                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                December 12, 2012 Session

           CARRIE ALISANN HARDIN v. BRADLEY RAY HARDIN

             Direct Appeal from the Chancery Court for Weakley County
                    No. 20748    W. Michael Maloan, Chancellor


               No. W2012-00273-COA-R3-CV - Filed December 27, 2012


In this modification of custody case, Mother appeals only the trial court’s failure to make a
specific finding that modification is in the child’s best interest. Concluding that the trial court
failed to make the necessary findings of fact and conclusions of law, we vacate the order of
the trial court naming Father primary residential parent and remand to the trial court for the
entry of an order with appropriate findings of fact and conclusions of law.


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

J. S TEVEN S TAFFORD, J., delivered the opinion of the Court, in which A LAN E. H IGHERS,
P.J.,W.S., and D AVID R. F ARMER, J., joined.

James T. Powell, Union City, Tennessee, for the appellant, Carrie Alisann Hardin.

Kent T. Gearin, Martin, Tennessee, for the appellee, Bradley Ray Hardin.

                                           OPINION

                                         I. Background

       Carrie Alisann Hardin (“Mother”) and Bradley Ray Hardin (“Father”) were divorced
in 2009. Mother was named primary residential parent of the parties’ minor daughter. On
July 25, 2011, Father filed a Petition to Modify Permanent Parenting Plan Order, Issuance
of a Temporary Restraining Order and Contempt. Father alleged that contrary to the
provisions in the parenting plan, he had become the primary custodian of the child and the
child was residing with him 75% of the time. Father also alleged that Mother had several
relationships with various paramours, who were often allowed to spend the night at Mother’s
home in the same bed as Mother and the child. Father further alleged that the child, who has
allergies, is exposed to cigarette smoke while in Mother’s custody, that Mother’s financial
issues have caused her to move into an unsuitable home with a third party, and that Mother
leaves the child with a mentally unstable caretaker (specifically, the child’s grandmother).
Father also alleged that Mother was in contempt in failing to maintain health insurance for
the child.

        A Temporary Restraining Order was entered on July 25, 2011, enjoining Mother from
interfering with Father’s exclusive custody of the child, other than Mother’s two-day-a-week
parenting time. Mother filed an answer on July 29, 2011. Mother also filed a Counter-Petition
alleging a material change in circumstances based upon the child’s enrollment in pre-
kindergarten and alleging that Father was in contempt for failing to pay child support.

       On September 26, 2011, the trial court vacated the temporary order and ordered that
the parties would have equal parenting time on an alternating week basis. Mother was also
ordered to provide a letter from a doctor regarding the caretaker’s mental state.

       A trial was held on November 29, 2011. On January 9, 2012, the trial court entered
an order finding a material change in circumstances and naming Father primary residential
parent. The order states:

              Based upon the evidence produced at trial, testimony of the
              parties and witnesses, arguments of counsel and, in fact, a
              review of the record as a whole, the Court finds the Petition of
              the Father to modify the Permanent Parenting Plan Order is well
              taken and is granted in that there has been a material change of
              circumstances which has occurred since the entry of the
              previous Permanent Parenting Plan Order filed herein. It is
              therefore ordered that the Permanent Parenting Plan attached
              hereto is made an Order of this Court.

The Court further found that Mother should have standard visitation, that the child should
be kept in a smoke-free environment, and that, for purposes of child support calculation,
minimum wage income should be imputed to Mother. Mother appealed, but filed no
transcript or statement of the evidence. On July 6, 2012, this Court entered an order noting
that the trial court’s January 9, 2012 order failed to adjudicate either party’s petition for
contempt. In response, the trial court entered an order on July 11, 2012, specifically denying
both party’s contempt petitions and any other matters not specifically addressed in its earlier
order. The July 11, 2012 order made no additional findings with regard to the change of
custody issue.

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                                     II. Issues Presented

Mother raises one issue on appeal, specifically:

              Whether the trial court erred in failing to properly consider the
              factors as outlined in Tennessee Code Annotated Section 36-6-
              106 and by making no finding as to the weight, if any, given to
              any of the factors and could the Court have properly made a
              finding of best interest relating to the child without proper
              consideration of the above referenced factors?

In the posture of appellee, Father raises the following issue:

              Whether Father should be awarded his attorney fees incurred on
              appeal because the appeal has no chance of success and is,
              therefore, frivolous pursuant to Tennessee Code Annotated
              Section 27-1-122?

