IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

April 10, 2018 Session

DL RUMMAGE V. KIMBERLY RUMMAGE

Appeal from the Circuit Court for Davidson County

No. 15-D-965 Philip E. Smith, Judge

No. M2016-02356-COA-R3-CV

This is a divorce case in which the trial court designated the mother as the primary 

residential parent, awarded her child support and a portion of her attorney’s fees as 

alimony, and awarded her retroactive child support. The father appealed, arguing the trial 

court erred in numerous ways. We decline to address the father’s arguments, however, 

and affirm the trial court’s judgment because the father’s brief does not comply with the 

requirements of Tennessee Rule of Appellate Procedure 27(a) or Court of Appeals Rule 

6. We grant the mother’s request for frivolous appeal damages pursuant to Tenn. Code 

Ann. § 27-1-122. 

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

Remanded

ANDY D. BENNETT, J., delivered the opinion of the Court, in which THOMAS R.

FRIERSON, II, and W. NEAL MCBRAYER, JJ., joined.

DL Rummage, Antioch, Tennessee, Pro Se.

Lewis A. Williams, Nashville, Tennessee, for the appellee, Kimberly Rummage.

OPINION

FACTUAL AND PROCEDURAL BACKGROUND

DL Rummage (“Father”) and Kimberly Rummage (“Mother”) were married for 

about eight years when they separated in 2015. They have one child who was born in 

November 2007. Father filed a complaint for divorce in May 2015, and Mother filed an 

answer and counter-complaint for divorce the following month. 

05/09/2018
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A trial took place in September 2016, and the trial court entered a Final Decree of 

Divorce on October 10, 2016. The court granted Mother a divorce from Father and 

designated her as the primary residential parent. The court awarded Father 109 days with 

the child each year. The court awarded Mother child support in the amount of $178.16 

every two weeks and $10,000 in attorney’s fees in the form of alimony, payable at the 

rate of $400 per month. The court also awarded Mother retroactive child support in the 

amount of $1,140, payable at the rate of $100 per month. 

Father appeals the trial court’s judgment, claiming that the trial court erred in 

granting Mother a divorce, designating Mother as the primary residential parent, and in 

awarding Mother retroactive child support, prospective child support, and attorney’s fees. 

Mother argues Father’s appeal should be dismissed based on his failure to comply with 

Rule 27 of the Tennessee Rules of Appellate Procedure. Mother also contends Father’s 

appeal is frivolous and requests damages pursuant to Tenn. Code Ann. § 27-1-122.

ANALYSIS

Father was represented by an attorney at trial, but he represents himself on appeal. 

As a pro se appellant untrained in the law, Father is “entitled to fair and equal treatment 

by the courts.” Young v. Barrow, 130 S.W.3d 59, 62 (Tenn. Ct. App. 2003) (citing 

Whitaker v. Whirlpool Corp., 32 S.W.3d 222, 227 (Tenn. Ct. App. 2000); Paehler v. 

Union Planters Nat’l Bank, Inc., 971 S.W.2d 393, 396 (Tenn. Ct. App. 1997)). We grant 

pro se litigants “a certain amount of leeway” in the preparation of their appellate briefs. 

See Hessmer v. Hessmer, 138 S.W.3d 901, 903 (Tenn. Ct. App. 2003) (citing Whitaker, 

32 S.W.3d at 227; Paehler, 971 S.W.2d at 397). This means that courts “measure the 

papers prepared by pro se litigants using standards that are less stringent than those 

applied to papers prepared by lawyers.” Id. at 903-04 (citing Hughes v. Rowe, 449 U.S. 

5, 9-10 (1980); Baxter v. Rose, 523 S.W.2d 930, 939 (Tenn. 1975); Winchester v. Little, 

996 S.W.2d 818, 824 (Tenn. Ct. App. 1998)). However, “[p]ro se litigants are not 

excused from complying with the same substantive and procedural requirements that 

other represented parties must adhere to.” Whitaker, 32 S.W.3d at 227; see also Chiozza 

v. Chiozza, 315 S.W.3d 482, 487 (Tenn. Ct. App. 2009); Hodges v. Attorney Gen., 43 

S.W.3d 918, 920 (Tenn. Ct. App. 2000).

