Dorah Elizabeth Johnson v. Jeffrey Walter Johnson

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

May 13, 2014 Session

DORAH ELIZABETH JOHNSON

v.

JEFFREY WALTER JOHNSON

Appeal from the Crockett County Chancery Court

No. 9233 George R. Ellis, Chancellor

No. W2013-02248-COA-R3-CV - Filed August 21, 2014

This appeal stems from a divorce proceeding and child support modification. On appeal, the

appellant husband challenges several decisions made by the trial court after it had entered an

order purporting to be the final decree of divorce. Because prior orders reserved issues not

addressed in this divorce decree, we find this divorce decree was not a final order, and thus,

subject to revision by later orders. Consequently, we find the trial court had jurisdiction and

did not abuse its discretion in later revising awards contained in the non-final divorce decree

and affirm the later changes in part. Additionally, in a later order purporting to modify the

child support award, we find the trial court failed to properly make findings of facts and

conclusions of law in compliance with Rule 52.01 of the Tennessee Rules of Civil Procedure

and remand in part on this issue.

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

in Part and Remanded in Part

P AUL G. S UMMERS, S R. J., delivered the opinion of the Court, in which A LAN E. H IGHERS,

P.J., W.S., and J. S TEVEN S TAFFORD, J., joined.

David W. Camp, Jackson, Tennessee, for Defendant/Appellant Jeffrey Walter Johnson

Plaintiff/Appellee Dorah Elizabeth Johnson, self represented 1

1

Ms. Johnson was represented by counsel throughout the proceedings below but chose to represent herself

in this appeal.

MEMORANDUM OPINION2

F ACTS AND P ROCEEDINGS B ELOW

This appeal stems from a divorce proceeding and involves the sale of a marital residence, an

award of attorney fees, and child support modification.

Plaintiff/Appellee Dorah Elizabeth Johnson (“Wife”) and Defendant/Appellant Jeffery Walter

Johnson (“Husband”) married in 1995; two children were born of the marriage. During the

marriage, the parties resided in a home located on Cypress Tree Road in Humboldt, Tennessee

(“marital residence”). Wife was a self-employed insurance salesperson, and Husband was

employed by a school in Jackson, Tennessee.

In the spring of 2009, after 14 years of marriage, both parties filed complaints for divorce.

While the divorce was pending, Husband continued to live in the marital residence; Wife lived

elsewhere with the parties’ children, as she was designated primary residential parent under

a temporary parenting plan. Despite being named primary residential parent, Wife was

ordered to pay Husband child support under this temporary plan. During this time, Wife also

voluntarily paid Husband $1,500 to help pay for expenses, including the mortgage on the

marital residence.

In October 2009, Wife filed a motion seeking to sell the marital residence prior to the

resolution of divorce proceedings, contending she could no longer afford to support the

mortgage on the home.

Prior to a final decree, the trial court held a hearing on the disposition of the marital residence,

among other issues. On November 18, 2009, the trial court entered an order granting Wife’s

request to put the marital residence on the market prior to the final divorce proceeding

(“November 2009 Order”). In doing so, the trial court ordered each party to “pay one-half (½)

of the mortgage payment until the property is sold.” The order went on to state as follows:

“When the marital residence is sold, the mortgage shall be paid off in full and any equity

2

Rule 10. Memorandum Opinion

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.

Tenn. Ct. App. R. 10.

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remaining from the sale of the marital residence shall be placed with the office of the Clerk

and Master until final disposition of this matter.” At that time, the trial court also ordered the

parties to meet with a realtor within two weeks.

In December 2009, the trial court entered another order finding that Husband failed to follow

the November 2009 Order regarding the listing and sale of the marital residence and gave

Wife “sole authority to engage a licensed realtor and list the home for sale, without Husband’s

permission or consideration.” Husband filed a motion seeking to have this order set aside.

