                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                       Assigned on Briefs August 18, 2004 Session

                     REBECCA PAIGE MULKEY (HURD) v.
                        BRADLEY WARREN MULKEY
                     Appeal from the Circuit Court for Hawkins County
                             No. 7576    Ben K. Wexler, Judge



                No. E2004-00590-COA-R3-CV - FILED OCTOBER 28, 2004




                                   CONCURRING OPINION


               The majority Opinion notes that the Trial Court talked to the minor children in camera
in the presence of the parties’ attorneys, but no court reporter was present, and a record of that
proceeding is not before us.

               We directed in Rutherford v. Rutherford, 971 S.W.2d 955 (Tenn. Ct. App. 1997), p.
956:

                       The Trial Judge has discretion to interview children apart from the courtroom
               setting if he considers it is in the best interest of the child. However, if he elects to
               follow this procedure, he must examine the child “in the presence of attorneys for
               each side and in the presence of the court reporter.” Newburger v. Newburger, 10
               Tenn. App. 555, 566 (1930), and in order to have a complete record on appeal, a
               transcript of such evidence must be filed.

                This procedure was not followed in this case and the failure to follow this procedure
is grounds, standing alone, to vacate and/or reverse the Judgment of the Trial Court, as we noted in
Rutherford.




                                                       ______________________________
                                                       HERSCHEL PICKENS FRANKS, P.J.
