### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE Assigned on

Briefs D ecember

11, 2001
ROGER DALE THOMAS v. GAIL TH OMAS Appeal from the Chancery Court for Giles County No. 9631 Jim T. Hamilton, Judge

No. M2001-01226-COA-R3-CV - Filed August 2, 2002

This appeal involves a husband’s objection to the classification, valuation, and dist ribution of the parties’ property made by the trial court as part of the divorce. The parties agreed to and participated in a procedurally unconventional process for submittingthe prope rty issuesto the cour

t. Each p arty met separately with the trial court, submitted her and his respective positions regar ding the classification and valua

tion of the

parties’ property, and submitted proposed distribution plans and other “exhibit s” and do cumenta tion. Afte r meeting witheach party separately in chamber s, the trial court ordered the property to be divided according to the wif e’s proposal. Becau se neither a transcript nor a sta tement of the evide nce take n by the tr ial cour t was file d, we must

affirm the trial court’s judgment on the very fact-specific issues ra ised by the husband. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed and Remanded
P ATRIC IA J. C OTTRELL , J., delivered the opinion of the court, in which B EN H. C ANTRELL , P.J., M.S., joined. W ILL IAM C. K OCH , J R ., J., filed a concurring opinion.

Robert L. Marlow, S helbyville , Tennes see, for the appe llant, Roge

r Dale T homas. Joseph Wa

rd Henr y, Jr., Pula ski, Tennessee, f or the ap pellee, Gail C. Tho mas. OPINION
The record before

us does not include either a transcript of the proceedings or a statement of the evidence pursuant

to Rule 24( c), and t

herefo re our a bility to review the decision of the trial court on appeal is very limited. However, from the contents of the technical record, we ascer tain the following to be the factual background of the dispute and the procedura l history le ading to th is appeal.-2- I. Facts and History
The parties were married on April 20, 1972, and have no minor children. They sep arated in August of 1996, a

nd on July 1 5, 1997, H

usband su ed Wife

for a div orce ba sed on irr econcil able differe nces. Wife answered, agreeing there we re irreconcilable differences a nd attaching a Marital Dissolution Agreement that outlined the distribution of all the parties’ property.
Wife later re

pudiated the prev iously subm

itted Mar ital Dissol

u tion A greement. She reanswered and counter-claimed

for divor ce from Husband b ased on in appropr iate mar ital cond uct. Shortlythereafter, Husband’s attorney wi thdrew fr om repre sentation . Wife r eceive d a defa

ult judgmentagainst Husband that gra nted a div orce to W ife and d ivided the

marital p

roperty in accordance with the proposal she submitted to the court.
Four months later, Wife filed

a petition for contempt against Husband for fail ure to co mply withthe marital property division as previously ordered by the court. H

usband fi led a Motio n to Vacate and Set Aside Judgment by Default based on the fac t that ther e was no n otice giv en to Husband or his atto

rney and that the p

roperty division wa s inequita

ble . T he trial court issued an order vacating and setting aside the division of marital property in the final order of divorce. The trial court, ho wever, ordere d the abso lute div orce gran ted to the wife to remain in full force. The trial of the matter for the pur poses of d

istrib ution of the marital estate was set, but was continued upon the agreement of the parties. During the continuance or on the trialdate, the parties apparently entered into an agreement withthe trial court

for a method of deciding the property distribution issues. Theyreferred to it as a fo rm of alte

rnative dispute r esolution or media tion. At thi s “sessio n,” each party su bmit ted a proposed division of marital assets as well as his or her own valuation of those assets. After he aring from eachparty separately, and considering the exhibits presented by e ach, the trial court issued a letter to counsel stating that

the Wife’s proposal was being accepte d by the court and that her counsel was to draft an order to that effect.
The trial court issued an order that memorialized the division of the couple’s property and directed the parties to comply with the order. Earlier on the same day, Husband filed a Request for Findings of Fact andConclusions of Law as well as a Motion to Reconsider the Property Division.
No additiona

l documen

ts appea r in the te chnical

record unti l eighte en months later when Wife filed a Motion to Set Husband’s Motion to Reconsider and Request for Findings of Fact and Conclusion s of Law. The tria l court iss ued two or

ders den ying both of

Husband’ s motions.
Husband appealed presenting the following issues for our review: (1) whether the trial court erred by failing to make findings of fact and conclusions of law even after a request by one of the parties; (2) whe

ther the trial cou rt erre d in class ifying the

real pr operty tit led in Wif e’s sole name as separa te property not

subject to distribution; and (3) whether the trial court erred in the valuation and distributi on of the marital e state with regard to certa in specif ically en umerate d items.1 The “heari ng” or “medi ati on ses sion” was hel d April 23, 1998, well before revi sions to Tenn. R. S. C t. 31 in

2001.

