defendant testified along withother witnesses. The record further shows that Defendant had adequate notice of the hearing of January 5, 2001 in which the trial court heard testimony and-3-

grantedthe divorce. It is the duty of the appellant to provide this Court with a tra nscript of the evidence or a T.R.A.P. Rul e 24 statemen t of the evidence. Without either, we have no way of determining the factual basis for the trial court’s judgment following either the November 17, 2000 hearing or the January 1, 2001 hearing. This Court has said: O ur a bility to deal with this issue is hampered by the absence of either a transcript of the proceedings in the trial court or a statement of the eviden ce pre pared in accordance with Tenn. R. App. P. 24(c). When a trial court dec

ides a case witho

ut a jury, it’s f

ind ings of fact are presumed to be correct unless t he evidence in th

e record prepo

nderates agains

t them. Tenn. R. App. P. 13(d). T his court cannot review the facts de novo without an appellate record containing the facts, and the refore, we must a

ssumethat the record, had it been preserved, would have contained sufficient evidence to support the trial court’s factual findings. McDonald v. Onoh , 772 S.W.2d 913, 914 (Tenn. Ct. App. 19 89); Irvin v. City of Clark sville , 767 S.W.2d 649, 653 (Tenn. Ct. App . 1987) ; Gotten v. Gotten , 748 S.W.2d 430, 432 (Tenn. Ct. App. 1988). Sherrod v. Wix

, 849 S.W.2d 780, 783 (Tenn. Ct. App. 1992). Since we cannot

know what evidence the

trial court heard in either of the hearings, we have no basis for holding that he abused his discretion in refusing to set aside the default judgment and the final judgment in this case. The judgment of the trial court is affirmed. The costs of this cause are assessed aga ins t Appellant.

___________________________________ WILLIAM B. CAIN, JUDGE