                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                                   April 4, 2001 Session

             DEBRA S. MCDOWELL v. ROBERT A. MCD OWELL

              A Direct Appeal from the Circuit Court for Williamson County.
                   No. C-5956 The Honorable Jeffery S. Bivens, Judge.



                    No. M2000-02153-COA-R3-CV - Filed July 31, 2001

Mr. and Ms. McDowell were divorced by the Williamson County Circuit Court on September
15, 1986. On March 16, 2000, Ms. McDowell filed a contempt complaint against Mr. McDowell
alleging that he had breached an agreement to pay his youngest daughter’s private school tuition
at Battle Ground Academy. A hearing was held on May 2, 2000, concerning the contempt
complaint. Following the hearing, the Honorable Jeffery Bivens of the Williamson County
Circuit Court took the matter under advisement. On July 28, 2000, the trial court ordered Mr.
McDowell to pay his daughter’s tuition until she graduated from Battle Ground Academy. This
appeal soon followed.

       Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

DON R. ASH , SP . J., delivered the opinion of the court, in which CANTRELL , J., and SWINEY , J
joined.

Ernest W. Williams and Dana C. McLendon, III, Franklin, Tennessee, for the appellant, Robert
A. McDowell.

Richard Dance, Nashville, Tennessee, for the appellee, Debra S. McDowell.

                                          OPINION

  I.

        On September 15, 1986 the parties were divorced on the grounds of irreconcilable
differences. The decree awarded joint custody to the minor children with primary physical
custody awarded to Ms. Debra McDowell (“Ms. McDowell”).

      On March 16, 2000, Ms. McDowell filed a complaint for contempt charging Mr. Robert
McDowell (“Mr. McDowell”) was refusing to pay for the youngest child’s private education.
Ms. McDowell argues that she only agreed to send the children to a private school based upon
Mr. McDowell’s agreement that he would pay for the tuition through the 12th grade. Mr.
McDowell contends that he stopped paying for the private tuition because he could no longer
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afford it and considered his agreement to be on a year-by-year basis. (emphasis added) The
relevant portion of the final decree at issue here stated, in part:

       5. The Husband further agrees to pay for education of the minor children of the
       parties at a private school mutually agreeable to the parties if the parties mutually
       agree that private school is necessary and appropriate. (emphasis added)

        A hearing was held on May 2, 2000 at which time the Court heard testimony concerning
the issues drawn. On July 28, 2000, after hearing all the proof and considering the record, the
court ordered Mr. McDowell to pay for the youngest child’s private school tuition finding that
Mr. McDowell had entered into an oral agreement with Ms. McDowell to pay for private school
tuition for their daughters through high school. In addition, the court ordered Mr. McDowell to
pay for all attorneys’ fees incurred by Ms. McDowell. This appeal ensued.

II.

        On this appeal, Mr. McDowell presents only one issue for this court to consider. We
must determine whether the trial court erred in ordering Mr. McDowell to pay private school
tuition for the parties’ youngest daughter.

       When the trial court sits without a jury, their findings are presumed to be correct unless
the evidence in the record preponderates against them. See Tenn.R.App.P. 13(d); Sherrod v.
Wix, 849 S.W.2d 780, 783 (Tenn. Ct. App. 1992). In this particular case, Mr. McDowell failed
to provide the court with a transcript of the lower court proceedings pursuant to Tenn.R.App.P.
24(c).

        "In the absence of a transcript or a statement of the evidence, we must conclusively
presume that every fact admissible under the pleadings was found or should have been found
favorably to the appellee." King v. King, 986 S.W.2d 216, 220 (Tenn. Ct. App. 1998) (quoting
Leek v. Powell, 884 S.W.2d 118, 121 (Tenn. Ct. App. 1994)). Consequently, the court must
presume the trial court's findings of fact are correct. See Id. The trial court is in a better position
to weigh the credibility of the witnesses than the appellate court because they have the
opportunity to observe the witness’ manner and demeanor while testifying. See Whitaker v.
Whitaker, 957 S.W.2d 834, 837 (Tenn. Ct. App. 1997); see also McCaleb v. Saturn Corp.,
910 S.W.2d 412, 415 (Tenn. 1995). Furthermore, when faced with this dilemma, appellate courts
may only review what is in the record and not what might have been or should have been
included. Dearborne v. State, 575 S.W.2d 259 (Tenn. 1978). In addition, appellate courts
commonly refuse to address issues raised for the first time on appeal. See Book-Mart of Florida
v. National Book Warehouse, 917 S.W.2d 691, 694 (Tenn. App. 1995). Therefore, issues not
raised at the trial court are deemed waived. See Devorak v. Patterson, 907 S.W.2d 815, 818
(Tenn. App. 1995).

