# FILED
September 1, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk TERRY DAVID MACKIE, ) ) Plaintiff/Appellee, ) Appeal No. ) 01-A-01-9810-CV-00536 v. ) ) Wilson Circuit SARAH CATHERINE MACKIE, ) No. 1568 ) Defendant/Appel

lant. )

COURT OF APPEALS OF TENNESSEE

APPEAL FROM THE CIRCUIT COURT FOR WILSON COUNTY

AT LEBANON, TENNESSEE
THE HONORABLE BOBBY CAPERS, JUDGE

CONNIE REGULI 353 Wimpole D

rive Nashville, Tennessee 37211 ATTORNEY FOR PLAINTIFF/APPELLEE

JAMES ROBIN McKINNEY STANLEY A. KWELLER Jackson, Kweller, McKinney & Badger One Washington Sq

uare, Suite 103 214 Second Avenue N

orth Nashville, Tennessee 37201 ATTORNEY FOR DEFENDANT/APPELLANT

AFFIRMED AS MODIFIED AND REMANDED

WILLIAM B. CAIN, JUDGE2 

## O P I N I O N

This case represents an appeal from the grant of di vorce upon stipulation of grounds pursuant to Te

nnessee Code Annota

ted section

36-4-129. The parties to this action, Terry David Mackie ("Husband"), and Sarah Cather ine Campbell Mackie ("Wife") were married on November 6, 1984. Husband

filed a complaint in Williamson Cou

nty Circuit Court on Mar ch 6, 1997, seeking di

vorce on the grounds of inappropriate ma rital c onduct and irrecon cilable differences. On March 20, 1997, Wife ans wered and counter

claimed. In h er answer, Wife admitted the ground of irrec oncilable differe

nces and alleged ina

ppropriate marital conduct on the part of the Husband. Over

the next 14 months the parties parti cipated in successive proce edings regarding pend

ente lite custody of t

h ei r severely ill mino r c hild. The case w as originally set for

trial on June 3, 1997. Both parties agreed to continue the case; each sought a scheduling order for the sequence of discovery. The parties wer e ordered to attend mediation on February 23, 1998. On May 18,1998, Husband moved to change pendente li te custody and to compel discovery. This motion was to be heard on June 3, 19 98. At the June 3, hearing, in an admittedly unorthodox pr oceeding, the parties stipulated under oath that each had grounds for divorce. At this point in the hea ring, both parties
were sent into an antecham ber to provide for the

divisionof themarital estate a nd custody of the child. These negotiations are do cumented in ha

nd written notes, signed by the parties a

nd their counsel, an

d appearing in the re

cord.

The fina l decre e of divorce, ente red June 25, 1998, r

ecites the agreem

ent reached by the parties in thei r impromptu settlem

ent conference and in the courtordered mediation. Howe ver, contrary to t

he understa

nding andstipulations of the parties, the tri al court granted a divorce on the ground of irrec

oncilable differences. Inasmuch as this court finds that the divorce granted was in fact and effect a divorce on stipulate

d grounds as provided in Tenne ssee Code Annotated section 36-4-129, the

decree of divorce

is amended to refle

ct the stipulation.

A divorce granted on stipulated ground s is not of necessity an irreco ncilab le differences divor ce. The statute providing for stipulati on of grounds reads in pert

inent part as follow s:3 (a) In all actions for divor ce from the bonds of m atrimony or from bed and board, the parti es may stipulate as t o grounds and/or defenses. (b) The court may, up

on stipulation to or proof

, grant a divorce to the party who w as less at fault or, if either or both parties are entitled to a d ivorce, declare the parties to be divorced, rather than awarding a divorce to either party alone. Tenn. Code Ann. § 36-4-129 (1996).

The above section allo ws stipulation as to any gr ound. The true

problem in this case lies in

the requirements placed upon the parties involved and the court which seeks to grant a divor ce based on i

r reconcilable differences. This record discloses neitheran executed marita l dissolution agreeme

nt nor anyaffirmative findings pursuant to Tennessee Code Annotated section 36-4-103 (1996). Both parties alleged "fault" as

well as "no-fault " grounds. All ot her element s of this
case being equal, were the parties to have al leged solely "inappropriate marital conduct", for example, the re would be no que stion that the parties intended to stipulate as to those grounds,

allowing the court t

he option provided in

section 36- 4-101. In the absence of the appropriate irreconcilable differences procedure and in the presence of sti

pulated commonly-al

leged grounds, we must conclude that the trial court inadver

tently listed irreconcila

ble differences as th

e ground for the Mackies'divorce. No proof other than the

stipulation was ta ken. As a result the decree of the court below can only operate as a grant of divorce under Tennessee Code Annotated sect

ion 36-4-129.

Wife would

argue that the stipul

ation on the record does not rise to the level of dignity envisioned by the statute. There is, however, no other authority interpreting

the plain words of se

ction 36-4-129(b). The stipulation of the parties is on therecord. The par ties expressed a

willingness to negotia

te in open court. The p art ies adjourned to "wor k it out." Although not necessarily requir ed, no contemporaneous

objection to this procedure appears in the rec ord. Upon our de
novo review of the re

cord, we find the

only error in the

decree of the cour

t to be the inadvertent

listing of "irreconcilable differences" as grounds for the divorce. Other than the stipulation in o pen court, there i s no o ther t ranscript of the evidence in this case. In the absence of

such a record, we must conclude the other findings in the decree to be sup ported by the facts. See Sherrod v. Wix , 84 94

S.W.2d 780, 783 (Tenn. App. 1992).

The decree of divorce is modified to reflect a stipulation as to the grounds alleged in the parties' plea dings instead

of irreconcilable di fferences. The case is affirmedas modified and rem anded to the

trial court for fu

rther proceedings n

ot inconsistent

withthis opinion, and such further proceedings as may be required by the trial court in it

s continuin g control over the cus tody and welfare of

the minor child.

In our discretion cos

ts are divided equall

y between the parti

es.



## ______________________________ WILLIAM B. CAIN, JUDGE

CONCUR:

__________________________________ __ BEN H. CANTRELL, P .J., M.S.

__________________________________ __ PATRICIA J. COTTRELL, JUDGE