IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
May 14, 2015 Session
SHARON TAGG v. JAMES TAGG
Appeal from the Circuit Court for Shelby County
No. CT00042508 Gina C. Higgins, Judge
No. W2014-01767-COA-R3-CV – Filed May 26, 2015
This is a post-divorce case concerning the enforcement of a marital dissolution
agreement, which the trial court incorporated into the divorce decree. The marital
dissolution agreement required Appellant to pay Appellee‟s monthly rent. Appellant
made two or three payments, then stopped. The Appellee filed several petitions and
complaints seeking to enforce the marital dissolution agreement. Because the trial court
did not make sufficient findings of fact and conclusions of law as required by Tennessee
Rule of Civil Procedure rule 52.01, we vacate the judgment of the trial court and remand
the case with instructions to conduct an evidentiary hearing and to issue sufficient
findings of fact and conclusions of law.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Vacated
and Remanded
KENNY ARMSTRONG, J., delivered the opinion of the Court, in which J. STEVEN
STAFFORD, P.J., W.S., and ARNOLD B. GOLDIN, J., joined.
Ronald D. Krelstein, Germantown, Tennessee, for the appellant, James W. Tagg.
Eric H. Espey, Germantown, Tennessee, for the appellee, Sharon R. Tagg.
OPINION
I. Background
James W. Tagg (“Appellant”) and Sharon R. Tagg (“Appellee”) (together, “the
Taggs”) were married in 1978. Ms. Tagg filed suit for divorce on January 29, 2008,
citing irreconcilable differences. As part of their divorce proceedings, the Taggs signed
a Marital Dissolution Agreement (“MDA”) dated May 22, 2008. Two sections of the
MDA are relevant to this appeal.
First, Paragraph 7 of the MDA states, in pertinent part:
In exchange for relinquishing her interest in the marital residence so as to
allow the sale or transfer of the marital residence, [Mr. Tagg] shall be
responsible for the payment of [Ms. Tagg]‟s rent. Said rent is currently
$1,300.00 monthly; however, [Mr. Tagg]‟s obligation to pay [Ms. Tagg]‟s
rent or mortgage shall continue until [Ms. Tagg] economically no longer
needs [Mr. Tagg]‟s assistance. Both [Mr. Tagg] and [Ms. Tagg] shall
agree that [Ms. Tagg] no longer needs the assistance.
The second relevant section, Paragraph 25, states that “[f]ailure of either party to insist
upon strict performance of any of the provisions of this agreement shall be construed as a
waiver of and any subsequent default of the same or similar nature.”
On June 4, 2008, the Shelby County Circuit Court finalized the parties‟ divorce by
final decree and incorporated the MDA into the final divorce decree. According to Ms.
Tagg‟s deposition testimony, Mr. Tagg made two or three rent payments immediately
following the entry of the divorce decree, but made no further payments thereafter. In
response, on December 3, 2010, Ms. Tagg filed a “Petition for Enforcement of Marital
Dissolution Agreement,” alleging that Mr. Tagg had failed to meet his obligation to pay
her rent. On February 2, 2011, Mr. Tagg responded to the petition, arguing that Ms.
Tagg had waived her rights to the rent payments under Paragraph 25 of the MDA and that
the MDA was an unenforceable contract. The trial court entered an order dated March
28, 2011, holding that the MDA was an enforceable contract. Without a specific finding
on Mr. Tagg‟s waiver argument, the trial court also ordered Mr. Tagg to pay rent to Ms.
Tagg. The order reserved the issues of arrearage and attorney‟s fees.
On June 6, 2011, Ms. Tagg filed a “Petition for Scire Facias for Citation for Civil
and Criminal Contempt,” claiming that Mr. Tagg had refused to comply with the trial
court‟s order requiring him to pay Ms. Tagg‟s rent. Mr. Tagg filed a motion to dismiss
the petition for contempt on June 16, 2011. Our record appears incomplete, because the
next filing contained in the record is Mr. Tagg‟s July 10, 2014 answer to a complaint. It
is unclear what complaint this answer is in response to. On July 25, 2014, the trial court
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entered an order holding that the MDA was enforceable in its entirety, and that Paragraph
25 of the MDA did not excuse Mr. Tagg‟s failure to make payments pursuant to
Paragraph 7. The trial court also awarded Mrs. Tagg $57,200 for breach of contract and
$2,500 in attorney‟s fees.
II. Issues
Appellant raises two issues as stated in his brief:
1. Whether the trial court erred when it found that Appellee did not waive her right to
rent payments under Paragraph 25 of the MDA.
2. Whether the trial court erred when it found that Paragraph 7 of the MDA was an
enforceable provision.
III. Standard of Review
This case was tried without a jury. Accordingly, we review the findings of fact
made by the trial court de novo, with a presumption of correctness unless the
preponderance of the evidence is to the contrary. Tenn. R. App. P. 13(d). The trial
court‟s conclusions of law, however, are reviewed de novo and “are accorded no
presumption of correctness.” Brunswick Acceptance Co., LLC v. MEJ, LLC, 292
S.W.3d 638, 642 (Tenn. 2008).
