Carrie Elizabeth Bean v. Jordon Estes Bean ( 2022 )

| FILED
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE | DEC 21 2022
October 18, 2022 Session Clerk of the Appellate Courts
Rec'd By
CARRIE ELIZABETH BEAN v. JORDON ESTES BEAN
Appeal from the Circuit Court for Sumner County
No. 2018-CV-994 Joe Thompson, Judge
No. M2022-00394-COA-R3-CV
Mother appeals the trial court’s decision to award equal parenting time after making no
findings regarding her allegations of abuse by Father. Because the trial court stated that
there was no evidence of abuse in the record despite the plethora of relevant testimony by
both parties, we are unable to ascertain the trial court’s reasoning. We therefore vacate the
trial court’s judgment and remand for further findings.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Vacated and
Remanded
J. STEVEN STAFFORD, P.J., W.S. delivered the opinion of the court, in which ARNOLD B.
GOLDIN and KENNY ARMSTRONG, JJ., joined.
Donald Capparella and Patrick Riley, Nashville, Tennessee, for the appellant, Carrie
Elizabeth Bean.
Kimberley Reed-Bracey Johnson, Goodlettsville, Tennessee, for the appellee, Jordon Estes
Bean.
OPINION
I, FACTUAL AND PROCEDURAL BACKGROUND!
Plaintiff/Appellant Carrie Elizabeth Bean (“Mother”) and Defendant/Appellee
Jordon Estes Bean (“Father”) were married December 30, 2016. Together the parties had
one child, a daughter born in December 2017. The parties separated for the last time in
September 2018.
' This case originates from a complaint for divorce between parties with a minor child. As only the
parenting plan has been appealed, other aspects of the action relating to dissolution of the marriage have
been omitted.
Mother filed for divorce in the Circuit Court for Sumner County (“the trial court”)
on October 12, 2018. Mother originally requested to be the primary residential parent but
asked for equal parenting time. The initial parenting plan proposed by Mother on October
26, 2018, gave Father custody every Monday to Tuesday and then Friday to Sunday, with
Mother having custody every Tuesday to Friday and Sunday to Monday. With split
holidays, this would provide Mother 209 days with the child and Father 156 days. Mother
requested that this plan be implemented for the duration of the divorce proceedings.
On November 1, 2018, Father filed a motion with the trial court, requesting approval
of his temporary parenting plan. His proposed plan had the parties alternating custody of
the child every two days. Father then answered Mother’s complaint for divorce on
December 7, 2018. In his attached proposed parenting plan, Father again requested equal
parenting time, with the parties exchanging custody of the child every two days and
splitting holidays for a total of 182.5 days each.
An agreed order was entered December 21, 2018, regarding the parties’ motions to
implement their respective temporary parenting plans. The trial court noted that the parties
had reached an agreement whereby they would share joint primary custody, with Mother
having the child Tuesday through Thursday, Father having the child Monday and Friday
through Saturday, and the parties alternating custody every other Sunday.
The divorce action was set for hearing July 28, 2020. Mother’s pretrial brief
included reference to her concerns regarding an incident where the child bit Father’s penis,
as well as Father’s drug use and physical abuse toward Mother. Mother’s proposed
permanent parenting plan asked that Mother be named the primary residential parent,
having custody of the child for 285 days per year. Under this plan, Father would have
custody alternating Friday morning to Sunday evening one week and then Wednesday
evening the following week, for a total of eighty days per year. Father’s pretrial brief
disputed Mother’s account of the biting incident, described other alleged inconsistencies
with the parties’ co-parenting experiences, and again requested equal parenting time.
At trial, only Mother and Father testified. Mother explained her concerns with
Father’s treatment of his mental health and his drug use. Mother then described an incident
where Father informed her that the child had bitten his penis through his shorts and drawn
blood while he was putting her down for a nap. Mother expressed that this “set off red flags
and major alarms” for her, scared her, and overall seemed suspicious. Mother also testified
regarding physical altercations with Father—once when Father allegedly closed her leg in
a door repeatedly, leaving bruises, and once when Father allegedly shoved her and placed
his hands around her neck. Mother admitted to kicking Father in defense as part of this
second incident.
