Teri Michelle Parker v. Richard Ken Parker ( 1996 )

IN THE COURT OF APPEALS OF TENNESSEE
WESTERN SECTION AT NASHVILLE
TERI MICHELLE PARKER, )
)
Plaintiff/Appellant, ) Houston County Chancery
)
vs. )
RICHARD KEN PARKER,
)
) Appeal No. FILED
) 01A01-9504-CH-00138
Defendant/Appellee. ) October 2, 1996
Cecil W. Crowson
Appellate Court Clerk
APPEAL FROM THE CHANCERY COURT OF HOUSTON COUNTY
AT ERIN, TENNESSEE
THE HONORABLE ALLEN WALLACE, CHANCELLOR
For the Plaintiff/Appellant: For the Defendant/Appellee:
Robert Clive Marks Laurence M. McMillan, Jr.
Clarksville, Tennessee Clarksville, Tennessee
AFFIRMED IN PART, REVERSED IN PART
HOLLY KIRBY LILLARD, JUDGE
CONCUR:
W. FRANK CRAWFORD, P.J., W.S.
DAVID R. FARMER, J.
OPINION
In this case, Plaintiff-Appellant, Teri Michelle Parker (Wife), appeals the trial court’s
decision to award custody of the parties' child, Dylan Ken Parker, to Defendant-Appellee, Richard
Ken Parker (Husband), alleging that the custody determination was based on the effects of racial
prejudice. We affirm the trial court’s award of custody to Husband.
This appeal is complicated by the fact that the parties filed no transcript of the trial court
proceedings. Instead, they have filed a rather confusing Statement of the Evidence.1 Moreover, as
discussed below, the integrity of the Statement of the Evidence is challenged by Wife on appeal.
Husband and Wife were married in 1988. During the parties’ marriage, Wife was employed
as a licensed practical nurse. Wife began working for Dr. Sidberry, an African-American physician,
at his medical clinic in March of 1993. In July of 1993, Wife filed for divorce, alleging grounds of
inappropriate marital conduct and asking for custody of the parties’ child. Husband counterclaimed,
alleging inappropriate marital conduct and irreconcilable differences. Husband also sought custody
of the parties’ child.
At trial, Husband alleged that Wife was having an affair with Dr. Sidberry and that she had
neglected Husband and their child to spend time with Dr. Sidberry. Wife denied any improper
involvement with Dr. Sidberry or that she had neglected her son. After Wife’s denial, Husband
offered the testimony of a private investigator who presented a videotape indicating that Dr. Sidberry
had spent several hours at Wife’s apartment on more than one occasion.
One of the witnesses at trial was a pediatric nurse who had worked with Dr Sidberry. Over
objection by Wife’s counsel, the witness testified that it could be harmful for the minor child to be
raised in the context of an interracial relationship between Wife and Dr. Sidberry. At the close of
the parties’ proof, the Chancellor found that Wife testified untruthfully and had engaged in
inappropriate marital conduct. The trial court granted custody of the parties' child to Husband. The
trial court also ordered that the child could not be around Dr. Sidberry, even though this relief had
not been requested.
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The parties and the trial court have presented this Court with an unorthodox Statement of
the Evidence. From the sparse record before us, it appears that counsel for Husband, in making
his objections to Wife’s proposed Statement of the Evidence, presented the trial court with a
“redlined” version of Wife’s proposed Statement of the Evidence. Instead of removing the
editing marks and redlining from Husband’s redlined version, the trial court adopted the
Husband’s version in its entirety, including the redlining. As such, the Statement is difficult to
read and confusing.
