                                                                                                  05/17/2017




                    IN THE COURT OF APPEALS OF TENNESSEE
                                 AT JACKSON
                                        April 25, 2017 Session

                 WINSTON KEITH KYLE v. JANICE GOMER KYLE

                     Appeal from the Chancery Court for Gibson County
                          No. 21893 George R. Ellis, Chancellor
                         ___________________________________

                                 No. W2016-01699-COA-R3-CV
                             ___________________________________


This is an appeal from a final decree of divorce. The trial court's final decree of divorce
included a division of marital property but failed to adjudicate the issue of alimony. A
subsequent order states that the parties “agreed that [Wife’s] claim for alimony in futuro
and rehabilitative alimony . . . are dismissed.” The appellate record contains no transcript
or statement of the evidence for our review as required by the Tennessee Rules of
Appellant Procedure. Accordingly, we conclude that there was sufficient evidence to
support the trial court’s finding. Affirmed and remanded.

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

KENNY ARMSTRONG, J., delivered the opinion of the court, in which RICHARD H.
DINKINS and ARNOLD B. GOLDIN, JJ., joined.

Janice Gomer Kyle, Tunica, Mississippi, Pro Se.

Howard Freeman Douglass, Lexington, Tennessee, for the appellee, Winston Keith Kyle.

                                   MEMORANDUM OPINION1

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          opinion it shall be designated “MEMORANDUM OPINION”, shall not be published, and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.

Tenn. Ct. App. R. 10
                                        OPINION

       Appellant Janice Gomer Kyle (“Wife”) and Appellee Winston Keith Kyle
(“Husband”) were married in November 2009. No children were born of the marriage.
On November 12, 2015, Husband filed a complaint for divorce against Wife alleging
inappropriate marital conduct and irreconcilable differences. On January 5, 2016, Wife
filed an answer and counter-complaint for divorce, wherein she also alleged inappropriate
marital conduct and irreconcilable differences. In her counter-complaint, Wife avered
that she was disabled and asked the court to award her alimony in futuro, pendente lite
support, and rehabilitative alimony. The trial court held a hearing and entered a final
decree of divorce on July 15, 2016, granting the parties a divorce by stipulation.
Husband was awarded the marital home and debt thereon. Wife was awarded $15,000
from Husband’s 401(k), and the court made a specific division of certain property.
However, there was nothing in the final decree of divorce adjudicating Wife’s request for
alimony in futuro or rehabilitative alimony. Consequently, this Court entered an order on
October 6, 2016, giving Wife ten days to obtain entry of a final judgment. On October
17, 2016, the trial court entered an order stating that the final decree of divorce reflected
the parties’ agreement on all issues pending before the court. The order further states that
it was “agreed that [Wife’s] claim for alimony in futuro and rehabilitative alimony . . . are
dismissed.” Wife filed a timely notice of appeal. Wife lists several issues for review in
her brief, which we restate as follows:

       1.     Whether Ms. Kyle should be awarded damages because her attorney
              misrepresented her?

       2.     Whether the trial court abused its discretion in failing to award alimony in
              futuro or rehabilitative alimony to the Wife as the disadvantaged spouse?

       3.     Whether the trial court erred in failing to consider Ms. Kyle’s contributions
              to the marriage including improvements made to the marital residence and
              contributions as a homemaker?

       4.     Whether the trial court erred in failing to consider Wife’s disability?

To the extent that our consideration of these issues involves the trial court’s factual
findings, our review is de novo upon the record, accompanied by a presumption of the
correctness of the trial court’s findings of fact, unless the evidence preponderates
otherwise. Tenn. R. App. P. 13(d); Bogan v. Bogan 60 S.W.3d 721, 727 (Tenn. 2001).
The trial court’s conclusions of law are subject to a de novo review with no presumption
of correctness. Gonsewski v. Gonsewski, 350 S.W.3d 99, 105-106 (Tenn.2011); S.


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Constructors, Inc. v. Loudon County Bd. of Educ. 58 S.W.3d 706, 710 (Tenn. 2001).

       A trial court's decision regarding spousal support is factually driven and involves
the careful balancing of many factors. Kinard v. Kinard, 986 S.W.2d 220, 235 (Tenn. Ct.
App. 1998); see also Robertson v. Robertson, 76 S.W.3d 337, 340-41 (Tenn. 2002);
Burlew v. Burlew, 40 S.W.3d 465, 470 (Tenn. 2001). There are numerous statutory
factors to be considered when deciding the type, duration, and amount of alimony to be
awarded. See Tenn. Code Ann § 36-5-121(i) (factors to consider when “determining
whether the granting of an order for payment of support and maintenance to a party is
appropriate ...”). As to an initial award of spousal support, this Court will allow the trial
court “broad discretion to determine whether spousal support is needed and, if so, the
nature, amount, and duration of the award.” Gonsewski v. Gonsewski, 350 S.W.3d 99,
105 (Tenn. 2011). Absent an abuse of discretion, the appellate court is generally
disinclined to second-guess the trial judge’s decision on spousal support. Id. (citing
Kinard v. Kinard, 986 S.W.2d 220, 234 (Tenn. Ct. App. 1998)). Abuse of discretion is
found only when the trial court applies an incorrect legal standard, reaches an illogical
conclusion, bases its decision on a clearly erroneous assessment of the evidence, or
employs reasoning that caused an injustice to the complaining party. Discover Bank v.
Morgan, 363 S.W.3d 479, 487 (Tenn. 2012) (citing State v. Jordan, 325 S.W.3d 1, 39
(Tenn. 2010)). Under the abuse of discretion standard, a trial court’s ruling “will be
upheld so long as reasonable minds can disagree as to the propriety of the decision made”
or “as long as it falls within a range of acceptable alternatives,” it does not permit the
appellate court to substitute its judgment for that of the trial court. Discover Bank, 363
S.W.3d at 487; Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001); Salvucci v.
Salvucci, No. W2013-01967-COA-R3-CV, 2014 WL 4201441, at *7 (Tenn. Ct. App.
Aug. 26, 2014).

