                                                                                                  06/18/2018
                    IN THE COURT OF APPEALS OF TENNESSEE
                                AT NASHVILLE
                                      November 9, 2017 Session

                                         IN RE AUDREY T.

                     Appeal from the Chancery Court for Putnam County
                      No. 2009-395      Ronald Thurman, Chancellor

                             ___________________________________

                                 No. M2016-02443-COA-R3-JV
                             ___________________________________


In this post-divorce proceeding, Father appeals the reduction of his parenting time.
Because he has failed to include a transcript or statement of the evidence in accordance
with Rule 24 of the Tennessee Rules of Appellate Procedure, we presume that the
evidentiary record supports the trial Court’s decision. Accordingly, we affirm the
judgment.

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

RICHARD H. DINKINS, J., delivered the opinion of the court, in which ANDY D. BENNETT
and W. NEAL MCBRAYER, JJ., joined.

Bo C. Murphy, Cookeville, Tennessee, for the appellant, Troy Taubert

Michael Savage, Livingston, Tennessee, for the appellee, Mary Durham


                                    MEMORANDUM OPINION1




1
    Rule 10 of the Rules of the Court of Appeals states:

          This Court, with the concurrence of all judges participating in the case, may affirm,
          reverse or modify the actions of the trial court by memorandum opinion when a formal
          opinion would have no precedential value. When a case is decided by memorandum
          opinion it shall be designated “MEMORANDUM OPINION,” shall not be published, and
          shall not be cited or relied on for any reason in any unrelated case.
   I.     FACTUAL AND PROCEDURAL HISTORY

       Mary Durham (“Mother”) and Troy Taubert (“Father”) are the parents of Audrey,
born in December 2007. Mother and Father were declared divorced on May 6, 2011; the
parenting plan incorporated in the decree named Mother as primary residential parent;
ordered her to pay $97 per month in child support; granted Father 137 days of parenting
time per year, to be exercised from Friday at 5 p.m. to Sunday at 5 p.m. every other week
and from Monday at 5 p.m. to Wednesday at 5 p.m. on the alternate weeks; and ordered
Father to pay for daycare.

       Over the next several years, the parties litigated issues relating to child support and
parenting time. At some point, the Child Support Enforcement Unit of the Tennessee
Department of Human Services became involved and filed on Mother’s behalf a petition
for modification of Father’s child support obligation due to “a significant variance” in his
income and sought a judgment for any retroactive child support arrearages resulting from
the modification. A temporary agreed order was entered on December 8, 2014, requiring
Father to pay $295 per month in support for Audrey. A hearing on the child support
matter was continued numerous times, and in the interim Mother filed the petition to
modify and for contempt at issue in this case.

       Mother’s petition to modify alleged that various of Father’s actions while
exercising his parenting time constituted a substantial and material change of
circumstances warranting a reduction in his parenting time; Mother attached a proposed
parenting plan that reduced Father’s parenting time to 66 days per year, to be exercised
every other weekend. With respect to Father’s contempt, the petition alleged that Father
had not paid his share of Audrey’s medical and dental bills, refused to facilitate phone
calls between Audrey and Mother, and unilaterally changed the place of exchange.
Father responded, denying the allegations of Mother’s petition and seeking an increase in
his parenting time and to have Mother held in civil contempt.

       Mediation was not successful, and a hearing was held on March 21 and April 11,
2016. The court entered an order on October 28 in which it: found Father guilty of three
counts of contempt; awarded Mother judgments in the amounts of $184.70 for Father’s
portion of medical and dental expenses and $11,003 for daycare expenses; modified
Father’s child support obligation and awarded Mother a judgment against Father in the
amount of $9,599 for arrearages; and ordered Father to pay all childcare/daycare
expenses. Finding a substantial and material change in circumstances had occurred, the
court reduced Father’s parenting time to 68 days per year.

       Father appealed. While the appeal was pending, the parties (Father, Mother, and
the Department of Human Services) filed a joint motion requesting a remand for the
purpose of considering a settlement vacating and dismissing the finding of contempt and
vacating the child support judgments for a new trial but leaving the appeal of the
                                           2
modification of the parenting plan pending in this Court. The motion was granted on
June 27, 2017, staying all proceedings on appeal. On remand, the trial court dismissed
the finding of contempt and vacated the child support judgments upon a finding that the
record contained insufficient evidence to support them. The parties subsequently filed a
Joint Motion for Partial Dismissal in this Court, and by order entered August 1, 2017, we
granted the motion and dismissed the appeal “as to the finding of contempt and the child
support judgments” and ordered that the appeal “shall proceed as to the modification of
the parenting plan.” As a result, the Department of Human Services has notified this
Court that it is no longer participating in this appeal.