In January 2010, the trial court held a hearing on Husband’s motion to set aside; however, an

order was not entered until nearly a year later in November 2010 (“November 2010 Order”).

In this order, the trial court found that both parties agreed on a realtor and stated that “when

an offer is made to purchase the marital home, should the parties not agree upon the offer or

cannot agree on a counter offer, then the Court will make the decision.”

In the meantime, the trial court held a hearing on the remaining divorce issues in June 2010

and entered a “Final Decree of Absolute Divorce” in March 2011 (“Divorce Decree”).3 In this

order, the trial court granted Husband an absolute divorce, adopted the parties’ proposed

parenting plan, and divided the marital estate “in accordance with Exhibits Two (2) and Eight

(8), the parties[’] proposed property division worksheets.” Though the trial court did not

specifically reference the marital home in its order, the proposed property division worksheets

reference the marital home, but each provides significantly different values for the home.

Despite the differing values, each proposed plan evenly split the home’s equity. However,

at that time, the marital residence had still not been sold.

With respect to child support, the Divorce Decree merely states as follows: “Child support

shall be modified to reflect any change in the income of the parties and the number of days

that each party parents the children.” No other finding or actions appear to have been taken

concerning this issue. Despite being designated the primary residential parent, Wife

continued to pay Husband child support each month.

The trial court also awarded “[a]ttorney’s fees for [Husband] and the costs will be taxed

against [Wife]”; Husband’s attorney fees totaled $14,695.77. It also stated that “[a]ll issues

not ruled upon are dismissed.” The record does not indicate that either party attempted to file

an appeal at this time.

Though the trial court’s final decree did not reference a method of payment as to the attorney

fees, Wife apparently unilaterally began paying Husband $100 per month to satisfy this award.

3

The record does not contain a transcript or statement of evidence detailing what occurred at this hearing.

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Meanwhile, Husband continued to live in the unsold marital residence.

In June 2012, almost two years after the final divorce hearing, Wife filed a motion to approve

a marketing and sales plan and price reduction schedule, explaining the marital residence had

still not been sold. At that time, Wife had been assisting Husband with the mortgage payment,

but she could “no longer afford to pay for Defendant to live in the marital residence.” At the

time, Wife sought to have Husband timely make all mortgage and home equity line of credit

payments, taxes, and insurance. Husband responded and filed a counter motion for contempt

and sought a modification of the Divorce Decree. Husband contended that Wife’s $100

payments toward Husband’s award of attorney’s fees had been sporadic, and a balance of

$13,095.77 remained. He also requested that the final decree of divorce be modified and the

attorney fee award be “reduce[d] . . . to judgment.” Husband alleged Wife stopped paying her

share of the mortgage payment in May 2012 and did not reimburse Husband for maintenance

expenses.

The marital residence finally sold in July 2012. Wife paid all closing costs associated with

the sale. In October 2012, Wife filed a motion seeking reimbursement for half of these

closing costs and for half the cost of necessary repairs she paid for the home’s pool. Wife also

claimed to have paid the entire July 2012 mortgage payment and a substantial amount toward

the residence’s home equity line of credit. Husband sought to have this motion dismissed.

Before Wife’s motion was heard, in May 2013, Wife also filed a petition to modify child

support.4

After several continuances, the trial court held a hearing on Wife’s motion for reimbursement

and her petition to modify child support as well as Husband’s motion for contempt and

modification of the Divorce Decree. At this hearing, both parties testified.

Wife recounted the many expenses she paid in connection to the sale of the marital residence.

Among other things, Wife also testified about her payment of the attorney fee award to

Husband since the Divorce Decree. She stated that she started paying Husband $100 per

month toward the attorney fee award, but increased to $200 per month, and again, to now

paying $300 per month toward the attorney fee award. She submitted a financial affidavit

showing a monthly deficiency and explained she could continue paying the $300 per month

but she currently “would have a hard time– definitely have a hard time paying what [Husband]

has asked her to pay.”

