Johnson v Johnson

• Decision Date: 28 August 2001
• Docket Number: 00-00358
• Citation: Johnson v Johnson (Tenn. App. 2001)
• Parties: KEVIN JULIAN JOHNSON v. DONNA COLE JOHNSONIN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE
• Court: Tennessee Court of Appeals

KEVIN JULIAN JOHNSON v DONNA COLE JOHNSON

No. M2000-00358-COA-R3-CV

IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE

January 30, 2001 Session

Filed August 28, 2001

Appeal from the Chancery Court for Williamson County, No. II-26076

Russ Heldman, Chancellor

This appeal involves the dissolution of a ten year marriage. The trial court awarded the husband a divorce after concluding that the wife was guilty of inappropriate marital conduct. The trial court granted custody of the parties' three minor children to the father and refused the mother visitation rights, and held her in criminal contempt of court. The wife now appeals. We have determined that the trial court properly awarded custody to the father but the trial court erred in refusing the mother visitation, and in convicting her of criminal contempt. Accordingly, we affirm in part and reverse in part.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court

Affirmed in Part and Reversed in Part

William B. Cain, J., delivered the opinion of the court, in which BEN H. CANTRELL, P.J., M.S. and WILLIAM C. KOCH, JR., joined.

John M. Cannon, Goodlettsville, Tennessee, for the appellant, Donna Cole Johnson.

William Donnell Young, Jr. and Thomas F. Bloom, Nashville, Tennessee, for the appellee, Kevin Julian Johnson.

OPINION

The parties met in 1984 while both were employed at N.E.S. Donna Cole became pregnant in 1987 with the parties' first child. The parties began living together in July 1988. They eventually married in April 1989 and two months later, twins were born to the marriage.

The marriage was very turbulent and the record is replete with instances of verbal abuse and episodes of violence.

On March 5, 1999, Mr. Johnson filed a complaint for divorce in the Chancery Court for Williamson County on the grounds of irreconcilable differences and inappropriate marital conduct. He sought custody of the parties' children. He filed for an order of protection alleging that Mrs. Johnson had violent and destructive rages in front of the children including cutting his tires, breaking a side mirror on his truck, and shouting obscenities at him. An ex parte order of protection was issued.

On March 9, 1999, a show cause order was entered compelling Mrs. Johnson to appear to show cause why Mr. Johnson should not be awarded custody of the parties' three minor children. On that same date, the court entered a temporary restraining order removing Mrs. Johnson from the parties' residence and placing custody of the children with Mr. Johnson pending a hearing.

On April 28, 1999, the parties entered an agreed order allowing Mrs. Johnson to return to the marital residence, and providing that Mrs. Johnson would terminate all contact with her paramour, Mr. Harbison, pending the final hearing of the case.

On June 3, 1999, Mrs. Johnson filed a counter-complaint for divorce on the grounds of irreconcilable differences and inappropriate marital conduct. She also sought custody of the children. She filed for an order of protection on June 9, 1999, alleging that Mr. Johnson had stopped the school bus she drove, knocked the sunglasses off of her face, cursed her, and committed other violent acts. An ex parte order of protection was issued.

On June 22, 1999, an order was entered providing alternating weeks of custody in the marital home and that Mrs. Johnson was restrained from any contact with Mr. Harbison.

On August 26, 1999, Mr. Johnson filed a petition for contempt alleging Mrs. Johnson continued contact with Mr. Harbison in violation of the parties' agreed order and the court's restraining order, and that Mrs. Johnson had the minor children at Mr. Harbison's home. On October 7, 1999, Mrs. Johnson responded to the contempt motion admitting she spent time with Mr. Harbison.

The trial court entered an order on December 17, 1999, stating as follows:

[T]he Court having heard sufficient proof to cause the Court concern for the physical and moral welfare and safety of the minor children of the parties based upon the admissions of the Defendant, Donna Cole Johnson, concerning her attitude toward this Court's Orders and her attorney's advice and directions, and the Court being of the opinion it now is compelled to issue a Pendente Lite Order pending the final judgment of this cause . . . .