Father disputed Mother’s interpretation of the incident where the child bit him,
explaining that the child was simply going through “the biting stage.” Father described
=k
times where Mother became violent with himself and others. He explained his mental and
physical health history, including a post-traumatic stress disorder diagnosis from his
service in the military. Father also described his relationship with prescription medications
and other drugs, denying any use of steroids but acknowledging a short period of time
before the birth of the child where he inappropriately used some opiates from an earlier
surgery. Father explained that he initially sought counseling, but then turned to prayer and
familial support to end the opiate misuse. Now Father takes a prescribed anxiety
medication daily and an antihistamine prescribed to counter anxiety attacks only as needed.
Father was adamant that he has no current drug use issues.
After Father’s testimony, the trial court asked counsel for both parties if there were
more witnesses to be called. Both parties had other witnesses available to testify. Rather
than the hear the testimony of these witnesses, however, the trial court ordered both parties
to submit to hair follicle drug testing and have the results filed within 48 hours. The trial
court then stated:
If [the test results are] both negative, then I’ll give you the schedule. I don’t
think the additional witnesses that you have are going to change the way I
feel about this case. I think the drug test results might. So I want to get those
results. I want to see what they say. Then I’ll bring you back in here and let
you know next week.
When counsel for Father asked whether the trial court thought it needed the other witnesses,
the trial court replied that “I really don’t. I mean, let’s be honest. . . . To be honest with
you, I don’t know that there’s a lot that would change the way I feel, other than these drug
results.” Counsel for Mother asked if the testimony of Father’s ex-wife would be taken, as
Mother believed the testimony would be relevant to Father’s character, parental fitness,
and drug history. The trial court explained that it did not think the testimony would be
relevant as Father had admitted to the prior drug abuse, so the trial court was only
concerned with any current drug problems. The trial court ended the proceedings by
explaining that the parenting plan would be set once the drug testing results were received.
Both parties returned a negative drug panel.
On October 21, 2020, Mother filed a motion for further findings of fact and
conclusions of law, or alternatively for the reopening of the proof.” In this motion, Mother
argued that Father’s parenting time should be limited pursuant to Tennessee Code
Annotated section 36-6-406. In addition, Mother requested that the trial court consider
additional factors, including the effects of Father’s proposed plan on her work schedule
and the cost of childcare, in its fashioning of a permanent parenting plan. Mother also
requested additional findings regarding Father’s mental health, drug usage, and alleged
2 As far as we can tell, the only thing that prompted this filing is that Mother retained additional
counsel who remain her counsel through this appeal.
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abusive behavior. Alternatively, Mother requested that the proof be reopened to allow
testimony from Father’s ex-wife, to assist the trial court in determining the best parenting
arrangements.’ Father initially responded in opposition to Mother’s motion on December
3, 2020.
The trial court issued a final decree of divorce on November 12, 2020. Relevant to
this appeal, the trial court found most statutory best interest factors favored the parties
equally or did not disfavor either party, two factors were not relevant based on the child’s
young age, the factor involving the child’s primary care giver favored Mother, and the
factor involving continuity favored Father. As most pertinent here, in relation to “evidence
of physical or emotional abuse to the child, to the other parent or to any other person,” the
trial court found “no evidence to consider this factor.” The trial court adopted Father’s
proposed 2-2-2 parenting plan, requiring the parties to exchange custody every two days,
with modifications, including Mother’s designation as the primary residential parent.
