                                                                                           01/03/2019
                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                               December 4, 2018 Session

  JEFFREY GLENN MITCHELL v. CAROL ANN THOMAS MITCHELL

             Appeal from the General Sessions Court for Blount County
                 No. S-17664       William R. Brewer, Jr., Judge
                      ___________________________________

                           No. E2017-00100-COA-R3-CV
                       ___________________________________

This is a post-divorce action involving the interpretation of certain provisions of the
parties’ marital dissolution agreement (“MDA”) and allegations of contempt of court for
failure to comply with the MDA. The Blount County General Sessions Court (“trial
court”) conducted a bench trial, took the matter under advisement, and directed the
parties to each prepare proposed findings of fact and conclusions of law. The trial court
subsequently adopted verbatim the wife’s proposed findings and conclusions with what
we determine to be insufficient explanation regarding the trial court’s decision-making
process. The husband has appealed. Because we are unable to ascertain whether the trial
court’s final order is an independent judgment of the court, we vacate the order and
remand for sufficient findings of facts and conclusions of law that reflect the trial court’s
independent analysis and judgment.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the General Sessions Court
                            Vacated; Case Remanded

THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which CHARLES D.
SUSANO, JR., J., and J. STEVEN STAFFORD, P.J., W.S., joined.

Elizabeth Sitgreaves, Brentwood, Tennessee, for the appellant, Jeffrey Glenn Mitchell.

Craig L. Garrett, Maryville, Tennessee, for the appellee, Carol Ann Thomas Mitchell.


                                        OPINION

                          I. Factual and Procedural Background

      Jeffrey Glenn Mitchell (“Husband”) and Carol Ann Thomas Mitchell (“Wife”)
were divorced on October 28, 2011, by order of the trial court. They had two minor
children of the marriage, R.K.M., who was fifteen years of age at the time of the divorce,
and D.T.M., who was eleven years old (collectively, “the Children”). Husband’s primary
source of income was from Benefit Consulting Services, Inc. (“BCS”), a company which
was owned solely by Husband following the parties’ divorce. The parties’ MDA, which
was incorporated into the trial court’s divorce judgment, included the following relevant
provisions:

             CHILD SUPPORT: The provisions of the Permanent Parenting
      Plan are hereby incorporated herein as if fully and specifically set out. Said
      Plan is adopted as Exhibit 1.

       ***

             PROPERTY DIVISION / CHILD SUPPORT: The Husband
      shall pay to the Wife a combination of property division and child support
      that will be paid in three levels as set out below. All payments shall cease
      upon the death of either party. All property division payments to the Wife
      shall be non-deductible to the Husband, nor considered income to the Wife
      for federal income tax purposes. Should the Wife remarry or cohabitate
      with another individual who is not a family member, the Husband’s
      obligation for the payment of property division portion shall terminate.

             Stage 1: Based upon the Husband’s current yearly income of
      $250,000 and the Wife’s ability to earn is $48,000 per year and that those
      amounts shall be used for child support worksheet calculation purposes
      now through the end of Stage 2, the date the parties[’] younger minor child
      [D.T.M.], attains the age of majority and there is no longer a child support
      obligation for him, which is anticipated to occur on May 31, 2018, the date
      of his graduation from high school as to he will have attained the age of
      eighteen.

             As per the attached child support worksheets, Stage l, shall be from
      the date of the entry of the Final Decree of Divorce until May 31, 2014,
      when the parties’ daughter, [R.K.M.] attains the age of majority and there is
      no longer a child support obligation for her. Husband shall pay a total
      amount of 28.8% ($6,000 / $250,000) of his gross annual income to the
      Wife, not to exceed a combination of child support and property division of
      $6,000.00 per month, which by way of current example would represent
      $2,082.00 per month child support and $3,918.00 per month as property
      division.




