In re T.C.D.

• Citation: 261 S.W.3d 734
• Decision Date: 27 December 2007
• Docket Number: No. E2007-00302-COA-R3-JV,E2007-00302-COA-R3-JV
• Parties: In re T.C.D.
• Court: Court of Appeals of Tennessee

261 S.W.3d 734

In re T.C.D.

No. E2007-00302-COA-R3-JV

Court of Appeals of Tennessee, Eastern Section, at Knoxville.

June 20, 2007 Session.

December 27, 2007.

Permission to Appeal Denied by Supreme Court June 23, 2008.

L. Caesar Stair, III and Margo J. Maxwell, Knoxville, Tennessee, for the appellant, Brian Wesley Davis.

J. Kenneth Wright, Kingsport, Tennessee, for the appellee. Christine A. Stevens.

OPINION

CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which D. MICHAEL SWINEY and SHARON G. LEE, JJ., joined.

Brian Wesley Davis ("Father") filed a petition to modify a Final Parenting Plan that, with respect to the parties' child, granted primary residential parent status to Christine A. Williamson (now Stevens) ("Mother"). Father sought exclusive custody of the child or, alternatively, equal co-parenting time with him. Following a bench trial, the court held in favor of Mother, determining that Father had failed to show a material change in circumstances. Father appeals. We have determined that Father has provided sufficient evidence of a material change in circumstances and has demonstrated that the best interest of the child requires a modification of the existing parenting plan. Accordingly, we reverse the judgment of the trial court and designate Father as the child's primary residential parent. We remand for further proceedings.

I.

In March 2004,¹ Mother, a resident of Kingsport, gave birth to a son, T.C.D.² According to Father, a resident of Powell, the child at issue was the product of a sexual encounter in June 2003 following a street party in nearby Knoxville. Mother was married at the time of the encounter, but was in the process of obtaining a divorce. As soon as Father was notified of the pregnancy by Mother, he says that he attempted to talk to Mother regarding her pregnancy. By that time, Mother had moved to Knoxville. Father states that he suggested they visit an attorney in order to discuss their options and to arrive at an agreement about mutually caring for the child. Father contends that Mother rejected his efforts and returned to Kingsport. He testified that Mother apparently believed at that time that he was trying to take the child away from her. She did not allow Father to attend the birth of the child. According to Mother, however, Father informed her that he wanted the paternity results before he came to see the child.

Pursuant to Tenn.Code Ann. §§ 36-2-309 (2005) and 24-7-112 (2000), Father requested that the trial court enter an order requiring paternity testing. The parties eventually entered into an agreed order establishing paternity and setting residential time-sharing provisions. Mother was designated as the primary residential parent. On August 10, 2004, when the child was almost five months old, Father saw his son for the first time.

The order establishing Father's paternity and approving the Final Parenting Plan was entered on August 24, 2004. Major decisions regarding the child were to be made jointly, and Father was ordered to pay child support of $505 monthly directly to Mother beginning September 1, 2004. Father's visitation was outlined as follows:

The parties understand that due to their son's age and the fact that Mother is presently breast-feeding that an initial familiarization schedule is necessary before Father begins having alternating weekends (on his own) in Knoxville, Tennessee. Until such time, Father's time-sharing will consist of Mother taking the child to Knoxville on Sunday morning and staying until Monday night or if possible until Tuesday morning, one weekend off and two weekends of day time visits on Sunday in Eidson,³ Tennessee.

If the parties are unable to agree on expanding Father's time-sharing after said initial familiarization schedule and Mother's cessation of breast-feeding, then either party can request mediation in an attempt to resolve this issue.

(Footnote added).

Father's first visitations with his son were generally spent in the presence of Mother at her then-recently obtained apartment in Kingsport or at the home of Father's grandmother in Andersonville. Mother eventually permitted Father to take the child out by himself for three to six hour periods. According to Father, he was satisfied with the visitation schedule at that point.