Father’s Appellate Brief

The Tennessee Rules of Appellate Procedure govern the procedure in all of 

Tennessee’s appellate courts. TENN. R. APP. P. 1. Tennessee Rule of Appellate 

Procedure 27 addresses the contents of an appellant’s brief:

(a) The brief of the appellant shall contain under appropriate headings and 

in the order here indicated:
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(1) A table of contents, with references to the pages in the brief;

(2) A table of authorities, including cases (alphabetically arranged), statutes 

and other authorities cited, with references to the pages in the brief where 

they are cited;

(3) A jurisdictional statement in cases appealed to the Supreme Court 

directly from the trial court indicating briefly the jurisdictional grounds for 

the appeal to the Supreme Court;

(4) A statement of the issues presented for review;

(5) A statement of the case, indicating briefly the nature of the case, the 

course of proceedings, and its disposition in the court below;

(6) A statement of facts, setting forth the facts relevant to the issues 

presented for review with appropriate references to the record;

(7) An argument, which may be preceded by a summary of argument, 

setting forth:

(A) the contentions of the appellant with respect to the issues presented, 

and the reasons therefor, including the reasons why the contentions 

require appellate relief, with citations to the authorities and appropriate 

references to the record (which may be quoted verbatim) relied on; and

(B) for each issue, a concise statement of the applicable standard of 

review (which may appear in the discussion of the issue or under a 

separate heading placed before the discussion of the issues);

(8) A short conclusion, stating the precise relief sought.

(Emphasis added.)

Rule 6 of the Rules of the Court of Appeals of Tennessee addresses the argument 

section of an appellate brief and states, in relevant part:

(a) Written argument in regard to each issue on appeal shall contain:

(1) A statement by the appellant of the alleged erroneous action of the trial 

court which raises the issue and a statement by the appellee of any action of 

the trial court which is relied upon to correct the alleged error, with citation 

to the record where the erroneous or corrective action is recorded.
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(2) A statement showing how such alleged error was seasonably called to 

the attention of the trial judge with citation to that part of the record where 

appellant’s challenge of the alleged error is recorded.

(3) A statement reciting wherein appellant was prejudiced by such alleged 

error, with citations to the record showing where the resultant prejudice is 

recorded.

(4) A statement of each determinative fact relied upon with citation to the 

record where evidence of each such fact may be found.

(b) No complaint of or reliance upon action by the trial court will be 

considered on appeal unless the argument contains a specific reference to 

the page or pages of the record where such action is recorded. No assertion 

of fact will be considered on appeal unless the argument contains a 

reference to the page or pages of the record where evidence of such fact is 

recorded.

(Emphasis added.)

As Mother points out in her brief, Father’s appellate brief does not comply with 

the requirements of Rule 27 in several respects. In his Table of Authorities, Father lists

portions of the appellate record and a page from his pre-trial brief. Father does not 

identify any cases or statutes in support of his argument. In the section titled “Statement 

of Jurisdiction,” Father identifies the relief he is seeking: “The Plaintiff/Appellant, DL 

Rummage, requests that the decision made by the trial court for the Defendant/Appellee, 

Kimberly Rummage, (Mother) to be the Primary Residential Parent is changed to the 

Plaintiff/Appellant, DL Rummage, (Father) on the grounds of child neglect, verbal abuse, 

and best interests of the minor child.”

In the section titled “Statement of the Issues Presented for Review,” Father lists 

the reasons he believes Mother should not be the primary residential parent and cites as 

support several exhibits appended to his brief.1 The exhibits Father relies on, however, 

were not introduced at trial, and some of the events he discusses occurred post-trial. In 

his “Statement of Facts,” Father does not cite to the trial transcript or the appellate record 

even once. Instead, Father refers only to the exhibits he appended to his brief as support 

for his factual statements. Father’s brief does not include a statement of the applicable 

standard of review as required by Rule 27(a)(7)(B).

 

1Father identifies in the “Conclusion” section of his brief the ways he believes the trial court erred, which 

we infer are the issues he seeks to raise on appeal.
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In the “Argument” section of his brief, Father writes that he wants “to present to 

the court evidence in the form of photographs, written documents, and voice recordings 

of the Appellee’s consistent negative behavior towards the Appellant while in the 

presence of the minor child.” Father fails to cite any legal authority in support of his 

arguments, and he relies on facts that were not introduced at trial and that do not appear 

in the appellate record. Father’s “Argument” section is not in compliance with either 

Rule 27(a)(7) of the Tennessee Rules of Appellate Procedure or Rule 6 of the Rules of 

the Court of Appeals of Tennessee. 

