Opinion

Candance Gooch Spight v. Deangelo M. Spight

Court
Court of Appeals of Tennessee
Filed
Mar 21, 2019
Status
Published
On the bench
Judge Kenny Armstrong
Cited by
0 cases
Authority
More cited than 7.3%

holding that without 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.”

How later courts described this case

  • holding that without 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.”

Written by the judges who cited it.

The opinion

03/21/2019

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

February 13, 2019 Session

CANDANCE GOOCH SPIGHT v. DEANGELO M. SPIGHT

Appeal from the Chancery Court for Madison County

No. 75462 James F. Butler, Chancellor

___________________________________

No. W2018-00666-COA-R3-CV

___________________________________

This is an appeal from a final decree of divorce. Father/Appellant appeals the trial

court’s ruling regarding retroactive child support. The appellate record contains no

transcript or statement of the evidence for our review as required by the Tennessee Rules

of Appellate Procedure. However, the trial court’s order contains an inconsistency

regarding the amount of the retroactive child support award. Specifically, the amount of

arrears ordered does not comport with the accrual date for arrears listed in the trial court’s

order. Because there are no findings, to resolve the inconsistency, we vacate the trial

court’s award of retroactive child support. The trial court’s order is otherwise affirmed.

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

in Part; Vacated in Part and Remanded

KENNY ARMSTRONG, J., delivered the opinion of the court, in which J. STEVEN

STAFFORD, P.J., W.S. and ARNOLD B. GOLDIN, J., joined.

Deangelo M. Spight, Hickory Valley, Tennessee, pro se.

Candance Gooch Spight, Wildersville, Tennessee, pro se.1

1

Ms. Spight did not participate in the appeal.

MEMORANDUM OPINION2

Candance Gooch Spight (“Mother,” or “Appellee”) and Deangelo M. Spight

(“Father,” or “Appellant”) were married in June 2007. One child, K.S. (“the Child”), was

born to the marriage in December 2010.3 The parties separated in 2014. On April 13,

2017, Mother filed a Complaint for Divorce with a Proposed Parenting Plan in the

Madison County Chancery Court (“trial court”). On September 28, 2017, Father filed a

signed, untitled document, which appeared to be a response to Mother’s complaint. In

the document, Father agreed to the divorce but argued that Mother abandoned the Child

and him for a period of time during their separation. Specifically, Father alleged that the

Child was in his custody from the date of the parties’ separation in 2014 through July

2016, when Mother took the Child from Father.

On October 3, 2017, the trial court heard Mother’s complaint for divorce. By

order of March 19, 2018, the trial court granted the divorce. As is relevant to this appeal,

the trial court incorporated Mother’s proposed parenting plan into the final decree

(“Parenting Plan”). The Parenting Plan designated Mother as the primary residential

parent, giving her 285 days with the Child, and designated Father as the alternative

residential parent, giving him 80 days with the Child. The Parenting Plan showed

Father’s gross monthly income as $1,770.00, and ordered Father to pay $341.00 per

month in child support, beginning on October 1, 2017. In the section of the Parenting

Plan titled “Child Support,” there is a subsection called “Retroactive Support,” which

provides:

Retroactive Support: A judgment is hereby awarded in the amount of

$15,004.00 to [x] mother [ ] father against the child support payor

representing retroactive support required under Section 1240-2-4.06 of the

D.H.S. Income Shares Child Support Guidelines dating from January 1,

2015 which shall be paid (including pre/post judgment interest) at the rate

of $250.07 per [ ] week [x] month [ ] twice per month [ ] every two weeks

until judgment is paid in full.

2

Rule 10 of the Court of Appeals of Tennessee provides:

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.

3

In cases involving minor children, it is the policy of this Court not to use the full names of the

children in order to protect their identities.

-2-

On appeal, Father argues that the trial court erred in calculating the child support

arrearage. Specifically, Father argues that the Child lived solely with Father from May

2014 through July 2016; accordingly, he argues that he should not be required to pay

retroactive support for this period.

From our review, the sole issue on appeal is whether the trial court erred in

calculating retroactive child support.

“We review a non-jury case de novo upon the record with a presumption of

correctness as to the findings of fact unless the preponderance of the evidence is

otherwise.” Tennessee Farmers Mut. Ins. Co. v. Debruce, No. E2017-02078-COA-R3-

CV, 2018 WL 3773912, at *3 (Tenn. Ct. App. Aug. 9, 2018) (citing Tenn. R. App. P.