2 Amendm ents to Rul e 31, by order fi led September 4, 2001, gi ve additi onal speci fic aut hority t o tri al j udges in alt ernati ve dispute r esolut ion proceedings and al low some procedures to be de veloped “by Local Rule, by Standi ng Order or i n cons ult ati on wit h the part

ies .” Tenn. R. Sup. Ct . 31 §§ 2 0-2 4 (2 001 ). Th e case s cited in this op inion , as we ll as the case b efore u s, involve p roceed ings occ urring p rior to the 20 01 am endm ents. -3- II. The Procedure Used Below
The dispute in

this matte

r is over the clas sificati on, valua

tion and di stribution

of the pa rties’ property. A trial on those issues had been set. On the trial date, 1 the trial court co nducted w

hat is variousl y calledby the par

ties as a “mediation

process ,” an “a

lternati ve dispute

resolution session,” and a “hearing.” The trial court’s fina l order explains the basis for the procedure use d:
The parties entered into a mediation procedure which was agreed to by both parties and their counsel and acknowledged in open Court whereby each party would meet privately in chambers with the Court to offer testimony concerning the distribution of the estate of the parties, present exhibits, and other docume ntation.
In the trial

court’s letter to

counsel i nforming

them of itsholding, th

e court r eferr ed to thes e appearances as a “me diation he aring.” Neither partydisputes that the agreement referred to in the trial court’s order was made or that this was the procedure agreed to. Husband does not object on appeal t o the proc edure, m

erely to the result. Regardle ss of the te

rminology

use d , the procedure followed by the court at the request or with t he agreement of the parties and their counse l was not a mediation nor any other form of alternative dispute resolution recognized by Rule 31 of theTenness ee Supre me Court. The

Supreme Courtof Tenne ssee, in

the exercise of its responsibility to supervise theadministr ation of ju stice in our co urts, has established “a syste m of cour t-annex ed alter

native di spute re solution me thods” wh ose purpose is to “make the process of dispute r esolution more ef ficient, more ec onomical , and equ ally fair.” Tenn. R. Su

p. Ct. 31 pmbl. The procedures comprising this system havebeen promulgated as Rule 31 of the Rules of the Supreme Court. Rule 31 gov erns all c ourt-an nexed a lternati ve dispute resolution. This court has previously determined that all cour t-annexed alternative di spute resolution proceedings must be co nsistent w ith Rule 31 and that courts have no authority to participate in any other type of di spute re solution pr ocess or in any man

ner inco nsistent w ith Rule 31. 2 Environmental Abateme nt, Inc. v. Astrum R.E. Corp ., 27 S.W.3d 530, 540 (Tenn. Ct. App. 2000); Team Design v. Gottlieb , No. M1999-00911-COA-R3-CV, 2002 Tenn. App. LEXIS 508 (Tenn. Ct. App. July 18, 2002) (no Tenn . R. App. P. 1 1 applica tion); Harris v. Hall , M2000-00784-COA-R3-CV, 2001 Tenn. App. LEXIS 856 (Tenn. Ct. App. Nov. 28, 2001) (no Tenn. R. App. P. 11 application filed).
The procee dings a

uthorized by Rule 31 include, among others, mediation and judicial settlement

conference. Tenn. R. Sup. Ct. 31 § 2. Mediation is “an informal process in which a3 The 200 1 am end me nts to R ule 31 provi de, “wi thout the c onsent

of the part ies, no judge presi ding over a matter may preside over a Judicial Settl emen t Conference respecting that matter.” Tenn. R. S. Ct. 31 § 20 (20 01).