       As noted above, there is no transcript or statement of the evidence presented to this court
on appeal. The burden is upon Mr. McDowell to preserve the evidence necessary for
consideration by this Court on appeal. Tenn. R. App. P. 24(b). The record on appeal consists
only of the technical record. Even though there is no transcript, this Court must gather from the
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technical record the relevant facts and determine whether there is some error requiring reversal
of the trial court’s judgment. However, while gleaning from the technical record we must also
give deference to the decision of the trial court in absence of a recorded verbatim transcript. The
trial court in its order opined:

               This matter is before the Court upon the issue of whether the Defendant,
       Robert McDowell (“Father”), is responsible for private school tuition for his
       daughter’s education at Battle Ground Academy. Based upon the testimony heard
       by the Court and the entire record herein, the Court finds that the Father entered
       into an oral agreement with Ms. Debra McDowell (“Mother”) to pay for the
       private school tuition for their daughters through high school.

              The facts of this case are strikingly similar to the facts in Brooks v.
       Brooks, 992 S.W.2d 403 (Tenn. 1999). In Brooks, the Tennessee Supreme Court
       upheld the trial court’s ruling that Mr. Brooks entered into an oral agreement with
       Ms. Brooks to assume financial responsibility for private school tuition for their
       child. Mr. Brooks contended that he had only agreed to pay for the first year of
       such expenses. The trial court credited the testimony of Ms. Brooks and ordered
       Mr. Brooks to pay the tuition expenses of the child during the subsequent years.
       The Supreme Court affirmed this determination.

              In the instant case, Father contends that he agreed to pay the private
       school payments for his daughters only on a year-by-year basis. Father now
       contends that he cannot afford these payments, and therefore, he does not agree to
       continue paying these expenses for Jennifer for the upcoming school year.
       Mother contends that she was concerned at the time of the original agreement
       about the stability and consistency for the children if they began attending private
       school from the outset. Mother testified that she only agreed to the original oral
       agreement with Father on the condition that he would pay for the private school
       expenses throughout the secondary education of the children.

               This Court credits the testimony of Mother on this issue. The Court finds
       that the oral agreement between Father and Mother required Father to pay for the
       private school tuition of the children until the children complete their high school
       education. Accordingly, Father is required to pay the tuition expenses for
       Jennifer to attend Battle Ground Academy during the upcoming school year.

         Without a transcript of the lower court proceedings, we do not have the opportunity to
consider the testimony of the witnesses for which the trial court based its determination. Mr.
McDowell argues that, in the case before us, a transcript or a statement of the evidence was not
necessary. We disagree. The trial court in its order seemed to credit the testimony of Ms.
McDowell and found that an oral agreement existed between Mr. and Ms. McDowell. This
finding of fact makes the submission of the transcript of the trial court’s proceedings even more
critical. Without the transcript, we have no way of knowing the parties proof regarding whether
private schooling is “necessary and appropriate” and whether the contract for private schooling
is on a year to year basis. We disagree with Mr. McDowell. We are of the opinion the test in this
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particular case should be whether private schooling is “necessary and appropriate” not whether
Mr. McDowell can afford it on a year by year basis.

        Consequently, because there is no transcript there is a conclusive presumption that there
was sufficient evidence before the trial court to support its judgment, and this Court must
therefore affirm the judgment. See Coakley v. Daniels, 840 S.W.2d 367, 370 (Tenn. Ct. App.
1992); see also Word v. Word, 937 S.W.2d 931, 932 (Tenn. Ct. App. 1996). Thus, we are of
the opinion that Mr. McDowell has failed to meet his burden of showing that the evidence
preponderates against the trial court's judgment, and this issue does not provide a basis for this
court to reverse the judgment on appeal.

      In addition, Mr. McDowell in his brief cited a statute of frauds issue, however, this issue
was waived at oral argument.

III.

       Accordingly, for the reasons set out above, the order of the trial court requiring Mr.
McDowell to pay his youngest daughters tuition thru graduation of high school is affirmed.
Costs of this appeal are assessed against Mr. McDowell.


                                                    _________________________________
                                                    DON R. ASH, SPECIAL JUDGE




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