1 Rule 10 (Court of Appeals). Memorandum Opinion . -- (b) The Court, with the

concurrence of all judges participating in the ca se, may affirm, reverse or modify the actions of the trial court by memorandum opinion when a formal opinion would have no prec edential value. When a case is decided by memora ndum opinion it shall be designated "MEMORANDUM OPINION," shall not be published, and shall not be cited or relied on for any reason in a subsequent unrelated case

. 

# FILED February

26, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk IN THE COURT OF APPEALS OF TENNESSEE WESTERN SECTION AT NASHVILLE

______________________________________________ KENNETH CARL BROOKS, FROM THE CIRCUIT COURT OF DAVIDSON COUNTY, # 92D-2591 Petitioner -Appella nt, THE HONORABLE MARIETTA M. SHIPLEY, JUDGE Vs. C.A. No. 01A01-9607-CV-00312 VACATED AND RE

MANDED RAMONA E. BROOKS, Sandra Jo nes of Na shville Respondent-Appellee. For Appellant No appearance for Appellee

_____________________________________________________ _______________________ MEMORANDUM OPINION 1

___________________________________________________________________________ CRAWFORD, J.

This appeal involves a post-d iv orce proceeding between petitioner, Ke nneth Carl Brooks (hereinafter

Husband) and resp ondent, Ramona E. Brooks (

hereina fter Wif e). Husb and appe als from the order of the trial court establishing arreara ge in ld support payments and modifying the amount of the prev io usly orde

red chil d support. Husband f iled a “ Pe

tition for Specific Visitation, and Modification of Child Suppor

t.” Wife filed a d etailed r esponse t o the petition and also filed a counter-pe ti tion for c ontempt in w hich she a

lleged th at Husba

nd was in a

rrear s in payment of the ordered child support payments and in payment of

an award of alimony in solido. Husband filed an answer to the counter-cla im for contempt andjoined issue on the allegations therein. The parties a

ppeare d in court

for a he aring on J

une 30, 19 95, and su

bsequen tly on Augu st 15, 1995, the trial court filed a memorandum opinion in which the court fi rst set out t he stipulations of the parties concerning agreed visitation. The cour t then made extensive findings concerni ng the allegations of contempt, the arrearage in c hild support and alimony, the modification of the child support payments and the award of attorney fees. The memorandum2

opinion wa s made the

order of the cour t. Husbandfiled a “Motion to Alter or Amend or in the Al ternative for a New Trial”in which he sets ou

t in detail the alleged miscalculation by the trial court of the alleged arreara ge and the amount set for future child support payments. Wife filed a “ Response

and Oppos ition to Moti on to Alter or Amend or in the Alternative Motion for a New Trial.” The response c ontradicts statements made by Husband as to stipulations and proof in the case. The res ponse pa inst akingly sets out the various monetary amounts involved in the calculation and then proceeds to set out “three pos sible sc enarios ” designatedas “Ms. Br

ooks’s sc enario, ” “Mr. Br ooks’s sc enario, ” and “Sc e nario based upon receip ts submitted by Mr. Brooks during the t rial of the ca use takin g into cons ideratio n all receipts were credited to child support which Ms. Brooks objected to.” We point out t

he response to illustrate the confusing and contested nature of the proceedings in the trial court. On January 11, 1996, the trial court filed a second memorandum opinion wh

ich beca me the order of the court again reciting various and sundry f indings of fact and ultimately denying Husband’s motion. The technical record reflects that Husband

submitted a purported statement of the e vidence of the June 30, 1995 hearing, but it is not a part of the recor d on appe al

. However, Wife filed a “Response of Ramona E. Brooks in Opposition to the Statement of Evidence,” in which she quotes the statement of the evidence filed by Husband which state s in part: Neither

the parties nor any other witness were sworn and no testimony or other evidence of any nature wa s presented to the Courtprior to entry of the final judg ment . The Court reserved judgment. Wife’s r esponse a lso states : Ms. Brooks would

state and show unto the Court that the hearing was conduct ed on Ju ne 30, 1995. Present at that hearing was each party and their respective a ttorney of record. Neither party was sworn. Each attorney of record gave an opening statemen t to the pending issues. During opening statements, the Honorable Judge Shipley made certain inquiries on various points of interest to her and in the event the attorn ey of record did not know the answer, the3 client inf ormed the attorne y of rec ord out lou d in open Co urt. All issues were taken under ad visement b y the Seco nd Circuit Courtof Davidson County, Tennessee, without sworn testimony. Documen ts including various proofs of payments were submitted to the C ourt during opening arguments but were not made exhibits. Pur suant to the instr

