### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE MARC H 19, 2002 SESSION LESLIE SWEATT (AC KERMAN) v. MIC HAEL SWEATT

Appeal from the Circuit Court of Davidson County No. 99D-3036 Muriel Robinson, Judge

No. M2000-02537-COA-R3-CV - Filed October 8, 2002

Mother appeal s the t rial c ourt's denial of her motion

to set asid

e what she chara

cterizesas a “default judgmen t” awarding custod

y of the part ies’ minor

childre n to the Fa

ther. B ecause

th e Mo ther’s procedura l d ue process rights were protected by the trial cour t, and the trial court heard evidence regarding factors which must be considered by a court in making

custody modifica tions, we a

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

B UDDY D. P ERRY , S P . J., delivered the opinion of the court, in which B EN H. C ANT RELL , P.J., M.S., AND W IL LI AM C. K OCH , J R ., J., joined. John M. Cannon, Goodlettsville, Tennessee, for the appellant, Leslie Swea tt (Ackerman). Jeffrey S. Pulley , Nashville, Tennessee, for the appellee, Micha el Sweatt.

OPINION

Leslie Sweatt Ackerman

(“Mother”) appeals the trial court’s denia l of her motion to set aside what she characterizes as a default judgment awarding Michael Sweatt ("F ather") custody

of the parties’ minor children. The Mother failed to appear at the custody hearing. Because the trial court heard proof concerning the fitness of the par ents and the children’s best interests, we affirm the trial court’s denial of her motion.

On January 31, 2000, the parties we re divorced, and the marital dissolution agreement gave th e Mother cus tody of the parties’ minor children. Thereafter, the Mother re married and told the Father that she intended to move with the children to North Carolina on May 20, 2000. On May 19, 2000, the Father

filed a complaint for change of c ustody and for a

restraining order prohibiting the Mother from removing the children from Davidson County . The Father, by motion, also sought summer visitation with the children.The ex parte restraining order wa s granted and set for hea ring on M ay

26, 2000. Pr

ior to being served with the complaint for change of

custody and the re straining order, the Mother left the Statewith the children. Karen Cain, Mother’s counsel in the origina l divor c e proceedings, sought to postpone the May 26, 2000, hea ring date, and the matter was resc heduled to June 2, 2000.

The Mother did not

attend the June 2, 2000, hearing, but she was represented by Jean Crowe. With the agr

eement o f Ms. Crowe, the trial court granted the Father summer visitation with the minor children. By orde

r dated June 30, 2000, Ms. Crowe was allowed to withdraw as counsel, and the Mothe

r was g iven fift

een day s to secur

e counse l.

On June 29, 2000, the Father filed a criminal contempt petition alleging that the Mother

was in contempt for violating the restraining order and the summer visitation order. The Mother failed to answer the criminal contempt petition and the Father' s complaint for custody modification.

The Father

filed a mo tion to set the case on the contested trial docket along with a ce rtifica te of readiness for trial of

a contested divorce case. The certificate of readiness for trial was signed by the trial court judge on July 19, 2000, and the case was set for trial on September 19, 2000.

No transcript of the evidence was filed. Howe ver, the September 29, 2000, trial court order states that the case was tried on September 19, 2000, and the court heard testimony from the Father and other witnesses. The order found that the Mother had

been pe rsonally served with process, and she had entered a defense in the lawsuit and then a bandonedit. The order further found the Mother in violation of the provisions of the parental relocation statute, and she was the subject of a pending petition for criminal contempt. Finally , the trial court found that it was in the best interests of the minor children that the Father be awarded custody.

The Mo th er fi le d a pr o s e n ot ic e o f a pp ea l. Su bs eq ue nt ly, she retained John Cannon, and he filed a motion to set the judgment aside. The motion alleged that the Mother was led to believe that she did not have to respond or appear at the tri al becaus e the matter was being resolved by agree ment. The Father and his counsel filed affidavits deny

ing the Mother’s allegations that she had been misled. The Mother responded with an affidavit admitting that she knew about the trial date. She says she fa

iled to appear because she “had no f unds to attend and I had been a dvised by the

local authorities at the Kids Fi rst, Inc. to minimize any contact that the children mig ht have with Mr. Sweatt due to allegations of abuse.”

The question i s whethe

r the tria l court e rred in having a custody modification hea ring in the absence of the Mother.

Mother’ s counsel

asserts that “there was no motion for def ault, no ord er set ting a h earing, and no notice that the hearing would occur on September 19 th of record." Therefore, he argues that the trial court

improperly g

ranted a change of c

ustody based upon a “defau lt ju dgment .” Alt hough the decision to set aside a default judgment rests with the sound discretion of the trial cour t, trial courts “should grant relief whenever any rea sonable doubt exists concerning whether t he defa ult judgment should be set aside.” Nelson v. Simpson , 826 S.W.2d 483, 485-86 (Tenn. Ct. App. 1991) (citation omitted). Counsel ins ists that the trial c ourt abus ed its disc retion by fail ing to se t t he1 Karen Cain was the Mother’s divorce lawy er in the original case. Although she ne ver entered an appearance , she did appear and request a one week continuance which the court “default judgment” aside.

