### IN THE CO URT OF APPEALS OF TE NNE SS EE AT KNOX VILLE Nov em be r 10 , 20 10 Ses si on
KATH Y H. WRI GHT v. J AMES CHARLE S WRI GHT

A p p e a l f r o m t h e C h a n c e r y C o u r t f o r K n o x C o u n t y N o . 1 4 7 7 5 3

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. D a l e Y o u n g , J u d g e 1

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I n this post-divorce proce eding , the trial court g rante d the fathe r sole custody and decision making authority over the parties’ minor children. The mother appea led. We aff irm the judgme nt of the trial court on a ll issues.

T e n n . R
. A p p . P
. 3 A p p e a l a s o f R i g h t ; J u d g m e n t o f t h e C h a n c e r y C o u r t A f f i r m e d ; C a s e R e m a n d e d

J O H N W

. M C C LA R T Y , J

. , d e l i v e r e d t h e o p i n i o n o f t h e C o u r t , i n w h i c h C H A R LE S D

. S U S A N O , J R

. , a n d D

. M IC H A E L S W IN E Y , J J

. , j o i n e d

.
T h o m a s F

. M a b r y , S e y m o u r , T e n n e s s e e , f o r t h e a p p e l l a n t , K a t h y H

. W r i g h t

.
C r a i g L

. G a r r e t t , M a r y v i l l e , T e n n e s s e e , f o r t h e a p p e l l e e , J a m e s C h a r l e s W r i g h t

.
O P I N I O N

I
. BACK GR OUND

The parties, Kathy H. Wright (“Mo t h er ”) and J ames Charles Wright (“F ather ”), wer e divorce d on the g rounds of irrec oncilable differ ence s on October 18, 2002. They have three children
-- one adult daug hter a

nd two minor daug hters. During the two y ear s following the divorce , the parties’ rela tionship deter iorated further ; on April 30, 2004, Mother filed peti t i o ns to Modify Child Support, for Contempt, and to Modify Permane nt Parenting Plan. Over the next two y ear s both parties filed a flurry of motions ag ainst the

T he l at e J udge Youn g, Circ uit Cour t J udge fo r Bl ount Coun ty, was si tt ing by int er cha nge. 1other. I t appea rs that there wer e at least three hear ings reg arding Mother deny ing Fa ther visitation 2 with his children over holiday brea ks. Mother also fil ed t h re e m otions to rec use the trial judge during this ti me per iod.

The trial court order ed Mother on two separ ate occa sions to comply with the visitation
arr ang ement of the Permane nt Parenting Pla n

. T h e re cord reve als that the trial court order ed the parties to mediate on sever al occ asions throug hout 2005 and 2006 to no avail.

The trial of t his case finally beg an on J une 6, 2007; af ter a series of hear ings, it conclude d
on J une 9, 2009. On September 11, 2009, the trial court issued its Final Orde r including thirty pag es devoted to the c ourt’s finding s of fa ct. Mother f iled a timely

appea l from the F inal Orde r.

II. ISS UES

Mother’s issues a

re r estated a s follows:

1. Whether the trial court abused its discretion in deny ing Mother’s motion to rec use.
2. Whether the evidenc e is insufficient and whether the evide n ce p re pondera tes ag ainst the trial cour

t’s finding s reg arding custody of the pa rties’ minor childre n.
3. Whether the trial court err ed in providing for the parties’ 15-y ear -old daug hter to testify in open co u rt as o p posed to in chambe rs in the absenc e of the parties and whether it was err or to deny

Mother’s motion for a

psy cholog ical eva luation.

4. Whether the tr i al court err ed in making any order s rela tive to custody when Mother raises for the first time on appea l an asser tion that t h er e was a pending juvenile cour

t matter.
5. Whether the trial c ourt err ed in re g ard to a n order of June 20, 2008.

6. Whether the trial c ourt err ed in deny ing Mothe r’s orde r of pr otection.

7. Whether the trial c ourt err ed in deny ing the petition for cr iminal contempt.

8. Whether the trial court err ed in deny ing an emerg ency petition for modifica tion of co- pare nting.

9. Whether the evidenc e preponde rate s ag ainst t h e aw ar d of judgme nt to Fa ther

T her e is no dis put e tha t the re had bee n a lon g his tor y of pro ble ms r e l a t i n g t o the cus tod y 2

ar ra ngem ent

. -2-ag ainst Mother.

10. The “ Final Or der” should be stay ed pending appea l.

11. Whether the trial court err ed in its enfor ceme nt/modification o f t h e marital dissoluti on ag ree ment in light of Mother’s post-trial reque st tha t the trial court take judicial notice pursuant to Tenne ssee Rule of Evidence 201 of the meaning of “SFR” (Substitut e for Return) of the Fe dera l I ncome Tax R et u rn of J ames C. Wright and Kathy H. Wright for

the ca lendar

y ear 2002.