                                         III. Analysis

                                  A. Best Interest Finding

        We turn first to Mother’s argument that the trial court failed to make a proper finding
of best interest. In order to modify custody in an existing parenting plan, a trial court must
engage in a two-step analysis. First, the court must determine whether a material change in
circumstances has occurred since the entry of the prior order. Tenn. Code Ann. § 36-6-
101(a)(2)(B). Pursuant to Tenn. Code Ann. § 36-6-101(a)(2)(B), the party seeking
modification has the burden of proving a material change in circumstances. Second, upon
finding a material change in circumstances has occurred, the court must consider the factors
enumerated in Tenn. Code Ann. § 36-6-106(a) and make a determination whether it is in the
child's best interests to modify the current custody arrangement. Kendrick v. Shoemake, 90
S.W.3d 566, 570 (Tenn. 2002). The trial court is directed to consider a variety of factors in
determining the child’s best interest. See Tenn. Code Ann. § 36-6-404(b) (setting forth
various factors the trial court must consider in fashioning a parenting schedule, including
“[t]he character and physical and emotional fitness of each parent as it relates to each parent's
ability to parent or the welfare of the child” and “the importance of continuity in the child's
life and the length of time the child has lived in a stable, satisfactory environment”). This
Court has previously held that, while “there is no statutory requirement that the court list
every applicable factor along with its conclusion as to how that particular factor impacted the
overall custody determination,” the statute nevertheless “requires the trial court to consider

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all the applicable factors.”1 Murray v. Murray, No. M2009-01576-COA-R3-CV, 2010 WL
3852218, at *8 (Tenn. Ct. App. Sept. 28, 2010). Moreover, this Court has encouraged trial
courts to “be as precise as possible in making child custody findings” in order to facilitate
meaningful appellate review. In re Elaina M., No. M2010-01880-COA-R3-JV, 2011 WL
5071901, at *8 (Tenn. Ct. App. Oct. 25, 2011).

       Mother does not contest the trial court’s finding that a material change in
circumstances occurred in this case. Instead, she only argues that the trial court failed to
make an appropriate finding as to best interest. After reviewing the record in this case, we
conclude that the trial court failed to make findings of fact or conclusions of law on this issue
as required by Rule 52.01 of the Tennessee Rules of Civil Procedure. Accordingly, we vacate
and remand to the trial court for the entry of an order on the best interest issue that complies
with Rule 52.01.

       In bench trials, trial courts must make findings of fact and conclusions of law to
support their rulings. Rule 52.01 of the Tennessee Rules of Civil Procedure provides, in
pertinent part:

                In all actions tried upon the facts without a jury, the court shall
                find the facts specially and shall state separately its conclusions
                of law and direct the entry of the appropriate judgment. The
                findings of a master, to the extent that the court adopts them,
                shall be considered as the findings of the court. If an opinion or
                memorandum of decision is filed, it will be sufficient if the
                findings of fact and conclusions of law appear therein.

Id. Prior to July 1, 2009, trial courts were only required to make specific findings of fact and
conclusions of law “upon request made by any party prior to the entry of judgment.” See
Poole v. Union Planters Bank N.A., No. W2009-01507-COA-R3-CV, 337 S.W.3d 771, 791
(Tenn. Ct. App. 2010) (noting the amendment). However, the current version of Rule 52.01
requires the court to make these findings regardless of a request by either party. Id.

       This Court has previously held that the General Assembly’s decision to require
findings of fact and conclusions of law is “not a mere technicality.” In re K.H., No.
W2008-01144-COA-R3-PT, 2009 WL 1362314, at *8 (Tenn. Ct. App. May 15, 2009).


        1
           This Court has previously expressed concern that the case law holding that trial judges need not
articulate the factors pursuant to Tennessee Code Annotated Section 36-6-106(a) appears to conflict with the
intent of Tennessee Rule of Civil Procedure 52.01. See In re Elaina M., No. M2010-01880-COA-R3-JV,
2011 WL 5071901, at *8 n.13 (Tenn. Ct. App. Oct. 25, 2011).

                                                    -4-
Instead, the requirement serves the important purpose of “facilitat[ing] appellate review and
promot[ing] the just and speedy resolution of appeals.” Id.; White v. Moody, 171 S.W.3d
187, 191 (Tenn. Ct. App. 2004); Bruce v. Bruce, 801 S.W.2d 102, 104 (Tenn. Ct. App.
1990). “Without such findings and conclusions, this court is left to wonder on what basis the
court reached its ultimate decision.” In re K.H., 2009 WL 1362314, at *8 (quoting In re
M.E.W., No. M2003-01739-COA-R3-PT, 2004 WL 865840, at *19 (Tenn. Ct. App. April
21, 2004)).

