Sandra Jo Robbins v. Robert Scholze Robbins ( 2018 )

08/16/2018
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs June 5, 2018
SANDRA JO ROBBINS v. ROBERT SCHOLZE ROBBINS
Appeal from the Circuit Court for Hamilton County
No. 16D385 L. Marie Williams, Judge
No. E2017-01427-COA-R3-CV
This appeal arises from a divorce. Sandra Jo Robbins (“Wife”) sued her husband Robert
Scholze Robbins (“Husband”) for divorce in the Circuit Court for Hamilton County (“the
Trial Court”) after approximately 20 years of marriage. Following trial, the Trial Court
divided the marital estate, entered a permanent parenting plan regarding the parties’
minor children Ava and Theodore (“the Children”), and awarded Wife alimony in futuro.
Husband appeals to this Court, raising a host of issues. We hold, inter alia, that the Trial
Court erred in excluding Husband, pro se, and Wife’s attorney from in-chambers
questioning of the Children. However, we hold further that, considering the whole
record, this error by the Trial Court was not reversible error. We, therefore, affirm the
judgment of the Trial Court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed;
Case Remanded
D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which W. NEAL
MCBRAYER and ARNOLD B. GOLDIN, JJ., joined.
Robert Scholze Robbins, pro se appellant.
Jennifer H. Lawrence and David H. Lawrence, Chattanooga, Tennessee, for the appellee,
Sandra Jo Robbins.
OPINION
Background
Wife obtained an order of protection against Husband following a February 2016
domestic violence incident. Wife sued Husband for divorce in the Trial Court. The
parties had been married some 20 years. Three children were born of the marriage:
Katherine, born 1997, of majority age and not at issue in these proceedings; Ava, born in
2001; and Theodore, born in 2002. Husband was an investment manager and the primary
financial provider for the family. Wife predominantly was a stay-at-home mother.
Disputes between Husband and Wife over carrying the financial burden of the family
contributed strongly to the breakdown in the marriage. In August 2016, the Trial Court
authorized Wife to relocate with the Children from Chattanooga, Tennessee to the Spring
Lake area of Michigan, where Wife has family. All remaining issues were heard in the
final hearing, taking place on February 24 and March 29, 2017.1 Husband and Wife were
the main witnesses at trial, and we quote from their testimony as pertinent to the issues on
appeal.
Wife testified, in part, as follows:
Q. So you’re how old?
A. Almost 60. I’m 59.
Q. Okay. All right. Do you have any Social Security earnings separate and
apart to draw on?
A. Not at this time, no.
Q. And during the history of the marriage, did you work outside the home?
A. No. He wanted me to be an at-home mom. I did dabble a little bit in
real estate and had some minor income, but that was about it.
Q. And that shows on the tax return?
A. That’s correct.
Q. Very minor?
A. Uh-huh, yes, very minor, over the 20-year marriage.
Q. Before you-all married, did you have a job?
A. Yes. I had a thriving, great job with a law firm. I was a senior litigation
paralegal.
Q. And did you give that job up?
A. I did.
Q. Why?
1
Judge W. Jeffrey Hollingsworth originally presided in this case before recusing himself. Judge L. Marie
Williams presided by the time of the final hearing.
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A. He wanted me to give it up to raise the children.
Q. During the marriage, what’s the most you’ve ever made?
A. I think $7,000 in one year.
Q. Okay.
A. I did a lot of community stuff with the children. I was always the room
mom, and I was totally involved with the kids and their school. And I sat
on the preschool board. I taught Sunday school. I was a football mom. I
got plaques from the football players for being such a great team mom.
And I took the kids back and forth to the volleyball games, and I was a
volleyball mom. And I helped teachers, I went in and assisted with the
teachers, and helped with the kids, and graded papers. So I was really quite
busy with everything for the children and at the school. And then I raised a
lot of money for the Episcopal school that they went to, tens of thousand of
dollars I was responsible for raising for the school. So I worked very hard
for the children in their lives at their school.
Q. And was this when the family lived in Atlanta?
A. Yes, ma’am.
Q. Okay. As far as raising money for the Episcopal school?
A. Correct.
Q. When did you and the family move to Chattanooga?
A. In 2000 -- 2013, about 2013, when Katherine was a freshman at Baylor.
***
Q. So, since you-all moved to Michigan, which was about when?
A. August, September of 2016.
Q. Okay. And so they’ve been up there a little over a year?
A. No.
Q. No, I’m wrong. How long?
A. Six, seven months.
Q. That’s right. Okay. How are their grades since they moved?
A. Great. Ava’s straight A’s; and Theo, he was straight A’s, too. The last
report card I think he got one B, but, you know, he was involved in a big
project at school.
Q. He’s in what grade?
A. He’s in ninth grade.
Q. Okay. Ava’s in what grade?
A. Tenth grade.
Q. Are they close?
A. Now they are, yes, very.
Q. And I think we’ve already gone through, you’ve got family there?
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A. Yes.
Q. Okay. And how’s the school system, in your opinion?
A. It’s great. It’s a great school. Theo loves it. He’s -- he -- it’s the same
colors as Baylor. And he -- he’s, you know, quite an athlete, and they love
him there. And he got to know a lot of the football players in August, when
they had the pre-football schedules. And so he kind of stepped right into
high school with some really great football friends, and so he’s loving it.
Ava, of course, is like the -- she speaks French very good, and she’s kind of
like the teacher’s pet, the French teacher’s pet, and she wanted her to head
up the French club. And so they’ve been pretty -- they’ve been very
embraced at the school.
Q. Is there anything vindictive whatsoever on your part as far as the
children being in Michigan?
A. None whatsoever.
Q. Financially could you have made it if you’d stayed in Chattanooga?
A. No.
Q. Couldn’t make it now except for family, right?
A. That’s correct. I really rely on family.
Q. Okay. In your opinion, is it reasonable for the children and you to be in
Michigan?
A. Yes.
On cross-examination by pro se Husband, Wife testified as follows:
Q. Do you realize that separation from my children is a big negative to my
health and motivation?
A. You created it.
Q. Answer the question, please.
A. Ask the question again, please.
Q. Do you realize that separation from my children is a big negative to my
health and motivation?
A. I don’t know that.
Q. Do you realize that not being able to play my favorite sport, an aerobic
sport of tennis, is a big negative to my health?
A. I don’t know that.
Q. Did I ever tell you how important tennis was to my health?
A. No.
Q. Do you agree with me that house arrest is harmful to my business?
A. I don’t agree with that.
Q. Do you think it’s helpful?
A. I don’t -- I don’t know.
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Q. Under house arrest, I’m not able to go freely to associate with clients, in
a business that requires marketing, do you understand that?
A. You never really did that before.
***
Q. Have you found my Italian cufflinks, diamond, gold and onyx, costing
$3,000 that we bought together in Italy?
A. I don’t have that. I gave you all of your jewelry in your jewelry box like
two days after you got out of jail. It had several cufflinks in it and all of
your jewelry. I gave you-all of that stuff.
Q. Did you work for ten years as a paralegal with Dallas and Atlanta law
firms, including working for a law firm principal John Howard of Smith
Howard?
A. Yes.
Q. Did we discuss that you would work -- you would stop work simply
because of the early child rearing of our children?
A. Please say that again.
Q. Was the reason for your stopping work that we agreed that child rearing
in its early years was more important?
A. You wanted me to be an at-home mom, and you didn’t want me to work,
and I was planning the wedding, and we were going to conceive right away,
and so I was -- that’s why I didn’t work. And we had three children, and
you wanted me to be an at-home mom, which I did. I was devoted to that
for 20 years and to this day.
***
Q. Paralegal jobs would have been a strong pursuit for you to help this
family out, correct?
A. I don’t know what you mean help them out. Financially?
Q. Yes.
A. I had a real estate license, and you didn’t want me to work, because you
said it would put us up into a higher tax bracket and it was more taxes that
we would have to pay.
Q. When did I say that?
A. Continuously throughout the marriage.
Q. So do you recall me emphasizing in many different communications to
you over the last five to ten years how critically important it was for you to
maximize your income for the family and make $50,000 or more?
