William Thomas Winchester v. Glenda Rachelle Winchester ( 1997 )

IN THE COURT OF APPEALS OF TENNESSEE
WESTERN SECTION AT JACKSON
FILED
Feb. 12, 1997
WILLIAM THOMAS WINCHESTER, )
Cecil Crowson, Jr.
) Appellate Court Clerk
Plaintiff/Appellant, ) Chester Equity No. 8684
)
vs. )
)
GLENDA RACHELLE WINCHESTER, ) Appeal No. 02A01-9604-CH-00092
)
Defendant/Appellee. )
APPEAL FROM THE CHANCERY COURT OF CHESTER COUNTY
AT HENDERSON, TENNESSEE
THE HONORABLE JOE C. MORRIS, CHANCELLOR
For the Plaintiff/Appellant: For the Defendant/Appellee:
Tim Edwards Michael L. Weinman
Memphis, Tennessee Henderson, Tennessee
VACATED AND REMANDED
HOLLY KIRBY LILLARD, J.
CONCUR:
W. FRANK CRAWFORD, P.J., W.S.
DAVID R. FARMER, J.
OPINION
This is a child custody case. The trial court awarded Appellant William Thomas Winchester
(“Husband”) and Appellee Glenda Rachelle Winchester (“Wife”) joint custody of the minor child
of the marriage, which both parties appeal. We vacate the trial court’s award of joint custody and
remand the case to the trial court to conduct further findings of fact concerning each party’s
comparative fitness and to award custody to either Husband or Wife.
Husband and Wife had been married for approximately two and a half months when they
separated. At the time of their separation, Wife was pregnant with the parties’ unborn child, Maggie.
Maggie was born on October 24, 1994, a little over four months after Husband filed for divorce.
Each party sought sole custody of Maggie. Wife retained custody pending the divorce, and Husband
was granted visitation privileges. To aid in the custody determination, the trial court appointed a
guardian ad litem for Maggie. The court also ordered Dr. Elias Bond (“Dr. Bond”) to conduct a
psychological evaluation of Wife, but not of Husband.
Approximately three weeks before trial, Wife’s counsel withdrew. The trial court gave Wife
fifteen days to retain new counsel, but she failed to do so and appeared pro se at trial. At the trial,
Husband testified at length in response to his attorney’s questions, with no objections or cross-
examination by Wife. Husband presented several witnesses, including a psychologist, Dr. Lynn
Zager, who testified that she had examined Husband and found that he would be a fit parent. Wife
testified briefly in response to questions from the trial court and was cross-examined by Husband’s
attorney. When the trial court asked Wife if she had anything further, she responded, “My mom
witnessed some things that she hasn’t told about yet.” The trial court apparently did not understand
this to be a request that Wife’s mother be permitted to testify, so no witnesses testified on Wife’s
behalf.
In her testimony, Wife alleged one instance of physical abuse during their short marriage, in
which Husband purportedly pulled her, pregnant with Maggie and holding her child from a previous
marriage in her arms, by her feet down the stairs. Wife also claimed that Husband is controlling,
hot-tempered, and mentally abusive and that he ordered her out of their house on several occasions.
The record also includes Wife’s accusation that Husband stalked her and indicates that she called
the police to her residence, complaining that he kept driving by her house.
In his testimony, Husband claimed that Wife is a poor caretaker of the child and has in the
past tried to block his access to Maggie. He alleged that she had contributed to Maggie’s asthma and
bronchial problems by smoking around her and by allowing others to smoke around her, in
contravention of doctors’ recommendations and the trial court’s orders. He alleged that Wife had
stayed overnight with her current boyfriend in Maggie’s presence, once again in violation of court
order. He admitted to having conducted surveillance on Wife and having hired a private investigator
to gather incriminating evidence against her. He noted that Wife has been married three times, that
she has had children by three different men, and that Wife’s parents have custody of her oldest child.
He alleged that Wife has a history of preventing the fathers of her children from having access to
them.
The trial court also considered the psychological evaluation of Wife by Dr. Bond. In his
report to the trial court, Dr. Bond indicated that Wife “could very well have a personality disorder”
but found that Wife was fit to retain custody. Dr. Bond did not evaluate Husband, but had
discussions with Mr. Winchester, and stated that he saw “no reason . . . that present custody status
of [the parties’] daughter be changed.”
The trial court also considered the report of the Guardian Ad Litem. After interviewing both
parties and Wife’s mother, as well as reviewing Dr. Bond’s evaluation, numerous documents, and
a videotape of Maggie and Husband, the Guardian Ad Litem stated:
The Guardian Ad Litem does not feel that a true joint custody situation could
work with these parties due to the animosity and ill will between them and their
families. Further, the parties live quite a distance from each other and as the child
grows older, this would be an impossible situation.
The Guardian Ad Litem recommended joint custody in decisions regarding Maggie. However, the
Guardian Ad Litem recommended that Wife have principal custody “with the understanding that her
mother, Frances Coleman, will monitor her actions and report any problems . . . .” She
recommended that Husband be given liberal visitation.