Wife appealed the trial court’s ruling. There was no transcript of the trial, so the parties
prepared a proposed Statement of Evidence. Wife alleged that the trial court’s ruling was a result
of the judge’s racial prejudice. She sought to include in the Statement of Evidence a statement
purportedly made by the trial judge during the course of cross-examination of Wife’s mother. The
statement included a parenthetical indicating the trial judge’s unspoken intention:
She [Wife’s mother] comes from the same school I do. She can’t help the way she
feels. Society today feels differently than the way we were brought up (this referred
to the Wife who is white, seeing Dr. Sidberry, who is black. (sic)
The trial court held a post-trial hearing on the Statement of Evidence, and there is a transcript
of the post-trial proceeding. The trial judge conceded that he had probably made a statement similar
to that sought to be included by Wife, but denied the inference of racial prejudice in the parenthetical
proposed by Wife’s counsel:
THE COURT: Never did I - and I do this in a lot of cases, I just have what children said. I
a- am very much concerned with people, I guess for lack of a better term, shacking up. I am
not referring to white and black. I am talking about people that live together without the
benefit of marriage in front of children. No where did I ever mean - referring to Dr. Seaberry
(sic), that he was black, no where did I mean that. What I was talking about in that case and
I think if you have a transcript you will find out that I was talking about people that just go
out her (sic) and shacking up, with children. I am opposed to that. The lawyers who
regularly practice in front of me know that. I don’t think that it is good for children, and that
is what I was referring to. No where did I ever make any comment - it looked like to me
ever since this trial started, has been trying to make effort to say that the Court has some
objection [to] interracial associations. I don’t care whether they are black, white, red or what
they are, I am not going to allow children -- I don’t allow children, some of them have to -
to be around people that live together without the benefit of marriage. I am just opposed to
it. And that is what I was referring to. No where did I ever intend nor do I even feel that
way. So, I think it has been - I don’t know where this come from, but I probably made some
kind of a statement in there about that.
MR. MARKS: Do you want me to - do you want me to elaborate on the information that I
have got?
THE COURT: No.
MR. MARKS: The statement of the evidence.
THE COURT: No. If you are referring to interracial - if you are referring to interracial, my
concern about interracial marriages, interracial babies, you can forget it. I never said
anything like that. I am talking about people that live in front of children, that’s what - that
is what I am opposed to and I will tell you in a minute, and I don’t care - the Appellate Court
may think I am wrong, if they do, they can tell me. But it is just no good for children. I
remember telling her that she didn’t - something along that line, but I was thinking one thing
and everybody else was thinking something else. That is all I am talking about.
MR. MARKS: I am not - I guess at this point I am talking about simply what the record says,
I am not bringing up any interracial relationships as such, but there is nobody saying -
THE COURT: Well, you have got in parenthesis here, this refers to the wife who is white
and who is seeing Dr. Seaberry (sic) who is black.
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MR. MARKS: Which - the language in parenthesis was put in parenthesis because you did
not say that. That was the interpretation of the witness because right before you made this
statement, it was the situation where Allen Kerns was riding Gayle Scism as a witness about
Dr. Seaberry (sic) -
THE COURT: Well, its wrong.
MR. MARKS: - being black.
THE COURT: You can take the parenthesis out, I never referred to that. The Appellate
Court can put any kind of interpretation they want to on it, but I am telling you, that’s not my
interpretation. That is not the way I intended it.
Counsel for Wife sought an evidentiary hearing, and this was denied. He then asked to make an
offer of proof, and this was denied as well. The trial court then approved the Statement of Evidence
proffered by Husband, which included the redlined deletion of the statements proposed by Wife.
On appeal, Wife asks this Court to set aside the award of custody to Husband because the
trial court’s decision was based on the effects of racial prejudice and because it was against the
preponderance of the evidence. Wife also asserts that trial court erred in not permitting an
evidentiary hearing or at least an offer of proof on the disputed portion of the Statement of Evidence.
Our review of this case is governed by Tenn. R. App. P. 13(d), which provides that review
of findings of fact by the trial court shall be de novo upon the record of the trial court, accompanied
by a presumption of correctness of the findings, unless the evidence preponderates otherwise. Tenn.
R. App. P. 13(d); Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993). Where
the evidence is conflicting, findings of the trial court are entitled to great weight on appeal because
the trial judge had the opportunity to observe the manner and demeanor of the witnesses while
testifying. Galbreath v. Harris, 811 S.W.2d 88, 91 (Tenn. App. 1990), cert. denied, 502 U.S. 939,
112 S. Ct. 374, 116 L. Ed. 2d 326 (1991). On an issue which hinges on the credibility of witnesses,
the trial court will not be reversed unless there is found on the record clear, concrete, and convincing
evidence other than the oral testimony of witnesses which contradict the trial court’s findings. Id.
