                                                                                         12/18/2019
               IN THE COURT OF APPEALS OF TENNESSEE
                            AT JACKSON
                              November 13, 2019 Session

    TIMOTHY ROSEBROUGH v. KAREN CALDWELL F/K/A KAREN
                     ROSEBROUGH

                Appeal from the Chancery Court for Madison County
                  No. 66696 William B. Acree, Jr., Senior Judge
                     ___________________________________

                           No. W2018-01168-COA-R3-CV
                       ___________________________________


In this post-divorce custody action, the mother filed a motion seeking to modify the
permanent parenting plan to designate her the primary residential parent. During trial,
the parents requested that the Trial Court modify the residential parenting schedule.
Following trial, the Trial Court entered an order denying the mother’s request to be
designated primary residential parent but granting the parties’ request to modify the
parenting schedule. Most of the Trial Court’s order consisted of its detailed recitation of
the testimony presented during trial, without finding which testimony was credible or
otherwise making sufficient findings of fact regarding the evidence presented to support
its ruling as to changing the primary residential parent. As such, we find and hold that
the March 9, 2018 order does not comply with Tennessee Rule of Civil Procedure 52.01
by including sufficient findings of fact concerning the mother’s motion to modify the
permanent parenting plan to designate her the primary residential parent. We, therefore,
vacate that portion of the Trial Court’s judgment and remand for the Trial Court to make
sufficient findings of fact and conclusions of law in compliance with Tennessee Rule of
Civil Procedure 52.01. Because the Trial Court did make sufficient findings of fact as to
the parenting schedule and it was not raised as an issue on appeal, the Trial Court’s
judgment regarding modification of the residential parenting schedule is affirmed.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
              Affirmed in Part and Vacated in Part; Case Remanded

D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which J. STEVEN
STAFFORD, P.J., W.S., and KENNY W. ARMSTRONG, J., joined.

Karen L. Caldwell, Jackson, Tennessee, Pro Se.

Lisa A. Houston, Jackson, Tennessee, for the appellee, Timothy S. Rosebrough.
                                               OPINION

                                             Background

       The parties, Timothy Rosebrough (“Father”) and Karen Caldwell (“Mother”),
were married in 2007. The parties had one child together during the marriage, A.F.R.
(“the Child”). Father filed a complaint for divorce in the Madison County Chancery
Court (“Trial Court”), and the parties were divorced in November 2010. Following trial,
Father was designated the primary residential parent of the Child, with Father receiving
280 days and Mother receiving 85 days. Per the permanent parenting plan, Mother’s
parenting time would occur on Tuesdays from 5:30 p.m. to 8:30 p.m. and every other
weekend from Thursday at 6:00 p.m. to Sunday at 6:00 p.m. However, the Trial Court
ordered that Mother would receive only supervised visitation with the Child until she
completed an anger management course of at least eight weeks duration and submitted to
a psychological and parenting evaluation by a licensed counselor, both to occur at
Pathways in Jackson, Tennessee.         Once Mother completed the aforementioned
requirements, she would receive unsupervised visitation as provided in the permanent
parenting plan. Mother filed a motion for new trial, which was denied by the Trial Court.
Mother appealed to this Court in 2011, but her appeal was dismissed for failure to file an
appellate brief.1

        Following entry of the final divorce decree and the permanent parenting plan,
litigation between the parties continued unabated. Mother filed motions to clarify, which
were denied due to lack of jurisdiction and the pending appeal. She also filed a motion
seeking to terminate the requirement that her visitation be supervised without her having
to complete the anger management course. In support of her motion, Mother presented a
report from a psychologist stating that she did not need anger management. The Trial
Court ultimately denied Mother’s motion, finding that it was “simply an attempt to alter
the prior judgment by yet another motion (well after the Decree became final), arguing
that the trial judge was wrong” and instructed that issues with the divorce decree be
determined during the pending appeal. She also filed a motion for contempt. Father filed
a response to Mother’s motion for contempt and a counter-motion for contempt against
Mother. The Court denied Mother’s motion for contempt but granted Father’s motion for
contempt due to Mother’s failure to pay her portion of the Child’s uncovered medical
expenses.

       In September 2011, Father filed a motion to modify the permanent parenting plan
and for contempt. Mother subsequently filed a petition to change custody of the Child
and for contempt and a motion to modify the final decree, asking the court to waive the
anger management requirement. Following a hearing on those petitions, the Trial Court

1
    The mandate from this Court was issued in October 2011.

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found that a material change in circumstances had occurred warranting modification of
Mother’s parenting time restrictions. Upon finding that Mother had “undergone some
changes in attitude” and had acknowledged that she needed to obey court orders even
when she did not agree with them, the Trial Court removed the requirement that Mother
complete anger management to assist in the building of a relationship between Mother
and the Child and ordered that Mother would have unsupervised visitation with the Child
according to the permanent parenting plan. The Trial Court, however, found that it was
in the Child’s best interest for Father to remain the primary residential parent. On April
12, 2013, the Trial Court entered an order modifying Mother’s visitation schedule to
include Tuesdays from 4:00 p.m. to 7:00 p.m. after August 1, 2013, and every other
weekend from Thursday at 6:00 p.m. through Sunday at 6:00 p.m. The Trial Court
dismissed the allegations of contempt.