IV. Analysis
Unfortunately, we do not reach the substantive issues in this case due to procedural
shortcomings. On review of the record in this case, we have determined that the trial
court failed to make sufficient findings of fact and conclusions of law. Tennessee Rule
of Civil Procedure 52.01 mandates that “In all actions tried upon the facts without a jury,
the court shall find the facts specially and shall state separately its conclusions of law and
direct the entry of the appropriate judgment.” Id. (emphasis added). Prior to July 1,
2009, trial courts were not required to make findings of fact and conclusions of law
unless requested by the parties. See Poole v. Union Planters Bank N.A., 337 S.W.3d
771, 791 (Tenn. Ct. App. 2010). Rule 52.01 now mandates that trial courts make
findings of fact and conclusions of law regardless of the parties‟ request. This
requirement is not a “mere technicality.” See Hardin v. Hardin, No.
W2012-00273-COA-R3-CV, 2012 WL 6727533, at *3 (Tenn. Ct. App. Dec. 27, 2012)
(quoting In re K.H., No. W2008-01144-COA-R3-PT, 2009 WL 1362314, at *8 (Tenn.
Ct. App. 2009)). “[F]indings and conclusions facilitate appellate review by affording a
reviewing court a clear understanding of the basis of the trial court‟s decision.” Lovlace
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v. Copley, 418 S.W.3d 1, 34 (Tenn. 2013).
“There is no bright-line test by which to assess the sufficiency of factual findings,
but „the findings of fact must include as much of the subsidiary facts as is necessary to
disclose to the reviewing court the steps by which the trial court reached its ultimate
conclusion on each factual issue.‟” Lovlace, 418 S.W.3d at 35 (citing 9C CHARLES
WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURES § 2571 at 219-233 (3d ed. 2005)).
Although Mr. Tagg raised the waiver issue in the trial court, the trial court did not make
any findings as to whether the Appellee waived her right to rent payments. As noted
above, Paragraph 25 of the MDA states that the provisions of the MDA are waived if a
party does not insist on “strict performance.” The trial court‟s first order, dated March
28, 2011, merely held that the MDA in its entirety was enforceable, and it made no
mention of waiver. The trial court‟s second order, dated July 25, 2014, states, in relevant
part, that “The Court reaffirms its prior ruling that Paragraph 25 of the MDA does not
excuse the defendant‟s failure to make the payments as required by paragraph 7 of the
MDA.” From these statements, we cannot determine the “steps by which the trial court
reached its ultimate conclusion” on the factual issue. In fact, the orders do not reveal
whether the trial court adjudicated the waiver issue at all.
The question of whether Ms. Tagg waived her right to rent payments from Mr.
Tagg is a question of fact, and nothing in the trial court‟s orders suggests that the trial
court considered this issue. The trial court‟s conclusion that Paragraph 25 of the MDA
does not relieve Appellant of his obligation to pay rent is merely a legal conclusion
regarding the contract itself. Furthermore, the orders do not address what constitutes
“strict performance” for the purposes of waiver in Paragraph 25 of the MDA. Because
the trial court did not address these issues, we conclude that the trial court did not comply
with Tennessee Rule of Civil Procedure 52.01.
When a trial court‟s order fails to meet the requirement of Rule 52.01, “the
appropriate remedy is to „vacate the trial court‟s judgment and remand the cause to the
trial court for written findings of fact and conclusions of law.‟” Hardin, 2012 WL
6727533 at *5 (quoting Lake v. Haynes, No. W2010-00294-COA-R3-CV, 2011 WL
2361563, at *1 (Tenn. Ct. App. June 9, 2011)). Because the trial court trial did not
comply with Rule 52.01, we vacate the judgment of the trial court and remand the cause
with instructions to issue an order making sufficient findings in compliance with
Tennessee Rule of Civil Procedure 52.01. We surmise that the trial court did not make
sufficient factual findings because there was no evidentiary hearing conducted regarding
whether Ms. Tagg had waived her right to rent payments. To facilitate compliance with
Rule 52.01, we instruct the trial court to conduct an evidentiary hearing to determine
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whether Ms. Tagg waived her right to rent payments from Mr. Tagg.
V. Conclusion
For the foregoing reasons, we vacate the judgment of the trial court. The case is
remanded for such further proceedings as may be necessary and are consistent with this
opinion. Such proceedings should include, but are not limited to, an evidentiary hearing
on the question of whether Ms. Tagg waived the provisions of Paragraph 7 of the MDA,
and proper compliance with Tennessee Rule of Civil Procedure 52.01. Costs of the
appeal are taxed one-half to the Appellant, James W. Tagg, and his surety, and one-half to
the Appellee, Sharon R. Tagg, for all of which execution may issue if necessary.
_________________________________
KENNY ARMSTRONG, JUDGE
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