Facts: Husband and Wife, the parents of two children, divorced after 15 years of marriage.

After nine days of trial, the proof concluded in July. At the end of the proof, the trial court praised Wife for doing “an extraordinary job” adjusting to the changes brought on by the divorce and praised her vigilance and involvement in the children’s lives. The trial court specifically found the parents to be equally fit in terms of morality, physical health, mental health, and emotional fitness.

The next hearing occurred in August and addressed various posttrial issues, including the designation of the primary residential parent and decision-making authority. Unfortunately, wife did not attend because she was ill.

Husband’s counsel argued that since the trial court last heard proof one month earlier, Wife had blocked Husband’s phone number. Wife’s attorney objected to any testimony from Husband’s counsel. No evidence was presented on these issues. Still, the trial court took the allegations as proof of facts, as shown by the trial court’s statements.

The hearing resumed the next day. Wife was again absent, with her lawyer saying she was at a minor medical center because she was very ill. Wife’s counsel explained that Wife did not block Husband’s phone number, and the issue was caused by an account problem that had since been resolved.

The trial court found Wife to be an unreliable, unstable, deceitful, and manipulative person incapable of making good decisions on the children’s behalf.

The trial court granted Husband sole decision-making authority and named him the primary residential parent for both children.

Wife appealed.

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

It is well-established in Tennessee that the statements and arguments of counsel are neither evidence nor a substitute for testimony.

The Court found it impossible to reconcile the trial court’s findings at the end of the proof with its findings one month later after hearing only the arguments of counsel:

From our review of the record, the only intervening events between the trial court’s disparate findings concerning Wife’s parental fitness were the [two days of] hearings [in August]. The trial court was frustrated with Wife and questioned both the legitimacy of her absence from court and her counsel’s allegations that Wife’s telephone was not working properly. If these two matters concerned the trial court, it should have heard evidence and admitted proof on the same, but it did not do so. Rather, the trial court relied on the statements of Husband’s counsel as evidence to support Husband’s allegations that Wife blocked Husband’s telephone number or that Wife blocked all telephone numbers after the trial. We conclude that the trial court’s findings were predicated on statements of the parties’ counsel, not on sworn testimony from the parties themselves or any other such evidence, e.g., an affidavit from Verizon explaining why Wife’s telephone number was restricted. We reiterate and emphasize that the trial court never reopened proof during the August hearings. Rather, it is clear that the trial court relied on statements of Husband’s counsel in lieu of proof. This was an error of law and an abuse of discretion as it is well-established that statements and arguments of counsel are neither evidence nor a substitute for testimony.

On our review of the record, no such evidence was proffered to show that Wife blocked Husband from contacting her or that there was ever an emergency concerning the children where Wife was unreachable. To the contrary, the evidence showed that Wife had been reachable during multiple difficult situations involving the children.

We conclude that there is clear and convincing evidence to undermine the trial court’s credibility finding. On this Court’s review, the trial court made no credibility findings in its July oral ruling. According to the record, the credibility findings the trial court made in August were predicated on the statements of the parties’ counsel rather than on evidence. Despite the lack of evidence, the trial court found that “Wife’s explanation for providing an inoperable telephone number to Husband [was] not credible.” Similarly, despite not hearing any testimony concerning Wife’s alleged illness, the trial court found “Wife’s explanation for her absence in court [was] not credible.” The trial court’s reliance on statements from the parties’ counsel as proof was error, and the trial court abused its discretion when it made findings predicated on such statements.

Similarly, after reviewing the evidence and findings for all the statutory best-interest factors, the Court concluded the trial court abused its discretion in designating Husband as the primary residential parent, finding that Wife had been the primary caretaker, the younger child preferred to stay at Wife’s residence, and the child is intelligent, emotionally stable, well adjusted, and is excelling in school. The trial court’s designation of Husband as the primary residential parent was reversed, and Wife was given that designation.

The Court also reversed the trial court’s decision to vest Husband with sole decision-making authority, awarding Wife sole decision-making authority after consultation with Husband.

K.O.’s Comment: (1) The opinion says the trial occurred on May 29, 30, 31, June 3, 27, 28, and July 1, 2, and 3, ending in the early hours of July 4. I once had a judge keep us in the courtroom until the trial concluded after 10 PM. Going into the early hours of the next day takes things to a whole different level.

(2) Tennessee’s appellate courts impose word limits on the length of attorney’s briefs, and for good reason. This opinion is 78 pages long, single-spaced. While there were complex issues, the length of this opinion could have easily been cut in half. If the appellate courts want lawyers to read these opinions, they must work harder to emphasize brevity and concise writing. There are several helpful and informative parts of this opinion, but almost no one will ever see them because of the opinion’s extraordinary length. Perhaps the appellate courts should strive to stay within a reasonable word limit.

Source: Waddell v. Waddell (Tennessee Court of Appeals, Western Section, March 14, 2023).

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