                  IN THE COURT OF APPEALS OF TENNESSEE
                               AT JACKSON
                                    October 24, 2012 Session

                         IN THE MATTER OF: CONNOR S.L.

                Direct Appeal from the Juvenile Court for Carroll County
                       No. JC6500-11     Robert W. Newell, Judge


                 No. W2012-00587-COA-R3-JV - Filed November 8, 2012


In this paternity case, Father appeals the Carroll County Juvenile Court’s rulings with regard
to custody and parenting time with his minor child. The trial court’s ruling as to the paternity
of the child is affirmed. However, because the trial court did not comply with Rule 52.01 of
the Tennessee Rules of Civil Procedure, we vacate the judgment of the trial court with regard
to custody and the parenting schedule and remand for 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 Juvenile Court Affirmed in
                     Part; and Vacated in Part 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 H OLLY M. K IRBY, J., joined.

Carl E. Seely, Jackson, Tennessee, for the appellant, Jason L.L.

J. Neil Thompson, Huntingdon, Tennessee, for the appellee, Amy J.W.

                                              OPINION

                                           I. Background

       Appellant Jason L.L. (“Father”) and Appellee Amy J. W. (“Mother”) have one child,
Connor S.L. (d.o.b. 7/31/11) (“Connor” or “the child”).1 Although the parties were never
married, Father acknowledged Connor as his child. Mother and Father lived together for a
time after the child’s birth; however the relationship deteriorated and Mother moved out.


        1
           In cases involving minor children in juvenile court, it is this Court's policy to redact names
sufficient to protect the children's identity.
        On September 29, 2011, Father filed a Petition to Approve Parenting Plan in the
Carroll County Juvenile Court. Juvenile Court Judge Larry Logan withdrew from the case 2
and Judge Robert Newell of Gibson County was selected to sit by interchange. At the initial
hearing on November 3, 2011, Judge Newell ordered the Department of Children’s Services
(“DCS”) to conduct a home study, develop a safety plan, and develop a plan for Father to
receive supervised visitation. The Court further ordered the parties to submit to DNA testing
to establish paternity. Father subsequently filed a petition to establish paternity. Father later
filed a proposed parenting plan in which he sought to be named the primary residential parent
of the child.

        A hearing was held on January 20, 2012 on all outstanding issues. At the time of trial,
both Mother and Father were living with their respective parents. Father testified that he
works Monday through Friday from 8:00 am to 5:00 pm and that his commute is
approximately forty minutes. Mother testified, in contrast, that she works at the daycare
center where the child currently attends, so that she can work and have parenting time with
the child simultaneously. Nevertheless, Father asked to be named the primary residential
parent and sought parenting time with the child on Sunday through Friday nights. Mother,
in contrast, testified that she was the child’s primary caregiver from the time of his birth and
that Father had not had any unsupervised visits with the child prior to the hearing, even when
the parties lived together. Thus, Mother asked to be named the primary residential parent of
the child. Testimony on behalf of Father admitted that neither Father nor his family had any
unsupervised visitation with the child since Mother and Father parted, but alleged that the
restriction was based on Mother’s contention that the child should not be away from her
while she was still breastfeeding. However, Mother’s father, Guy W., testified that his wife
has taken care of the child when he was ill, while Mother was at work. Mother further
testified that Father had not paid any child support since the child’s birth. Instead of receiving
support from Father, Mr. W. testified that he and his wife provide support for the child. Mr.
W. further admitted that his family never sought any financial support from Father prior to
these proceedings.

       At the conclusion of the hearing, the trial court orally ruled that Father was the
biological parent of the child,3 named Mother primary residential parent and awarded Father
every other weekend visitation. The trial court further set Father’s child support based on his
income and ordered that he pay retroactive child support as of the time that the parties


        2
          According to the testimony at the later hearing in this cause and the briefs in this case, Judge Logan
withdrew due to his professional and/or personal relationship with Mother’s father, Guy W., who is the
District Public Defender for the 24th Judicial District, which includes Carroll County.
        3
            Neither party takes issue with this ruling on appeal.

