09/17/2021 IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE Assigned on Briefs July 1, 2021

SARAH H. RICHARDSON v. BENJAMIN N. RICHARDSON

Appeal from the Circuit Court for Montgomery County No. CC-14-1953 Ross H. Hicks, Judge ___________________________________

No. M2020-00179-COA-R3-CV ___________________________________

Mother appeals the trial court’s decision to change the parties’ permanent parenting plan to designate Father as the primary residential parent of the children. Discerning no reversible error, we affirm.

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

J. STEVEN STAFFORD, P.J., W.S., delivered the opinion of the court, in which THOMAS R. FRIERSON, II and W. NEAL MCBRAYER, J., joined.

Mart G. Fendley and Paisley Anderson, Clarksville, Tennessee, for the appellant, Sarah H. Richardson.

Jacob P. Mathis and Tiffany D. Leffler, Clarksville, Tennessee, for the appellee, Benjamin N. Richardson.

OPINION

I. FACTUAL AND PROCEDURAL HISTORY Plaintiff/Appellant Sarah Richardson (“Mother”) and Defendant/Appellee Benjamin Richardson (“Father”) were divorced on July 10, 2015. Incorporated into the divorce decree was an agreed permanent parenting plan that designated Mother as the primary residential parent for the parties’ two children. Because Father is an active duty military member, Father’s time with the children was dependent on whether he resided in the Clarksville, Tennessee area. If he did, the parties would enjoy equal time with the children. If not, Mother would enjoy substantially more time with the children.

Pursuant to the parties’ marital dissolution agreement, Mother was awarded the marital home in Clarksville and the responsibility of the mortgage payments going forward, but Father was ordered to make payments to get the mortgage current. Father was unable to do so, and the mortgage was foreclosed. As a result, Mother asserted that she informed Father that she was moving to Texas so that a “friend” who was also in the military could help prevent her from becoming homeless. Mother married this “friend” only a short time after the divorce was finalized. There was some dispute as to whether Mother properly notified Father of the move, but Mother moved in any event. As a result of the move, Father was not able to exercise equal parenting time even when he resided in the Clarksville area.

Mother later filed a petition to modify the permanent parenting plan on April 3, 2019. Therein, Mother alleged that a material change in circumstances had occurred due to her relocation and Father’s refusal to communicate or abide by the current parenting plan. Mother further asserted that it was in the children’s best interest that she continue to be named primary residential parent, but that Father’s parenting time be reduced to only eighty days per year. Mother also asked that child support be recalculated based on any changes in parenting time.

Father filed an answer and counter-petition on April 11, 2019. Therein, Father admitted that a material change in circumstances had occurred, but asserted that the material change related to Mother’s behavior. In particular, Father alleged that Mother, inter alia, involved the children in adult conversations, refused to cooperate with Father regarding his parenting time, denied Father parenting time, and made constant attempts to alienate the children from him. Father asserted that these facts constituted a material change in circumstances, but that it was in the children’s best interest that he be named primary residential parent.^[1] Mother answered Father’s counter-petition on April 16, 2019, denying the material allegations therein.

On July 5, 2019, Father filed a motion for contempt and to enforce the summer parenting time provided for in the permanent parenting plan. Father struck his motion twenty days later. On August 5, 2019, the parties entered into an agreed order setting trial for December 5, 2019. The parties participated in mediation on August 6, 2019, which was unsuccessful.

On October 17, 2019, Father filed a motion to hold Mother in contempt and to enforce the Thanksgiving parenting time contained in the parties’ permanent parenting plan. Father asserted that because he resided in Clarksville, he was entitled to Thanksgiving parenting time on odd years, i.e., 2019. According to Father, Mother refused to allow him this parenting time, arguing that Thanksgiving is the same as Fall break, which Mother was awarded on odd years. Father therefore asked that Mother be held in contempt and that he be awarded the proper parenting time. Mother responded to Father’s motion on October 22, 2019, arguing that because Father was given the Thanksgiving holiday in 2018, she was entitled to the holiday in 2019. After a hearing, however, the trial court ruled that Father was entitled to the Thanksgiving holiday under the permanent parenting plan. The trial court did not, however, address Father’s request that Mother be held in contempt.

