Tammy Kemp v. Thomas Michael Hale

• Court: Court of Appeals of Tennessee
• Decided: August 24, 1999
• Docket: 03A01-9809-PB-00284
• Status: Published

Opinion

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE FILED August 24, 1999

Cecil Crowson, Jr. Appellate Court Clerk

THOMAS MICHAEL HALE, III, ) C/A NO. 03A01-9809-PB-00284 ) Plaintiff-Appellee, ) ) ) ) ) APPEAL AS OF RIGHT FROM THE v. ) CUMBERLAND COUNTY PROBATE ) AND FAMILY COURT ) ) ) ) TAMMY RENEE HALE, ) ) HONORABLE JAMES A. BEAN Defendant-Appellant.) JUDGE

For Appellant For Appellee

MICHAEL W. BINKLEY CRAIG P. FICKLING Nashville, Tennessee Ronald Thurman & Associates (Appeal Only) Cookeville, Tennessee

O P I N IO N

AFFIRMED AND REMANDED Susano, J.

1 This is a divorce case. The trial court granted Thomas

Michael Hale, III (“Father”) a divorce by judgment entered

January 24, 1997. At the time of the divorce, the defendant,

Tammy Renee Hale (“Mother”),1 was pregnant. For this reason, the

issues of the unborn child’s custody and related matters were

reserved in the divorce judgment “by the parties[’] mutual

agreement.” On April 18, 1997, Mother gave birth to Vadah Marie

Hale (“Vadah”). Following a hearing on July 13, 1998, the trial

court awarded Father sole custody of Vadah with specified

visitation rights being awarded to Mother. She appeals, urging

one issue, involving two concepts, that she states as follows:

Whether the record preponderates against the trial court’s factual finding that the father is more stable than the mother (and hence a comparatively better-fit custodian for the infant daughter) and whether the trial judge abused his discretion in awarding custody to the father based upon all relevant factors.

I. General Factual Overview

The parties met in Nashville in 1993. Mother had moved

there2 in 1987 following her graduation from high school in Rome,

Georgia. Father was also living in Nashville, but was originally

from Crossville. He lived in Nashville for three years, before

moving back to Crossville following the parties’ marriage in

October, 1995.

1 In the divorce judgment, Mother was restored to her maiden name of Kemp. 2 Mother was born in Nashville. Her family subsequently moved to Rome, Georgia. She has many relatives in the Nashville area.

2 The parties experienced problems in their marriage and

originally separated at a time not clearly identified in the

record.3 While the parties were separated, Father learned, in

July, 1996, that Mother was pregnant. The parties resumed

cohabitation, apparently in Crossville, for two weeks, after

which Mother once again removed herself from the marital

residence and returned to Nashville. She was there for six or

seven months. The parties were divorced on January 20, 1997.

Two weeks after the divorce, the parties got back

together in Crossville. Mother was still pregnant. According to

Father, the parties remained together this last time “until three

or four months after the baby was born.”

Mother and Vadah moved to an apartment on Old Hickory

Boulevard in Nashville in October, 1997. In June, 1998,

approximately a month before the final custody hearing on July

13, 1998, Mother and Vadah moved in with Mother’s parents in

Rome. Her father operates a Lee Fried Chicken franchise. She

testified that she had worked a few days a week at the restaurant

since returning to Rome.

Father -- Thomas Michael Hale, III -- had moved to

Huntsville, Alabama, from Crossville two weeks before the most

recent hearing below. He moved there to work for his brother-in-

law. He testified that he “book[ed] golf vacations into

Crossville and Huntsville.” He further testified that prior to

making the move to Huntsville, he had traveled back and forth

3 As can be seen from the dates that are known, the parties lived together as husband and wife for less than a year.

3 between Crossville and Huntsville for four or five months in

connection with his new job. He lives with his sister, his

employer/brother-in-law, and their daughter in a three-bedroom

house near Huntsville. Prior to leaving Crossville, Father had

worked at a golf course there.

