Dayne O 'Bannon v. Stephanie O'Bannon ( 2003 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
October 16, 2003 Session
DAYNE SCOTT O'BANNON v. STEPHANIE SUE GRABLE O'BANNON
Appeal from the Circuit Court for Bradley County
No. V-98-642 John B. Hagler, Judge
FILED NOVEMBER 20, 2003
No. E2002-02553-COA-R3-CV
This appeal from the Bradley County Circuit Court questions whether the Trial Court erred in
denying the Wife's proposed relocation to South Dakota and in changing custody of the parties'
children from Wife to Husband. We affirm the judgment of the Trial Court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
WILLIAM H. INMAN , S.J., delivered the opinion of the court, in which HERSCHEL P. FRANKS and
CHARLES D. SUSANO, JR., JJ., joined.
Gregory Scott Kanavos and Henry Franklin Chancey, Cleveland, Tennessee, for the Appellant,
Stephanie Sue Grable O'Bannon
Kimberlee A. Waterhouse, Lenoir City, Tennessee, for the Appellee, Dayne Scott O'Bannon
OPINION
The parties were divorced by final decree entered March 22, 1999 which incorporated a
marital dissolution agreement providing Wife should have custody of the parties' two minor children
- Amy, born February 26, 1995, and Grace, born August 6, 1996,- and that Husband should have
liberal visitation.
After Husband received a certified letter from Wife in which she stated her intention to
relocate to Spearfish, South Dakota, with the parties' children, he filed a petition to oppose the
relocation and to modify custody. While the petition was pending, Husband filed a motion for
immediate temporary custody which was prompted by the parties' youngest daughter having been
attacked by a dog belonging to Wife and Paul Riddle, her new husband. The dog was destroyed
shortly after the attack at the instruction of Mr. Riddle and the motion for temporary custody was
denied with the caveat that the episode would be explored further at the plenary hearing.
A final hearing on the issues of relocation and modification of custody was held in March,
2002. Wife's request to relocate was denied upon findings that (1) the relocation does not have a
reasonable purpose, (2) the relocation "poses the threat of specific and serious harm to the children
which would outweigh the threat of harm of a change of custody" and (3) “that the motive for the
proposed move is vindictive in that it is intended to defeat or deter [Husbands'] visitation with the
children." Custody of the parties two children was changed to Husband based upon a finding of
"substantial and material change of circumstances." Wife's motion to reconsider filed thereafter was
denied and this appeal followed.
Wife presents for review the issues of whether (2) the court erred in denying the request to
relocate, and (2) in changing custody of the children.
Our standard of review in this non-jury case is de novo upon the record of the proceedings
below and there is no presumption of correctness with respect to the Trial Court's conclusions of law.
Campbell v. Florida Steel Corp., 919 S.W.2d 26 (Tenn. 1996) and T.R.A.P. 13(d). The Trial Court's
factual findings are, however, presumed to be correct and we must affirm such findings absent
evidence preponderating to the contrary. Union Carbide Corp. v. Huddleston, 854 S.W.2d 87 (Tenn.
1993).
The Relocation Issue
We first address the issue of whether the trial court erred when it denied Wife’s request to
relocate with the children.
T.C.A. 36-6-108(d) provides that the parent spending the greater amount of time with the
child will be allowed to relocate unless:
(1) The relocation does not have a reasonable purpose;
(2) The relocation would pose a threat of specific and serious harm to the child
which outweighs the threat of harm to the child of a change of custody;
or
(3) The parent’s motive for relocating with the child is vindictive in that it is
intended to defeat or deter visitation rights of the non-custodial parent or the
parent spending less time with the child.
The thrust of Wife’s testimony is that she wishes to relocate to Spearfish, South Dakota
because that is her native home and all her relatives live there. She contends that she could find
employment there “within thirty seconds” and that her new husband’s prospects for finding work
there would be “excellent.” The trial judge found that the best reason the mother gave for the
relocation was that she had had a troubled relationship with her own mother and she wanted to go
back “to where she was so she could rehabilitate that relationship”, and “the Court finds it very
strange that a parent would wait to rehabilitate her relationship with her adult parent at the expense
of the children’s relationship with their parent.”
