FILED

February 19, 1999

Cecil Crowson, Jr.

Appellate Court Clerk

ROBERT LEE ANDERSON, )

)

Plaintiff/Appellee, ) Appeal No.

) 01-A-01-9802-CH-00082

v. )

) Montgomery Chancery

REBECCA ANN ANDERSON, ) No. 92-71-106

)

Defendant/Appellant. )

)

COURT OF APPEALS OF TENNESSEE

APPEAL FROM THE CHANCERY COURT FOR 

MONTGOMERY COUNTY

AT CLARKSVILLE, TENNESSEE

THE HONORABLE CAROL A. CATALANO, CHANCELLOR

ROBERT LEE ANDERSON, Pro Se

417 Windmill Drive

Copperas Cove, Texas 76522

CARRIE KERSH

Kennedy Law Firm

127 South Third Street

Clarksville, Tennessee 37040

ATTORNEY FOR DEFENDANT/APPELLANT

REVERSED AND REMANDED

WILLIAM B. CAIN, JUDGE
-2-

OPINION

This is an appeal from the action of the trial court in refusing to set

aside a change of custody order.

Robert Lee Anderson and Rebecca Ann Anderson were divorced on

July 17, 1993 with joint custody being awarded of three minor children and

appellant, Rebecca Ann Anderson, being designated as primary physical

custodian.

An agreed order was entered in April of 1996 changing custody of

Robert Lee Anderson, Jr. from his mother to his father effective for the period

June 15, 1996 to June 15, 1997.

On June 18, 1997, Robert Lee Anderson filed the petition at issue in

this case seeking permanent custody of Robert Lee Anderson, Jr.

On July 9, 1997, Rebecca Ann Anderson, acting pro se, filed an answer

and counter-complaint seeking arrearages in child support.

The record contains a notice dated September 12, 1997 from Gregory

D. Smith, attorney for Robert Lee Anderson, to Rebecca Ann Anderson, pro se

that the case would be tried on the merits on November 7, 1997 beginning at

9:00 a.m. Apparently no action was taken on November 7, 1997 and the record

reflects no further notice to Rebecca Ann Anderson.

A hearing on the petition was held November 24, 1997 with Gregory

D. Smith appearing for Robert Lee Anderson and Rebecca Ann Anderson

appearing neither pro se nor by counsel. At this hearing, the change of custody

petition was sustained and permanent custody transferred from Rebecca Ann

Anderson to Robert Lee Anderson.

On the following day, November 25, 1997, Rebecca Ann Anderson,

acting through attorney Carrie W. Kersh, filed a "motion to set aside default
-3-

judgment" alleging that Rebecca Ann Anderson had no notice of any hearing to

be held on November 24, 1997 and her first knowledge of the hearing was when

Robert Lee Anderson, at 8:00 in the evening of November 24, 1997, presented

her with a copy of the order and told her to "read it and weep."

A hearing on the motion to set aside the judgment was set for

December 16, 1997 at which time all parties appeared.

This hearing resulted in a final order of January 5, 1998 resulting in

findings by the trial court, in pertinent part, as follows:

B) Plaintiff testified that while Defendant was within

earshot of the telephone, Plaintiff told his oldest

daughter about the November 24, 1997 hearing on

November 23, 1997 and said daughter relayed the

information to Defendant. While at first denying

any knowledge of Plaintiff being in Tennessee

until after the November 24, 1997 hearing,

Defendant admitted being told that Plaintiff was in

Tennessee on November 23, 1997. It is

noteworthy that although the oldest child of these

parties resides with Defendant, said child did not

appear in Court to give supporting testimony for

Defendant's version of fact. Further, several

weeks after prior to the November 24, 1997

hearing date in an effort to schedule visitation on

November23, 1997, Defendant acknowledged that

she knew Plaintiff was coming into Tennessee

from Plaintiff's home in Texas on November 23,

1997. Plaintiff testified that the only times he

came to Tennessee was to pick up his son for longterm visits such as summer visitation and to come

to court on custody or divorce matters involving

Defendant. Plaintiff testified that he specifically

and personally told Defendant about the

November 24, 1997 court date about three weeks

prior to court on November 24, 1997.

 

 * * *

D) The Court finds that Defendant was not

completely forthright on several points in this

hearing and thus the Court must question

Defendant's credibility. On the other hand, the

Court fully credits Plaintiff's version of fact

regarding actual or constructive notice that
-4-

Defendant had regarding the November 24, 1997

notice. Further, at the November 24, 1997

hearing, counsel for Plaintiff checked with his

secretary who specifically remembered sending

notice of the November 24, 1997 hearing to

Defendant's address. Defendant confirmed that

the address that Plaintiff had on Defendant was

correct.

Timely notice of appeal was filed and counsel for each party filed a

proposed Rule 24(c) Statement of the Evidence with the proposed Rule 24(c)

statement of Robert Lee Anderson being filed March 13, 1998,

contemporaneously with a motion of Gregory D. Smith to withdraw as counsel.

This motion to withdraw as counsel was granted by the trial court by order

entered March 16, 1998.

