Anthony K. Eldridge v. Julia E. Eldridge ( 1999 )

FILED
October 27, 1999
Cecil Crowson, Jr.
Appellate Court Clerk
IN THE COURT OF APPEALS
AT KNOXVILLE
ANTHONY KEITH ELDRIDGE ) SULLIVAN COUNTY
) 03A01-9904-CH-00146
Plaintiff-Appellant )
)
)
v. ) HON. RICHARD E. LADD,
) CHANCELLOR
)
JULIA EDITH ELDRIDGE )
) AFFIRMED IN PART,
Defendant-Appellee ) MODIFIED IN PART and
) REMANDED
H. WAYNE GRAVES OF JOHNSON CITY FOR APPELLANT
MICHAEL MAY OF KINGSPORT FOR APPELLEE
O P I N I O N
Goddard, P.J.
This is an appeal from the Chancery Court’s
visitation order which requires the minor daughter, Taylor
Eldridge, to visit overnight with her mother. Anthony
Eldridge, Plaintiff-Appellant, raises the following issue:
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Should, under the circumstances of this case, Taylor
Eldridge be required to visit overnight with her
mother in the presence of her mother and her lesbian
partner, Lisa Franklin?
The trial court ordered overnight visitation without
prohibiting Ms. Franklin’s presence.
On July 24, 1992, Anthony Eldridge was granted an
absolute divorce from Julia Eldridge for inappropriate marital
conduct. The parties entered a Marital Dissolution Agreement
which provided for joint custody of their minor daughters,
Andrea and Taylor Eldridge. For two years, the joint custody
arrangement was amicable. Beginning in late 1994, the parties
could not agree on Ms. Eldridge’s visitation rights. On
November 21, 1994 and February 16, 1995, Ms. Eldridge moved
the Chancery Court to set a specific visitation schedule. Mr.
Eldridge responded to these motions by asking the Court to
award sole custody of the two minor children to him. On July
17, 1995, the Court awarded sole custody of the two minor
children to Mr. Eldridge. The Court ordered the parties and
the children to seek counseling. Dr. James Granger became the
first counselor and Special Master to the Court on July 26,
1995. Dr. Granger was unsuccessful in having the parties
reach an agreement regarding Ms. Eldridge’s visitation
schedule.
On May 10, 1996, the Court appointed a Guardian ad
litem who filed a report with the Court. On September 13,
1996, the Court set a specific visitation schedule which
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included overnight visitation every other Saturday night
through Sunday. Ms. Eldridge filed a motion on May 20, 1997,
to extend the overnight visitation to include Friday nights,
holidays and summer vacation. Mr. Eldridge opposed expanded
overnight visitation. On June 25, 1997, the Court changed the
visitation schedule by ordering overnight visitation every
other Friday night through Saturday evening. The parties
continued having problems with the visitation schedule.
Dr. Judy Millington began counseling the parties and
the minor children in August 1996. Dr. Millington, as Special
Master to the Court, made recommendations regarding
visitation. According to her recommendations, Taylor Eldridge
needed to extend visitation with Ms. Eldridge because a strong
mother-child relationship is in the best interests of Taylor
Eldridge. In Dr. Millington’s report filed June 30, 1997, she
suggested that overnight visitation every other weekend should
be two nights instead of one night. In the addendum to this
report, Dr. Millington stated: “on the continuum the best for
Taylor and Andrea would be to have visitation without Lisa
present, because the sexual orientation and modeling behavior
issues become less obvious and so less of an issue
parent-to-child in the future than it otherwise might be.”
However, Dr. Millington never made a recommendation to the
Court regarding Ms. Franklin’s presence during Taylor Eldridge’
s overnight visitation with Ms. Eldridge. Instead, Dr.
Millington deferred to the Court for a decision on Ms. Franklin
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’s presence during overnight visitation.
A hearing was held on October 8, 1998 to resolve the
visitation problems. At the hearing, Julia Eldridge testified
that she and Lisa Franklin had been together for almost five
years. The house where Ms. Eldridge and Ms. Franklin live is
rented in Ms. Franklin’s name alone. Ms. Eldridge testified
that Ms. Franklin maintained a separate bedroom and there had
been no sexual relationship between them for over a year prior
to the hearing. On cross-examination, Ms. Eldridge testified
that neither she nor Ms. Franklin were dating anyone else.
Ms. Eldridge testified that she and Ms. Franklin were not
physically affectionate in Taylor’s presence.
