ROBERT LEE ANDERSON,          )
                              )
     Plaintiff/Appellee,      )
                              )
                                     Appeal No.   FILED
                                     01-A-01-9802-CH-00082
v.                            )                   February 19, 1999
                              )      Montgomery Chancery
REBECCA ANN ANDERSON,         )      No. 92-71-106Cecil Crowson, Jr.
                                                 Appellate Court Clerk
                              )
     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
                              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

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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
               November 23, 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 long-
               term 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


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               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


                                        -4-
         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.     Rebecca Ann Anderson immediately 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


                                       -5-
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



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CONCUR:


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


___________________________________
WILLIAM C. KOCH, JR., JUDGE




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