4

From our review of the record it is unclear whether or not a prior modification in accordance with the

Divorce Decree “to reflect any change in the income of the parties” had been done at that time.

-4-

Regarding her own income, Wife testified that her income had gone down since child support

was originally set. She submitted several tax returns containing adjusted gross income

amounts. She claimed that the child support worksheet she submitted to the trial court was

based on her 2012 adjusted gross income, as she was unsure what her 2013 income would be

at that time. However, she stated that Husband’s income in this worksheet was based on his

2013 income.

Husband also testified about costs he incurred in improving the marital residence for sale.

Among other things, he claimed that, for child support purposes, his gross income had

increased since 2012-2013 as he recently switched school systems; and he noted that Wife’s

proposed child support worksheet included estimates of his income that “would only be an

assumption.”

Upon conclusion of the hearing, on September 19, 2013, the trial court entered an order

entitled “Order on Plaintiff’s Motion for Reimbursement of Necessary Expenses . . .

Complaint to Modify Child Support Obligation and Defendant’s Counter-Motion for

Contempt and for Modification of the Final Decree of Divorce” (“September 2013 Order”).

As it pertained to attorney fees, the trial court denied Husband’s request to have the award in

the Divorce Decree “reduced to judgment,” finding Wife’s repayment of the award at $300

per month to be reasonable under the circumstances. However, the trial court noted that if

Wife were to miss a $300 payment, the full amount of the award would be due at that time and

the award “automatically reduced to judgment.”

The trial court also determined that all expenses related to the closing of the home, the

mortgage, the home equity line of credit, and other home improvement expenses would be

spilt evenly, commenting that all the expenses discussed “quite clearly are costs of selling this

house.” Thus after calculating the expenses spent on the home by both parties, Husband was

found to be indebted to Wife in the amount of $6,649.31, of which Husband was to pay at a

rate of $300 per month until paid in full.

Regarding child support, the trial court ordered that Wife’s request to modify child support

be reserved. The trial court ordered that Wife was to pay Husband for the last few months

of child support, as she was in arrears and, once Wife’s obligation was current, the parties’

attorneys were to “submit their clients’ income and related information to Assistant District

Attorney Stephanie Hale at the District Attorney General’s office within twenty (21) days of

the hearing for computation of proper child support.” This was apparently done, but the

record fails to contain which documents General Hale relied upon or a report detailing her

methods or conclusions.

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Several weeks later, in October 2013, the trial court entered a subsequent order granting

Wife’s request to modify her child support obligation based on General Hale’s review of the

parties’ information and proposals (“October 2013 Order”).

The trial court’s order states in relevant part as follows:

The Court reserved a ruling on Plaintiff’s Complaint to Modify Child Support

Obligation, pending review by Assistant District Attorney General Stephanie

Hale. Attorney Hale has reviewed the parties’ information and proposals and

has approved [Wife’s former counsel’s] Child Support Worksheet. It is hereby

ORDERED . . . :

Plaintiff’s request that her child support obligation be modified

is granted;

Defendant shall pay Plaintiff current child support in the amount

of $67.00 per month in accordance with the attached Child

Support Worksheet, beginning September 1, 2013.

Plaintiff having requested that any relief be retroactive to the date

she filed her Complaint, pursuant to statute, is entitled to that

relief.

Defendant shall reimburse Plaintiff for any child support

payments made to him from the months of May, June, July,

August, and September 2013.

Thus, based on the new income calculations done by General Hale, Husband was now to pay

child support to Wife. From these rulings, Husband appealed.

I SSUES ON A PPEAL AND S TANDARD OF R EVIEW

Husband raises the following issues on appeal:

The Trial Court erred in granting a motion for reimbursement of expenses and

awarding monies in the sale of the marital residence when there was no subject

matter jurisdiction to permit the court to take action.

The Trial Court erred when it failed to reduce attorney fees to judgment.