Not to be deterred, Father filed another motion for Mother to be held in contempt on November 5, 2019. Therein, Father alleged that Mother had made derogatory comments against Father in front of the children in violation of the permanent parenting plan. Father therefore asked that Mother be found in criminal contempt and sentenced to ten days in jail, and that he be awarded attorney’s fees. Mother later filed a response to Father’s motion, denying the material allegations contained therein.

On November 6, 2019, Mother filed a motion for the trial court to appoint a guardian ad litem for the children under Rule 40A of the Rules of the Tennessee Supreme Court. Mother also asked that the final hearing be continued to allow the guardian ad litem to investigate. In her motion, Mother alleged that her petition “contains serious allegations involving Father which require further investigation by an advocate for the minor children.” Mother alleged the same about Father’s petition. Moreover, Mother alleged that “unless an advocate is appointed to represent the minor children’s best interests[,] the children will continue to be influenced by Father’s actions and will suffer significant emotional harm.” Father opposed both the appointment of a guardian ad litem and the continuation of the trial. The trial court denied Mother’s motion for the appointment of a guardian ad litem and to continue the trial by order of November 19, 2019.

Trial occurred on December 5, 2019. Several exhibits were introduced at trial, including text messages between the parties, a school calendar, before-and-after photographs of the children’s haircuts, pictures stating that they showed the worn-out and wrong-sized shoes sent with the children by Mother on visits to Father, a letter written by Father’s current wife (“Step-Mother”) to Mother, and a recording of a call between the parties. In the letter, Step-Mother sought to introduce herself to Mother as the person who would “be tending to most of the children’s needs,” including “kiss[ing] boo-boos, . . . help[ing] with homework, . . . buy[ing] the birthday presents, organiz[ing] the family calendar, [and] mak[ing] playdates[.]” The letter further stated that it was not about Father, but about Step-Mother’s own desire to parent the children. The letter ended as follows:

So, I write to you to ask a tough question. Can I take care of [the children]? This question comes with the understanding that they are expected to continue building a relationship with you [and your family]. We do not want to take the girls away from your home. We want to care for them and love them. . . .

The recorded phone call was initially between Father and one of the children. The child asked Father why he went to court over the 2019 Thanksgiving parenting time, when Father had parenting time the previous Thanksgiving. Father attempted to deflect the question by asserting that it was an adult issue. Mother then entered the call, berating Father for not answering the question, and for hurting the children with his actions, Step-Mother’s ill-advised letter, and generally acting in a selfish manner.^[2] Mother denied that the children were present during the call, but children could be heard at times in the background, and during the call Mother admitted their presence.

At the conclusion of the trial, the trial court orally ruled that Father had shown a material change in circumstances and that the best interest factors favored naming him the primary residential parent. The trial court also found that Mother was guilty of criminal contempt and sentenced her to ten days incarceration, suspended to two days.

On December 18, 2019, Father filed a motion to enforce the suspended sentence against Mother on the basis that she was still denying Father contact with the children. On January 3, 2020, Father also filed a motion to relocate with the children, as he had been transferred due to his military service. Mother later responded in opposition to both motions. As to the motion to enforce the suspended sentence, Mother denied that she denied Father contact with the children; instead, she claimed she was just respecting the children’s wish not to speak to Father. As for the proposed relocation, she claimed that Father knew about his upcoming move by the time of trial and intentionally withheld that information. Mother asked that Father’s relocation be denied or that the children be returned to her care.

A written order on the modification of the parenting plan was eventually entered on January 3, 2020. Therein, the trial court first ruled that Mother’s relocation to Texas was reasonable under the circumstances and that issues related to the relocation were now moot. The trial court further ruled that Mother failed to meet her burden to demonstrate a material change in circumstances, but that Father had met his burden. The trial court then went on to consider the factors outlined in Tennessee Code Annotated section 36-6-106, which it ruled favored Father in the aggregate. The trial court then ruled that based on the section 36-6-106 factors “as stated above,” Father’s proposed parenting plan would be adopted as in the best interests of the children. The parenting plan provided that Mother would enjoy 103 days with the children, while Father would enjoy 262.

