Eldridge v. Eldridge

• Decision Date: 02 May 2001
• Docket Number: 99-02583
• Citation: 42 S.W.3d 82
• Parties: ANTHONY KEITH ELDRIDGE v. JULIA EDITH ELDRIDGEIN THE SUPREME COURT OF TENNESSEE AT KNOXVILLE
• Court: Tennessee Supreme Court

ANTHONY KEITH ELDRIDGE v JULIA EDITH ELDRIDGE

No. E1999-02583-SC-R11-CV

IN THE SUPREME COURT OF TENNESSEE AT KNOXVILLE

January 3, 2001 Session

Filed May 2, 2001

Appeal by Permission from the Court of Appeals Chancery Court for Sullivan (Kingsport) County: No. 23478(L)

Richard E. Ladd, Chancellor

We granted review of this child visitation case to determine whether the trial court abused its discretion in ordering unrestricted overnight visitation with the mother. The Court of Appeals held that the trial court had abused its discretion and imposed restrictions prohibiting the presence of the mother's lesbian partner during overnight visitation. We hold that the record does not support a finding of an abuse of discretion. Accordingly, we reverse the judgment of the Court of Appeals.

Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Appeals Reversed

JANICE M. HOLDER, J., delivered the opinion of the court, in which E. RILEY ANDERSON, C.J., and FRANK F. DROWOTA, III, ADOLPHO A. BIRCH, JR., and WILLIAM M. BARKER, JJ., joined.

Michael May, Kingsport, Tennessee, for defendant-appellant, Julia Edith Eldridge.

Harold Wayne Graves, Johnson City, Tennessee, for plaintiff-appellee, Anthony Keith Eldridge.

Stephen R. Scarborough, Atlanta, Georgia, and William Allen Mynatt, Knoxville, Tennessee, for amicus curiae, Lambda Legal Defense and Education Fund, Inc.

Susan Elizabeth Mackenzie, Memphis, Tennessee, and William Allen Mynatt, Knoxville, Tennessee, for amicus curiae, Memphis National Organization for Women.

Shannon Minter, San Francisco, California, and William Allen Mynatt, Knoxville, Tennessee, for amicus curiae, National Center for Lesbian Rights.

William Allen Mynatt, Knoxville, Tennessee, for amicus curiae, Tennessee National Organization for Women.

Abby Rose Rubenfeld, Nashville, Tennessee, and Bruce S. Kramer, Memphis, Tennessee, for amicus curiae, The American Civil Liberties Union of Tennessee.

OPINION

BACKGROUND

Anthony and Julia Eldridge were divorced in 1992. The couple agreed to joint custody of their minor daughters, Andrea and Taylor, who were ages eight and nine respectively. Two years later, a dispute arose regarding Ms. Eldridge's visitation rights. Ms. Eldridge, who is engaged in a live-in homosexual relationship with Lisa Franklin, moved the court to establish a visitation schedule. In response, Mr. Eldridge moved for sole custody of the children.

In July 1995, the Court awarded sole custody of the children to Mr. Eldridge. The court also appointed a Special Master, Dr. James Granger, Head of the East Tennessee University Division of Child and Adolescent Psychiatry, to counsel the parties and their children and make recommendations to the court regarding visitation. Dr. Granger's written final report and testimony reflected that counseling was unsuccessful. An agreement as to visitation was not reached.

Upon Mr. Eldridge's motion, the trial court appointed a guardian ad litem ("GAL") for both children. The GAL concluded that regular visitation with the mother was essential and recommended regular visitation with standard visitation every other weekend. The first few weekend visitations were recommended to be limited to Saturday morning through Sunday evening and eventually to be extended to Friday through Sunday.

In September 1996, the trial court ordered overnight visitation with Taylor¹ every other Saturday night through Sunday. Eight months later, Ms. Eldridge moved the court to extend Taylor's overnight visitation to include Friday nights, holidays and summer vacation. Ms. Eldridge also moved that another Special Master be appointed. Mr. Eldridge opposed expanding Ms. Eldridge's visitation rights.

In September 1997, the trial court approved an agreement reached by the parties. The agreement provided for a visitation schedule and appointment of Dr. Judy Millington, a counselor at Church Circle Counseling Center, as Special Master. The court's order provided that Dr. Millington's written recommendations were to take effect immediately without further order of the court. Dr. Millington recommended to the court that Ms. Eldridge's overnight visitation be expanded. Various disputes regarding visitation continued.

