Children’s Private Testimony Contributes to Reversal in Crossville, Tennessee Divorce: Colvard v. Colvard

July 14, 2021 K.O. Herston 0 Comments

Facts: Father and Mother, the parents of seven children (!!!), divorced after 16 years of marriage.

The parents agreed that Father would be the primary residential parent of the oldest child (then 17 years old) but disagreed about the other six children.

The trial judge interviewed the six younger children in the judge’s chambers for about 10 minutes. Neither the parents, lawyers, nor the court reporter was present during this interview.

The trial court designated Mother the primary residential parent of the six younger children and limited Father’s parenting time to every other weekend.

There was no transcript of the trial or the judge’s interview of the children. Instead, the trial court approved a statement of the evidence confirming that the children testified in the judge’s chambers but providing no detail as to the substance of their testimony.

Father appealed.

On Appeal: The Court of Appeals vacated the trial court’s judgment.

Tennessee courts have broad discretion in determining whether they should hear the testimony of the minor child. Trial judges may interview children away from the courtroom setting if they consider it in the child’s best interest. However, if a Tennessee judge elects to follow this procedure, the judge must examine the child in the presence of attorneys for each side. In order to have a complete record on appeal, the transcript of the children’s testimony prepared by a court reporter must be filed, or a statement of the evidence if there is no transcript.

The Court found itself unable to review the propriety of the trial court’s custody decision:

[T]he “statement of the evidence” is comprised of mere procedure and does not indicate the substance of the parties’ testimonies. In other words, there is nothing in the record that would allow this Court to review the actual evidence taken in the trial court proceedings. All we know from the “statement of the evidence” is that the children were interviewed in camera without a court reporter or attorneys, and the parties’ testified under oath in open court where they were cross-examined. We do not know what the testimony was.

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From its order, we know that the trial court considered the in camera interviews with the children in reaching its custody determination, i.e., the order specifically states that, “After hearing testimony of the parties, arguments of counsel, in camera interview with the children, and considering the record as a whole, the Court found ….” The problem, however, is that we have no idea what evidence was adduced during the in camera interview…. [T]he trial court merely states that it considered all the factors and found them to weigh equally between the parties with the exception of two, which weighed in Mother’s favor. However, the trial court failed to reference any fact or proof to support its conclusion.

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Here, the trial court’s order sets out its ultimate conclusion but provides no information from which this Court can discern the trial court’s reasoning. Furthermore, the “statement of the evidence” is of no assistance because, like the trial court’s order, it fails to include any of the actual evidence adduced at the hearing or in camera.

The trial court’s judgment was vacated and remanded with specific instructions for the trial court to comply with Rule 52.01, which requires trial courts to make specific findings of fact and conclusions of law.

Colvard v. Colvard (Tennessee Court of Appeals, Eastern Section, July 1, 2021). If you found this helpful, please share it using the buttons below.

Children’s Private Testimony Contributes to Reversal in Crossville, Tennessee Divorce: Colvard v. Colvard was last modified: July 12th, 2021 by K.O. Herston

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