Appellant John Holmes “Husband” appeals from the denial of his motion for new trial and to set aside the divorce judgment, which was entered after an untranscribed trial at which he did not appear. Husband claims that the trial court erred by denying his motion because he had evidence that established the existence of providential cause for his failure to appear at the divorce trial. Because Holmes chose not to have the motion hearing proceedings transcribed, however, we apply the presumption of regularity and thus conclude that evidence must have been adduced at the motion hearing to support the trial court’s ruling. Accordingly, we affirm. The record establishes that appellee Janette Roberson-Holmes “Wife” filed a complaint for divorce in September 2007 alleging that her marriage to Husband was irretrievably broken. Husband answered and counterclaimed for custody of the couple’s minor child. Although Husband was earlier represented by a succession of attorneys, he was pro se at the time of the November 12, 2008 trial. It is uncontroverted that Husband had been given proper notice of the trial and that neither he nor any attorney on his behalf made an appearance.
Husband then filed a pro se motion for new trial. The trial court denied the motion after a hearing at which Husband did not appear and at which evidence from Wife and her counsel was presented.1 However, because the final judgment in the divorce action had not yet been filed, after its entry in January 2009 nunc pro tunc November 12, 2008, the trial court entertained a second motion for new trial that was filed by counsel for Husband. The verified motion for new trial and to set aside the judgment was based on affidavits from health care professionals averring that Husband had been admitted for emergency medical treatment at a hospital in Alabama on November 10, 2008; that a nurse at the hospital on behalf of Husband contacted the court prior to the divorce trial to inform it of Husband’s condition; and that Husband underwent a medical procedure requiring general anesthesia on the day of the trial. While these affidavits by themselves appear compelling, the record reflects that, after the hearing held in regard to Husband’s motion at which both Wife and Husband’s counsel appeared, the trial court denied the motion and expressly based its ruling on “consideration of all matters of record.” As noted above, Husband chose not to have the proceedings of the motion hearing transcribed.
