                  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.


       1
         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       "MEMORANDUM OPINIO N," shall not be published, and shall not be cited or relied on for any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.
         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




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