IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

March 11, 2015 Session

COLETTE SUZANNE TURMAN v. FRED TURMAN

Appeal from the Chancery Court for Henry County

No. 20745 Carma Dennis McGee, Chancellor1

No. W2014-01297-COA-R3-CV - Filed April 14, 2015

The trial court referred this divorce case to a Special Master, indicating that the issues to 

be decided by the Special Master would be determined by the parties. The Special Master 

limited her consideration to the valuation of the parties‟ property. The trial court

subsequently entered an order purporting to resolve all the remaining issues in the case.

However, the trial court failed to make specific findings of fact and conclusions of law in 

its written order. Accordingly, we vacate and remand for further proceedings. 

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court is Vacated 

and Remanded

J. STEVEN STAFFORD, P.J., W.S., delivered the opinion of the Court, in which BRANDON 

O. GIBSON J., and KENNY ARMSTRONG, J., joined.

George Robert Whitfield, III, Paris, Tennessee, for the appellant, Colette Suzanne 

Turman.

Donald Capparella and Elizabeth Sitgreaves, Nashville, Tennessee for the appellee, Fred 

Turman.2

OPINION

 

1 Chancellor McGee entered the final order in this case, as discussed, infra. However, the substantive 

rulings at issue in this case were made by her predecessor, Chancellor Ron E. Harmon.

2 Mr. Turman‟s appellate counsel did not represent him in the trial court.
2

Colette Suzanne Turman (“Wife”) and Fred Turman (“Husband”) married in 1985. 

No children were born of the marriage. In 2008, Wife filed a complaint for divorce in the 

Henry County Chancery Court, Chancellor Ron E. Harmon presiding, alleging 

irreconcilable differences. Husband answered the complaint, admitting that irreconcilable 

differences existed, and filed a counter-complaint for divorce alleging that Wife engaged

in inappropriate marital conduct and asking that he be awarded periodic alimony both 

pendente lite and permanent. Wife later amended her complaint to add an allegation that 

Husband had also been guilty of inappropriate marital conduct. 

The parties jointly owned two rental properties. The rental properties and the 

marital home were sold at auction during the pendency of the divorce. The auction 

yielded $784,458.88. On May 10, 2010, the trial court entered an order directing the 

parties to reserve $150,000.00 of the auction proceeds to be determined by the trial court 

in the divorce proceedings. These funds were deposited with the Henry County Clerk and 

Master. The remaining proceeds were equally divided by the parties.

Husband purchased the marital home at auction for $183,105.20.3 Because the 

parties agreed to equally divide the proceeds of the auction (less the $150,000.00 held by 

the clerk), Wife was entitled to one-half of the proceeds gained from the sale of the home. 

Husband paid this share to Wife by increasing the amount of the remaining proceeds that 

Wife was entitled to receive.4 After taking into account the accumulation of interest, the 

Clerk and Master held $150,791.68. 

On October 13, 2010, the trial court entered an order referring many of the 

disputes in the case to a Special Master, the Henry County Clerk and Master. The order 

appointing the Special Master indicated that the Special Master was to make findings 

regarding questions submitted by the parties. The parties subsequently submitted 

questions to the Special Master. The majority of the issues concerned the valuation of the 

parties‟ property and the treatment of certain assets during the pendency of the divorce.

The record indicates that the Special Master held hearings on March 23, March 30, 

and April 20, 2011;5however, no transcript is included in the record from any of the 

 

3

 There is no dispute that the home sold above market value at auction. 

4 There is also no dispute that, regardless of Husband‟s purchase of the marital home, each party received 

an equal share of the auction proceeds remaining after the exclusion of the $150,000.00 held by the Clerk 

and Master. 