Counsel for the appellant filed timely brief in this court and upon

failure of Robert Lee Anderson to brief the case, an order was entered in this

court July 13, 1998 that decision be made on the record and on the appellant's

brief, pursuant to Tennessee Rules of Appellate Procedure 29(c).

Upon consideration of the record, it was noted that the trial judge had

signed neither of the proposed Rule 24(c) statements and the case was remanded

on July 29, 1998 to the trial court with instructions for compliance with Rule

24(c) and (f) of the Rules of Appellate Procedure.

By order entered in the trial court on November 23, 1998, the trial court

adopted the Tennessee Rule of Appellate Procedure 24(c) statement filed by the

defendant/appellant, Rebecca Ann Anderson, and the case is now before this

court for disposition.

The Rule 24(c) statement of the defendant/appellant, having been

adopted by the trial court as the evidence in the case, the following represents the

evidence before the trial court relative to the notice issue.

4. Rebecca Ann Anderson could not, at that time,

afford an attorney to represent her, as Robert Lee Anderson
-5-

was seriously in arrears on child support and therefore she

was supporting the parties' three minor children alone.

Therefore, she filed a pleading on her own behalf which she

entitled "Counter Complaint" on the 9th day of July, 1997.

5. November 24, 1997, the Chancery Court for

Montgomery County, Tennessee, held a hearing on the

Petition for Change of Custody filed by Robert Lee

Anderson. No Notice of Hearing was ever sent to Rebecca

Ann Anderson advising her of that court Date, as required by

Rule 5 of the Tennessee Rules of Civil Procedure, and Local

Rule 13.01. At that hearing, the Chancery Court ordered that

Robert Lee Anderson, Jr. be placed in the physical custody

of his father, Robert Lee Anderson, with the parties still

having joint custody.

6. RebeccaAnnAndersonimmediately consulted an

attorney, Carrie W. Kersh, and retained her to seek to have

the above referenced Order set aside. Ms. Anderson used

money she had received by going through the Montgomery

County District Attorney's Office to secure payment of past

due child support from Robert Lee Anderson. Said Motion

was filed on November 25, 1997, and was incorrectly styled

"Motion to Set Aside Default Judgment", wherein the Court

was advised that Rebecca Ann Anderson had never been

notified of the hearing on November 24, 1997.

A hearing was held on the Motion to Set Aside on

December 16, 1997, at 1:30 P.M.. Rebecca Ann Anderson's

Motion was denied, even though there was no Notice of

Hearing in the Court file and counsel for Robert Lee

Anderson could not produce one. The Court accepted

Plaintiff counsel's argument that Ms. Anderson should have

known that the parties had Court, because that was the only

time Robert Lee Anderson ever came to Clarksville.

We have an anomaly. The granting or denial of the motion to set aside

the November 24, 1997 order rested within the sound discretion of the trial judge

and is not to be disturbed on appeal absent an abuse of discretion. Esstman v.

Boyd, 605 S.W.2d 237 (Tenn.App.1979).

The evidence before the trial court may be preserved either by a

transcript of the proceedings or by a statement of the evidence prepared in

accordance with Tennessee Rules of Appellate Procedure Rule 24(c). If no

record of the evidence is preserved for appellate review by either method, we
-6-

must conclusively presume that the evidence supported the action of the trial

judge. Sherrod v. Wix, 849 S.W.2d 780 (Tenn.App.1992).

In this case, the evidence before the trial court is preserved by Rule

24(c) statement. The findings of the trial judge on the question of notice as

reflected in the December 16, 1997 order, if supported by the evidence in the

record, would compel affirmance by this court on the basis that no abuse of

discretion occurred. The evidence in the Rule 24(c) statement, however, does

not support the findings of the trial judge as to notice set forth in the December

16, 1997 order. The evidence conclusively establishes that no notice as required

by Tennessee Rule of Civil Procedure 5 or Local Rule 13.01 was ever sent to Ms.

Anderson. The only other evidence in the record is the provision in the Rule

24(c) statement that "the court accepted plaintiff counsel's argument that Ms.

Anderson should have known that the parties had court, because that was the

only time Robert Lee Anderson ever came to Clarksville."

Given the state of the evidentiary record before this court, the action of

the trial court in denying the motion to set aside the November 24, 1997 order

was an abuse of discretion. Tennessee Dep't of Human Services v. Barbee, 689

S.W.2d 863 (Tenn.1985); Campbell v. Archer, 555 S.W.2d 110 (Tenn.1977).

The judgment of the trial court is reversed. The order of November 24,

1997 is vacated and the case is remanded to the trial court for trial of the issues

under the petition for change of custody filed June 18, 1997 and the answer and

counter-complaint filed July 9, 1997 and such other proceedings as the trial court

may deem appropriate.

Costs of this cause are assessed against Robert Lee Anderson.

__________________________________

WILLIAM B. CAIN, JUDGE
-7-

CONCUR:

___________________________________

BEN H. CANTRELL, P.J., M.S.

___________________________________

WILLIAM C. KOCH, JR., JUDGE