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             Stage 2: Beginning June 1, 2014, and continuing until the parties’
      son, [D.T.M.], attains the age of majority on May 31, 2018, and there is no
      longer a child support obligation for him, the Husband’s monthly obligation
      of property division / child support shall be reduced to 24.0% of his annual
      income not to exceed $5,000.00 per month. By way of example this would
      represent a monthly obligation of child support of $1,624.00 (see child
      support worksheet attached hereto) and a monthly obligation of $3,376.00
      as property division beginning June 1, 2014, and continuing until May 31,
      2018, making a total payment of $5,000.00.

              Stage 3: Beginning June 1, 2018, and continuing until May 31,
      2021, the Husband’s monthly obligation of property division shall be
      reduced to 13.2% of his annual income not to exceed $2,750.00 per month
      for a total of 36 months.

(Paragraph numbering omitted.)

       The parties had also entered into an agreed permanent parenting plan (“PPP”),
which provided that reasonable health insurance for the Children would be maintained by
Husband and that any reasonable and necessary medical expenses not covered by health
insurance would be paid by Husband. The parties subsequently reached an agreement
that despite the health insurance provision of the PPP, Wife would provide health
insurance for the Children through her employment, with Husband reimbursing her the
cost of such health insurance. Both the PPP and child support worksheet demonstrate
that Husband’s initial child support obligation was $2,082.00 for both of the Children.

        On January 10, 2014, Husband filed a “Motion to Clarify, Amend, Modify, and/or
Void Final Judgment for Divorce as to Child Support Obligation and Property Division.”
Husband argued in his motion that a substantial change of circumstance had occurred
because his income had decreased. Husband averred that the decrease of his income was
not foreseeable or voluntary and that he was accordingly entitled to a downward
modification of his child support obligation. Husband further contended that the MDA
was “deficient, ambiguous, and contrary to the requirements of the Tennessee Income
Shares Guidelines and Tenn. Comp. R. & Regs., Chapter 1240-2-4-.04(3)(a)” because it
purportedly comingled the property division and child support obligations, was
determined based on a percentage of Husband’s income, and failed to designate how
much of that amount would be categorized as child support. Husband argued that the
trial court “must state a specific dollar amount [of child support], not a percentage of
Adjusted Gross Income.”

     In March 2014, Wife filed an answer in response to Husband’s motion, denying
Husband’s averment that a substantial change in circumstance existed and his assertion

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that the MDA was deficient, ambiguous, and contrary to Tennessee law. Wife included
in her response a counter-motion, requesting that the trial court find Husband to be in
contempt of court due to his noncompliance with certain requirements in the MDA.
Specifically, Wife alleged that Husband had failed to maintain a “vacation fund account
for the benefit of [Wife],” as required by the MDA, and that none of the conditions that
would terminate Husband’s obligation to maintain the fund had occurred. According to
Wife, Husband had also “unilaterally reduced his $6,000.00 a month payment which
constituted child support of $2,082.00 and property division payment of $3,918.00 to the
sum of $4,000.00” and the reduction was in violation of the trial court’s order. Wife
further requested an award of attorney’s fees and associated expenses.

        On December 16, 2014, Wife filed a motion to dismiss, which the trial court
subsequently granted due to Husband’s failure to prosecute his motion and respond to
discovery requests. Wife subsequently filed an amended counter-motion on September
16, 2016, which included allegations of another violation by Husband of the court’s
order. Specifically, Wife alleged that Husband was required to pay all medical expenses
of the Children pursuant to the PPP and that he had “failed and refused to pay the medical
bills.” According to Wife, she had also paid for some of the Children’s medical bills and
despite her requests, Husband had “failed and refused to reimburse” her. In the amended
counter-motion, Wife again requested that Husband “be held in willful contempt” and
that she be awarded her attorney’s fees and court costs.