                                                       -2-
separated. A written order memorializing the trial court’s oral ruling was entered on February
24, 2012. The order included a permanent parenting plan.4

                                     II. Issues Presented
        Father appeals, raising the following issues, which are taken from his brief:

1.      Whether the trial court’s ruling as to custody is contrary to the preponderance of the
        evidence?
2.      Whether the trial court failed to properly consider the statutory factors mandated by
        Tennessee Code Annotated Section 36-6-106(a) to achieve the maximum participation
        possible for each parent in the child’s life?
3.      Whether the trial court’s ruling is in the best interest of the child or supported by the
        preponderance of the evidence?


                                              III. Analysis

       As a preliminary matter, we will first discuss Mother’s contention that Father was
required to prove a material change in circumstances in order to seek custody of the child.
It is well settled that “where a decree has been entered awarding custody of children, that
decree is [r]es []judicata and is conclusive in a subsequent application to change custody
unless some new fact has occurred which has altered the circumstances in a material way to
make the welfare of the children require a change in custody.” Long v. Long, 488 S.W.2d
729 (Tenn. Ct. App. 1972) (emphasis added); see also Scofield v. Scofield, No. M2006-
00350-COA-R3-CV, 2007 WL 624351, at *3 (Tenn. Ct. App. Feb. 28, 2007) (citing Young
v. Smith, 193 Tenn. 480, 246 S.W.2d 93, 95 (Tenn. 1952)); Steen v. Steen, 61 S.W.3d 324,
327 (Tenn. Ct. App. 2001); Solima v. Solima, 7 S.W.3d 30, 32 (Tenn. Ct. App. 1998).
Tennessee Code Annotated Section 36-6-101(a)(2)(C) discusses the requirement of a
material change in circumstances in detail, stating:

                If the issue before the court is a modification of the court's
                prior decree pertaining to a residential parenting schedule, then
                the petitioner must prove by a preponderance of the evidence a
                material change of circumstance affecting the child's best
                interest. A material change of circumstance does not require a
                showing of a substantial risk of harm to the child. A material


        4
          Parenting plans are not required in juvenile court. However, “[t]he juvenile court may incorporate
any part of the parenting plan process in any matter that the court deems appropriate.” Tenn. Code Ann. §
36-6-41.

                                                    -3-
              change of circumstance for purposes of modification of a
              residential parenting schedule may include, but is not limited to,
              significant changes in the needs of the child over time, which
              may include changes relating to age; significant changes in the
              parent's living or working condition that significantly affect
              parenting; failure to adhere to the parenting plan; or other
              circumstances making a change in the residential parenting time
              in the best interest of the child.


(emphasis added). Accordingly, a parent is only required to prove a material change in
circumstances when the issue is modification of a prior court order establishing custody or
a parenting schedule. From our review of the record, the trial court’s February 24, 2012 order
is the first order that establishes paternity, names a primary residential parent, or sets a
parenting schedule with regard to this child. Because there was no prior order to modify,
Father was not required to prove a material change in circumstances.

        Mother argues, however, that custody of the child was vested with her by operation
of Tennessee Code Annotated Section 36-2-203, which provides that: “Absent an order of
custody to the contrary, custody of a child born out of wedlock is with the mother.” Thus, she
argues, that despite the absence of a prior court order naming her as the primary residential
parent of the child, she was designated as the primary custodian by operation of law. Mother
cites this Court’s opinion in In re B.A.L., No. W2004-00826-COA-R3-JV, 2004 WL
3008810 (Tenn. Ct. App. Dec. 23, 2004), which, she argues, is analogous to the case at bar.
In In re B.A.L. the father argued that the trial court erred in requiring him to prove a material
change in circumstances to change custody, alleging that no initial order establishing custody
had been entered by the trial court. Id. at *4. The Court of Appeals disagreed, noting that a
prior order in May of 1996 established the father’s paternity and provided that “custody of
said child[ren] be awarded to the mother.” Id. at *1. Accordingly, this Court concluded that
the issue was indeed modification of a prior order and that the trial court did not err in
requiring the father to prove a material change in circumstances. The Court went on to hold,
in dicta, however, that:

              [E]ven absent this [prior] Order, T.C.A. § 36-2-303 (2001)
              indicates that “[a]bsent an order of custody to the contrary,
              custody of a child born out of wedlock is with the mother.”
              Consequently, custody would have been with the [m]other from
              the respective birthdays of these children regardless of a court
              order.



