### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE A ssi gne d onBr ie fs , May 18, 200 7
LI LLI ANE KAMBU v . JEAN KAT ERA

Direc t Appeal from the Circ uit Court for Willi am son Coun ty No. 05245 Hon. Russ H eldm an, Circuit Judge

No. M2006- 01482-COA-R 3-CV - F iled on Ju ly 25, 2007

The Tr ial Court gr anted the parties a divor ce, or deringthe husband to pay child support and alimony in futuro. The husba

nd has appe aled a

rguing the Trial Court abused its discr etion in a war ding the wi fe a lim ony . We mod if

y the a lim ony

awa rd and oth e rw ise a ff

ir m.
Te nn. R . A pp. P .3 App e al a s o f Rig ht ; J udgm e ntof t he Ci r c uitCo ur t A ffirm e d, a s m odi fie d.

H ER SCH EL P I CKE N S F RAN KS , P.J ., delivere d the opinion of the court, in which C H A RLES D. S US ANO , J ., J ., and D. M I CH A EL S WI NEY , J ., joined.

L or ra ine Wad e , N a sh vil le , T e nn e sse e , f or Ap pe lla nt. Virg inia L ee Story , Fr anklin, Tenne ssee, f or Appe llee.

OP IN ION

This divorce a ction was filed on A pril 22, 2005. The part i es ar e natives of Afric a, and had lived in W illiamson County for approxi mately 2 1⁄2 y ear s prior to the filing of the divorc e.
Th e c a se wa s tr ie d o n Apr il 1 8, 20 06 , a nd the ne xt entr

y in t he re c or d is a Memorandum dated April 20, 2006, which simply states: “Upon due consideration, the proposal for relief of P laintiff L illiane Kambu is here by sustained and adopted by the Court. Counsel for Plaintiff shall prepa

re a final judg ment/order.”
A Fina l Decr ee w as ente red that same day , which states that a hea ring was he ld on-2-

April 18, 2006, and that the parties testified throug h sworn interpre ters. The Court g rante d the par ties a divorc e on the g rounds of inappr opriate ma rital conduct, adopted an attache d pare nting plan a nd set child support ac cordingto the attache d workshee t, and t h en t o ok all other matter s under advisement. The ParentingPlan desig nates the w ife a s primary residential parent, and g ives her 283 da y s w iththe c hil dr e n (hu sb and wa s g ive n 8 2 d ay s) . T he Pa re nti ngPlan s tate s th e hu sb and ’s g ro ss monthly income is $1,633.00, and the w ife’s gross monthly income is $1,517.00. The husband wa s order ed to pay

child support in the amount of $627.00 per month, pursuant to the g uidelines.
Another “ Final De cre e of Divorce ” was e ntere d on April 26, 2006, which states that eac h party

was a war ded the pe rsonalty

in hi s / h er possession, and that ea ch par ty would be responsible for

the debts in his/her name

. The wife was a war ded the ve hicle in her

possession, along with its debt, and husband was a war ded the ve hicle in his possession. Each pa rty was a war ded the bank ac counts in his/her name, a nd the wife was g iven a judgme nt a g ainst the husband of $3,536.87, repr esentingone-ha lf of lawsuit settlement proc eeds r ece ived by him. The wife w as aw arde d the parties’ m ar i tal residenc e, and the husband wa s order ed to quitclaim his interest. The Court then
awa rded w ife a limony

in futuro of $500.00 per month, until the wife ’s death or rema rriag e, finding that reha bilitation was not feasible.
The husband filed a Motion to Alter or Amend and the Court e ntered an Or d eron J une 6, 2006, deny

ing the husband’s Motion.
Th e iss ue s r a ise d b y

the pa rt ie s o n a pp e a l are a s f

oll ow s:
1. Whe the r t

he tr ia l c ourt

a bu se d it s d isc re tio n in

awa rd ingwi fe a lim ony

in futuro?
2. Whe the r t

his a pp e a l sh ou ld b e d i s m iss e d f or hu sb and ’s fa ilure to c omp ly wi th Tenn. R. App. P. 24 by

filing a statement of the e vidence ?
3. Whe the r w if

e sh ou ld b e g ra

nte d atto rn e y ’s fe e s o n a

pp e a l?
Th e wi fe a sse rt s th a t the hu sb and ’s a pp e a l shou ld be dis mis se d be c a us e he fa ile d to comply with the require ments of Tenn. R. App. P. 24 by filing a transcr ipt or a s t at em en t of the
e vid e nc e . Sh e fu

rt he r a rgue s th a t in

the a bs e nc e of a tr ans c ri pt o r s tate me nt o f t he e vide nc e , th is C o u rt m u s tei t h er

d i s m i s s t h e ap p ea l o r a ff i rm th e T ri al C o urt ’s ru l i n g.
As thi s Co ur

t ha s p re vio us ly

e xpla ine d r e g ard ing su ff

ic ie nc y of the re c or d o n a

pp e a l: We beg in our ana ly sis by

noting that the a

ppellant has the burden to demonstrate that t h e e v i d e n c e p r e p o n d e r a t e s a g a i n s tth e j u d g m e n to f th e tr i a l c o urt