The Trial Court erred when it failed to determine the amount of child support

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and referred the motion to the Attorney General’s office for calculation because

the trial court was not capable of making the calculation.

In a bench trial, our review of the trial court’s findings of fact is de novo with a presumption

of correctness, unless the evidence preponderates otherwise. Tenn. R. App. P. 13(d);

Kendrick v. Shoemake, 90 S.W.3d 566, 570 (Tenn. 2002); Marlow v. Parkinson, 236 S.W.3d

744, 748 (Tenn. Ct. App. 2007). For the evidence to preponderate against a trial court’s

finding of fact, it must support another finding of fact with greater convincing effect. Walker

v. Sidney Gilreath & Assocs., 40 S.W.3d 66, 71 (Tenn. Ct. App. 2000); Realty Shop v. RR

Westminster Holding Inc., 7 S.W.3d 581, 596 (Tenn. Ct. App. 1999). As to the trial court’s

legal conclusions, our standard of review is de novo on the record, according no deference to

the trial court’s decision. Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn. 2000).

A NALYSIS

Sale of the Marital Residence

On appeal, Husband argues that the trial court lacked subject matter jurisdiction to assess half

of the costs and expenses associated with the sale of the house to Husband. Husband argues

that the Divorce Decree became a final order in April 2011 prior to the sale of the marital

home, and Wife cannot now obtain relief for the money she expended to sell the property

because the Divorce Decree did not specifically address expenses associated with the sale and

“[a]ll issues not ruled upon [were] dismissed.”

Husband relies on Tandy v. Tandy for the proposition that a court would not have jurisdiction

to modify property rights after an adjudication of those rights unless a specific reservation of

jurisdiction for that purpose had been stated. Tandy v. Tandy, Shelby Law No. 52, 1991 WL

3817 (Tenn. Ct. App. Jan. 18, 1991). Husband cites the following passage from Tandy:

Although ordinarily a court has no jurisdiction to modify property rights after

an adjudication of those rights has been made in the judgment of dissolution of

marriage, property rights not adjudicated on dissolution can be determined later

when jurisdiction to do so has been reserved; however, this reservation of

jurisdiction must be a specific reservation for the purpose of making a later

adjudication of property rights. . . .

Tandy, 1991 WL 3817, at *5. Based on this, Husband contends that because the Divorce

Decree did not specifically reserve the issue of costs and expenses to be determined at a later

date, the trial court erred in later ordering the parties to split these expenses, as it lacked

subject matter jurisdiction.

-7-

Subject matter jurisdiction implicates a court’s power to adjudicate a particular case or

controversy. Redwing v. Catholic Bishop for Diocese of Memphis, 363 S.W.3d 436, 445

(Tenn. 2012); Osborn v. Marr, 127 S.W.3d 737, 739 (Tenn. 2004). “In the absence of subject

matter jurisdiction, a court cannot enter a valid, enforceable order.” McQuade v. McQuade,

No. M2010-00069-COA-R3-CV, 2010 WL 4940386, at *4 (Tenn. Ct. App. Nov. 30, 2010)

(citing Brown v. Brown, 281 S.W.2d 492, 497 (Tenn. 1955)). “Therefore, subject matter

jurisdiction may be raised at any time by the parties or by the appellate court, sua sponte on

appeal.” McQuade, 2010 WL 4940386, at *4; County of Shelby v. City of Memphis, 365

S.W.2d 291, 292 (Tenn. 1963); Graham v. Graham, No. E2008-00180-COA-R3-CV, 2009

WL 167071, at *6 (Tenn. Ct. App. Jan. 26, 2009).

After carefully reviewing the record in this case, we disagree with Husband’s proposition that

the trial court did not specifically reserve jurisdiction to later adjudicate issues related to the

sale of the marital residence. Although this language does not appear in the order entitled

“Final Decree for Absolute Divorce,” the trial did explicitly reserve the issue of the marital

residence in its November 2009 Order granting Wife’s motion to sell the marital residence.

