Pritchett v. Pritchett

• Court: Court of Appeals of Tennessee
• Decided: April 28, 1998
• Docket: 03A01-9708-CH-00362
• Status: Published

Opinion

COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE FILED April 28, 1998

VICKIE GALE PRITCHETT, ) C/A NO. 03A01-9708-CH-00362 Jr. Cecil Crowson, ) Appellate C ourt Clerk Plaintiff-Appellee, ) ) ) ) v. ) APPEAL AS OF RIGHT FROM THE ) SULLIVAN COUNTY CHANCERY COURT ) ) ) ) DENNIS DAY PRITCHETT, ) ) HONORABLE RICHARD E. LADD, Defendant-Appellant.) CHANCELLOR

For Appellant For Appellee

THOMAS R. BANDY, III NAT H. THOMAS Kingsport, Tennessee Kingsport, Tennessee

O P I N IO N

AFFIRMED AND REMANDED Susano, J.

1 In this divorce case, the defendant, Dennis Day

Pritchett (“Father”), appealed. He raises issues pertaining to

custody, child support, and visitation. Those issues present the

following questions for our consideration:

1. Did the trial court err in awarding the plaintiff, Vickie Gale Pritchett (“Mother”), custody of Brandon Scott Pritchett and Jeremy Tyler Pritchett?

2. Did the trial court err in refusing to deviate from the Child Support Guidelines?

3. Did the trial court err in failing to direct the parties to meet at a point generally halfway between their residences to exchange their minor children in connection with visitation?

Prior to the parties’ marriage on May 5, 1990, Mother

was a widow with two children -- Jason and Brandon. As a

consequence of the death of her first husband, Wife receives a

monthly payment from the Social Security Administration for the

benefit of these two children.

Following the parties’ marriage, Father adopted Jason

and Brandon. The adoption had no effect on the children’s Social

Security entitlement. At the time of trial, the children’s

combined monthly Social Security payment was $1,712. Each of the

children will be entitled to a monthly benefit at least until the

age of majority.

Jeremy Tyler Pritchett was born to the parties on March

19, 1993. At the time of trial, his half-brothers, Jason and

Brandon, were age 16 and 12, respectively.

2 Our review is de novo on the record of the proceedings

below. Rule 13(d), T.R.A.P. That record comes to us with a

presumption of correctness that we must honor “unless the

preponderance of the evidence is otherwise.” Id. See also Hass

v. Knighton, 676 S.W.2d 554, 555 (Tenn.App. 1983). There is no

presumption of correctness as to the trial court’s conclusions of

law. Ganzevoort v. Russell, 949 S.W.2d 293, 296 (Tenn. 1997).

Father argues that the evidence preponderates against

the trial court’s implicit finding that the best interests of

Brandon and Jeremy dictate that their custody should be with

Mother.1 We do not reach Father’s issue with respect to his

adopted son, Brandon. This is because the record is replete with

references to the fact that Father was only seeking custody of

his natural child, Jeremy. For example, during the course of his

cross examination of Mother, Father’s counsel told the court that

“we’re not seeking custody of the two adopted children.” During

his direct examination of Father, the same counsel posed the

following question: “[W]hy do you want custody of Jeremy?”

(Emphasis added). He did not ask the same question with respect

to Brandon. There is nothing in the record even remotely

suggesting a request for Brandon’s custody.

Our jurisdiction is appellate only. T.C.A. § 16-4-

108(a)(1). We review issues that were properly raised and

litigated in the trial court. Irvin v. Binkley, 577 S.W.2d 677,

679 (Tenn.App. 1978). Issues cannot be raised for the first time

1 Father did not seek the custody of Jason at trial and does not seek his custody on this appeal. The record suggests that Jason has indicated a desire to live with Mother.

3 on appeal. Atkins v. Kirkpatrick, 823 S.W.2d 547, 551 (Tenn.App.

1991); Airline Construction, Inc. v. Barr, 807 S.W.2d 247, 264

(Tenn.App. 1990). Furthermore, a party will not be permitted to

advance a position on appeal when that party has argued a

contrary position at trial. Little v. Paduch, 912 S.W.2d 170,

174 (Tenn.App. 1995).

Father’s position in the trial court was that he did

not seek the custody of either of his adopted children. We will

not permit him to change his position on appeal, and thereby

attempt to cast the trial court in error for not doing something

that it was never asked to do.

On the subject of the parties’ natural child, Jeremy,

we do not find that the evidence preponderates against the trial

court’s decision to award his custody to Mother. We have

carefully considered all of the evidence in light of the factors

set forth in T.C.A. § 36-6-106 and the comparative fitness test

first pronounced as such in Bah v. Bah, 668 S.W.2d 663, 666

(Tenn.App. 1993). On balance, we find more than sufficient

evidence to justify the trial court’s decree. The issue of

custody addresses itself to the sound discretion of the trial

court. Grant v. Grant, 286 S.W.2d 349, 350 (Tenn.App. 1954). We

find no abuse of that discretion in the trial court’s award of

Jeremy’s custody.

The trial court set Father’s child support obligation

in strict compliance with the Child Support Guidelines

promulgated by the Department of Human Services pursuant to the

4 provisions of T.C.A. § 36-5-102(e). Father argues that a

deviation downward is justified in view of the fact that Mother

receives a Social Security benefit of $1,712 per month for his

adopted children -- a benefit directly tied to the death of their

natural father.

We find no basis in the Child Support Guidelines for a

deviation downward in this case. See Tenn.Comp.R. & Regs., ch.

1240-2-4-.04. See also Jones v. Jones, 930 S.W.2d 541, 545

(Tenn. 1996). The children’s Social Security benefit is totally

unrelated to Father. The Child Support Guidelines are based on

an underlying assumption that children of divorce are entitled to

the benefit of a certain percentage of the obligor parent’s

income. See Tenn.Comp.R. & Regs., ch. 1240-2-4-.02(2)(e) and ch.

1240-2-4-.03. See also Nash v. Mulle, 846 S.W.2d 803, 804-05

(Tenn. 1993). Generally speaking, this is true regardless of

other sources of income, support or monies that may be available

to those children. The evidence does not preponderate against

the trial court’s decision not to deviate from the support

dictated by a strict application of the Child Support Guidelines.

Finally, Father agues that the trial court erred in

failing to order the parties to exchange their children for

visitation at a halfway point between the parties’ respective

residences in Kingsport and Thomasville, North Carolina.

Issues pertaining to visitation also address the sound

discretion of the trial court. Suttles v. Suttles, 748 S.W.2d

427, 429 (Tenn. 1988). We will not disturb a trial court’s

5 judgment on this subject except on a showing of an abuse of

discretion. Id. We find no such abuse in this case.

The judgment of the trial court is affirmed. Costs are

taxed to the appellant and his surety. This case is remanded to

the trial court for enforcement of that court’s judgment and

collection of costs assessed below, all pursuant to applicable

law.

__________________________ Charles D. Susano, Jr., J.

CONCUR:

________________________ Houston M. Goddard, P.J.

________________________ Herschel P. Franks, J.