5 Neither party references hearings before the Special Master in their appellate briefs. The only indication 

that hearings were held is a notation to the dates of hearings on the exhibits presented to the Special 

Master. Accordingly, it is unclear in the record if the Special Master indeed held an evidentiary hearing,

or simply decided the issues based upon the submissions of the parties. On appeal, neither party takes 

issue with the proceedings before the Special Master.
3

purported hearings before the Special Master. The Special Master filed her report on 

October 17, 2012.6The Special Master assigned values for the property at issue in the 

divorce and made factual findings regarding how some property was acquired or used 

during the marriage. For example, with regard to a personal injury suit filed jointly by the 

parties, the Special Master made findings with regard to the value of the suit but declined 

to indicate how such property should be divided in the divorce, leaving that determination 

to the trial court. Similarly, the Special Master considered the value in several of the 

parties‟ bank accounts and whether they were titled jointly; the Special Master, however, 

declined to determine whether any of the funds were marital or separate or to make a 

ruling as to who would be awarded what funds in the divorce. In addition, both parties 

submitted questions regarding dissipation of marital assets during the pendency of the 

divorce; the Special Master made findings regarding withdrawals made by the parties but 

declined to rule that such withdrawals were properly considered dissipation and offered 

no suggestion as to how these withdrawals would affect the division of marital property. 

No written objections were ever filed as to the findings of the Special Master, nor has any 

party raised an issue regarding the Special Master‟s valuations as issues on appeal.

The parties held a hearing on the issues remaining to be determined in the divorce 

on October 22, 2012. At the outset of the hearing, the trial court indicated that it was 

concurring in the report of the Special Master. The parties presented no testimony at this 

hearing. At the conclusion of the hearing, the trial court made some oral rulings with 

regard to the division of marital property. No order was subsequently entered 

memorializing those findings. As such, on November 12, 2012, counsel for Husband filed 

a motion for the trial court to make “written findings of fact and conclusions of law prior 

to the entry of judgment.” The trial court entered an order awarding the parties an 

absolute divorce on March 18, 2013 but reserved all other issues. The next day, March 

19, 2013, the trial court entered an order allowing each party to withdraw $15,000.00 

from the funds held by the trial court. Each party withdrew these funds, leaving a balance 

of $120,791.68. The order allowing the withdrawals indicates that “the distribution to 

each party will be charged against that party‟s interest [a]s ultimately determined[,] with 

the remaining funds to continue to be held by the Clerk and Master as previously 

ordered[.]”

On July 25, 2013, the trial court entered its Final Decree of Divorce. The order 

indicates that the trial court heard no additional proof before ruling. In this order, the trial 

court divided the remainder of the funds obtained at auction between the parties,

7

 

6

 There is no explanation in the record for the over two year delay between the order referring this matter 

to the Special Master and the filing of the Special Master‟s report. 

7 Of the approximately $150,791.68 remaining from the auction proceeds, the trial court‟s final decree of 

divorce awarded Wife $135,000.00 and Husband $12,246.79. As previously discussed, however, each 

party was allowed to withdraw $15,000.00 from the funds held by the Clerk and Master prior to the entry 

of the purported final order addressing the division of marital property. The trial court‟s order allowing

 (Continued...)
4

awarded each party the personal property in his or her possession, equally divided the 

value of the parties‟ life insurance policies, and awarded Husband the value of the 

parties‟ Morgan Keegan account, as well as an aluminum car hauler and Husband‟s 

mother‟s jewelry. The parties were also ordered to equally divide the court costs and fees 

of the Special Master, which would be deducted from each party‟s share of the funds 

deposited with the Clerk and Master. Thereafter, Husband withdrew his motion for 

findings of fact and conclusions of law. Wife filed a timely notice of appeal. However, on 

March 6, 2014, this Court dismissed her appeal for lack of a final judgment, as many of 

the issues in the parties‟ divorce complaints remained unresolved by the trial court‟s 

written order. See Turman v. Turman, No. W2013-01938-COA-R3-CV, 2014 WL 

887341, at *5 (Tenn. Ct. App. March 6, 2014).