                                               -4-
Id. at *4. The Court then noted that the father failed to raise the issue of custody with the
Court until his petition to modify custody in 2003, approximately seven years after the initial
order established custody in that case. The Court thus concluded that the father had waived
any issue concerning the trial court’s decision to award custody to the mother and later
require a material change in circumstances. Id. Accordingly, despite Mother’s contention in
this case, the Court’s ruling in In re B.A.L. was based on the fact that the trial court had
entered an ordering establishing the mother as the primary custodian of the children and
Father’s waiver of the issue, rather than on a holding that application of Tennessee Code
Annotated Section 36-2-203 constitutes a court order sufficient to trigger the requirement to
show a material change in circumstances.

        In this case, there can be little doubt that Father raised the issue of custody within an
appropriate time. According to the record, the child was born in July 2011 and the parties
lived to together for approximately six weeks after the child’s birth. Soon after the parties
parted, in September 2011, Father filed a petition to set a parenting plan. In addition, Father
submitted a proposed parenting plan asking to be named the primary residential custodian
of the child in January 2012. Therefore, we cannot conclude that Father waived the issue of
custody. Mother’s contention that he was required to prove a material change in
circumstances is, consequently, without merit.

       Father next argues that the trial court erred in its custody and visitation decisions.
After reviewing the record in this case, however, we conclude that the trial court’s failure to
make specific findings of fact and conclusions of law necessitates remand to the trial court
for the entry of an order that complies with Rule 52.01 of the Tennessee Rules of Civil
Procedure.

       This case was initiated by Father in the Carroll County Juvenile Court in order to
determine issues of paternity, custody, and a parenting schedule. Rule 1(b) of the Rules of
Juvenile Court provides that:

              The Tennessee Rules of Civil Procedure shall govern all cases
              involving the termination of parental rights, paternity cases,
              guardianship and mental health commitment cases involving
              children, and child custody proceedings under T.C.A. §§
              36-6-101, et seq., 36-6-201, et seq., and 37-1-104(a)(2) and (f)
              ....

Because paternity and custody are clearly at issue in this case, the Rules of Civil Procedure
govern the proceedings in the Juvenile Court.



                                               -5-
       Rule 52.01 of the Tennessee Rules of Civil Procedure provides that:

              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.

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).
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). In fact, findings of fact are particularly important in cases involving the custody and
parenting schedule of children, as these determinations “often hinge on subtle factors,
including the parents’ demeanor and credibility during . . . proceedings.” Hyde v. Amanda
Bradley, No. M2009-02117-COA-R3-JV, 2010 WL 4024905, at *3 (Tenn. Ct. App. Oct. 12,
2010) (citing Johnson v. Johnson, 169 S.W.3d 640, 645 (Tenn. Ct. App. 2004)). Indeed,
appellate courts “are reluctant to second-guess a trial court's decisions” with regard to these
matters and “will not interfere except upon a showing of erroneous exercise of that
discretion.” Hyde, 2010 WL 4024905, at *3 (citing Johnson, 169 S.W.3d at 645). However,
without findings of fact, “this [C]ourt is left to wonder on what basis the court reached its
ultimate decision,” In re K.H., 2009 WL 1362314, at *8, and we are unable to afford
appropriate deference to the trial court’s decision. See Forrest Construction Co., L.L.C. v.
Laughlin, 337 S.W.3d 211, 220 (Tenn. App. Ct. 2009) (citing Ganzevoort v. Russell, 949
S.W.2d 293, 296 (Tenn. 1997)) (“[I]f the trial judge has not made a specific finding of fact
on a particular matter, we will review the record to determine where the preponderance of
the evidence lies without employing a presumption of correctness.”) .

