# FILED

February 19, 1999 Cecil Crowson, Jr. Appellate Cou rt 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/Appel

lant. )

)

COURT OF APPEALS OF TENNESSEE

APPEAL FROM THE CHAN CERY COURT FOR MONTGOMERY COUNTY AT CLARKSVILLE, TENNESSEE

THE HONORABLE CAROL A. CATALANO, CHANCELLOR

ROBERT LEE ANDERSO N, Pro Se 417 Windmill D

rive Copperas Cove, T

exas 76522

CARRIE KERSH Kennedy Law Firm 127 South Third Street Clarksville, Te

nnessee 37040 ATTORNEY FOR DEFENDANT/APPELLANT

REVERSED AND REMANDED

WILLIAM B. CAIN, JUDGE-2- 

# OPINION

This is an appea l from the action of the trial court in refusing to set aside a change of custody order.

RobertLee And erson and Rebecca Ann Anderson wer

e divorced on J uly 17, 1993 with joint c ustody being awa

rded of three m

inor children an d appellant, Rebecca Ann Ande rson, being designate

d as prima ry physical custodian.

An agreed ord er was entered in April of 1996 changing custody of RobertLee Anderson, J

r. from his m

other to his father e

ffective for the period June 15, 1996 to June 15, 1997.

On June 18, 1997, Rober t Lee Anderson fi

led 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-com

plaint seeking arre

arages in child suppor

t.

The record contains

a notice dated September 12, 1997 from Gregory D. Smith, attor

ney for Robert

Lee Anderson, t

o Rebecca Ann Ande

rson, pro se that the case would be tried o n the merits on November 7, 1997 beginning at 9:00 a.m. Appar

ently no action w

as taken on Novem

ber 7, 1997 and

the record reflects no furthe

r notice to Rebecc a Ann Anderson.
A hearing on the petition was held November 24, 1997 with Gregory D. Smith appearing for Robert Lee An derson an d Rebecca Ann And erson appearingneither pro se nor by counsel. At this hearing, the c hange of custody petition was susta

ine d and permanent

custody transfe

rred from Re

becca Ann Anderson to Robert L

ee Anderson.

On the following day , November 2 5, 1997, Rebecca

Ann A nd erson, acting through attorney Carrie W. K ers h, filed a "mo tion to set aside defa

ult-3-

judgment" alleging that Rebec ca Ann Anderson ha

d no notice of any hearing to be held on Novembe

r 24, 1997 and her fir

st knowledge

of the hearing

was when Robert Lee Ande

rson, at 8:00

in the evening

of November 24, 1997, presented her with a copy of the order an d told her to "read it and weep."

A hearing on the m

otion to set aside the j udgment was set for December 16,

1997 at which tim

e all parties appea

red.

This hearing resulted i

n a final order of January 5, 1998 resulting in findings by the tri

al court, in pertin

ent part, as follow s: B) Plaintiff

testified that while Defendant was within earshot of t he tel ephone, Plaintiff told his oldest daughter about the Novem ber 24, 1997 hearing on November

23, 1997 and said daughter relay ed the information

to Defendant. While at first denying any knowledge of Pl aintiff being in Tennessee until after the Novem

ber 24, 1 997 hearing, Defendant

admitted being

told that Plaintiff was in Ten nessee on November 23, 1997. It is noteworthy

that although the

oldest child

of these parties resides with Def

endant, sa

id c hild did not appear in Court to give supporting testim ony for Defendant's version of fact. Further, several weeks after prior to the No vember 24, 1997 hearing date in an effort

to schedule visitation

on November 23 , 1997, Defendan t acknowledged that she kn e w Plaintiff was coming into Tennessee from Plaintiff's home in Te xas on November 23, 1997. Plaintiff tes ti fied 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 matte

rs involving Defendant. Plaintiff testified that he spec ifica lly a nd personally told D efendant about th

e November 24,

1997 court date about

three weeks prior to court on Nove

mber 24, 1997.
* * * D) The Court finds that D efendant was not completely

forthright on severa

l points in this hearing and thus the Court must question Defendant's cr edi bility. On the other hand, the Court fully credits Plaintiff's version of fact regardin g ac tual or constructive notice that-4- Defendant

had regarding the N

ovember 24, 1997 notice. Further, at the November 24, 1997 h e aring, counsel for Plainti ff checked with hi s secretarywho specifically remembe

red sending notice of the November 24,

1997 hearing to Defendant's address. Defendant confirmed that the address that Plaint

iff had o n De fendant was correct.