4 The King case invo lved the sa me trial court and a t least one of the same attorneys a s the case be fore us. -4- neutral person, c alled a mediator, c onducts di scuss ions amon g the dispu ting parti es designed to enable them to reach a mutually acceptable agreement among themselves on all or any part of the issues in dispute.” Tenn. R. Sup. Ct. 31 § 2(f). A “judicial settlement conference” is “a mediation conducted

by a judicial officer other than the judge before whom the c ase will b e tried. ” Tenn. R. Sup. Ct. 31 § 2(e). 3 As the de finitions m ake cle ar, a me diation, in cludin g one conducted by a judicial officer, is a settlement procedure; its purpose is to help the partiesresolve their dispute by agreem ent, as an alternative to resolution through the well-established procedur es governing litigation. Nothing in the definition of mediation or elsewhere in Rule 31 aut horizes a mediator, including a judge acting as a mediator, to resolve the dispute by imposing his or her judgm

ent as to the correct resolution. Team Design , 2002 Tenn. App. LEXIS 508, at *19-*20; Harris , 2001 Tenn. App. LEXIS 856, at *13-*15. If the parties are unable in mediation to reac h an agreeable solution, they retain their rights to have the courts resolve their dispute through litigation. If, in fact, the parties herein agreed to “me diation” or to some oth er alter

native di spute r esolution procedu

re, they could not g ive the tr

ial cour t the auth ority to re solve the mediatio n b y order rather thanagreement of the parties and could not authorize the trial judge before whom the litigation was pending to conduct the mediation. Tenn. R. S. C t. 31 (1995 ); Environmental Abatement , 27 S.W.3d a

t 540-41; Team Design , 2002 Tenn. App. LEXI S 508, at *1 9-*20; Harris , 2001 Tenn. App. LEXIS 856, at *11-*13. Consequently, if the order appealed from is the product of a procedure agreed to by the part ies as an alternative to litigation, the order must be vacated as beyond the author

ity of the t

rial cou rt.
In Kin g v. King , M2001-00275-C0A-R3-CV, 2001 Tenn. App. LEXIS 913, at *11 (Tenn. Ct. App. Dec. 13, 2001) (no Tenn. R. App. P. 11 application filed), this court considered a procedure very s imilar to the one used herein. 4 We determined that the procedure wa s not a mediation, but , instead, was “an agreed-upon method of pre senting evidence to the trial court.” Id . at *10-*11. If, in fact, the part

ies b elow simply agreed to an alternative method for getting evidenc e before the trial court upon which the court wa s t o base its ruling, the result of that agreement was a waiver o f the righ

t to prese

nt a dditiona l releva

nt testimon

y through other witnesses wit h knowledge of the facts, the right to be present when the other party testified, and the right to cr

ossexamination, all of which are waivable. Although the trial court appa rently au thorized court reporters to be present

at the se parate present ation of e ach par

ty, neithe r party to ok advan

tage of t his offer. The combination of this decision and the waiver of the right to be present during the othe r party’s testimony resulted in neither party knowing the details of the other’s testimony, even afterthe fact, a nd the subs equent in ability to preserve that testimony for appellate review either through a transcript or a statement of the evidence.5 Wife’s brief states that the parties a nd the ir c ounsel si gned an agr eed order , whic h was the n ente red by t he
cou rt, outlin ing th e pro ced ure. T he ap pellate reco rd d oes n ot inc lude that or der. -5- The pivotal question , then, is whether the parties, through counsel, agreed: (1) to a “mediation” processwiththe expectation that agreement of the parties was necessary to resolution; or (2) to an unusual method of present ing evide nce, whi le still ope

rating in t he litigat ion model, with the expectation the court woul d r esolve the dispute based upon the evidence presented in this unusual procedure.
The record does not include a formal written agreement or agreed order out lin ing the specifics of the pa

rties’ a greeme nt. 5 The tria

l co urt’s final order sets out all we know about the agreem ent. That order is silent on the question of whether t he parti es agreed to resolution by agreement

through mediation or whether they agreed that the court would re solve their dispute, but certain alterations in presentation of evidence would be made. However, the language used by the trial court sug gests that the parties, through their counsel, were awar e that the sepa rate he arings wi

th the trial court were “to offer testimony . . . present e xhibits, and other documentation.”
Most determinative, however, is the fact that neither party has objected, at the trial level or on appeal, to the proce dure used. Neither has claimed that the procedur e as described in the trial court’s final order was not what he or she agreed to; neither has claimed a different understanding of the procedure he or she agreed to follow. Husband has not claimed that he thought the procedure was a true mediation, which would resolve the di spute only if the pa rties re ached a