-5-
A. You’ve -- you mentioned that to me, but then you’d turn around and tell
me to not get a job because it would push us up into another tax bracket.
Especially when you were intoxicated at night, you would tell me in
derogatory terms to get a job, but then you would apologize the next
morning and tell me not to do it, that I needed to stay home and shuttle the
children around and attend to their -- help them attend to their school
business.
Q. Did I often send e-mails on the most important things about our
marriage and family?
A. You sent a lot of e-mails, and they were long, and we didn’t -- they were
just so voluminous, Bob, everybody kind of avoided them, unfortunately.
I’m sorry.
***
Q. Okay. Do you now recall these critical items of the future, of the
education of our kids, and the financing of our family?
A. I remember you discussing it, but then you would say, I make $400,000
a year.
MS. LAWRENCE: Which is in the document, you know.
A. I make more money than any doctor, lawyers in recent years.
Q. Did I acknowledge to you that in prior years I had made that much
money, but things were going down and we needed to diversify?
A. But then you would tell me they were going up.
Q. Does that say -- is that said anywhere in this e-mail, that our income was
going up and we needed to do anything other than an all-out change in the
way we were spending and earning?
A. It doesn’t say it in this e-mail.
Q. Does the language of this e-mail and all these other mentions about our
finances take the form of pleas for your help, as in the last sentence of this
e-mail?
A. But then on the other hand you would tell me not to work, to stay with
the kids. And it was up and down. And then you would drink at night and
tell me not to work, and then tell me to work, and then you -- the next day
you would write these e-mails, and then you would drink the next night and
say just disregard that. So I never knew which way was up or down. You
were in total control of the finances. I had every faith in the world that you
were going to handle it, because you’re an investment manager, and I don’t
know much about the money. I complied with everything you asked me to.
I continuously checked with you on not spending anything over $100. You
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approved it. I didn’t do excess shopping without your permission, and I
basically shopped at Walmart. That’s --
Q. Do you buy $3,000 saxophones at Walmart?
A. That was for -- I don’t think the saxophone was that much. It was a used
saxophone.
Q. And do you buy $1,300 sofas at Walmart?
A. That was -- you approved that. You completely approved that.
Q. The next page, third paragraph: Are you going to try to save our
marriage and help our family and business finances?
A. Sure. I was there to try to help.
Q. And the next underlined sentence: We need your real estate business to
take off.
A. But then I would do brochures to network and you wouldn’t let me buy
the brochures.
Husband testified, in part, as follows:
Q. You’ve read those letters that the children, Ava and Theo, have written
about you, haven’t you?
A. Yes.
Q. They were chilling, weren’t they?
A. It was extremely upsetting to learn that Theo lied to the judge and the
district attorney.
Q. So you’re still up here today calling your son a liar and you want to be
custodial parent?
A. It was also extremely upsetting that Ava could -- well, it’s normal. Kids
who have never --
THE COURT: Sir, that wasn’t -- sir, the question was a yes-or-no question.
Are you still contending you should be the primary residential parent of
your children?
MR. ROBBINS: Yes.
THE COURT: Thank you.
BY MS. LAWRENCE:
Q. Ava, in the letter, called you a drunk, right?
A. Right.
Q. She called you abusive, right?
A. I don’t remember that word.
Q. Ava is very, very bright, right?
A. In some respects, yes.
Q. She was an outstanding scholar at Baylor, correct?
-7-
A. To the best of my knowledge, when I was separated, she was still an
outstanding scholar.
Q. She’s soon to be, in a month, 16 years old, right?
A. Correct.
Q. Even in that video, we saw she was yelling at you to stop your behavior,
right?
A. Yes.
Q. Your daughter Katherine, who’s an outstanding scholar at Michigan
State, does not speak with you, does she?
A. That’s correct.
Q. Have you seen what she’s written to Michigan State about you?
A. No.
Q. You don’t remember that hearing we had in front of Judge
Hollingsworth about the financial assistance and what was in the file?
A. I don’t remember reading her written submission about me in that.
Q. You know that Katherine has strong feelings about how she was abused
by you when she was growing up; you know that, don’t you?
A. Absolutely not.
Q. Well, do you think Theo has strong feelings about the treatment you’ve
given him?
A. Yes. They were peaceful. Sandra’s were violent.
Q. Your interactions with Theo were peaceful?
A. Yes. I never roughed him up. Sandra wanted me to, I wouldn’t do it.
Q. What do you call your behavior that day when you were doing what’s
shown on the video?
A. He hit me in the neck, as I said on the video. I didn’t touch him, as I
recall.
Q. All that screaming, is that how you usually handle these children?
A. I was in pain after surgery.
THE COURT: Sir, answer yes or no, and then you may explain.
A. What was the question?
MS. LAWRENCE: Would you read it back?
(Whereupon, the court reporter read back the last question.)
MR. ROBBINS: No.
BY MS. LAWRENCE:
Q. Now, against my better judgment, I’m asking you a question that I’m
sure you’ll elaborate on. From a realistic standpoint, how do you think you
get integrated back into these children’s lives? You certainly don’t think
it’s like -- even if the order of protection was only extended another year,
you don’t just show up and they welcome you. How do you really think,
realistically, you’re going to get integrated, if ever, with these children?
-8-
***
A. … The same way I’ve wanted to for the last 14 months, counseling.
Q. Well, what would you do, drive up to Michigan and try to have some
counseling?
A. No. I can’t afford business and personally to be driving up for frequent
visits like that. Ideally we would need to do it frequently, I think, to resolve
this quickly, in their interest, and a counselor here, by way of telephone, I
think, is the -- would have to be most of them. Perhaps I would drive
halfway to see them after that, and hopefully have a rapid reconciliation of
what I feel is a temporary problem, with Sandra having rejected me and
poisoned their attitudes towards me. I was a great father to them.
Q. Mr. Robbins, what parent in the world, if given the opportunity,
wouldn’t bother to drive to Michigan, when you say it would be too much
inconvenience for you? You don’t really want to reconcile with these
children, do you?
A. I’m happy to go to Michigan any day that I need to and spend a little
time up there, but realistically, I’ve got to maintain a business. I’m the
overwhelming breadwinner of about 85 percent of this family’s income,
and I can’t just be doing that easily on the road or in Michigan.
***
Q. Well, let’s just speed this on. Let me show you the letter. You’ve read
this letter, haven’t you, where Ava says all these things about you?
A. Yes.
Q. Okay. That also is chilling, isn’t it?
A. It was a chilling letter, yes. It was -- it was very upsetting to me to -- to
read this and to understand that she was so upset.
Q. Must have made you feel horrible, right?
A. Well, kids will do things that, you know, reflect a limited understanding.
She doesn’t understand the difference between having a couple of drinks
and being drunk. I told them exactly what was going to happen, and it was
with a heartfelt earnest plea that I was pleading for everyone to work
together as this family to achieve their dreams of Baylor and whatever else.
No one was cooperating.
With respect to his finances, Husband testified as follows:
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Q. How Robbins Capital Management works is that it’s a Georgia
Subchapter S corporation, right?
A. Correct.
Q. Okay. And you are the sole shareholder?
A. Correct.
Q. Okay. And what you do on the tax return is your accountant puts the
gross receipts -- for example, 2015, the gross receipts were $139,720, right?
THE COURT: Ms. Lawrence, bring it down so you can see the date.
A. Okay. Yes.
Q. And I can give you a copy. I think I have an extra copy. All right.
Here’s your copy so you don’t have to strain.
A. Thank you.
Q. Let me turn to the same page. How the Subchapter S works is that the
business expenses are taken off within the return, correct, the Robbins
Management Company, that’s where you see the --
A. Correct.
Q. Okay. So what happens then is that they put down the gross receipts,
then they -- you take compensation of 40,000, right?
A. It may have been 40,000 that year. I recall 30, though.
Q. Okay. Well, it says 40.
A. Okay.
Q. Number 7.
A. Yes, ma’am.
Q. All right. And then there’s total deductions of 56,000, and that’s where
we see all the business expenses. They’re within this Subchapter S tax
return. They’re not on your personal tax return, are they?