Timely notice of appeal was filed and counsel f or e ach party file

d a proposed Rule 24(c) Statem ent of the Evidence

with the pr

o posed Rule 24(c) statement of Robert Lee A

nderson being

file d March 13, 1998, contemporaneou sly with a motion of Gregory D. Smith to withdr aw as counsel. This mo tion t o withdraw as counsel was granted by the trial court by order entered March 16,

1998.

Counsel for the appellant f iled timely

brief in this court a

nd upon failure of Robert Lee A

nderson to brief the case, an order wa s entered in t his courtJuly 13, 1998 that decision be made o n the reco rd and on the appellant's brief, pursuant to Tennessee Rules of Appellate Procedure 29(c).
Upon consideration of the record, it was noted thatthe 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 fo r c ompliance wit h Rule 24(c) and (f) of the Rules of Appellate Procedure.
By order entered in th

e trial court on Nov

ember 23, 1998,

the trial court adopted the Tennessee Rule of Appellate Proc

edure 24(c) state

ment filed by the defendant/appellan

t, Rebecca Ann Anderson, and the case is now be fore this court for disposition.

The Rule 24( c) s tatement of the defendant/appellant, having been adopted by the trial cour

t as the evidence in

the case, the foll

owing represents

the evidence before the trial court relative to the notice issue.

4. Rebecca

An n Anderson could not, at that time, afford an attorne

y to represent her, as Robert Lee Anderson-5- was seriously in arr

ears on child support a

nd therefor

e sh e w as sup porting the parties' three minor children alone. Therefore, she filed a pleading on her own behalf w hich she entitled "Counter C

omplaint" on the 9t

h day of July,

1997. 5. November

24, 1997, the Chance

ry Court for MontgomeryCounty, Tenne ssee, held a he aring on the Petition for Change of Custo dy 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 RobertLee Anderson, J

r. be placed in the

physical custod y of his father, R obert Lee Ander son, with the parti

es still having joint c ustod y. 6. Rebecca Ann Anderson immediate lycon sulted a n attorn ey, Carrie W. Ker sh, and retained her to seek to have the above referenced Order set aside. Ms. Anders o n used money she had received b

y g oing through the Montgomery County District Attorney's Office to secure paym

ent of past due child support from Robert Lee Ander son. Said Motion was filed on November

25, 1997, and was in

correctly styled "Motionto SetAside Default Jud gment", wher

ein the Court w as advised that Rebecca Ann Anderson had never bee n notified of the hear

ing 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 tho ugh there was no Not ice of Hearing in t he Court file and counsel for Robert Lee Anderso n could not produce one. The Court accepted Plaintiff counsel's argument that

Ms. Anderson should h

ave 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 w

ithin the sound discreti

on of thetrial judge and is not to be disturb ed on appeal absent an abuse of discretio n. Esstman v. Boyd , 605 S.W.2d 237 (Tenn.App.1979).

The evidence before t he tria l court may be pres erved e ither b y a transcript of the proceedings or b y a statem ent of the evidence p

repared in accordan ce with Tennessee Rules of Appellate Proce

dure Rule 24(c). If no
recor d of the evidence is pre served for appellate r eview by either method, we-6-

must conclusively presume that the ev idence supported the act ion of the trial judge. Sherrod v. Wix , 849 S.W.2d 780 (Tenn.App.1992).

In this case, the evid

ence before the tr

ial cou rt is pr eserved by Rule 24(c) s tatement. T

he findings of the tri

al judge on the questi

on of notic e a s ref lected in t he December

16, 1997 order, if supported by the e vidence 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 eve r sent to Ms. Ande r son. The only other e vidence in the recor

d is the provision in the R ule 24 (c) st atement 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 ev er came to Clarksville."

Given the state

of the evidentiary

record before thi s court, the action of the trial court i n 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 (T

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

The judgment

of the trial court i s reversed. The order of Novem

ber 24, 1997 is vacated and the case is rem anded 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-compl

aint filed July 9, 199

7 andsuch other proceedi

ngs as the trial court may deem appropriate.

Costs of this cause a

re assessed against

Robert Lee Ande

rson.

__________

__________

_____________

_ WILLIAM B. CAIN, JUDGE-7-

CONCUR:

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

__________________________________ _ WILLIAM C. KOCH, JR., JUDGE