                   IN THE COURT OF APPEALS OF TENNESSEE
                               AT KNOXVILLE
                             July 12, 2001 Session



         CATHERINE DEAN JACKSON v. BRUCE LANE JACKSON

                     Appeal from the Circuit Court for Hamilton County
                        No. 95-DR-1170      Samuel H. Payne, Judge

                                      FILED SEPTEMBER 5, 2001

                                 No. E2001-00287-COA-R3-CV



Catherine Dean Jackson (“Plaintiff”) filed a Complaint for divorce against her husband, Bruce Lane
Jackson (“Defendant”). The parties entered a stipulation, which was approved by the Trial Court,
in which they agreed both parties were entitled to a divorce and agreed that Plaintiff be granted
custody of their minor child. The parties, however, did not agree on the remaining issues of alimony
and the division of marital property and liabilities. Over approximately four years, the Trial Court
referred these issues to a Special Master on three occasions. Upon each referral by the Trial Court,
the Special Master held a hearing in which he heard arguments and, during the first two hearings,
heard testimony from the parties and witnesses. After each hearing, the Special Master filed his
report, but did not file a transcript of the hearing with the report as required by Tenn. R. Civ. P.
53.04(1). Among other findings, the Special Master recommended that Plaintiff receive
“rehabilitative alimony for life . . . ” in the amount of $1,000 per month and that Defendant pay the
parties’ entire 1994 tax liability. With the exception of modifying the Special Master’s alimony
recommendation to alimony in futuro, the Trial Court adopted the Special Master’s
recommendations which precipitated Defendant’s appeal. Due to the Special Master’s failure to
comply with Tenn. R. Civ. P. 53.04(1), we vacate the portion of the the Trial Court’s judgment
relative to alimony and the 1994 tax liability, affirm the remainder of the judgment, and remand.

           Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
                             Vacated In Part; Case Remanded.

D. MICHAEL SWINEY, J., delivered the opinion of the court, in which HOUSTON M. GODDARD , P.J.,
and HERSCHEL P. FRANKS , J., joined.

John P. Konvalinka and Mathew D. Brownfield, Chattanooga, Tennessee, for the Appellant, Bruce
Lane Jackson.

Grace E. Daniell, Chattanooga, Tennessee, for the Appellee, Catherine Dean Jackson.
                                                   OPINION

                                                  Background

                Catherine Dean Jackson filed a divorce Complaint in 1995 against her husband, Bruce
Lane Jackson. Thereafter, the parties filed a Stipulation of Mutual Divorce in which the parties
agreed both were entitled to a divorce and agreed that Plaintiff should have custody of their minor
child. The Trial Court entered an Order granting the parties’ divorce and awarding custody to
Plaintiff. The Trial Court, in this Order, referred the remaining issues, including division of the
parties’ assets and liabilities, the valuation of Defendant’s business, alimony, and child support to
a Special Master.

                Thereafter, a Special Master’s Report (“1995 Report”) addressing all of the issues
assigned to the Special Master by the Trial Court was filed. The 1995 Report stated that an eight-
hour hearing was held in October 1995, but no transcript of the hearing was attached to the report,
as is required by Tenn. R. Civ. P. 53.04(1). The 1995 Report reviewed the parties’ respective
educational backgrounds, present and past employment, and current earnings. The Special Master
found that Plaintiff earned $19,000 gross annual income as a dental assistant and that Defendant
earned approximately $16,190 gross monthly income and $10,500 net monthly income as a self-
employed insurance broker.1 The Special Master also found in his report that the parties owed
approximately $40,000 in federal tax liability for 1994, and recommended, that Defendant pay the
entire amount of 1994 tax liability. The Special Master also recommended in his 1995 Report that
rehabilitative alimony of $2,000 per month be awarded to Plaintiff which would be modified by the
Trial Court in a future hearing once the parties’ home was sold and the equity divided between the
parties.