A. I think that’s correct.
Q. Well, you know it’s correct. I mean, aren’t you a graduate of
Dartmouth?
A. I am.
Q. Okay. And didn’t you testify last time that you have accounting
knowledge so that you can read these financial statements?
A. Yes.
Q. Okay. So you know exactly what happens with Robbins Management.
You get a $40,000 compensation, then after all the expenses are taken, then
there is ordinary business income, right?
MR. ROBBINS: Objection, Your Honor. She’s adopting an attacking tone
of voice. I don’t have those numbers in my mind, and I don’t recall all of
them and absorb them, you know, present all of them very quickly. I do my
best.
THE COURT: The objection is overruled.
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BY MS. LAWRENCE:
Q. Here is your tax return of 2015.
A. Yes.
Q. All right. And if my questions are too complicated, you let me know.
Okay?
A. Okay.
Q. All right. You have it in front of you, 2015, where Robbins Capital
Management had gross receipts of $139,720, right?
A. Yes.
Q. And those are what you get from being the sole owner of Robbins
Capital Management, Inc., right?
A. Yes.
Q. Okay. And then there is compensation to officers. You’re the only
officer, right?
A. Yes.
Q. Okay. So you pull 40,000 out per year before you pull the ordinary
business income, right?
A. Yes.
Q. Okay. And so to get your true salary we need to add your compensation
of 40,000 plus the income of Robbins Capital Management at $82,944,
right?
A. Yes.
Q. Uh-huh. And if you add 40,000 to $82,944, that’s $122,944, right?
A. Yes.
Q. Which, if you divide it by 12, gets you almost to the penny what you
filed in October of 2016, with a very accomplished lawyer, as to having
gross wages monthly of $10,666, right?
A. Yes.
Q. Okay. And all these expenses that you now have put on this income and
expense statement that you bring up here, those are already expenses that
are being pulled for the most part from the corporate tax return. That’s
where we see these expenses of $56,776, right?
A. Right. A lot of these numbers have changed since 2015.
Q. Uh-huh. Well, when I took your deposition back in November, I asked
you what had made things change, and you never mentioned this lawsuit,
this divorce in that whole deposition. You gave me a bunch of reasons that
you said business was down. You never mentioned this ankle bracelet or
this order of protection, did you? Five hours of deposition testimony you
never brought that up, correct?
A. I never brought up the fact that I was -- that she filed for divorce?
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Q. No. As I understand your direct testimony, you said one of the reasons
business was down was because of this ankle bracelet and this order of
protection.
A. Correct.
Q. What I’m saying, in November of 2016, when I took your deposition for
hours --
A. Uh-huh.
Q. -- I asked you the very specific question, in your opinion, why is
business down --
A. Uh-huh.
Q. -- after you had testified business was down, and you said, oh, clients get
old, you know, they die. Never once did you mention -- and I gave you
more than one chance -- did you mention that business was down because
of this ankle bracelet or this order of protection, did you?
A. I may not have mentioned all the reasons. I thought I had the main ones,
and those were additional reasons.
***
Q. All right. I’ll pull your deposition testimony in a minute on that issue,
but let me ask you, what you’ve been doing is using your business income
and your credit cards to pay these lawyers instead of paying child support
or paying other bills for the benefit of the family, right?
A. Well, I paid child support starting, whatever it was, October or
November, and I paid a $5,122 special payment that Judge Hollingsworth
ordered me to pay in October, I addition to $1,000 alimony. So you’ll see
that -- I’m not sure about the timing of these things. I think what you’re
going to find is that I simply ran out of money, and that during the time
frame, that I ran up $8,000 of credit card debt. So during that time is a
pretty close match between -- before I started paying child support, it was a
pretty close match between the debt I incurred and the legal expenses that I
incurred.
Q. And yet you’re asking for Mrs. Robbins to pay half of the credit card
expenses that you’ve run up from whatever you’ve been doing?
A. I didn’t do anything. I’ve had no golf memberships, nothing expensive
in my life during the entire last 15 years. It was all for the family,
everything I saved and earned over my career. I wasn’t a big spender. I
didn’t have big hobbies. I lived as cheaply as I could. And I never wanted
to incur big spending on houses and cars. Those were Sandra’s ideas and
initiatives, and I agreed to . . . .
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The Trial Court questioned the Children in chambers in the presence of the
guardian ad litem and a court reporter. Wife’s counsel and pro se Husband were not
present in chambers for the questioning, although they were permitted to submit
questions beforehand. The Children’s testimony was transcribed and sealed. Neither
party is privy to the Children’s testimony.
In June 2017, the Trial Court entered its order of divorce in which it incorporated
its detailed memorandum opinion, a permanent parenting plan, and division of assets and
liabilities. In its thorough memorandum opinion, the Trial Court found in relevant part:
These parties were married April 19, 1996 making this a marriage of
21 years at the time of the hearing. There were three children born of the
marriage, one of whom is now an adult. The other two children are Ava . . .
and Theodore . . . . The only litigation involving the minor children other
than this cause involves an order of protection which was entered against
defendant Robert Scholze Robbins and in favor of Sandra Jo Robbins and
the two minor children. That petition for order of protection arose out of a
February 6, 2016 incident. The petition for order of protection was granted
after consideration by Judge Hollingsworth. A domestic assault charge was
brought before General Sessions Court also. On March 3, 2016, the
General Sessions Court entered a suspended sentence with a no contact
order and batterer’s intervention treatment as conditions. After a finding of
a violation, a GPS monitoring device was added, the suspended sentence
was extended with Mr. Robbins on house arrest, and the no contact order
was extended. Since that time, he has had no contact with the children. By
order entered August 31, 2016, the mother was permitted to relocate to
Michigan. She and the children have done so.
The Court first will address the parenting plan issues between the
parties. The Court is guided in its custody analysis by T.C.A. 36-6-106 and
other applicable law. In this case, the Court must determine the custody
arrangement that the Court determines is in the best interest of the minor
children, considering the various statutory factors.
The Court interviewed the two children in chambers. The Court, in
22 years on the bench, has not spoken with two teenagers who were as
appropriate, intelligent, well-spoken, clear in their thought process, and
mature as these two young people. Ava and Theo had no pretense to them.
They were very articulate and sincere in their testimony. Their father had
requested they speak with the Court or be put on the stand and interrogated.
Because of the domestic violence history of this case and the findings of
this Court concerning the incident giving rise to the order of protection, the
Court found it appropriate to speak with the children in chambers in the
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presence of a court reporter. The Court found both children to be very
credible. The Court is aware of Mr. Robbins’ contention that the children
have been “brainwashed” by their mother and that the information they
gave the Court would not be truthful. The Court found no evidence of such
“brainwashing.” The Court found the children to be straightforward in their
testimony and they specifically denied any influence on their testimony by
either parent.
Based on the Court’s discussions with the children and all of the
evidence in the case, the Court finds the strength, nature, and stability of
each child’s relationship with the mother is substantially stronger than with
the father. Mrs. Robbins holds a substantially greater past and potential
performance of parenting responsibilities. Because of the domestic
violence findings, she is reticent to permit an ongoing relationship between
the father and the children, believing that contact would be emotionally
disruptive for the children. The domestic violence incident and the father’s
alcohol use has alienated the children from their father and significantly
impaired the father/child relationship. The Court finds it in the best interest
of the children for the mother not to require greater contact with the father
than what is in each child’s comfort zone. Based on Mr. Robbins’ violation
of the order of protection and other orders of this Court, the Court finds he
is not likely to honor and facilitate court-ordered parenting arrangements
and rights.
Both parties have attended the parent education seminars.
The mother is working in the bakery at a Wal-Mart in Michigan in
order to provide the children with food, clothing, medical care, education,
and other necessary care. The father refused to pay the tuition for the
schools the children had planned to attend. However, the Court recognizes
there may be a valid financial reason for that refusal. The child support for
the children was deferred at the time, the order of protection was entered
but Mr. Robbins was ordered to pay some expenses.
The mother has been the primary caregiver of these children, having
taken the greater responsibility for performing parental responsibilities.
There is a strong bond between each child and the mother which
evidences their love, affection, and emotional ties to her. The children are
not bonded with the father. The father’s actions have severed that bond.