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We do not agree that the fact that Wife is originally from Spearfish, South Dakota and that
her mother and other relatives live there is sufficient to establish that her intended relocation has a
reasonable purpose and justifies moving these children fifteen hundred miles from their father.
Furthermore, the Wife’s argument that relocation will afford better job opportunities is not
sufficiently supported by the evidence. Wife testified that, although she does not have a job awaiting
her in Spearfish, her intent is to open an insurance agency there. Her current husband testified that
he has made no effort to find employment in Spearfish but believes he would be able to do so.
Doubtless relocation because of a better job opportunity, greater salary, and career advancement
opportunities, establishes a ‘reasonable purpose’ within the meaning of the statute, but mere belief
and hope that career advancement will occur is not sufficient to establish a reasonable purpose for
relocation. Wife cites several cases on which she relies to support her argument that her intended
relocation has a reasonable purpose because of job opportunities, but in each case the party seeking
relocation, or the spouse of such party, had either an actual job or offer of employment in the area
of proposed relocation
In contrast to the uncertain employment future they face in Spearfish, both Wife and her
current husband have stable employment in this area . Wife testifies that she has been employed at
a local funeral home for two years and that she earned $31,000.00 during the year preceding trial.
Mr. Riddle testifies that he has been employed as an automobile salesperson for fifteen years and
would be making between $35,000.00 and $40,000.00 during the year of trial. Mr. Riddle also
testifies that he realizes income from renting mobile homes, mobile home lots and houses in the area.
Under these circumstances we agree with the Trial Court’s determination that Wife’s request to
relocate is without reasonable purpose.
Wife’s announced reason for the proposed move to Spearfish is to reunite with her mother
with whom she had a poor relationship. She presently visits her mother in Spearfish almost yearly
and her mother and step-father travel to Tennessee every year. Her husband, Paul Riddle, has no
connections to South Dakota, and has no reason for the proposed move, but is passively going along
with his wife. As stated, both have lucrative employment in Bradley County where Paul Riddle has
substantial investments. The thrust of testimony offered about what they would do, if permitted to
move, is essentially a vague plan of what they might do rather than a clear purpose for relocating.
The trial judge noted that the real motivation for wanting to move is likely the scandal resulting from
the breakup of Paul and Tina Riddle’s marriage, caused by, according to Tina, the Respondant. The
trial judge further found:
Now, leave that there just for a minute, and then look at some of the
other things that the mother was doing prior to this removal. She was
telling people, and - - it’s a finding of fact by the Court that she told
people, that the father was a pedophile. There is no question about
that. And she admitted it to the father. I misstated that in court. She
didn’t admit it in court. She admitted it to the father and I accredited
his testimony.
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She said he wasn’t a pedophile, so why would she say that? Well, I
think possibly, in getting ready for an unreasonable removal of the
children, to give people an explanation of why she was moving out
of this area, because this father was so terrible. He was a pedophile.
He had raped her. And she changed that somewhat in court, but she
certainly made statements that would give people the impression that
he raped her. She said that he caused them to engage in sex in front
of the children. She said he was a pornographer. It appeared to the
Court that all of these things were done in preparation to make this
move reasonable. I think a parent who would say - - make those
slanderous remarks about another parent has really put his or her
fitness as a parent in question.
Now, there is no evidence that any of this directly affected the
children, but there’s plenty of evidence that it would indirectly affect
the children, because if her feelings about the father were this great,
it would be very difficult for that not to spill over to the children.
And it would be a matter of time before the children would ask the
father what a pedophile was, because the word was being spread
around. And there was no indication that there was any attempt being
made to recall this.
And it was those things that, not only were material changes of
circumstances, in the Court’s opinion, but were also evidence of
vindictiveness with respect to the planned move. And following the
statute and the father’s pleading the Court had to go into
consideration of custody because of the material change of
circumstances.
