### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE November 6, 2000 Session
ROBERT LEE CASTLEMAN v. SAL LY LUTHER BROWN CASTLEMAN Appeal from the Circuit Court for Williamson County No. 96473 Jeffrey S. Bivins, Judge

No. M2000-00270-COA-R3-CV - Filed December 21, 2000

Mother appeals the trial court’s denial of her motion to set aside a default judgment awarding divorce to Father, distribu

ting marital prop

erty, and a

warding custody

of the minor child to

Father. Beca

use no evidence was heard regarding factors which must be consider ed b y a court in m

aking these determinations,

we reverse the trial

court’s denial of

her motion to set asi

de the default

judgment and remand this matter

for a trial on the m

erits. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court

Reversed and Remanded
P ATRICIA J. C OTTRELL , J., delivered the opinion of the court, in which B EN H. C ANTRELL , P.J., M.S. and W ILLI

AM B. C AIN , J., joined. Thomas F. Bloom, Nashville, Tennessee, for the appellant, Sally L uther Castleman. Connie Reguli, Nashville, Tennessee, for the appellee, Robert Lee Castleman.

OPINION
Robert Lee Castleman

(“Father”) and

Sally Lut her Brown Castle

man (“Mother”)

married in 1995, a few months after their son was born. The parties separated in July 1996, and Father filed a complaint for divorce. Mother filed an answer and countercomplaint in August 1996. The record indicates that no action was taken on the complaint or countercomplaint

until August 1998, when Father filed a motion to ame

nd, in which he alle

ged that the par

ties reconci led for a time, but had separated again.
Father f iled an amended complaint for divorce on November 9, 1998. He alleged that the parties “have had a very turbulent marriage . . . a nd have separated and reconciled several times.” He sought a

divorce, and cus

tody of the pa

rties’ son. On January 28, 1999, Mother filed an answer,-2-

in which she denied m

ost of Father’s allegations regarding his grounds for divorc e and custody, and filed a countercompla

int seeking a divo

rce and custody

of the child . Both par ties made various allegations against the other relevant to the issue of custody, each questioning the other parent’s fitness while asserting their own.
The final hearing was set and wascontinued at least twice. Havinglast been set for 9:00 a.m. the morning of Decembe r 3, 1999 , the proceedings began at 9:09 a.m. with some preliminary matters. Mother’s counsel in this matter arrived moments after the proceedings began. Mother was notpresent. Her at

torney stat

ed that he had told h

er to be there by

8:30. Durin

g the discussion among the trial judge a

nd th e attorneys, Mother’s attorney re ceived a note and informed the court that Mother hadcalled his

office, sta ting that s he would be l ate. At 9:1 5, the atto rneys and the ju dge left the courtroom for

a discussion off th

e record. They

returned at 9:50 , and Father’s attorney moved for a default judgment, noting that Mother had not

arri ved and had “hel d up fou r at tor neys and quite a courtroom full of witnesses.” F ather ’s counsel also sta ted, “If Ms. Ca

stleman is so inclined to appear in cour t at sometime

in the future, she will have 30 days to file a motion to alter or amend or set aside that judgment.”
The court granted

the motion for default, noting that “there will be a 30-day period in which -

- if she can provide

th e cou rt with a reasonable excuse as to why she hasn’t shown up today , then the court canconsider that on a motion to alter or amend the judgment.” The trial court entered an order stating, “This court finding that the defendant was given notice of this hearing and has failed to appear grants the oral

motion of

the plaintiff for default judgment against the defendant/Wife.” The court awarded the divorce to Father on unspecified grounds, divided the marital pro pert y, and awarded custody of the minor ch

ild to Father, with standard visitation to Mother. The order does not includ e findings o f fact, and i t is undis puted that no evidence was taken at the hearing.
Mother filed a motion to set aside the default judgment, or in the alternative, to al ter o r amend, accompanied by her affidavit which stated that she had tra nsportation problems, but had arrived at the courthouse at 10:10 on the morning of the hearing . Her motion to set a side the default judgment was den

ied. Mother appe

als the trial cour

t’s refusal to set

aside the defaul

t judgment.
I.
A judgment by de faul t is a fi nal ord er di spo sin g of a case on i ts m eri ts, lik e any o the r judgment. See State of Tennessee ex rel. Jeffrey Jones v. Looper, No. M1999-00662-COA-R3-CV, 2000 WL 354404 at *3 (Te nn. Ct. App. Apr. 7, 2000) (perm. app. denied Oct. 30, 2000). The Tennessee Rules of Civil Procedure authorize the entry of a judgment by default where a party "has failed to plead or otherw ise defend as provided by these rul es." See Tenn. R. Civ. P. 55.01.
The essenceof a default judg ment is that a [defe

