Lisa Sykes v. Paul Cox

                                                                                          12/20/2023
               IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE
                                October 3, 2023 Session

                             LISA SYKES v. PAUL COX

              Appeal from the Juvenile Court for Montgomery County
                   No. 2020-JV-316 Wayne C. Shelton, Judge
                     ___________________________________

                           No. M2022-00970-COA-R3-JV
                       ___________________________________


In this child custody case, the record transmitted on appeal creates significant doubt as to
whether the trial court’s final order represents its own deliberations and decision. Due to
this concern, and because the judge who previously presided over this case has since retired
from the bench, we vacate the appealed judgment and remand for a new trial.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Vacated and
                                    Remanded

ARNOLD B. GOLDIN, J., delivered the opinion of the Court, in which W. NEAL MCBRAYER
and JEFFREY USMAN, JJ., joined.

Karla C. Miller, Nashville, Tennessee, for the appellant, Lisa Sykes.

Christopher J. Pittman, Clarksville, Tennessee, for the appellee, Paul Cox.

                                        OPINION

        Appellee Paul Cox (“Father”) filed a petition for custody of his minor child
(“Child”). Although the petition was initially filed in the Sullivan County Juvenile Court,
the venue was challenged by Appellant Lisa Sykes (“Mother”) on the basis that all evidence
relative to the custody determination was located in Montgomery County, where Child
resided with her. As a result of Mother’s challenge, the Sullivan County Juvenile Court
ordered the petition transferred to the Montgomery County Juvenile Court (“the trial
court”).

       Ultimately, the trial court entered a judgment designating Father as the primary
residential parent of Child, and Mother thereafter timely filed a notice of appeal to this
Court. Although multiple issues have been raised by Mother, one issue relating to the trial
court’s judgment is of particular concern.

       Notably, among her other raised issues, Mother requests that this Court review
whether the trial court’s final order was a product of the court’s independent judgment. The
practice of allowing litigants to prepare orders with proposed findings of fact and
conclusions of law has been permitted but often cautioned against. Smith v. UHS of
Lakeside, Inc., 

 (Tenn. 2014) (citing Anderson v. City of Bessemer
City, N.C., 

 (1985)); see also Delevan-Delta Corp. v. Roberts, 

 (Tenn. 1981) (expressing a preference for findings prepared by a trial
judge’s own efforts). Our Tennessee Supreme Court has previously discussed the main
concern of such a practice, highlighting “the potential for overreaching and exaggeration
on the part of attorneys preparing findings of fact when they have already been informed
that the judge has ruled in their favor.” Lakeside, 

 (quoting Anderson,

). The adoption of a party-prepared order may constitute reversible error
when the findings do not accurately reflect the trial court’s decision, and the record must
not create doubt that the order, in fact, represents the “trial court’s own deliberations and
decision.” Lakeside, 

.

        In Lakeside, the Tennessee Supreme Court affirmed this Court’s order vacating two
distinct summary judgment orders granted by the trial court. 

 The first order, granting
partial summary judgment against the defendant, was found to be “extremely detailed” but
“essentially a restatement of the arguments contained in Lakeside’s filings in support of its
motions for summary judgment.” 

. As to the second summary judgment order,
the trial court directed the defendant’s attorney to draft it but failed to provide “the grounds
for its decision” from which the order could be prepared. 

 Cf. Hartigan v. Brush, No.
E2020-01442-COA-R3-CV, 

 at *12 (Tenn. Ct. App. Oct. 27, 2021)
(declining to vacate an order written by a party’s counsel because the court had provided
the grounds for its decision in a detailed oral ruling).

       Here, from our careful review of the record on appeal, we are unable to discern
where the trial court made its own independent findings of fact and conclusions of law. On
May 25, 2022, the trial court judge heard arguments on Mother’s petition on whether he
should recuse himself from the case. After Mother’s petition was denied, it was the
expectation of Mother’s counsel that the hearing would later proceed on the custody matter.
Rather than taking additional proof on custody, as Mother’s counsel expected, the trial
judge, apparently relying on the fact that evidence had been taken at prior hearings on
Mother’s petition for an order of protection as well as a hearing on Mother’s petition for a
temporary restraining order, instructed Father’s attorney to prepare a final order concerning
the custody of child.

      While asking parties to prepare orders is not, in and of itself, necessarily
problematic, see 

 here the record does not reflect that the trial court provided any

                                             -2-
independent decision for Father’s order.1 Moreover, the record indicates that the trial court
later signed and entered Father’s order without any modification. While our review of the
record reflects that the trial judge instructed Father’s attorney to include a finding of
“codependency” and to draft the order according to the relevant statutory factors,2 no other
guidance or instructions were given. Moreover, the record reflects that the trial judge did
not render oral rulings as to the findings it wished to make regarding the referenced
statutory factors, nor did it actually even provide a specific ruling as to which party should
be designated as the primary residential parent. Insofar as the transcript admits, the judicial
task of providing a basis for the court’s ruling (itself then technically unpronounced) was
essentially delegated to Father’s attorney.