A hearing on Mother’s pending motion for additional findings was held on
December 7, 2020. During this hearing, both parties outlined the evidence in the record
regarding Father’s mental health and drug use, the mutual allegations of abuse, and the
parties’ work schedules. In a document captioned as an agreed order entered on December
18, 2020, the trial court denied Mother’s motion in regard to Father’s mental health and
drug usage but stated that it would take Mother’s motion under advisement regarding her
work schedule, the allegations of abuse, and her request to reopen the proof. :
On April 7, 2021, the trial court entered an order granting Mother’s motion to reopen
the proof regarding: (1) “The best interests of the child in implementing the differing
permanent parenting plans proposed by the parties”; and (2) “the testimony of [Father’s
ex-wife].” The trial court cautioned the parties and their counsel to be mindful of presenting
redundant proof. The matter was eventually heard on September 7, 2021. Both parties
presented witnesses to offer testimony regarding their employment history and work
schedules. Mother called Father’s ex-wife to describe incidents of physical and emotional
abuse within their relationship.> Mother was then brought back to the stand, to testify
regarding the effects of the 2-2-2 custody arrangement on the child and on her own work
situation. Both parties were asked about an incident where Mother had become aggressive
toward Father prior to the marriage. Father disputed the testimony of his ex-wife and
reiterated his request for equal parenting time. The trial court requested that the parties
submit proposed findings of fact and conclusions of law relating to the testimony from the
original hearing on July 28, 2020, and the hearing after the reopening of the proof.
Thereafter, Mother submitted two proposed findings of fact and conclusions of law:
3 In support of her request, Mother offered a brief synopsis of the expected testimony.
4 The document was signed as “approved for entry” by counsel for both parties.
> This marriage was annulled in 2009.
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one in support of limiting Father’s parenting time and one presupposing equal parenting
time. In both submissions, Mother included extensive recitations of the evidence in the
record, relating primarily to the abuse factor, for the trial court’s consideration in
formulating its final order. Father then presented proposed findings of fact and conclusions
of law relating to an equal parenting plan. Therein, Father included multiple pages
describing the evidence in the record specifically relating to the abuse factor for inclusion
in the trial court’s final order.
The final order was entered February 3, 2022. The trial court explained that it did
not find the testimony of Father’s ex-wife to be credible. The trial court also found that
based on the parties’ work schedules and the best interests of the child, the parties would
have equal parenting time pursuant to the 2-5-5-2 schedule proposed by Mother, where
Mother would have two days of parenting time, then Father would have five days of
parenting time, then Mother would have five days and Father would have two days, and
the cycle would repeat for a total 182.5 days each. No additional findings were made
relative to the allegations of abuse by either party. Mother filed a timely appeal.
II. ISSUES PRESENTED
Mother raises two issues, which are taken from her brief:
1. When presented with evidence of abuse, Tennessee Code Annotated § 36-6-
406(a) mandates that the trial court limit the abuser’s parenting time. The
trial court below was presented with reliable evidence showing Father’s
history of abuse but still gave the parties equal parenting time. Where the
trial court made no findings about whether Father’s abuse of Mother and
child occurred, does the evidence preponderate in favor of a finding that the
record contains “reliable evidence” of abuse, mandating that the Court of
Appeals limit Father’s parenting time under the authority of Jacobsen vy.
Jacobsen?
2. Did the trial court err as a matter of law by failing to consider Father’s abuse
of both Mother and the minor child when conducting its best-interest
analysis, and did the best interest analysis weigh heavily in favor of Mother
and for limiting Father’s time given the reliable evidence of his abuse of
Mother and child?
III. ANALYSIS
The underlying issue before us stems primarily from Mother’s contention that the
trial court failed to make necessary findings regarding the evidence presented of abuse.
The Tennessee Rules of Civil Procedure mandate that a trial court, after hearing a case
without a jury, “shall find the facts specially and shall state separately its conclusions of
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law and direct the entry of the appropriate judgment.” Tenn. R. Civ. P. 52.01. These
findings of fact and conclusions of law must be “incorporated into the trial court’s written
order, as the court speaks through its orders and not through the transcript of the
proceedings.” Friedsam v. Krisle, No. M2021-00530-COA-R3-CV, 2022 WL 3654658, at
*7 (Tenn. Ct. App. Aug. 25, 2022) (citing In re Navada N., 498 S.W.3d 579, 594 (Tenn.