Final ly, the Mo ther's counsel argues that the court cannot sustain a custody award without hearing relevant proof as to the children’s be st in teres ts. C itin g Castleman v. Castleman, No. M2000-00270-COA-R3-CV, 2000 Tenn. App. Lexis 820, 2000 WL 1862836(Tenn .Ct. App. Dec 21, 2000) (no Tenn. R. App. P. 11 application filed), Counsel insists that the cour t must hear

not only the Father ’s proof

, but also, the Mothe

r’s proo f. He insi sts, “To c ontend tha t s uch a lops i ded hearing actually

allowed proof relevant to those best interests would be ludicrous, at best.” Father’s counsel argue s thatclassification of the judgment is insignificant. He arg ues that the trial cou

rt did not a

buse its discretion because the Mother to ok no acti on to protect her in terest and the trial court changed custody only after c onsidering material evidence reg arding the children’s best inter ests.
The co mm on th re ad am on g t he ca se s d ea li ng wi th cu st od y h earings in the absence of one parent is the protection of the absent party ’s procedural due proce ss rights, see Mohan v. Mohan , No. 01A01-9708-CV-00415, 1998 Tenn. App. Lexis 669,1998 WL 743332 (Tenn. Ct. App. Oct 9, 1998) (no Tenn. R .App. 11 appli cation filed), and a requirement that the court hea r proof comparing the fitness of the parents and the childre n’s best interests. See Martin v. Martin , No. 01A01-9002 -GS-00064, 1990 Tenn. App. LEXI S 396, 1990 WL 73928 (Tenn. Ct. App. June 6, 1990) (no Tenn. R. App. P. 11 application filed).

In Martin this court

concluded that a c ustody chang e could oc cur by

a defau lt judgme nt if the trial court conducted an evidentiary he aring and made a determination reg arding the children’s best interests. However, i n Mahon this court reversed a trial court’s custody modification, after a full hearing , where

the father missed

the tr ial because of his mother’s illness. Because the father failedto properly docume nt his continuance motions, the trial court denied the father’s two motions for continua nce. Ba sed on evidence n ot prese nted to the trial court, this court found that the father
was a bsent from the trial because he was attending his ailing mother overseas, and tha t he wa s prejudiced by the

trial court’s decision not to grant his continuance reque sts.

In Castleman, this cour

t rever sed a cus tody

modifica tion wher e the mother faile d to appear in court on time. The case was set for 9:00 a.m. The mother called her attorney and said she was running late. At

9:50 a.m. the court

granted a default judgment without an e videntiary hea

ring on the issue of t he chil d’s best interest. The mother arrived at 10:10 a.m. This court reve rsed and remanded for hearing on the merits for two reasons: First, be cause the trial court failed to conduct
an evidentiary he aring on the issue of the children's be st interests; second, because this court found compelling the mother’s genuine ef forts to n otify her attorne y and the cour

t that she was running late.

In the case sub judice , the tria l court pr otected the Mothe

r’s proc edural d

ue proce ss right s and conducted a full hearing on the children’ s best interests. The Mother ha d t wo or th re e a tt or ne ys 1granted. Thereafter , the Mother retained Jean Crowe. She made one appea rance and was then allowed t o withdra w. John Cann on filed th

e motion to s et aside

the judgment and t

he appe al. repres enting h

er inter ests. She offered conflicting excuses for her failure to appear at

th e tr ial . In her motion to set aside the judg ment, the M other says she w as led to believe no response was
ne ce ss ar y, and the ma

tter was being r

esolv ed by ag

reement . In view of a pending petition for criminal contempt , her all egatio n is not credible. In her a ffidavit, she admits she knew about the trial date, but offers other excuses for failing to app ear. She n ever attempted to contact the trial court prior to her failure to appear, and she offe rs no rational reason for

not appearing. When the motion to set aside the judgment

was heard, she again fa

iled to appear. The record supports a finding that the Mothe

r delibe rately failed to appear and protect her r

ights.

Alth ough no transcript was filed, nor did the attorney s file a statement of evidence, the trial court’s order of September 29, 2000, reflects a finding by t he court that it wa s in the ch

ildren’sbest interest for custody to be modified. Without a record, this court must presume that the record, had it been preserved, would have contained sufficient evidence to support the trial court’s ruling. See , Sherrod v. Wix, 849 S.W.2d 780 (Tenn. Ct. App.1992); Gotten v. Gotten , 748 S.W.2d 430 (Tenn. App. Ct. l987).

Becau se the trial court protected the Mother’s procedural due process rights and c onducted a full hearing on the children’s best interests, the judg ment of the trial court is affirmed.

___________________________________ BUDDY D. PERRY, JUDGE