Burrell v. Burrell

Opinion

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

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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.

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Charles D. Susano, Jr., J.