Rebecca Paige Mulkey (Hurd) v. Bradley Warren Mulkey - Concurring

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs August 18, 2004 Session
REBECCA PAIGE MULKEY (HURD) v.
BRADLEY WARREN MULKEY
Appeal from the Circuit Court for Hawkins County
No. 7576 Ben K. Wexler, Judge
No. E2004-00590-COA-R3-CV - FILED OCTOBER 28, 2004
CONCURRING OPINION
The majority Opinion notes that the Trial Court talked to the minor children in camera
in the presence of the parties’ attorneys, but no court reporter was present, and a record of that
proceeding is not before us.
We directed in Rutherford v. Rutherford, 971 S.W.2d 955 (Tenn. Ct. App. 1997), p.
956:
The Trial Judge has discretion to interview children apart from the courtroom
setting if he considers it is in the best interest of the child. However, if he elects to
follow this procedure, he must examine the child “in the presence of attorneys for
each side and in the presence of the court reporter.” Newburger v. Newburger, 10
Tenn. App. 555, 566 (1930), and in order to have a complete record on appeal, a
transcript of such evidence must be filed.
This procedure was not followed in this case and the failure to follow this procedure
is grounds, standing alone, to vacate and/or reverse the Judgment of the Trial Court, as we noted in
Rutherford.
______________________________
HERSCHEL PICKENS FRANKS, P.J.