                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                          Assigned on Briefs November 16, 2001

                 KATHIE NAOMI KING v. BILLY WAYNE KING

                      Appeal from the Chancery Court for Giles County
                         No. 1282    Jim T. Hamilton, Chancellor



                  No. M2001-00275-COA-R3-CV - Filed December 13, 2001


This is an appeal of a divorce proceeding presented to the trial court in an unusual manner, by
agreement of all parties and all attorneys. Husband appeals the final judgment, and we affirm in part
and reverse in part.

           Tenn. R. App. P. 3; Judgment of the Chancery Court Affirmed in Part
                                   and Reversed in Part

WILLIAM B. CAIN , J., delivered the opinion of the court, in which BEN H. CANTRELL , P.J., M.S. and
PATRICIA J. COTTRELL, J., joined.

William C. Barnes, Jr., Columbia, Tennessee, for the appellant, Billy Wayne King.

Joe W. Henry, Jr., Pulaski, Tennessee, for the appellee, Kathie Naomi King.

                                            OPINION

        Two competent trial attorneys and the trial judge, with the express agreement of both Kathie
Naomi King and her husband, Billy Wayne King, attempted to resolve an acrimonious divorce case
in a manner that would save time and expense for the parties. The resulting unorthodox method of
alternative dispute resolution did not meet either the expectation of counsel or the anticipated
economic benefit to the parties.

        As we are favored with neither transcript of the testimony at the hearing, nor a Rule 24C
Statement of the Evidence, our ability to review on appeal is rather limited. From the pleadings and
orders we glean that the parties were married in December 1982 and have one minor child. They
separated in July 1999, and on August 5, 1999, Wife sued Husband for a divorce seeking custody
of the minor child, together with child support consistent with the guidelines, a division of marital
property, her attorney’s fees, and general relief. On May 8, 2000, Husband filed an answer and
counter-claim seeking custody of the minor child.
       On May 26, 2000, the following order was entered, which was approved for entry by Kathie
Naomi King and her attorney, Honorable Joe W. Henry, Jr., and by Billy Wayne King and his
attorney, Honorable Raymond W. Fraley, Jr. This order, in its entirety, provided:

                 In this cause it appearing to the Court that the parties and their counsel of
         record have agreed on a mediation process to dispose of the issues in controversy in
         the above captioned matter.

                  The Court further finds as follows:

                  1.      That the mediation process as agreed upon between the parties is the
         most time and cost efficient way to proceed given the issues of this particular case.
                  2.      That the parties have had the procedure fully explained to them and
         are concurrence with the same.
                  3.      That the parties shall not concede their right to appeal in the event the
         result is unsatisfactory and shall have any and all appellate rights available to them.
                  IT IS, THEREFORE,
                  ORDERED:
                  1.      That the above captioned matter be and hereby is set pursuant to the
         Alternative Dispute Resolution (ADR) process on April 28, 2000 at 9:00 A.M. in the
         Giles County Chancery courtroom.
                  2.      That the ADR process to be followed shall be:
                  A.      The Plaintiff and her attorney shall appear in Chambers before the Court in
                  the presence of the court reporter (if applicable) and shall explain her theories and
                  position regarding the lawsuit, custody issues, and the distribution of the marital
                  estate of the parties.
                  B.      That at the conclusion of the Plaintiff’s presentation to the Court she shall
                          leave the Chambers and the Defendant and his attorney shall then proceed to
                          talk with the Judge in the same manner.
                  C.      That during each parties’ separate presentation to the Court any
                          documentation of any description that shall be relied upon by either party may
                          be presented to the Court for its review.
                  D.      That the Court is free to ask any and all questions that the Court deems
                          appropriate during each individual session and may recall either or both
                          parties for further questions if needed.
                  E.      That this process shall not include calling of additional witnesses other than
                          the parties as set forth herein.1

      On August 31, 2000, the trial judge entered an order, apparently following a hearing as
contemplated by the parties in the previous order entered on May 26, 2000. This order, signed by


         1
           This order was signed by the parties and their respective attorneys and by the trial judge on April 28, 2000,
but no t entered of record until M ay 26, 200 0. Ap parently, no hearing was held on April 28 , 200 0.

