On appeal from The Chancery Court for Gibson County ">

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Date: 06-27-2022

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Case Number: W2021-01004-COA-R3-CV



George R. Ellis,



On appeal from The Chancery Court for Gibson County

Plaintiff's Attorney: Andrea D. Sipes

Defendant's Attorney:

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Nashville, TN - Divorce lawyer represented appellant with a arguing that the classifificati0n the marital residence as marital property is incorrect.

This case involves the dissolution of the 19-year-marriage of Sheryl Haynes
(“Wife”) and Terry Haynes (“Husband”). Because the record contains no transcript of

1 Rule 10 of the Rules of the Court of Appeals of Tennessee provides:
This Court, with the concurrence of all judges participating in the case, may affirm, reverse
or modify the actions of the trial court by memorandum opinion when a formal opinion
would have no precedential value. When a case is decided by memorandum opinion it
shall be designated “MEMORANDUM OPINION”, shall not be published, and shall not
be cited or relied on for any reason in any unrelated case.
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evidence or statement of the evidence, the facts recounted herein are taken from the
pleadings, exhibits, and orders provided in the technical record.
On April 30, 2019, Wife filed a complaint for divorce alleging the grounds of
irreconcilable differences and inappropriate marital conduct. The trial court heard Wife’s
complaint on September 3, 2020, and entered a final decree of divorce on April 9, 2021,
granting Wife an absolute divorce, classifying the parties’ property, and dividing the
marital estate. The only item of property relevant to this appeal is the marital residence.
Although Husband purchased the property prior to the marriage, the court classified the
residence as marital property and ordered the property be sold; any proceeds remaining
after paying off the mortgage and paying $10,018 for Wife’s attorney fees were to be
equally divided between the parties. The court classified the residence as marital property
because it concluded that the property “ha[d] undergone transmutation” based on the
following factual findings: (1) “the property was refinanced in 2003 and Wife’s name was
added to the mortgage on the property”, and (2) “Wife made substantial contributions to
the household and to the home itself by paying for upgrades and renovations.”
After dividing the marital estate, the court considered the alimony factors
enumerated in Tenn. Code Ann. § 36-5-121(i) and awarded Wife alimony in futuro in the
amount of $300 per week based on the following findings of fact:
a. The Wife is a disabled individual.
b. This marriage is a long-term marriage being 19 years at the time of
c. The Wife is 63 years of age and the Husband is 65 years of age.
d. The Husband is capable of working and earning an income sufficient
to maintain his marital standard of living while paying support to
e. The Wife is incapable of maintaining her marital standard of living
without support from the Husband.
f. The Husband has the financial ability to provide spousal support to
g. The Wife is in need of spousal support.
h. The Husband has willfully failed to comply with previous orders of
this Honorable Court.
i. That the Wife cannot be rehabilitated given her age and disability.
j. That Husband is not a credible witness and the Court gives greater
weight to the testimony of Wife as the Court finds her to be credible.
k. The Wife lives with a third party that is a platonic friend of Wife.
l. The Wife is forced to have a roommate due to Husband’s failure to
pay his alimony pendente lite as previously ordered by the Court.
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m. The third party living with Wife is not contributing to Wife’s support
nor is the Wife contributing to the support of the third party.[2]
n. The Wife’s monthly income is One Thousand One Hundred Fourteen
Dollars ($1,114.00) paid by Social Security and she has no other
o. The Husband is employed . . . making an approximate gross [monthly]
income of Three Thousand Four Hundred Sixty-Six Dollars
p. The Husband has the means and ability to pay spousal support.
Because Wife’s attorney drafted the final decree rather than the trial court doing so,
Husband filed a motion requesting that the trial court issue its own findings of fact and
conclusions of law so as to satisfy the requirement that the final decree reflect the trial
court’s independent judgment. In the motion, Husband also asserted that the case should
be dismissed pursuant to Local Rule 17(A) because Wife’s attorney failed to file the final
decree within fourteen days of the hearing on Wife’s divorce complaint. The trial court
denied Husband’s motion, and Husband’s attorney prepared an order reflecting the court’s
ruling. The order included the following statement:
[T]he Findings of Fact and Conclusion[s] of Law as set forth in [the final
decree prepared by Wife] are adopted by the Court even though TRCP Rule
52.02 states that the Court shall set forth its Findings of Fact[] and
Conclusion[s] of Law and not just accept the Attorney’s findings of Facts
and Conclusions of Law . . . .
The court entered the order on August 13, 2021, and Husband filed his notice of appeal
approximately two weeks later.

In paragraph 11 of the final decree, the court expressly found that “Wife has rebutted the presumption
in Tennessee Code Annotated § 36-5-121(f)(2)(B) regarding third party contribution and is entitled to an
award of alimony in futuro.”