On June 16, 2014, the trial court,

8 Chancellor Carma McGee presiding, entered its 

second Final Decree of Divorce, which resolved all outstanding issues. This order 

indicated that both parties withdrew any claims for alimony, that all outstanding 

contempt petitions were dismissed, that all property other than an aluminum car hauler 

and certain jewelry were properly considered marital property, that all marital debts had 

been paid during the pendency of the first appeal, and that each party would pay his or 

her own attorney‟s fee. From the record, it appears that many of these rulings were 

gleaned from the parties‟ and trial court‟s oral statements during the October 22, 2012 

hearing or were based upon agreement of the parties.

9 Wife filed a second timely notice 

of appeal. 

Issues Presented

Wife raises the following issues, which are taken and slightly restated from her 

appellate brief:

1. Whether the trial court erred in calculating and allocating the 

funds held by the Clerk and Master?

2. Whether the trial court erred in failing to equitably divide the 

marital estate?

 

(...continued)

the withdrawals makes clear that these amounts would be charged against each party‟s ultimate award of 

the funds pursuant to the trial court‟s final division of marital property. However, the trial court allowed 

Husband to withdraw $15,000.00 from the funds deposited with the Special Master but only awarded 

Husband $12,246.79. Accordingly, Husband received $2,753.21 more than he was entitled under the 

terms of the final decree of divorce. Husband concedes this point in his appellate brief, and nothing in the 

record indicates that this error was the result of bad faith. Wife raises this alleged miscalculation as an 

error on appeal.

8 The June 2014 order was entered by a different trial judge, as the original trial judge, Chancellor 

Harmon, passed away during the pendency of the first appeal. 

9 Neither party takes issue with any of the determinations contained in the June 16, 2014 order.
5

3. Whether the trial court erred in failing to adjust the division 

of the marital estate to account for Husband‟s 

misappropriation of funds?

4. Whether the trial court erred in failing to calculate rental 

values of the properties occupied by the parties pending the 

divorce in determining the value of the marital estate?

In the posture of Appellee, Husband seeks his attorney‟s fees incurred on appeal. 

Analysis

This case presents an unusual factual scenario. Here, the trial court referred the 

case to a Special Master, as is permitted by Rule 53.01 of the Tennessee Rules of Civil 

Procedure. Tenn. R. Civ. P. 53.01 (“The court in which any action is pending may 

appoint a Special Master therein.”). Unlike the typical case, however, the trial court did 

not refer specific issues but instead directed the parties to submit questions to the Special 

Master. Rule 53.02 states that the trial court “may direct the master to only report upon 

particular issues.” In addition, Rule 53.04 indicates that the “master shall prepare a report 

upon the matters submitted by the order of reference.” Accordingly, Rule 53 generally 

indicates that the trial court, in the order of reference, should set forth the issues that are 

to be considered and decided by the Special Master, rather than delegating this duty to the 

parties. 

Indeed, this obligation on the part of the trial court is necessary, as the trial court 

has a duty to ensure that only issues that are properly referred to a Special Master are 

decided by the Special Master. As explained by this Court in Vraney v. Medical 

Specialty Clinic, P.C., No. W2012-02144-COA-R3-CV, 2013 WL 4806902, at *33 

(Tenn. Ct. App. Sept. 9, 2013): 

The main issues of a controversy and the principles on which 

these issues are to be adjudicated must be determined by the 

trial court. Collateral, subordinate, and incidental issues and 

the ascertainment of ancillary facts are matters properly 

referred to a [S]pecial [M]aster.

Id. at *34 (internal citations omitted). Consequently, “[t]he trial court . . . may not refer 

all matters to the [S]pecial [M]aster.” Id. 

In this case, although the trial court may have improperly delegated its duty to 

determine the issues to be decided by the Special Master to the parties, it appears that the 

Special Master limited her consideration only to valuation issues concerning the parties‟ 

marital and separate property. Specifically, while the Special Master considered the value 

of the property at issue, the Special Master did not go so far as to determine whether the 

property was properly classified as marital or separate, or to make a recommendation as 

to the equitable division of this property upon divorce. Other courts have indicated that 
6

issues of valuation are properly referred to a Special Master. See, e.g., Aussenberg v. 