        The trial court made no finding as to best interest in this case, nor does its order reflect
that the trial court considered any of the applicable factors in ruling that Father should be
named primary residential parent of the child. This omission is in clear contravention of the
trial court’s duty to make findings of fact and conclusions of law pursuant to Rule 52.01, as
well as its duty to “consider all the applicable factors” when making a best interest
determination. Murray, 2010 WL 3852218, at *8. At oral argument, however, counsel for
Father argued that the trial court’s failure to make findings of fact and conclusions of law on
the best interest issue was excused when Mother failed to file a transcript or statement of the
evidence with her appeal. Rule 24 of the Tennessee Rules of Appellate Procedure provides,
in pertinent part:

               (b) Transcript of Stenographic or Other Substantially
               Verbatim Recording of Evidence or Proceedings. If a
               stenographic report or other contemporaneously recorded,
               substantially verbatim recital of the evidence or proceedings is
               available, the appellant shall have prepared a transcript of such
               part of the evidence or proceedings as is necessary to convey a
               fair, accurate and complete account of what transpired with
               respect to those issues that are the bases of appeal. Unless the
               entire transcript is to be included, the appellant shall, within 15
               days after filing the notice of appeal, file with the clerk of the
               trial court and serve on the appellee a description of the parts of
               the transcript the appellant intends to include in the record,
               accompanied by a short and plain declaration of the issues the
               appellant intends to present on appeal. . . . The transcript,
               certified by the appellant, appellant's counsel, or the reporter as
               an accurate account of the proceedings, shall be filed with the
               clerk of the trial court within 60 days after filing the notice of
               appeal.

               (c) Statement of the Evidence When No Report, Recital, or
               Transcript Is Available. If no stenographic report, substantially

                                                -5-
              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. The statement,
              certified by the appellant or the appellant's counsel as an
              accurate account of the proceedings, shall be filed with the clerk
              of the trial court within 60 days after filing the notice of appeal.

        “The absence of either a transcript or a statement of the evidence significantly ties the
hands of the appellate court.” Chandler v. Chandler, No. W2010-01503-COA-R3-CV, 2012
Tenn. App. LEXIS 418, at *19 (Tenn. Ct. App. June 26, 2012). “The duty to see to it that the
record on appeal contains a fair, accurate, and complete account of what transpired with
respect to the issues being raised on appeal falls squarely on the shoulders of the parties
themselves, not the courts.” Trusty v. Robinson, No. M200-01590-COA-R3-CV, 2001 WL
96043, at *1 (Tenn. Ct. App. Feb. 6, 2001) (citing Tenn. R. App. P. 24(b); State v. Ballard,
855 S.W.2d 557, 560–61 (Tenn. 1993); Realty Shop, Inc. v. RR Westminister Holding, Inc.,
7 S.W.3d 581, 607 (Tenn. Ct. App. 1999); Nickas v. Capadalis, 954 S.W.2d 735, 742 (Tenn.
Ct. App. 1997)). Generally, the failure to file an adequate appellate record will be attributed
to the appellant, who bears the responsibility to prepare a record that is adequate for a
meaningful appellate review. Tenn. R. App. P. 24(b); McDonald v. Onoh, 772 S.W.2d 913,
914 (Tenn. Ct. App. 1989). Without an appellate record containing the facts, this court
cannot perform a de novo review or determine the preponderance of the evidence. Sherrod
v. Wix, 849 S.W.2d 780, 783 (Tenn. Ct. App. 1992). Therefore, in such cases, we generally
assume that the record, had it been preserved, would have contained sufficient evidence to
support the trial court's factual findings. Id.; McDonald, 772 S.W.2d at 914; Gotten v.
Gotten, 748 S.W.2d 430, 432 (Tenn. Ct. App. 1988). Thus, Father argues that Mother’s
failure to file a transcript or statement of the evidence requires this Court to presume that the
trial court’s decision is supported by the evidence, despite the trial court’s failure to make
findings of fact and conclusions of law.

        In this case, however, we conclude that Mother’s failure to file a transcript or
statement of the evidence does not vitiate the trial court’s failure to make specific findings
of fact and conclusions of law. We note that the trial court is now required to make such
findings regardless of a request from either party. See Poole, 337 S.W.3d at 791. Therefore,
the trial court’s duty under Rule 52.01 is not conditioned on the actions of the parties.
Further, the trial court’s duty to make findings of fact and conclusions of law precedes the
filing of an appeal and the duty to prepare the appellate record. Not only does the
requirement of findings of fact and conclusions of law help “facilitate appellate review.” In