Tennessee Rule of Appellate Procedure 13(c) addresses the facts that may be 

considered on appeal, and it provides:

The Supreme Court, Court of Appeals, and Court of Criminal Appeals may 

consider those facts established by the evidence in the trial court and set 

forth in the record and any additional facts that may be judicially noticed or 

are considered pursuant to rule 14.[2]

Our courts have interpreted Rule 13(c) to mean that we are unable to consider facts that 

do not appear in the appellate record and were not before the trial court. See Reinhart v. 

Geico Ins., No. M2009-01989-COA-R3-CV, 2010 WL 3852048, at * 5 (Tenn. Ct. App. 

Sept. 28, 2010) (“To the extent [the parties’ briefs] allege facts which are not contained in 

the record, or which contradict the record, we may not even consider them.”); Lewis v. 

Williams, No. W2015-00150-COA-R3-CV, 2015 WL 9946271, at *5 (Tenn. Ct. App. 

Aug. 6, 2015) (‘“we may not act as a fact finding court or consider evidence not 

presented to the trial court, and . . . we may not consider assertions of fact not supported 

by the record”’) (quoting Reinhart, 2010 WL 3852048, at *4 (emphasis omitted)). As we

stated in Chiozza v. Chiozza, “This Court’s review is limited to the appellate record and it 

is incumbent upon the appellant to provide a record that is adequate.” Chiozza, 315 

S.W.3d at 489 (citing Jennings v. Sewell-Allen Piggly Wiggly, 173 S.W.3d 710, 713 

(Tenn. 2005)). Thus, we cannot consider the documents Father appended to his appellate 

brief that are not in the appellate record. 

This Court has explained that “parties cannot expect this court to do its work for 

them” and that we are “under no duty to verify unsupported allegations in a party’s brief . 

. . .” Bean v. Bean, 40 S.W.3d 52, 56 (Tenn. Ct. App. 2000). 

Courts have routinely held that the failure to make appropriate references to 

the record and to cite relevant authority in the argument section of the brief 

 

2The facts that may be judicially noticed pursuant to Rule 14 include those “capable of ready 

demonstration, affecting the positions of the parties or the subject matter of the action such as mootness, 

bankruptcy, divorce, death, other judgments or proceedings, relief from the judgment requested or granted 

in the trial court, and other similar matters.” TENN. R. APP. P. 14(a). The evidence Father asks this Court 

to consider does not fall within the parameters of Rule 14. 
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as required by Rule 27(a)(7) constitutes a waiver of the issue. See State v. 

Schaller, 975 S.W.2d 313, 318 (Tenn. Crim. App. 1997); Rampy v. ICI 

Acrylics, Inc., 898 S.W.2d 196, 210 (Tenn. Ct. App. 1994); State v. 

Dickerson, 885 S.W.2d 90, 93 (Tenn. Crim. App. 1993). Moreover, an 

issue is waived where it is simply raised without any argument regarding its 

merits. See Blair v. Badenhope, 940 S.W.2d 575, 576-577 (Tenn. Ct. App.

1996); Bank of Crockett v. Cullipher, 752 S.W.2d 84, 86 (Tenn. Ct. App.

1988).

Id. at 55-56. As this Court wrote in Murray v. Miracle, 457 S.W.3d 399 (Tenn. Ct. App. 

2014),

We are not unmindful of Plaintiff[’s] pro se status and have attempted to 

give [him] the benefit of the doubt whenever possible. Nevertheless, we 

cannot write Plaintiff[’s] brief for [him], and we are not able to create 

arguments or issues where none otherwise are set forth. Likewise, we will 

not dig through the record in an attempt to discover arguments or issues 

that Plaintiff[] may have made had [he] been represented by counsel.

Id. at 402.

Because of Father’s failure to comply with the requirements of Rule 27(a) of the 

Tennessee Rules of Appellate Procedure and Rule 6 of the Rules of the Court of Appeals 

of Tennessee, Father has waived the issues he raises on appeal, and we have no choice 

but to affirm the trial court’s judgment in all respects.

3

 See Lewis, 2015 WL 9946271, at 

*3-6 (affirming trial court’s judgment where appellant failed to comply with Tenn. R. 