   II.      ANALYSIS

        When a court is considering a petition to modify a residential parenting schedule,
it must first determine whether a material change of circumstance has occurred. Tenn.
Code Ann. § 36-6-101(a)(1)(C). If such a change is established, the court proceeds to
determine whether modification of the schedule is in the best interest of the child,
utilizing the factors at Tennessee Code Annotated section 36-6-106(a) and, where
applicable, section 36-6-406. As stated by the Tennessee Supreme Court:

         A trial court’s determinations of whether a material change in
         circumstances has occurred and whether modification of a parenting plan
         serves a child’s best interests are factual questions. Thus, appellate courts
         must presume that a trial court’s factual findings on these matters are
         correct and not overturn them, unless the evidence preponderates against
         the trial court’s findings.

Armbrister v. Armbrister, 414 S.W.3d 685, 692–93 (Tenn. 2013) (internal citations
omitted).

         The portions of the order pertinent to the modification state:

         8. That the Court finds that the Petition to Modify Parenting Time should
         be granted, due to there being a substantial and material change in
         circumstances since the prior Parenting Plan was entered in that the Father
         has refused to pay his share of the child’s medical bills and has continued to
         make derogatory statements in front of the child concerning her mother,
         with same being stressful to the child.

         9. That the Permanent Parenting Plan, which is attached hereto as Exhibit
         A, is hereby made Order of the Court and is adopted and incorporated
         herein by reference. This Court has reviewed the Parenting Time set out in
         the Parenting Plan and specifically finds that it is in the best interest of the
         child.
                                               3
       On appeal, Father contends that “[t]he trial court erred in modifying the parenting
plan in that there was not a preponderance of the evidence to show that there had been a
substantial and material change in circumstances that adversely affected the welfare of
the child”; specifically, he argues that the modification was unwarranted because the
court did not make a “finding that the minor child had been actually harmed” by Father’s
derogatory comments.

       Father has failed to include a transcript or statement of the evidence in the
appellate record.2 Rule 24(b) of the Tennessee Rules of Appellate Procedure states that it
is the duty of the appellant to prepare “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.” Rule 24(c) allows
that where a transcript is not available, “the appellant shall prepare a statement of the
evidence” which “should convey a fair, accurate and complete account of what transpired
with respect to those issues that are the bases of appeal.” Where there is no transcript or
statement, “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.” Coakley v. Daniels, 840 S.W.2d 367, 370 (Tenn. Ct. App. 1992) (citing
McKinney v. Educator and Executive Insurers, Inc., 569 S.W.2d 829, 832 (Tenn. Ct.
App. 1977).

        A trial court’s “determinations of whether a material change in circumstances has
occurred and where the best interests of the child lie are factual questions.” In re T.C.D.,
261 S.W.3d 734, 742 (Tenn. Ct. App. 2007). To the extent that resolution of the issues
on appeal depend on factual determinations, the lack of a transcript or statement of the
evidence is fatal to the party having the burden on appeal. See Sherrod v. Wix, 849
S.W.2d 780,783 (Tenn. Ct. App. 1992) (“[W]ithout an appellate record containing the
facts, … [the court] must assume that the record, had it been preserved, would have
contained sufficient evidence to support the trial court’s factual findings.”). In the
absence of a transcript or statement of the evidence, Father is unable to demonstrate that
the evidence preponderated against the trial court’s finding, and we presume that
testimony or other evidence was introduced that would have supported the finding that
Father’s comments warranted the modification of the parenting plan. “We will affirm the
trial court’s decision unless the evidence preponderates against the trial court’s factual
determinations or the trial court has committed an error of law affecting the outcome of
the case.” Boyer v. Heimermann, 238 S.W.3d 249, 254-55 (Tenn. Ct. App. 2007). None
has been presented in the record before us.




2
    Exhibits from the hearing, held on March 21 and April 11, are included in the record.
                                                      4
III.   CONCLUSION

   For the foregoing reasons, the judgment of the trial court is affirmed.




                                             RICHARD H. DINKINS, JUDGE




                                         5