As to Father’s contempt allegations, the trial court ruled that Mother would not be held in contempt regarding the allegations that she denied Father summer and Thanksgiving parenting time. The trial court did rule that Mother was in contempt based on Father’s November 5, 2019 motion. Specifically, the trial court ruled that the contempt allegation was “more than sustained by Exhibit 8” and that Mother was guilty beyond a reasonable doubt. The trial court sentenced Mother to ten days incarceration, suspended to two days. Finally, the trial court awarded Father nearly $7,000.00 in attorney’s fees.

On January 31, 2020, Mother filed a motion for the trial court to find additional facts concerning Mother’s income for child support purposes. This motion was eventually struck by agreement. Also on January 31, 2020, Mother filed a notice of appeal to this Court. While this appeal was pending, on February 5, 2020, the trial court entered a written order finding that Father’s relocation was reasonable and in the best interest of the children.^[3] But the trial court further found that because Father moved prior to the hearing on the relocation, he would be ordered to pay Mother’s attorney’s fees in opposing the relocation. Thus, the trial court ruled that the prior judgment of attorney’s fees would be reduced by the amount of Mother’s attorney’s fees. Finally, the trial court ruled that it would not enforce the suspended sentence, but that it would retain jurisdiction to do so until July 15, 2020.

II. ISSUES PRESENTED

Mother raises four issues in this case, which we restate and reorder as follows:

1. Whether the trial court’s order complies with Rule 52.01 of the Tennessee Rules of Civil Procedure? 2. Whether the trial court erred in finding that it was in the children’s best interests for Father to be named primary residential parent? 3. Whether the trial court erred in finding that Mother committed contempt and ordering her to serve two days incarceration? 4. Whether the trial court erred in denying Mother’s motion to appoint a guardian ad litem? In the posture of appellee, Father seeks an award of attorney’s fees incurred on appeal.

II. STANDARD OF REVIEW It is well-settled that, in matters of child custody, visitation, and related issues, trial courts are given broad discretion; consequently, appellate courts are reluctant to second- guess a trial court’s determinations regarding these important domestic matters. See Armbrister v. Armbrister, 414 S.W.3d 685, 693 (Tenn. 2013); Harwell v. Harwell, 612 S.W.2d 182, 185 (Tenn. Ct. App. 1980). As explained in Richards on Tennessee Family Law:

Appellate courts correct errors. When no error in the trial court’s ruling is evident from the record, the trial court’s ruling must stand. This maxim has special significance in cases reviewed under the abuse of discretion standard. The abuse of discretion standard recognizes that the trial court is in a better position than the appellate court to make certain judgments. The abuse of discretion standard does not require a trial court to render an ideal order, even in matters involving visitation, to withstand reversal. Reversal should not result simply because the appellate court found a “better” resolution.

Janet L. Richards, Richards on Tennessee Family Law § 9-2 (2d ed. 2004) (quoting Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001)).

IV. ANALYSIS

A.

The central issue in this case is the trial court’s decision to change the primary residential parent of the children from Mother to Father. As we have recently explained:

Upon a petition to modify custody from one parent to the other parent, “the ‘threshold issue’ is whether a material change in circumstance has occurred after the initial custody determination.” See Kendrick v. Shoemake, 90 S.W.3d 566, 570 (Tenn. 2002) (quoting Blair v. Badenhope, 77 S.W.3d 137, 150 (Tenn. 2002)). Upon a trial court’s finding that a material change in circumstance affecting the children has occurred, “it must then be determined whether the modification is in the child[ren]’s best interests.” Kendrick, 90 S.W.3d at 570 (citing Tenn. Code Ann. § 36-6-106); see generally Boyer v. Heimermann, 238 S.W.3d 249, 255 (Tenn. Ct. App. 2007) (“In approaching questions of custody and visitation, the needs of the children are paramount; the desires of the parents are secondary.”).

