### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE PENNY SUE MINCY v. CHARLES DAVID MINCY, SR. Direct Appeal from the General Sessions Court for Blount County

No. S-3665 William R. Brewer, Jr., Judge

No. E1999-02304-COA-R3-CV - Decided April 28, 2000

This is a di vorce case. In the judgment granting a divorce, the trial court awarded the plaintiff, Penny Sue Mincy (“Mother”), custody of the parties’ minor children. Thereafter, the parties filed various and sundry post-judgment motions, including the motion of the defendant, Char les David Mincy, Sr. (“Father”), asking the court to reconsider its award of custody and vest the children’s custody with him. Following a subsequent hearing, the trial court enter ed an order, whic

h provides, inter alia , that “[t]he Motio

n for Change of Cus

tody is granted, based upon the testimony, the total history of the case, and the report of Mr. Tillery, and c

ustody of the parti

es’ minor childre

n shall be with[Father], subject to the Standing Orde rs of this Court reg arding visitation.”

Mother appeals, arguing (1) the trial cour

t improperly

considered the psychological report submitted byMr. Tillery; (2) the trial court failed to reconsider its final custody d e termination despite the ineffective legal assistance of Mother’s former counsel; and (3) the trial court erred

in failing to make findings of fact and conclusions of

law. We affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of t

he Gene ral Sessions Court A ffirmed; Case Remanded
S USANO , J., delivered the opinion of the court, in which F RANKS and S WINEY , JJ., joined. Martha Meares and Anne M. Stair, Maryville, Tennessee, for the appellant, Penny Sue Mincy. H. Allen Bray, Maryville, Tennessee, for the appellee, Charles David Mincy, Sr. OPINION

I. Background Following a contes ted he aring, the trial court granted Mother an absolute divorce by way of an amended final judgment of divorce entered on September 18, 1996. The judgment awarded Mother the sole care, custody, and control of the parties ’ minor childr en and set forth Father’s visitation rights.1 The date that the r eport was sent to th

e attorneys is not r

eflected in the r

ecord before u

s. 

### -2- On September 20, 1996, Mother filed a petition for a no contact order and a restraining order, alleging wrongful acts on t he part of Father

with respect t

o the chi ldren. Father moved for a new trial or for reconsideration of the final judgment of divorce on October 10, 1996. In this motion, Father stated that he shou

ld have custody of

the children bec

ause he had retired and thus could care and provide for th

em on a full-time ba

sis.
On January 22, 1997, the trial court ordered an independent psychological evaluation of the children to be conducted by William Tillery, a licensed clinical social worker. The court stated that “[s]uchevaluation shall be conducted with all due speed so that said evaluationcan be presente d to the Court, if possible, on the date of the next scheduled Court hearing....” Tillery met with the Mincy family on six occasions. On May 19, 1997, Tillery submitted a sealedpsychological evaluation directly to the court. He “later” 1 forwarded copies of the report to counsel for the pa

rties.
At a hearing on September 12, 1997, the court ordere d a change in custody of the par ties’ children from Mother to Father. According to the Statement of the Evidence submitted by Mother, the court announced that its decision “was based solely on Mr. Tillery’s evaluation.” The Statement of the Evidence does not reflect that Mother objected

to the court’s con

sideration of Tille

ry’s report. On September 30, 1997, Mother filed a motion requesting the court to m ake findings of fact and conclusions of law. The court entered its last order relating to custody on November 17, 1997. This order, granting Father’s motion for a change in custody, relates that the decision was “based upon the testimony, the total history of the case, and the report of Mr. Tillery....” The order does no t recite findings of fact. Mother subsequently terminated her attorney and employed attorney Martha Meares, who was substituted as counsel on November 20, 1997. On December 12, 1997, Mother, through her new counsel, moved the court to e ither reconside

r or set aside its la

st order changing

custody. This motion was based on thre e grounds: (1) the final order was “partially based on a report by Mr. William Tillery which had not been entered into evidence” and thus the ruling was improper because the trial court considered matters not before the court; (2) Mother was not properly and

adequately represented

at the hearing; and (3) the court failed to make findings of fact and conclusions of law as requested by Mother’s former attorney. Following a hearing, the court denied the motion, stating that “ [Mother’s] trial counsel in thi s case did not object to the Court considering the psychological report of Mr. Tillery, and further that there [were] other

good and sufficient reasons for this Court to change custody from that of [Mother] to [Father].” Thecourt noted that, while the motion raises several reasons why the court should set