3 Two days after Husband filed the notice of appeal, the trial court entered another order regarding the
court’s denial of Husband’s motion for findings of fact and conclusions of law and its denial of his motion
for dismissal of the case pursuant to Local Rule 17(A). Wife’s attorney prepared this order, and it did not
“affect[] the ‘legal rights and obligations’” that were “‘plainly and properly settled with finality’” in the
August 13, 2021 order. Ball v. McDowell, 288 S.W.3d 833, 837 (Tenn. 2009) (quoting FTC v. MinneapolisHoneywell Regulator Co., 344 U.S. 206, 211-12 (1952)). Therefore, we consider the August 13, 2021 order
to be the final judgment in this case. See id.
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On appeal, Husband presents several issues4
for our review that we consolidate and
restate as follows: (1) whether the trial court erred in not dismissing the case pursuant to
Local Rule 17(A), (2) whether the final decree should be vacated because it did not reflect
the trial court’s independent judgment, (3) whether the trial court abused its discretion in
classifying the parties’ residence as marital property, and (4) whether the trial court erred
in awarding Wife alimony in futuro.
Husband’s appellate brief focuses primarily on the trial court’s classification of the
parties’ residence as marital property and its award of alimony in futuro to Wife. In each
of these areas, a trial court’s decision is fact-dependent and involves consideration of many
factors. Gonsewski v. Gonsewski, 350 S.W.3d 99, 105 (Tenn. 2011); Kinard v. Kinard,
986 S.W.2d 220, 230 (Tenn. Ct. App. 1998). Thus, a trial court is “vested with a great deal
of discretion,” Eldridge v. Eldridge, 137 S.W.3d 1, 12 (Tenn. Ct. App. 2002), when making
these decisions, and “[a]ppellate courts decline to second-guess a trial court’s decision
absent an abuse of discretion.” Gonsewski, 350 S.W.3d at 105. A court abuses its
discretion when it “causes an injustice by applying an incorrect legal standard, reaches an
illogical result, resolves the case on a clearly erroneous assessment of the evidence, or
relies on reasoning that causes an injustice.” Id. (citing Wright ex rel. Wright v. Wright,
337 S.W.3d 166, 176 (Tenn. 2011); Henderson v. SAIA, Inc., 318 S.W.3d 328, 335 (Tenn.

Because the trial court decided this matter without a jury, we review the trial court’s
findings of fact de novo with a presumption of correctness unless the evidence
preponderates otherwise. TENN. R. APP. P. 13(d); Chandler v. Chandler, No. W2010-
01503-COA-R3-CV, 2012 WL 2393698, at *5 (Tenn. Ct. App. June 26, 2012). We review

