Facts: When Mother and Father divorced, the trial court approved their agreed parenting plan designating Mother as the primary residential parent for their two children.

When Father, an active-duty military member, was deployed, Mother had most of the parenting time. When Father was in Clarksville, he would have equal parenting time.

After the divorce, Mother and the children moved to Texas. Because of the move, Father could not exercise equal parenting time when he was not deployed.

Four years later, Mother petitioned to change the parenting plan to reduce Father’s parenting time to 80 days a year because of her relocation.

Father counter-petitioned to change custody on the grounds of Mother’s efforts to alienate the children from him.

After a trial, the trial court ruled that Father proved a material change in circumstances while Mother did not. The trial court further found that Father’s proposed parenting plan was in the children’s best interest and reduced Mother’s parenting time to 103 days.

Mother appealed.

On Appeal: The Court of Appeals affirmed the trial court.

When Mother appealed, she failed to provide a transcript or statement of the evidence. Instead, she filed a CD-ROM containing an audio recording of the trial.

Rule 24 of the Tennessee Rules of Appellate Procedure requires the appealing party to provide the Court of Appeals with a transcript or statement of the evidence that is a “fair, accurate, and complete account of what transpired with respect to those issues” being appealed.

Tennessee law is clear that, absent a transcript or statement of the evidence, there is a conclusive presumption there was sufficient evidence before the trial court to support its judgment.

The problem, however, is this conclusive presumption applies to the trial court’s factual findings about the proof at trial. Here, the trial court did not make detailed factual findings in its written order as required by Rule 52.01 of the Tennessee Rules of Civil Procedure, which requires a trial court’s written order to show the steps by which the trial court reached its conclusion on each factual issue.

The trial court’s failure to make findings of fact and conclusions of law does not automatically require reversal of the trial court’s decision. Instead, the appellate court may remand the case back to the trial court for more findings or independently review the evidence, depending on the circumstances.

The Court explained why it chose to conduct an independent review of the evidence:

Some considerations in this case certainly favor soldiering on to review the trial court’s decision. For example, the written order does contain some factual findings that underpin the trial court’s decision. And unlike other cases, it is clear which factors the trial court concluded held more weight….

Importantly, we also take judicial notice of the fact that the trial judge who presided over this case has recently retired. Thus, if we were to vacate the trial court’s judgment, it would be heard before a different judge. An entirely new trial may then be required….

Thus, remanding for further proceedings would only delay the stability that this Court has repeatedly emphasized is an important consideration for the lives of children….

But, of course, Mother’s failure to file a transcript or statement of the evidence means that we are largely unable to independently review the evidence to determine where the preponderance of the evidence lies. Thus, we are left with the question of whether the trial court’s or Mother’s deficiency strikes the fatal blow to appellate review in this case. Consequently, we must determine whether the proper remedy is to: (1) conclusively presume the trial court’s ruling is correct despite the lack of detailed factual findings; (2) vacate the decision of the trial court and remand, acknowledging that stability for the children may be delayed as a result; or (3) independently review the best interest issue with only what we can glean from the limited record on appeal, such as the exhibits to the trial.

One additional fact convinces us that the third option is the most apt: while Mother did not properly file a transcript or statement of the evidence, she did file a CD-ROM containing an audio recording of the trial proceedings…. [E]xcept in the limited circumstances outlined in Tennessee Supreme Court Rule 26, recordings of court proceedings are not permitted in lieu of transcripts or statements of the evidence….

[T]he Tennessee Rules of Appellate Procedure are to be construed to secure the just, speedy, and inexpensive determination of every proceeding on its merits. Accordingly, we are permitted to suspend the Tennessee Rules of Appellate Procedure in limited, appropriate circumstances[.]… Thus, [Tennessee Rule of Appellate Procedure 2] states that good cause to suspend all rules may exist when necessary to “expedit[e] decision on any matter.” Moreover, the Tennessee Supreme Court has held that Tennessee courts’ “jurisprudential rules” should be interpreted and applied in a way that enables appeals to be considered on their merits.

[A]t least one possible remedy in this case would result in considerable delay in these children’s lives. Another remedy would prohibit us from deciding this case on the merits simply because we do not have a proper transcript or statement of the evidence, despite the availability of what is undisputedly a fair and accurate record of what transpired in the trial…. Certainly, we do not condone Mother’s clear failure to comply with our rules. However, we must conclude that under the unique circumstances of this case, these competing interests compel us to exercise our discretion to consider the audio recording of the trial in order to decide this case on the merits without delay. We caution litigants, however, that we may not be so forgiving of the failure to comply with Rule 24 in the future.

In light of our ability to review this recording, which neither party disputes is an accurate reflection of the trial and includes the trial court’s oral ruling illuminating its reasoning, we will proceed to independently review the record to determine whether the trial court properly found that the children’s best interests were served by naming Father primary residential parent.

After reviewing the audio recording of the trial, the Court found ample evidence to support the trial court’s decision to change custody and affirmed the trial court’s judgment.

K.O.’s Comment: The Court denied Father’s request for attorney’s fees on appeal because he cited “only” the statute allowing a fee award when the appeal is “frivolous.”. The Court explained, “Father cited no other basis for an award of attorney’s fees in his brief. As such, we decline to award fees in this case.”

Because Father did not request attorney’s fees under Tennessee Code Annotated § 36-5-103(c), the Court was powerless to give him relief. Unfortunately, this is a common oversight that I’ve discussed many times before. Readers of this blog must take care to avoid this mistake.

Richardson v. Richardson (Tennessee Court of Appeals, Middle Section, September 17, 2021).

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