### -3-

aside the judgment, the oral argument made by Mother’s counsel related on ly to the first issue concerning the psychological rep ort. Mother appeals, raising

the same three iss

ues raised in her

motion toreconsider or set aside the last order changing custody.
II. Standard of Review
A trial court

has broad discretion in determining matters of custody. Parker v. Parker , 986 S.W.2d 557, 563 (Tenn. 199 9); Gaskill v. Gaskill

, 936 S.W.2d 626, 631 (Tenn.Ct.App. 1996). Such determinations are factually driven and involve a consideration of multiple factors. Adelsperger v. Adelsperger , 970 S.W.2d 482, 485 (Tenn.Ct.App. 1997). Our review is de novo upon the record of the proceedings below; however, the record comes to us with a presumption of correctness that we must honor “unless the preponderance of the evidence is otherwise.” Rule 13(d), Tenn. R. App. P.; see also Hass v. Knighton , 676 S.W.2d 554, 555 (Tenn. 1984). The trial court’s conclusions of law are reviewed de novo with no presumption of cor rec tness. Jahn v. Jahn , 932 S.W.2d 939, 941 (Tenn. Ct. App. 1996).
III. Analysis A. The Psychological Report The first issue raised on this appeal is whether the trial court erred in considering Tillery’s psychological report. Mother argues that the court should not have considered the report as evidence because (1) the report wa

s submitted directl

y to the court; (2) the report is inadmissible hearsay; and (3) the parties were not afforded an opportunity to cross-examine Tillery. We disagree. The court, in ord ering apsychological evaluation, stated that the “evaluation shall be conducted

with all due speed so that said evaluati on can be presente

d to the Court

, if possible

, on the date of the next sc

heduled Court hea

ring.” (Emphasis

added). There is no evidence that either of the parties objected

to this proposed procedure whe reby Tillery woul

d present his repo

rt directly to the court. Furthermore, Tillery submitted his letter on May 19, 1997, and , according to the Statement of the Evidence, he “later forwarded copies of this report on to counsel for the parties.” There is nothing in

the record to indicate that the parties did not obtain the letter before the hearing held some four months later on September 12, 1997. In addition, Mother ’s counsel did

not object to the letter’s admissibility. Therefore, we find and hold that it was not error for the trial court to consider the letter in rendering its decision.
Even if the trial court

did err in conside

ring the letter --

and we have held

th at it did not -- such an error would not have been reversible under the circumstances of this case. The trial court’s order of November 17, 1997, reflects th at it considered “the testimony, the total history of the case, and the report of

Mr. Tillery” in

rendering its decision. Even if Tillery’s letter were excluded, we cannot say that the rema

ining evidence --

the testimony and th

e total history o f the case -- preponderates against the trial court’s factual determinations, because we do not have a tr anscript

### -4-

of the original contested

hearing. Infact, we do not have a transcript of any of the hearings below. The Statement of the Evidence primarily addresses the hearing of September 12, 1997, and makes a passing reference to a hearing held on November 26, 1996. The original complaint for divorce was filed September 12, 1995, and there were, as far as we can discern from the technical record, at least two hearings in addition to the hearings addressed in the Statement of the Evidence. Ther

efore, with the record as it exists before us, we are unable to review all of the evidence upon which the tria l court based its decision, i.e. , the testimony and the total history of the case, to determine whether the evidence preponderates

against that deci

sion. Without a rec

ord containing all

of the facts heard

by the trial court, we a

re unable to

review the facts de novo , and thus, we must assume that the record, had it been preserved in its entirety, would have contained sufficient evidence to support the decision of the trial court. See Sherrod v. Wix , 849 S.W.2d 780, 783 (Tenn.Ct.App. 1992).
We recognize that the Statement of the Evidence reflects that the trial court “announced that [the] custody decision was based solely on Mr. Tillery’s evaluation.” Ev en if the court ma de this statement at the hearing, however, the statement is of no import. “A Court speaks on ly through its written judgments, duly ente red upon its