4 The specific issues identified by Husband are as follows:
Issue One: Are local rules set forth by the Chancellor that state something shall occur and
then set aside by that Chancellor allowed?
Issue Two: Tennessee Rules of Civil Procedure Rule 58 sets forth how an[] Order can be
entered, therefore, can the entry of an Order be changed by a Plaintiff’s attorney?
Issue Three: Does a residence in the Defendant’s name only become marital property by
undergoing “transmutation”?
Issue Four: Is the ability to pay alimony based on conjecture?
Issue Five: The Plaintiff purchased property with her live-in friend in Alabama but the
statement by Plaintiff is he is only a platonic friend, does this violate the statute?
Issue Six: Does Tennessee Rules of Civil Procedure Rule 52.02 a rule the Trial Judge can
ignore or should he state the Findings of Fact[] and Conclusions of Law as to these facts?
Issue Seven: Does Tennessee Code Annotated Section 36-5-121(f)(2)(B) place the burden
to rebut the presumption other than by stating it is my platonic friend?
Issue Eight: Does the purchase of a house in another state show that the person who
purchased the house with Plaintiff is more than a friend?
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a trial court’s conclusions of law de novo without a presumption of correctness. Chandler,
2012 WL 2393698, at *5.
I. Local Rule 17(A).
We begin with Husband’s argument that the case should have been dismissed
pursuant to Local Rule 17(A) for the Chancery Court of the Twenty-Eighth Judicial
District, which provides as follows:
Unless the Court directs otherwise, attorneys for prevailing parties will
prepare orders for entry by the Court. All orders must be received by the
Clerk and Master within fourteen days on which the ruling is made by the
Court, in compliance with Rule 58 of the Tennessee Rules of Civil
Procedure. If the order is not filed within the time limit, an Order Dismissing
the Case for Failure To Prosecute shall be entered.
_revised_2021mar10.pdf (last visited May 12, 2022). Due to Wife’s attorney’s failure to
file the final decree within fourteen days of the trial court issuing its ruling, Husband
contends that Local Rule 17(A) mandated that the court dismiss the case for failure to
prosecute. We must respectfully disagree.
A court has inherent power “to make, enforce, and relax rules of practice; a rule is
an instrument of the court used to expedite the business of the court.” Osgood Co. v. Bland,
141 S.W.2d 505, 506 (Tenn. Ct. App. 1940). Due to this inherent power, we have held that
a trial court “‘is not restricted in the administration of its rules in the absence of a clear
abuse of discretion on the part of the court to the injury of a party,’” and “‘[t]his Court will
not reverse a Trial Judge for waiving a local rule absent the clearest showing of an abuse
of discretion and that such waiver was the clear cause of a miscarriage of justice.’” Craven
v. Dunlap, No. 02A01-9202-CH-00027, 1993 WL 137584, at *3 (Tenn. Ct. App. May 3,
1993) (quoting Osgood, 141 S.W.2d at 506; Killinger v. Perry, 620 S.W.2d 525, 525 (Tenn.
Ct. App. 1981)). Thus, for Husband to succeed on this issue, he has the burden of showing
that the trial court’s waiver of Local Rule 17(A) constituted an abuse of discretion that
caused a miscarriage of justice or other injury to him. Husband points to nothing in the
record that would show either that the trial court abused its discretion by waiving Local
Rule 17(A) or that the waiver caused a miscarriage of justice or any other injury. Indeed,
he makes no assertion whatsoever that he suffered any injustice from the trial court’s
waiver of Local Rule 17(A), and we find nothing in the record showing any injustice
occurred. Because Husband failed to carry his burden, we conclude that the trial court did
not abuse its discretion in waiving Local Rule 17(A) to permit Wife to file the final decree
later than fourteen days after the court issued its ruling.
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II. Property classification and alimony.
For reasons that will be discussed, we are unable to analyze the merits of the
property classification and alimony issues raised by Husband. The standard of review
applicable to these issues limits us to considering “those facts established by the evidence
in the trial court and set forth in the record and any additional facts that may be judicially
noticed or are considered pursuant to Rule 14.”5
TENN. R. APP. P. 13(c). Therefore, when
reviewing a trial court’s decision under this standard of review, it is of the utmost
importance that we be provided with either a transcript of the proceedings in the trial court
or a statement of the evidence that complies with Tenn. R. App. P. 24.
6 The appellant bears
the burden of providing this Court with a transcript or statement of the evidence from which
we can determine if the evidence preponderates against the trial court’s factual findings.
Coakley v. Daniels, 840 S.W.2d 367, 370 (Tenn. Ct. App. 1992); see also Greer v. Cobble,
No. E2015-01378-COA-R3-CV, 2016 WL 2898001, at *4 (Tenn. Ct. App. May 11, 2016).
Husband has failed to carry this burden. Accordingly, we do not have a fair, accurate, and
complete account of what transpired with respect to the issues he raises, leaving us no way
to evaluate his assertion that the evidence contradicted the trial court’s findings. See Britt
v. Chambers, No. W2006-00061-COA-R3-CV, 2007 WL 177902, at *3 (Tenn. Ct. App.
Jan. 25, 2007) (“Without a transcript of statement of the evidence, the appellate court
cannot know what evidence was presented to the trial court, and there is no means by which
we can evaluate the appellant’s assertion that the evidence did not support the trial court’s
decision.”). “In the absence of a transcript or statement of the evidence, there is a
conclusive presumption that there was sufficient evidence before the trial court to support
its judgment, and this Court must therefore affirm the judgment.” Coakley, 840 S.W.2d at
370. That is to say, “‘we must conclusively presume that every fact admissible under the

5 Rule 14 applies to post-judgment facts, and “[c]onsideration of such facts lies in the discretion of the
appellate court.” TENN. R. APP. P. 14(a). The rule states that “[w]hile neither controlling nor fully
measuring the court’s discretion, consideration generally will extend only to those facts, capable of ready
demonstration, affecting the positions of the parties or the subject matter of the action such as mootness,
bankruptcy, divorce, death, other judgments or proceedings, relief from the judgment requested or granted
in the trial court, and other similar matters.” Id. None of Husband’s allegations constitute post-judgment