In this November 2009 Order, the trial court states, “When the marital residence is sold, the

mortgage shall be paid off in full and any equity remaining from the sale of the marital

residence shall be placed with the office of the Clerk and Master until final disposition of this

matter.” (Emphasis added).

Although selling the home took far longer than anyone anticipated and it would have been

sensible for the trial court to reiterate this reservation more directly in its Divorce Decree, the

prior reservation is not voided.5 Likewise, this fact is also demonstrated by the later

5

As exhibited by the following exchange between Husband’s attorney and the trial court at the hearing in

August 2013, the trial court reiterated its clear intention that the November 2009 Order dictate how the

marital residence was to be divided, even after the issuance of the Divorce Decree:

The Court: Maybe I need to interject here. . . . But on October 28th in 2009, The Court finds

“. . . that the Motion of [Wife] to sell the marital home is well taken and will be granted .

. . . The parties are ordered . . . to sell the marital property on condition that, one, each party

will pay directly to the mortgage company one-half the mortgage payment until the property

is sold. Two, when the property sells, the mortgage payment will be made in full.” Did that

not make it into an Order?

Mr. Camp: No, sir. That was temporary. That was the temporary Order because the

divorce, Your Honor, was in June of 2010. It did not make it into The Court’s Final Decree.

...

The Court: Well, this was prior to the divorce being granted.

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November 2010 Order, which also referenced this reserved jurisdiction to adjudicate any

disputes that potentially arose between the parties when offers were made, whenever that may

have been, stating that, “when an offer is made to purchase the marital home, should the

parties not agree upon the offer or cannot agree on the counter offer, then the Court will make

the decision.” This order also notes the trial court’s intention to reserve jurisdiction

throughout the length of the sale. Based on this, we find that the passage of time did not

remove the trial court’s jurisdiction to adjudicate all matters raised in the complaint for

divorce, including the division, sale, and distribution of the “equity remaining from the sale

of the marital residence.”

Having determined that the trial court did sufficiently reserve jurisdiction to later adjudicate

issues involving the sale of the marital residence, we note the effect that such a reservation

has on the finality of the “Final Decree of Absolute Divorce.” Husband contends that the

Divorce Decree became a final order in April 2011. We disagree.

Though the trial court’s terminology indicates to the contrary, the “Final Decree of Absolute

Divorce” cannot technically be a final order until all matters between the parties are

adjudicated. Corder v. Corder, 231 S.W.3d 346, 358 (Tenn. Ct. App. 2006) (finding that an

order reserving an issue is not a final order and would not have a res judicata effect) (citing

Richardson v. Tenn. Bd. of Dentistry, 913 S.W.2d 446, 459-60 (Tenn. 1995)). “A final

judgment is one that resolves all the issues in the case, ‘leaving nothing else for the trial court

to do.’ ” In re Estate of Henderson, 121 S.W.3d 643, 645 (Tenn. 2003) (quoting State ex rel.

McAllister v. Goode, 968 S.W.2d 834, 840 (Tenn. Ct. App. 1997)). Here, there was clearly

more for the trial court to do, as the home had not yet been sold, a value had not been placed

on the home, and the equity remained undivided; thus “adjudicat[ing] fewer than all of the

Mr. Camp: That’s right.

The Court: So that was an Order of this Court for each to pay one-half.

Mr. Camp: Yes, Your Honor. . . .[U]ntil The Court heard the Divorce Decree. And then the

Court did not –

The Court: I did not say that. I said until it was sold.

Mr. Camp: Well I’m not disagreeing with Your Honor’s interpretation of –

The Court: You know, I think that we’re bound by what The Court ordered back in 2009.

Mr. Camp: Okay.

