Gorski v. Ragains

• Decision Date: 21 July 1999
• Docket Number: 97-00597
• Parties: JOHN MICHAEL GORSKI, Plaintiff/Appellant, VS. LINDA EMILY GORSKI RAGAINS, Defendant/Appellee. AppealIN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE Filed
• Court: Tennessee Court of Appeals

JOHN MICHAEL GORSKI, Plaintiff/Appellant VS LINDA EMILY GORSKI RAGAINS, Defendant/Appellee

Appeal No. 01A01-9710-GS-00597

IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE

Filed July 21, 1999

APPEAL FROM THE SUMNER COUNTY GENERAL SESSIONS COURT, DIVISION II, GALLATIN, TENNESSEE

Sumner General Sessions, Division II No. 2402-G

THE HONORABLE BARRY R. BROWN, JUDGE

This appeal stems from a protracted post-divorce custody dispute. Shortly after the divorce, the father filed a change of custody petition in Division II of the Sumner County General Sessions Court, and the court awarded him primary physical custody on a temporary basis. Over two years later, the general sessions court dismissed the father's petition and ordered that the children be returned to their mother. We vacate the order dismissing the father's change of custody petition because the evidence does not support the general sessions court's conclusion that there had been no material change in the children's circumstances since the divorce.

For Plaintiff/Appellant:

Joe P. Binkley, Jr, .Nashville, Tennessee

For Defendant/Appellee:

Michael W. Edwards, Hendersonville, Tennessee

VACATED AND REMANDED

WILLIAM C. KOCH, JR., JUDGE

OPINION

I.

John Michael Gorski and Linda Emily (Gorski) Ragains are the parents of two children - Jonathon Edward Gorski, born in January 1988, and Haley Analissa Gorski, born in June 1990. After their marriage foundered, Mr. Gorski and Ms. Ragains entered into a marital dissolution agreement addressing all custody, support, property, and other issues between them. Even though he was aware that Ms. Ragains abused alcohol, Mr. Gorski agreed in the marital dissolution agreement that Ms. Ragains would have sole custody of their children. Accordingly, when the parties were divorced in 1994 in the Sumner County General Session Court, Division II,¹ Ms. Ragains received sole custody of the parties' children, and Mr. Gorski received visitation rights in accordance with the marital dissolution agreement.

Ms. Ragains went into an emotional tailspin following the divorce.² Many of the parties' mutual friends seemed to gravitate toward Mr. Gorski, and Ms. Ragains lost her former social context. Her abuse of alcohol became more acute. Her financial problems forced her to obtain a part-time job as a server in a restaurant.³ When she was eventually evicted from her apartment, she and the children moved into her father's and step-mother's home.

Ms. Ragains' continued alcohol abuse contributed to several bizarre incidents between late 1994 and early 1995. On one occasion, Ms. Ragains appeared at Mr. Gorski's apartment late at night and kicked in a window. On another occasion, Ms. Ragains telephoned Mr. Gorski in the early morning hours and demanded in loud and profane language that he come right over and pick up the children. On other occasions, Ms. Ragains told Mr. Gorski that the children were no longer her priority. Finally, on Super Bowl Sunday in 1995, Ms. Ragains left the children on the doorstep of a house where Mr. Gorski was attending a Super Bowl party.⁴

On February 6, 1995, less than four months after the divorce, Mr. Gorski filed a change of custody petition. He alleged, among other things, (1) that Ms. Ragains had lost her ability and desire to care for the children, (2) that Ms. Ragains had shown an unstable employment history since the divorce, and (3) that Ms. Ragains often had been drinking when she picked up the children from visitation. He also asserted that a material change in circumstances had occurred and that he should be awarded both temporary and permanent custody of the children. On February 17, 1995, before Ms. Ragains had even answered Mr. Gorski's petition, the general sessions court entered an order temporarily changing the existing custody arrangement to joint custody, placing the children under the protection of the Department of Human Services in order to conduct home studies of the both parents' homes, and setting a March 1995 hearing on Mr. Gorski's petition to change custody.

Ms. Ragains responded to Mr. Gorski's petition by denying that there had been a material change in the parties' circumstances after the divorce. On March 22, 1995, the parties submitted an agreed order providing that they would have joint custody until the final disposition of Mr. Gorski's petition. During this time, Ms. Ragains also sought help for her alcohol abuse. She began attending both Alcoholics Anonymous and professional counseling, and eventually, she was able to stop drinking. She also obtained part-time work at both United Parcel Service and First Tennessee Bank and attended a court-ordered parenting class. As a result of these interventions, Ms. Ragains' bizarre conduct stopped.