The children have many family relationships in Michigan where they
have now moved. They interact with those family members on a regular
basis. On the father’s side, the children have much family as Mr. Robbins
was one of several siblings. Many of those still live in Chattanooga.
Historically, the children have seen that family on holidays. The mother’s
family is in Michigan and the children have become involved satisfactorily
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in that environment. The oldest sibling is in college in Michigan. They are
very happy in school in Michigan and have adjusted well. They have
extracurricular activities which they find satisfying.
The father’s permanent parenting plan asks the Court to order the
children back to Chattanooga. If the Court were to require the children to
come back to Chattanooga, it would disrupt the continuity in their lives.
They have been in a stable and satisfactory environment in Michigan since
August of 2016. They are making excellent grades and are very close to
each other. The school system is strong. Theo is participating in the same
athletic endeavors he participated in at Baylor and Ava is excelling in
French and heading up the French Club. Judge Hollingsworth has already
found the relocation was reasonable and not vindictive. Mrs. Robbins
would have been unable to successfully provide for the children without the
support of her family in Michigan. On the issue of continuity and stability,
it is important to note that the family only moved to Chattanooga in 2013.
There is finding of physical abuse perpetrated by the father on Ava
and emotional abuse perpetrated by the father on both children. The
alcoholism which afflicts Mr. Robbins has had a significant negative
impact on both children as evidenced by their testimony and Exhibits 1 and
33.
There is no evidence concerning the behavior of any other person
who resides in or frequents the home of either parent. The Court finds the
children’s preference reasonable and each child clearly prefers their mother
have custody.
The mother’s employment schedule is more erratic than that of the
father and not as flexible as his. However, the mother lives in the same
state as the children and is readily available to them.
The Court finds custody of these children must be with the mother.
To rule otherwise would not be in the children’s best interest and would
clearly inflict additional pain and emotional distress on the children with no
positive results.
The Court now must adopt a permanent parenting plan which is in
the best interest of the children.
The mother has introduced into evidence two permanent parenting
plans. Both parenting plans provide that until the criminal charges are
resolved, there should be no parenting time by the father with the minor
children. Exhibits 3 and 32 differ in the child support provisions. The
Court will address the child support provisions and make findings in that
regard when the Court addresses income in this Opinion.
The Court finds Exhibit 1 shall be adopted as the permanent
parenting plan with the exception of the income findings and child support
-15-
calculations of paragraph III.A. The father shall pay 50 percent of
uncovered medical expenses. Further, paragraph I.B is modified so as to
permit the children to contact the father at their discretion. They will
initiate the contact and Mr. Robbins is enjoined and prohibited from
contacting them. He may, however, write letters to them and entrust those
letters to one of his brothers who will hold them until and if they are
requested by either or both of the children. The guardian ad litem shall
advise the children of this provision. If one or both expresses a desire to
receive the letters, the mother shall so inform any brother holding such
correspondence and may obtain them and give them to the children.
Further, if the children wish any contact with their relatives on their father’s
side of the family, they may initiate such contact. The father’s side of the
family may indicate an interest in interacting with the children by
contacting the mother. However, this contact shall not be on behalf of the
father.
The Court finds the motion to extend the order of protection shall be
denied based upon the restrictions contained in this permanent parenting
plan.
The Court now will address the income of the parties. It is clear that
the financial posture of this family has changed markedly over time. Mr.
Robbins’ business is in financial capital management. With the downturn
of the economy, there was a downturn in his business also. The family had
been living a very comfortable lifestyle. The children were being educated
in and had the anticipation of continuing to be educated in expensive
private schools. They lived in a very nice house on Signal Mountain. Mrs.
Robbins had been a stay-at-home mother for most of the marriage. Mr.
Robbins had been responsible for all of the income and the expenses of the
family. With the downturn in the economy, there also was a decrease in the
earnings of Mr. Robbins. According to the family’s individual tax returns,
the income declined from gross wages of $134,066.00 in 2011 to
$30,000.00 in 2014. The Court does not have the benefit of the 2015 and
2016 individual tax returns. The corporate returns reflect a change in gross
income of $378,208.00 in 2011 to $139,720.00 gross receipts in 2015. The
average income of Mr. Robbins reflected on the individual tax returns over
four years is $71,000.00, or $5,918.00 per month. This calculation is
inconsistent with Exhibit 11 which shows defendant Robbins’ statement of
gross total monthly income as $13,930.00. Exhibit 11 shows Mr. Robbins’
contention as to his income before the expenses of RCM are deducted from
the RCM fees is $8,283.00. Yet on his income and expense statement filed
October 7, 2016, the income sworn to is $15,226.67. The evidence also
establishes that he had advised Mrs. Robbins through the years that his
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business was worth in the area of $400,000.00. The Court finds credible
his contention that his income has decreased substantially because of the
stock market and other factors. His wife and children all are drawing
Social Security because of his age. The Court also finds credible Mr.
Robbins’ contention that this litigation has impacted his ability to earn.
However, the Court also finds that once Mr. Robbins’ focus is off of this
litigation and is returned to his business, he will recoup some of that ability
to earn. Accordingly, the Court finds his income for child support purposes
to be $14,000.00 per month.
The Court finds the income of Mrs. Robbins is generated by her
work at Wal-Mart in the bakery and by which she receives because of the
Social Security benefits based on her husband having qualified for Social
Security. The Court finds the gross income of Mrs. Robbins for child
support purposes to be $800.00 from Walmart plus $642.00 from Social
Security. Therefore, for purposes of the child support calculation her
income is $1,442.00 per month. The Court does not find credible Mr.
Robbins’ contentions that Mrs. Robbins can earn $50,000.00 to
$100,000.00 a year as a paralegal. It has been many years since she worked
as a paralegal and common sense dictates that her skills have atrophied.
Additionally, the practice of law and the way and manner in which
paralegals are utilized have changed substantially through the years.
Therefore, the Court does not find that she can supplement her earnings as a
paralegal.
For purposes of child support, there are no work-related child care
expenses or recurrent expenses that should be included in the child support
calculation. The mother shall provide insurance for the children at a cost of
$317.94 per month. For the purpose of child support, Mr. Robbins’
numbers of days shall be reflected as zero and Mrs. Robbins shall be 365.
The children draw Social Security benefits off of Mr. Robbins so the child
support worksheet shall reflect a credit of $1,273.00. The Court also rejects
the contention of Mr. Robbins that he should have a credit based on the
children’s ability to earn. This position is not substantiated by the law.
Counsel for Mrs. Robbins is ORDERED to prepare a Child Support
Worksheet using these findings.
The Court now moves on to the division of assets and liabilities. In
the division of assets and liabilities, the Court is guided by T.C.A. 36-4-
121. The Court first is required to determine what property is marital and
what property is separate. The Court finds the following assets are separate
property:
Plaintiff’s Separate Assets Value
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Wedding Ring $36,500.002
Miscellaneous Jewelry $400.00
Pensco IRA/Vanguard IRA (Liquidated Rvest Shares. Transferred to
Vanguard) $12,822.33
Total $49,722.33
Defendant’s Separate Assets Value
Cartier Santos Watch Unknown
Coin Collection $200.00
Stamp Collection $100.00
½ Silver and Flatwear (Scholze silver) $2,250.00
Total $2,550.00
The Court further finds Robbins Capital Management holds a
significant value still despite Mr. Robbins’ contentions. However, the
Court finds it is no longer worth $400,000.00 as contended by Mrs.
Robbins. The Court notes Mr. Robbins values his business on Exhibit 12 at
$600.00. The Court finds this simply is not credible and values the
business at $250,000.00. The Court further finds that the Rvest IRA has
been diminished by withdrawals by Mr. Robbins and the monies were used
for family purposes. Remaining is $11,000.00 equity.
Upon an assessment of the credibility of the witnesses, the Court
finds Mrs. Robbins’ credibility substantially greater than that of Mr.
Robbins. The Court finds Mr. Robbins’ analysis is clouded by emotion and
by a belief that his recollection of events is accurate to the exclusion of any
other analysis. The evidence of his alcohol consumption is substantial and
that very well may be playing a part in his inability to accurately recall the
events. The Court does not find he is intentionally misrepresenting
anything and finds he is a man who is attempting to do what is right.
