Facts: Father petitioned for custody of his child. Mother moved for the trial court to recuse itself.

A hearing was held, and the trial court denied Mother’s petition for recusal. Mother’s counsel expected the custody dispute would be heard at a later date. Instead, the trial court relied on evidence taken during earlier hearings on Mother’s petition for an order of protection and Mother’s petition for a temporary restraining order and directed Father’s attorney to prepare the final order as to custody. (To avoid the duplication of cumulative evidence, the parties agreed that certain proof from those hearings could be considered proof in the custody dispute.)

When Mother asked for a formal hearing on custody, the trial judge, who was set to retire shortly thereafter, remarked, “If you could come up with an eight-day week, we’ll consider it.” He then commented that he would be the one to issue a final order, stating, “There’s no one else!”

Without the presentation of additional evidence, the trial court directed Father’s counsel to prepare the order. The trial court signed the order prepared by Father’s counsel that designated Father as the child’s primary residential parent.

Mother appealed.

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

Mother argued the trial court’s final order was not a product of its independent judgment.

The practice of letting parties prepare orders with proposed findings of fact and conclusions of law is allowed but often cautioned against. One of the main concerns for this practice is the potential for overreaching and exaggeration by attorneys preparing findings of fact when they have already been informed that the judge has ruled in their favor.

A trial court’s adoption of a party-prepared order may be reversible error when the findings do not accurately reflect the trial court’s decision, and the record must not create doubt that the order represents the trial court’s own deliberations and decision.

After reviewing the record, the Court could not discern whether the trial court made its own independent findings of fact and conclusions of law:

While asking parties to prepare orders is not, in and of itself, necessarily problematic, here the record does not reflect that the trial court provided any independent decision for Father’s order. Moreover, the record indicates that the trial court later signed and entered Father’s order without any modification. While our review of the record reflects that the trial court instructed Father’s attorney to include a finding of “codependency” and to draft the order according to the relevant statutory factors, no other guidance or instructions are given. Moreover, the record reflects that the trial judge did not render oral rulings as to the findings it wished to make regarding the referenced statutory factors, nor did it actually even provide a specific ruling as to which party should be designated as the primary residential parent. Insofar as the transcript admits, the judicial task of providing a basis for the court’s ruling (itself then technically un-pronounced) was essentially delegated to Father’s attorney.

We believe this exchange between the trial court and Father’s attorney fairly crystallizes our concern:

[Judge]: Again I want you – in consulting with [Child’s guardian ad litem] – I want you to tack on a Finding of Fact, taking up the points. And then issue an Order – of a Parenting Plan. And get that ready for me, I can sign it as soon as possible…

[Father’s Counsel]: So, Your Honor, I’m sorry. I just want to be clear. What do you want us to do – or me to do?

[Judge]: I want you to draft an Order – a Final Order, with a Parenting Plan – a Finding of Fact with a Parenting Plan. And I want it to closely mimic the state – the Tennessee Statute as is possible, which I think has been your position.

Suffice it to say, based on our review of the record, there is serious doubt that the order underlying this appeal does not in any respect represent the trial court’s independent judgment. While in certain cases of this nature we remand the case with instructions for the trial court to issue a new order reflecting the trial court’s own deliberations and decision, here, we take judicial notice that the trial judge who signed the order at issue has since retired from the bench. Given the unusual and questionable posture of this case, we find it appropriate, as we have in other appeals, to vacate the trial court’s judgment and remand the case for a new trial….

Source: Sykes v. Cox (Tennessee Court of Appeals, Middle Section, December 20, 2023).

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