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 Court of Appeals Rule 10(b):

The Court, with the concurrence of all judges participating in the case, may affirm, reverse

or modify the actions of the trial court by memorandum opinion when a formal opinion would have

no precedential value. When a case is decided by memorandum opinion, it shall be designated

"MEMORANDUM OPINIO N," shall not be published, and shall not be cited or relied on for any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 August 2, 2001

RONALD DWAYNE CARTER v. PAULETTE D’ANNE CARTER

 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 Carter from the refusal of the trial court to set aside a default

judgment and a final judgment adjudicating divorce and custody. We affirm the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed

WILLIAM B.CAIN, J., delivered the opinion of the court, in which BEN H.CANTRELL, P.J., M..S. and

PATRICIA J. COTTRELL, 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 OPINION1

On October 13, 2000, Ronald Dwayne Carter filed suit for divorce against Paulette D’Anne

Carter in the Chancery Court for Sumner County. The complaint sought divorce on grounds of

inappropriate marital conduct and custody of the minor child of the parties. The complaint contained

a prayer for temporary custody of the child and sought a show cause order relative to custody on the

17th day of November, 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. 
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Process was served on Defendant on October 27, 2000 along with a copy of the show cause

order.

On November 17, 2000, a temporary custody and support hearing was held in which the trial

court heard the “testimony of the parties in open court.”

On November 29, 2000, the Chancellor entered a decree based 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 default pursuant to T.R.C.P.

55.01 as Defendant had not timely answered the complaint. This motion was accompanied by a

notice to Defendant that the motion for default would be heard on January 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 guilty of inappropriate

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 to employ counsel and that she had a good 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 whether 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 judgment lies within the 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 November 17, 2000, a temporary custody hearing was held in

which Defendant testified along with other 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
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granted the divorce. It is the duty of the appellant to provide this Court with a transcript of the

evidence or a T.R.A.P. Rule 24 statement 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:

Our ability 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 evidence prepared in

accordance with Tenn. R. App. P. 24(c).

When a trial court decides a case without a jury, it’s findings of fact are

presumed to be correct unless the evidence in the record preponderates against them.

Tenn. R. App. P. 13(d). This court cannot review the facts de novo without an

appellate record containing the facts, and therefore, we must assume that 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.

1989); Irvin v. City of Clarksville, 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 against

Appellant.

___________________________________ 

WILLIAM B. CAIN, JUDGE