However, his analysis simply is flawed.
The Court, therefore, finds the valuations in Exhibit 5 and the
division of assets and liabilities as amended by this Memorandum Opinion
to be an appropriate division of assets and liabilities. The Court finds that
Mr. Robbins’ protestations about the incurring of medical bills on behalf of
the children are not well based. The Court also finds credible Mrs.
Robbins’ statements that she does not have the items he has not reclaimed.
2
In handwritten notes on the order of divorce, the Trial Court stated that “the memorandum opinion is
amended . . . to value the rings at $39,500 . . . .”
-18-
Any items she has which he claims are missing, she shall return to him.
However, the Court finds credible that they are not in her possession.
Payment to make the division equitable in the amount of $50,000.00 shall
be made by Mr. Robbins to Mrs. Robbins.
The Court does ORDER the Christmas ornaments to be divided
equally. Mrs. Robbins shall divide them and have one-half of them
delivered to Mr. Robbins. The Court specifically finds the wedding ring
and bands were gifts to Mrs. Robbins and not an investment. Those rings
are valued at $39,500.00 (two bands and one engagement ring) and are
separate property of Mrs. Robbins.
The alimony analysis is problematic. Mr. Robbins clearly has a
substantially greater ability to earn than does Mrs. Robbins and his current
earnings are substantially greater than hers. However, he also is being
assessed with a substantial amount of debt. T.C.A. 36-5-101 addresses
alimony. There is a clear preference for alimony which is rehabilitative or
transitional in nature as opposed to alimony in solido or alimony in futuro.
This is a situation in which the Court finds transitional alimony is not
appropriate as Mrs. Robbins cannot be rehabilitated so that her earning
capacity can even begin to approach that of Mr. Robbins. The transition
necessary for the wife and children has already taken place. That transition,
however, has not been able to be effectuated in a way which would
eliminate her need.
The Court finds, pursuant to T.C.A. 36-5-121, that Mr. Robbins has
a substantially greater earning capacity, financial resources, and income
from other sources. His education is substantially greater than that of Mrs.
Robbins. It is unrealistic to think that either will obtain additional
education and training so as to improve earning capacity. This is a
marriage of 21 years duration. Mr. Robbins is 70 years of age but certainly
does not appear to be of that age and, other than as commented previously
in this Opinion, he has retained the mental condition to do his job. He
called two witnesses who are well acquainted with him who substantiated
his strengths and he has the support of his family members. There was no
evidence of any deterioration in physical condition of either party. It is
desirable for both parties to seek employment outside of the home. The
separate assets do not obviate the need in this case and the Court finds the
division of marital property to be equitable. The standard of living
established by the parties during the marriage was substantially greater than
it is now. However, the standard of living of Mr. Robbins has diminished
as has that of Mrs. Robbins and the children. The deterioration in the
wife’s and children’s standard of living is starkly contrasted to Mr.
Robbins’ standard of living. Both parties made substantial contributions to
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the marriage. The Court finds the fault in this case rests with Mr. Robbins
and his alcohol abuse which skewed his ability to communicate effectively
and appropriately with his family. His demands for his wife to obtain
employment were inconsistent and unrealistic. The Court does find the
financial stresses on this family are what ultimately resulted in the divorce
but it is the way and manner in which each party handled those factors that
resulted in the divorce. The Court has equitably divided the assets and is
taking into consideration the Social Security benefits available to each
party.
Accordingly, the Court finds this is an appropriate case for alimony
in futuro. The Court ORDERS alimony in futuro of $1,200.00 a month,
recognizing this in no way meets the identified and reasonable needs of
Mrs. Robbins but also recognizing Mr. Robbins presently is not earning at
his maximum potential.
The Court finds the parties have stipulated they are to be divorced
pursuant to T.C.A. 36-4-129.
The Court finds there is an arrearage for child support and alimony
in the amount of $743.00 and for car related expenses of $1,377.00.
Judgment is entered for $2,120.00
The costs of this cause are taxed to Mr. Robbins for which execution
may issue, if necessary, and the Court ORDERS Attorney Lawrence to
submit an affidavit of attorney’s fees, recognizing that the attorney’s fees
will be substantially greater than either party probably can afford for the
substantial and necessary work she has done on this case.
After entry of the order of divorce, the Trial Court entered an order denying
Wife’s request for attorney’s fees. The Trial Court also entered a domestic relations
order. Husband timely appealed.
Discussion
Husband, pro se, raises 18 separate issues on appeal along with a 16-part
“summary of arguments.” We restate and consolidate Husband’s litany of issues into the
following dispositive issues: 1) whether the Trial Court erred in its valuation,
classification and division of marital property; 2) whether the Trial Court exhibited
disqualifying bias against Husband; 3) whether the Trial Court erred in admitting the
video of a family confrontation into evidence; 4) whether the Trial Court erred in
declining to allow Husband to question the Children; 5) whether the Trial Court erred in
adopting the permanent parenting plan; and, 6) whether the Trial Court erred in granting
Wife alimony in futuro, and in the amount it did. Wife raises her own issue of whether
she should be granted her attorney’s fees incurred on appeal.
-20-
Our review is de novo upon the record, accompanied by a presumption of
correctness of the findings of fact of the trial court, unless the preponderance of the
evidence is otherwise. Tenn. R. App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727
(Tenn. 2001). A trial court’s conclusions of law are subject to a de novo review with no
presumption of correctness. S. Constructors, Inc. v. Loudon County Bd. of Educ., 58
S.W.3d 706, 710 (Tenn. 2001). As our Supreme Court has instructed regarding witness
credibility:
When credibility and weight to be given testimony are involved,
considerable deference must be afforded to the trial court when the trial
judge had the opportunity to observe the witnesses’ demeanor and to hear
in-court testimony. Estate of Walton v. Young, 950 S.W.2d 956, 959 (Tenn.
1997) (quoting Randolph v. Randolph, 937 S.W.2d 815, 819 (Tenn. 1996)).
Because trial courts are able to observe the witnesses, assess their
demeanor, and evaluate other indicators of credibility, an assessment of
credibility will not be overturned on appeal absent clear and convincing
evidence to the contrary. Wells v. Bd. of Regents, 9 S.W.3d 779, 783
(Tenn. 1999).
Hughes v. Metro. Gov’t of Nashville and Davidson County, 340 S.W.3d 352, 360 (Tenn.
2011).
We first address whether the Trial Court erred in its valuation, classification and
division of marital property. As noted by this Court in King v. King, 986 S.W.2d 216,
219 (Tenn. Ct. App. 1998) (quoting Roseberry v. Roseberry, No. 03A01-9706-CH-
00237, 1998 WL 47944, at *4 (Tenn. Ct. App. Feb. 9, 1998), no appl. perm. appeal
filed), when dividing marital property:
The trial court’s goal in every divorce case is to divide the parties’ marital
estate in a just and equitable manner. The division of the estate is not
rendered inequitable simply because it is not mathematically equal, Cohen
v. Cohen, 937 S.W.2d 823, 832 (Tenn. 1996); Ellis v. Ellis, 748 S.W.2d
424, 427 (Tenn. 1988), or because each party did not receive a share of
every item of marital property. Brown v. Brown, 913 S.W.2d [163] at
168.... In the final analysis, the justness of a particular division of the
marital property and allocation of marital debt depends on its final results.
See Thompson v. Thompson, 797 S.W.2d 599, 604 (Tenn. App. 1990).
A trial court, therefore, has wide discretion in dividing the interest of the parties in
marital property. Barnhill v. Barnhill, 826 S.W.2d 443, 449 (Tenn. Ct. App. 1991).
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Critically, Husband failed to include in his appellate brief a table of the property or
debt at issue. Rule 7 of the Rules of the Court of Appeals provides:
(a) In any domestic relations appeal in which either party takes issue with
the classification of property or debt or with the manner in which the trial
court divided or allocated the marital property or debt, the brief of the party
raising the issue shall contain, in the statement of facts or in an appendix, a
table in a form substantially similar to the form attached hereto. This table
shall list all property and debts considered by the trial court, including: (1)
all separate property, (2) all marital property, and (3) all separate and
marital debts.