II. Applicable Law

Our review of this non-jury case is de novo upon the

record of the proceedings below; however, that record comes to us

with a presumption that the trial judge’s factual findings are

correct. Rule 13(d), T.R.A.P. We must honor this presumption

unless we find that the evidence preponderates against those

findings. Id.; Hass v. Knighton, 676 S.W.2d 554, 555 (Tenn.

1984).

Our de novo review is subject to the well-established

principle that the trial judge is in the best position to assess

the credibility of the witnesses; accordingly, such credibility

determinations are entitled to great weight on appeal.

Massengale v. Massengale, 915 S.W.2d 818, 819 (Tenn.App. 1995);

Bowman v. Bowman, 836 S.W.2d 563, 566 (Tenn.App. 1991).

A trial court has broad discretion regarding a custody

determination.4 Brumit v. Brumit, 948 S.W.2d 739, 740 (Tenn.App.

1997); Marmino v. Marmino, 238 S.W.2d 105, 107 (Tenn.App. 1950);

4 Mother attempts to argue that this is a modification case rather than an original award of custody, citing an alleged oral understanding between the parties -- not memorialized in a signed writing -- that Mother would have sole custody. We disagree. The judgment now before us on this appeal is the original final award of custody in the divorce suit.

4 Varley v. Varley, 934 S.W.2d 659, 665 (Tenn.App. 1996). We will

not disturb such a determination unless the record reflects an

“erroneous exercise of that discretion.” Mimms v. Mimms, 780

S.W.2d 739, 744-45 (Tenn.App. 1989).

“Absent some compelling reason otherwise, considerable

weight must be given to the judgment of a trial court in a

divorce proceeding in respect to the credibility of the parties

and their suitability as custodians.” Id. at 744.

There are “[n]o hard and fast rules...for determining

which custody and visitation arrangement will best serve a

child’s needs.” Gaskill v. Gaskill, 936 S.W.2d 626, 630

(Tenn.App. 1996). A custody determination is “factually driven”

and “requires the courts to carefully weigh numerous

considerations.” Id. The overriding consideration is the best

interest of the child. Id. See T.C.A. § 36-6-106 (Supp. 1998).

As we said in Bah v. Bah, 668 S.W.2d 663, 665 (Tenn.App. 1983),

“neither trial nor appellate judges have any responsibility

greater than to attempt to correctly adjudicate child custody

disputes.” Id.

III. Trial Court’s Judgment

The trial court stated that it had considered the

factors set forth in T.C.A. § 36-6-106. Having done so, the

court concluded that Father should be awarded sole custody of

Vadah. It stated the following in its memorandum opinion from

the bench:

5 We have a young female child here; and as both attorneys know--but for the benefit of those people who are here--of course, T.C.A. 36-6-106 certainly sets out what the Court is to consider in making a determination with regard to where custody of a child or children should go; and the Court is well aware of that; and I take that into consideration in making this decision.

I’m of the opinion that, after taking everything into consideration, that the person who is the best parent, the best person to have custody of this child is the father. I think, after considering everything, he’s not perfect; neither is the mother; but I think he has stability.

One thing that really impressed me about him was the fact that--I assume he’s about twenty-nine. That was the age of Ms. Haile [sic], somewhere in there. I don’t know to that effect. What really impressed me is that this father has been visiting with this child every weekend. Most young people that I know of, particularly fathers, are not that responsible. They’d rather be out partying or going on a date; but here, he takes care of his daughter--that has not been controverted--on the weekends and has been doing so for quite some time. There was further testimony that he not only feeds the child, he cares for the child, he plays with the child, he bathes the child. And that’s not to take away from the mother. I’m sure the mother does that. But he impresses me as being the most stable of the parties at this time.

And keep in mind that custody of a child or children is never permanent. At any time there’s a showing that there’s a change in circumstances that would warrant changing custody, if it can be shown it would be in the best interest of the child or children, then the action can be brought back before the Court.