       On September 19, 2016, Husband filed a motion, alleging that Wife’s
interpretation of the MDA was flawed and requesting an award of attorney’s fees and
costs that Husband had incurred defending against Wife’s claims. All pending matters
were heard during a hearing on September 20, 2016, which included testimony from
Husband and Wife. Following the hearing, the trial court took the matter under
advisement, requesting that the parties file respective proposed findings of fact and
conclusions of law. The trial court entered an order on December 16, 2016, adopting
verbatim those findings and conclusions prepared by Wife.

       The trial court found, as part of the findings of fact and conclusions of law adopted
in its December 16, 2016 order, that Husband was in willful contempt of court for his
“failure to maintain the vacation fund, failure to pay the son’s medical bills, and failure to
make the payments owed” pursuant to the Property Division/Child Support section of the
MDA. Also as part of the adopted findings and conclusions, the trial court awarded to
Wife a judgment against Husband totaling $82,156.45; which included $73,763.00 in
unpaid property division and child support payments; $2,093.97 for payment of the
Children’s medical bills; $2,400.00 for unpaid payments to the vacation fund account,
and $3,899.48 owed to Wife for reimbursement of the Children’s health insurance costs.



                                            -4-
        Following entry of the trial court’s order on December 16, 2016, Wife filed a
motion on January 13, 2017, requesting that she be awarded attorney’s fees incurred in
the matter. The trial court subsequently granted Wife’s request for attorney’s fees in the
amount of $14,675.00 in its final order entered on May 26, 2017. The final order reflects
that following the trial but before the final order was entered, Husband had paid to Wife
the money he owed toward the vacation fund account and had paid D.T.M.’s outstanding
medical bills. Husband timely appealed.

                                    II. Issues Presented

       Husband has raised four issues for our review, which we have restated slightly:

       1.     Whether the trial court erred in its interpretation of the parties’
              MDA.

       2.     Whether the trial court erred by finding Husband to be in willful
              contempt of court and in calculating the amounts owed by Husband
              pursuant to the MDA.

       3.     Whether the trial court erred in finding that Husband was voluntarily
              underemployed for purposes of his child support and property
              distribution obligations.

       4.     Whether the trial court erred in awarding to Wife her attorney’s fees,
              and whether Husband should be awarded his attorney’s fees.

Wife has also presented the following issue, which we have similarly restated:

       5.     Whether Wife is entitled to attorney’s fees on appeal.

                                 III. Standard of Review

       We review a non-jury case de novo upon the record, with a presumption of
correctness as to the findings of fact unless the preponderance of the evidence is
otherwise. See Tenn. R. App. P. 13(d); Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn.
2000). “In order for the evidence to preponderate against the trial court’s findings of fact,
the evidence must support another finding of fact with greater convincing effect.” Wood
v. Starko, 197 S.W.3d 255, 257 (Tenn. Ct. App. 2006). We review questions of law de
novo with no presumption of correctness. See Bowden, 27 S.W.3d at 916 (citing Myint v.
Allstate Ins. Co., 970 S.W.2d 920, 924 (Tenn. 1998)); see also In re Estate of Haskins,
224 S.W.3d 675, 678 (Tenn. Ct. App. 2006). The trial court’s determinations regarding
witness credibility are entitled to great weight on appeal and shall not be disturbed absent

                                            -5-
clear and convincing evidence to the contrary. See Morrison v. Allen, 338 S.W.3d 417,
426 (Tenn. 2011); Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002).

