The Importance of Preserving the Record for Appeal (and the Importance of Having a Divorce Attorney)

April 28, 2013
By The McKellar Law Firm, PLLC on April 28, 2013 3:19 PM |

In Higgins v. Higgins, No. E2012-01376-COA-R3-CV (Tenn. Ct. App. April 16, 2013), Tennessee divorce attorneys learn the importance of preserving the record for appeal; if there is no record, the Court of Appeals must presume that the trial court's findings and conclusions are correct. Also, Tennessee family lawyers also learn that a party's decision to represent himself or herself pro se are not an excuse for failing to preserve the record.

The facts of the case are as follows: In 2010, Wife and Husband separated after twenty years of marriage; Wife subsequently filed for divorce. Husband was provided with an additional thirty (30) days before trial to acquire a new attorney after his former attorney withdrew from the case; however, he declined to do so, instead choosing to represent himself pro se. The parties then attended trial to address remaining issues of property division. At trial, it was clear to the trial court that the parties had similar health, financial resources, earning capacity, and ages. Also, the trial court noted that the marriage was long-term, and that the parties did not have any separate property. Accordingly, the trial court fairly equally divided the parties' property ($34,000 to Husband and $38,000 to Wife) and expressed its opinions in a memorandum opinion.

Testimony revealed that Wife's $50,000 gift and a prior sale of a residence that was in the name of both Husband and Wife was the source of funds by which the parties acquired their marital residence. The court granted this residence to Wife "subject to the first mortgage as well as two-thirds of the home equity line of credit (HELOC)," and determined that it was a marital asset. Husband was responsible for the remaining one-third of the HELOC. After trial, Wife filed a motion requesting that the court amend the memorandum opinion to elaborate on other matters; the court made amendments and entered a divorce decree and final judgment at a second hearing, which Husband declined to attend. Husband then filed a motion to amend, alleging that the court's initial memorandum opinion differed from the final decree. The trial court only made a few amendments to the final judgment. As such, Husband filed this appeal, claiming that the court improperly classified the marital residence as separate property and that the division of the marital property was inequitable because the trial court failed to account for his "substantial" debt. He also alleged that the trial court wrongfully awarded alimony to Wife.

On appeal, the Court of Appeals addressed the following issues: (1) "Did the trial court err in its classification of the parties' property and did the court err in failing to equitably divide the marital estate?" and (2) "Did the trial court err in amending the final order to include an award of alimony?"

Regarding the classification and division of property, the Court of Appeals found that the trial court properly classified the home as a marital asset and that the trial court averred that Husband did not provide evidence of his alleged debts; since Husband presented no record, the Court had no basis on which to challenge the trial court's position. Finally, the Court found that neither the trial court's memorandum opinion nor amendment reflect any alimony award; the amount was purely an attempt to allocate the mortgage debt between Husband and Wife.

The most important aspect of this case is that the Court of Appeals noted that Husband entirely failed to provide a record of trial, and that his self-representation was not an excuse for his failure to do so. The Court warned that appellants are responsible for "prepar[ing] a record which conveys a fair, accurate, and complete account of what transpired in the trial court with respect to the issues which form the basis of the appeal." If they fail to do so, then the appellate court is required to "assume that the record, had it been preserved, would have contained sufficient evidence to support the trial court's findings."