       In November 2015, Mother filed a motion to modify custody, requesting that she
be designated the primary residential parent for the Child. Mother also filed a motion to
waive mediation and requested a psychological evaluation for Father. The Trial Court
ordered the parties to attend mediation and continued Mother’s motion for a
psychological evaluation. Father subsequently filed a motion requesting that Mother
comply with a psychological and parenting evaluation and an anger management course.
In response to the parents’ motions, the Trial Court ultimately ordered Father to complete
a psychological evaluation and Mother to complete a psychological and parenting
evaluation. The Trial Court found that due to the parties’ “profound dislike for one
another” and the difficulty this presented in co-parenting, good cause existed for the
evaluations. The Trial Court further ordered the parties and the Child to undergo a
custodial evaluation, which included the psychological evaluations for both parents. The
Trial Court reserved the issue of anger management until trial.

       In August 2016, the Trial Court renewed its prior injunction prohibiting the parties
from speaking badly of the other parent and instructing the parties to encourage the Child
to love the other parent. Thereafter, Mother filed a motion for contempt against Father
alleging that he violated the injunction put in place by the Trial Court. The Trial Court
denied Mother’s motion for contempt, finding that Mother’s motion was “not worthy of
oral argument.” The Trial Court also granted Father an award of reasonable attorney’s
fees and court costs incurred defending Mother’s contempt motion. Also in August 2016,
Mother filed a proposed parenting plan.

      In April 2017, Father filed a motion to dismiss Mother’s motion to modify
custody, alleging that Mother had failed to comply with Tennessee Code Annotated § 36-
6-405(a) by failing to file a verified statement of her income and a proposed parenting
plan with her November 2015 motion. Mother thereafter filed a verified statement of
income with the Trial Court.


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        The trial occurred on three nonconsecutive days on October 18, 2017; November
14, 2017; and December 1, 2017. According to the Trial Court, both Mother and Father
made oral motions requesting the Trial Court modify the parenting schedule and that
Father had testified at trial that providing more parenting time to Mother “is in the best
interest of [the Child] because the child is older, it will create more stability, and he wants
to avoid the debacle during the summer.” Thereafter, the Trial Court entered a
“Temporary Order Amending Parenting Schedule.” In this order, the Trial Court
amended the residential parenting schedule to end Mother’s Tuesday visitation and
extend her every other weekend visitation to Thursday at 6:00 p.m. through Monday
before school (or 8:00 a.m. if the Child was not in school). The Trial Court subsequently
entered its “Findings of Fact and Conclusions of Law” and directed Father’s counsel to
prepare an order reflecting the Trial Court’s findings and conclusions. Following the
filing of the Trial Court’s findings of fact and conclusions of law but before a judgment
was entered, Mother filed a motion to alter or amend or for a new trial.

       The Trial Court entered its judgment in March 2018, denying Mother’s motion to
modify custody but granting the parties’ request to modify the residential parenting
schedule. As modified, the permanent parenting plan provided that Father receive 260
days and Mother receive 105 days. Mother was to receive visitation with the Child every
other weekend from Thursday at 6:00 p.m. until before school on Monday (or 8:00 a.m. if
the Child had no school), during fall break in alternating years, for five days during
winter vacation, during spring break in alternating years, and for one week in June and
one week in July during summer vacation. Following entry of the judgment, Mother filed
an “Amended Motion to Alter or Amend, or Alternatively for a New Trial,” which the
Trial Court denied. Mother timely appealed to this Court.

        Following her notice of appeal, Mother filed statements of the evidence for the
three days of trial. The Trial Court rejected Mother’s statements of the evidence for the
trial dates of November 14, 2017, and December 1, 2017. The Trial Court found that a
court reporter was present on these days and the per diem was shared by the parties.
Determining that Mother had not requested relief from the Trial Court to file a statement
of the evidence in lieu of a transcript reflecting those days, the Trial Court rejected the
statements of evidence for November 14, 2017, and December 1, 2017. The Trial Court
found that the filing of a statement of evidence in lieu of a transcript was not permitted
under Tennessee Rule of Appellate Procedure 24 in this case. The Trial Court further
found that Mother had the ability to pay the cost of a stenographic record, that the issue
of child custody justifies the expense of a transcript, and that a statement of the evidence
is not a reasonable alternative to a transcript.