                 Defendant filed a Motion to Confirm the 1995 Report without any objections.
Plaintiff filed Objections to Special Master’s Report. The Trial Court entered an Order confirming
the 1995 Report. The Order does not state that the Trial Court had access to the transcript of the
hearing in its review of the Special Master’s Report.

                In June 1997, Defendant filed a motion, raising a number of issues for the Trial
Court’s consideration, including a request for termination of Plaintiff’s award of rehabilitative
alimony. The Trial Court referred this issue, along with the issues of child support and the amount
Plaintiff should reimburse Defendant for the joint tax liability previously paid by Defendant, to the
Special Master.

                In February 1998, the Special Master filed a report (“1998 Report”) in which he
addressed the issues referred to him by the Trial Court, again without attaching a transcript from the
hearing. The Special Master stated in his report that, due to the fault of both parties, he did not
consider the issue of fault in the determination of alimony. The 1998 Report stated that Plaintiff’s


       1
           For simplicity’s sake, we use round numbers in this opinion.

                                                        -2-
income from her job as a dental assistant had increased from $19,000 to approximately $22,000 to
$24,000 per year. The Special Master found that Defendant’s gross monthly income had not
changed from the time of the 1995 Report as Defendant still was earning $11,000 per month but that
Defendant had shown that he could, at times, earn up to $16,000 per month. The 1998 Report stated
that in light of the duration of the parties’ marriage, Plaintiff’s relative economic disadvantage, the
parties’ standard of living during their marriage and Plaintiff’s then-depression, the Special Master
recommended Plaintiff receive $1,000 per month in “rehabilitative alimony for life.” Plaintiff filed
a Motion to Confirm Special Master’s Report. In response, Defendant objected to a number of the
Special Master’s recommendations and factual findings, including the award of alimony to Plaintiff
and the Special Master’s failure to prorate the tax liability between the parties.

                 In March 1999, the Trial Court entered an Order adopting the 1998 Report, with the
exception of the Special Master’s recommendation that Plaintiff receive rehabilitative alimony for
life. The Trial Court modified the alimony award to “permanent alimony for life until the death or
remarriage of [P]laintiff” but approved the amount of the alimony award of $1,000 per month.
Further, the Trial Court, in its 1999 Order, referred the issue of the allocation of the 1995 and 1996
tax liability to the Special Master.

               The Special Master filed a third report in November 1999 (“1999 Report”), again
without attaching a transcript of the hearing, in which he addressed the allocation of the 1994, 1995
and 1996 tax liability.2 In his 1999 Report, the Special Master confirmed his previous finding from
his 1995 Report that Defendant pay the entire 1994 joint tax liability and found that Defendant
should pay his tax liability from 1995 and 1996. Thereafter, Plaintiff filed a Motion to Confirm
Special Master’s Report. Defendant objected to the 1999 Report. The Trial Court held a hearing
regarding the 1994 and 1995 tax liability issue at which the parties provided testimony.

                The Trial Court confirmed the 1999 Report in a Final Order which disposed of all
pending issues, again apparently without having the opportunity to review a copy of the transcript
from the Special Master’s hearing. Thereafter, Defendant filed a Notice of Appeal, a Designation
of the Record, and along with transcripts from the Trial Court’s hearings, a partial transcript from
the 1995 Special Master hearing and the full transcripts from the 1998 and 1999 hearings with the
Special Master. The partial transcript from the 1995 Special Master hearing included only Plaintiff’s
testimony. Defendant also filed exhibits from the Trial Court’s and the Special Master’s hearings
without designating the particular hearing for each exhibit. This apparently was the first time that
any of the transcripts and exhibits from the Special Master hearings were made a part of the record.
In her responsive pleading, citing Tenn. R. App. P. 24, Plaintiff objected, contending that the entire
transcript from the 1995 hearing should be made a part of the record on appeal.

