IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

Assigned On Briefs August 2, 2013

RHONDA SUE WATKINS v. KENNETH DANNY WATKINS

Direct Appeal from the Circuit Court for Williamson County

No. 09101 Timothy L. Easter, Judge

No. M2012-02378-COA-R3-CV - Filed August 28, 2013

The trial court granted Father’s petition to modify child custody and child support, and

denied Mother’s petition to increase alimony. Mother appeals. We vacate the trial court’s

judgment with respect to Mother’s petition to modify alimony, and remand for findings of

fact and further proceedings, if necessary. The remainder of the judgment is affirmed.

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

part, Vacated in part and Remanded

DAVID R. FARMER,J., delivered the opinion of the Court, in which HOLLY M. KIRBY,J., and

J. STEVEN STAFFORD, J., joined.

Rhonda Sue Watkins, Pro se.

John D. Schwalb, Franklin, Tennessee, for the appellee, Kenneth Danny Watkins.

MEMORANDUM OPINION

1

Following apparently acrimonious litigation and a four-day trial, Plaintiff/Appellant

Rhonda Sue Watkins (Ms. Watkins) and Defendant/Appellee Kenneth Danny Watkins (Mr.

Watkins) were divorced by final decree entered by the Circuit Court for Williamson County

Rule 10. Memorandum Opinion. 1

This Court, with the concurrence of all judges participating in the case, may affirm, reverse

or modify the actions of the trial court by memorandum opinion when a formal opinion

would have no precedential value. When a case is decided by memorandum opinion it shall

be designated “MEMORANDUM OPINION,” shall not be published, and shall not be cited

or relied on for any reason in any unrelated case.
on June 23, 2010. In an extremely detailed and comprehensive decree of divorce, the trial

court awarded Ms. Watkins a divorce based upon inappropriate marital conduct, divided the

parties’ property, and awarded Ms. Watkins alimony in futuro in the amount of $750 per

month until death or remarriage. After hearing the testimony of the parties’ minor children

in chambers by agreement of the parties, and after considering the statutory factors set-forth

in Tennessee Code Annotated § 36-6-106, the trial court named Ms. Watkins primary

residential parent and set Mr. Watkins’ child support obligation at $1,000 per month. Mr.

Watkins was awarded 100 days of alternate residential parenting time pursuant to the

Parenting Plan entered on August 2, 2010.

On March 2, 2011, Mr. Watkins filed a petition to change custody and modify child

support. In his petition, Mr. Watkins alleged that he and Ms. Watkins had agreed that the

children would reside with him where Ms. Watkins had moved to Memphis to reside with

her parents in order to provide a more stable environment for the children. He alleged that

the children had been residing with him since January 1, 2011, and that he had been

providing all of their support. He further asserted that Ms. Watkins had agreed to forego

child support where the children were residing with Mr. Watkins. Mr. Watkins asserted that

Ms. Watkins had refused to sign a proposed amended parenting plan, and alleged that a

substantial and material change in circumstance had occurred which justified modification

of the parenting plan. He asserted the court should adopt his proposed parenting plan,

retroactive to January 1, 2011. The parenting plan proposed by Mr. Watkins named him

primary residential parent and provided Ms. Watkins with 100 alternate residential parenting

days. It attributed gross income in the amount of $6500 per month to Mr. Watkins, gross

income in the amount of $1941.33 to Ms. Watkins, and proposed that Ms. Watkins’ child

support obligation be set at $183 monthly.

Ms. Watkins answered Mr. Watkins’ petition on April 27, 2011. In her answer, Ms.

Watkins denied Mr. Watkins’ assertion that he had been the children’s “de facto” custodial

parent since January 1, 2011, and had provided for all of their support; denied that a material

change in circumstances had occurred; and denied that the court should adopt Mr. Watkins’

proposed parenting plan.

Ms. Watkins’ legal counsel died while this matter was pending, and on January 23,

2012, Ms. Watkins file a pro se petition to modify the final decree and for “financial relief.”