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the trial judge on August 31, 2000, was accompanied by a Certificate of Service from the Clerk &
Master dated September 5, 2000 indicating service of the order upon Mr. Joe W. Henry, Jr. and Mr.
Raymond W. Fraley, Jr., attorneys for the respective parties. The order provided in pertinent part:

               This case was heard on the 25th day of August, 2000, upon the Complaint of
       the Plaintiff, Counter-Complaint of the Defendant, Answers thereto, testimony of the
       parties during mediation, exhibits thereto and the entire record as a whole the Court
       finds, after taking this matter under advisement, and does accordingly ORDER,
       ADJUDGE and DECREE (sic) as follows:

               1.      That a divorce should be and is hereby granted in this case, pursuant to Tenn.
                       Code Ann. § 36-4-129(b), as the Court finds both parties shared in the demise
                       of this marriage, and that both parties be restored all the rights and privileges
                       of unmarried persons;
               2.      That the parties be and are hereby awarded joint custody of the minor child
                       with Defendant being the primary custodial parent;
               3.      That both parties are given very liberal visitation at times and places mutually
                       agreeable between the parties. In the event the parties cannot mutually agree
                       upon visitation then the Plaintiff shall have visitation according to the
                       standard visitation schedule attached hereto as Exhibit “A”;
               4.      That neither party shall owe to the other any sums of child support due to the
                       awarding of joint custody;

This order further adjudicated rights of the parties as to visitation with the child and information
concerning the child together with a distribution of all marital property and an equal taxation of cost.

      On October 4, 2000, now represented by new counsel, Billy Wayne King filed a Motion for
New Trial Or In The Alternative To Alter And Amend Judgment, which provided:

                Now comes the Defendant pursuant to Rule 59.02 and Rule 59.04 and files
        this Motion. It is the Defendant’s position that the Order and hearing should be
        overturned or in the alternative modified. Specifically, the Defendant requests a new
        hearing or in the alternative that the Court award child support pursuant to the
        guidelines. The Defendant further requests that the Court modify the award of
        Thirty-five thousand dollars ($35,000) to the Plaintiff. The Defendant’s position is
        that certain retirement assets were not taken into account or consideration in the
        division of property and that the Court value was improper. Failure of the Court to
        do so justifies a new trial or a modification or amendment of the judgment entered.
                WHEREFORE PREMISES CONSIDERED Defendant moves this Court to
        set aside the Judgment of September 5, 2000 and grant a new trial or in the
        alternative modify said Order to accurately reflect the proper situation of the Parties
        and the applicable law.



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         This Motion For New Trial was heard by the trial court on January 3, 2001, and a transcript
of this proceeding is filed with the record. The court, however, heard no testimony, and the hearing
consisted of arguments by Mr. King’s new attorney, Honorable William C. Barnes, and Mrs. King’s
attorney, Honorable Joseph W. Henry, Jr. On January 12, 2001, a final order was entered by the trial
judge providing:

                This Motion for New Trial or to Alter or Amend Judgment was heard on the
       3rd day of January, 2001.
                It appeared to the Court that said Motion should be granted in part and denied
       in part for the reasons set forth hereinafter.
                The parties to this divorce were both represented by counsel, Joe Henry, Jr.,
       represented the Plaintiff, Katie Naomi King and Ray Fraley, represented the
       Defendant, Billy Wayne King. Both parties and their attorneys agreed to an order
       which allowed this case to be decided by mediation by the Court. Both parties
       submitted proposed judgments and the Defendant’s counsel submitted an evaluation
       of the parties’ assets, see Exhibit 1, dated, 10-22-99 and entered as Exhibit on 01-03-
       01, and these evaluations were adopted by counsel for Defendant and Plaintiff. The
       Court attempted to evenly divide the assets. One asset, a Five Thousand ($5,000)
       Dollar, IRA fund, owned by the Plaintiff is complained about in this Motion, but at
       the hearing on this case, the proof was that the Plaintiff cashed this IRA for
       children’s school expenses some eight months prior to the hearing.
                The Plaintiff agreed for the Defendant to be primary custodial parent and in
       lieu of her not paying child support to the Defendant, Plaintiff agreed not to seek
       alimony from the Defendant.
                The only alteration to this judgment the Court (sic) will agree to make
       concerns the evaluation of the 401K belonging to the Defendant. The Defendant
       should be given credit for whatever amount he is due for the years he owned this
       401K before the parties[’] marriage.
                All other matters in controversy were agreed upon at the August 25, 2000
       hearing.
                IT IS THEREFORE, ORDERED, ADJUDGED and DECREED that the
       Motion for New Trial or Alteration for this judgment is granted insofar as the
       Defendant shall be given credit for whatever amount he is due for the years he owned
       the 401K account prior to the parties[’] marriage. All other alterations or
       amendments are hereby denied.
                Costs and litigation taxes are hereby adjudge against the Defendant.