III. ST ANDAR

D OF REVIEW

We revie w the trial court’s finding s of fac t de novo with a presumption of corr ectne ss unless the evidenc e preponde rate s to the cont ra ry

. Tenn. R. App. P. 13(d). We revie w the trial court’s conclusions of law de novo without a presumption of corr ectne ss. Campbell v. Fla. Steel Corp. , 919 S.W .2d 26, 35 (Tenn. 1996)

. An appellate court will find an abuse o f discretion “only when the trial court applies an incorre ct l ega l s tandar d, rea ches an illogica l decision, bases its decision on a clea rly err oneous assessment of the evidenc e, or employ s rea soning that cause s an injusti ce to the complaining party .” Francois v. W

illis , 205 S.W .3d 915, 916 (Tenn. Ct. App. 2006).

IV. DISCUSSIO N

I t appea rs that Mother did not file the full transcr ipt of the trial; rathe r, she filed excerpts of testimony . Clearly

excluded are rele vant portions of testimony from Mother, F ather , and F ather ’s
curr ent Wife. Significa

ntly , the filings provided do not rela te to the issues raised on appea l. As we noted in Piper v. Piper , No. M2005-02541-COA- R3-CV, 2007 WL 295237 (Tenn. Ct. App. M.S., Fe b. 1, 2007),
[a] n inco m p l et e ap p ell ate rec ord is fata l to an appea l on the fac ts. “This Court’s authority to revie w a trial co u rt ’s d ec ision is limit ed to those issues for which an adequate leg al re cord ha s been pr eser ved.” . . . T his Court has stated:

Where the issues raised g o to the evidenc e, there must be a transcr ipt. I n the absenc e of a transcr ipt of the evidenc e, ther e i s a conclusive presumption that there was suff icient evidenc e bef

ore the trial court to support its judgme nt, and this Court must there fore aff irm t h e judgme nt. . . . Piper , 2007 WL 295237, at *4 (c itations omi tted).

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First, it is arg ued by Moth er that the t rial j udg e erred by failing to rec use hi mself from the
case

.
I t is a long standing rule that the rec usal decision is within the sole discretio n o f t h e t ri al judge , and such a decision will not be reve rsed unless a clea r abuse of that discretion is found on the fac e of the rec ord. See Moody v. Hutchison , 247 S.W .3d 187, 202 (Tenn. Ct. App. 2007); see also State v. Odom , 336 S.W .3d 541, 575-77 (Tenn. 2011). I n the prese nt case , Mot h er has failed to provide a rec ord wher e such evidenc e of an abuse of discretion can be found. I nstead, Mother cites routinely to her own pleading s and appea rs to base the entire rec usal motion on the fac t that the trial judge decide d ag ainst Mother. Howeve r, Mother fails to consider that “[a]n adver se ruling does not
nece ssarily

indicate bias or

prejudice .” State v. Re id , 213 S.W .3d 792, 816 (Tenn. 2006)

. Fur thermore , by not providing any rele vant citations to the rec ord bey ond her own unsworn pleading s, Mother has failed to comply with Rule 6 of the Tenne ssee Court of Appea ls which states in part: (b) No complaint of or r eliance upon action by the trial cour

t will be c onsidered on appea l unless the arg ument contains a specific ref ere nce to the pag e or pag es of the
rec ord wher e such action is rec orded. No asser tion of fac t will be co n s i d er ed on appea l unless the arg ument contains a ref ere nce to the p age o r p age s of the rec ord wher e evide nce of

such fa ct is rec orded.

Tenn. Ct. App. R. 6( b). Simul taneously , Mother has fa iled to comply with Rule 27 of the Rules of Appellate Procedur e which require s that all arg uments contain “cit ati ons to the authorities and appropr iate ref

ere nces to the rec ord

. . . .” Tenn. R. App. P. 27(a)

. Thus, all “fa cts” Mother prese nts reg arding the trial judge ’s prejudice will not be considere d beca use “fa ilure to comply with the Rules of Appellate Procedur e and the rules of this Court waives the issue[] for revie w.” Bean v. Bean , 40 S.W .3d 52, 54-55 (Te nn. Ct. App. 2000).

B.

Mother approa ches three issues with one confusing arg umen t

. Fi rs t , it is arg ued that the evidenc e preponde rate s ag ainst the trial court’s decision to modify the Permane nt Parenting Plan in favor of Fa ther. Then, it is arg ued that the trial court err ed in requiring the minor children to testify in open court. This arg

ument is combined in a baff ling manner with the arg

ument that it was an err or for the trial court to not order a psy cholog ical evalua tion for the minor child re n

. Fi nally , Mother arg ues the trial court err ed in making any dispositi ve order s when there was a pending action in the Knox C ounty

J uvenile Court.