In Kornblee v. Kornblee, 2001 WL 109385 (Tenn. Ct. App.)[no perm. app. filed], the mother
after receiving an objection to her request to relocate, embarked on a mission to try to limit father’s
access to the children and require supervised visitation. To that end, the mother asserted allegations
that the father was physically and sexually abusive to the children. The allegations proved to be
groundless and this court found that, “Given the vindictive spirit displayed in the record by Mrs.
Kornblee, the trial court did not err in refusing to allow the children to relocate to Wyoming and in
declining to restrict the visitation of the children with their father to supervised visitation.”
We cannot find that the evidence preponderates against the judgment denying relocation.
Rule 13(d) Tenn. R. App. P.
The Custody Issue
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We next address Wife’s argument that the Trial Court erred in changing custody of the
parties two children to Husband.
In a recent opinion, Cranston v. Combs, 106 S.W.3d 641,644 (Tenn. 2003), the Supreme
Court discussed the two step process that a court is required to engage in before making a
determination as to the propriety of modifying custody:
First, the court must determine whether a material change in circumstances has
occurred after the initial custody determination. Although there are no bright-line
rules for determining when such a change has occurred, there are several relevant
considerations: (1) whether a change has occurred after the entry of the order
sought to be modified; (2)whether a change was not known or reasonably
anticipated when the order was entered; and (3) whether a change is one that
affects the child’s well-being in a meaningful way. (Citations omitted).
Second, after finding that a material change in circumstances has occurred, the
trial court must determine whether modification of custody is in the child’s best
interests using the factors enumerated in Tennessee Code annotated section 36-6-
106 (2001). These factors include:
(1) The love, affection and emotional ties existing between the parents and the
child;
(2) The disposition of the parents to provide the child with food, clothing,
medical care, education and other necessary care and the degree to which a parent
has been the primary caregiver;
(3) The importance of continuity in the child’s life and the length of time the
child has lived in a stable, satisfactory environment . . . ;
(4) The stability of the family unit of the parents;
(5) The mental and physical health of the parents;
(6) The home, school and community record of the child;
(7) The reasonable preference of the child if twelve (12) years of age or older.
The court may hear the preference of a younger child upon request. The
preference of older children should normally be given greater weight than those
of younger children;
(8) Evidence of physical or emotional abuse to the child, to the other parent or to
any other person . . . ;
(9) The character and behavior of any other person who resides in or frequents the
home of a parent and such person’s interactions with the child; and
(10) Each parent’s past and potential for future performance of parenting
responsibilities, including the willingness and ability of each of the parents to
facilitate and encourage a close and continuing parent-child relationship between
the child and the other parent, consistent with the best interest of the child.
Tenn. Code Ann. § 36-6-106.
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In short, the statutory scheme and our decision in Kendrick provide a flexible
framework within which a trial court may consider a number of factors in
determining whether to modify a custody decree. Although evidence of
substantial harm or harm to the child is certainly relevant to the trial court’s
determination, the analysis to be applied under Kendrick does not require a
finding of harm or substantial harm to establish a material change in
circumstances.
In Gaskill v. Gaskill, 936 S.W.2d 626 (Tenn. Ct. App. 1996) we held:
Custody and visitation determinations often hinge on subtle factors,
including the parents’ demeanor and credibility during the divorce proceedings
themselves. Accordingly, appellate courts are reluctant to second-guess a trial
court’s decisions. Trial courts must be able to exercise broad discretion in these
matters, but they must still base their decisions on the proof and upon the
appropriate application of the applicable principles of law.
In determining that there has been a material change in circumstances in this case, the
Chancellor found that Wife “has had instances of extreme instability, that her current marriage is not
stable, that [she] has made bad decisions and judgments concerning the children and these findings
along with other findings in regard to the relocation require a change of custody.” The Chancellor
noted various incidents which compelled him to conclude that there was a material change in
circumstances warranting a change of custody in this case. We note two of the incidents referenced
by the Chancellor and find that they do constitute material changes which satisfy the three criteria
designated in Cranston, ibid.