-9-

claims, rights, or liabilities of all the parties.”6 In re Estate of Henderson, 121 S.W.3d at 645

(citing Tenn. R. App. P. 3(a)). Because this order was not final, it was “subject to revision

any time before the entry of a final judgment.” Id.; Tenn. R. Civ. P. 54.02. In this case, all

matters raised in the original complaint for divorce were not fully resolved in this case until

the trial court filed the October 2013 Order. Because a final order had not been entered, the

matter was still within the bosom of the trial court, and all modifications to the Divorce

Decree in the September 2013 order were permissible and within the trial court’s discretion.

Wall v. Wall, No. W2010-01069-COA-R3-CV, 2011 WL 2732269, at *22 (Tenn. Ct. App.

July 14, 2011) (finding issues addressed in a non-final order “remain in the bosom of the trial

court, and any rulings in the order may be modified at any time before a final order is

entered.”) (citing Greer v. Greer, No. W2009-01587-COA-R3-CV, 2010 WL 3852321, at *6

n. 7 (Tenn. Ct. App. Sept. 30, 2010)); see also Tenn. R. Civ. P. 54.02 (“[A]ny order . . . that

adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties

shall not terminate the action as to any of the claims or parties, and the order . . . is subject to

revision at any time before the entry of the judgment adjudicating all the claims and the rights

and liabilities of all the parties.”).

Wife’s Payment of Attorney Fees

We now turn to Husband’s argument on appeal regarding the award of attorney fees to Wife.

Husband contends the trial court erred when it “failed to reduce the attorney fees to

judgment.” He argues Wife had the money to pay the lump sum award without a monthly

payment plan and points to several of Wife’s specific assets and spending habits as evidence

of this.

Having determined the “Final Decree for Absolute Divorce” was not actually final for the

reasons stated above, we likewise cannot find the trial court abused its discretion in

restructuring the original attorney fee award to allow periodic payments of $300 per month.

We note it may not have been appropriate for Wife to unilaterally decide to make periodic

payments without an order of the court expressly permitting this; however, because the initial

divorce decree was not yet final and, therefore, subject to revision in the trial court’s

discretion, the trial court was within its power to later modify its award to meet her financial

needs. See Stidham v. Fickle Heirs, 643 S.W.2d 324, 329 (Tenn. 1982) (finding an order

6

We also have serious reservations about the finality of the Divorce Decree based on the lack of specificity

in the award of child support. As mentioned, the decree merely states that child support “shall be modified

to reflect any change in the income of the parties and the number of days that each party parents,” but did

not calculate the parties’ incomes or state the amount to be paid. It is unclear whether this modification

occurred or if it was determined to be unnecessary. The record does not indicate anything else regarding

child support occurred until Wife filed her complaint to modify child support two years later.

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reserving an issue was “subject to revision at any time before the entry adjudicating all the

claims and the rights and liabilities of all the parties.”); Corder, 231 S.W.3d at 358 (Tenn. Ct.

App. 2006).

Given Husband’s arguments on appeal, we also review the substance of the trial court’s

decision to structure the attorney fee award in this manner under an abuse of discretion

standard. Shamblin v. Sylvester, 304 S.W.3d 320, 331 (Tenn. Ct. App. 2009). Under this

standard, this Court will not interfere with an attorney fee award unless the trial court “applied

incorrect legal standards, reached an illogical conclusion, based its decision on a clearly

erroneous assessment of the evidence, or employed reasoning that causes an injustice to the

complaining party.” Harness v. Harness, No. E2012-02469-COA-R3-CV, 2013 WL

6155872, at *3 (Tenn. Ct. App. Nov. 21, 2013) (quoting State v. Jordan, 325 S.W.3d 1, 39

(Tenn. 2010); State v. Banks, 271 S.W.3d 90, 116 (Tenn. 2008)). “Under the abuse of

discretion standard, a trial court’s ruling ‘will be upheld so long as reasonable minds can

disagree as to [the] propriety of the decision made.’ ” Eldridge v. Eldridge, 42 S.W.3d 82, 85

(Tenn. 2001) (quoting State v. Scott, 33 S.W.3d 746, 752 (Tenn. 2000)); Discover Bank v.