Kramer, 944 S.W.2d 367, 370 (Tenn. Ct. App. 1996) (noting, without taking issue, that 

issues of valuation of partnership property were referred to the Special Master). In 

addition, neither party filed any written objections to the Special Master‟s report or 

otherwise raised the Special Master‟s valuations as issues on appeal. Accordingly, while 

this practice is not favored by this Court, no reversible error resulted from allowing the 

parties to determine the issues to be decided by the Special Master in this particular case.

Another deficiency in the record hampers appropriate appellate review, however.

In this case, it does not appear that the trial court made appropriate findings of fact and 

conclusions of law on these issues, as required by Rule 52.01 of the Tennessee Rules of 

Civil Procedure. Rule 52.01 of the Tennessee Rules of Civil Procedure provides that trial 

courts “shall find the facts specially and state separately its conclusions of law and direct 

the entry of the appropriate judgment.” Tenn. R. Civ. P. 52.01 (emphasis added). Prior to 

July 1, 2009, trial courts were only required to make specific findings of fact and 

conclusions of law “upon request made by any party prior to the entry of judgment.” See

Poole v. Union Planters Bank N.A., No. W2009-01507-COA-R3-CV, 337 S.W.3d 771, 

791 (Tenn. Ct. App. 2010) (noting the amendment). However, the current version of Rule 

52.01 requires the court to make these findings regardless of a request by either party. Id.

This Court has previously held that the requirement to make findings of fact and 

conclusions of law is “not a mere technicality.” In re K.H., No. W2008-01144-COA-R3-

PT, 2009 WL 1362314, at *8 (Tenn. Ct. App. May 15, 2009).

Instead, the requirement serves the important purpose of “facilitat[ing] appellate 

review and promot[ing] the just and speedy resolution of appeals.” Id.; White v. Moody, 

171 S.W.3d 187, 191 (Tenn. Ct. App. 2004); Bruce v. Bruce, 801 S.W.2d 102, 104 

(Tenn. Ct. App. 1990). The Tennessee Supreme Court recently explained that Rule 52.01 

findings and conclusions serve three important purposes:

First, findings and conclusions facilitate appellate 

review by affording a reviewing court a clear understanding 

of the basis of a trial court‟s decision. See Estate of Bucy v. 

McElroy, No. W2012-02317-COA-R3-CV, 2013 WL 

1798911, at *3–4 (Tenn. Ct. App. Apr. 26, 2013) (noting that 

the Rule 52.01 requirement facilitates appellate review); 

Hardin v. Hardin, No. W2012-00273-COA-R3-CV, 2012 

WL 6727533, at *5 (Tenn. Ct. App. Dec. 27, 2012) (same); 

In re K.H., No. W2008–01144-COA-R3-PT, 2009 WL 

1362314, at *8 (Tenn. Ct. App. May 15, 2009) (recognizing 

that without findings and conclusions appellate courts are left 

to wonder about the basis of a trial court‟s decision); In re 

M.E.W., No. M2003-01739-COA-R3-PT, 2004 WL 865840, 

at *19 (Tenn. Ct. App. Apr. 21, 2004 (same); 9C [Charles A. 

Wright et al.,] Federal Practice and Procedure § 2571, at 219 
7

[(3d ed. 2005)] [hereinafter 9C Federal Practice and 

Procedure] (recognizing that specific findings by the trial 

court facilitate appellate review). Second, findings and 

conclusions also serve “to make definite precisely what is 

being decided by the case in order to apply the doctrines of 

estoppel and res judicata in future cases and promote 

confidence in the trial judge‟s decision-making.” 9C Federal 

Practice and Procedure § 2571, at 221–22. A third function 

served by the requirement is “to evoke care on the part of the 

trial judge in ascertaining and applying the facts.” Id. at 222. 