A hearing was held in October 1998 to resolve the visitation issue. In November 1998, the trial court entered an order adopting Dr. Millington's recommendations and permitting Ms. Eldridge unrestricted overnight visitation with Taylor. The Court of Appeals reversed, finding that the trial court abused its discretion in failing to prohibit Taylor's overnight visitation with Ms. Eldridge while Ms. Franklin was present in the home. One judge dissented. We granted review.

ANALYSIS

The Court of Appeals correctly held that the standard for appellate review of a trial court's child visitation order is controlled by our decision in Suttles v. Suttles, 748 S.W.2d 427, 429 (Tenn. 1988). There, we noted that "'the details of custody and visitation with children are peculiarly within the broad discretion of the trial judge.'" Id. at 429 (quoting Edwards v. Edwards, 501 S.W.2d 283, 291 (Tenn. Ct. App. 1973)). Accordingly, we held that a "trial court's decision [on visitation] will not ordinarily be reversed absent some abuse of that discretion." Id.

In reviewing the trial court's visitation order for an abuse of discretion, the child's welfare is given "paramount consideration," id. (quoting Luke v. Luke, 651 S.W.2d 219, 221 (Tenn. 1983)), and "the right of the noncustodial parent to reasonable visitation is clearly favored." Id. Nevertheless, the noncustodial parent's visitation "may be limited, or eliminated, if there is definite evidence that to permit . . . the right would jeopardize the child, in either a physical or moral sense." Id. (quoting Weaver v. Weaver, 261 S.W.2d 145, 148 (Tenn. Ct. App. 1953)).

Under the abuse of discretion standard, a trial court's ruling "will be upheld so long as reasonable minds can disagree as to propriety of the decision made." State v. Scott, 33 S.W.3d 746, 752 (Tenn. 2000); State v. Gilliland, 22 S.W.3d 266, 273 (Tenn. 2000). A trial court abuses its discretion only when it "applie[s] an incorrect legal standard, or reache[s] a decision which is against logic or reasoning that cause[s] an injustice to the party complaining." State v. Shirley, 6 S.W.3d 243, 247 (Tenn. 1999). The abuse of discretion standard does not permit the appellate court to substitute its judgment for that of the trial court. Myint v. Allstate Ins. Co., 970 S.W.2d 920, 927 (Tenn. 1998).

Mr. Eldridge challenges the trial court's visitation order on grounds that Ms. Franklin should not be present during Taylor's overnight visitation with Ms. Eldridge. The Court of Appeals held that "the trial court abused its discretion by not prohibiting Ms. Franklin's presence during the court_ordered overnight visitation." To cure this abuse of discretion, it modified the trial court's visitation order by prohibiting Lisa Franklin's presence during Taylor's overnight visitation with her mother.

The Court of Appeals' opinion makes clear that the court did "not rely on the fact that Ms. Eldridge is a lesbian" in modifying the trial court's order. The court fails to state, however, what it did rely upon. The Court of Appeals did not identify any legal or factual error by the trial court that might constitute an abuse of discretion. It also failed to establish how the ordered modification would cure the trial court's supposed error. Cf. Suttles, 748 S.W.2d at 429 (describing multiple facts justifying reversal of visitation as ordered by the trial court). The court offered that "[t]he courts of Tennessee commonly place reasonable restrictions on the visitation rights of heterosexual parents who engage in sexual activity with partners with whom they are not married." Mere observation that restrictions have been imposed in past cases does nothing, however, to reveal why the trial court in this case abused its discretion in permitting unrestricted overnight visitation.

The Court of Appeals cited Dailey v. Dailey, 635 S.W.2d 391 (Tenn. Ct. App. 1982), as having "addressed the issue raised by Mr. Eldridge." In Dailey, the Court of Appeals upheld the trial court's decision to modify a custody order to shift custody from the mother, a homosexual, to the father. The court also, sua sponte, modified the trial court's visitation order to prohibit the visitation in the home where the mother lived with her lesbian partner or from having the child in the presence of any lesbian partner. Id. at 395_96.

The Court of Appeals justified modification of the visitation order in Dailey on grounds that the child should not be "subjected to the type of sexually related behavior that has been carried on in his presence in the past under the proof in this record." Id. at 396. The proof in Dailey showed that the mother flagrantly flaunted her relationship with [her live-in lesbian partner] 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.

Id. at 393.

The record in Dailey established that the noncustodial parent engaged in overt, lascivious, sexual conduct in the presence of her five-year-old, mentally and physically handicapped child. Certainly, this is the type of "definite evidence" that unrestricted visitation "would jeopardize the child, in either a physical or moral sense" that might constitute a finding...