        The Trial Court subsequently entered its “Court’s Approval and Exhibit
Authentication” stating that neither a transcript or statement of the evidence had been
filed for the trial dates of November 14, 2017, and December 1, 2017. A court reporter

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was not available for the first day of trial on October 18, 2017. As such, the statement of
evidence for that day was accepted but modified by the Trial Court.

                                         Discussion

       Although not stated as such, Mother raises the following issues for our review: (1)
whether the Trial Court erred by finding that Mother had not proven a material change in
circumstance by a preponderance of the evidence and (2) whether the Trial Court erred
when making its best interest analysis regarding the modification of the permanent
parenting plan.

        Our ability to address the issues raised by Mother concerning modification of the
permanent parenting plan to designate her the primary residential parent is severely
hampered by the Trial Court’s failure to make sufficient findings of fact in its judgment.
While the Trial Court’s judgment was extensive, detailed, and contained some findings of
fact, it primarily was a detailed statement of the evidence presented at trial and the Trial
Court’s conclusions as to the ultimate questions of material change of circumstances and
best interest.

        Tennessee Rule of Civil Procedure 52.01 requires that, in all bench trials, the trial
court shall make findings of fact and separate conclusions of law with entry of its
judgment sufficient to support its decision. Our Supreme Court has instructed that the
requirement for trial courts to make findings of fact and conclusions of law serves three
purposes: (1) facilitating appellate review of the trial court’s action by providing the
appellate court with a clear understanding of the basis on which the trial court’s decision
was reached, (2) defining exactly the issues being decided in the case for purposes of
estoppel and res judicata and promoting confidence in the decision making of the trial
court, and (3) evoking care by the trial court in ascertaining and applying the facts of the
case. Lovlace v. Copley, 418 S.W.3d 1, 34-35 (Tenn. 2013) (internal citations omitted).
There is no bright-line test for which to evaluate the sufficiency of a trial court’s findings
of fact; however, “‘the findings of fact must include as much of the subsidiary facts as is
necessary to disclose to the reviewing court the steps by which the trial court reached its
ultimate conclusion on each factual issue.’” Id. at 35 (quoting 9C Federal Practice and
Procedure § 2579, at 328). When a trial court’s findings of fact are insufficient to
comply with Tennessee Rule of Civil Procedure 52.01, the appellate court may either
remand the action for the trial court to make sufficient findings of fact or, in some cases,
the appellate court may attempt to “soldier on” by conducting a de novo review of the
evidence presented to the trial court in the underlying record to determine where the
preponderance of the evidence lies. See Lovlace, 418 S.W.3d at 36; In re S.J., 387
S.W.3d 576, 594 n.9 (Tenn. Ct. App. 2012). “On occasion, when a trial judge fails to
make findings of fact and conclusions of law, the appellate court may ‘soldier on’ when
the case involves only a clear legal issue, or when the court’s decision is ‘readily

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ascertainable.’” Manning v. Manning, 474 S.W.3d 252, 260 (Tenn. Ct. App. 2015)
(quoting Pandey v. Shrivastava, No. W2012-00059-COA-R3-CV, 2013 WL 657799
(Tenn. Ct. App. Feb. 22, 2013) (other internal citations omitted)).

       Mother argues in her appellate brief that the Trial Court erred in its determination
that Mother had not proven a material change in circumstance and in conducting its best
interest analysis. We first note that a trial court does not proceed to conduct the best
interest analysis unless the court finds that the petitioner has proven by a preponderance
of the evidence that a material change in circumstances exists. See Pankratz v. Pankratz,
No. M2017-00098-COA-R3-CV, 2017 WL 4842400, at *4 (Tenn. Ct. App. Oct. 25,
2017) (“[O]nly after making the threshold determination that a material change in
circumstances has occurred, may the trial court turn to consider whether modification of
an existing parenting plan is in the child’s best interest.” (citing Tenn. Code Ann. § 36-6-
101(a)(2)(C))).

       Regarding custody and visitation decisions by the trial courts, this Court
explained:

              Trial courts have broad discretion to fashion custody and visitation
       arrangements that best suit the unique circumstances of each case, and the
       appellate courts are reluctant to second-guess a trial court’s determination
       regarding custody and visitation. Parker v. Parker, 986 S.W.2d 557, 563
       (Tenn. 1999); Nelson v. Nelson, 66 S.W.3d 896, 901 (Tenn. Ct. App. 2001).
       Decisions concerning custody and visitation often hinge on subtle factors,
       such as the parents’ demeanor and credibility during the proceedings.
       Adelsperger v. Adelsperger, 970 S.W.2d 482, 485 (Tenn. Ct. App. 1997).