Bastone v. Bastone, No. E2020-00711-COA-R3-CV, 2021 WL 1711098, at *7 (Tenn. Ct. App. Apr. 30, 2021).

Here, the trial court found that Father had shown a material change in circumstances sufficient to warrant reconsideration of the primary residential parent. The trial court then determined that it was in the children’s best interests for Father to be named their primary residential parent and to adopt Father’s proposed parenting plan. In the body of her brief, Mother asserts that the trial court erred in its initial finding concerning the material change in circumstances. Mother also contends that that Father did not properly seek a change in the primary residential parent. We respectfully disagree that Mother is entitled to relief as to either argument.

First, we conclude that Mother has waived any argument that the trial court erred in its determination regarding a change in circumstances. It is well-settled that issues argued in the body of a brief but not designated as an issue are waived on appeal. See Childress v. Union Realty Co., 97 S.W.3d 573, 578 (Tenn. Ct. App. 2002) (“We consider an issue waived where it is argued in the brief but not designated as an issue.”). The specific issue that Mother raised with regard to the parenting plan is as follows:

Therefore, this court should find that the trial court erred in finding that it is in the best interest of the children to change the primary residential parent designation from [] Mother to []Father because it incorrectly applied Tennessee law when analyzing the best interest factors set forth in Tennessee Code Annotated § 36-6-106.

As is evident, this issue is directed not toward the trial court’s findings as to a material change in circumstances, but only as to the issue of best interest. Mother’s contention that the trial court erred in finding a material change in circumstances is therefore waived.

We also disagree that Father did not properly seek a change in the designation of primary residential parent. It is true that “‘[j]udgments awarded outside of the scope of the requested relief are typically void.’” State ex rel. Nichols v. Songstad, 563 S.W.3d 868, 875 (Tenn. Ct. App. 2018) (quoting Long v. Long, No. M2015-00592-COA-R3-CV, 2015 WL 9584393, at *4 (Tenn. Ct. App. Dec. 29, 2015)). Therefore, “‘[a] trial court commits error when it bases a decision, even in part, upon conclusions concerning an issue that was not raised in the pleadings or tried by consent.’” Id. (quoting Long, 2015 WL 9584393, at *4). But we cannot conclude that Father did not raise this issue in his pleadings.

As previously discussed, Father filed a counter-petition on April 11, 2019. Although the counter-petition initially asserts that Father “be granted permission to relocate,” elsewhere in his petition, he makes clear that he is asserting “a material change in circumstances warranting a modification of the current Parenting Plan” and that “it is in the best interest of the children that the current Parenting Plan be modified to name Father primary residential parent.” Mother’s contention that Father did not properly seek this relief in the trial court therefore lacks merit.

Given that the material change in circumstances issue is not properly before us, we proceed to consider the best interest component of the analysis. See Bastone, 2021 WL 1711098, at *8 (proceeding to the best interest analysis where neither parent “contested the trial court’s finding of a material change in circumstance”) (citing Gider v. Hubbell, No. M2016-00032-COA-R3-JV, 2017 WL 1178260, at *6 (Tenn. Ct. App. Mar. 29, 2017) (proceeding directly to the best interest analysis in a custody modification action when “both parties stipulated that a material change had occurred” and the mother did “not contest the juvenile court’s finding of a material change in circumstances”); In re Jordin M., No. M2013-02275-COA-R3-JV, 2015 WL 1650243, at *9 (Tenn. Ct. App. Apr. 9, 2015) (same)). Tennessee Code Annotated section 36-6-106(a) provides that “in any. . . proceeding requiring the court to make a custody determination regarding a minor child, the determination shall be made on the basis of the best interest of the child.” To determine a child’s best interest, section 36-6-106(a) provides that the trial court “shall consider all relevant factors [listed in the statute], where applicable[.]” Id. (emphasis added). These factors include:

