Burrell v. Burrell ( 1999 )

FILED
IN THE COURT OF APPEALS OF TENNESSEE March 24, 1999
Cecil Crowson, Jr.
AT KNOXVILLE Appellate C ourt
Clerk
SANDY LYNN BURRELL, ) C/A NO. 03A01-9809-CV-00291
)
Plaintiff/Counter-Defendant ) BRAD LEY C IRCUIT
Appellant )
) HON . JOH N B. H AGL ER, JR .,
v. ) JUDGE
)
MARK ALLEN BURRELL, )
) AFFIRMED AS
Defendant/Counter-Plaintiff ) MODIFIED AND
Appellee. ) REMANDED
M. DREW R OBINSON, BA TES & ROB INSON, P.A., Cleveland, for
Defendant/Counter-Plaintiff/Appellee.
JES BE ARD , Chattano oga, for P laintiff/Cou nter-Defe ndant/Ap pellant.
O P I N IO N
Franks, J.
In this child custody dispute between the parents, the Trial Judge
changed the custody from the mother to the father jointly with the paternal
grandparents. The Judge directed that the children were not to be left alone with the
father’s girlfriend, and the children were not to spend the night with the father if the
father and the girlfriend were staying together in the same household. The mother was
granted vis itation and o rdered to pa y child suppo rt.
Our review in child custody cases is de novo upon the record of the trial
court, accompanied by a presumption of correctness of the trial court’s finding, unless
the prepon derance o f the evide nce is otherw ise. T.R.A .P. Rule 13 (d).; Hass v.
Knighton, 676 S.W.2d 5 54 (Tenn. 1984 ). Custody and visitation arrangem ents are
“customarily left to the trial court’s discretion.” Sherrod v . Wix, 849 S.W.2d 780, 784
(Tenn. App. 1992). Therefore, appellate courts generally “give great weight to the
decision of the Trial Judge who saw and heard the parties testify.” Rubin v. Kirshner,
948 S.W .2d 742, 74 6 (Tenn. A pp. 1997 ); see also Dailey v. Dailey, 635 S.W.2d 391,
395 (Tenn. A pp. 1981).
The mother argues that it was error to award joint custody to the paternal
grandparents, because that relief was not sought in the father’s petition. It is error for
a trial court to grant relief not sought in the plea dings, and in determining whether a
judgment is beyond the scope of the pleadings, the pleadings are to be given a liberal
constru ction w ith all reas onable intendm ents in f avor of uphold ing the ju dgme nt.
Brown v. Brown, 281 S.W.2d 492, 497 (Tenn. 1955); John J. Heirigs Constr. Co. v.
Exide, 709 S.W.2d 604, 607 (Tenn. App. 1986). The error may be remedied by
modifying the judgment of the trial court to conform with the relief requested in the
pleadin gs. See Fidelity-Phenix Fire Ins. Co. v. Jackson, 181 Tenn. 453, 462-463, 181
S.W.2 d 625, 6 29 (19 44).
The father’s petition only requested that he be awarded custody of the
child ren. T he m othe r had no notice that c usto dy might b e aw arde d to a third party,
thus sh e could not be e xpecte d to off er proo f on the approp riatenes s of tha t possib ility.
Accord ingly, the portion o f the judgm ent award ing joint custo dy to the grand parents is
outside the s cope of th e pleading s and is reve rsed. How ever, the gra nt of custod y to
the father can be upheld, if there has been a material change in circumstances.
Before re aching the dispositive issu e of custod y, it is appropriate to
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consider th e issues raised as to the adm issibility of eviden ce and pro cedure. A t trial,
the Trial Jud ge permitted the child’s co unselor to tes tify as to what th e child had told
the cou nselor w hich rela ted to ab use. Th is testimo ny was h earsay. See Tenn.R.Evid.
803(c). The father argues that the Trial Court properly allowed in the hearsay
testimony of the child because the statement about m arijuana use in the mothe r’s
home pertains to allegations of abuse and neglect, and he relies on Rule 803(25). The
Rule provides:
Tenn. R. Evid. 803(25) provides for the following exception to the
hearsay rule:
Children’s Sta tements. Unless the circumstances indicate lack of
trustworthin ess, statemen ts about abu se or neglec t made by a ch ild
alleged to be the victim of physical, sexual, or psychological abuse or
neglect, offered in a civil action concerning issues of dependency and
neglect pursuant to T.C .A. § 37-1-102(b)(10 ), issues concerning severe
child abuse pursuant to T.C.A. § 37-1-102(b)(19), or issues concerning
termina tion of p arental r ights pu rsuant to T.C.A . § 37-1 -147(d ).
The Ru le is limited to civ il actions con cerning issu es of dep endency an d neglect,
severe child abuse, or term ination of p arental rights. T he statutes cited in the Rule
deal with placing children in protective custody. The Rule does not encompass a
custody proc eeding, un less parental c ustody is being terminated o r limited by the state
because of neglect or severe child abuse.1 While the Trial Court admitted these
hearsay statements, the error is harmless because the Trial Court did not consider that
testimony in its decision. The Court expressly stated about the marijuana use, “I make
no finding about that whatsoever because I consider those hearsay statements. And I
do not hold that against the mother or any other party.” The Court further said, “the
1
As this Court has stated “the rule is limited to specific proceedings, namely dependency and
neglect, severe child abuse, and termination of parental rights, and does not encompass the issue of
custody. We are disinclined to expand the rule beyond that established by the legislature.” Beckner
v. Zimmer, No. 03A01-9602-DR-00060, 1996 LEXIS 682, *5 (Tenn. App. 1996).
