                     IN THE COURT OF APPEALS OF TENNESSEE
                         WESTERN SECTION AT NASHVILLE
                  ______________________________________________

KENNETH CARL BROOKS,                                FROM THE CIRCUIT COURT OF
                                                    DAVIDSON COUNTY, # 92D-2591
       Petitioner-Appellant,                   THE HONORABLE MARIETTA
                                                    M. SHIPLEY, JUDGE
Vs.                                                 C.A. No. 01A01-9607-CV-00312
                                                    VACATED AND REMANDED
RAMONA E. BROOKS,
                                                      Sandra Jones of Nashville
       Respondent-Appellee.                           For Appellant

                                           No appearance for Appellee
____________________________________________________________________________

                         MEMORANDUM OPINION1
___________________________________________________________________________
                                                                           FILED
                                                                           February 26, 1997
CRAWFORD, J.
                                                                         Cecil W. Crowson
                                                                      Appellate Court Clerk
       This appeal involves a post-divorce proceeding between petitioner, Kenneth Carl Brooks

(hereinafter Husband) and respondent, Ramona E. Brooks (hereinafter Wife). Husband appeals

from the order of the trial court establishing arrearage in ld support payments and modifying the

amount of the previously ordered child support. Husband filed a “ Petition for Specific

Visitation, and Modification of Child Support.” Wife filed a detailed response to the petition and

also filed a counter-petition for contempt in which she alleged that Husband was in arrears in

payment of the ordered child support payments and in payment of an award of alimony in solido.

Husband filed an answer to the counter-claim for contempt and joined issue on the allegations

therein.

       The parties appeared in court for a hearing on June 30, 1995, and subsequently on August

15, 1995, the trial court filed a memorandum opinion in which the court first set out the

stipulations of the parties concerning agreed visitation. The court then made extensive findings

concerning the allegations of contempt, the arrearage in child support and alimony, the

modification of the child support payments and the award of attorney fees. The memorandum



       1
         Rule 10 (Court of Appeals). Memorandum Opinion. -- (b) The 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 a subsequent unrelated case.
opinion was made the order of the court.

        Husband filed a “Motion to Alter or Amend or in the Alternative for a New Trial” in

which he sets out in detail the alleged miscalculation by the trial court of the alleged arrearage

and the amount set for future child support payments.

        Wife filed a “Response and Opposition to Motion to Alter or Amend or in the Alternative

Motion for a New Trial.” The response contradicts statements made by Husband as to

stipulations and proof in the case. The response painstakingly sets out the various monetary

amounts involved in the calculation and then proceeds to set out “three possible scenarios”

designated as “Ms. Brooks’s scenario,” “Mr. Brooks’s scenario,” and “Scenario based upon

receipts submitted by Mr. Brooks during the trial of the cause taking into consideration all

receipts were credited to child support which Ms. Brooks objected to.”

        We point out the response to illustrate the confusing and contested nature of the

proceedings in the trial court.

        On January 11, 1996, the trial court filed a second memorandum opinion which became

the order of the court again reciting various and sundry findings of fact and ultimately denying

Husband’s motion. The technical record reflects that Husband submitted a purported statement

of the evidence of the June 30, 1995 hearing, but it is not a part of the record on appeal.

However, Wife filed a “Response of Ramona E. Brooks in Opposition to the Statement of

Evidence,” in which she quotes the statement of the evidence filed by Husband which states in

part:

               Neither the parties nor any other witness were sworn and no
               testimony or other evidence of any nature was presented to the
               Court prior to entry of the final judgment. The Court reserved
               judgment.

        Wife’s response also states:

               Ms. Brooks would state and show unto the Court that the hearing
               was conducted on June 30, 1995. Present at that hearing was
               each party and their respective attorney of record.

               Neither party was sworn.

               Each attorney of record gave an opening statement to the pending
               issues. During opening statements, the Honorable Judge Shipley
               made certain inquiries on various points of interest to her and in
               the event the attorney of record did not know the answer, the

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               client informed the attorney of record out loud in open Court.

