Roy Ernest Young v. Joylee Mayhew ( 2002 )

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
Assigned On Brief July 23, 2002
ROY ERNEST YOUNG v. JOYLEE MAYHEW
Direct Appeal from the Juvenile Court for Hardin County
No. J12, 075 Daniel L. Smith, Judge
No. W2002-00185-COA-R3-JV - Filed September 13, 2002
This is an appeal by Father from an order of the court below adopting a permanent parenting plan
which provided that Mother have responsibility for the care of the child except for the dates and
times set forth therein. We affirm the trial court’s order.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed; and
Remanded
DAVID R. FARMER , J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., W.S.,
and, HOLLY K. LILLARD, J., joined.
Lloyd R. Tatum, Henderson, Tennessee, for the appellant, Roy Ernest Young.
Dennis W. Plunk, Savannah, Tennessee, for the appellee, Joylee Mayhew.
MEMORANDUM OPINION1
The undisputed facts are as follows: Joylee Mayhew is the natural mother and Roy Ernest
Young the natural father of Spencer Madison Mayhew Young born January 6, 2000. The parties
were never married. The child has continued without interruption to live with Mother in the home
of her parents since birth. Father is 58 years old and Mother 30 years old. Mother has a learning
disability and is classified on the level of 9 to 12 years old. However, the home study report
indicates that she is fully capable to provide care for her child and do housekeeping.
1
Ru le 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 o pinion when a formal opinion would have
no precedential value. When a case is decided by memorandum opinion it shall be designated “MEMORANDUM
OP INION ”, shall no t be published, and shall not be cited or relied on for any re ason in any unrelated case.
This action came before the court below when Roy Ernest Young (Father) filed a Petition To
Become Primary Residential Parent and To Establish Paternity. It is admitted in the response to the
petition that he is the natural father of the child which is the subject of this dispute. A temporary
parenting plan was ordered by the trial court which provided that Mother would be responsible for
the child except for the times and dates set forth therein.
In response to an order of reference, a home study was conducted by the Department of
Children’s Services which resulted in the filing with the court of the Department’s confidential court
report home study. A permanent parenting plan was ordered by the court and filed on December 31,
2001. It is from this order that Father appeals and his brief presents the following sole issue:
Whether the trial court erred in awarding primary parenting to Appellee.
Our review of a nonjury matter is to review the findings of fact by the lower court de novo
upon the record with a presumption of correctness of the finding, unless the preponderance of the
evidence is otherwise. Rule 13(d) Tenn. R. Civ. P. When the lower court does not make factual
findings, our review is de novo, with no presumption of correctness.
Unfortunately, our review of the proceedings below is hampered by the fact that we do not
have a complete record of the proceedings. The record before us consists of the pleadings and
orders, commonly referred to as the technical record, and includes the Department’s home study.
The record further consists of a transcript of the proceedings of December 6, 2001. It is obvious
from the comments of the trial judge at the beginning of those proceedings that evidence was
previously heard and considered by the trial court which is not before this Court. The trial court
stated as follows:
Let me make sure that we understand what we’re here about. I’m not trying
this case over again. We’ve already tried it. There’s a confidential Court report that
was submitted by the Department of Children’s Services, and I asked if any of the
attorneys had any supplemental information that they wanted to put [sic] based upon
the facts that were placed in the confidential Court report. So, we’re not going to be
trying it again unless there’s some substantial material or circumstances that have
occurred since the last time we were in Court. So, I just wanted to make sure that
everybody - -
The only witnesses that testified at the December 6 hearing were the parents and Ms. Sandra
Owens with the Department of Children’s Services and who prepared the home study. Ms. Owens
testified that she did not make a recommendation in her report but investigated both the mother and
the father, their background, education and home conditions. She testified that Mother lives with
her parents, who both work, but she had no concern about Mother being alone with the child.
Father’s testimony consisted primarily of efforts he had made to have the house cleaned and made
more safe. Mother testified that the visitation previously established by the court was working well
and that the child was healthy except for a head cold.
-2-
This Court cannot conduct a de novo review without a complete appellate record containing
the facts. Therefore, we must presume that the record would have contained sufficient evidence to
support the trial court’s factual findings. Sherrod v. Wix, 849 S.W.2d 780, 783 (Tenn. Ct. App.
1992). As this Court stated in Coakley v. Daniels, 840 S.W.2d 367 (Tenn. Ct. App. 1992):
Where the issues raised go to the evidence, there must be a transcript. 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. McKinney v. Educator and Executive Insurers, Inc.,
569 S.W.2d 829, 832 (Tenn. Ct. App. 1977). This rule likewise applies where there
is a statement of the evidence which is incomplete. The burden is upon the appellant
to show that the evidence preponderates against the judgment of the trial court.
Capital City Bank v. Baker, 59 Tenn. App. 477, 493, 442 S.W.2d 259, 266 (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.
Coakley v. Daniels, 840 S.W.2d at 370. Under rule 24 of the Tennessee Rules of Appellate
Procedure, the appellant has the duty “‘to prepare the record which conveys a fair, accurate and
complete account of what transpired in the trial court with respect to the issues which form the basis
of the appeal.’” Nickas v. Capadalis, 954 S.W.2d 735, 742 (Tenn. Ct. App. 1997) (quoting State
v. Boling, 840 S.W.2d 944, 951 (Tenn. Crim. App. 1992)).
The trial court has wide discretion in matters of custody and visitation. See Edwards v.
Edwards, 501 S.W.2d 283, 291 (Tenn. Ct. App. 1973). In reviewing the limited record before this
Court, we find no basis for a reversal of the trial court’s decision. Therefore, the judgment of the
trial court is affirmed and the costs of this appeal are taxed to the appellant, Roy Ernest Young, and
his surety, for which execution may issue if necessary.
___________________________________
DAVID R. FARMER, JUDGE
-3-