. A d d i t i o n a l l y, under Rule 24 of the Tennessee Rules of Appellate Procedur e, the appellant has the duty to p repa re the rec ord which c onvey s a fa ir, ac curate, and c omplete ac count of what tra nspired in the trial c ourt reg arding the issues which for m the basis of the-3- appea l. The appellant also has the bur den to provide this Court with a transc ript of the evidenc e or a

statement of the e vi d en ce from which we can de termine whe ther the e v id e n c e p r e p o n d e r a te s f o r o r a g a in s t t h e f in d in g s o f

th e tr ia l c o urt. I nthe absenc e of a

transcr ipt or statement of the evidence, we conclusively presume that the fi nd ing s o f f

a c t ma de by

the tr ia l c ourt

are su pp or te d b y the e vid e nc e and

are c or re c t.
In reML D , 182 S.W .3d 890, 895 (Tenn. Ct. App. 2005 ). S imilarly , in Coa k le yv . D an ie ls , 840 S.W .2d 367, 370 (Tenn. Ct. App.1992), it wa s stated:

Where the issues r aised go to the e vidence , there must be a transc ript. I n the abse nce o f a tr an s c r ip t o f th e e v id e n c e , th e r e is a c o n c lu s iv e p r e s u mp ti o n th a t th e r e was su ff ic ie nt e vid e nc e be fo re the tr ia l court to sup po rt its jud g me nt, and

thi s Co ur t mu st there fore aff

irm the judg ment. This rule likewise a pplies wher e there is a statement of the e vidence which is incomplete. The burden is upon the appe llant to show that the e vid e nc e pr e po nd erat es again st the jud g me nt o f t he tr ia l c ourt . T he burd e n is likewise on the a

ppellant t o provide the Court with a tra nscript of the e vidence or a statement of the e vidence from which this Court ca n deter mine if the evidence doe s preponde rate for or

ag ainst the finding s of the trial c ourt.
I n this case, while the Court did not make ex tensive findings of fa ct on the alimony issue, it did find that the wife was entitled to a limony in f uturo based on the evidenc e pre sented, a nd that reha bilitation was not fea sible. Gene rally speaking , if the t rial court has not made f indings of fac t with respe ct t o the relevant fa ctors an a ppellate c ourt must conduct its “own indepe ndent re view of t he record to deter

mine wher e the preponde ranc e of the evidenc e lies.” Crabtree v. Crabtree , 16 S.W .3d 356, 360 (Tenn.2000)

.

We r e vie w the Tr ial Co ur t’ s f ind ing of fa c t “ de novo”upon the re cord of the Trial Court a ccompa

nied by a presumption of corr ectne ss of the finding s, unless the preponde ranc e of the evidenc e is otherwise .” Te nn. R. App. P. 13(d) (2005). Where we are without an evidentiar y rec ord, we “ must assume that the rec ord, had it been preser ved, would have contained suff icient evidenc e to support the Trial Court’s f actua l findings”

. Sh e rro d v . W ix , 849 S.W .2d 780-783 (Te nn. Ct. App. 19 92 ). I n th is c a se the Tr ia l Co ur t a do pte d a

pa re nti ngpla

n w hic h s tate s th a t th e hu sb and ’s g ro ss income was $1,633.00, a

nd his wife’s g ross income wa s $1,517.00. The findingestablishes that the husband’s g ross income is $116.00 per month more than the wi fe ’s

. T h e ch i ld support set by the Court of $627.00 and the alimony awa rd of $500.00, would lea

ve a gross amount of $506.00 for the husband’s livelihood.

When the Trial C ourt’s findings of fa ct ar e inconsistent with its conclusions of law, the finding s of fa ct must prevail. Ma rti n v . M c Cre ar y , 89 S.W . 324 (Tenn. 1905) . In this case the Court’s finding of fa cts demonstrate s that the husband does not have the a bility to pay the alimony
awa rded by the C ourt. Since t he Trial Court found t hat “rehabilitation” was not fea sible, we be lieve the rig ht to alimony

to the wife should be pr eser ved. According ly , we modify the awa rd of a limony downwar d to $80.00 a month.-4- Th e wi fe se e ks an a

ward of a tto rn e y ’s fe e s, statin g that sh e is f ina nc ia lly un a ble to pay these fe es and that she should be awa rded the fee s as additional alimony . Due to the state of the
rec ord, she is unable to demonstrate that she is entitled to t h e awa rd re quested. Ac cording ly , we aff irm the Trial Court’s J udg ment, as m odified, and assess one-half of the costs of t he appeal to each party

.

_________________________ H ER SCH EL P I CKE N S F RAN KS , P

. J.