(b) Each entry in the table must include a citation to the record where each
party’s evidence regarding the classification or valuation of the property or
debt can be found and a citation to the record where the trial court’s
decision regarding the classification, valuation, division, or allocation of the
property or debt can be found.
(c) If counsel disagrees with any entry in the opposing counsel’s table,
counsel must include in his or her brief, or in a reply brief if the issue was
raised by opposing counsel after counsel filed his or her initial brief, a
similar table containing counsel’s version of the facts.
Rule 7 then gives an example of the type of table that is to be provided by the parties. As
to the consequences of an appellant’s failure to comply with Rule 7 where applicable, we
have stated:
[W]here an appellant fails to comply with this rule, that appellant waives all
such issues relating to the rule’s requirements. This Court is under no duty
to search a trial court record in order to discern the valuation of the couple’s
property. This Court has previously found issues involving the valuation
and division of property waived for failure to comply with Rule 7.
Harden v. Harden, No. M2009-01302-COA-R3-CV, 2010 WL 2612688, at *8 (Tenn. Ct.
App. June 30, 2010) (citations and quotation marks omitted), no appl. perm. appeal filed.
Husband’s failure to include a Rule 7 table is not the only deficiency with his
brief. Husband lays out no standard of review. Husband only sporadically cites to legal
authority. Most of Husband’s arguments are mere conclusory assertions. As we have
warned repeatedly:
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Courts have routinely held that the failure to make appropriate references to
the record and to cite relevant authority in the argument section of the brief
as required by Rule 27(a)(7) constitutes a waiver of the issue. See State v.
Schaller, 975 S.W.2d 313, 318 (Tenn. Crim. App. 1997); Rampy v. ICI
Acrylics, Inc., 898 S.W.2d 196, 210 (Tenn. Ct. App. 1994); State v.
Dickerson, 885 S.W.2d 90, 93 (Tenn. Crim. App. 1993). Moreover, an
issue is waived where it is simply raised without any argument regarding its
merits. See Blair v. Badenhope, 940 S.W.2d 575, 576-577 (Tenn. Ct. App.
1996); Bank of Crockett v. Cullipher, 752 S.W.2d 84, 86 (Tenn. Ct. App.
1988).... As noted in England v. Burns Stone Company, Inc., 874 S.W.2d
32, 35 (Tenn. Ct. App. 1993), parties cannot expect this court to do its work
for them. This Court is under no duty to verify unsupported allegations in a
party’s brief, or for that matter consider issues raised but not argued in the
brief. Duchow v. Whalen, 872 S.W.2d 692, 693 (Tenn. Ct. App. 1993)
(citing Airline Const. Inc., [sic] v. Barr, 807 S.W.2d 247 (Tenn. Ct. App.
1990)).
Bean v. Bean, 40 S.W.3d 52, 55-56 (Tenn. Ct. App. 2000).
A Rule 7 table is especially important because, in the final analysis, what we are
concerned with as to property division is the overall division of the marital estate and
whether that division is equitable. Husband simply itemizes various funds, properties and
debts and takes issue with the Trial Court’s findings with respect to each. As an
appellate court, we review trial courts’ decisions for error; we do not conduct new trials
on appeal, nor do we tweak divisions of marital estate piecemeal.
This Court may suspend the requirements of its rules for “good cause.” See Tenn.
R. Ct. App. 1(b). We find no such good cause here. We, therefore, find waived all issues
raised by Husband with respect to the valuation, classification and division of property,
as well as debts, and affirm the Trial Court as to this issue.
Despite the deficiencies of Husband’s brief and, mindful of his pro se status, we
proceed to consider his other issues with the next being whether the Trial Court exhibited
bias. “All litigants have a right to have their cases heard by fair and impartial judges.”
Davis v. Tennessee Dept. of Employment Sec., 23 S.W.3d 304, 313 (Tenn. Ct. App.
1999). “Parties who challenge a judge’s impartiality must come forward with some
evidence that would prompt a reasonable, disinterested person to believe that the judge’s
impartiality might reasonably be questioned.” Id. “The alleged bias or prejudice of the
judge, moreover, must come from an extrajudicial source and not be based on what the
judge see or hears before him.” In re C.T.S., 156 S.W.3d 18, 23 (Tenn. Ct. App. 2004).
-23-
Essentially, Husband’s argument is that the Trial Court was biased against him
because the Trial Court disbelieved much of his testimony and largely ruled against him.
This, of course, is not what judicial bias is. Judges, in the course of what they see and
hear before them, routinely make rulings adverse to parties. That is the essence of a trial
judge’s job. That is very different from being predisposed to rule against a party for
some outside reason. In addition, even if the Trial Court erred in some respect as indeed
we go on to find it did here, that is not necessarily a product of bias either. It is simply an
error.
Nothing the Trial Court said or did in the present case could reasonably be
construed as demonstrating improper bias against Husband. Indeed, the Trial Court in its
memorandum opinion stated that it believed Husband had the right motives even if his
arguments were unconvincing. This issue is without merit.
We next address whether the Trial Court erred in admitting the video of a family
confrontation into evidence. We review evidentiary rulings of the trial court for abuse of
discretion. White v. Vanderbilt Univ., 21 S.W.3d 215, 222 (Tenn. Ct. App. 1999).
Husband contends that “it was highly altered and edited -- was incomplete and inaccurate
-- from its continuous original cell phone recording into about a dozen discontinuous
segments” and that “the only segment showing contact between Ms. Robbins and me
began at the point of my outstretched arm, which was in fact my feeble attempt to defend
my shoulder’s from postsurgery 3-6 weeks earlier, so Ms. Robbins could and did
approach me ‘rabidly’, so I did not approach her, but had asked ‘Who threw me.’” The
following exchange occurred at trial:
Q. And let’s play the video, since there’s been some question about it -- it’s
very short -- of the incident where you said in your deposition you were just
being a good father.
MR. ROBBINS: I object to the video, Your Honor. It’s not the true
rendition that was taken on a cell phone. It’s highly edited. It’s in
segments of -- at least the one I got, which is supposed to be the true copy
that they included in the discovery. These are about ten to 20 segments,
and almost all of them are exactly 12 seconds each. They are not one
continuous flow. They may have deleted some. They may have edited
some of them. It has to be edited. It’s not the true event. My daughter
doesn’t have a 12-second clock. These are discontinuous videos that don’t
represent what happened. The numbers or labels on the video are not
continuous. There’s no explanation as to why any of this is so highly
edited. And the critical segment that shows some contact does not show
what happened immediately beforehand. And the audio goes in and out.
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THE COURT: Ms. Lawrence, foundation?
MS. LAWRENCE: Yes. I can put -- I don’t know what was said with the
children.
THE COURT: I’m getting ready to address that, but what is your
foundation?
MS. LAWRENCE: Okay. My client can testify that she was there and that
the video has not been edited. Mr. Robbins knows this. The daughter, Ava
-- and I know nothing from what she said back there -- but the daughter,
Ava, had her cell phone on, and in between all these skirmishes, she’s
trying to video. There’s no question --
THE COURT: Okay. I can put on the record that there has been some
discussion with the children and the Court about the video, and they
testified it had not been edited and that it was accurate. Now, you may --
your objections will go to credibility and to the weight of the video, and the
Court notes your objections, it notes that you believe it to be an incomplete
and inaccurate video. Okay?
MR. ROBBINS: Yes, Your Honor.
We have reviewed the video. The video depicts Husband and his family yelling
and screaming at one another. It is a regrettable scene. While the video is discontinuous
as Husband asserts, it does not appear to be edited in any other fashion. If nothing else,
the video is additional evidence of the unfortunate breakdown in the family relationship.
We find no reversible error in the Trial Court’s discretionary decision to admit the video.
We next address whether the Trial Court erred in declining to allow Husband to
question the Children. The Trial Court questioned the Children in chambers in the
presence of the guardian ad litem and a court reporter but not Wife’s counsel or Husband
who was acting as his own counsel. In Rutherford v. Rutherford, 971 S.W.2d 955, 956-
57 (Tenn. Ct. App. 1997), we discussed the requirements for questioning a child outside
the courtroom setting:
The Trial Judge has discretion to interview children apart from the
courtroom setting if he considers it is in the best interest of the child.
