Hill v. Hill
| Decision Date | 24 August 2011 |
| Docket Number | No. E2011-00611-COA-R3-CV,E2011-00611-COA-R3-CV |
| Parties | JEANETTE HILL v. MICHAEL LESTER HILL |
| Court | Tennessee Court of Appeals |
Direct Appeal from the Circuit Court for Bradley County
No. V-03-990 J. Michael Sharp, Judge
This is a post-divorce action. Appellant/Father, who is incarcerated for sexually abusing his step-daughter, appeals the trial court's: (1) grant of Appellee/Mother's petition to change the surnames of the two minor children that were born to the marriage; (2) denial of Appellant/Father's petition to grant him visitation with the minor children; and (3) entry of an order requiring Appellant/Father to execute a qualified domestic relations order to effectuate the trial court's award of assets as child support. Finding no error, we affirm.
Tenn. R. App. P. 3. Appeal as of Right; Judgment of the Circuit Court Affirmed and
Remanded
Michael Lester Hill, Pikeville, Tennessee, Pro Se.
Philip M. Jacob, Cleveland, Tennessee, for the appellee, Jeanette Hill.
Appellant Michael Lester Hill and Appellee Jeanette Hill were married on July 9, 1994. Two children were born to the marriage (d.o.b. 01/09/1995 and 01/30/1997 respectively). On or about October 17, 2003, Ms. Hill became aware that Mr. Hill had been molesting Ms. Hill's minor daughter (i.e., Mr. Hill's step-daughter) for approximately four years. Mr. Hill confessed this activity in writing to the local police on October 24, 2003.
On that same day, Ms. Hill filed a complaint for divorce against Mr. Hill. By Order of September 29, 2004, Ms. Hill was granted a divorce on the ground of inappropriate marital conduct. The trial court also denied Mr. Hill any parenting time and set child support.
After pleading no contest to the criminal charges filed against him, Mr. Hill was incarcerated for molesting his step-daughter; he remained incarcerated as of the date of the filing of this appeal.1 On February 3, 2005, Mr. Hill filed a motion to terminate or suspend his child support obligation based upon his incarceration. By Order of October 6, 2005, the trial court divided the parties' marital estate and established child support. The trial court noted that Mr. Hill's incarceration was taken into account in its decision to award assets as child support. These assets included Mr. Hill's share of his 401k account. No appeal was taken from either the order granting the divorce, or from the October 6, 2005 order dividing marital assets and setting child support.
On April 23, 2008, Ms. Hill filed a petition to change her surname, as well as the surnames of the parties' minor children. Mr. Hill opposed the petition. On July 2, 2009, Mr. Hill filed a petition to reinstate his parenting time. We note that Mr. Hill was not granted visitation in the divorce proceedings; consequently, his petition to reinstate parenting time is a misnomer. We perceive that his petition constitutes a post-divorce motion to modify the parenting plan. Ms. Hill opposed this motion. On December 6, 2010, Ms. Hill moved the court to enter an order to compel Mr. Hill to execute a Qualified Domestic Relations Order ("QDRO") relating to the parties' final decree of divorce and specifically concerning the award of assets as child support.
All pending matters were heard by the trial court on February 1, 2011. On February 17, 2011, the trial court entered an order, which provides, in relevant part, as follows:
[T]his Court finds that...it would be in the children's best interest to have their name changed and the children's name[s] shall be changed. The Court further f[inds] that it would be detrimental for the children to have any visitation with [Mr. Hill] and [Mr. Hill] shall immediately execute a [QDRO].
The Court made the following additional findings:
Mr. Hill appeals pro se, under a pauper's oath. He raises six issues for review; however, the issues concerning the division of marital assets and the award of child support are not perfected in the instant appeal. As noted above, Mr. Hill appealed neither the September 29, 2004 order granting the divorce, nor the October 6, 2005 order dividing marital assets and setting child support within thirty days of entry of those orders. Tenn. R. App. P. 4(a). Rather, the instant appeal arises from the trial court's order on post-divorce motions that were filed by the parties. Accordingly, only those issues adjudicated in the February 1, 2011 hearing are properly before this Court on appeal. Id. We restate the perfected issues as follows:
We first note that we are cognizant of the fact that Mr. Hill is proceeding pro se. While a party who chooses to represent himself or herself is entitled to the fair and equal treatment of the courts, Hodges v. Tenn. Att'y Gen., 43 S.W.3d 918, 920 (Tenn. Ct. App.2000) (citing Paehler v. Union Planters Nat'l Bank, Inc., 971 S.W.2d 393, 396 (Tenn. Ct. App. 1997)), "[p]ro se litigants are not . . . entitled to shift the burden of litigating their case to the courts." Whitaker v. Whirlpool Corp., 32 S.W.3d 222, 227 (Tenn. Ct. App. 2000) (citing Dozier v. Ford Motor Co., 702 F.2d 1189, 1194-95 (D.C. Cir. 1983)). Pro se litigants must comply with the same substantive and procedural law to which represented parties must adhere. Hodges, 43 S.W.3d at 920-21.
Because this case was tried by the court sitting without a jury, we review the case de novo upon the record with a presumption of correctness of the findings of fact by the trial court. Unless the evidence preponderates against the findings, we must affirm, absent error of law. See Tenn. R. App. P. 13(d). Furthermore, when the resolution of the issues in a case depends upon the truthfulness of witnesses, the trial judge who has the opportunity to observe the witnesses and their manner and demeanor while testifying is in a far better position than this Court to decide those issues. See McCaleb v. Saturn Corp., 910 S.W.2d 412, 415 (Tenn. 1995); Whitaker v. Whitaker, 957 S.W.2d 834, 837 (Tenn. Ct. App. 1997). The weight, faith, and credit to be given to any witness' testimony lies in the first instance with the trier of fact, and the credibility accorded will be given great weight by the appellate court. Whitaker, 957 S.W.2d at 837; see also Walton v. Young, 950 S.W.2d 956, 959 (Tenn. 1997).
We further note that, although there is an excerpt from the divorce hearing (which is not the subject of the instant appeal), the appellate record contains no transcript of the evidence adduced at the February 1, 2011 hearing. It is the duty of the appellant to prepare a transcript, or in the event a transcript is not available, a statement of the evidence, conveying "a fair, accurate and complete account of what transpired with respect to those issues that are the bases of appeal." See Tenn. R. App. P. 24(b)-(c). In the instant case, Mr. Hill filed a "Statement of the Proceedings;" this document, filed on April 20, 2011, purports to be a statement of the evidence filed under Tennessee Rule of Appellate Procedure 23(c).2Mr. Hill was not present at the February 1, 2011 hearing; however, in his statement, he avers that he was "able to listen to most of it via speakerphone." Despite the fact that Mr. Hill admits that, because he "did not know he would be required to produce a written statement of the proceedings," the statement is largely the result of his memory of the proceedings, it does not appear that Ms. Hill filed any objection to the April 20, 2011 statement of the evidence. Consequently, under Tennessee Rule of Civil Procedure 23(c), we will accept Mr. Hill's statement, and will consider those statements in reviewing the trial court's actions.
Change of Children's Surnames
In a case similar to the one at bar, In re Lackey, No. 01-A-01-9010PB00358, 1991 WL 45394 (Tenn. Ct. App. April 5, 1991), the Middle Section of this Court addressed the question of whether a minor child's surname should be changed following the father's conviction for aggravated rape of a child. In affirming the trial court's decision to allow the change of surname, this Court stated, in pertinent part, as follows:
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