Father contends that his visitation problems started on the day after Thanksgiving 2004 when Father first met Bryan Stevens, with whom Mother had become involved in late 2004. Father asserts he was immediately concerned with Stevens' conduct and language:

[Stevens] did some things that I thought were kind of odd. You know, he told me that he had, . . . dropped out of school and all this stuff. . . . Things that I normally wouldn't have just spat[ ]out to somebody I didn't know. But he told me about how he used to bang lockers, and . . . he was cussing a little bit. And Christine even had to stop him at one point. It was like, "No you don't need to be cussing." And it was in front of [T.C.D.]. So from that point on, from that immediate point I pretty much had a suspicion that something was going on, something was not right. . . .

Father additionally asserted that Mother and her family were uncooperative during custody exchanges:

But when [Stevens] started coming there was a time where the filming started happening. They would film me picking [T.C.D.] up. And it wasn't like when you pick someone up when she's coming to pick him up down there immediately I'm telling him, "Mommy's coming here. Here she is." When she gets to the door I hand him to her. It's like they walk out and they make it all like you're not supposed to go. There's no handing. There's no saying, "Here's daddy." There's no anything. It's hug, pull, hold him, do whatever to make it as complicated as possible for him to be able to be exchanged. . . .

Father claims the visitation difficulties increased during early 2005:

And so after the first of the year it even got even worse. It got even more and more . . . harder to make the transition easier. You know, with the filming going on and the other stuff. And then, . . . there was several times that [Stevens] would be right up on you, following you, saying, . . . it would be like, . . . he would say, "Can you say assault?" He'd tell [T.C.D.] to hold his hand up and wave his hand at me and say "Assault". And all this. And he would come over to the truck and say, ... "If you . . . you know, kid's talk. You hit him I hit you." And it was just very bad stuff that . . . and I'm like, you know, here's [T.C.D.]. . . .

According to Father, Mother informed him that he could not take the child anywhere alone and if he insisted on doing so, Mother and Stevens had to go along as well. Father noted that the only given reason for the rule change was that Mother did not feel "comfortable."

Father recalled that in January 2005, Mother decided to change the designated "pick-up" site for visitation and informed Father that visitation would occur at her mother's house in Hancock County. Father described the visitation in Hancock County as follows:

When I get there the whole family's there and they're all standing there and we had to walk in. And I was forced to play with [T.C.D.] right there in front of all of them with everybody standing around and everybody doing all their stuff. I couldn't take him anywhere. I couldn't go anywhere. I wasn't called daddy or anything. I was a guest. "We'll [sic] here's your guest. Go play with your guest." . . . So then we try to go outside, but outside is kind of rough and dangerous because I mean they live on a mountain and they've got goats and all this other stuff.

According to Father, his visits with the child were confined to two places:

So we had to learn to play with him in a little area and then it got to the point where, . . . it was either in the gravel driveway or in my truck. That was the only two places that really I was kind of separated where it was just me and him. So for the most part or at least six months the basic theme of my play time with my son was inside my truck. And they all stood there. They would film. They would watch. If I walked down the driveway they would walk down the driveway and stand. If I came up the driveway . . . they would follow me up through there. . . .

Mother and Stevens were married on February 22, 2005. Father contends he became very concerned about the effect Stevens' presence would have on his son:

Now [Stevens] obviously is a very aggressive person. I mean, you can tell that there's some anger in there. Whether he's aggressive to men or not I do not know. But I do know from things that I've seen, heard, and everything, and been there, and watched, and things he says to me that, you know, he's not a very kind person. Not a good person, someone you would want around a child all the time or that you would want a child to look up at as a figure to grow up and be like.

Father alleges that his son's conduct changed after Stevens appeared:

[T.C.D.] has actually come up and learn[ed] to hit people, hit them or whatever. And he has told me, "When poppy smacks me I smack him back." And he's learned to use words like fart or booger, or boobies, and stuff. You know, I'm like, "Where did you get this?" And it comes right from that type of . . . that, "From poppy." That's what he says. And I ask him, "Does mommy not stop it?" He said, "No." And I'm like, you know, so I don't know what the relationship is between the two, but I know what [T.C.D.] sees is not a normal, good environment nor is it . . . or is he not ever touched. . . .

On or about March 15, 2005, Father filed a Petition for Custody and/or Petition for Increased Visitation. Father claimed that he feared for the safety of his son due to Mother's relationship with Stevens, who Father believed to have a substantial alcohol and/or drug abuse problem along with a criminal record. Father also claimed that Mother had intentionally disrupted...