After considering all of the evidence, the trial court awarded the parties joint custody of
Maggie, with each parent having custody of Maggie on alternating weeks. Husband appealed to this
Court, asking for sole custody. Wife also seeks sole custody.
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On appeal, Husband asserts that the trial court erred and abused its discretion in awarding
joint custody of Maggie to Wife and him. He maintains that it is in Maggie’s best interest that he
be awarded sole custody with liberal visitation rights being granted to Wife.
Wife agrees that it was error for the trial court to award joint custody to the parties but
contends that the trial court should have given her sole custody. Wife also claims that her due
process rights were violated at the hearing of this cause, at which she appeared pro se. If she is not
given sole custody by this Court, in the alternative, Wife asks this Court to remand the case back to
the trial court for further findings of fact.
In child custody cases, appellate review is de novo upon the record with a presumption of the
correctness of the trial court’s findings of fact. Tenn. R. App. P. 13(d); Hass v. Knighton, 676
S.W.2d 554, 555 (Tenn. 1984); Dalton v. Dalton, 858 S.W.2d 324, 327 (Tenn. App. 1993). Of
course, the child’s best interest is the primary consideration in custody cases. Bah v. Bah, 668
S.W.2d 663, 665 (Tenn. App. 1983).
By statute, there is “neither a preference nor a presumption for or against joint legal custody,
joint physical custody or sole custody . . . .” Tenn. Code Ann. § 36-6-101(a)(2) (1996).
Nevertheless, the practical problems of joint custody have been repeatedly acknowledged by this
Court, particularly “where there is hostility and ill will between the parents.” Jones v. Jones, No.
01-A-01-9601-CV00038, 1996 WL 512030, at *4 (Tenn. App. Sept. 11, 1996); see Malone v.
Malone, 842 S.W.2d 621, 623 (Tenn. App. 1992); Dodd v. Dodd, 737 S.W.2d 286, 289-90 (Tenn.
App. 1987). Joint custody arrangements “depend for their success on a high degree of cooperation
between the parents, so it is perhaps not surprising that they should frequently fail.” Jones, 1996
WL 512030, at *5. Both parties contend that joint custody is unworkable in this case. The Guardian
Ad Litem concluded that joint custody would not work with these parties. Indeed, the record is
replete with evidence of the animosity that each party bears toward the other. We agree that joint
custody in this case is not feasible, and we therefore vacate the trial court’s order.
Both parties seek sole custody of Maggie. The primary concern in determining custody is
the best interest of the child. Tenn. Code Ann. § 36-6-106 (1996); Koch v. Koch, 874 S.W.2d 571,
575 (Tenn. App. 1993). A comparative fitness analysis is used to decide which parent should be
awarded custody. Ruyle v. Ruyle, 928 S.W.2d 439, 442 (Tenn. App. 1996).
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However, our review of this issue is limited to the record before us. Tenn. R. App. P. 13(d).
While the record contains some of the information necessary for a comparative fitness analysis, the
record is insufficient for this Court to determine which parent should be awarded custody. For
example, Husband testified that he was capable of caring for Maggie on a daily basis and that he had
a close relationship with various female relatives. However, at trial he also testified that he was a
full-time student and was also employed, and he gave no indication of his plans for Maggie’s care
while he was at work or school or the amount of time he would be able to spend with her.
Moreover, we are mindful that “the trial judge, not the appellate court, has the opportunity
to observe the witnesses.” Bah, 668 S.W.2d at 665. In evaluating the maturity and emotional
stability of the mother and father, the trial court
is in a far superior position to assess these qualities than this court because of the
ability to view the witnesses and assess their demeanor, mannerisms and other visual
and audio characteristics not apparent in the transcript.
Id. at 667.
Therefore, we remand this case to the trial court for further findings of fact regarding each
parent’s capabilities for caring for Maggie on a daily basis and any other findings pertinent to a
determination of custody. The court shall then conduct an analysis of the comparative fitness of each
parent, taking into account the factors listed in Tenn. Code Ann. §§ 36-6-101(d) and 36-6-106 and
any other relevant factors. See Bah, 668 S.W.2d at 666. For example, if either Husband or Wife
has not fully cooperated with the custody or visitation arrangement or has acted in such a manner as
to damage Maggie’s relationship with the other parent, this should be taken into account. See Jones,
1996 WL 512030, at *4-5. After conducting the comparative fitness analysis, the trial court should
then award custody accordingly, with reasonable visitation for the noncustodial parent.
Wife also contends that her due process rights were violated. In light of our decision to
remand the matter to the trial court, it is unnecessary for us to address this issue. The concerns raised
by Wife, such as the trial court not permitting her mother to testify and her purportedly being
precluded from cross-examining Husband or most of his witnesses or from testifying except in
response to questions from the trial court or Husband’s attorney, should be rectified on remand.
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The order of the trial court awarding Appellant and Appellee joint custody of their minor
child is vacated. This cause is remanded back to the trial court for further findings of fact and for
disposition consistent with this Opinion. The costs of this appeal are adjudged equally against
Appellant and 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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