Indeed, by clearly expressing the reasons for its decision, the 

trial court may well decrease the likelihood of an appeal. 

Hardin, 2012 WL 6727533, at *5.

Lovelace v. Copley, 418 S.W.3d 1, 34–35 (Tenn. 2013). “Without such findings and 

conclusions, this court is left to wonder on what basis the court reached its ultimate 

decision.” In re K.H., 2009 WL 1362314, at *8 (quoting In re M.E.W., No. M2003-

01739-COA-R3-PT, 2004 WL 865840, at *19 (Tenn. Ct. App. Apr. 21, 2004)).

As previously discussed, the Special Master limited her consideration to the 

valuation of the parties‟ property. The trial court concurred in these findings, but, as 

discussed below, was required to make additional determinations regarding the equitable 

division of property, the dissipation of marital assets, and the benefit that Husband 

allegedly derived from his exclusive use of the marital home for several months during 

the pendency of the divorce. The trial court‟s written order contains no findings of fact or 

conclusions of law regarding these issues.10 This omission was not corrected when the 

case was remanded to the trial court after Wife‟s first appeal was dismissed. Dissolution 

of a marriage requires a court to “engage in the orderly disentanglement of the parties‟ 

personal and financial affairs.” Adams v. Adams, No. W2007-00915-COA-R3-CV, 2008 

WL 2579234, at *5 (Tenn. Ct. App. June 30, 2008) (quoting Anderton v. Anderton, 988 

S.W.2d 675, 679 (Tenn. Ct. App.1998)). As this Court explained: “[T]he absence of 

findings and conclusions on the nature of the property and its allocation leaves the parties 

without the thing they most need: a decision.” Adams, 2008 WL 2579234, at *6-7. 

Here, nothing in the trial court‟s order indicates that it considered the factors in 

Tennessee Code Annotated Section 36-4-121(c). Tennessee Code Annotated Section 36-

 

10

 The trial court did make some rulings from the bench prior to the entry of its written order. However, 

these rulings were not incorporated into the trial court‟s written order. It is well-settled that a court speaks 

through its written orders. Palmer v. Palmer, 562 S.W.2d 833, 837 (Tenn. 1977). Furthermore, the trial 

court‟s oral ruling offers no illumination on the application of Tennessee Code Annotated Section 36-4-

121(c), Wife‟s dissipation argument, or Wife‟s argument that she is entitled to an adjustment of marital 

property due to Husband‟s exclusive use of the marital home.
8

4-121(c) provides several factors that the trial court “shall” consider in making an 

equitable division of property, including: 

(1) The duration of the marriage;

(2) The age, physical and mental health, vocational skills, 

employability, earning capacity, estate, financial liabilities 

and financial needs of each of the parties;

(3) The tangible or intangible contribution by one (1) party to 

the education, training or increased earning power of the 

other party;

(4) The relative ability of each party for future acquisitions of 

capital assets and income;

(5)(A) The contribution of each party to the acquisition, 

preservation, appreciation, depreciation or dissipation of the 

marital or separate property, including the contribution of a 

party to the marriage as homemaker, wage earner or parent, 

with the contribution of a party as homemaker or wage earner 

to be given the same weight if each party has fulfilled its role;

(B) For purposes of this subdivision (c)(5), dissipation 

of assets means wasteful expenditures which reduce 

the marital property available for equitable 

distributions and which are made for a purpose 

contrary to the marriage either before or after a 

complaint for divorce or legal separation has been 

filed.