First, we note the incidence of the previously referenced dog attack upon Grace, the parties’
youngest child. This matter occurred after the entry of the divorce decree awarding Wife custody
and was not an event reasonably anticipated at that time. The dog, which belonged to Mr. Riddle,
was a German Shepard weighing approximately one hundred pounds. The attack occurred while
both of the parties’ children were in the care and control of Wife and Mr. Riddle and left Grace with
head wounds which necessitated emergency room treatment, required twenty one stitches and left
permanent scars. At the time of the attack the dog was unrestrained with respect to the children
despite the fact that, as Wife and Mr. Riddle were aware, the dog had previously attacked two other
children. Although Amy was not physically injured as a result of the attack she was in close
proximity and witnessed the attack on her sister. It is self evident that this event affected the well
being of these children in a meaningful way.
Second, evidence fully credited by the Chancellor was presented showing that Wife stated
to others that Husband was a pedophile and that he had raped her. These statements were made after
the divorce decree which awarded Wife custody and at that time it could not have been reasonably
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anticipated that she would make such statements. Wife does not dispute the falsity of these
statements and Husband testified that when he asked her why she made them she responded that it
was because of her hatred for Husband. We agree with the Chancellor’s analysis that “if her feelings
about the father were this great, it would be very difficult for that not to spill over to the children.”
Furthermore, false allegations of sexual misconduct, particularly pedophelia, will cause serious
damage to an individual’s reputation in the community and have an undeniable negative affect upon
a parent’s relationship with his or her child. Accordingly, we find that the making of these vicious
statements by Wife adversely affected the well being of the parties’ children in a meaningful way,
and revealed her relative unsuitability to have primary custody of the children.
The marriage of Wife to her present husband, Paul Riddle, had its foundation in an affair
between Wife and Mr. Riddle [who was married to Tina Riddle] which began after Wife’s divorce
from Husband. After their marriage Wife and Mr. Riddle have separated twice - once for two
months - and they were in marriage counseling as recently as five to six months prior to trial. The
instability of Wife’s current marriage is directly related to T.C.A. 36-6-106(4) - “[t]he stability of
the family unit of the parents” - and is a proper ground for modification of custody. The Chancellor
found “that an affair with a married person is sign of instability in your relationships, and she [Wife]
appeared to blame that on the father in this case, and as the terrible marriage she had with him as the
reason she was having an affair with someone else.”
We take note of the Chancellor’s findings with regard to the circumstances of the dog attack
on the parties’ older child heretofore referenced. The Court found this to be evidence of Wife’s poor
judgment1 and this finding is pertinent to T.C.A. 36-6-106(10) - “[e]ach parent’s past and potential
for future performance of parenting responsibilities....” The Chancellor also found with respect to
the dog bite incident that Wife did not notify Husband that his daughter had been attacked and
injured until she had returned home from the hospital. Wife’s failure to notify Husband as soon as
practicable that his child had sustained injuries requiring emergency medical treatment is further
directly related to another factor set forth at T.C.A. 36-6-106(10) - “the willingness and ability of
each of the parents to facilitate and encourage a close and continuing parent-child relationship
between the child and the other parent consistent with the best interest of the child.” The evidence
does not preponderate against these findings which are supportive of the Court’s determination that
a modification of custody is in the best interest of the children.
As primary caregiver since the divorce, Wife emphasizes the importance of continuity of
placement in the lives of the children. We acknowledge the importance of continuity of placement
and the stability it brings. However, as we stated in Gaskill, ibid. page 630:
Continuity ... does not trump all other considerations. Depending on the facts, a
parent who has been a child’s primary caregiver may not necessarily be
comparatively more fit than the other parent to have permanent custody of the
child.
1
Strangely enough, Wife seemingly was somewhat protective of the dog.