               Thereafter, the Trial Court entered an Order holding that no further transcripts needed
to be filed. The Trial Court held that the parties had filed all transcripts known to exist from the


         2
           The Sp ecial Ma ster, in his third and final report, again addressed the 1994 tax liability issue although the Trial
Court did not specifically re fer this particular issu e to the Spe cial Maste r in its 1999 O rder.

                                                             -3-
Special Master hearings and that a transcript of Defendant’s testimony from the 1995 hearing “no
longer exists and cannot now be transcribed.” The Trial Court further held that the transcripts filed
“are, under these circumstances, the most fair, accurate and complete account of what has transpired
. . . .” No Tenn. R. App. P. 24(c) Statement of the Evidence was filed for the missing portion of the
1995 transcript. This matter then came to this Court on Defendant’s appeal. We vacate, in part, and
remand.

                                             Discussion

                On appeal, and although not exactly stated as such, Defendant argues: 1) the Trial
Court erred in ordering Defendant to pay all of the parties’ 1994 tax liability; and 2) the Trial Court
erred in modifying the Special Master’s award of “rehabilitative alimony for life” to an award of
alimony in futuro since, Defendant argues, an award of alimony is not warranted.

               Plaintiff raises no additional issues on appeal but contends the Special Master’s
findings and conclusions as adopted by the Trial Court are conclusive on appeal when supported by
material evidence. See Manis v. Manis, 49 S.W.3d 295, 301, 2001 WL 60616 (Tenn. Ct. App. Jan.
25, 2001). Plaintiff also argues that since only a partial transcript from the 1995 Special Master
hearing was filed by Defendant, Defendant has waived all issues requiring a reference to the
transcript. Moreover, and most importantly, Plaintiff states “[t]he transcript of evidence was not
considered by the trial judge in any of the hearings which resulted in acceptance of the Special
Master’s report.” We find this final point to be dispositive of this appeal.

                 Tenn. R. Civ. P. 53 provides that a trial court may appoint a special master, and in
its order of reference, set the issues to be addressed by the special master at a proceeding where the
special master may hear counsel’s arguments and witness testimony and review exhibits. Tenn. R.
Civ. P. 53.01-.03. Rule 53.04 addresses the special master’s report which is to be prepared after the
proceeding, in pertinent part, as follows:

               The master shall prepare a report upon the matters submitted by the
               order of reference and, if required to make findings of fact and
               conclusions of law, the master shall set them forth in the report. The
               master shall file the report with the clerk of the court and, unless
               otherwise directed by the order of reference, shall file with it a
               transcript of the proceedings and of the evidence and the original
               exhibits. . . .

Tenn. R. Civ. P. 53.04(1) (emphasis added).


               The record on appeal shows that the Trial Court referred matters to the Special Master
on three occasions. The Trial Court’s three orders of reference did not exempt the Special Master
from the mandate of Rule 53.04(1) that a copy of the transcript of the proceedings and of the


                                                 -4-
evidence and the exhibits shall be filed with the Special Master’s report. The Special Master,
however, failed to file transcripts and exhibits with any of his reports. The record on appeal shows
that it was only after Defendant filed his Notice of Appeal that Defendant filed the transcripts and
numerous exhibits from the Special Master hearings.

                Our Supreme Court found that Tenn. R. Civ. P. 53.04(1) clearly places the
responsibility of filing the transcript on the special master, holding:

                   [W]e are compelled to conclude that because the master does have the
                   responsibility of filing a transcript unless specifically directed
                   otherwise by the order of reference under the current Rule 53.04(1),
                   the master in this case erred by failing to file a transcript. . . .

In re Estate of Tipps, 907 S.W.2d 400, 403 (Tenn. 1995).