       Marital dissolution agreements are contractual and, once approved by the trial
court, “become legally binding obligations on the parties.” Long v. McAllister-Long, 221
S.W.3d 1, 8-9 (Tenn. Ct. App. 2006), perm. app. denied (Tenn. Jan. 29, 2007)
(explaining that with the two “notable exceptions” of child support and alimony, which
remain modifiable by the courts, “the agreements in a marital dissolution agreement are
enforceable contract obligations”). We review issues of contract interpretation de novo.
See Dick Broad. Co. of Tenn. v. Oak Ridge FM, Inc., 395 S.W.3d 653, 659 (Tenn. 2013).
As this Court has previously explained:

             In resolving a dispute concerning contract interpretation, our task is
      to ascertain the intention of the parties based upon the usual, natural, and
      ordinary meaning of the contract language. Planters Gin Co. v. Fed.
      Compress & Warehouse Co., Inc., 78 S.W.3d 885, 889-90 (Tenn. 2002)
      (citing Guiliano v. Cleo, Inc., 995 S.W.2d 88, 95 (Tenn. 1999)). A
      determination of the intention of the parties “is generally treated as a
      question of law because the words of the contract are definite and
      undisputed, and in deciding the legal effect of the words, there is no
      genuine factual issue left for a jury to decide.” Planters Gin Co., 78
      S.W.3d at 890 (citing 5 Joseph M. Perillo, Corbin on Contracts, § 24.30
      (rev. ed. 1998); Doe v. HCA Health Servs. of Tenn., Inc., 46 S.W.3d 191,
      196 (Tenn. 2001)). The central tenet of contract construction is that the
      intent of the contracting parties at the time of executing the agreement
      should govern. Planters Gin Co., 78 S.W.3d at 890. The parties’ intent is
      presumed to be that specifically expressed in the body of the contract. “In
      other words, the object to be attained in construing a contract is to ascertain
      the meaning and intent of the parties as expressed in the language used and
      to give effect to such intent if it does not conflict with any rule of law, good
      morals, or public policy.” Id. (quoting 17 Am. Jur. 2d, Contracts, § 245).

Kafozi v. Windward Cove, LLC, 184 S.W.3d 693, 698 (Tenn. Ct. App. 2005), perm. app.
denied (Tenn. Jan. 30, 2006).

                      IV. Independent Judgment of the Trial Court

       As a threshold issue, we first address whether the trial court’s judgment, in which
the court adopted verbatim Wife’s proposed findings of fact and conclusions of law, was
the independent judgment of the trial court. Upon a thorough review of the record, we
cannot make a determination that the proposed findings of fact and conclusions of law
prepared by Wife represent the trial court’s own independent analysis and judgment.

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       A trial court speaks through its written orders, Williams v. City of Burns, 465
S.W.3d 96, 119 (Tenn. 2015), and the judgment entered by the trial court must be the
independent judgment of the trial court, Smith v. UHS of Lakeside, Inc., 439 S.W.3d 303,
316 (Tenn. 2014). In Smith, our Supreme Court explained the importance of the trial
court’s providing legal reasoning for its decision:

               The essential purposes of courts and judges are to afford litigants a
       public forum to air their disputes, and to adjudicate and resolve the disputes
       between the contending parties. To carry out these purposes, judges must
       arrive at their decisions by applying the relevant law to the facts of the case.
       Because making these decisions is a “high judicial function,” a court’s
       decisions must be, and must appear to be, the result of the exercise of the
       trial court’s own judgment.

Smith, 439 S.W.3d at 312 (footnotes and other internal citations omitted) (emphasis
added).

       In making its determination in Smith, the Tennessee Supreme Court analyzed a
decision from the United States Supreme Court, wherein the Supreme Court “criticized
federal trial courts for their ‘verbatim adoption of findings of fact prepared by prevailing
parties, particularly when those findings have taken the form of conclusory statements
unsupported by citation to the record.’” Smith, 439 S.W.3d 303, 314-15 (Tenn. 2014)
(quoting Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 572 (1985)). In
Anderson v. City of Bessemer City, the United States Supreme Court had declined to hold
that the trial court’s adoption of proposed findings of fact was reversible error because
the High Court found that the record demonstrated that the trial court’s findings and
conclusions “represent[ed] the judge’s own considered conclusions.” 470 U.S. 564, 572
(1985). The Supreme Court arrived at this decision because the trial court had filed a
memorandum opinion explaining its decision and rationale prior to requesting party-
prepared findings and conclusions and because the trial court had revised the party-
prepared findings and conclusions such that the findings and conclusions ultimately
adopted by the lower court “varied considerably in organization and content” from those
submitted by counsel. Anderson, 470 U.S. at 572.

