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287 Ga. 358

S10F0130. HOLMES v. ROBERSON-HOLMES. HUNSTEIN, Chief Justice. 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's and Husband's counsel appeared, the trial court denied the motion and expressly based its ruling
The trial court expressly noted that it heard evidence from Wife and her counsel at this hearing in its June 2009 order awarding attorney fees to Wife. There is no transcript of this hearing in the record. 2
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on "consideration of all matters of record." As noted above, Husband chose not to have the proceedings of the motion hearing transcribed. Husband filed an application for discretionary appeal to this Court in which he argued that the trial court erred by denying his motion because he was "providentially prohibited from attending the trial of his divorce case when he was hospitalized out of state," relying on Moore v. Moore, 211 Ga. 233 (85 SE2d 12) (1954) (verdict and judgment of divorce set aside where evidence presented to court showed that wife was unable to attend final hearing because she and her child were quarantined for illness). Husband attached the affidavits from the Alabama health care professionals to his application. While nothing in his application alerted this Court to the fact that the hearing on his motion had not been transcribed, it is well established that a party need not attach a transcript to an application if error by the trial court can be established without the transcript or where the parties agree to the events that transpired. Harper v. Harper, 259 Ga. 246 (378 SE2d 673) (1989). Wife was proceeding pro se at the time she filed a response to Husband's application. Although Wife apparently did not understand the legal significance of the lack of a transcript and bring its absence to the Court's attention, she did challenge Husband's factual assertions
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that a medical emergency prevented him from attending the trial. Inter alia, she claimed that Husband had been "seen in six different facilities and numerous test and doctor exams"; that he has "a pattern [of] checking himself in the hospital with false Complaints. . . . All this just to make excuses for court"; and that on November 10, 2008 "again [Husband] made a decision to check himself into the Hospital with the same complaints he had previously, signed consent for the anesthesia for same test he had that showed nothing, and he made a decision to stay hospitalized and miss his court date." Although her response was notarized, it contained no explicit language of verification and the medical documents she attached to support her claims did not reflect that they were properly authenticated or had otherwise been admitted as evidence before the trial court. We granted Husband's application pursuant to our Pilot Project, under which all final judgments in divorce and alimony cases will be automatically granted unless the application is found to be frivolous by a majority vote of the Court. Husband's application was accompanied by his counsel's certificate, including the language that they "have a good faith belief that this application has merit, and that it is not filed for the purpose of delay, harassment or embarrassment." However, when the record in Husband's appeal was docketed
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in this Court, it became apparent that no transcript of the motion hearing was included and this Court ascertained through the superior court clerk's office that no record of the proceedings was ever prepared. See generally Damani v. State of Ga., 284 Ga. 372 (2) (667 SE2d 372) (2008) (within appellate court's discretion to invoke OCGA

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