Ct. App. 2016)). Requiring trial courts to set out its findings and conclusions has generally
been understood as serving three main purposes: (1) aiding appellate review by affording
reviewing courts “a clear understanding of the ground or basis of the decision of the trial
court”; (2) making it clear “precisely what is being decided by the case” for res judicata
purposes; and (3) ensuring that trial courts carefully ascertain and apply the facts,
potentially decreasing the need for an appeal. 9C Charles A. Wright and Arthur R. Miller,
Federal Practice and Procedure § 2571 (3d ed. 2022) (collecting cases). Overall, the trial
court’s ultimate objective is for its findings to “be sufficiently comprehensive and pertinent
to the issues to provide a basis for decision.” Id. § 2579.
Mother argues that the trial court’s failure to make any findings regarding the
allegations of abuse led it to fashion an equal permanent parenting plan against the best
interest of the child. In any proceeding “where the custody of a minor child... is a
question,” Tenn. Code Ann. § 36-6-101(a)(1), trial courts are to make custody
determinations “on the basis of the best interest of the child.” Tenn. Code Ann. § 36-6-
106(a). Whether a parenting plan serves the child’s best interest is a finding of fact, subject
upon appeal to de novo review with a presumption of correctness, unless the evidence
preponderates against the findings. Armbrister v. Armbrister, 414 S.W.3d 685, 692-93
(Tenn. 2013). However, the ability to observe witnesses firsthand and make credibility
determinations puts the trial court in a better position to make the fact-driven decisions
regarding parenting arrangements than an appellate court. Id. at 693; see also Gillum v.
McDonald, No. M2003-00265-COA-R3-CV, 2004 WL 1950730, at *4 (Tenn. Ct. App.
Sept. 2, 2004) (“Subtle factors may also be determinative, including the demeanor and
credibility exhibited by the parents during the divorce proceeding.”). “Thus, determining
the details of parenting plans is ‘peculiarly within the broad discretion of the trial
judge.’” Armbrister, 414 S.W.3d at 693 (quoting Suttles v. Suttles, 748 S.W.2d 427, 429
(Tenn. 1988)). As such,
“It is not the function of appellate courts to tweak a [residential
parenting schedule] in the hopes of achieving a more reasonable result
than the trial court.” Eldridge v. Eldridge, 42 S.W.3d 82, 88 (Tenn.
2001). A trial court’s decision regarding the details of a residential
parenting schedule should not be reversed absent an abuse of
discretion. Id. “An abuse of discretion occurs when the trial court...
appl[ies] an incorrect legal standard, reaches an illogical result,
resolves the case on a clearly erroneous assessment of the evidence,
or relies on reasoning that causes an injustice.” Gonsewski v.
Gonsewski, 350 S.W.3d 99, 105 (Tenn. 2011). A trial court abuses its
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discretion in establishing a residential parenting schedule “only when
the trial court’s ruling falls outside the spectrum of rulings that might
reasonably result from an application of the correct legal standards to
the evidence found in the record.” Eldridge, 42 S.W.3d at 88.
Armbrister, 414 S.W.3d at 693.
In determining the child’s best interest, trial courts are directed to fashion custody
arrangements permitting “both parents to enjoy the maximum participation possible in the
life of the child[.]” Tenn. Code Ann. § 36-6-106(a). The plan should “permit ] both parents
to enjoy the maximum participation possible in the life of the child consistent with the
[statutory best interest] factors . . ., the location of the residences of the parents, the child’s
need for stability and all other relevant factors.” Tenn. Code Ann. § 36-6-106(a). 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... .;
(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... . .;
(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;
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(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.
Tenn. Code Ann. § 36-6-106(a).°
Trial courts are not simply to perform a rote examination of each factor and tally up
those in favor of each partly. Beaty v. Beaty, No. M2020-00476-COA-R3-CV, 2021 WL
2850585, at *3 (Tenn. Ct. App. July 8, 2021) (quoting Steakin v. Steakin, No. M2017-
00115-COA-R3-CV, 2018 WL 334445 at *5 (Tenn. Ct. App. Jan. 9, 2018)). Instead, the
relevancy and weight of the factors depend on the specific circumstances of the case. Id.Indeed, any one factor may prove determinative in the trial court’s analysis of an
appropriate parenting plan. Grissom v. Grissom, 586 S.W.d3d 387, 393 (Tenn. Ct. App.