      Drawing upon the United States Supreme Court’s decision in Anderson, the
Tennessee Supreme Court explained as follows:

       A trial court’s verbatim adoption of verbiage submitted by the prevailing
       party detracts from the appearance of a hardworking, independent judge
       and does little to enhance the reputation of the judiciary. At the very least,
       it gives rise to the impression that the trial judge either has not considered

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       the losing party’s arguments, or has done little more than choose between
       two provided options rather than fashioning a considered, independent
       ruling based on the evidence, the filings, argument of counsel, and
       applicable legal principles. At worst, it risks creating an appearance of bias
       or the impression that the trial court ceded its decision-making
       responsibility to one of the parties.

Smith, 439 S.W.3d at 315 (footnotes and other internal citations omitted).

        The Tennessee Supreme Court went on to explain that party-prepared findings of
fact, conclusions of law, or orders could be acceptable so long as two conditions are
satisfied. Smith, 439 S.W.3d at 315-16. The Smith Court instructed that (1) party-
prepared findings of fact and conclusion of law “must accurately reflect the decision of
the trial court” and (2) “the record must not create doubt that the decision represents the
trial court’s own deliberations and decision.” Id. at 316. As such, the Court explained
that appellate courts have declined to accept party-prepared findings, conclusions, and
orders when the record fails to provide insight into the trial court’s reasoning to support
its decision or the record raises a question as to whether the findings, conclusions, and
orders are the trial court’s own independent judgment. Id. The Smith Court recognized
that the ultimate concern regarding party-prepared findings and conclusions is the
“fairness and independence of the trial court’s judgment.” Id.

        Although Smith involved summary judgment, this Court has previously applied
the reasoning in Smith to proceedings not involving summary judgment. See, e.g.,
Deberry v. Cumberland Elec. Membership Corp., No. M2017-02399-COA-R3-CV, 2018
WL 4961527, at *2 (Tenn. Ct. App. Oct. 15, 2018) (“Because of the non-existence of an
oral ruling along with the near verbatim adoption of plaintiff’s findings and conclusions,
we cannot parse out whether the order was the trial court’s own independent judgment.”);
In re Dakota M., No. E2017-01855-COA-R3-PT, 2018 WL 3022682, at *6 (Tenn. Ct.
App. June 18, 2018) (“The order . . . does not allow us to conclude that the order was the
result of the court’s ‘own considered conclusions.’” (quoting Smith, 439 S.W.3d at 315))
(other internal citations omitted); In re Colton B., No. M2017-00997-COA-R3-PT, 2017
WL 6550620, at *5 (Tenn. Ct. App. Dec. 22, 2017) (“Given the nearly identical recitation
of facts contained in the petition and the final order, coupled with the trial court’s sparse
oral ruling, we must conclude that the record ‘casts doubt’ as to whether the trial court
exercised its independent judgment in this case.” (citing Smith, 439 S.W.3d at 316)).

        In the instant case, the statement of the evidence approved by the trial court
reflects that the court made no oral ruling at the conclusion of trial but instead took the
matter under advisement, directing each party to submit proposed findings of fact and
conclusions of law. The record is devoid of any direction provided to the parties by the
trial court in drafting their proposed findings and conclusions. In its December 16, 2016

                                            -8-
order, the trial court subsequently adopted verbatim Wife’s proposed findings of fact and
conclusions of law in their entirety. The trial court made no modifications to either the
verbiage or organization of Wife’s proposed findings and conclusions prior to their
adoption. In its December 16, 2016 order, the trial court stated as follows regarding its
findings of fact and conclusions of law:

            The primary issue before the Court was the interpretation and
      implementation of paragraph 27 of the original Marital Dissolution
      Agreement titled Property Division/Child Support.