       We believe this exchange between the trial court and Father’s attorney fairly
crystallizes our concern:

        [Judge]: Again I want you – in consulting with [Child’s Guardian Ad
        Litem] – I want you to tack on a Finding of Fact, taking up the points. And
        then issue an Order – of a Parenting Plan. And get that ready for me, I can
        sign it as soon as possible …
        [Father’s Counsel]: So, Your Honor, I’m sorry. I just want to be clear.
        What do you want us to do – or me to do?
        [Judge]: I want you to draft an Order – a Final Order, with a Parenting Plan
        – a Finding of Fact with a Parenting Plan. And I want it to closely mimic
        the state – the Tennessee Statute as is possible, which I think has been your
        position.[3]

        Suffice it to say, based on our review of the record, there is serious doubt that the

        1
            As aforementioned, this hearing concerned Mother’s motion for recusal, not the custody matter.
This bears on another point. Aside from the concerns herein as to whether the order appealed was a product
of the trial court’s independent judgment, the record raises a serious question as to what evidence the entered
custody decision was actually based upon and whether the custody dispute itself received the benefit of a
full trial. Although our review of the record indicates that Mother and Father had previously agreed that
certain proof from an order of a protection hearing between them in general sessions court could be
considered as proof in the present Juvenile Court custody dispute, the record also suggests that both had
initially expressed a desire to formally present additional proof in the Juvenile Court. Despite his previous
position on the need for additional proof, Father’s counsel later argued that the court had already heard all
the evidence required to render a judgment. Regardless, the record indicates that neither party was
permitted to enter additional proof on custody, and several statements from the trial judge at the May 25,
2022, hearing appear to suggest that he was motivated by the desire to enter a final order before his
impending retirement. Concerning Mother’s request to have a formal hearing on custody in the Juvenile
Court, the judge remarked, “If you could come up with an eight-day week, we’ll consider it.” He
subsequently commented, however that he did not have any eight-day weeks and that he was “going to
issue an Order -- a Final Order,” stating, “There’s no one else!”
          2
            Presumably the court was referring to the factors codified at Tennessee Code Annotated section
36-6-106.
          3
            We have modified the names listed in the transcript for clarity.
                                                    -3-
order underlying this appeal does not in any respect represent the trial court’s independent
judgment. See Cunningham v. Eastman Credit Union, No. E2019-00987-COA-R3-CV,

 at *5-6 (Tenn. Ct. App. May 27, 2020); see also Mitchell v. Mitchell,
No. E2017-00100-COA-R3-CV, 

 at *7 (Tenn. Ct. App. Jan. 3, 2019).
While in certain cases of this nature we remand the case with instructions for the trial court
to issue a new order reflecting the trial court’s own deliberations and decisions, here, we
take judicial notice that the trial judge who signed the order at issue has since retired from
the bench.4 Given the unusual and questionable posture of this case, we find it appropriate,
as we have in other appeals,5 to vacate the trial court’s judgment and remand the case for
a new trial pursuant to the authority of Rule 36 of the Tennessee Rules of Appellate
Procedure. Tenn. R. App. P. 36 (authorizing this Court to “grant the relief on the law and
facts to which the party is entitled or the proceeding otherwise requires”).6

                                            CONCLUSION

        For the foregoing reasons, we vacate the trial court’s order and remand for a new
trial concerning the custody of the parties’ child.


                                                                s/ Arnold B. Goldin
                                                              ARNOLD B. GOLDIN, JUDGE




        4
           This Court routinely employs judicial notice to discuss the retirement of judges subsequent to the
final judgment on appeal. See Regions Com. Equip. Fin. LLC v. Richards Aviation Inc., No. W2020-00408-
COA-R3-CV, 

 at *7 (Tenn. Ct. App. May 6, 2021); Kathryne B.F. v. Michael David B.,
No. W2014-01863-COA-R3-CV, 

 at * 17 n. 17 (Tenn. Ct. App. July 16, 2015).
         5
           In In Re Estate of Oakley, we determined the judgment on appeal required remand to the trial
court to make certain requisite findings. However, noting that the trial court judge had since retired, we
invoked Rule 36 of the Tennessee Rules of Appellate Procedure to order a new trial. In re Est. of Oakley,
No. M2014-00341-COA-R3-CV, 

 (Tenn. Ct. App. Feb. 10, 2015); see also Brubaker v.
Beckham, No. M2014-01751-COA-R3-CV, 

, at *5 (Tenn. Ct. App. May 26, 2016)
(concluding that the same remedy from Oakley was necessary in light of the trial judge’s retirement).
         6
           In light of our disposition on this matter, we respectfully decline Mother’s request for attorney’s
fees and hold that all other issues raised in this appeal are pretermitted.
                                                    -4-