(6) The value of the separate property of each party;

(7) The estate of each party at the time of the marriage;

(8) The economic circumstances of each party at the time the 

division of property is to become effective;

(9) The tax consequences to each party, costs associated with 

the reasonably foreseeable sale of the asset, and other 

reasonably foreseeable expenses associated with the asset;

(10) The amount of social security benefits available to each 

spouse; and

(11) Such other factors as are necessary to consider the 

equities between the parties.
9

Tenn. Code Ann. § 36-4-129(c). Tennessee courts have repeatedly held that the General 

Assembly‟s use of the word “shall” removes the court‟s discretion and instead indicates 

that the action governed by the statute is mandatory. See, e.g., Bellamy v. Cracker Barrel 

Old Country Store, Inc., 302 S.W.3d 278, 281 (Tenn. 2009) (“When „shall‟ is used in a 

statute or rule, the requirement is mandatory.”); Bolin v. Tenn. Farmer’s Mut. Ins. Co., 

614 S.W.2d 566, 569 (Tenn.1981) (“The general rule is that the word „shall‟ ordinarily is 

construed to be mandatory rather than merely directory.”); Stubbs v. State, 393 S.W.2d 

150, 154 (Tenn. 1965) (noting that by using the word “shall,” the General Assembly 

“leaves no room for discretion”). Thus, the trial court was required to consider the factors 

outlined in Tennessee Code Annotated Section 36-4-129(c) and make appropriate 

findings of fact and conclusions of law to support its decision. Nothing in the trial court‟s 

order indicates that it considered Tennessee Code Annotated Section 36-4-129(c) in 

making its decision.

Further, as addressed by Wife‟s appellate brief, the trial court made no findings as 

to whether Wife is entitled to an adjustment of marital property due to Husband‟s alleged 

misappropriation of marital property. Indeed, the trial court had previously entered an 

order stating that the trial court would consider “whether or not any personal expenses . . 

. have been incorrectly paid for through joint business funds,” and indicated that the trial 

court would “later determine” that issue. However, the trial court‟s written order contains 

no findings of fact or conclusions of law on this issue. In addition, the trial court‟s order 

does not contain findings of fact or conclusions of law regarding Wife‟s argument that 

she is entitled to an adjustment of marital property due to Husband‟s exclusive use of the 

marital property during the pendency of the divorce. While Husband argues that Wife is 

not entitled to these adjustments, the fact remains that the trial court simply did not 

decide these issues in its written order. 

Generally, the appropriate remedy when a trial court fails to make appropriate 

findings of fact and conclusions of law pursuant to Tennessee Rule of Civil Procedure 

52.01 is to “vacate the trial court‟s judgment and remand the cause to the trial court for 

written findings and conclusions of law.” Lake v. Haynes, No. W2010-00294-COA-R3-

CV, 2011 WL 2361563, at *1 (Tenn. Ct. App. June 9, 2011). However, this Court has 

indicated that we may “soldier on” with our review, despite the trial court‟s failure to 

comply with Rule 52.01, in certain limited circumstances:

On occasion, when a trial judge fails to make findings 

of fact and conclusions of law, the appellate court “may 

„soldier on‟ when the case involves only a clear legal issue, or 

when the court's decision is „readily ascertainable.‟” Hanson 

v. J.C. Hobbs Co., Inc., No. W2011-02523-COA-R3-CV, 

2012 WL 5873582, at *10 (Tenn. Ct. App. Nov.21, 2012) 

(quoting Simpson v. Fowler, No. W2011-02112-COA-R3-

CV, 2012 WL 3675321, at *4 (Tenn. Ct. App. Aug. 28, 

2012)).
10

Pandey v. Shrivastava, No. W2012-00059-COA-R3-CV, 2013 WL 657799 (Tenn. Ct. 

App. Feb. 22, 2013). Here, the trial court recognized that this divorce involved 

“uncustomary divorce issues” that would not be easily resolved. Thus, the disputes in this 

case do not involve only clear legal issues. 

The trial court‟s decision in this case is also not “readily ascertainable.” Id.

(quoting Hanson, 2012 WL 5873582, at *10). First, nothing in the trial court‟s written 

order or oral rulings indicates the reasoning underlying its decision to divide the parties‟

marital property in the way that the trial court chose, nor does the trial court even 

mention Wife‟s dissipation and adjustment arguments. Furthermore, it is unclear what 

evidence the trial court actually relied upon in making its determinations. As previously 

discussed, while the trial court was provided with a copy of the Special Master‟s report, 

and presumably the exhibits to the report, no transcript was filed with the report. 