Morgan, 363 S.W.3d 479, 487 (Tenn. 2012).

After reviewing the record, we, like the trial court, find monthly payments of $300 to be

reasonable under the circumstances and find that the trial court did not abuse its discretion in

revising its initial award to reflect this. This being the case, we find that trial court did not

abuse its discretion in denying Husband’s request to “reduce the award to judgment” and in

later permitting Wife to make monthly payments in the amount of $300.

Modification of Child Support

We also address the modification of child support. Though phrased and adjudicated

throughout the pleadings and proceedings as a modification, because the Divorce Decree was

not final, the trial court was free to adjust the parties’ child support obligation and findings

regarding each parties’ income as it saw fit, without requiring Mother to show a significant

variance in income. Wall, 2011 WL 2732269, at *22; Greer, 2010 WL 3852321, at *6 n.7.

However, on appeal, Husband takes issue with the trial court’s methods for determining each

parties’ income for purposes of calculating child support, arguing it was improperly done.

Husband also contends that the trial court erred in referring the calculation to the Attorney

General’s office and in General Hale relying on information that was not made a part of the

trial court’s record. In doing so, Husband argues, “There is no information as to what

‘Attorney Hale’ reviewed nor is there any basis to support the Trial Court’s decision to defer

the determination of child support to an outside attorney.” Conversely, Wife contends that

the child support calculation is supported by the evidence in the record and was properly

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calculated.

At the outset, we must observe that the trial court made no factual findings regarding the

underlying facts necessary to calculate child support in this case. This confusion is

compounded by the varied income amounts given by each of the parties at the hearing.

Effective July 1, 2009, Rule 52.01 of the Tennessee Rules of Civil Procedure was amended

to require trial courts to make specific findings of facts and conclusions of law in all bench

trials:

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. . . . If an opinion or memorandum of decision is filed,

it will be sufficient if the findings of fact and conclusions of law appear therein.

Findings of fact and conclusions of law are unnecessary on decisions of

motions under Rules 12 or 56 or any other motion except as provided in Rules

41.02 and 65.04(6).

Tenn. R. Civ. P. 52.01 (2012); see also Poole v. Union Planters Bank, N.A., 337 S.W.3d 771,

791 n. 12 (Tenn. Ct. App. 2010). “Without such findings and conclusions, this court is left

to wonder on what basis the [trial] court reached its ultimate decision .” Williams v. Singler,

No. W2012-01253-COA-R3-JV, 2013 WL 3927934, at *9 (Tenn. Ct. App. July 31, 2013)

(quoting In re K.H., No. W2008-01144-COA-R3-CV, 2009 WL 1362314, at *8 (Tenn. Ct.

App. Oct. 22, 2008); In re M.E.W., No. M2003-01739-COA-R3-PT, 2004 WL 865840, at

*19 (Tenn. Ct. App. Apr. 21, 2004)). This Court routinely remands cases to the trial court

with directions to issue such findings and conclusions “because the absence of findings of fact

and conclusions of law may render the appellate court unable to conduct an effective review

of the trial court’s decision.” Williams, 2013 WL 3927934, at *10 (citing Estate of Bucy v.

McElroy, No. W2012-02317-COA-R3-CV, 2013 WL 1798911, at *3-4 (Tenn. Ct. App. Apr.