(1) The strength, nature, and stability of the child’s relationship with each parent, including whether one (1) parent has performed the majority of parenting responsibilities relating to the daily needs of the child; (2) Each parent’s or caregiver’s past and potential for future performance of parenting responsibilities, including the willingness and ability of each of the parents and caregivers to facilitate and encourage a close and continuing parent-child relationship between the child and both of the child’s parents, consistent with the best interest of the child. In determining the willingness of each of the parents and caregivers to facilitate and encourage a close and continuing parent-child relationship between the child and both of the child’s parents, the court shall consider the likelihood of each parent and caregiver to honor and facilitate court ordered parenting arrangements and rights, and the court shall further consider any history of either parent or any caregiver denying parenting time to either parent in violation of a court order; (3) Refusal to attend a court ordered parent education seminar may be considered by the court as a lack of good faith effort in these proceedings; (4) The disposition of each parent to provide the child with food, clothing, medical care, education and other necessary care; (5) The degree to which a parent has been the primary caregiver, defined as the parent who has taken the greater responsibility for performing parental responsibilities; (6) The love, affection, and emotional ties existing between each parent and the child; (7) The emotional needs and developmental level of the child; (8) The moral, physical, mental and emotional fitness of each parent as it relates to their ability to parent the child. The court may order an examination of a party under Rule 35 of the Tennessee Rules of Civil Procedure and, if necessary for the conduct of the proceedings, order the disclosure of confidential mental health information of a party under § 33-3-105(3). The court order required by § 33-3-105(3) must contain a qualified protective order that limits the dissemination of confidential protected mental health information to the purpose of the litigation pending before the court and provides for the return or destruction of the confidential protected mental health information at the conclusion of the proceedings; (9) The child’s interaction and interrelationships with siblings, other relatives and step-relatives, and mentors, as well as the child’s involvement with the child’s physical surroundings, school, or other significant activities; (10) The importance of continuity in the child’s life and the length of time the child has lived in a stable, satisfactory environment; (11) Evidence of physical or emotional abuse to the child, to the other parent or to any other person. The court shall, where appropriate, refer any issues of abuse to juvenile court for further proceedings; (12) The character and behavior of any other person who resides in or frequents the home of a parent and such person’s interactions with the child; (13) The reasonable preference of the child if twelve (12) years of age or older. The court may hear the preference of a younger child upon request. The preference of older children should normally be given greater weight than those of younger children; (14) Each parent’s employment schedule, and the court may make accommodations consistent with those schedules; and (15) Any other factors deemed relevant by the court.

Before we consider the merits of the trial court’s best interest determination, we must first discuss two issues that hinder appellate review in this case. First, no transcript or statement of the evidence was filed by either party in this case. Under Rule 24 of the Tennessee Rules of Civil Procedure, the appellant is generally tasked with providing this Court with a transcript or statement of the evidence that is a “fair, accurate, and complete account of what transpired with respect to those issues that are the bases of the appeal.” Tenn. R. App. P. 24(b). Tennessee law is clear that in the absence of a transcript or statement of the evidence, there is a conclusive presumption that there was sufficient evidence before the trial court to support its judgment. Brown v. Christian Bros. Univ., 428 S.W.3d 38, 48 (Tenn. Ct. App. 2013) (quoting Outdoor Mgmt., LLC v. Thomas, 249 S.W.3d 368, 377 (Tenn. Ct. App. 2007)). We are therefore unable to correct any errors that are not reflected in either the technical record or the exhibits contained in the appellate record. Cf. Vanquish Express, LLC v. Dixie Ohio Xpress, LLC, No. M2018- 01934-COA-R3-CV, 2019 WL 7049682, at *3 (Tenn. Ct. App. Dec. 20, 2019) (conclusively presuming the trial court’s factual findings to be correct because “the errors alleged by Defendants are not reflected in the technical record”); Hearn v. Am. Wash Co., No. M2017-00722-COA-R3-CV, 2018 WL 3479912, at *2 (Tenn. Ct. App. July 19, 2018) (considering the exhibits contained in the appellate record despite the absence of a transcript).