            The Court heard from the parties and received several documents as
      evidence.

              At the close of the proof, the Court directed the parties to file
      proposed finding of facts and conclusions of law. The Court has reviewed
      the pleadings, the exhibits, the Court’s notes from the parties’ testimony
      and the proposed findings of fact and conclusion of law. Further, the Court
      has reviewed the relevant statutes and case law concerning the issues
      raised.

             It is the Court’s opinion that the findings of fact and conclusions of
      law filed by [Wife] shall be adopted by the Court as the Court’s findings of
      fact and conclusions of law.

              IT IS THEREFORE ORDERED that the Court’s findings of fact and
      conclusions of law shall be Findings 1 through 49 and Conclusions 1
      through 13 filed by [Wife] on November 4, 2016, as if specifically set out
      herein.

       In its subsequent final order, dated May 26, 2017, the trial court reiterated its
adoption of Wife’s findings of fact and conclusions of law as follows:

             THIS MATTER came on to be heard on the 30th day of September,
      2016, before the Honorable William R. Brewer, Jr., Judge of the General
      Sessions Court for Blount County, Tennessee, at which time the Court
      heard testimony of the parties and considered the additional evidence,
      exhibits and argument of counsel, at which time the Court took the matter
      under advisement and instructed the parties to submit proposed findings of
      fact and conclusions of law. The parties complied and submitted their
      respective Proposed Findings of Fact and Conclusions of Law and this
      Court, by Order dated December 16, 2016, concluded that the Findings of
      Fact and Conclusions of Law filed by [Wife], were adopted by the Court as

                                          -9-
      the Court’s Findings of Fact and Conclusions of Law and the Court so
      Ordered.

      ***

          Based upon the entire record before the Court, it is therefore,
      ORDERED, ADJUDGED and DECREED as follows:

            1.     The Court hereby adopts the Findings of Fact and
      Conclusions of Law submitted by [Wife] as the Findings of Fact and
      Conclusions of Law of the Court and specifically incorporates by reference
      Findings No. 1 - 49 and Conclusions No. 1 - 13 filed with the Court on
      November 4, 2016.

The trial court provided no further reasoning supporting its decision to adopt Wife’s
findings and conclusions over Husband’s.

        As the Smith Court cautioned, the trial court’s verbatim adoption of Wife’s
findings of fact and conclusions of law without any oral ruling or direction from the trial
court raises the appearance that the court merely chose “between two provided options
rather than fashioning a considered, independent ruling based on the evidence, the filings,
argument of counsel, and applicable legal principles.” See Smith, 439 S.W.3d at 315.
Party-prepared findings of fact and conclusions of law are only appropriate if the findings
and conclusions accurately reflect the trial court’s decision and if the record does not
create doubt as to whether the findings and conclusions represent “the trial court’s own
deliberations and decision.” See id. at 315-16.

       Based upon the record before us, we cannot make a determination that Wife’s
proposed findings of fact and conclusions of law, adopted verbatim by the trial court,
represent the trial court’s own independent analysis and judgment and not that of Wife or
Wife’s counsel. Ergo, we vacate the trial court’s judgment and remand for entry of
findings of fact and conclusions of law that reflect the trial court’s independent
“deliberations and decision.” See Smith, 439 S.W.3d at 316. As such, all remaining
issues on appeal are pretermitted as moot.

                                     V. Conclusion

       For the foregoing reasons, we vacate the trial court’s judgment and remand this
matter to the trial court for further proceedings consistent with this opinion and for
collection of costs assessed below. Costs on appeal are taxed one-half to the appellant,
Jeffrey Glenn Mitchell, and one-half to the appellee, Carol Ann Thomas Mitchell.


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         _________________________________
         THOMAS R. FRIERSON, II, JUDGE




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