2019) (quoting Solima vy. Solima, No. M2014-01452-COA-R3-CV, 2015 WL 459134, at
*4 (Tenn. Ct. App. July 30, 2015)). This context-specific analysis means that there can be
no bright-line test for us to use in assessing whether the trial court provided sufficient
factual findings to underpin its decision. See Lovlace v. Copley, 418 S.W.3d 1, 35 (Tenn.
2013). However, the trial court must include in its findings “as much of the subsidiary facts
as is necessary to disclose to the reviewing court the steps by which the trial court reached
its ultimate conclusion on each factual issue.” Jd. (citation omitted).
Respectfully, the trial court’s findings do not meet this standard. Some of the trial
court’s findings amount to nothing more than legal conclusions without any factual
support.’ The most egregious example of this exists where, when looking to factor (11),
consideration of any evidence of physical or emotional abuse to the child, the other parent,
or any other person, the trial court only stated that “[t]he Court finds no evidence to
consider this factor.” Simply put, even a cursory review of the record belies this finding.
6 The current version of this statute includes a sixteenth factor to be considered. Tenn. Code Ann.
§ 36-6-106(a) (2022). Neither party asserts that the revised version of the statute is applicable in this case,
so we will refer to the factors in place at the time the petition was filed. We use the 2016 version of section
36-6-106 throughout this Opinion.
7 In considering both factor (4), relating to the parties’ ability to provide necessary care to the child,
and factor (6), relating to the emotional ties between the parties and the child, the trial court simply stated
that “[t]he Court finds that this factor favors both parties equally.” Similarly, in discussing factor (9),
relating to the child’s relationship with other relatives and the physical surroundings, the trial court stated
that “[t]he Court finds that this factor favors neither party.” These finding do not reveal “the steps by which
the trial court reached its ultimate conclusion [.]” Lovlace, 418 S.W.3d at 35.
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The record before us is replete with evidence presented by both parties involving
alleged abuse between the parties and against the child. Thus, factor (11) was clearly at
issue and the trial court was required to resolve the disputed issues of whether abuse
occurred and, if so, who perpetrated that abuse. And the trial court was tasked with
including enough of the underlying facts as necessary to explain its ultimate decisions on
those issues. Lovlace, 418 S.W.3d at 36 (finding the trial court’s judgment lacking when it
did not “include sufficiently specific findings on the disputed facts that were crucial to
determining” the essential elements of the cause of action). Perhaps the trial court
determined that none of this testimony was credible or that the violence did not require any
limitation of either party’s parenting time. However, if the trial court made such a
determination it should have more artfully expressed itself so that we are not “left to
wonder” about its reasoning. Grissom, 586 S.W.3d at 397.
This Court was recently faced with a similar situation in Friedsam v. Krisle, No.
M2021-00530-COA-R3-CV, 2022 WL 3654658 (Tenn. Ct. App. Aug. 25, 2022). In
Friedsam, the mother testified regarding incidents where the father had been physically
violent, emotionally manipulative, and verbally aggressive towards her. Jd. at *2. The
father denied the accusations, but underwent Rule 35 examinations which raised questions
in the examiner about his treatment of others. Id. The trial court denied the mother’s request
to limit the father’s parenting time pursuant to Tennessee Code Annotated section 36-6-
406,° instead granting the parties equal parenting time. Jd. at *3. The mother specifically
raised the fact that the trial court had made no findings regarding whether the father had
been physically or emotionally abusive in her motion for additional findings, which the
trial court denied. Id.On appeal, this Court agreed with the mother that, by not addressing in either its
oral rulings or written order whether it found evidence of abuse, the trial court had not
resolved the central question posed by the mother’s arguments. Id. at *9. However, we
were unable to determine whether there had been abuse by the father without “appropriate
findings by the trial court.” Jd. Without more insight into the trial court’s credibility
determinations and resolutions of factual disputes, we were “left to guess” both whether
the trial court considered the father’s conduct to constitute abuse and why an equal
8 That section states, in pertinent part, that:
[A] parent’s residential time as provided in the permanent parenting plan . . . shall
be limited if the limitation is found to be in the best interest of the minor child and if the
court determines, based upon a prior order or other reliable evidence, that a parent has
engaged in any of the following conduct:
(2) Physical or sexual abuse or a pattern of emotional abuse of the parent, child or
of another person living with that child as defined in § 36-3-601.