In her petition, she asserted that she had misunderstood the trial court’s instructions during

the course of the divorce proceedings regarding assignment of the parties’ debt, and that she

had indicated that debt created by Mr. Watkins was “joint,” when it in fact was incurred by

Mr. Watkins. She indicated that her attempts to contact creditors to settle debt assigned to

her had been unsuccessful because creditors refused to provide any information where her

name was not on the relevant accounts. She further asserted that Mr. Watkins informed her

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“that he bankrupt everything”; that she had lost her employment with Bren, Inc.; that her

home had been foreclosed upon prior to the final divorce; and that she had paid most of her

attorneys’ fees in the amount of $36,000. She prayed the court to “relieve her of any

responsibility with regard to” the indicated debts. Ms. Watkins also filed a motion for an

increase in alimony in an unspecified amount. On June 13, 2012, Ms. Watkins moved the

court to order Mr. Watkins to pay unspecified alimony shortages and to pay alimony as

ordered on time.

Following contentious proceedings and a failed attempt to mediate the matter, the

matter was heard by the trial court on August 17, 2012. By order entered September 20,

2012, the trial court granted Mr. Watkins’ petition to change custody and modify child

support, and adopted his proposed parenting plan. The trial court ordered Mr. Watkins to

arrange counseling for the parties’ children, at Mr. Watkins’ expense, to “enable them to

form some further relationship with their mother[,] which has been largely nonexistent since

2011.” The trial court awarded Mr. Watkins back child support in the amount of $3,000, to

be paid at the rate of $50 per month. The trial court denied Ms. Watkins’ petition for an

increase in alimony. The trial court denied all outstanding motions as “moot, unnecessary

or as having been abandoned due to the failure of any proof necessary to sustain such

motion[.]” Mr. Watkins’ request for attorney’s fees was denied.

Ms. Watkins filed a notice of appeal on October 19, 2012. On January 3, 2013, the

trial court ordered the testimony of the parties’ children received by the court on August 17,

2012, to be filed with the clerk of the court under seal and accessed by court order only. Oral

argument was waived, and the matter was assigned to the Western Section of this Court on

August 2, 2013.

Issues Presented

Acting pro se, Ms. Watkins presents eleven issues for our review as we perceive her

statement of the issues. The issues presented by this appeal, as we perceive them, are:

(1) Whether the trial court erred by denying Ms. Watkins’ petition to

increase alimony.

(2) Whether the trial court erred in modifying the parties’ parenting plan to

name Mr. Watkins primary residential parent.

(3) Whether the trial court erred in its evidentiary decisions.

(4) Whether the trial court erred by ordering the testimony of the parties’

children to be entered under seal.

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(5) Whether the trial court erred by not awarding her a new trial on matters

of the division of the parties’ debt.

(6) Whether the trial court erred in dismissing any remaining issues.

Standard of Review

We review the trial court's findings of fact de novo on the record, with a presumption

of correctness, and will not reverse those findings unless the evidence preponderates against

them. Tenn. R. App. P. 13(d); Berryhill v. Rhodes, 21 S.W.3d 188, 190 (Tenn. 2000). Insofar

as the trial court’s determinations are based on its assessment of witness credibility, we will

not reevaluate that assessment absent clear and convincing evidence to the contrary. Jones

v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002). Our review of the trial court’s conclusions on

matters of law, however, is de novo with no presumption of correctness. Taylor v. Fezell,

158 S.W.3d 352, 357 (Tenn. 2005). We likewise review the trial court’s application of law

to the facts de novo, with no presumption of correctness. State v. Thacker, 164 S.W.3d 208,

248 (Tenn. 2005).

Discussion

We turn first to the trial court’s order placing the testimony of the minor children

under seal. Although in her Statement of the Issues Ms. Watkins’ asserts the trial court’s

decision to seal the children’s testimony was error, she fails to address this issue in the

Argument section of her brief. Issues raised in a Statement of the Issues but not addresses

in the Argument portion of a brief are waived. Tenn. R. App. P. 27(1)(7); Randolph v.

Meduri, — S.W.3d —, 2011 WL 721474 (Tenn. Ct. App. Mar. 2, 2011). We accordingly

decline to addressthisissue. Similarly, Ms. Watkins has waived her evidentiary issues where

she fails to identify in her Brief which evidentiary determinations of the trial court she

contends were in error.

We turn next to Ms. Watkins’ assertion that the trial court erred by failing to modify

the parties’ decree of divorce with respect to the division of the parties’ debt, or to grant her

a new trial on that issue. The trial court’s final judgment dividing the parties’ property and

debts in the final decree of divorce was entered on June 23, 2010. That judgment was not

appealed. A court’s division of property in a divorce action is not subject to later

modification. Johnson v. Johnson, 37 S.W.3d 892, 895 (Tenn. 2001). This issue is without

merit.