6 Tennessee Rule of Appellate Procedure 24(c) provides, in pertinent part:
If no stenographic report, substantially verbatim recital or transcript of the evidence or
proceedings is available, or if the trial court determines, in its discretion, that the cost to
obtain the stenographic report in a civil case is beyond the financial means of the appellant
or that the cost is more expensive than the matters at issue on appeal justify, and a statement
of the evidence or proceedings is a reasonable alternative to a stenographic report, the
appellant shall prepare a statement of the evidence or proceedings from the best available
means, including the appellant’s recollection. The statement should convey a fair, accurate
and complete account of what transpired with respect to those issues that are the bases of
appeal. The statement, certified by appellant . . . shall be filed with the clerk of the trial
court within 60 days after filing the notice of appeal.
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pleadings was found or should have been found in favor of the Appellee.’” Chandler, 2012
WL 2393698, at *9 (quoting Britt, 2007 WL 177902, at *3).
Despite the absence of a transcript or statement of the evidence, Husband contends
that we should not affirm the trial court’s decision because the findings of fact were not the
product of the trial court’s independent judgment, but rather, the verbatim adoption of the
proposed findings prepared by Wife’s attorney. It is true that “[a] trial court speaks through
its written orders, . . . and the judgment entered by the trial court must be the independent
judgment of the trial court.” Cunningham v. Eastman Credit Union, No. E2019-00987-
COA-R3-CV, 2020 WL 2764412, at *3 (Tenn. Ct. App. May 27, 2020) (citing Williams
v. City of Burns, 465 S.W.3d 96, 119 (Tenn. 2015); Smith v. UHS of Lakeside, Inc., 439
S.W.3d 303, 316 (Tenn. 2014)); see also TENN. R. CIV. P. 52.01 (“In all actions tried upon
the facts without a jury, the court shall find the facts specially and shall state separately its
conclusions of law and direct the entry of the appropriate judgment.”). As our Supreme
Court explained,
The essential purposes of courts and judges are to afford litigants a
public forum to air their disputes and to adjudicate and resolve the disputes
between the contending parties. To carry out these purposes, judges must
arrive at their decisions by applying the relevant law to the facts of the case.
Because making these decisions is a “high judicial function,” a court’s
decisions must be, and must appear to be, the result of the exercise of the trial
court’s own judgment.
Smith, 439 S.W.3d at 312 (citations omitted).
Although the practice is not recommended, trial courts may “receiv[e] and us[e]
party-prepared findings of fact, conclusions of law, and orders [if] two conditions are
satisfied.” Id. at 315-16. Those conditions are: (1) “the findings and conclusions must
accurately reflect the decision of the trial court,” and (2) “the record must not create doubt
that the decision represents the trial court’s own deliberations and decision.” Id. at 316
(citing Aiken Cty. v. BSP Div. of Envirotech Corp., 866 F.2d 661, 677 (4th Cir.
1989); Clady v. Cty. of Los Angeles, 770 F.2d 1421, 1427 (9th Cir. 1985); Madden Phillips
Constr., Inc. v. GGAT Dev. Corp., 315 S.W.3d 800, 809-11 (Tenn. Ct. App. 2009); Airline
Constr., Inc. v. Barr, 807 S.W.2d 247, 253-54 (Tenn. Ct. App. 1990)). “[R]eviewing courts
have declined to accept findings, conclusions, or orders when the record provides no insight
into the trial court’s decision-making process or when the record ‘casts doubt’ on whether
the trial court ‘conducted its own independent review, or that the opinion is the product of
its own judgment.’” Id. (quoting Bright v. Westmoreland Cty., 380 F.3d 729, 732 (3rdCir.
2004)); see also Cunningham, 2020 WL 2764412, at *4.
When determining whether a trial court exercised its independent judgment, “‘we
compare the trial court’s oral ruling with its written order.’” Deberry v. Cumberland Elec.
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Membership Corp., No. M2017-02399-COA-R3-CV, 2018 WL 4961527, at *2 (Tenn. Ct.
App. Oct. 15, 2018) (quoting SecurAmerica Bus. Credit v. Southland Transp. Co., No.
W2016-02505-COA-R3-CV, 2018 WL 1100958, at *6 (Tenn. Ct. App. Feb. 27, 2018)).
Because the limited record before us contains no transcript or statement of the evidence,
we are unable to determine whether the trial court even made an oral ruling, much less
compare such a ruling with the written final decree.7
In other words, we have not been
presented with an adequate record from which we may determine whether the final decree
accurately reflected the trial court’s decision. We therefore must conclusively presume
that, if Husband had submitted an adequate record, it would have contained sufficient
evidence to establish that the final decree accurately reflected the trial court’s decision and
that it did not cast doubt that the final decree represented the trial court’s own deliberations.
See Sherrod v. Wix, 849 S.W.2d 780, 783 (Tenn. Ct. App. 1992) (“[W]e must assume that
the record, had it been preserved, would have contained sufficient evidence to support the
trial court’s factual findings.”). We must therefore affirm the trial court’s decision
classifying the parties’ residence as marital property and awarding alimony in futuro to
Wife in the amount of $300 per week.

Outcome: The judgment of the trial court is affirmed. Costs of this appeal are assessed againstthe appellant, Terry Haynes, for which execution may issue if necessary.

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