In May 1995, the parties submitted another agreed order continuing the joint custody arrangement but naming Mr. Gorski as the children's "primary custodian." At this point, the general sessions court evidently decided to supervise this custody dispute on an on-going basis rather than to hear and act on Mr. Gorski's change of custody petition that had been filed three months earlier. Rather than setting Mr. Gorski's petition for a dispositive hearing, the general sessions court's May 1995 order merely recited that "this matter shall be reviewed by the Court on Friday, August 4, 1995."

Thereafter, for the next two years, the general sessions court held a hearing before the children's school year resumed to "review" the case. During the hearing held in the summer of 1995, the court awarded custody of the children to Mr. Gorski "on a temporary basis" to be "reviewed" next summer. At the 1996 hearing, which was not held until October 1996, the court ordered the continuation of the temporary custody arrangement but also increased Ms. Ragains' visitation and ordered her to begin paying child support to Mr. Gorski. The court also directed that "[t]his matter shall be set for a final hearing upon motion of either party . . . during the month[s] of June, July or August, 1997."

In May 1997, Ms. Ragains filed a motion requesting a final hearing and asking that the children be returned to her. The general sessions court held a hearing on July 18, 1997 and heard a number of witnesses, including the parties themselves, Mr. Gorski's live-in girlfriend, and Frank Ragains, Ms. Ragains' then soon-to-be new husband. The evidence at that hearing showed that Ms. Ragains had quit drinking and that she had started a full-time job at a department store. It also showed that she was engaged to be married later in the summer and that she wanted to enroll the children in parochial school. In addition, Ms. Ragains described her plans for the children including academics, sports, and extracurricular activities. When asked directly why she wanted sole custody of the children, she said, "Well, a lot of things have changed."

On August 5, 1997, over two and one-half years after Mr. Gorski filed his petition, the general sessions court entered its order finally resolving the custody issue. The court found that Mr. Gorski had been aware of Ms. Ragains' abuse of alcohol when he originally agreed to give her sole custody of the children. The court also determined that Ms. Ragains no longer abused alcohol and, therefore, that there had been no "drastic, permanent change since the time of the divorce." The court specifically found that the children had fared well while living with Mr. Gorski and that both parents were currently "capable parents who love their children." Even though the court did not find specifically that changing the joint custody arrangement that had been in place since 1995 would be in the children's best interests, it dismissed Mr. Gorski's petition and directed that "the parties shall revert to the Final Decree of Divorce of October 31, 1994." Accordingly, Mr. Gorski was required to return the children to Ms. Ragains.

II.

Mr. Gorski raises two related issues with regard to the general sessions court's decision in this case. First, he asserts that the court improperly placed the burden on him during the July 1997 hearing to prove the existence of a material change in circumstances warranting a change in custody. Second, he asserts that the evidence does not support the court's conclusion that there had been no material change in circumstances since the entry of the original divorce decree. While we have determined that the general sessions court properly placed the burden of proof on Mr. Gorski, we find that Mr. Gorski successfully proved that the children's circumstances had changed materially since the divorce.

A.

We turn first to the burden of proof issue. Procedural issues such as this one are of consequence in custody proceedings because following consistent and correct procedures is one of the surest ways for the courts to make real the legal system's aspiration to provide equal justice under the law. Procedural rules are particularly important in domestic relations matters because they provide the chief means for keeping the exercise of judicial discretion within proper bounds. See Carl E. Schneider, Discretion, Rules, and Law: Child Custody and the UMDA's Best-Interest Standard, 89 Mich. L. Rev. 2215, 2218 (1991) (noting that "family law lives in a tension between according officials discretion to make decisions and limiting that discretion by requiring them to follow rules").

The procedural rules applicable to this case are both statutory and decisional. Tenn. Code Ann. 36-6-101(a)(1) (Supp. 1998) empowers courts to make initial custody decisions and to change or modify existing custody arrangements "as the exigencies of the case may require." Thus, by statute, initial custody decisions are neither set in stone nor written in sand. While they govern all factual circumstances known to the trial court up through the time of their rendering, initial custody decisions do not prevent a trial court from subsequently modifying a...