We turn next to Ms. Watkins’ assertion that the trial court erred in denying her petition

to increase alimony. The party seeking to modify an award of alimony bears the burden to

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demonstrate that a substantial and material change in circumstances has occurred that

warrants modification. Bogan v. Bogan, 60. S.W.3d 721, 728 (Tenn. 2001). A material

change in circumstances is one that occurred since entry of the divorce decree and that was

not anticipated by the parties at the time the final decree was entered. Id. (citations omitted).

A change in circumstances is substantial “when it significantly affects either the obligor’s

ability to pay or the obligee’s need for support.” Id.

In this case, the trial court made no specific findings of fact in its September 20, 2012,

order, but incorporated findings of fact and conclusions of law set forth in the transcript of

the August 17, 2012, hearing of the matter. Upon review of the transcript, we find no

specific findings of fact with respect to whether a material and substantial change in

circumstances had occurred since entry of the final decree of divorce. However, the trial

court found that Ms. Watkins was in need of increased alimony, but that Mr. Watkins did

not have the ability to pay more than he was currently paying.

Rule 52.01 of the Tennessee Rules of Civil Procedure provides, in relevant part:

In all actions tried upon the facts without a jury, the court shall find the

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

entry of the appropriate judgment. The findings of a master, to the extent that

the court adopts them, shall be considered as the findings of the court. If an

opinion or memorandum of decision is filed, it will be sufficient if the findings

of fact and conclusions of law appear therein.

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

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

Iman v. Iman, No. M2012–02388–COA–R3–CV, 2013 WL 3788259, at *12 (Tenn. Ct. App.

July 16, 2013)(citation omitted). The amended version of Rule 52.01, however, requires the

court to make these findings notwithstanding the absence of a request by a party. Id.

Generally, we will vacate a trial court’s ruling on a claim when the trial court fails to make

appropriate findings of fact and conclusions of law that enable this Court to determine the

basis for the trial court’s judgment. Id. at *12-13.

As noted above, it does not appear that the trial court made any findings with respect

to whether a material change in circumstance had occurred warranting an increase in

alimony. However, the trial court appears to have reached the conclusion that Ms. Watkins

was in need of additional alimony but that Mr. Watkins did not have sufficient income to pay

more than $750 as ordered in 2010. Notwithstanding this conclusion, the trial court made

no findings with respect to either party’s income or expenses or needs. We accordingly

vacate the trial court’s judgment denying Ms. Watkins’ petition to modify alimony and

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remand this matter to the trial court for further findings and, if necessary, further proceedings

on this issue.

We turn next to Ms. Watkins’ assertion that the trial court erred by modifying the

parenting plan to name Mr. Watkins primary residential parent. Upon review of the record,

the evidence does not preponderate against the trial court’s determination that a material

change in circumstance occurred and that modification of the parenting plan was in the

children’s best interest. The trial court found that Ms. Watkins’ health and mental health

issues were “significant enough to rise to the level of a change in circumstance.” It further

found that Ms. Watkins had neither stable housing nor stable employment. Nothing in the

record contradicts these findings. Indeed, Ms. Watkins does not dispute them. The trial

court considered the statutory factors and determined that modification of parenting time was

in the children’s best interest, and there is nothing in the record to preponderate against this

finding. We affirm on this issue.

We finally turn to whether the trial court erred by dismissing any remaining issues.

Ms. Watkins does not indicate in her brief what issues remain unresolved in this matter, and,

in light of the foregoing discussion with respect to the parties’ property, we cannot discern

unresolved issues. With respect to Ms. Watkins’ request that Mr. Watkins be ordered to

abide by the court’s orders, it is so ordered.

Holding

In light of the foregoing, the judgment of the trial court is vacated with respect to Ms.

Watkins’ petition for modification of alimony. This matter is remanded to the trial court for

findings and further proceedings, if necessary, on that issue only. The remainder of the trial

court’s judgment is affirmed. Costs of this appeal are taxed one-half to the Appellee,

Kenneth Danny Watkins, and one-half to the Appellant, Rhonda Sue Watkins. Mr. Watkins’

request for attorney’s fees on appeal is denied. This matter is remanded to the trial court for

further proceedings consistent with this Opinion.

_________________________________

DAVID R. FARMER, JUDGE

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