Dailey v. Dailey

• Decision Date: 25 November 1981
• Parties: Ronnie Russell DAILEY, Petitioner-Appellee, v. Sabel Ann Couch DAILEY, Respondent-Appellant.
• Court: Tennessee Court of Appeals

Page 391

635 S.W.2d 391

Ronnie Russell DAILEY, Petitioner-Appellee, v. Sabel Ann Couch DAILEY, Respondent-Appellant.

Court of Appeals of Tennessee, Eastern Section.

Nov. 25, 1981.

Permission to Appeal Denied by Supreme Court Feb. 16, 1982.

Abby R. Rubenfeld, Cheatham & Palermo, Nashville, for appellant.

Paul H. Dietrich, Dietrich & Dietrich, Cleveland, for appellee.

OPINION

SANDERS, Judge.

Respondent has appealed from a judgment changing the custody of their minor child from her to the Petitioner.

The Petitioner-Appellee, Ronnie Russell Dailey, and Respondent-Appellant, Sabel Ann Dailey, were divorced in the Circuit Court of Bradley County on December 17, 1980. The Appellant was awarded the divorce on the grounds of irreconcilable differences. Before the divorce a property settlement agreement was reached and it was agreed that the Appellant would have the custody of their minor child, Rusty Dailey, then four years of age, with reasonable visitation privileges granted to the Appellee.

The parties separated in July, 1980. Sometime between their separation and the granting of the divorce the Appellant became involved in a homosexual relationship with one Peggy Maynard. Both Appellant and Appellee worked at Magic Chef in Cleveland, Tennessee, at the time and rumors began circulating in the community that the Appellant was a lesbian, but when confronted with the question of her homosexual relationships by the Appellee, she denied them. She also denied them to her family. The day after the divorce Peggy Maynard called the Appellee and apparently told him something about their relationship. On the same day he talked to the Appellant and, although she did not tell him of their homosexual relationship, she told him "that she and Peggy were more than friends, that it was not what I thought."

On January 26, 1981, the Appellant quit her job at Magic Chef and moved to Nashville with Peggy Maynard. She took their minor son, Rusty Dailey, with her but she did not notify the Appellee or his family or any of her family that she was leaving Cleveland. She moved into the home of Peggy Maynard's mother in Nashville where she shares the same bedroom with Peggy. Some three or four days after she left she told the Appellee, in a telephone conversation, of her homosexual relationship with Peggy Maynard. The Appellee then filed a petition for a change of custody of the minor child based upon a change of circumstances. Both the paternal and maternal grandparents filed an intervening petition asking that the custody of the child be granted to the Appellee, but also alleging they would be willing to have the custody of the child awarded to them.

Upon the trial of the case the court found there had been a change in circumstances and the best interest of the child required that his custody be granted to the Petitioner. He also allowed liberal visitation rights to the grandparents and to the Respondent including every other weekend visits from Friday evening until Sunday evening with the Respondent in Nashville.

The Respondent has appealed and presented four issues, the thrust of which is whether or not the court abused its discretion in changing the custody of the child from her to the Petitioner. The Appellant admits her homosexual relationship with Peggy Maynard but insists that is not sufficient grounds for the court to find there had been such a change in circumstances as to warrant the change in custody of the minor child. She also says the Petitioner knew of her homosexual relationship before the divorce was granted and the decree awarding the custody of the child to her is res adjudicata of that issue. The Appellant relies upon Holloway v. Bradley, 190 Tenn. 565, 230 S.W.2d 1003 (1950); Long v. Long, Tenn.App., 488 S.W.2d 729 (1972) and Hicks v. Hicks, 26 Tenn.App. 641, 176 S.W.2d 371 (1943) as supportive of her contention.

We agree that it is a well-settled principle in this jurisdiction that where an award of custody of a minor is made which has no restrictions or limitations it will support a plea of res judicata and to justify a petition for a change in custody there must have been such a change in circumstances as will directly affect the welfare of the minor. However, material facts that were not known at the time of the award which may affect the welfare of the child may be subsequently considered. Under T.C.A. § 36-828 a decree concerning the custody of the child "remain within the control of the court and be subject to such change or modification as the exigencies of the case require."

In the case at bar the proof does not sustain the contention of the Appellant that the Appellee knew of her homosexual relationship prior to the granting of the divorce. Proof shows the Appellee asked her about whether or not she was a homosexual and she categorically denied it. There is also proof in the record that she flagrantly flaunted her relationship with Peggy Maynard in the presence of the minor child. They would hug and passionately kiss each other and rub the private parts of their bodies while in the home where the child was. They would go to bed together and during their sexual stimulation of each other make audible expressions of pleasure and satisfaction that could be heard throughout the house and in the area where the child slept. They would have the child in bed with them while they were embracing each other in the nude.

The child was five years of age at the time of the trial of this case. He suffers from cerebral palsy and is somewhat handicapped physically and is mentally slow. Because of his handicaps he needs special speech therapy and physical therapy. He also needs careful attention when he is not in school. While living in Cleveland the child was cared for by his grandparents while his parents were both working. The Appellant is an avid softball player and during a three- to four-month period during the summer months the child was cared for by the grandparents in the evenings while the Appellant was playing softball. A very strong bond of affection exists between the child and the grandparents and expert testimony was offered to the effect that the child needed this relationship while away from his parents. The proof shows the child could receive both speech and physical therapy in the public school system in Nashville but it is also available to him in Cleveland, which the Appellee agrees to have provided for him.

Both the Petitioner and Respondent offered expert testimony of psychologists as to how a small child might be affected by being reared by a homosexual mother. The Appellee offered the testimony of Dr. Tom Biller who expressed considerable concern as to the harmful effects that could result to the child by being reared by a homosexual mother. The Appellant offered the testimony of Dr. James Trent who expressed little concern about the child's being reared by a homosexual mother. He seemed to predicate his views primarily on the fact that there was a positive relationship between the child and his mother and there was no evidence of any harmful effects from his living with his mother up to this time.

Dr. Biller, a practicing consulting psychologist, presented his professional opinion on the effect of homosexual environment upon the child. He testified he had occasion to see and test Rusty Dailey in the presence of his grandparents. He noted several behavioral observations in that Rusty was obviously somewhat limited in coordination and had cerebral palsy, difficulty with speech, and seemed socially immature. He stated Rusty said that he did not like living with his mother because it "drives me crazy to be there" and further stated that his mother lives in Nashville with Peggy Lee Maynard. Rusty stated that Peggy spanks him with a belt and makes him cry. He told Dr. Biller his mother and Peggy Maynard were good friends and he knew they were good friends because "Peggy loves on his mother." It was further testified by Dr. Biller that Rusty seemed to love and cherish his grandparents. He recommended that Rusty, due to his social immaturity and his special needs, needs a supportive, stable, loving home environment to help him mature socially and develop mentally. Dr. Biller further testified that homosexuality is not a widely accepted practice in society in general and particularly not accepted in this region and there was a stronger possibility of an individual to...