ndant] fails to

take a step required by a rule of practice or of the court. A default judgment contemplates a l ac k of responsiveness

by defendant such that plaintiff is entitled to judgment as a matter of pol icy; defendants are

not to be allowed to prolong litigation by imposing procedural-3-

delays.The default judgment protects a diligent party from continual del ay a nd uncertainty as to his or her rights. Looper , 2000 WL 354404 at *4 (quoting C.J.S. Judgments § 196 (1997)).
Motions for default judgment and motions to set aside default judgments are addressed to the trial court's discretion

and generally will not be reversed absent an abuse of discretion. See Looper , 2000 WL 354404 at *3. The fact that a decision is discretionary with a

trial court necessarily implies that th e trial court has a choice of alternatives among a range of ac ceptable ones; the reviewing court's job is to determine w hether the trial c

ourt' s decision is within th e range of ac

ceptable alternatives, given the applicable legal principles and the evidence in the case. See id. Regardinga motion to set aside a default judgme

nt, our Supreme Cour

t has stated, “Since the interests of justice are b est ser ved by a trial on the merits, only after a careful study of all relevant considerations should courts refuse to open default judgments.” Tennessee Dep’t of Human Ser vs. v. B ar bee , 689 S.W.2d 863, 866 (T enn. 1985) (quotin

g with approval Securities and Exchange Comm’n v. Seaboard Corp. , 666 F.2d 414 (9th Cir. 1982)). This court echoed that principle , stating, “Trial courts should grant relief whenever an y reasona ble doubt exists concerning whether the default judgment should be set aside.” Nelson v. Simpson , 826 S.W.2d 483, 485-86 (Tenn. Ct. App. 1991) (citation omitted).
In this case, the trial court awarded cus tody to Father on the ba sis of Mother’s fa

ilure to appear on time for the hearing. No evidence was taken in Mother’s absence re gard ing Father’s fitness as a custodial par

ent. Mother had filed p

leadings defe

nding against F

ather’s complain

ts for divorce and for custody and had filed countercomplaints asking that the divorce be awarded to her and that custody be granted to her. It wa s apparent that the issue of custody was

strongly contested.
The trial court failed to hear evidence regarding the factors re levant to a n aw ard o f cus tod y. It also failed to give any consideration to the principles which must guide a custody determination. When called upon to order a custody arrangement, a c ourt must consider

many factors and make a custody determination based on the best interest of the child. See Tenn. Code Ann. § 36-6-106 (Supp. 2000) (listing several factors for a court to consider). In child custody cases, the welfare and best interest of the child are the paramount concern, and the determination of the child’s best interest must turn on the particular facts of each case. See Akins v. Akins , 805 S.W.2d 377, 378 (T enn. Ct. App. 1990) (citing Holloway v. Bradley , 190 Tenn. 565, 570-72, 230 S.W.2d 1003, 1006 (1950)). Where, as h ere, bot h pa rent s se ek cu sto dy, this court has held that the child ’s best interest is to be determined by using an analy sis of the comparative fitness of each parent. See Bah v. Bah , 668 S.W.2d 663, 665-66 (Tenn. Ct. App. 1983)

. “There are literally thousands of things that must be taken into consideration in the lives of youngchildren, and these factors must be reviewed on a comparative approach. . . ” Id. , 668 S.W.2d at 666. Because the determination of where a child’s best interest lies is the

result of the cons

ideration of a num

ber of factors i

n the context of

a specific-4-

factual situation, see Adelsperger v. Adelsperger , 970 S.W.2d 482, 485 (Tenn. Ct. App. 199 7), it is particularly fact-driven. See Rogero v. Pitt , 759 S.W.2d 109, 112 (Tenn. 1988). The trial court herein did not base its award on any of the factors it is required to consider by the terms

of Tenn Code Ann. § 36-6-106 or by the long line of cases requiring a determination of the child’s best interest. In making wha t is a “particularly fact-driven” decision, the trial court heard no evidenc

e, considered no

facts, and made n

o findings of fac

t. This situation req

uires us to find that the trial court’s award of custody by default was outside the range of alter natives availabl

e to the court and not within its discretion.
Tenn. R. Civ. P. 55.01 recognize s that, even wher

e a default judg

ment is procedura

lly authorized, certain

issues may be required to be determined after an evidentiary hearing in order to “enable the court to enter judgment.” Where custody is dis puted and alleg

ations relevant to determination of the comparative fitness of the parents and the best interests of the child have been made and denied, a trial cour t must hear sufficient evidence up on which to make the fin dings required.
This cou rt h as p revi ous ly co nsi dere d wh eth er a c han ge of chi ld c ust ody, mad e by d ef ault judgment, should be affirmed. See Martin v. Martin , No. 01A0 1-9002-G S-00064, 1 990 WL