26, 2013) (noting that Rule 52.01 requirement serves the purpose of facilitating appellate

review); Pandey v. Shrivastava, No.W2012-00059-COA-R3-CV, 2013 WL 657799, at *5-6

(Tenn. Ct. App. Feb. 22, 2013) (remanding case because unable to conduct meaningful

review); Hardin v. Hardin, No. W2012-00273-COA-R3-CV, 2012 WL 6727533, at *5-6

(Tenn. Ct. App. Dec. 27, 2012); In re Connor S.L., No. W2012-00587-COA-R3-JV, 2012

WL 5462839, at *4-5 (Tenn. Ct. App. Nov. 8, 2012); Simpson v. Fowler, No. W2011-02112-

COA-R3-CV, 2012 WL 3675321, at *4-5 (Tenn. Ct. App. Aug. 28, 2012)).

Though the child support worksheet was incorporated into the October 2013 Order and

included income amounts for each party, we have no way to determine how General Hale

arrived at these amounts for each parties’ respective incomes or what documents she relied

on in her calculation, leaving us “left to wonder on what basis the [trial] court reached its

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ultimate decision.” Moreover, we are unsure if the evidence General Hale did rely on was

even included in the record. This being the case, we are unable to effectively review these

calculations, and we must remand this matter to the trial court for appropriate findings of fact

and conclusions of law as it pertains to the parties’ income and the calculation of child

support.

In addition, Husband contends that the trial court improperly deferred the determination to

General Hale. We find that it was not improper in and of itself for the trial court to seek

assistance from General Hale. However, the trial court failed to follow proper procedure

when it did so. Special masters are routinely used in both initial child support and

modification cases, especially in complicated cases such as this, when one or both parents are

self-employed. See Bradley v. Bradley, No. M2009-01234-COA-R3-CV, 2010 WL 2712533

(Tenn. Ct. App. July 8, 2010); Peterson v. Peterson, No. M2008-00631-COA-R3-CV, 2009

WL 4041632, at *2-3 (Tenn. Ct. App. Nov. 20, 2009); Pruett v. Pruett, No. E2007-00349-

COA-R3-CV, 2008 WL 182236, at *5-6 (Tenn. Ct. App. Jan. 22, 2008); Johnston v.

Houston, 170 S.W.3d 573, 574 (Tenn. Ct. App. 2004). The trial court clearly had the

authority to enlist the assistance of General Hale in the role of special master. Tenn. R. Civ.

P. 53.01. However, in so doing, both General Hale and the trial court are required to follow

a certain procedure that allows both the parties and reviewing courts to understand what has

transpired and how the special master arrived at his or her conclusions. Rule 53.04 of the

Tennessee Rules of Civil Procedure clearly sets forth both a special master’s duties, as well

as the trial court’s, when a special master has been appointed to assist in a non-jury trial:

(1) Contents and Filing. 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. The clerk shall forthwith mail to all parties

notice of the filing.

(2) In Non-jury Actions. In an action to be tried without a jury the court shall

act upon the report of the master. Within ten (10) days after being served with

notice of the filing of the report, any party may serve written objections thereto

upon the other parties. Application to the court for action upon the report and

upon objections thereto shall be by motion and upon notice as prescribed in

Rule 6.04. The court after hearing may adopt the report or may modify it or may

reject it in whole or in part or may receive further evidence or may recommit

it with instructions.

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Tenn. R. Civ. P. 53.04. In this case, though perhaps not specifically designated as such,

General Hale clearly served in this capacity, yet never submitted a special master’s report or

a “transcript of the proceedings and of the evidence and the original exhibits” to the trial court

for review. Husband likewise was never given an opportunity to make written objections to

the report prior to the trial court’s adoption of it. This being the case, we find that the trial

court erred in failing to follow the procedure set forth in Rule 53.04 and on remand should

properly follow this procedure, if it deems assistance in calculating child support necessary.

All other issues raised on appeal are pretermitted by this decision.

C ONCLUSION

The decision of the trial court is affirmed in part and remanded in part for proceedings

consistent with this Opinion. Costs on appeal are assessed against Appellant Jeffrey Walter

Johnson and his surety, for which execution may issue if necessary.

___________________________

PAUL G. SUMMERS, SENIOR JUDGE

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