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testimony of th e guidanc e counse lor established that the party’s son was em otionally
disturbe d by the re lationsh ip betw een the parents and by h is inability to see his f ather.
That was the only thing in her testimony that was really relevant.”
Next, it is charged that the Trial Court erred in denying the mother the
opportunity to review the notes of a witness to assist her counsel in cross-examination
of that witness.
The counselor who testified had brought her notes with her, and the
Trial Judge allowed the mother’s counsel to examine the notes, but did not allow the
mother to examine the notes during the trial. The mother argues that the notes were of
the counselor’s session with the son, and that the mother may have been able to make
sense of the notes and therefore could assist her counsel in framing questions for
cross-examination. The mother unquestionably could have had access to these notes
during pre-trial discovery. She was aware that the witness had been counseling the
son, and co uld be a w itness at trial. Ho wever, the re was no pre-trial discov ery of this
witness. The provision in the Rules of Ev idence which allow s for limited discovery
during trial is T enn. R. Ev id. 612, wh ich provide s: “If a witne ss uses a w riting while
testifying to refresh memory for the purpose of testifying, an adverse party is entitled
to inspect it, to cross-examine the witness thereon, and to introduce in evidence those
portions which relate to the testimony of the witness.” This rule would allow an
adverse p arty, not just the party’s c ounsel, to ex amine suc h a docum ent, but the ru le
does not a pply to these circ umstance s. The Ru le applies w hen a w riting is used to
refresh a witness’s recollection w hile that witness is testifying. The advisory
comments to the rule state, “Only if a witness’s memory requires refreshing should a
writing be used by the witness. The direct examiner should lay a foundation for
necessity, show the witness the writing, tak e back the writing, and ask the w itness to
testify from refreshed memory.” That did not occur in this case. The notes were not
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used to refresh the cou nselor’s recollection. She had h er notes with her, but they were
not used during her testimony. She testified that she had used the notes to prepare a
report. Her testimony was about the report, and the mother did have a copy of the
report. W e find n o error in the Tria l judges action.
Next, the mother insists the Trial Judge erred in refusing to consider
eviden ce of th e husb and’s p hysical ab use du ring the ir marria ge.
It is clear from the Judge’s comment that the violence of the father
toward the mother was a factor the court considered in the original custody
determination, but the issue in the m odification proceeding was whethe r there were
changed circumstances, and not a retrial of the divorce case. There was no evidence
offered that the father had abused the children or any other person following the
divorce, but the evidence reveals that the mother entered into another abusive
marriage and that she exposed the children to a variety of people with criminal
backgrounds.
In a modification proceeding, the Court does not need to repeat the
comparative fitness analysis. Instead, it must find a “material change of
circumstances that is compelling enough to warrant the dramatic remedy of changed
custody.” Muss elman v. Acuff , 826 S.W.2d 920, 922 (Tenn. App. 1991); “Changed
circumstances” include s “any material change of c ircumstances affecting the welfare
of the child, including new factors or changed conditions which could not be
anticipa ted by the custod y order.”Blair v. Badenhope, 940 S.W.2d 575, 576 (Tenn.
App. 1996). The primary consideration in both the original custody award and in a
modif ication o f the cu stody aw ard is to d o wha t is in the b est intere sts of the child.
Nicho ls v. Nich ols, 792 S.W.2d 7 13, 716 (Tenn. 19 90); Woodard v. Woodard , 783
S.W.2d 1 88, 190 (T enn. Ap p., 1989). T he father o ffered ev idence on factors set fo rth
in T.C.A. § 36-6-106(8)-(9), which are:
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(8) Evidence of physical or emotional abuse to the child, to the
other parent or to any other person; and
(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.
The Trial Judge concluded the evidence was compelling enough to warrant a change
of custod y, and we co nclude the evidence does not p reponde rate against h is
determination. T.R.A.P. Rule 13(d). In this regard the Trial Court observed:
It’s also very clear to the Court th at the moth er allowed an incredib ly
dangerous group of people to go in and out of her house. This is a
comp letely una ccepta ble env ironme nt. It’s po or judg ment o n her pa rt.
It shows no insight whatsoever. I mean, it was a list of just every kind
of crime you could think of that would be harmful to children that was
associa ted with some o f the pe ople co ming th rough your hom e.
I could accept that maybe on - - in the case of this person or that person
you might not have known everything. But I think you knew a great
deal about some of these people. I find that any denial that you did not
know about their conduct was just not believable. I just have never seen
that many people with those kinds of records going through a house.
The Trial Court found material changes in circumstances due to the
mother’s a ssocation, an d further fo und those circumstan ces placed the children in
danger of physical and emotional harm. We concur in these findings.
While the Trial Court awarded custody to the father, it also provided that
the children were no t to be left alon e with K athy Adam s until an app ropriate
investigation was completed and the matter revisited, and further the children were not
stay the night with the father when he and Adams were staying together in the same
househo ld. We up hold that po rtion of the d ecree aw arding cus tody of the ch ildren to
the father, w ith the same limitations plac ed on that c ustody by the Tria l Court.
We affirm the judgment of the Trial Court in part, as modified, and
remand with the c ost o f the appeal assessed o ne-h alf to each party.
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__________________________
Herschel P. Franks, J.
CONCUR:
___________________________
Houston M. Godd ard, P.J.
___________________________
Charles D. Susano, Jr., J.
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