greeme nt. Therefore, we must conclude that the procedure used below wa s simply an unusual or alternative method for presenting evidence to the trial court, entered into by informed agreement. III. Distribution of Property Upon Divorce In this appeal, Husband asserts that the trial court

improper ly classif ied as Wi fe’s se

parate propert y a specified

parcel of real estate and her interest in real property owned jointly with a third p arty. In additio n, Husband objects to the tria l court’svaluatio n of spec ific items of marita l property, and also asserts that the division of property was inequitable. Upon the dissolution of a marriage , courts are called upon to divide the assets the parties accumulated

during the marriage. Such de cisi ons are very fact-specific, a nd many circumstances surrounding the property, the parties, and the marriage itself play a role. The task involves several steps, the first bei ng to dete

rmine whe

ther an a sset is subj ect to division at all.
Tennessee, being a “dual property ” state, rec og ni ze s t wo di st in ct cl as se s o f p ro pe rt y: “marital property” and “separate property .” Batson v. Batson , 769 S.W.2d 849, 856 (Tenn. Ct. App. 1988). The distinction is important because, in an action for divorce , only

marital p roperty is divided be tween the part

ies. Tenn . Code Ann . § 36-4-1 21(a)( 1); Brock v. Brock , 941 S.W.2d 896 , 90 0 (Tenn. Ct. App. 19 96). Sepa rate pr operty is not par

t of the ma

rital est ate subject to d ivision.-6-

Cutsinger v. Cutsinger , 917 S.W.2d 238, 241 (Tenn. Ct. App. 1995). Accordingly , when it comes to divi ding a divorcing couple’s proper ty, the court should initially identify the separ

ate propert

y , if any, belonging to each

party. Anderton v. Anderton , 988 S.W.2d 675, 679 (Tenn. Ct. App. 1998).
The genera

l rules fo r deter mining whe

ther pro pertyis separate or marital are found in statute. Tenn. Code Ann. §§ 36-4-121(b)(1 ) and -121(b)(2) . Of course, the courts mu st apply these rule s to the specific

facts of each ca se. In ad

dition, co nduct between the parties can affect the classification of the prope rty , and ce

rtain co nduct ca

n creat e presum ptions as to

separate or joint ownership. See, e.g. , Kincaid v. Kincaid, 912 S.W.2d 140, 142 (Tenn. Ct. App. 1995); McClellan v. McClellan , 873 S.W.2d 350, 351 (Tenn. Ct. App. 1993); Barnhill v . Barnhill , 826 S.W.2d 443, 452 (Tenn. Ct. App. 1991); Batson , 769 S.W.2d at 858. Any such presumption, however, can be rebutted with evidence of circumstances or communications cl early indica ting an intent contrary

to the presumption. See McClellan , 873 S.W.2d a t 351; Batson , 769 S.W.2d at 858. Therefore, the determination of whether propert y is jointly

or separ ately held depends upon the circumstances. Langford v . Langford , 421 S.W.2d 632, 634 (Tenn. 1967). Whether an asset is separa te prope rty or marita l proper ty isa question of fact. Cutsinger , 917 S.W.2d a t 241; Sherrill v. Sherrill , 831 S.W.2d 293, 295 (Tenn. Ct. App. 1992). Thus, a trial court’s classification decisions are entitled to great weight on a ppeal. Wil

son v. Moo re , 929 S.W.2d 367, 372 (Tenn. Ct. App. 1996). These decisions will be presumed to be correct unless the evidence preponderates otherwise, Hardinv. Hardin , 689 S.W.2d 152, 154 (Tenn. Ct. App. 1983), or unless they are based on an error of law. Mahaffey v. Mahaffey , 775 S.W.2d 618, 622 (Tenn. Ct. App. 1989).
After classification of the parties’ property as either mar ital or s epara te, the tr

ial cour t is charged with equitab ly divi ding, distributing, or assigning the marital property in “proportions as the court de ems just.” Tenn. Code Ann. § 36-4-121 (a)(1) . The cou rt is to consider several factors in its distribution. Tenn. Cod e Ann. § 36 -4-121( c) (listing the factors to be considered). The court may consider