minutes. Therefore, no oral pronouncement is of any effect unless and until made a part of a written judgment duly entered.” Sp arkle Laundry & Cleane rs, Inc. v. Kelton , 595 S.W.2d 88, 93 (Tenn.Ct.App. 1979). The order entered following the hearing under discussion states that the trial court considered more than just Tillery’s letter, and, sinc e this other material is not included in the record before us, we must presume the trial court was correct.
In summary, we find and hold that the tr ial court did not err in considering Tillery’s letter when it rendered its decision, and, even if it had so erred, such

an error would not be reversible under the circumstances of this case. See Rule 36(b), Tenn. R. App. P. B. Ineffective Assistance of Counsel
Mother next argues that her former attorney’s failure to object to the admissibility of T illery’ s letter and the manner in

which it was presented to the court reflects ineff

ective assistanc

e of counsel, which in turn renders erroneous the trial court’s refusal to grant Mother’s motion to reconsider or set aside its last custody order. Again, we disagree. Generally, there is no constitutional right to effective a ssistance of coun sel in civil cases. Thornburgh v. Thornburgh , 937 S.W.2d 92 5, 926 (Tenn.Ct.Ap p. 1996). Theref

ore, relief gen

erally “may not be premised upo n the theory of ine

ffective assista

nce of counsel”

in civil cases. Id

. Some relief may be granted, however, if “the facts are so egregious that justice may require some relief.” Id

. In Thornburgh , the appellant contended tha t her attorney “fail[ed] to pursue discovery procedures,

fail[ed] to notify -- in accordance with a local rule -- opposing counsel of the witnesses [the attorney] intended to call, which resulted in their testimony being excluded, fail[ed] to make an offer of proof regarding the excluded testimony and fail[ed] to seek

a continuance.” Id . We held that such facts were not so egregious as to require relief. Id

. We are of the opinion that the failure of Mother’s former c o unsel to object to the admissibility

of Tillery’s letter and the method by which it was submitted to the tria l court is not “so

### -5-

egregiou s that just

ice may require some relief.” Id . Accordingly, we find and hold that the trial court did not err i

n denying Mother’s motion to reconsider onthe ground that her former attorney did not properly represent her.

C. Failure to File Findings of Fact and Conclusions of Law Mother’s final argument

is that the trial court

erred in failing to properly respond to Mother’s motion for findings of fact and conclusions of law. Rule 52.01, Tenn. R.

Civ. P., provides, in p

ertinent part, a

s follows:
In all actions tried upon the facts without a jury, an d upon request made by any party prior to the entry of judgment, the court shall find the facts specially a

nd shall state separately its conclusions of law thereon and dire

ct the entry of the

appropriate judg

ment. Where the trial court makes no findings of fact or conclusions of law despite a party’s motion requesting same, an appella te court “must con

duct [its ] own independent rev iew of the recor

d to determine where the preponderance of the evidence lies.” See Brooks v. Brooks , 992 S.W.2d 403, 404-05 (Tenn. 1999).
We agree with Mother

that the trial court failed

to make findings of fact and conclusions of law and that it was required to do so, upon Mother’s motion, under Rule 52.01, Tenn. R. Civ. P. We note, additionally, that under such c ircumstances, we

are generally t

o conduct our

own review of the record to determine where the preponderance of the evidence lies. See Brooks , 992 S.W.2d at 404-05. It is, howe

ver, the appella

nt’s responsibility

to furnish

the appellate

court with a record “that will en abl e that court to reach the issues raised.” Word v. Word , 937 S.W.2d 931, 933 (Tenn.Ct.App. 1996). As we have already sta ted, we are unab

le to conduct an a

ppropriate

review because the record is incomplete, and we must therefore pre sume the trial court’s action to be correct. Sherrod , 849 S.W.2d at 783. Moreover, Mother neglected to prevent or nullify the harmful effect of the trial court

’s failure to make

findings of

fact and conclusions of law. Though Mother raisedthis issue in her motion, the trial court’s order denying the motion states that it was not argued at the hearing. We are of the opinion that Mother, by he r failure to p ursue this issue below, abandoned

it. We are not re

quired to grant relief

to a party “who failed to take whatever action was reasonably

available to prevent

or nullify the harmful effect of an error.” Rule 36(a), Tenn. R. App. P. Accordingly, we

decline to rever

se the trial court

on this basis.
IV. Conclusion The judgment of the tria

l court is affirmed. This case is rema nded for collect

ion of costs assessed below, p

ursuant to applica

ble law. Costs on app

eal are taxed to

the appellant.