13(d); Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn. 2000)). To the extent that the

determination of the issues rests on statutory construction, they present questions of law,

which we review de novo. Riad v. Erie Ins. Exch., 436 S.W.3d 256, 272 (Tenn. Ct. App.

2013) (citing In re Estate of Tanner, 295 S.W.3d 610, 613 (Tenn. 2009) (citing Gleaves

v. Checker Cab Transit Corp., 15 S.W.3d 799, 802 (Tenn. 2000)); Myint v. Allstate Ins.

Co., 970 S.W.2d 920, 924 (Tenn. 1998)). The trial court’s conclusions of law are

reviewed de novo and “are accorded no presumption of correctness.” Brunswick

Acceptance Co., LLC v. MEJ, LLC, 292 S.W.3d 638, 642 (Tenn. 2008).

While we are cognizant that Mr. Spight is proceeding pro se, it is well-settled that

“pro se litigants are held to the same procedural and substantive standards to which

lawyers must adhere.” Brown v. Christian Bros. University, 428 S.W.3d 38, 46 (Tenn.

Ct. App. 2013). While a party who chooses to represent himself or herself is entitled to

the fair and equal treatment of the courts, Hodges v. Tenn. Att’y Gen., 43 S.W.3d 918,

920 (Tenn. Ct. App. 2000), “[p]ro se litigants are not . . . entitled to shift the burden of

litigating their case to the courts.” Whitaker v. Whirlpool Corp., 32 S.W.3d 222, 227

(Tenn. Ct. App. 2000). “The burden is [on] the appellant to show that the evidence

preponderates against the judgment of the trial court.” Coakley v. Daniels, 840 S.W.2d

367, 370 (Tenn. Ct. App. 1992) (citing Capital City Bank v. Baker, 442 S.W.2d 259, 266

(Tenn. Ct. App. 1969)).

“The burden is likewise on the appellant to provide the court with a transcript of

the evidence or a statement of the evidence from which this Court can determine if the

evidence does preponderate for or against the findings of the trial court.” Id. The

Tennessee Rules of Appellate Procedure place the responsibility for the preparation of the

transcript or a statement of evidence on the parties, and the appellant has the primary

burden to see that a proper record is prepared and filed in this Court. Tenn. R. App. P.

24; McDonald v. Onoh, 772 S.W.2d 913, 914 (Tenn. Ct. App. 1989). If no transcript is

available, Tennessee Rule of Appellate Procedure 24 provides:

-3-

If no stenographic report, substantially verbatim recital or transcript of the

evidence or proceedings is available . . . the appellant shall prepare a

statement of the evidence or proceedings from the best available means,

including the appellant’s recollection. The statement should convey a fair,

accurate and complete account of what transpired with respect to those

issues that are the bases of appeal.

Tenn. R. App. P. 24(c). Here, the appellate record contains neither a transcript of the

hearing nor a Tennessee Rule of Appellate Procedure 24(c) statement of the evidence.

Where the issues on appeal turn on factual determinations, the absence of a

transcript or statement of the evidence is essentially fatal to the party having the burden

on appeal. See Sherrod v. Wix, 849 S.W.2d 780, 783 (Tenn. Ct. App. 1992) (holding that

without 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.”); Baugh v. Moore, No. M2013-02224-COA-R3-CV, 2015 WL

832589, at *3 (Tenn. Ct. App. Feb. 25, 2015). Without a transcript or statement of the

evidence, we have no way to determine whether the evidence was sufficient to support

the trial court’s findings of fact and its conclusions of law based on those facts. “In the

absence of a transcript of the evidence, 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, 840 S.W.2d at 370 (citing McKinney v.

Educator and Executive Insurers, Inc., 569 S.W.2d 829, 832 (Tenn. App. 1977)); see

also Sherrod, 849 S.W.2d at 783; Baugh, 2015 WL 832589, at *3-4.