Wife argues that the trial court erred in not including in the Statement of Evidence the
disputed statement that Wife’s mother “comes from the same school” as the judge, with the
parenthetical indicating that this referred to the interracial relationship between Wife and Dr.
Sidberry. She also contends that the trial court erred in not permitting an evidentiary hearing or at
least an offer of proof.
Generally, the trial court’s approval of a statement of evidence is conclusive. Tenn. R. App.
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P. 24(e). In Hall v. Hall, 772 S.W.2d 432 (Tenn. App. 1989), this court stated:
Any question as to the accuracy of a transcript or statement of the evidence is to be
submitted to and settled by the Trial Court, whose determination is conclusive absent
extraordinary circumstances. T.R.A.P. Rule 24(c) and (e). The only resources of
a trial judge for resolving such questions are (1) the memory of the trial judge, (2)
memoranda of the trial judge, and (3) an evidentiary hearing to establish what
evidence was presented during the trial. The third resource is seldom used, but, if
used, and the evidence at such hearing is preserved on appeal, the appellate court
might find some support therein for revision of the evidentiary record. There is no
indication that any such hearing was held, and no record of the evidence adduced at
such a hearing if held. This court has no access to the memory of the trial judge
except the record, including the order and statement of the evidence signed by the
Trial Judge. No other memoranda of the Trial Judge or any other person is
preserved in this record.
A finding of a trial judge as to what evidence was presented is a finding of
fact which is entitled to a presumption of correctness unless the evidence (at the
hearing on this subject) preponderates otherwise. T.R.A.P. Rule 13(d). There is no
evidence otherwise. The ruling of the Trial Judge is presumed correct and is
affirmed.
Id. at 435.
At the post-trial hearing in the present case, the trial judge essentially conceded that he had
made remarks similar to those in dispute, excluding the parenthetical. In light of this, we hold that
the trial court erred in excluding the statement from the Statement of Evidence. However, the trial
court properly excluded the parenthetical portion of Wife’s proposed statement that offered Wife’s
interpretation of the import of the trial judge’s remarks. A statement of the evidence should convey
a “fair, accurate and complete account of what transpired with respect to those issues that are the
bases of appeal.” Tenn. R. App. P. 24(c). As such, it should be factual and thorough. However, it
is not proper for a statement of the evidence to include an explanation of the unspoken intention of
the person speaking. Therefore, the trial court did not err in excluding the parenthetical portion of
Wife’s proposed statement. It is unnecessary to address the argument that Wife was entitled to an
evidentiary hearing or an offer of proof.
Wife asks this Court to set aside the award of custody to Husband, arguing that the decision
was based on the effects of racial prejudice and against the preponderance of the evidence. On the
issue of racial prejudice, Wife notes that the trial court permitted testimony from a pediatric nurse
that Wife’s interracial relationship could have a harmful effect on the child and that the trial judge
prohibited the child from having any contact with Dr. Sidberry, even though Husband had not
requested such relief. Wife interpreted the trial judge’s statement, which was excluded from the
Statement of Evidence, as a reference to the interracial relationship.
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At the post-trial hearing, the trial judge vigorously denied that race was a factor in his
decision. The trial judge explained that he had concern about a child being exposed to an unmarried
couple living together and that he felt strongly about Wife’s untruthfulness in maintaining that she
was not involved with Dr. Sidberry.
The propriety of considering the effects of racial prejudice in a child custody decision was
addressed by the United States Supreme Court in Palmore v. Sidoti, 466 U.S. 429, 104 S. Ct. 1879,
80 L. Ed. 2d 421 (1984). In Palmore, the father sought a change of custody because of the mother’s
cohabitation with an African-American, whom she later married. Id. at 430, 104 S. Ct. at 1880.
The trial court awarded custody to the father, based in part on the “social stigmatization” that the
child would suffer. Id. at 431, 104 S. Ct. at 1881.