The Final Judgment and Decree of Divorce was entered on January 20, 2000, finding in part:

As to the matter of the divorce, the Court finds Defendant has willfully lied and committed perjury in her testimony and on the case of Inman v. Inman, WL 122984 (Tenn. App. 10/18/92), the Court will not grant Defendant any affirmative relief in this matter and her Counter-Complaint for Divorce is dismissed; that Plaintiff is entitled to an absolute divorce from the Defendant on the grounds of inappropriate marital conduct; . . . [T]hat considering the cases of Gaskill v. Gaskill, 936 S.W.2d 626, 634 (Tenn.App. 1996) and Suttles vs. Suttles, 748 S.W.2d 427 (Tenn. 1988) in making its decision regarding custody and visitation as well as the statutory factors, demeanor and credibility of the parties, of the witnesses, the Court awards sole and exclusive custody of the three (3) minor children of the parties to Plaintiff; that Plaintiff is enjoined and restrained from delegating any corporal punishment on the minor children for disciplinary reasons or other reasons to any third party; . . . that as shown in Gaskill v. Gaskill, supra, a parent who is fundamentally dishonest, profane in his or her speech to children, does not obey the Court's Order or the authority of the Court is not a good example to children; that if the adultery exposes the children to some physical, emotional or moral harm, then the adultery takes on greater significance in the analyzing of factors; that it appears to the Court that Defendant would like for Plaintiff to be dead, that Defendant has no respect or certain moral norms concerning telling the truth in court, concerning following court orders, concerning the adultery issue, concerning the speaking of proper language in the presence of children, the Court finds if it permits Defendant the right of visitation it will indeed jeopardize these children in both a physical and moral sense; that upon Suttle v. Suttles, supra, the Court shall not grant Defendant any visitation with the minor children of the parties because to set visitation requires visitation be set by Court Order and Defendant has shown she cannot follow the Court's Orders and the Court has no confidence whatsoever these children would be anything but morally and physically jeopardized by being under Defendant's care; that the only contact the Defendant shall have is two (2) hours telephone privileges with the minor children, that being one (1) hour on Sunday evening and one (1) hour on Wednesday evening, with Defendant being enjoined and restrained from making any derogatory remarks about Plaintiff/Father or using any profanity during these conversations with the children . . . .

. . . .

It is further ORDERED, ADJUDGED AND DECREED Plaintiff is hereby awarded sole and exclusive custody of the three (3) minor children, Hank Johnson, Jesse Johnson and Kayce Johnson. Plaintiff is enjoined and restrained from delegating any corporal punishment on the minor children for disciplinary reasons or other reasons to any third party. Further, Plaintiff is enjoined and restrained from using any corporal punishment on the minor children except as means of last resort or extreme circumstances;

It is further ORDERED, ADJUDGED AND DECREED Defendant shall have no visitation or contact with the minor children of the parties except as hereinafter ordered. Defendant is awarded telephone privileges with one (1) or all three (3) of the parties' minor children for one (1) hour from 7:00 p.m. until 8:00 p.m. on Sunday evening and one (1) hour from 7:00 p.m. until 8:00 p.m. on Wednesday evening. Plaintiff shall put all three (3) minor children in a room with the telephone to talk with their Mother for this one (1) hour on each Sunday and Wednesday. Defendant is hereby enjoined and restrained from making any derogatory remarks about Plaintiff/Father or using any profanity during these conversations with the minor children.

The appellant has presented this Court with six issues on appeal: whether the trial court erred in (1) admitting into evidence illegally obtained audio tapes, (2) excluding witnesses and offers of proof from the appellant, (3) awarding custody to the father; (4) terminating appellant's visitation rights, (5) finding appellant in criminal contempt, and (6) entering an order for forged checks without an amount or proof of use of the funds. We address the issues in the order presented by Appellant.

AUDIO TAPES

Appellant first asserts that the trial court erred in admitting into evidence illegally obtained audio tapes.

Prior to the 1994 amendments, the federal Omnibus Crime Control and Safe Streets Act, forbidding nonconsentual interception of wire and electronic communications, did not apply to the interception of conversations transmitted by way of radio waves from a cordless telephone. McKamey v. Roach, 55 F.3d 1236, 1995 FED App. 0180P (6th Cir. 1995).

Prior to Chapter 970 of the Public Acts of 1994, sections 1 and 4, now codified as Tennessee Code Annotated section 39-13-604, no Tennessee law prohibited recording and dissemination of cordless telephone transmissions. Under this Act, " '[c]ordless telephone' means a two-way, low power communication system consisting of two (2) parts, a 'base' unit which connects to the public switched telephone network and a handset or 'remote' unit, that are connected by a radio link and authorized by the federal communications system to operate in the frequency bandwidths reserved for cordless telephones." Tenn. Code Ann. § 39-13-604(a)(3). This statute further provides that "[n]o recording of a protected communication, or any information contained...