The problem with application of this rule, however, is that the “conclusive presumption applies to the trial court’s factual findings concerning proof presented at trial.” In re Corbin W., No. W2018-00608-COA-R3-JV, 2018 WL 5994861, at *2 (Tenn. Ct. App. Nov. 15, 2018) (citing In re Estate of Kysor, No. E2014-02143- COA-R3-CV, 2015 WL 9465332, at *4 (Tenn. Ct. App. Dec. 28, 2015) (citing In re M.L.D., 182 S.W.3d 890, 894 (Tenn. Ct. App. 2005))) (emphasis added); see also Burris v. Burris, 512 S.W.3d 239, 247 (Tenn. Ct. App. 2016) (“In the absence of a transcript or statement of the evidence, we conclusively presume that the findings of fact made by the trial court are supported by the evidence and are correct.”). But as Mother correctly points out, the trial court failed to make detailed factual findings in its written order. The law is equally clear that such findings are required in bench trials of this type.

Rule 52.01 of the Tennessee Rules of Civil Procedure requires that trial courts make findings of fact in bench trials. Specifically, Rule 52.01 states as follows:

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. The findings of a master, to the extent that the court adopts them, shall be considered as the findings of the court. If an opinion or memorandum of decision is filed, it will be sufficient if the findings of fact and conclusions of law appear therein.

An order meets the requirements of Rule 52.01 only when the order “‘disclose[s] to the reviewing court the steps by which the trial court reached its ultimate conclusion on each factual issue.’” Lovlace v. Copley, 418 S.W.3d 1, 35 (Tenn. 2013) (quoting 9C Federal Practice and Procedure § 2579, at 328). In the context of a child custody decision implicating the section 36-6-106 factors, we have held that while the trial court is not required to “list every applicable factor along with its conclusion as to how that particular factor impacted the overall custody determination,” consideration of these factors to determine best interest is mandatory. Murray v. Murray, No. M2009-01576-COA-R3-CV, 2010 WL 3852218, at *8 (Tenn. Ct. App. Sept. 28, 2010); see also Broderick D. v. Murray, No. M2018-00146-COA-R3-CV, 2019 WL 4702622, at *2 (Tenn. Ct. App. Sept. 25, 2019); Grissom v. Grissom, 586 S.W.3d 387, 393 (Tenn. Ct. App. 2019).

Mother argues that the trial court’s order is deficient in that it “does not satisfactorily cite to the trial court record” and makes “legal conclusions without stating any findings of fact that support said conclusions[.]” Mother asserts that the trial court’s order should therefore be reversed and she be reinstated as primary residential parent. To an extent, we agree with Mother. Although we are without the benefit of a transcript or statement of the evidence, we can review the technical record in this case to the extent that Mother asserts that errors are apparent therefrom. See Helm v. Wells, 488 S.W.2d 733, 734 (Tenn. Ct. App. 1972) (“While it is true that in cases on appeal where a question of fact is involved, such presumption does prevail, it is also true that where the issues before this court can be resolved from the technical record, such presumption is not controlling.”); cf. Brubaker v. Beckham, No. M2014-01751-COA-R3-CV, 2016 WL 3178054, at *3 (Tenn. Ct. App. May 26, 2016) (considering the adequacy of the trial court’s written order despite the fact that the appellant had provided a statement of the evidence of only “limited” assistance). Our review indeed reveals that the trial court’s written order in this case is deficient. First, the trial court failed to make any factual findings to support its rulings as to many of the factors. For example, with regard to factor one, relating to which parent performed the majority of parenting of the child on a daily basis, the trial court made no findings of fact. Even where the trial court made some factual findings to support its ruling as to a factor, it provided little elaboration. As an example, with regard to factor eight, the trial court stated nothing other than Mother was “emotionally unfit” to be the primary residential parent.