However, if he elects to follow this procedure, he must examine the child
“in the presence of attorneys for each side and in the presence of the court
reporter” Newburger v. Newburger, 10 Tenn. App. 555, 566 (1930), and in
order to have a complete record on appeal, a transcript of such evidence
must be filed.
In Haines v. Haines, No. E2005-02180-COA-R3-CV, 2007 WL 27112, at *7 (Tenn. Ct.
App. Jan. 4, 2007), no appl. perm. appeal filed, we held that: “[T]he right to have counsel
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physically present during a trial court’s interview of a child is a substantial right,
implicating, as it does, a litigant’s right to due process.”
In the somewhat more recent case of Maxwell v. Woodard, No. M2011-02482-
COA-R3-CV, 2013 WL 2420500, at *18 (Tenn. Ct. App. May 31, 2013), no appl. perm.
appeal filed, we looked favorably upon a trial court’s decision to exclude parents from
the room while the child testified, stating: “The GAL told the trial court that the parents’
presence during testimony would make the child deeply uncomfortable, and the trial
court wisely chose to exclude the parents from her chambers during Maxwell’s
testimony.” However, in Maxwell as opposed to the present case, “[t]he trial court began
by hearing Maxwell’s testimony in chambers, with counsel and the guardian ad litem
present . . . .” Id. at *2 (emphasis added). The trial judge and guardian ad litem
proceeded to question the child. Id. at *3-4.
The following exchanges occurred at trial relative to this issue of the Children
testifying in chambers:
MS. LAWRENCE: And we do have a stipulation, I think, to have the
children go ahead and, as you requested, testify, and so the guardian
doesn’t have to spend all day here at an added expense. Is that correct?
MR. ROBBINS: That’s agreeable, yes, Your Honor.
THE COURT: All right. Then I would like each of you to give to the
guardian a list of the areas of inquiry, and he and I will meet with the
children in chambers with the court reporter, and I will talk to the children
in private, with the guardian ad litem and the court reporter.
MS. LAWRENCE: Okay.
MR. ROBBINS: I didn’t know that was going to be the format, but I think I
can accommodate it, Your Honor.
THE COURT: That is the customary way it is done, and it’s not
discretionary with you, sir, it’s discretionary with me.
MR. ROBBINS: I didn’t understand your prior comments. Okay, Your
Honor.
***
THE COURT: Thank you, sir. All right. As I understand it, it’s the
parties’ request that I talk to the children now. I will talk to them
separately. Mr. Neal, I will let you make the determination with whom I
will speak first, so if you will meet me in chambers with one of the
children. And do you each have questions you want me to look at?
MR. ROBBINS: Yes, Your Honor.
-26-
THE COURT: Hand them to my court officer, please.
Initially, we recognize that the Trial Court took steps to ensure fairness to the
parties and proper procedure. The record contains a sealed transcript of the Children’s
testimony in chambers, which facilitates appellate review. The Trial Court also invited
the parties to submit questions. Nevertheless, we are troubled by the Trial Court’s
decision to exclude Wife’s counsel and Husband, acting pro se, and the attendant due
process implications.
This is perhaps an unusual scenario. Given Husband’s history of domestic assault,
the Trial Court understandably was hesitant to subject the Children to his interrogation.
We do not take issue with the Trial Court’s decision to not permit Husband to directly
question the Children. To that extent, we disagree with Husband’s argument on appeal.
However, Wife’s counsel and pro se Husband were not in the same room as the Children
during their testimony, and the Children’s testimony subsequently was sealed.
The Trial Court found that it “has not spoken with two teenagers who were as
appropriate, intelligent, well-spoken, clear in their thought process, and mature as these
two young people.” Having read their testimony, we see how the Trial Court arrived at
this assessment of the Children’s intelligence and maturity. The Children’s welfare is of
course a high priority, but the due process rights of the parents may not be ignored either.
As a result of the procedure adopted by the Trial Court, the parties had no access
to or knowledge of the Children’s testimony. It was sealed and made unavailable to them
but was considered by the Trial Court. Although Wife’s counsel and pro se Husband
were allowed to submit questions beforehand, that is no substitute for being there. Wife’s
counsel and Husband perhaps could have supplemented their questions in response to the
Children’s testimony by submitting additional questions in writing to be asked by the
Trial Court. At the very least, they would have known what was being said by the
Children and considered by the Trial Court in a case in which the parents’ as well as the
Children’s interests were at stake. We hold that the Trial Court erred in excluding Wife’s
counsel and Husband, acting as his own counsel, from chambers during the Children’s
testimony or, at a minimum, providing some method for Wife’s counsel and Husband,
pro se, to be able to observe the testimony live from a location other than the Judge’s
chambers.
Our holding that the Trial Court erred, however, does not conclude our analysis.
Not all error is reversible. Rule 36 of the Tennessee Rules of Appellate Procedure
provides that a final judgment “shall not be set aside unless, considering the whole
record, error involving a substantial right more probably than not affected the judgment
or would result in prejudice to the judicial process.” Tenn. R. App. P. 36(b). The Trial
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Court clearly relied on a host of other testimony and evidence in arriving at its
conclusions regarding parenting. We hold that the Trial Court’s error in questioning the
Children outside of the presence of Wife’s counsel and Husband, pro se, or in the
alternative, providing some means for them to observe the Children’s testimony live was
error but, under these circumstances, not reversible error. This additional testimony and
evidence as already discussed in the Opinion more than preponderates in favor of the
Trial Court’s findings relevant to the issue of parenting.
Having resolved the prior issue concerning the questioning of the Children, we
next address whether the Trial Court erred in adopting the permanent parenting plan. As
our Supreme Court has instructed:
A trial court’s decision regarding the details of a residential
parenting schedule should not be reversed absent an abuse of discretion.
Armbrister v. Armbrister, 414 S.W.3d at 693 (citing Eldridge v. Eldridge,
42 S.W.3d at 88). A trial court abuses its discretion when it applies an
incorrect legal standard, reaches an illogical conclusion, bases its decision
on a clearly erroneous assessment of the evidence, or employs reasoning
that causes an injustice to the complaining party. State v. Banks, 271
S.W.3d 90, 116 (Tenn. 2008) (citing Konvalinka v. Chattanooga–Hamilton
Cnty. Hosp. Auth., 249 S.W.3d 346, 358 (Tenn. 2008)). A trial court
abuses its discretion in establishing a residential parenting schedule “only
when the trial court’s ruling falls outside the spectrum of rulings that might
reasonably result from an application of the correct legal standards to the
evidence found in the record.” Armbrister v. Armbrister, 414 S.W.3d at
693 (quoting Eldridge v. Eldridge, 42 S.W.3d at 88).
Kelly v. Kelly, 445 S.W.3d 685, 692 (Tenn. 2014).