              Furthermore, it is not the role of the appellate courts to “tweak
       [parenting plans] . . . in the hopes of achieving a more reasonable result
       than the trial court.” Eldridge v. Eldridge, 42 S.W.3d 82, 88 (Tenn. 2001).
       Thus, a trial court’s decision regarding custody or visitation will be set
       aside only when it “falls outside the spectrum of rulings that might
       reasonably result from an application of the correct legal standards to the
       evidence found in the record.” Id.

Reeder v. Reeder, 375 S.W.3d 268, 278 (Tenn. Ct. App. 2012).

        This Court explained in a previous case that a court order including “a lengthy
summary of the testimony adduced at the hearing and a few credibility observations”
without further indicating which testimony or other evidence the trial court relied upon in
making its decision is not sufficient to satisfy the requirement of making specific findings
of fact. In re S.S.-G., No. M2015-00055-COA-R3-PT, 2015 WL 7259499, at *12 (Tenn.

                                           -6-
Ct. App. Nov. 16, 2015). The Court further provided that “[w]hile summation of the
evidence may be necessary and helpful to the trial court in making its findings and
conclusions, the court must go beyond mere summation by linking the evidence to its
clearly stated findings of fact and conclusions of law.” Id.

       In the case before us, the Trial Court did not provide sufficient findings of fact to
demonstrate the reasoning employed by the Trial Court in reaching its ultimate
conclusion as to Mother’s request to modify the permanent parenting plan so as to
designate her the primary residential parent. See Lovlace, 418 S.W.3d at 35. The Trial
Court entered its judgment providing a detailed summary of the testimony and evidence
presented during trial. Despite the parties presenting contradictory testimony, the Trial
Court did not make credibility determinations or specific findings of fact as to many of
those factual issues. The Trial Court did make some findings of fact, but the findings are
not sufficient to facilitate our review of its decision or support its ruling. Many of the
statements in the Trial Court’s order were conclusory statements regarding the evidence
presented and not specific findings of fact as required. The Trial Court’s March 9, 2018
order, even as extensive as it is, does not provide which evidence the Trial Court relied
on when making its decision or how it came to its conclusion. We, therefore, hold that
the Trial Court did not comply with Tennessee Rule of Civil Procedure 52.01 by making
sufficient findings of fact and conclusions of law on Mother’s request for modification of
the permanent parenting plan as to the primary residential parent.

        Because a custody decision by the Trial Court is a factual determination and often
hinges on factors only observable during trial, such as the parents’ or other witnesses’
demeanor and credibility, and this case does not consist of a clear legal issue or a readily
ascertainable decision, we determine this is not an appropriate case for us to “soldier on”
in the absence of sufficient findings of fact by the Trial Court. See Manning, 474 S.W.3d
at 260; Reeder, 375 S.W.3d at 278. Sufficient findings of fact by the Trial Court are
necessary in this case for meaningful appellate review by this Court. “[A]ppellate courts
are ill-equipped to make the type of credibility determinations that would be necessary to
resolve the factual disputes” as are involved in this modification of the permanent
parenting plan proceeding. See Lovlace, 418 S.W.3d at 36. Therefore, we remand these
proceedings to the Trial Court to make sufficient findings of fact regarding the evidence
presented during trial and to make conclusions of law based on those facts in compliance
with Tennessee Rule of Civil Procedure 52.01 concerning Mother’s motion to modify the
permanent parenting plan by designating her the primary residential parent. On remand,
the Trial Court may rely on the evidence presented during the three days of trial in
October, November, and December 2017 without requiring any further proof to be
presented by the parties unless the Trial Court, in its discretion, decides to receive
additional proof.



                                           -7-
       Because the Trial Court made sufficient findings of fact such as that the Child is
older and more accustomed with being with Mother on the issue of modification of the
residential parenting schedule and neither party raised any issue on appeal of the Trial
Court’s judgment modifying the residential parenting schedule, we affirm the Trial
Court’s judgment in that regard. Due to our holding vacating the portion of the Trial
Court’s judgment concerning Mother’s motion to modify the permanent parenting plan to
designate her the primary residential parent, all other issues on appeal are pretermitted as
moot.

                                       Conclusion

       The portion of the Trial Court’s judgment concerning designation of the primary
residential parent is hereby vacated. The Trial Court is affirmed as to its judgment
modifying the residential parenting schedule. This cause is remanded to the Trial Court
for findings of fact and conclusions of law in compliance with Tennessee Rule of Civil
Procedure 52.01 regarding Mother’s motion to be designated the primary residential
parent and for collection of the costs assessed below. The costs on appeal are assessed
one-half against the appellant, Karen L. Caldwell, and her surety, if any, and one-half
against the appellee, Timothy Rosebrough, and his surety, if any.




                                          _________________________________
                                          D. MICHAEL SWINEY, CHIEF JUDGE




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