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Where we disagree with Mother, however, is the effect of the trial court’s failure to comply with Rule 52.01. As we have previously explained:

Historically, appellate courts were presented with two avenues in responding to a trial court’s failure to make adequate findings of fact and conclusions of law: (1) vacate and remand for the trial court to make the appropriate findings; or (2) conduct a review of the facts of the case without any deference to the trial court’s ruling. Compare Renken [v. Renken], [No. M2017-00861-COA-R3-CV,] 2019 WL 719179, at *5 [(Tenn. Ct. App. Feb. 20, 2019) (vacating and remanding)]; Paschedag [v. Paschedag], [No. M2016-00864-COA-R3-CV,] 2017 WL 2365014, at *4 [(Tenn. Ct. App. May 31, 2017) (same)], with Gooding v. Gooding, 477 S.W.3d 774, 783 (Tenn. Ct. App. 2015) (“Because there are no findings of fact for us to review, we shall conduct our own de novo review to first determine where the preponderance of the evidence lies and then determine whether the evidence, when applied to the applicable legal principles, provides a proper factual foundation for the decision challenged on appeal, that being the parenting schedule.”).

Grissom, 586 S.W.3d at 396. Thus, a trial court’s failure to make findings of fact and conclusions of law does not automatically require reversal of the trial court’s decision. Instead, either a remand or an independent review may be warranted, depending on the circumstances. Cf. Hanson v. J.C. Hobbs Co., Inc., No. W2011-02523-COA-R3-CV, 2012 WL 5873582, at[*10] (Tenn. Ct. App. Nov. 21, 2012) (quoting Simpson v. Fowler, No. W2011-02112-COA-R3-CV, 2012 WL 3675321, at *4 (Tenn. Ct. App. Aug. 28, 2012)) (“This Court may ‘soldier on’ when the case involves only a clear legal issue, or when the court’s decision is ‘readily ascertainable.’”) (some internal quotations and alterations omitted).

Some considerations in this case certainly favor soldiering on to review the trial court’s decision. For example, the written order does contain some factual findings that underpin the trial court’s decision. And unlike other cases, it is clear which factors the trial court concluded held more weight. Cf. Grissom, 586 S.W.3d at 397 (remanding, in part, because “there is simply no way to discern which factors weigh more heavily in light of the needs and situation of this particular child.”). Moreover, many of the factors on which the trial court declined to provide a detailed analysis are not disputed on appeal. It is therefore difficult to discern how the trial court’s lack of findings on these factors prejudices the parties. See Tenn. R. App. P. 36(b) (discussed in detail, infra).

Importantly, we also take judicial notice of the fact that the trial judge who presided over this case has recently retired. Cf. Regions Com. Equip. Fin. LLC v. Richards Aviation Inc., No. W2020-00408-COA-R3-CV, 2021 WL 1811754, at *7 (Tenn. Ct. App. May 6, 2021); Kathryne B.F. v. Michael David B., No. W2014-01863-COA-R3-CV, 2015 - 11 -

WL 4366311, at[*17] n.17 (Tenn. Ct. App. July 16, 2015) (“We take judicial notice of the fact that the original trial judge has retired.”); State v. Tawater, No. M2013-02126-CCA- R3-CD, 2014 WL 4809537, at *8 (Tenn. Crim. App. Sept. 29, 2014) (“We take judicial notice that the trial judge who presided over this case has retired.”). Thus, if we were to vacate the trial court’s judgment, it would be heard before a different judge. An entirely new trial may then be required.

In some circumstances, the fact that the proceedings would be delayed due to the retirement of the original judge was not sufficient to persuade us to solider on with our review. See Brubaker, 2016 WL 3178054, at *5 (Tenn. Ct. App. May 26, 2016) (quoting In re Estate of Oakley, No. M2014-00341-COA-R3-CV, 2015 WL 572747, at[*12] (Tenn. Ct. App. Feb. 10, 2015)) (holding that despite the fact that the original trial judge had retired and further proceedings would delay resolution, the trial court’s failure to comply with Rule 52.01 “‘requires this court to vacate the judgment and remand for a new trial’”). But neither Brubaker nor Estate of Oakley involved the custody of children who had been subjected to fairly continuous upheaval as a result of this litigation. Thus, remanding for further proceedings would only delay the stability that this Court has repeatedly emphasized is an important consideration for the lives of children. See, e.g., In re Z.J.S., No. M2002-02235-COA-R3-JV, 2003 WL 21266854, at[*17] (Tenn. Ct. App. June 3, 2003) (quoting Jennifer Titus, Comment, Adding Insult to Injury: California's Cruel Indifference to the Developmental Needs of Abused and Neglected Children From Birth to Three, 39 Cal. W.L.Rev. 115, 134-35 (2002) (“The American Academy of Pediatrics notes ‘[s]tability in child care . . . is important.’”)). Under a similar circumstance, we held that “the interest of justice and economy” supported soldiering on to consider a trial court’s ruling despite the lack of necessary findings of fact and conclusions of law. See Kathryne B.F. v. Michael David B., 2015 WL 4366311, at[*17] .