In the trial court’s judgment entered July 30, 1998 --

following the hearing on July 13, 1998 -- the court said as

follows:

6 After having conducted a comparative fitness analysis of the parties, taking into consideration the criteria set out in T.C.A. § 36-6-106 and other relevant factors including the demeanor of the parties and their witnesses, the Court finds that the defendant, Thomas Michael Hale, III, is more comparatively fit to have custody of the parties’ minor child, namely, Vadah Marie Hale. Specifically, the Court finds that it is in the best interest of the parties’ minor child that the defendant be vested with custody.

(Bold print in original).

IV. Analysis

A.

While expressing that it had considered all of the

factors set forth in T.C.A. § 36-6-106, the trial court focused

its primary attention on “[t]he stability of the family unit of

the parents.” T.C.A. § 36-6-106(4). The trial court concluded

that Father’s present situation was, relatively speaking, more

stable than that of Mother’s. Mother disagrees with this

assessment; she strenuously argues that she has the more stable

environment, one that is bolstered by a support network in Rome,

including Vadah’s maternal grandmother -- a person that everyone

agrees is capable of caring for Vadah in the absence of Mother.

The evidence does not preponderate against the trial

court’s determination that Father is the more stable of the two

parents. Father is employed in Huntsville at a full-time job.

After commuting between Crossville and Huntsville for three or

four months, Father made a determination that employment with his

7 brother-in-law was a good career move for him. This prompted him

to move his residence to Huntsville. There is no showing that

his sister’s house is an inappropriate place to raise Vadah. It

is true that the house only has three bedrooms to accommodate his

sister, her husband, their child -- a female, six years old --

and Father and Vadah; but there is no proof in the record that

Vadah’s living accommodations there are in any way harmful to

her.

While Mother’s accommodations in Rome are likewise

suitable for Vadah, there is another factor that comes into play

in evaluating the stability of Mother’s circumstances, i.e.,

Mother’s Nashville connection.

Mother admitted that she had four residences -- three

in Nashville and the present one in Rome -- in a period of a year

and a half. Since January, 1997, she had lived with her uncle in

Nashville; an aunt in Nashville; her apartment on Old Hickory

Boulevard; and now her parents’ home in Rome. There is an

abundance of proof that Mother exposed Vadah in Nashville to

people who, at a minimum, had previously used drugs. These

include Mother’s aunts, Missy and Doris, with whom she is close,

as well as Mother’s best friend, Jody Herendeen. Mother had

allowed each of these three individuals to keep Vadah for her.

When asked if these people were still using drugs, Mother stated

that she did not know; but it is obvious from the record that

Mother, within a year of the custody hearing, had allowed Vadah

to stay overnight with all three of these people even though

Mother knew they had used drugs in the past and could not say,

8 with any certainty, that they were no longer engaged in such

activity.

While Mother moved to Rome on the eve of the custody

hearing, it is clear that she still has significant ties to the

Nashville area. Her boy friend lives in Nashville. She

testified that the two of them had discussed marriage. When

asked if she planned to move back to Nashville, she very

cautiously said that she didn’t “plan on moving back any time

soon.” (Emphasis added).

There is evidence in the record from which it could be

reasonably inferred that while Mother is physically in Rome, her

heart is still in Nashville. It is a reasonable inference from

the proof that Mother intends to frequently visit, if not return

to, Nashville. She testified that she had been back to Nashville

since her recent “move” to Rome and that she took her child with

her. Her testimony does not reflect that she has made a

conscious decision to keep Vadah away from her aunts or her best

friend, despite her lack of knowledge as to whether they are

still using drugs.

Because of all of the above, we cannot say that the

evidence preponderates against a finding that Father’s abode in

Huntsville is more stable than Mother’s situation, involving, as

it clearly does, both time in Nashville as well as time in Rome.

9 B.

In the alternative, Mother argues that when considered

in the light of all of the factors enumerated in T.C.A. § 36-6-

106, the evidence preponderates against a finding that it is in

Vadah’s best interest to place her sole custody with Father.