App. P. 27); Bean v. Bean, 40 S.W.3d at 55 (“the failure to make appropriate references 

to the record and to cite relevant authority in the argument section of the brief as required

by Rule 27(a)(7) constitutes a waiver of the issue”); see also Chiozza, 315 S.W.3d at 487-

 

3We also note that prior to the trial, Mother filed a proposed permanent parenting plan with the court 

designating her as the primary residential parent. Father did not file a proposed permanent parenting plan 

despite the statement in his pre-trial brief that he would be “the better choice to be designated the Primary 

Residential Parent.” Tennessee Code Annotated section 36-6-404(c)(3) requires each party to file a 

proposed parenting plan with the court if the parties are unable to agree to the terms of a plan prior to 

trial:

If the parties have not reached agreement on a permanent parenting plan on or before 

forty-five (45) days before the date set for trial, each party shall file and serve a proposed 

permanent parenting plan, even though the parties may continue to mediate or negotiate. 

Failure to comply by a party may result in the court’s adoption of the plan filed by the 

opposing party if the court finds such plan to be in the best interests of the child. 

Because Father failed to submit a proposed permanent parenting plan, Mother’s plan was the only 

proposal before the trial court.
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93 (dismissing appeal based on appellant’s failure to comply with Tenn. R. App. P.

27(a)).

Frivolous Appeal Statute

Mother seeks an award of her attorney’s fees and costs incurred on appeal 

pursuant to the frivolous appeal statute, Tenn. Code Ann. § 27-1-122. This statute

provides:

When it appears to any reviewing court that the appeal from any court of 

record was frivolous or taken solely for delay, the court may, either upon 

motion of a party or of its own motion, award just damages against the 

appellant, which may include, but need not be limited to, costs, interest on 

the judgment, and expenses incurred by the appellee as a result of the 

appeal.

An appellate court has discretion to award damages to the prevailing party under this 

statute if the appellate court determines that the appeal is frivolous. Tenn. Code Ann. § 

27-1-122; Eberbach v. Eberbach, 535 S.W.3d 467, 475 (Tenn. 2017); see also Chiozza, 

315 S.W.3d at 493. ‘“An appeal is deemed frivolous if it is devoid of merit or if it has no 

reasonable chance of success.’” GSB Contractors, Inc. v. Hess, 179 S.W.3d 535, 547 

(Tenn. Ct. App. 2005) (quoting Wakefield v. Longmire, 54 S.W.3d 300, 304 (Tenn. Ct. 

App. 2001)). Appellate courts exercise their discretion to award fees under this statute 

‘“sparingly so as not to discourage legitimate appeals.”’ Eberbach, 535 S.W.3d at 475 

(quoting Whalum v. Marshall, 224 S.W.3d 169, 181 (Tenn. Ct. App. 2006)); see also 

Chiozza, 315 S.W.3d at 493. ‘“Successful litigants should not have to bear the expense 

and vexation of groundless appeals.”’ Whalum, 224 S.W.3d at 181 (quoting Davis v. 

Gulf Ins. Grp., 546 S.W.2d 583, 586 (Tenn. 1977)).

This Court is hesitant to award damages for frivolous appeals. However, the 

extent of the deficiencies in Father’s appellate brief coupled with Father’s reliance on 

documents and facts that are not contained in the appellate record lead us to conclude that 

Father’s appeal had no reasonable chance of success and that this is an appropriate case 

in which to award damages pursuant to Tenn. Code Ann. § 27-1-122. See Lewis, 2015 

WL 9946271, at *6 (holding frivolous appeal damages were warranted, in part, because 

appellant failed to comply with Tenn. R. App. P. 27(a)); Murray, 457 S.W.3d at 404

(holding appeal was frivolous where appellant’s brief was “so severely deficient” in its 

failure to comply with Tenn. R. App. R. 27(a)); Chiozza, 315 S.W.3d at 493 (holding 

appellee was entitled to reasonable costs and fees on appeal pursuant to frivolous appeal 

statute due to “the state of the record and the state of Mr. Chiozza’s appellate brief”). 

Accordingly, we remand this case to the trial court to determine the reasonable amount of 

attorney’s fees and costs to award Mother pursuant to the frivolous appeal statute, Tenn. 

Code Ann. § 27-1-122.
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CONCLUSION

The judgment of the trial court is affirmed, and this matter is remanded to the trial 

court for a determination of the reasonable attorney’s fees and costs Mother incurred on 

appeal, which shall be awarded against Father as set forth herein. Costs of this appeal 

shall be assessed against the appellant, DL Rummage, for which execution may issue if 

necessary. 

________________________________

 ANDY D. BENNETT, JUDGE