      In this case, the trial court entered an order and permanent parenting plan awarding
Mother 261 days with the child, or 71.5% of the year, and awarding Father 104 days, or

                                              -6-
28.5% of the year. However, the trial court failed to offer appropriate findings of fact to
support its decision. Indeed, the trial court’s order in this case states, in its entirety, that:

              This cause came on to be heard on this the 20th day of January,
              2012, before the Honorable Robert Newell, special Judge
              presiding over the Juvenile Court of Carroll County, at
              Huntingdon, Tennessee, upon the Petition filed in this matter,
              testimony elicited from witnesses, and statements of counsel for
              the parties, from all of which the Court finds as follows:

              1.      That [Father], is the biological father of the minor child,
                      Connor [], and shall therefore, be named the
                      biological/legal father of the minor child, Connor [], and
                      shall be vested with all rights, obligations, and duties of
                      a natural and legal parent of a minor child, and the minor
                      child, Connor [], shall be vested with all rights of those
                      as a child born in lawful wedlock.
              2.      That the Court made a detailed ruling on custody and the
                      residential schedule, which has been reduced to a
                      Permanent Parenting Plan that is attached hereto and
                      shall be incorporated herein by reference as if copied
                      verbatim herein.
              3.      That each party shall be responsible for his/her own
                      attorneys' fees, if any, incurred in this cause.
              4.      That each party shall be responsible for the court costs
                      he/she has incurred to date. There are no outstanding
                      court costs noted.
              5.       Each party will pay 1/2 the expenses associated with the
                      DNA test to determine parentage of the minor child. No
                      outstanding balance is noted.
              6.      The Tennessee Department of Children's Services is
                      relieved from providing services in this case.
              7.      That the parties are aware that this is an order of the
                      Court and that failure to comply without just cause,
                      places them in contempt of Court and subjects them to
                      such actions the Court deems proper within its
                      jurisdiction.

              All of the above is therefore ORDERED and ADJUDGED.



                                               -7-
With regard to the trial court’s “detailed ruling on custody and the residential schedule,” the
trial court did enter a permanent parenting plan specifically detailing the parties’ obligations
with regard to visitation and other matters. However, nothing in the order or the parenting
plan provides the basis for the trial court’s decision as required by Rule 52.01.

       Instead, the trial court, after hearing the evidence, made an oral ruling, which was not
specifically incorporated by reference in its order in this case. It is well settled that a court
speaks through its orders. Palmer v. Palmer, 562 S.W.2d 833, 837 (Tenn. Ct. App. 1977).
In Cunningham v. Cunningham, No. W2006–02685–COA–R3–CV, 2008 WL 2521425
(Tenn. Ct. App. June 25, 2008), this Court explained:

              A judgment must be reduced to writing in order to be valid. It is
              inchoate, and has no force whatever, until it has been reduced to
              writing and entered on the minutes of the court, and is
              completely within the power of the judge or Chancellor. A judge
              may modify, reverse, or make any other change in his judgment
              that he may deem proper, until it is entered on the minutes, and
              he may then change, modify, vacate or amend it during that
              term, unless the term continues longer than thirty days after the
              entry of the judgment, and then until the end of the thirty days.

Cunningham, 2008 WL 2521425, at *5 (citing Broadway Motor Co ., Inc. v. Fire Ins. Co.,
12 Tenn. App. 278, 280 (1930)). Consequently, “[w]e do not review the court's oral
statements, unless incorporated in a decree, but review the court’s order and judgments for
that is how a court speaks.” Id.

       Even if we were to consider the trial court’s oral ruling, the ruling contained very few
factual findings in support of the trial court’s decision and many of those findings weigh
equally in favor of Mother and Father. In its oral ruling, the trial court stated:

                      The Court can only rely on the Department of Children
              Services and their home study and their recommendation as to
              both parents being suitable parents to be able to work with the
              child and have visitation either primary or alternate parent.
                      The only one issue that I think the parties have to work
              out will be the breastfeeding but, of course, the courts can't use
              that as a means of restricting visitation. . . .

                                            *    * *



                                                -8-
                Both parents participate in a child's life is a lot better than only
                one or one partially. I'm not a big proponent of equal visitation,
                you know. They tried to make that a statute a few years ago. It
                was a big deal in the Legislature, but they never did pass that
                particular statute. They went back and left it open to the judges
                to be able to consider whether it will be equal time or not. In
                looking at the factors in this, I'm not too sure that what I do will
                be equal sharing time. But, you know, the child is old enough
                and, at least, we've had supervised visitation for a period of time
                for the child to be able to get to know the father.

                         Also, both parties have good support. . . .