In the absence of a transcript or statement of the evidence, this Court would

customarily conclude that there was sufficient evidence before the trial court to support

its judgment and affirm the judgment. See Coakley, 840 S.W.2d at 370. Here, however,

the Parenting Plan, which the trial court incorporated into its final order, contains a

discrepancy concerning the retroactive child support award. In setting retroactive child

support, trial courts are to consider the Tennessee Child Support Guidelines (“the

Guidelines”). Tenn. Code Ann. §§ 36-2-311(a)(11)(A), 36-5-101(e)(1)(A). According to

the Guidelines, a judgment for retroactive support “must be entered to include an amount

of monthly support due up to the date that an order for current support is entered.” Tenn.

Comp. R. & Regs. 1240-2-4-.06(1) (2008). In setting the amount, the retroactive support

is to run from the date:

1. Of separation of the parties in a divorce or in an annulment; or

2. Of abandonment of the child and the remaining spouse by the other

parent in such cases; or

3. Of physical custody of the child by a parent or non-parent caretaker.

-4-

Tenn. Comp. R. & Regs. 1240-2-4-.06(1)(b)(1) (2008). A trial court may deviate from

the Guidelines in cases where “application of the guidelines is rebutted by clear and

convincing evidence.” Tenn. Code Ann. § 36-2-311(a)(11)(B); see also Tenn. Code Ann.

§ 36-5-101(e)(1)(A); Tenn. Comp. R. & Regs. 1240-2-4-.06(1) (2008). If the trial court

deviates from the Guidelines, the statute requires the trial court to make “written

findings” to support the deviation. Tenn. Code Ann. §§ 36-2-311(a)(11)(B), (F); see also

Tenn. Code Ann. §§ 36-5-101(e)(1)(A), (D); Tenn. Comp. R. & Regs. 1240-2-4-.06(2).

As set out above, the trial court ordered $15,004.00 in arrears with the starting

date for retroactive child support as January 1, 2015, a date that neither party alleged as

the date of separation, nor the date Mother purportedly took the Child from Father. The

trial court made no findings concerning either the amount or effective date of arrears, and

it is unclear whether the trial court deviated from the Guidelines. Although we have

made some calculations of our own, we are still unsure of the trial court’s reasoning

concerning the retroactive child support award. For example, there are 34 months

between January 2015 and October 2017 (the beginning date of Father’s prospective

child support obligation). If one multiplies 34 by $341.00 (Father’s prospective child

support amount), the amount of arrearage totals only $11,594.00. However, the trial

court awarded $15,004.00 as the amount of retroactive support. From this amount, we

discern that the trial court most likely used March 2014, the date listed as the parties’

separation date in Mother’s complaint for divorce, as the beginning date for retroactive

child support. There are 44 months between March 2014 and October 2017. If one

multiplies 44 by $341.00, the amount of arrearage totals the $15,004.00 awarded by the

trial court. However, this is inconsistent with the trial court’s ruling concerning the

January 2015 start date for determining arrears. Without a transcript, statement of the

evidence, or findings by the trial court, we cannot know whether the trial court meant to

enter a judgment for retroactive support dating back to January 2015 or dating back to

March 2014, the stated separation date in Mother’s complaint. Regardless, the

$15,004.00 amount of arrears and the January 1, 2015 date listed as the accrual date for

the arrears is inconsistent. The only way to reconcile this inconsistency in the Parenting

Plan is to remand the case to the trial court for further proceedings. The trial court may

accept additional evidence or conduct additional hearings if in its discretion it believes it

is necessary to make the relevant findings. If the trial court determines that Father owes

retroactive child support dating back to Mother’s alleged date of separation, the trial court

will have the opportunity to enter another order making that clear. However, if the trial

court determines that clear and convincing evidence exists such that a deviation from the

Guidelines is appropriate in this case, the trial court will have an opportunity to make

written findings supporting that outcome, as set forth in the statutes and the Guidelines.

See Tenn. Code Ann. §§ 36-2-311(a)(11)(B), (F); see also 36-5-101(e)(1)(D); Tenn.

Comp. R. & Regs. 1240-2-4-.06(2).

-5-

Conclusion

For the foregoing reasons, we affirm the judgment of the trial court with the

exception of the retroactive child support judgment, which is vacated and remanded for

further proceedings consistent with this opinion. Costs of the appeal are assessed one-

half to Appellant, Deangelo M. Spight and his surety, and one-half to Appellee,

Candance Gooch Spight, for all of which execution may issue if necessary.

_________________________________

KENNY ARMSTRONG, JUDGE

-6-

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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