When making a determination in a divorce proceeding regarding custody of a
minor child, a court is to consider the factors contained in Tenn. Code Ann. § 36-6-106,
which provides, in pertinent part:
(a) In a suit for annulment, divorce, separate maintenance, or in any other
proceeding requiring the court to make a custody determination regarding a
minor child, the determination shall be made on the basis of the best
interest of the child. In taking into account the child’s best interest, the
court shall order a custody arrangement that permits both parents to enjoy
the maximum participation possible in the life of the child consistent with
the factors set out in this subsection (a), the location of the residences of the
parents, the child’s need for stability and all other relevant factors. The
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court shall consider all relevant factors, including the following, where
applicable:
(1) The strength, nature, and stability of the child’s relationship with each
parent, including whether one (1) parent has performed the majority of
parenting responsibilities relating to the daily needs of the child;
(2) Each parent’s or caregiver’s past and potential for future performance of
parenting responsibilities, including the willingness and ability of each of
the parents and caregivers to facilitate and encourage a close and continuing
parent-child relationship between the child and both of the child’s parents,
consistent with the best interest of the child. In determining the willingness
of each of the parents and caregivers to facilitate and encourage a close and
continuing parent-child relationship between the child and both of the
child’s parents, the court shall consider the likelihood of each parent and
caregiver to honor and facilitate court ordered parenting arrangements and
rights, and the court shall further consider any history of either parent or
any caregiver denying parenting time to either parent in violation of a court
order;
(3) Refusal to attend a court ordered parent education seminar may be
considered by the court as a lack of good faith effort in these proceedings;
(4) The disposition of each parent to provide the child with food, clothing,
medical care, education and other necessary care;
(5) The degree to which a parent has been the primary caregiver, defined as
the parent who has taken the greater responsibility for performing parental
responsibilities;
(6) The love, affection, and emotional ties existing between each parent and
the child;
(7) The emotional needs and developmental level of the child;
(8) The moral, physical, mental and emotional fitness of each parent as it
relates to their ability to parent the child. The court may order an
examination of a party under Rule 35 of the Tennessee Rules of Civil
Procedure and, if necessary for the conduct of the proceedings, order the
disclosure of confidential mental health information of a party under § 33-
3-105(3). The court order required by § 33-3-105(3) must contain a
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qualified protective order that limits the dissemination of confidential
protected mental health information to the purpose of the litigation pending
before the court and provides for the return or destruction of the
confidential protected mental health information at the conclusion of the
proceedings;
(9) The child’s interaction and interrelationships with siblings, other
relatives and step-relatives, and mentors, as well as the child’s involvement
with the child’s physical surroundings, school, or other significant
activities;
(10) The importance of continuity in the child’s life and the length of time
the child has lived in a stable, satisfactory environment;
(11) Evidence of physical or emotional abuse to the child, to the other
parent or to any other person. The court shall, where appropriate, refer any
issues of abuse to juvenile court for further proceedings;
(12) 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;
(13) 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;
(14) Each parent’s employment schedule, and the court may make
accommodations consistent with those schedules; and
(15) Any other factors deemed relevant by the court.
Tenn. Code Ann. § 36-6-106(a) (2017).
This Court, in a series of cases, has stated that the parental relocation statute,
Tenn. Code Ann. § 36-6-108, is not to be applied when a court is making an initial
permanent custody determination as is the situation here. E.g., Port v. Hatton, No.
M2011-01580-COA-R3-CV, 2013 WL 865549 (Tenn. Ct. App. March 6, 2013), no appl.
perm. appeal filed; Nasgovitz v. Nasgovitz, No. M2010-02606-COA-R3-CV, 2012 WL
2445076 (Tenn. Ct. App. June 27, 2012), no appl. perm. appeal filed. Furthermore, the
parental relocation statute itself provides that it is to be applied “[a]fter custody or co-
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parenting has been established by the entry of a permanent parenting plan or final order,
....” Tenn. Code Ann. § 36-6-108(a) (2017).
The Trial Court made detailed findings, quoted above. In particular, the Trial
Court found that the Children were happy and well-adjusted to life in Michigan.
Husband’s assertions that the Children were brainwashed by their mother were rejected
by the Trial Court. We defer to the credibility determinations of the Trial Court absent
clear and convincing evidence to the contrary, and here we find no such evidence to the
contrary. The permanent parenting plan entered by the Trial Court is indeed highly
restrictive toward Husband, providing in part: “Father shall not exercise parenting time
with the minor children until all criminal charges against him regarding domestic
violence are resolved, and then only professionally supervised visitation on every other
Sunday from 2:00 to 4:00 p.m.” The evidence does not preponderate against the Trial
Court’s findings. We affirm the Trial Court in its formulation and entry of the permanent
parenting plan as being in the best interest of the Children.
We next address whether the Trial Court erred in granting Wife alimony in futuro,
and in the amount it did. As our Supreme Court has instructed:
For well over a century, Tennessee law has recognized that trial
courts should be accorded wide discretion in determining matters of spousal
support. See Robinson v. Robinson, 26 Tenn. (7 Hum.) 440, 443 (1846)
(“Upon a divorce ... the wife is entitled to a fair portion of her husband’s
estate for her support, and the amount thus to be appropriated is a matter
within the legal discretion of the chancellor....”). This well-established
principle still holds true today, with this Court repeatedly and recently
observing that trial courts have broad discretion to determine whether
spousal support is needed and, if so, the nature, amount, and duration of the
award. See, e.g., Bratton v. Bratton, 136 S.W.3d 595, 605 (Tenn. 2004);
Burlew v. Burlew, 40 S.W.3d 465, 470 (Tenn. 2001); Crabtree v. Crabtree,
16 S.W.3d 356, 360 (Tenn. 2000).
Equally well-established is the proposition that a trial court’s
decision regarding spousal support is factually driven and involves the
careful balancing of many factors. Kinard v. Kinard, 986 S.W.2d 220, 235
(Tenn. Ct. App. 1998); see also Burlew, 40 S.W.3d at 470; Robertson v.
Robertson, 76 S.W.3d 337, 340-41 (Tenn. 2002). As a result, “[a]ppellate
courts are generally disinclined to second-guess a trial judge’s spousal
support decision.” Kinard, 986 S.W.2d at 234. Rather, “[t]he role of an
appellate court in reviewing an award of spousal support is to determine
whether the trial court applied the correct legal standard and reached a
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decision that is not clearly unreasonable.” Broadbent v. Broadbent, 211
S.W.3d 216, 220 (Tenn. 2006). Appellate courts decline to second-guess a
trial court’s decision absent an abuse of discretion. Robertson, 76 S.W.3d
at 343. An abuse of discretion occurs when the trial court causes an
injustice by applying an incorrect legal standard, reaches an illogical result,
resolves the case on a clearly erroneous assessment of the evidence, or
relies on reasoning that causes an injustice. Wright ex rel. Wright v.
Wright, 337 S.W.3d 166, 176 (Tenn. 2011); Henderson v. SAIA, Inc., 318
S.W.3d 328, 335 (Tenn. 2010). This standard does not permit an appellate
court to substitute its judgment for that of the trial court, but “‘reflects an
awareness that the decision being reviewed involved a choice among
several acceptable alternatives,’ and thus ‘envisions a less rigorous review
of the lower court’s decision and a decreased likelihood that the decision
will be reversed on appeal.’” Henderson, 318 S.W.3d at 335 (quoting Lee
Medical, Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn. 2010) ).
Consequently, when reviewing a discretionary decision by the trial court,
such as an alimony determination, the appellate court should presume that
the decision is correct and should review the evidence in the light most
favorable to the decision. Wright, 337 S.W.3d at 176; Henderson, 318
S.W.3d at 335.
Gonsewski v. Gonsewski, 350 S.W.3d 105-06 (Tenn. 2011) (footnote omitted).
Here, Husband correctly points out the preference in Tennessee for rehabilitative
or transitional alimony over alimony in futuro. However, the Trial Court’s detailed
findings, supported by the evidence in the record, reflect that Wife is hugely
disadvantaged economically with respect to Husband and cannot be rehabilitated.
Although the parties may never re-establish the standard of living they enjoyed at the
financial height of the marriage, Wife’s need for support is significant, and Husband has
the ability to earn and pay said support. The Trial Court rejected Husband’s oft-repeated
contention that Wife could earn $50,000 to $100,000 as a paralegal. As the Trial Court
found, that is not realistic. Wife, entering her 60s, was a stay-at-home mother for two
decades. Wife requires significant ongoing assistance. As with the other issues on
appeal insofar as the Trial Court declined to credit Husband’s testimony, we find no
evidence rising to the level of clear and convincing to overturn the Trial Court’s
credibility determinations. We affirm the Trial Court’s award of alimony in futuro at the
rate of $1,200 per month.
Finally, we consider whether Wife is entitled to an award of attorney’s fees on
appeal. In the exercise of our discretion, we decline to award either party attorney’s fees
incurred on appeal. We affirm the judgment of the Trial Court.
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Conclusion
The judgment of the Trial Court is affirmed, and this cause is remanded to the
Trial Court for collection of the costs below. The costs on appeal are assessed against the
Appellant, Robert Scholze Robbins, and his surety, if any.
____________________________________
D. MICHAEL SWINEY, CHIEF JUDGE
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