                                                 *   *     *

                Looking at everything and—You know, I've been doing this a
                long time and the biggest problem with children born out of
                wedlock or paternity cases is that there's always that barrier
                between the two parents that it's hard for them to get along. It's
                hard for them to— And I always require you to at least
                participate and communicate and work together for the best
                interest of the child. You don't have to like each other. And most
                juvenile judges will look at the fact of requiring you to
                communicate. And in Tennessee, it is required that both parents
                participate in the child's life.

                       Also, the educational—Now, most school systems in
                Tennessee will not let the alternate parent pick up the child.
                Only the primary residential parent will be able to pick up the
                child. That doesn't mean that both parents can't attend the
                meetings and participate in the school of the child and should
                have the ability to get reports, but don't get into the fact that—
                Because I don't know of any school system that's going to let
                both parents— . . . . So the primary parent will be the one that
                will pick up the child from school or someone designated by
                them.5


        5
         If this problem does, in fact, arise, it appears that an appropriate and simple remedy would be for
the primary resident parent to designate the alternative residential parent as a person who is authorized to
                                                                                               (continued...)

                                                     -9-
                       I feel like that both parents are capable of taking care of
                the child. At this time, considering the primary caregiver and
                alternate caregiver, the Court has listened to the facts and the
                evidence. The Court is going to order that the mother be the
                primary caregiver and the father will be the alternate caregiver.

From our review of the oral findings, the trial court found that both Mother and Father have
suitable homes, would make fit parents, have good support, and are capable of taking care
of the child. The only finding that may reasonably be construed in favor of Mother is the trial
court’s finding that Father has only had supervised visitation with the child. However, the
court does not make a finding as to the cause of the supervision, specifically whether the
visits were supervised solely at Mother’s discretion as argued by Father. In addition, the trial
court notes that the child, who was less than a year old at the time of the hearing, was able
to get to know Father through the visits.

        Mother points to several facts, which she argues support the trial court’s decision,
including the fact that she has been the child’s primary caregiver throughout his life and
Father’s failure to pay meaningful support. While we agree that these facts, if found, would
weigh in favor of Mother, these are not the only factors that the trial court is directed to
consider. Indeed, there is no indication from the trial court’s oral findings, written order, or
parenting plan that the trial court relied on, or even considered, these factors or any other
factor as outlined in Tennessee Code Sections 36-6-106 or -404 in making its decision. See
Tenn. Code Ann. § 36-6-106(a)(3) (setting forth various factors the trial court must consider
in making an initial custody decision, including “[t]he disposition of the parents or caregivers
to provide the child with food, clothing, medical care, education and other necessary care and
the degree to which a parent or caregiver has been the primary caregiver” and “[t]he
importance of continuity in the child's life”); 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




        5
         (...continued)
pick the child up from school.

                                               -10-
all the applicable factors.”6 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).

         In this case, the trial court failed to make any findings that justify its decision. As
previously discussed, without sufficient findings of fact and conclusions of law “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., 2004 WL 865840, at *19). This Court has previously
held that “[a]ppellate review . . . is not possible in the absence of specific findings of fact and
conclusions of law by the trial court.” Lake v. Haynes, No. W2010–00294–COA–R3–CV,
2011 WL 2361563, at *5 (Tenn. Ct. App. June 9, 2011). Without any factual findings in this
particular case, this Court is unable to determine the basis for the trial court’s decision and
what factors, if any, the trial court considered in naming Mother the primary residential
parent and fashioning the parenting schedule. This Court has previously held that if 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). Based on the foregoing, we vacate
the judgment of the trial court with regard to custody and the parenting schedule of the child,
and remand to the trial court for entry of an order containing appropriate findings of fact and
conclusions of law. However, because neither party takes issue with the trial court’s ruling
regarding the paternity of the child, we affirm the trial court’s ruling as to this issue.

                                            IV. Conclusion

        The Judgment of the Carroll County Juvenile Court is affirmed in part and vacated in
part and this cause is remanded to the trial court for further proceedings in accordance with
this opinion. Costs of this appeal are taxed one-half to Appellant Joshua L. L., and his surety,
and one-half to Appellee Amy J. W., for all of which execution may issue if necessary.


                                                          _________________________________
                                                          J. STEVEN STAFFORD, JUDGE


        6
           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).

                                                   -11-