any other factor s necess a ry in det ermining the equities between the parties, Tenn. Code Ann. § 36-4-121(c)(11), except that division of

the marit al prope rty is to be

made with out rega

rd to marital fault. Tenn. Code Ann. § 36-4-121(a)(1).
Th e c ourt’s distribution of property “is not achieved by a mechanical applica tion of the statutory factor s, but rat

her by co nsiderin g and wei ghing the m ost relev ant fac tors in li g ht of the unique facts of the case.” Batson , 769 S.W.2d at 859. An

equitabl e distribu

tion is not necessar

ily
an equal one. Word v. Word, 937 S.W.2d 931, 933 (Tenn. Ct. App. 1996). Thus, a division is not rendered inequita ble simply because it is not precisely equal, Cohen v. Cohen , 937 S.W.2d 823, 832 (Tenn. 1996); Kinard v. Ki nard , 986 S.W.2 d 220, 230 (Tenn. Ct. App. 1998). Similarly, equity does notrequire that each party rece ive a share of every piece of marital prope rty. King v. King, 986 S.W.2d 216, 219 (Te nn. Ct. App. 1998); Brown v. B rown , 913 S.W.2d 163, 168 (Tenn. Ct. App. 1994).
The trial cou

rt’s goa l in a divor

ce case is to divide

the ma rital property in an esse

ntially equitable manner, and equity in such cases is dependent on the facts of each case. The f airness of-7-

a particular division of proper ty betwee n two divor

cing par ties is judg ed upon itsfinal re sults. Watters v. Watte rs , 959 S.W.2d 585, 591 (Tenn. Ct. App. 1997). Becau se dividin g a mar ital esta te is a process guided by

considering all relevant factors, including those listed in Tenn. Code Ann. § 36-4-121(c), in light of the facts of a part icular case, a tr ial court has a great deal of discretion concerning the manner in which it divides marital property. Smith v. S mith , 984 S.W.2d 606, 609 (Tenn. Ct. App. 19 97); Wallace v. Wallace , 733 S.W.2d 102, 106 ( Tenn. Ct. App. 1987 ). Appel late courts ordinarily defe

r to the trial judg e’s dec ision unle ss it is inco nsistent w ith the factors in Tenn. Code Ann. § 36-4- 121(c), or is not supported by a preponde rance of the evidence. Wilson , 929 S.W.2d at 37 2; Brown , 913 S.W.2d at 168.
As part of it s respons ibility to divide th

e martia l estate equitably , the tria l cou rt must determine the value of the property included. The value to be placed on an asse

t is a ques tion of fa

ct. Kinard , 986 S.W.2d at 231. Parties and their witnesses often do not ag ree on th e value o f specif

ic items in the marital estate, and, in that situation, trial courts may place a value on the property

that is within the range of the values presented by the evidence. Wallace , 733 S.W.2d at 10 7. Appell ate courts review valua tion findi ngs as o ther f indi ngs of fact, and a

trial court’s determination of value will be upheld unless the evidence preponderates ag ainst it. Tenn. R. App. P. 13(d).

IV. Standard of Review Without Evidentiary Record
As se t out above , every i ssue rai sed by Hus band is fa ct-depe ndent. In essence , he asks u s to find the evidence preponderated aga inst the trial court’s finding. However, the record before us is very limit

ed. The t echnica l recor d include s a

designation of separate property and a proposa l for distribution of marital property for each party, with attachments, which apparently were prese nted to the trial court as part of each party’s testimony. We have no record of any testimony explaining the filings or

establish ing other facts re levant to a court’s distribution of assets upon divorce. Where the issue on a

ppeal is o ne of fa

ct, this court

must be presented with a record that allows us to make the review neces sary under Tenn. R. App. P. 13. Because our jurisdiction is appellate only, our review power is limited to those factual and legal issues for which an adequate legal recordhas been preserved. Tenn. R. App. P. 13(c); Dorrier v . Dark , 537 S.W.2d 888, 890 (Tenn. 1976).
It is the duty of the appellant to prepare an adequate rec ord i n order to allow meaningful review on appea

l. Tenn. R. App. P. 24(

b); State v. Bunch , 646 S.W.2 d 158, 1 60 (Tenn. 1983); McDonal d v. Onoh , 772 S.W.2d 913, 914 (Tenn. Ct. App. 1989). Allegations contained in pleadings are not evidence. State v. R oberts , 755 S.W.2d 833, 836 (Tenn. Crim. App. 1988). Recitations of the facts contained in a brief, or arguments of c ounsel, also are not evidence. Id