Tenn. Code Ann. § 36-6-406(a).
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parenting plan was in the child’s best interest. Jd. at *10. As such, we were unable to
“soldier on” and instead vacated the trial court’s judgment and remanded for further
findings. Id.Here, Mother raised the trial court’s lack of findings prior to the issuance of its final
order. In moving to request more findings of fact and conclusions of law, or otherwise to
reopen the proof relative to factors (8), (11), and (14), Mother specifically requested that
the trial court consider the evidence of physical or emotional abuse to limit Father’s
parenting time under Tennessee Code Annotated section 36-6-406. We concede that
section 36-6-406 does not appear to have been raised in this case until after the close of
proof in the first trial, unlike in Friedsam. Indeed, Father argues that Mother waived
consideration of this section by failing to timely raise such an issue in her pleadings.
While a judgment rendered on a matter wholly outside the pleadings is generally
void, it is appropriate for the trial court to render judgment on issues tried by consent.
“(O]ur courts have the authority to grant appropriate relief to a prevailing party even if that
relief was not demanded in the pleadings if the issue was tried by consent.” Renken v.
Renken, No. M2017-00861-COA-R3-CV, 2019 WL 719179, at *4 (Tenn. Ct. App. Feb.
20, 2019) (citing Tenn. R. Civ. P. 54.03). “When issues not raised by the pleadings are
tried by consent, ‘they shall be treated in all respects as if they had been raised in
the pleadings.’” Id. (quoting Tenn. R. Civ. P. 15.02). This Court has previously held that a
reduction in parenting time under section 36-6-406 was tried by consent when it was raised
during opening arguments, significant proof was elicited as to the alleged abuse, and the
parties consented to the consideration of the prior court file that documented the father’s
abuse. Id. at *5.
We likewise conclude that this issue was tried by consent. Here, although Mother
did not specifically reference section 36-6-406 in her pre-trial pleadings, she did reference
allegations of abuse by Father, present significant proof in support of those allegations, and
specifically ask that Father’s parenting time be limited due to the abuse. Father likewise
presented proof that it was actually Mother who was abusive, although he apparently did
not believe that this conduct required that Mother’s parenting time be limited. Moreover,
before the final order was entered, Mother filed a motion in which she explicitly referenced
section 36-6-406 and the limitations on parenting time required thereunder. Although
Father filed a response in opposition to this motion, he did not object specifically to
Mother’s assertion that section 36-6-406 was at issue in the case. The trial court’s
subsequent grant of that motion appears to have been based on an agreed order.
Furthermore, Father opened to the door to additional consideration of the abuse issue when
he presented testimony during the second hearing of Mother’s alleged violent conduct.
Thus, the issue of whether Father’s alleged abuse necessitated limitations on his
parenting time was properly before the trial court, at least by the time that the trial court
re-opened the proof as to the child’s best interest and allowed the parties to present
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additional proof as to the parties’ violent behavior. Despite allowing this additional proof,
the trial court made no additional findings to elucidate its reasoning for disregarding the
proof of abuse. Certainly, the trial court’s obligation to make detailed findings of fact to
support its ruling extends to the second hearing where additional proof was presented,
particularly in light of the trial court’s anemic factual findings concerning abuse in its
original order. See Tenn. R. Civ. P. 52.01 (requiring such findings “in a// actions tried upon
the facts without a jury”) (emphasis added). Indeed, the trial court requested the parties
submit proposed findings and conclusions regarding the evidence from both the original
hearing and the hearing on the reopened proof. In their proposals, both parties addressed
the evidence in the record at length, with an emphasis on describing the allegations of
abuse. When issuing its final order, the trial court specifically found that Father’s ex-wife’s
testimony about Father’s behavior during their relationship was not credible. Yet the trial
court made no further findings regarding the allegations of abuse during the parties’
relationship, focusing only on the parties’ work schedules in readdressing the child’s best
interest. Even when reading the final order in conjunction with the original decree of
divorce and the trial court’s oral findings, we can find “no further illumination from which
we might glean whether the trial court found that such abuse was actually proven in this
case.” Friedsam, 2022 WL 3654658, at *9.