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Wife contends that, if the Trial Court found a material change in circumstances, it was further
required to conduct a best interest analysis to determine whether placement with either party over
the other was in the best interest of the parties’ children. Wife argues:
A careful review of the record indicates that the Trial Court did no analysis of the
Father’s circumstances, his living arrangements, or his general ability to care for
or meet the day to day needs of Amy and Grace. In fact, at the conclusion of the
March 20, 2002 hearing in this cause, Mother’s trial counsel attempted to remind
the Trial Court that at that time, the Father lived in a small house or apartment that
did not even have a separate bed for these children. ... To which the Trial Court
responded “You all work on your parenting plan and if you have an objection to
Mr. Bannon’s place to care for his children and if he cannot come up with a
suitable place then I will hear you.” (Emphasis in original.)
Wife argues that had the Court conducted such further analysis it would have determined that
it was in the children’s best interest that they remain with their mother.
It is conceded that both Husband and Wife love these children and that the children love their
parents. We further note that, in his opening argument at trial, Wife’s counsel conceded that
Husband “is, for all intensive [sic.] purposes, a good father.” Wife also conceded in her testimony
that, aside from his discussion with the children of matters relating to her relocation that she felt
were “too adult for them to understand”, Husband is a good father. The only evidence in the record
regarding Husband’s living accommodations is his testimony:
SK: It’s true, is it not, that as we sit here today, you still live in the same one
bedroom house that you lived in when we first filed this action?
DO: That is correct.
SK: And it’s the same one bedroom house that you were living in in March, when
we did this deposition.
DO: That is correct.
SK: And did you bring any photographs of this house so we could show the judge
exactly how small it is?
DO: No. No, I did not.
SK: Well, is it your plan, if you get custody of these girls, to - to move them into
this small house with you and then move them out -
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DO: Absolutely not. Absolutely not. On top of what I pay in child support I
could afford a very nice house.
We find nothing in this testimony, or in the record otherwise, which warrants the conclusion
that the house referred to would offer inadequate accommodation for the children. We also note that,
after the Court’s offer to hear any objection Wife might have to Husband’s residence or his inability
to provide a suitable residence for the children, no objection was made by Wife nor did she raise the
matter of Husband’s living accommodations at the August 22, 2002, hearing on her motion to rehear.
Given the protractive and acrimonious nature of this case we deem it appropriate to summarize the
Chancellor’s findings respecting a change in custody:
a. Mrs. Riddle’s vindictiveness and shocking behavior telling others that Mr.
O’Bannon was a pedophile. The overwhelming proof that she did this and
that she did so “during the throes of a period in which she was trying to
protect herself.”
b. The slanderous remarks made by Mrs. Riddle, including that Mr. Riddle was
a pedophile, a rapist, a pornographer and that he caused them to engage in sex
in the presence of the children which really put her fitness as a parent in
question. She used this tactic to make her proposal to move seem reasonable.
c. The instability of her current marriage, and in her life since the divorce,
including her affair with a married man.
d. Her bad judgment in allowing one of her boyfriends to stay overnight
(while the children were present) and even when the boyfriend
seemed a bit put aback by her conduct.
e. The infamy of the breakup of Tina and Paul Riddle’s marriage as being her real
motivation for the proposed move to South Dakota.
f. The strong evidence of her intention to defeat or deter Mr. O’Bannon’s time with the
children where it is evident that it was in the children’s best interest to permit more
and liberal time for the children to be with their father.
g. The dog bite episode which “evinces just incredibly bad judgment to have a dog that
had attacked two other children and then keeping that dog until it attacked the third
child.”
h. That Mrs. Riddle did not bother to notify Mr. O’Bannon about the dog attack on
Grace until after the child returned from the hospital. She did not advise the
children’s father early enough in this very significant incident in the life of the child.
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i. That her proposed relocation had no reasonable purpose except for
convenience, i.e. to be around her mother and to avoid social consequences
of her role in the breakup of the marriage of Tina and Paul Riddle.
To the extent the Chancellor did not make specific findings by format with respect to the
comparative fitness of Husband and Wife, such omission was harmless error and does not constitute
a ground for reversal in this case.
The judgment of the Trial Court is affirmed and costs of appeal are adjudged against Wife.
_________________________________________
WILLIAM H. INMAN, SENIOR JUDGE
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