Mr. King appealed.

        This Court is now called upon to review a trial court decision based on factual testimony by
the parties. Even though the procedure used by the parties is an unusual one, it is a procedure agreed




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to by the parties and is the procedure under which testimony was heard by the trial judge.2 This
testimony is not preserved for appellate review, and we are unable to determine, without the
testimonial record of this hearing, whether or not the facts found by the trial judge are supported by
the evidence heard or whether or not the agreed procedure used was such a departure from acceptable
practice as to require reversal. This Court has held:

         Our ability to deal with this issue is hampered by the absence of either a transcript of
         the proceedings in the trial court or a statement of the evidence prepared in
         accordance with Tenn. R. App. P. 24(c).

                 When a trial court decides a case without a jury, its findings of fact are
         presumed to be correct unless the evidence in the record preponderates against them.
         Tenn. R. App. P. 13(d). This court cannot review the facts de novo without an
         appellate record containing the facts, and therefore, we must assume that the record,
         had it been preserved, would have contained sufficient evidence to support the trial
         court’s factual findings. McDonald v. Onoh, 772 S.W.2d 913, 914 (Tenn. Ct. App.
         1989); Irvin v. City of Clarksville, 767 S.W.2d 649, 653 (Tenn. Ct. App. 1987);
         Gotten v. Gotten, 748 S.W.2d 430, 432 (Tenn. Ct. App. 1988).

Sherrod v. Wix, 849 S.W.2d 780, 783 (Tenn. App. 1992); see also Scarbrough v. Scarbrough, 752
S.W.2d 94, 97 (Tenn. Ct. App. 1988).

       Absent a testimonial record, this Court is compelled to affirm the trial court on all matters
except for the issue of child support.

        The final order in this case provided, in part: “The Plaintiff agreed for the Defendant to be
primary custodial parent and in lieu of her not paying child support to the Defendant, Plaintiff agreed
not to seek alimony from the Defendant.” This agreement contravenes public policy, and this
provision of the decree is void. Witt v. Witt, 929 S.W.2d 360 (Tenn. Ct. App. 1996); Berryhill v.
Rhodes, 21 S.W.3d 188 (Tenn. 2000).

        As it appears that both parties participated in this agreement resulting in a decree relative to
child support that is void as against public policy, elemental fairness dictates that Appellant not be


         2
           Although the parties and the trial court referred to the procedure as mediation, it was not a med iation. Rule
31 of the Rules of the Tennessee Supreme Co urt, the source of authority for court-annexed alternative dispute resolution,
defines mediation as “an informal process in which a neutral person, called a mediator, conducts discussions among the
disputing parties designed to enab le them to reac h a mutually acceptab le agreement amo ng them selves o n all or any part
of the issues in dispute.” Tenn. Sup. Ct. R. 31 § 2 (c). The order entered herein does not reflect that it was the product
of an agreed settlement. Further, although a judge may act as a mediator, in which case the mediation is called a judicial
settlement conference, a judge before whom a case may be tried if settlement is unsuccessful may not serve as a mediator
in that case. Tenn. Sup. Ct. R. 31 § 2 (d). The refore, we co nclude that the unusual proc edure herein was not a mediation
or other authorized form of court-annexed alternative dispute resolution. Instead, it was an agreed-upon method of
presenting evidence to the trial court. The trial court’s order is consistent with that interpretation.

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allowed to disavow the portion of the agreement relinquishing a claim for child support without
simultaneously allowing Appellee relief from her agreement not to seek alimony.

       The portion of the judgment below relating to both child support and alimony is reversed,
and the case is remanded to the trial court for a determination, pursuant to Tennessee Code
Annotated section 36-5-101, of child support payable by the non-custodial parent under the Child
Support Guidelines and for determination of whether or not Appellee is entitled to alimony.

       In all other respects, the judgment of the trial court is affirmed. Costs on appeal are assessed
equally to the parties, and the case is remanded to the trial court for proceedings consistent with this
opinion.



                                                        ___________________________________
                                                        WILLIAM B. CAIN, JUDGE




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