73928 at *5 (Tenn. Ct. App. June 6, 1990) (no Tenn. R. App. P. 1 1 applicati on filed). In Martin , we affirmed the change of

custody by default, but the opinion makes clear tha t the trial court heard

proof as to the fitness of the parents. See id . at *1 and *4. In that case, the father filed a petition seeking modification of the original custody award to the mother, which the mother d

id not answer. Only after the default judgment

was entered did

the mother make her initial appearance, when she sought to have the default judgment set aside. Most importa

ntly, the cou

rt inthat case heard proof regarding factors relevant to modification of a custody award.
This court set aside a trial court’s denial of a husband’s motion for a new trial in

a divorce case, even where a fu

ll trial was held in

the husband’s absence. See Mohan v. Mohan , No. 01A01- 9708-CV-00 415, 1998 WL 743332 at *4 (Tenn. Ct. App. Oct. 9, 1998) (no Tenn. R. App. P. 1 1 application filed). In that case, the husband’stwo motions for a continuance, based on his expressed needto attend to his ailing mother overseas, were denied by the trial court. The husband’s attorney was present and the tr

ial proc eeded in the husband’s absence. The trial court granted the wife a divorce, set child support, andawarded all mar ital property

, custody of

the child, and alim

ony to the wife. See id. at *2. This court rejected the husband’s characterization of the decision as a def

ault judgment, because the husband “did not fail to plead or defend in this case.” Id. at *3. This court saw the real issue as “whether the trial court erred in denying the husba nd a new trial in light of the fact that he was not present at the final hearing.” Id . We vacat ed the tri al court’ s judgmen

t “[i]n light of the significance of this decision to both parties and of the prejudice suffered by the Husband at the court’s decision . . . to hold the trial without him.” Id. at *4. In the case before us, the trial court granted the divorce and

made the awards of property and custody with no proof at

all, even knowing that Mother had contested a number of issues, including-5-

cus tod y, and that

she had notified her attorney that she would be late to the hearing. We find

the facts of the case before us even more compelling than those in Mohan.
Our courts make no more important decisions than those involving the custody of a child, a decision which must be based on the child’s best interest. We cannot sustain an award of custody made without proof relevant to those best interests.
II. Although Mother’s arguments have involved only the custody award, she see ks to have the defaultjudgm ent set aside in its e ntirety. Div

orce, other than

on the basis of irr

econcilable differences,

can be grante

d only upon pr

oof of or stipulatio

n to statutory grounds. See Tenn. Code Ann. §§ 36-4-101 and 36-4-129 (Supp. 2000). Neither appear s inthis record. Similarly, distribution of marital property, in the absence of agree ment by the parti es, requires factual determinations by t he cour t. See Tenn. Code Ann. § 36-4-121(c). The record does not include any of the required findings or any evidence upon which we could review the award.
Because no evidence was heard to allow the trial court to

make necess ary factual find ings to support the judgment, we reverse the trial court’s deni al of Mother’s motion to set aside the default judgment . Wefurther order that the judgment itself is vacated, and that this case is remanded to the trial court for a trial on the merits. By virtue of our vacating the judgment, any award of c ustody after a full hearing will be the initial award of custody

and should not be co

nsidered a modifi

cation of a prior

award. In th

e interim, we are reluctant to

subject the child to

greater insta

bility in his

environmen t than he has already suffered. The refo re, w e ord er t hat the chi ld r ema in i n th e pri mar y phys ica l cu sto dy o f the Father, withstandard visitation to the Mother, unless and until the trial court establishes a different custody arrangement, after a hearing, through either a temporary or final award.
Costs of this appeal aretaxed against Appellee, Robert Lee Castleman for which execution may i ssu e if nece ssa ry.

______________________________ PATRICIA J. COTTRELL, JUDGE