. When a trial court decides a cas e without a jury, its findings of fact are presumed to be correct unless the e vidence in the record preponderates aga inst them. Tenn. R. App. P. 13(d). Where factual issues are ra ised, without an appellate record containing the facts, this court cannot perform a de novo review or determine the p r eponderance of the evidence

. Sherrod v . Wix , 849 S.W.2d 780, 783 (Tenn. Ct. App. 19 92). The refore , in such cases, we must assume that the record, had it been preserved, would have contained sufficie nt evidence to support the trial court’s factual6 According to the tr ial court ’s or der over ruli ng or denyi ng the Moti on for Findi ngs of Fa ct a nd Conclus ions of L aw , Plaintiff

[Husband] was given untilOctober 10, 1999, to s ubmit proposed findi ngs of f act and conclus ions of l aw and none were submit ted. No furt her communicat ion wit h the Pl aintiff

[Husband] concerni ng thi s i ssue was had unt il the f il ing of the Moti on to Set fil ed by Defendant

[Wife] on Janu ary 2 5, 20 01.

No order grant ing this opportuni ty appe ars in the record before us . However, Husband does not deny he was given the o ppo rtun ity to s ubmit pr oposed f indi ngs and conclusions, but instead argues t hat it is i nappropriate for a tr ial court to s hift thi s dut y to a pa rty. -8- findings. Id ., McDonal

d , 772 S.W.2d at 914; Gotten v. Gotten , 748 S.W.2d 430 , 432 (Ten n. Ct. App. 1988); Irvin v. City of Clark sville , 767 S.W.2d 649, 653 (Tenn. Ct. App. 1987).
The issues ra

ised by Hu sband involve th e weight, sufficiency and preponderanc e of the evidence underlying the trial court’s findings. We must conclusively presume that there wa s sufficient evidence to s uppor t the trial court’s findings. Coakley v. Daniel , 840 S.W.2d 367, 370 (Tenn. Ct. App. 1992). Accordingly, we must affirm the judgment of the trial court.

V. Request for Findings of Fact and Conclusions of Law
On ap peal, Husband asserts that the trial court erred by not providing, upon his re quest , Findings of Fact a

nd Conclus ions of La

w. Rule 52. 01 of the Tennesse e Ru les of Civil Procedure provides , in pertin

ent part :
In all actions tried upo n the facts without a j ury, and upon req uest made by any pa rty prior to the ent ry of judg ment, the

court sha ll find the facts specially and sha

ll state separately its conclusions of law thereon.
Husband r

equeste d more specific findings hou rs befor e the tria l court e ntered j udgment. 6
The trial court’s Final Order incorporated the Wife’s proposed property division. By doing so, the trial court made findings of fact with regard to the identifica tion, value, classification and distribution of the proper ty. Husband w ants us to r equire t he trial c ourt to ex

plain the reasonsit chose Wife’s valuation over his in various instances and why the court decided that some p

roperty was separa

te rathe r than ma

rital. We are not c onvinced

that the c ourt must ju sti fy its f actual determinations in response to a request for findings of fact.
In any event, we cannot

say that more specific findings would have any effect on our decision because of the record presented to us on fact-specific issues. We have no evidentiary basis t o determine: (1) whe

ther the evidenc e preponderate s against the cour t’s valu ation of

any spec ific asse

t; (2) whether the trial court misclassified any particular asse t; or (3) whether

the ultimate division was equitable. In thi s situation, we cannot say that the degree of specificity of the tria l court’s factual-9-

findings has any effect on the outcome of the appe al. Consequently, the judgment would not be set aside even if we found the trial court should have made additional or more specific findings. Tenn. R. App. P. 36(b).
VI. Conclusion
In conclusion, the deci sion of the trial cou rt is aff irmed. Cos ts of the a

ppeal ar e assess ed to Roger Dale Tho mas, for

which ex ecution m ay issue i f neces s ary, and the ca se is remanded to the trial court for any further proceedings whic h may be necessary and are consistent with this opinion.

___________________________________ PATRICIA J. COTTRELL, JUDGE