               All issues were taken under advisement by the Second Circuit
               Court of Davidson County, Tennessee, without sworn testimony.
               Documents including various proofs of payments were submitted
               to the Court during opening arguments but were not made
               exhibits.

               Pursuant to the instructions of the Second Circuit Court of
               Davidson County, Tennessee, counsel for Mr. Brooks filed her
               proposed Finding of Facts which included exhibits of proof of
               payment on July 7, 1995.

               On July 18, 1995, counsel for Mrs. Brooks filed her Response to
               the Findings of Fact.

               On July 24, 1995, counsel for Mr. Brooks filed a reply to the
               Respondent’s proposed Findings of Fact.

               On August 15, 1995, the Second Circuit Court prepared and filed
               its own Memorandum of Opinion stating its findings of facts; the
               same being incorporated herein and made part of this Response
               as if fully set out verbatim.

               On September 8, 1995, counsel for Mr. Brooks filed her Motion
               to Alter or Amend the Judgment or in the Alternative Motion for
               New Trial and attached exhibits to said Motion.

               On October 3, 1995, counsel for Ms. Brooks filed her Response
               in Opposition to the Motion to Alter or Amend or in the
               Alternative Motion for New Trial. On October 13, 1995, a
               hearing was conducted consisting of oral argument with exhibits
               being introduced during said argument.

               As a result of the hearing on September 13, 1995, the Second
               Circuit Court entered its own Memorandum Opinion on January
               11, 1996 reiterating its findings of fact; the same being
               incorporated herein and made part of this Response as if fully set
               out verbatim.

               The Respondent/Counter Petitioner, Ramona E. Brooks, objects
               to any statements contained in the Statement of Evidence
               submitted by Kenneth Carl Brooks not consistent with the above
               stated Court Record and would move this Honorable Court to
               denote this pleading as the more accurate Statement of Evidence
               for Appellate purposes.

       The response is marked “approved” and signed by the trial judge on June 24, 1996,

apparently to designate it as a statement of the proceedings.

       We only need to consider Husband’s first two issues which, as stated in his brief, are:

               Whether the trial judge may make findings of fact without the
               representation of competent evidence.

               Whether appellant was afforded due process by the denial of a

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               hearing on June 30, 1995.

       It is apparent from an examination of the record that the hearing was held on June 30,

1995, but no sworn testimony was elicited nor exhibits introduced by virtue of sworn testimony

or stipulation of the parties. It is readily apparent that there is a sharp disagreement between the

parties as to the facts of the controversy. Witnesses are required to take an oath or affirmation,

Tenn.R.Evid. 603, and in the absence of stipulations, findings of fact of the court must come

from the evidence introduced. What purports to be a statement of the evidence, i.e., the response

of Wife in opposition to Husband’s statement of the evidence, establishes that there was no real

evidentiary hearing in this case as to the contested facts.

       Husband contends that he should have an opportunity to put on proof, and Wife has not

filed a brief on appeal. It appears to this Court that the trial court was somewhat misled by

counsels’ approach to the hearing and the failure to offer witnesses to take the stand.

       We feel that this a proper case for the application of T.C.A. § 27-3-128 (1980) which

provides:

               27-3-128. Remand for correction of record. - The court shall
               also, in all cases, where, in its opinion, complete justice cannot be
               had by reason of some defect in the record, want of proper parties,
               or oversight without culpable negligence, remand the cause to the
               court below for further proceedings, with proper directions to
               effectuate the objects of the order, and upon such terms as may be
               deemed right.

        We conclude that complete justice cannot be had because of the state of the record before

us.

        Therefore, the order of the trial court is vacated, and this case is remanded for an

evidentiary hearing on the issues raised by the petition for modification and the response thereto.

The provisions for child support and visitation set out in the trial court’s order shall remain in

effect until replaced by order of the trial court. Costs of the appeal are assessed one-half to

appellant and one-half to appellee.

                                                        _________________________________
                                                        W. FRANK CRAWFORD,
                                                        PRESIDING JUDGE, W.S.
CONCUR:


____________________________________

                                                 4
DAVID R. FARMER, JUDGE

____________________________________
HOLLY K. LILLARD, JUDGE




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