But, of course, Mother’s failure to file a transcript or statement of the evidence means that we are largely unable to independently review the evidence to determine where the preponderance of the evidence lies. Thus, we are left with the question of whether the trial court’s or Mother’s deficiency strikes the fatal blow to appellate review in this case. Consequently, we must determine whether the proper remedy is to: (1) conclusively presume the trial court’s ruling is correct despite the lack of detailed factual findings; (2) vacate the decision of the trial court and remand, acknowledging that stability for the children may be delayed as a result; or (3) independently review the best interest issue with only what we can glean from the limited record on appeal, such as the exhibits to the trial.

One additional fact convinces us that the third option is most apt: while Mother did not properly file a transcript or statement of the evidence, she did file a CD-ROM containing an audio recording of the trial proceedings. Father did not object to this filing in the trial court, nor did he assert that it was not an accurate representation of what occurred at trial. In a July 2, 2020 order, however, we explained that except in the limited circumstances outlined in Tennessee Supreme Court Rule 26, recordings of court - 12 -

proceedings are not permitted in lieu of transcripts or statements of the evidence.^[4] Certainly, Mother’s filing does not appear to comply with the requirements of Rule 26. So it appears that Mother indeed failed to comply with Rule 24, such that the conclusive presumption would be appropriate.

We note, however, that the Tennessee Rules of Appellate Procedure are to “be construed to secure the just, speedy, and inexpensive determination of every proceeding on its merits.” Tenn. R. App. P. 1. Accordingly, we are permitted to suspend the Tennessee Rules of Appellate Procedure in limited, appropriate circumstances:

For good cause, including the interest of expediting decision upon any matter, the Supreme Court, Court of Appeals, or Court of Criminal Appeals may suspend the requirements or provisions of any of these rules in a particular case on motion of a party or on its motion and may order proceedings in accordance with its discretion, [except some rules not applicable here].

Tenn. R. App. P. 2. Thus, Rule 2 explicitly states that good cause to suspend our rules may exist when necessary to “expedit[e] decision on any matter.” Moreover, the Tennessee Supreme Court has held that Tennessee court’s “jurisprudential rules,” such as waiver, “should be interpreted and applied in a way that enables appeals to be considered on their merits.” Fayne v. Vincent, 301 S.W.3d 162, 171 (Tenn. 2009) (citing Tenn. R. App. P. 1).

As previously discussed, at least one possible remedy in this case would result in considerable delay in these children’s lives. Another remedy would prohibit us from deciding this case on the merits simply because we do not have a proper transcript or statement of the evidence, despite the availability of what is undisputedly a fair and accurate record of what transpired in the trial. See Tenn. R. App. P. 24 (noting that the purpose of the transcript or statement of the evidence requirement is to provide this Court with “fair, accurate, and complete account of what transpired” at trial). Finally, we could choose to solider on to decide this case on the merits, despite Mother’s clear failure to follow the directives of our appellate rules. Certainly, we do not condone Mother’s clear failure to comply with our rules. However, we must conclude that under the unique circumstances of this case, these competing interests compel us to exercise our discretion to consider the audio recording of the trial in order to decide this case on the merits without delay. We caution litigants, however, that we may not be so forgiving of the failure to comply with Rule 24 in the future.

In light of our ability to review this recording, which neither party disputes is an accurate reflection of the trial and includes the trial court’s oral ruling illuminating its