                                               -6-
re K.H., 2009 WL 1362314, at *8, but by clearly expressing its reasons for making a decision
to the parties involved, the trial court may decrease the likelihood of an appeal. In addition,
we have held that the technical record coupled with the appropriate findings of fact and
conclusions of law as set out by the trial court are sometimes sufficient to support limited,
but meaningful appellate review. See Gross v. McKenna, No. E2005–02488–COA–R3–CV,
2007 WL 3171155, at *2–3 (Tenn. Ct. App. Oct. 30, 2007) (“Because of the absence of a
proper record, we are limited to addressing those issues which raise pure questions of law,
as well as any issues challenging the trial judge’s application of the law to the facts as stated
by the judge himself in his memorandum opinions.”); Baker v. Hancock County Election
Commission, No. 15, 1987 WL 7717, at *1 (Tenn. Ct. App. March 12, 1987) (“No transcript
or statement of the evidence was filed, but we will accept as accurate the findings of fact in
the Trial Court's memorandum opinion”). Thus, appellate review is sometimes possible in
the absence of a transcript or statement of the evidence, so long as the trial court made
appropriate findings of fact and conclusions of law. In contrast, we have held that when the
trial court fails to make sufficient findings of fact and conclusions of law, the appropriate
remedy is to “vacate the trial court's judgment and remand the cause to the trial court for
written findings of fact and conclusions of law,” Lake v. Haynes, No. W2010-00294-COA-
R3-CV, 2011 WL 2361563, at *1 (Tenn. Ct. App. June 9, 2011), unless the issue on appeal
involves only a clear legal issue, Burse v. Hicks, No. W2007–02848–COA–R3–CV, 2008
WL 4414718, at *2 (Tenn. Ct. App. Sept. 30, 2008), or when the court’s decision is “readily
ascertainable.” Burgess v. Kone, Inc., No. M2007–0259–COA–R3–CV, 2008 WL 2796409,
at *2 (Tenn. Ct. App. July 18, 2008). However, the issue of what is in the best interest of a
child is a particularly fact-driven analysis, Nichols v. Nichols, 792 S.W.2d 713, 716 (Tenn.
1990); Gaskill v. Gaskill, 936 S.W.2d 626, 630 (Tenn. Ct. App.1996), and nothing in the trial
court’s order suggests that the trial court considered it. Therefore, we conclude that Mother’s
failure to properly file a transcript or statement of the evidence does not trump the trial
court’s failure to follow the mandates of Rule 52.01 by making detailed findings of fact and
conclusions of law on the fact-intensive issue of what is in the best interests of the child.

        As previously discussed, in order to modify custody, the trial court must determine
both that there has been a material change in circumstances, and that a change in custody is
in the child’s best interests. See Tenn. Code Ann. § 36-6-101(a). Thus, a finding that there
has been a material change in circumstances, alone, is insufficient to justify modifying
custody of a child. See Kendrick v. Shoemake, 90 S.W.3d 566, 570 (Tenn. 2002) (“If a
material change in circumstances has occurred, it must then be determined whether the
modification is in the child's best interests.”). Because the trial court in this case failed to
make any findings regarding the best interest of the child, we vacate the judgment of the trial
court naming Father primary residential parent of the child, and remand for the entry of an




                                               -7-
order with appropriate findings of fact and conclusions of law.2

                                           B. Attorney Fees

      In his brief, Father requests an award of attorneys fees incurred on appeal pursuant
to Tennessee Code Annotated Section 27-1-122, which provides:

                When it appears to any reviewing court that the appeal from any
                court of record was frivolous or taken solely for delay, the court
                may, either upon motion of a party or of its own motion, award
                just damages against the appellant, which may include but need
                not be limited to, costs, interest on the judgment, and expenses
                incurred by the appellee as a result of the appeal.

 “An appeal is deemed frivolous if it is devoid of merit or if it has no reasonable chance of
success.” Wakefield v. Longmire, 54 S.W.3d 300, 304 (Tenn. Ct. App. 2001). “Imposing a
penalty for a frivolous appeal is a remedy which is to be used only in obvious cases of
frivolity and should not be asserted lightly or granted unless clearly applicable, which is rare.
Henderson v. SAIA, Inc., 318 S.W.3d 328, 342 (Tenn. 2010). In this case, we have decided
the issue raised by Mother in her favor. Accordingly, her appeal was not frivolous. Father’s
request for attorney fees is, therefore, denied.

                                            III. Conclusion

        The judgment of the trial court is vacated and this cause is remanded to the trial court
for all further proceedings as may be necessary and consistent with this opinion. Costs are
assessed against Appellee Bradley Ray Hardin, for which execution may issue if necessary.




                                                          _________________________________
                                                          J. STEVEN STAFFORD, JUDGE




        2
          Mother requests that this Court require the trial court to hold a new hearing on the issue of best
interest upon remand. We decline to require the trial court to hold a new hearing; however, the trial court
may, in its discretion, hold a new hearing on this issue, if it concludes that a new hearing is warranted.

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