The Supreme Court noted that the trial court candidly stated that race was a factor and further
observed that the result would have been different had the mother’s partner been a Caucasian. Id.
at 432, 104 S. Ct. at 1881. The Court reversed, finding that the custody award violated the Equal
Protection Clause of the United States Constitution:
The question, however, is whether the reality of private biases and the
possible injury they might inflict are permissible considerations for removal of an
infant child from the custody of its natural mother. We have little difficulty
concluding that they are not.[ ] The Constitution cannot control such prejudices but
neither can it tolerate them. Private biases may be outside the reach of the law, but
the law cannot, directly or indirectly, give them effect.
Id. at 1882 (footnote omitted).
In light of Palmore, it was error in this case for the trial court to permit expert testimony to
the effect that Wife’s involvement in an interracial relationship could harm the parties’ child. Under
Palmore, consideration of such evidence by the trial court was clearly unacceptable.
The trial court also clearly erred in holding that the child could have no contact with Dr.
Sidberry. There is absolutely no support in the record for such relief, even if Husband had requested
it. The trial court is reversed on this issue.
Against the background of the trial court’s adamant statements that race was not an issue, as
well the errors noted above, we must consider the award of custody to Husband. The applicable
Tennessee statute requires that custody be determined "as the welfare and interest of the child or
children may demand." Tenn. Code Ann. § 36-6-101(a) (1991 & Supp. 1995). In Bah v. Bah, 668
S.W.2d 663 (Tenn. App. 1983), this Court adopted a common sense approach to determining
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custody, termed the doctrine of "comparative fitness." Id. at 666. Bah recognized that there are
literally thousands of factors to be considered in determining the custody arrangement that is in the
best interest of young children. Id. (citing Smith v. Smith, 188 Tenn. 430, 437, 220 S.W.2d 627,
630 (1949)). The Court determined that the best way to review the multitude of factors was through
a comparative approach. Id. The Court quoted with approval from Edwards v. Edwards, 501
S.W.2d 283 (Tenn. App. 1973), stating:
Fitness for custodial responsibilities is largely a comparative matter. No
human being is deemed perfect, hence no human can be deemed a perfectly fit
custodian. Necessarily, therefore, the courts must determine which of two or more
available custodians is more or less fit than others.
Bah, 668 S.W.2d at 666 (quoting Edwards, 501 S.W.2d at 290-91) (emphasis added by the Bah
court).
In the instant case, the record clearly supports the trial court’s finding that Wife was involved
in an extramarital affair with Dr. Sidberry. Generally, sexual infidelity or indiscretion, by itself, does
not disqualify a parent from being awarded custody. Sutherland v. Sutherland, 831 S.W.2d 283,
286 (Tenn. App. 1991). “However, when the parent's sexual activities or indiscretion involve
neglect of the minor child, such neglect may be considered in relation to the best interest of the
minor child.” Id. (citing Mimms v. Mimms, 780 S.W.2d 739, 745 (Tenn. App. 1989)).
There is evidence in the record from which the trial court could conclude that Wife’s
extramarital relationship caused her to neglect the child. Although this is denied by Wife, when an
issue hinges on the credibility of witnesses, the trial court will not be reversed unless there is found
in the record clear, concrete, and convincing evidence other than the oral testimony of witnesses that
contradicts the trial court’s findings. Galbreath v. Harris, 811 S.W.2d 88, 91 (Tenn. App. 1990),
cert. denied, 502 U.S. 939, 112 S. Ct. 374, 116 L. Ed. 2d 326 (1991). Nothing in the record supports
a finding that either parent is unfit. Under the comparative fitness doctrine, however, a parent need
only be relatively more “fit” than the other in order to be awarded custody. Even considering the
errors above, the preponderance of the evidence weighs in favor of the trial court’s determination
that custody by the Husband was in the best interest of the child. Therefore, the trial court is
affirmed on this issue.
The trial court’s award of custody to Husband is affirmed. The prohibition against the child
coming in contact with Dr. Sidberry is reversed. Costs on appeal are taxed equally to Appellant and
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Appellee, for which execution may issue if necessary.
HOLLY KIRBY LILLARD, J.
CONCUR:
W. FRANK CRAWFORD, P.J., W.S.
DAVID R. FARMER, J.
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