       The Tennessee Rules of Appellate Procedure place the responsibility for the
preparation of the transcript or a statement of evidence on the parties, and the appellant
has the primary burden to see that a proper record is prepared and filed in this Court.
Tenn. R. App. P. 24; McDonald v. Onoh, 772 S.W.2d 913, 914 (Tenn. Ct. App. 1989). If
no transcript is available, Tennessee Rule of Appellate Procedure 24 provides:

       If no stenographic report, substantially verbatim recital or transcript of the
       evidence or proceedings is available ... 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.

Tenn. R. App. P. 24(c). Here, the appellate record contains neither a transcript of the
hearing nor a statement of the evidence pursuant to Tennessee Rule of Appellate
Procedure 24(c). Accordingly, in the absence of any record of the relevant proceedings,
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this Court cannot make a meaningful review of the issues which rest on the trial court’s
factual determinations. In other words, we cannot decide factually-based issues without
the relevant facts that were presented to the trial court.

        While we are cognizant that Ms. Kyle is proceeding pro se, it is well-settled that
“pro se litigants are held to the same procedural and substantive standards to which
lawyers must adhere.” Brown v. Christian Bros. University, No. W2012-01336-COA-
R3-CV, 2013 WL 3982137, at *3 (Tenn. Ct. App. Aug. 5, 2013), perm. app. denied
(Tenn. Jan. 15, 2014). While a party who chooses to represent himself or herself is
entitled to the fair and equal treatment of the courts, Hodges v. Tenn. Att’y Gen., 43
S.W.3d 918, 920 (Tenn. Ct. App. 2000), “[p]ro se litigants are not ... entitled to shift the
burden of litigating their case to the courts.” Whitaker v. Whirlpool Corp., 32 S.W.3d
222, 227 (Tenn. Ct. App. 2000). The burden is on the Appellant to show that the
evidence preponderates against the judgment of the trial court. Coakley v. Daniels, 840
S.W.2d 367, 370 (Tenn. Ct. App. 1992) (citing Capital City Bank v. Baker, 442 S.W.2d
259, 266 (Tenn. Ct. App. 1969)). “The burden is likewise on the appellant to provide the
court with a transcript of the evidence or a statement of the evidence from which this
court can determine if the evidence does preponderate for or against the findings of the
trial court.” Id.

       As an appellate court, “[w]e evaluate, under prescribed standards of review, what
other tribunals or fact finders have done to determine if there are reversible errors in their
rulings. We are prevented from doing so unless the totality of the evidence that led to
those factually-driven determinations is laid before us.” Robbins v. Money, No. 03A01-
9703-CV-00072, 1997 WL 406653, at *3 (Tenn. Ct. App. July 22, 1997). This Court’s
review is limited to the appellate record, and it is incumbent upon the appellant to provide
a record that is adequate. Chiozza v. Chiozza, 315 S.W.3d 482, 489 (Tenn. Ct. App.
2009)(internal citations omitted).

        Where the issues on appeal turn on factual determinations, the absence of a
transcript or statement of the evidence is essentially fatal to the party having the burden
on appeal. See Sherrod v. Wix, 849 S.W.2d 780, 783 (Tenn. Ct. App. 1992) (holding that
without an appellate record containing the facts, the court must assume that the record,
had it been preserved, would have contained sufficient evidence to support the trial
court's factual findings); Baugh v. Moore, No. M2013-02224-COA-R3-CV, 2015 WL
832589, at *3 (Tenn. Ct. App. Feb. 25, 2015). Without a transcript or statement of the
evidence, we have no way to determine whether the evidence was sufficient to support
the trial court's findings of fact and its conclusions of law based on those facts. “In the
absence of a transcript 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 (citing McKinney v.
Educator and Executive Insurers, Inc., 569 S.W.2d 829, 832 (Tenn. App. 1977)); see
also Sherrod, 849 S.W.2d at 783; Baugh 2015 WL 832589, at *3-4. In as much as the
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issues presented for review by Wife in this appeal are factually driven, our ability to
address these issues “is severely hampered if not eliminated by the absence of transcripts
of the hearing or the trial, or any statement of the evidence prepared in accordance with
Tenn. R. App. P. 24(c).” Rowe v. Rowe, No. E2005-01023-COA-R3-CV, 2007 WL
541813, at *5 (Tenn. Ct. App. Feb. 22, 2007). Unfortunately, we cannot reach the
substantive issues presented due to this procedural shortfall.

       For the foregoing reasons, we affirm the judgment of the trial court. The case is
remanded for such further proceedings as may be necessary and are consistent with this
opinion. Costs of the appeal are assessed against the Appellant, Janice Gomer Kyle and
her surety, for all of which execution may issue if necessary.




                                                _________________________________
                                                KENNY ARMSTRONG, JUDGE




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