Again, we disagree.

The guardian litem appointed in this case concluded

that both of the parents were fit to have Vadah’s custody. She

concluded that Mother should be awarded custody and so

recommended. She was persuaded that the residence in Rome was

the best place for Vadah to live. However, the guardian ad litem

acknowledged that Mother was emotionally “fragile,” something

also acknowledged by Mother’s counsel in her closing argument.5

Such a conclusion is not inconsistent with Mother’s psychological

evaluation in the April-May, 1998, time frame, that was performed

by Dr. Susan M. Bumgardner, a licensed clinical psychologist,

shortly before the custody hearing below. While finding “no

indication of any serious, stable psychopathology that would

necessitate therapy,” Dr. Bumgardner did state that tests

performed in connection with the evaluation “suggest that

[Mother] is a little more self-absorbed than most people and that

she may be less aware of the impact of her actions on the world

around her than most people.” There was evidence that Mother had

been medicated in the past for depression.

5 "Ms. Kemp [formerly Hale] is a fragile woman. We admit that. She has a history of panic attacks. Her mother has panic attacks. It appears to run in her family. But she’s doing okay.”

10 Mother and Father both admitted to using marijuana,

cocaine, and Valium while they were married; but the proof

reflects that neither had used drugs for approximately a year

prior to trial. The trial court accepted this evidence at face

value, as do we.

The trial court was impressed with Father’s

interactions with Vadah during visitation. Other witnesses

testified that Father was a good, attentive parent. Mother even

acknowledged that she knew of nothing to indicate Father had ever

harmed Vadah in any way. When asked at an earlier hearing if she

felt that Vadah was safe with her father, she answered in the

affirmative.

Contrary to Mother’s assertion, there were a number of

factual matters about which there was a dispute between the

parties. Mother’s evidence was to the effect that father had

threatened his former wife, her family and even his daughter if

he did not get custody. Father denied all of this. Mother said

that Father did not discourage her admitted use of marijuana

during her pregnancy; Father testified that he did. Mother

asserted that Father was not adept at administering Vadah’s

breathing treatments for her asthma.6 Father said he was very

proficient in this phase of Vadah’s care. Mother’s proof was to

the effect that Father had threatened that if he had Vadah,

Mother would not get to see him; again Father denied that he had

made such a statement. Mother testified that Vadah would wake up

crying shortly after returning from visitation with her father;

6 Mother smokes; Father does not. In fairness, it should be noted that Mother denies smoking in the child’s presence.

11 he testified that his daughter did not want to leave him at the

conclusion of visitation. Mother offered evidence that Father

had attempted to take his life; Father denied that he tried to

commit suicide. These and other disputes required the trial

court to make credibility determinations. The trial court’s

judgment that Father should be the sole custodian of Vadah tends

to validate Father’s credibility on these various issues. These

determinations naturally weigh on our own preponderance of the

evidence evaluation.

We recognize that there is proof supporting a

conclusion that Mother should be awarded Vadah’s custody: the

fact that Mother has been the child’s primary caregiver during

most of the child’s life; the fact that, when Mother is in Rome,

she has available to her a caring network of family to help her

with Vadah; the recommendation of the court-appointed guardian ad

litem; and the suitability of the residence of the maternal

grandparents in Rome. However, before we can disturb the trial

court’s judgment, we must find that the evidence preponderates

against what that court did. Considering all of the evidence, we

do not so find, and hence must honor the presumption of

correctness that accompanied the record to this appellate court.

Rule 13(d), T.R.A.P.

Mother’s issues are found to be without merit.

The judgment of the trial court is affirmed. Costs on

appeal are taxed against the appellant. This case is remanded to

the trial court for such further proceedings, if any, as may be

12 necessary, consistent with this opinion, and for collection of

costs assessed below, all pursuant to applicable law.

__________________________ Charles D. Susano, Jr., J.

CONCUR:

_______________________ Herschel P. Franks, J.

_______________________ William H. Inman, Sr.J.