                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
                                       July 6, 2004 Session

       DONNA WOODS HARTMAN v. PATRICK ERWIN HARTMAN

                      Appeal from the Chancery Court for Maury County
                            No. 99-441   Jim T. Hamilton, Judge



                   No. M2003-00805-COA-R3-CV - Filed December 30, 2004


WILLIAM B. CAIN, J., concurring.

        I concur in the results of the opinion written by Judge Clement under the facts of this case
and also concur in the holding that the method of presenting evidence to the trial court characterized
as a “mediation” or an “Alternative Dispute Resolution Procedure” qualifies as neither under Tenn.
S. Ct. R. 31.

       Being a “graduate” of the Twenty-Second Judicial District, I am familiar with the unorthodox
procedure used in this case to short-circuit an open court trial. Whatever its merits in the trial court
may be, it is a procedure almost certainly doomed to failure on appeal. Judge Cottrell aptly
described the procedure in Thomas v. Thomas, M2001-01226-COA-R3-CV (Tenn. Ct. App. August
2, 2002):

                If, in fact, the parties below simply agreed to an alternative method for getting
        evidence before the trial court upon which the court was to base its ruling, the result
        of that agreement was a waiver of the right to present additional relevant testimony
        through other witnesses with knowledge of the facts, the right to be present when the
        other party testified, and the right to cross-examination, all of which are waivable.
        Although the trial court apparently authorized court reporters to be present at the
        separate presentation of each party, neither party took advantage of this offer. The
        combination of this decision and the waiver of the right to be present during the other
        party’s testimony resulted in neither party knowing the details of the other’s
        testimony, even after the fact, and the subsequent inability to preserve that testimony
        for appellate review either through a transcript or a statement of the evidence.

          The flaws in such a procedure, particularly to any party contemplating an appeal, are so
obvious that it is hardly useful to discuss them. There will be no transcript of the evidence presented
in the in-camera proceedings before the trial court. A Tenn. R. App. P. 24 statement of the evidence
is, as a practical matter, near impossible since neither attorney knows what either of the parties stated
to the trial judge. With no testimonial record on appeal in this type of fact-sensitive case possible,
an appeal limited solely to questions of facts is futile.

       Nonetheless, if competent parties both represented by competent counsel, are in full
agreement to the employment of such an unorthodox procedure, there appears to be no reason why
they cannot waive the right to confrontation and cross examination and agree to a procedure that
makes a fact-based appeal useless.

         Our limited experience with appeals from this unconventional method of trial has borne out
the futility of a fact-based appeal. In Thomas v. Thomas a judgment of the trial court was affirmed
because there was neither a transcript of the evidence nor a statement of the evidence, thus
compelling affirmance on the facts. Sherrod v. Wicks, 849 S.W.2d 780, 783 (Tenn. Ct. App. 1992).

       The same thing happened in King v. King, M2001-00275-COA-R3-CV (Tenn. Ct. App. Dec.
13, 2001). Lack of a testimonial record compelled affirmance on the facts although this court
reversed the trial court on the failure to set child support, holding that such violated public policy.
Berry Hill v. Roads, 21 S.W.3d 188 (Tenn. 2000).

       I join the court in discouraging future use of this unorthodox procedure, particularly in the
absence of a stipulation on the record that in utilizing such a procedure every party is, in effect,
waiving any appeal based on the facts of the case.

        In this particular case, the $75,000 award to the Wife for contributions to the former medical
practice of the Husband must be vacated. The medical practice was not in existence at the time the
divorce action was filed in July 1999, it having been closed in 1997. It, thus, cannot be a marital
asset. Cutsinger v. Cutsinger, 917 S.W.2d 238, 241 (Tenn. Ct. App. 1995).

       With these brief comments, I concur in the judgment.



                                                              _______________________________
                                                              WILLIAM B. CAIN, JUDGE




                                                 -2-