Rule 53.04 clearly sets forth both a Special Master‟s responsibilities, as well as the 

duties of the trial court, when a Special Master has been appointed to assist in a non-jury 

trial:

The master shall prepare a report upon the matters 

submitted by the order of reference and, if required to make 

findings of fact and conclusions of law, the master shall set 

them forth in the report. The master shall file the report with 

the clerk of the court and, unless otherwise directed by the 

order of reference, shall file with it a transcript of the 

proceedings and of the evidence and the original exhibits. 

The clerk shall forthwith mail to all parties notice of the 

filing.

Tenn. R. Civ. P. 53.04(1) (emphasis added). Nothing in the trial court‟s order of reference 

relieves the Special Master of her duty to submit the transcripts and exhibits supporting 

her report to the trial court. The purpose of the requirement that the Special Master file a 

record of proceedings is so that the trial court can review any evidence taken before the 

Special Master and make independent findings. Fillers v. Cash, No. 03A01-9705-CV00186, 1997 WL 694948 (Tenn. Ct. App. Oct. 31, 1997) (no Tenn. R. App. P. 11 

application filed). The Special Master‟s failure to comply with Rule 53.04(1) by filing a 

transcript or record of the proceedings before the Special Master is harmless error if there 

is material evidence in the record to support the Special Master‟s report. In Re Estate of 

Tipps, 907 S.W.2d at 403.

In this case, no transcript was filed with the Special Master‟s report. Accordingly, 

although the parties do not dispute the Special Master‟s findings, it is unclear if the trial 

court performed an independent review of the evidence presented to the Special Master. 
11

In addition, while the parties‟ counsel made arguments to the trial court at the October 

22, 2012 hearing, no additional evidence was actually presented. “[M]ere statements of 

counsel are not evidence or a substitute for testimony.” Metro. Gov't of Nashville & 

Davidson Co. v. Shacklett, 554 S.W.2d 601, 605 (Tenn. 1977). Witnesses are required to 

take an oath or affirmation before testifying, and in the absence of stipulations, findings 

of fact must come from the evidence introduced. In re D.M.H., No. W2006-00270-COAR3-JV, 2006 WL 3216306, at *7 (Tenn. Ct. App. Nov. 8, 2006) (citing Tenn. R. Evid. 

603); see also State v. Thompson, 832 S.W.2d 577, 579 (Tenn. Ct. Crim. App. 1991). 

Because of these deficiencies, it is difficult to discern what, if any, evidence the trial 

court relied upon in making its decision. Without this information, this Court would be 

required not only to speculate as to the trial court‟s reasoning, but also to assume that the 

trial court‟s decision rests on appropriately admitted evidence. This we simply cannot do.

Under these circumstances, the appropriate remedy is to remand to the trial court 

for the entry of an order compliant with Rule 52.01. We recognize that this case has been 

pending for several years, and a new trial judge will preside over the proceedings on 

remand. As such, an evidentiary hearing may be required to resolve the outstanding 

issues, which will again delay the resolution of the property issues in this divorce. 

However, given the fact that we cannot determine if the trial court‟s decision was based 

upon appropriate evidence, we conclude that this is the appropriate course of action in 

this case.

Finally, given the disposition of this appeal, we decline Husband‟s request for 

attorney‟s fees incurred in defense of this appeal. 

Conclusion

The judgment of the Chancery Court of Henry County is vacated, and this cause is 

remanded to the trial court for further proceedings in accordance with this Opinion. Costs 

of this appeal are taxed one-half to Appellant Colette Suzanne Turman and her surety, 

and one-half to Appellee Fred Turman, for all of which execution may issue, if necessary. 

_________________________________

J. STEVEN STAFFORD, JUDGE