Lisa Franklin testified that she had maintained a
separate bedroom for three months prior to the hearing. Ms.
Franklin testified that Taylor Eldridge acted happy with Ms.
Eldridge in her presence. Ms. Franklin testified that she had
a good relationship with Taylor Eldridge.
Mr. Eldridge testified that overnight visitation
with Ms. Franklin present was not in Taylor Eldridge’s best
interests. According to Mr. Eldridge, Taylor’s emotional
well-being was affected by her exposure to the relationship
between Ms. Eldridge and Ms. Franklin because this type of
relationship was contrary to Taylor’s moral beliefs. Mr.
Eldridge testified that Taylor did not want overnight
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visitation with Ms. Franklin present.
Dr. Millington testified that she had not observed
any adverse effects on Taylor since she began overnight
visitation with Ms. Eldridge in Ms. Franklin’s presence. Dr.
Millington described Taylor’s behavior around Ms. Eldridge as
very positive. Dr. Millington testified that “for her best
interest overnight would not be required, but on the other
hand that I didn’t really think overnight would harm her
because I don’t think she’s going to see anything at Julie’s.”
After the October 8, 1998 hearing, another
visitation schedule was set which included overnight
visitation. Mr. Eldridge appeals the Court’s November 19,
1998 order setting visitation.
The trial court possesses broad discretion in
determining a visitation arrangement. See Suttles v. Suttles,
748 S.W.2d 427, 429 (Tenn. 1988). We will not disturb the
trial court’s visitation order unless there is an abuse of
discretion.
See Suttles, 748 S.W.2d at 429. We find the trial court
abused its discretion by not prohibiting Ms. Franklin’s
presence during the court-ordered overnight visitation.
This Court addressed the issue raised by Mr.
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Eldridge in Dailey v. Dailey, 635 S.W.2d 391 (Tenn. Ct. App.
1982). In Dailey, the Court raised the issue of overnight
visitation with the homosexual mother upon its own motion. See
Dailey, 635 S.W.2d at 395. Finding “the proof in this record
could provide nothing but harmful effects on his life in the
future,” the Court modified Ms. Dailey’s visitation privileges
with her minor child. Dailey, 635 S.W.2d at 396 (emphasis
added). Visitation was prohibited from occurring in the home
where Ms. Dailey lived with another woman, Peggy Maynard, or
in the presence of Ms. Maynard or “any other homosexual with
whom the Respondent may have a lesbian relationship.” Dailey,
635 S.W.2d at 396.
In modifying the visitation order, the Dailey Court
relied heavily upon the proof established in the record. The
proof showed Ms. Dailey and Ms. Maynard were extremely
affectionate toward one another in the minor child’s presence.
Dailey, 635 S.W.2d at 393. Additional proof showed the child
was placed in bed with Ms. Dailey and Ms. Maynard while they
embraced in the nude. Dailey, 635 S.W.2d at 393. An expert
testified that harmful effects would occur from the minor
child being reared by the homosexual mother. Dailey, 635
S.W.2d at 393-94. Accordingly, the Court changed custody from
the mother to the father and modified the mother’s visitation
privileges.
The facts of this case do not rise to the level of
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harmful behavior displayed by the mother in Dailey. Ms.
Eldridge and Ms. Franklin show no affection toward one another
in the presence of Taylor Eldridge. In restricting overnight
visitation, we do not rely on the fact that Ms. Eldridge is a
lesbian. The courts of Tennessee commonly place reasonable
restrictions on the visitation rights of heterosexual parents
who engage in sexual activity with partners with whom they are
not married. See Price v. Price, an unreported opinion of
this Court, filed in Jackson on June 20, 1997 (prohibiting
both parents from having an overnight guest with whom the
parent is sexually involved while exercising overnight
visitation with minor child); Edwards v. Edwards, 501 S.W.2d
283 (Tenn. Ct. App. 1973)(prohibiting overnight visitation
with mother who was involved in extramarital relationship with
a man).
We affirm the Chancery Court’s order requiring
overnight visitation between Taylor and Julia Eldridge, but we
modify the order by prohibiting the presence of Lisa Franklin
during the overnight visitation. The judgment of the Trial
Court as modified is affirmed and the cause remanded for such
further proceedings, if any, as may be necessary and
collection of costs below. Costs of appeal are adjudged
against Ms. Eldridge.
Houston M. Goddard, P.J.
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CONCUR:
Herschel P. Franks, J.
Charles D. Susano, Jr., J.
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