TERRY DAVID MACKIE,      )

    Plaintiff/Appellee,
                         )
                         )     Appeal No.FILED
                         )     01-A-01-9810-CV-00536
v.                       )               September 1, 1999
                         )     Wilson Circuit
                                         Cecil Crowson, Jr.
SARAH CATHERINE MACKIE, )      No. 1568 Appellate Court Clerk
                         )
    Defendant/Appellant. )


            COURT OF APPEALS OF TENNESSEE


   APPEAL FROM THE CIRCUIT COURT FOR WILSON COUNTY
                AT LEBANON, TENNESSEE


          THE HONORABLE BOBBY CAPERS, JUDGE




CONNIE REGULI
353 Wimpole Drive
Nashville, Tennessee 37211
     ATTORNEY FOR PLAINTIFF/APPELLEE




JAMES ROBIN McKINNEY
STANLEY A. KWELLER
Jackson, Kweller, McKinney
 & Badger
One Washington Square, Suite 103
214 Second Avenue North
Nashville, Tennessee 37201
      ATTORNEY FOR DEFENDANT/APPELLANT




                 AFFIRMED AS MODIFIED
                    AND REMANDED




                                  WILLIAM B. CAIN, JUDGE
                               OPINION

      This case represents an appeal from the grant of divorce upon stipulation
of grounds pursuant to Tennessee Code Annotated section 36-4-129. The parties
to this action, Terry David Mackie ("Husband"), and Sarah Catherine Campbell
Mackie ("Wife") were married on November 6, 1984. Husband filed a complaint
in Williamson County Circuit Court on March 6, 1997, seeking divorce on the
grounds of inappropriate marital conduct and irreconcilable differences. On
March 20, 1997, Wife answered and counterclaimed. In her answer, Wife
admitted the ground of irreconcilable differences and alleged inappropriate
marital conduct on the part of the Husband. Over the next 14 months the parties
participated in successive proceedings regarding pendente lite custody of their
severely ill minor child. The case was originally set for trial on June 3, 1997.
Both parties agreed to continue the case; each sought a scheduling order for the
sequence of discovery. The parties were ordered to attend mediation on February
23, 1998. On May 18, 1998, Husband moved to change pendente lite custody and
to compel discovery. This motion was to be heard on June 3, 1998. At the June
3, hearing, in an admittedly unorthodox proceeding, the parties stipulated under
oath that each had grounds for divorce. At this point in the hearing, both parties
were sent into an antechamber to provide for the division of the marital estate and
custody of the child. These negotiations are documented in handwritten notes,
signed by the parties and their counsel, and appearing in the record.


      The final decree of divorce, entered June 25, 1998, recites the agreement
reached by the parties in their impromptu settlement conference and in the court-
ordered mediation. However, contrary to the understanding and stipulations of
the parties, the trial court granted a divorce on the ground of irreconcilable
differences. Inasmuch as this court finds that the divorce granted was in fact and
effect a divorce on stipulated grounds as provided in Tennessee Code Annotated
section 36-4-129, the decree of divorce is amended to reflect the stipulation.


      A divorce granted on stipulated grounds is not of necessity an
irreconcilable differences divorce. The statute providing for stipulation of
grounds reads in pertinent part as follows:


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           (a) In all actions for divorce from the bonds of matrimony or
      from bed and board, the parties may stipulate as to grounds and/or
      defenses.
           (b) The court may, upon stipulation to or proof, grant a divorce
      to the party who was less at fault or, if either or both parties are
      entitled to a divorce, declare the parties to be divorced, rather than
      awarding a divorce to either party alone.

Tenn. Code Ann. § 36-4-129 (1996).



      The above section allows stipulation as to any ground. The true problem
in this case lies in the requirements placed upon the parties involved and the court
which seeks to grant a divorce based on irreconcilable differences. This record
discloses neither an executed marital dissolution agreement nor any affirmative
findings pursuant to Tennessee Code Annotated section 36-4-103 (1996). Both
parties alleged "fault" as well as "no-fault" grounds. All other elements of this
case being equal, were the parties to have alleged solely "inappropriate marital
conduct", for example, there would be no question that the parties intended to
stipulate as to those grounds, allowing the court the option provided in section 36-
4-101. In the absence of the appropriate irreconcilable differences procedure and
in the presence of stipulated commonly-alleged grounds, we must conclude that
the trial court inadvertently listed irreconcilable differences as the ground for the
Mackies' divorce. No proof other than the stipulation was taken. As a result the
decree of the court below can only operate as a grant of divorce under Tennessee
Code Annotated section 36-4-129.


      Wife would argue that the stipulation on the record does not rise to the level
of dignity envisioned by the statute. There is, however, no other authority
interpreting the plain words of section 36-4-129(b). The stipulation of the parties
is on the record. The parties expressed a willingness to negotiate in open court.
The parties adjourned to "work it out." Although not necessarily required, no
contemporaneous objection to this procedure appears in the record. Upon our de
novo review of the record, we find the only error in the decree of the court to be
the inadvertent listing of "irreconcilable differences" as grounds for the divorce.
Other than the stipulation in open court, there is no other transcript of the
evidence in this case. In the absence of such a record, we must conclude the other
findings in the decree to be supported by the facts. See Sherrod v. Wix, 849

                                         3
S.W.2d 780, 783 (Tenn. App. 1992).


      The decree of divorce is modified to reflect a stipulation as to the grounds
alleged in the parties' pleadings instead of irreconcilable differences. The case is
affirmed as modified and remanded to the trial court for further proceedings not
inconsistent with this opinion, and such further proceedings as may be required
by the trial court in its continuing control over the custody and welfare of the
minor child.


      In our discretion costs are divided equally between the parties.




                                ______________________________
                                WILLIAM B. CAIN, JUDGE


CONCUR:


____________________________________
BEN H. CANTRELL, P.J., M.S.


____________________________________
PATRICIA J. COTTRELL, JUDGE




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