FILED

September 1, 1999

Cecil Crowson, Jr.

Appellate Court Clerk

TERRY DAVID MACKIE, )

)

Plaintiff/Appellee, ) Appeal No.

) 01-A-01-9810-CV-00536

v. )

) Wilson Circuit

SARAH CATHERINE MACKIE, ) No. 1568

)

Defendant/Appellant. )

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 Drive

Nashville, Tennessee 37211

ATTORNEY FOR PLAINTIFF/APPELLEE

JAMES ROBIN McKINNEY

STANLEY A. KWELLER

Jackson, Kweller, McKinney

 & Badger

One Washington Square, Suite 103

214 Second Avenue North

Nashville, Tennessee 37201

ATTORNEY FOR DEFENDANT/APPELLANT

AFFIRMED AS MODIFIED

AND REMANDED

WILLIAM B. CAIN, JUDGE
2

O P I N I O N

This case represents an appeal from the grant of divorce upon stipulation

of grounds pursuant to Tennessee Code Annotated section 36-4-129. The parties

to this action, Terry David Mackie ("Husband"), and Sarah Catherine Campbell

Mackie ("Wife") were married on November 6, 1984. Husband filed a complaint

in Williamson County Circuit Court on March 6, 1997, seeking divorce on the

grounds of inappropriate marital conduct and irreconcilable differences. On

March 20, 1997, Wife answered and counterclaimed. In her answer, Wife

admitted the ground of irreconcilable differences and alleged inappropriate

marital conduct on the part of the Husband. Over the next 14 months the parties

participated in successive proceedings regarding pendente lite custody of their

severely ill minor child. The case was 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 were ordered to attend mediation on February

23, 1998. On May 18, 1998, Husband moved to change pendente lite custody and

to compel discovery. This motion was to be heard on June 3, 1998. At the June

3, hearing, in an admittedly unorthodox proceeding, the parties stipulated under

oath that each had grounds for divorce. At this point in the hearing, both parties

were sent into an antechamber to provide for the division of the marital estate and

custody of the child. These negotiations are documented in handwritten notes,

signed by the parties and their counsel, and appearing in the record.

The final decree of divorce, entered June 25, 1998, recites the agreement

reached by the parties in their impromptu settlement conference and in the courtordered mediation. However, contrary to the understanding and stipulations of

the parties, the trial court granted a divorce on the ground of irreconcilable

differences. Inasmuch as this court finds that the divorce granted was in fact and

effect a divorce on stipulated grounds as provided in Tennessee Code Annotated

section 36-4-129, the decree of divorce is amended to reflect the stipulation.

A divorce granted on stipulated grounds is not of necessity an

irreconcilable differences divorce. The statute providing for stipulation of

grounds reads in pertinent part as follows:
3

(a) In all actions for divorce from the bonds of matrimony or

from bed and board, the parties may stipulate as to grounds and/or

defenses.

(b) The court may, upon stipulation to or proof, grant a divorce

to the party who was less at fault or, if either or both parties are

entitled to a divorce, 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 allows stipulation as to any ground. The true problem

in this case lies in the requirements placed upon the parties involved and the court

which seeks to grant a divorce based on irreconcilable differences. This record

discloses neither an executed marital dissolution agreement nor any affirmative

findings pursuant to Tennessee Code Annotated section 36-4-103 (1996). Both

parties alleged "fault" as well as "no-fault" grounds. All other elements of this

case being equal, were the parties to have alleged solely "inappropriate marital

conduct", for example, there would be no question that the parties intended to

stipulate as to those grounds, allowing the court the option provided in section 36-

4-101. In the absence of the appropriate irreconcilable differences procedure and

in the presence of stipulated commonly-alleged grounds, we must conclude that

the trial court inadvertently listed irreconcilable differences as the ground for the

Mackies' divorce. No proof other than the stipulation was taken. As a result the

decree of the court below can only operate as a grant of divorce under Tennessee

Code Annotated section 36-4-129.

Wife would argue that the stipulation 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 section 36-4-129(b). The stipulation of the parties

is on the record. The parties expressed a willingness to negotiate in open court.

The parties adjourned to "work it out." Although not necessarily required, no

contemporaneous objection to this procedure appears in the record. Upon our de

novo review of the record, we find the only error in the decree of the court to be

the inadvertent listing of "irreconcilable differences" as grounds for the divorce.

Other than the stipulation in open court, there is no other transcript of the

evidence in this case. In the absence of such a record, we must conclude the other

findings in the decree to be supported by the facts. See Sherrod v. Wix, 849
4

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' pleadings instead of irreconcilable differences. The case is

affirmed as modified and remanded to the trial court for further proceedings not

inconsistent with this opinion, and such further proceedings as may be required

by the trial court in its continuing control over the custody and welfare of the

minor child.

In our discretion costs are divided equally between the parties.

______________________________

WILLIAM B. CAIN, JUDGE

CONCUR:

____________________________________

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

____________________________________

PATRICIA J. COTTRELL, JUDGE