As pointed out by Fa ther, the trial court made a detailed finding of fac t within its Final Orde r

-4-reg arding the testimony of all three daug hters. The court e x plained that it did not allow the minor

children to testify in chambe rs beca use “[Mother’s] attorney has exercised a considera ble deg ree of contac t with the children. Also, it appea rs t h at [ Mother] has manipulated the children as to their testimony .” Ba sed on the limit ed rec ord befor e us, we find no abuse of discretion in the trial court’s ruling reg arding the testimony of the minor childre n.
Mother has failed to submit substantial portions of transcr ipt that wo u l d perta in to the custody issue. Wit hout a com p l et e an d acc urate rec ord, we cannot deter mine if the evidenc e preponde rate s ag ainst the finding s of fac t and conclusio n s o f law that a materia l chang e of circ umstances had occur

red supporting the chang e in custody and revised pare nting schedule

. We
are , there fore , require d to presume that the evidenc e supports the fac tual finding s enumer ated in the Final Or der. Bishop v. Bishop , 939 S.W .2d 109 (Tenn. Ct. App. 1996):

Wit hout any eviden t i ar y re cord, there is no way to deter mine if the evidenc e preponde rate s ag ainst the [J udg e]’s finding s of fa ct. I nstead, we are require d to presum e t h at the evidenc e, if it had been prese rved, would support the [J udg e]’s fac tual finding s.
939 S.W .2d at 110.

As to the trial cour

t deny ing the opportunity for the children to have a psy cholog ical exam and a possible conflicting cou rt action in the Knox County J uvenile C ourt, Mother has neg lected to addre ss either issue in any materia l fashion whatsoeve r. There are n o ci t at ions to any rele vant aspec ts of the re cord, a

nd there is absolutely

no citation to authority

perta ining to these issues.
“[T] his Court is under no duty to blindly sear ch the rec ord i n order to find

. . . evidenc e to support [Mot her’ s arg uments].” Pearman v. Pearman , 781 S.W .2d 585, 588 (Tenn. Ct. App. 1989) (citations omitted). Thus, having ag ain failed to comply with R u l e 6 o f the Tenne ssee Court of Appea ls and with Rule 27 of the Rules of Appellate Procedur e, the above issues are waived. Tenn. R. App. P. 27; Tenn. Ct. App. R. 6.

C.

For her f ifth issue, Mother conte nds that the trial cour t erre d by making a sua sponte or der
on J une 20, 2008. This issue rela tes to whether the trial court could dismiss Mother’s filing befor e the Refer ee to set child support. Mother schedule d the child support matter afte r the trial had alre ady
commence d.

Mother’s arg ument contains neither citation to the rec ord nor to any leg al authority to support setting aside t he order. Mother makes sever al statements in her arg ument claimed to be fac ts, but these are completely unsupported by the rec ord. Statements s t an d i ng alone in briefs are not evidenc e. Outpatient Diagnostic Ctr. v. Christ ian , No. 01A01-9510-CV- 00467, 1997 WL 210842,

-5-at *2 (Tenn. Ct. App. M.S., Apr. 30, 1997). Mother cannot expect this court to cre ate her arg ument

wholesale for her when the court is pr ovided only a piece meal tapestry of the trial court’s actions. Sneed v. Bd. of

Prof’l Responsibility of

Supreme Court , 301 S.W .3d 603, 615 (Tenn. 2010). We find
no evidenc e to show that the trial court abused its discretion in its ruling

. Fur ther, we consider this issue waived pursuant to Rule 27 of the Rules of Appellate Procedur e. Tenn. R. App. P. 27; Bean , 40 S.W .3d at 54-55.

D.

Mother nex t attempts to arg ue that the trial cour t erre d in deny ing thr ee motions: an Order of Protection, a Petition for Criminal Contempt, and an E m er gen cy Petition for Modification of Co-Parenting

. I n a continuing example of the defic iency of Mother’s brief, these issues are entirely unsupported by citations to t h e re co rd or t o any authority

. She has filed no transcr ipt or evidence from any hear ings. Mother “ca nnot expect this court to do [her] work for [her]. This Court is under
no duty to verify unsupported alleg ations[,]

. . . or for that matter [t o] consider issues raised but not [supported by arg ument].” Bean , 40 S.W .3d at 56. Having ag ain failed to comply with the applicable rules, these issues are waived. T enn. R. App. P. 27; Tenn. Ct. App. R. 6.

E.

Mother next arg

ues that the evidenc e preponde rate s ag ainst the judgme nt awa rded to Fa ther and that the Final Orde r of the trial court should be stay ed p en d ing this appea l. Although the arg ument is that the evidence is ag ainst the weight o f t h e j u d gment, Mother cites only to her own pleading s. Unsworn pleading s are not evidence

. Outpatient D iagnostic Ctr. , 1997 WL 210842, at *2. There is no arg ument whatsoeve r prese nted for why the trial court’s order s should be stay ed. Both issues ar e ther efor e without merit.

F
. Mother’s final two issues state that the trial court err ed in its manner of enfor ceme nt of the 2002 Marital Dissolution Ag ree ment and that it f ailed to take appropr iate notice of the meaning of Substi tute for Return reg arding Fa ther’s 2002 tax return. As the only rele vant cit at i o n s are to unsupported pleading s which cannot contra dict any of the trial court’s detailed finding s of fac t, these issues are also waive d. Tenn. R. App. P. 27; Tenn. Ct. App. R. 6; Sneed , 301 S.W .3d at 615.

-6-V. CONCLUSION

The judgme nt of the trial court is aff irmed due to the incomplete appellate rec ord. Costs of the appe al ar e asse ssed to the appe llant, Kathy H. Wright.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ J O H N W

. M c C L A R T Y , J U D G E

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