uctions of

the Second Circuit Co urt o f Davidson County, Tennessee, counsel for Mr. Brooks filed her propo sed Finding of Facts which included exhibits of proof of payment on July 7, 1995. On July 18, 1995, counsel for Mrs. Brooks fil ed her Re sponse to the Finding s of Fact. On July 24, 1995, counsel for Mr. Brooks filed a reply to the Responde nt’s prop osed Findings of Fact

. On August 15, 1995, the

Second Cir

cuit Court prepared

and filed its own Memorandum of Opinion stating its findings of facts; the samebeing i ncorpor

ated her ein and ma

de part o f this Resp onse as if full y set out ve

rbatim. On September 8, 1995, counsel for Mr. Brooks filed her Motion to Alter or Amend

the Judgment or in the Alternative Motion for New Trial and attached exhibits to said Motion. On October

3, 1995, cou

nsel for Ms. Brooks filed he

r Respons e in Opposi tion to the Motion to Alter or Amend or in the Alternative Motion f

or New Trial. On October 13, 1995, a hearing was conducted

consisting

of oral a rgument with exhibit s being intr oduced d uring sai d argume

nt. As a result of the hearing on September 13, 1995, the S econd Circuit Court entered

its own Memorandum Opinion on January 11, 1996 reiterating its findings of f act; th e same being incorporated

herein and made part

of this Response as if fully set out verba tim. The Responde

nt/Counter

Petitioner , Ramona E . Brooks, objects to any statements contained in the Statement of Evidence submitted by Kenneth

Carl Brooks not consistent with the above stated Court Record and would move this Hono rable C ourt to denote this pleading as the more accurate Statement of Evidence for Appe llate pur poses. The response is marked “a pproved” and signed by the trial judge on June 24, 1996, apparently to designate it as a statement of the procee dings. We only need to consider Husband’s first two issues which, as stated in his brief, a re: Whether the trial judge may make findings of fact without the representation of competent evidence. Whether appellant was afforde d d ue process by the denial of a4 hearing on June 30, 1995. It is apparent from an examination of the record tha t the hearing was held on June 30, 1995, but no sworn testimony was elicited nor exhibits introduced by virtue of sworn testimony

or stipulatio n of the pa

rties. It is readil y appare nt that the re is a sharp disagreement

between the parties as to the facts of the controversy. Witnesses are required to take an oath or affirmation, Tenn.R .Evid. 603, and i n the abse nce of st ipulations , findingsof fact of the court must com e from the evidence introduced. What purports to be a statement of the evidence, i.e., the response of Wife in opposition to Husband’s statement of the evidence, establishes that there was no real evidenti ary hea

ring in thiscase asto the con tested fa cts. Husbandcontends that he should have an opportunity to put on proof, and Wife has not filed a brief on appeal. It appears to this Court that the trial court was somewhat misled by counsels’ approach to the hearing and the fa ilure to offer witnesses to take the stand. We feel that this a proper c ase for the application of T.C.A. § 27-3-128 (1980) which provides : 27-3-128. Remand fo r corre ction of r ecord. - Th e court sha

ll also, in all cases, where, in its opinion, complete justice cannot be had by reaso n of some d

efect in the record, want of p

roper pa rties, or oversigh t without culpable

negligence, remand the cause to the court below fo

r furthe r proce edings, wit h proper d irection s to effec tuate the objects of the o

rder, a nd upon suc

h terms as may be deemed r ight. We conclude that complete justice cannot be had beca use of the state of the record before

us. Therefore, the order of the trial court is vacated, and this case is remanded for an evidentiary hearing on the issues raised by the petiti on for mod ificatio n and the r

esponse thereto. The provisions for

child support

and visita

tion set ou

t in the tri al court ’s order shall remain in effect until replaced by order of the trial court. Costs of the appea l are as sessed one-ha lf to appellant and one-half to appellee.

_________________________________ W. FRANK CRAWFORD, PRESIDING J

UDGE, W.S. CONCUR:

____________________________________5

DAVID R.FARMER,

JUDGE

____________________________________ HOLLY K. LILLA RD, JUDGE