               In this matter, we hold that it was error for the Special Master to fail to file transcripts
of the proceedings and evidence with his reports. Our inquiry, however, does not end here. A
special master’s failure to comply with Rule 53.04(1) is not always reversible error. In re Estate of
Tipps, 907 S.W.2d at 403. “‘[F]indings of fact by the master concurred in by the [Trial Court] are
conclusive on appeal if supported by any material evidence. . .[,]’” and the master’s failure to comply
with Tenn. R. Civ. P. 53.04(1) is harmless error if there is material evidence in the record to support
the master’s report. Id. (quoting Glenn v. Gresham, 602 S.W.2d 256, 258 (Tenn. Ct. App. 1980)).


                The record on appeal shows that, when the Trial Court adopted the Special Master’s
reports, it did not have, for its review, the proof submitted by the parties to the Special Master.
Instead, the Trial Court had before it only the Special Master’s reports, a few previously-filed
documents, including the parties’ Affidavits of Income and Expenses and their Assets and Liabilities
Statements.3 By contrast, the transcripts and partial transcript from the three Special Master hearings
contain witness testimony regarding the issues on appeal, alimony and tax liability.

               This Court explained the purpose of the requirement of Tenn. R. Civ. P. 53.04(1) that
the special master file the transcript and exhibits with his report as follows:

                   Once objections were timely filed to the Master’s report, it was
                   incumbent upon the Trial Judge to review the evidence and any
                   exhibits and if he disagreed with the findings of the Master, make
                   independent findings. The Judge could not do this in this case

         3
             The technical record on appeal only contains these documents for both parties for 1995, and only contains
Plaintiff’s Affidavit of Income and Expenses for 1997. It should also be noted that after the third Special Master hearing,
the Trial Court held a hearing regarding Defendant’s objections to the 1999 Report. A fter this hearing, the Trial Court
allowed Plaintiff to file supplemental exhibits, including tax returns and portions of the transcript from the second Special
Master hearing.

                                                            -5-
                   because he did not have the evidence heard by the Master before him
                   when he confirmed the Master’s report.

Fillers v. Cash, No. 03A01-9705-CV-00186, 1997 WL 694948, at * 2 (Tenn. Ct. App. Oct. 31,
1997).

                 Likewise, in this case, the Trial Court did not have the evidence considered by the
Special Master when it reviewed and adopted the Special Master’s reports. See id. Accordingly, the
Trial Court had no valid way to decide if it disagreed with the Special Master’s conclusions and
whether it needed to make independent findings. See id. In light of the comparatively scant amount
of evidence available to the Trial Court when it reviewed and adopted the Special Master’s reports,
and to us in the record on appeal, we hold there is a lack of material evidence in the record to support
the Special Master’s reports.4 See In re Estate of Tipps, 907 S.W.2d at 403. Therefore, considering
the facts and circumstances presented by the record on appeal, it was reversible error for the Special
Master to fail to file the transcripts and exhibits with each of his reports. See id.; Tenn. R. Civ. P.
53.04(1).

                                                        Conclusion

                 The portion of the Trial Court’s judgment pertaining to alimony and the 1994 tax
liability is vacated. The remainder of the judgment is affirmed. This matter is remanded to the Trial
Court for further proceedings consistent with this Opinion to resolve the remaining issues of alimony
and the 1994 tax liability, and for collection of costs below. Costs of this appeal are assessed equally
against the parties, the Appellant, Bruce Lane Jackson, and his surety, and the Appellee, Catherine
Dean Jackson.




                                                                    ___________________________________
                                                                    D. MICHAEL SWINEY, JUDGE




         4
            We ac knowledg e that upon D efendant’s o bjection to the Special Master’s final report, the 1999 Report, the
Trial Court itself heard testimony from the parties regarding the 1994, 1995 and 199 6 tax liability issue. The record on
appeal, nevertheless, shows that with respect to the 1994 tax liability, the Spe cial Maste r decided that Defend ant should
be assigned the ta x liability in his first report which was adopted by the Trial Court. The transcript from the first Special
Master hearing con tains testimony fro m the parties re garding the issu e of their 199 4 tax liability, but the Trial Court did
not have ac cess to this transc ript at any time this issue was raised.

                                                              -6-