Generally, when a trial court fails to meet the requirements of Rule 52, the best
course of action is to “vacate the trial court’s judgment and remand the case to the trial
court for written findings of fact and conclusions of law. Id. at *7 (citing State ex rel.
Schrita O. v. Robert T., No. W2017-00073-COA-R3-JV, 2017 WL 5501345, at *4 (Tenn.
Ct. App. Nov. 16, 2017)). This Court has discretion to “soldier on” with our review when
the case involves only a discrete legal issue, or the trial court’s reasoning is otherwise
“readily ascertainable.” Jd. (citing Hanson v. J.C. Hobbs Co., No. W2011-02523-COA-
R3-CV, 2012 WL 5873582, at *10 (Tenn. Ct. App. Nov. 21, 2012)). However, this case’s
critical issue is not one of law, but of fact—whether abuse occurred.
Mother points to Jacobsen v. Jacobsen as authority for requiring this Court to
conduct our own review of the evidence to determine whether there was reliable evidence
of abuse and thus, whether Father’s parenting time should be statutorily limited. In that
case, the trial court was presented with allegations of abuse by the mother, some of which
were admitted by the father at trial. Jacobsen v. Jacobsen, No. M2012-01845-COA-R3-
CV, 2013 WL 1400518 (Tenn. Ct. App. April 5, 2013). Without addressing this testimony
or making any credibility determinations, the trial court found that the statutory best
interest factors weighed in favor of the father being named the primary residential parent.
Id. at *3. The trial court, however, also mandated that the father attend an anger
management course. Jd. The Court of Appeals took this incongruity as an indication of the
trial court’s reasoning. Id. at *8 (“[W]e are unable to reconcile the decision to designate
Father as the primary residential parent without addressing the plethora of evidence of
abuse .. . with the decision ordering Father to attend and complete an anger management
course.”’). Thus, the appellate court conducted its own de novo review of the evidence,
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concluding that the preponderance of the evidence weighed against the trial court’s
designation of the father as primary residential parent. Id.
Here, unlike in Jacobsen, we do not have allegations of abuse that went undisputed.
Mother’s allegations of abuse were not admitted by Father, and Mother contends that any
abuse by her towards Father was a result of Father’s aggression. Thus, this case presents
the classic “she said, he said” scenario that must be resolved by virtue of credibility. State
y. Ellis, 453 S.W.3d 889, 907 (Tenn. 2015). As our supreme court has explained regarding
this type of situation, “[a]bsent significant proof establishing that one or the other witness
was simply lying, the witnesses’ demeanor would be a crucial component of evaluating
their respective veracity. In such a case, a successor judge would be unable to
independently assess the weight of the evidence.” Id. (footnote omitted). Thus, without
some indication of the trial court’s credibility determinations regarding the abuse that each
party alleged they suffered and some reasoning in apparently overlooking these allegations,
we are unable to determine where the preponderance of the evidence lies. We must
therefore vacate the judgment and remand to give the trial court another opportunity to
clarify its findings and conclusions. If, on remand, the trial court finds evidence of abuse,
it should consider the mandatory limitation on the offending party’s parenting time
required by Tennessee Code Annotated section 36-6-406.
IV. CONCLUSIONS
The judgment of the Circuit Court for Sumner County is vacated and this case is
remanded to the trial court for further proceedings consistent with this Opinion. Costs are
taxed to Appellee Jordan Estes Bean, for which execution may issue if necessary.
s/ J. Steven Stafford
J. STEVEN STAFFORD, JUDGE
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