Joiner v. Griffith, No. M2004-02601-COA-R3-CV (Tenn. App. 7/31/2006)
| Decision Date | 31 July 2006 |
| Docket Number | No. M2004-02601-COA-R3-CV.,M2004-02601-COA-R3-CV. |
| Parties | TAMMY KAY JOINER v. JAMES ALDEN GRIFFITH. |
| Court | Tennessee Court of Appeals |
Appeal from the Juvenile Court for Montgomery County; No. 98-235; Wayne C. Shelton, Judge.
Judgment of the Juvenile Court Affirmed in Part, Vacated in Part, and Remanded.
Michael K. Williamson and Philip M. Mize, Clarksville, Tennessee, for the appellant, Tammy K. Joiner.
Rodger N. Bowman and Gregory D. Smith, Clarksville, Tennessee, for the appellee, James Alden Griffith.
OPINION
This bitter change of custody proceeding originated with Mother's filing of a Petition to Stay Visitation based upon concerns that the parties' youngest child had been potentially exposed to inappropriate sexual behavior while in Father's custody. Father counterclaimed for a change in custody based upon Mother's attempt to interfere with Father's visitation. Following a bench trial, the trial court found Mother's accusations unfounded, awarded Father joint custody, and decreased Father's child support. Mother asserts that the trial court erred by finding the circumstances had changed sufficiently to modify custody or child support. Since the outcome of the custody issue was dependent on the trial court's assessment of the credibility of the witnesses, we affirm the trial court's conclusion that there was a material change of circumstances. We, however, have concluded the trial court erred in setting child support, and remand that issue for further proceedings.
James Alden Griffith (Father) and Tammy Kay Joiner (Mother) lived together from 1997 until 2001 during which relationship they had two children. In March of 2001, Father moved out due to a domestic dispute with Mother. Shortly thereafter, Mother filed a Complaint for Child Support and Other Relief. Mother was designated as the primary residential parent. A visitation schedule was established and Father was ordered to pay $4,000 per month in child support. Both parties appealed and this Court ruled on that appeal in 2004.1 While that appeal was pending, the present issues arose, which were litigated in the trial court and are now before this Court.
The present dispute has its origins in May of 2003, when Mother first observed odd behavior in the parties' then four year old child, S.N.G. Mother claims the child was "humping" furniture, grabbing at Mother inappropriately, and engaging in angry outbursts. She spoke with Father regarding this behavior and her concern about S.N.G. sleeping in the same room as her half-brother and his friends during Father's visitation.2 Father advised Mother he would be more observant when the children were in his home.
Mother took S.N.G. to her physician in May 2003 because she had been exposed to "Fifth's Disease," a common childhood ailment. While there, Mother asked the physician about vaginal irritation the child had been experiencing. The physician diagnosed the vaginal irritation as "H Influenza," which could be contracted in numerous ways; some innocent, others not so innocent.
After seeing the physician in May, Mother took no additional action until she initiated a call in August, three months after learning of the H Influenza diagnosis, to schedule an appointment for S.N.G. with a therapist. The child's first appointment with the therapist, Nancy Conley, was on September 8, 2003. Over the course of several appointments, Ms. Conley became concerned due to statements by S.N.G. The statement that concerned her the most was that a friend of S.N.G's half brother exposed his "peanuts" in her presence.3 Based upon this information, on October 20, 2003, Ms. Conley notified the Department of Children's Services of what she believed may constitute potential sexual abuse.
Several days later, Mother requested Ms. Conley write a letter to Mother's attorney summarizing Ms. Conley's assessment. Upon receipt of the letter, Mother's attorney drafted an affidavit for Ms. Conley to sign which was to be used in support of a petition to stay Father's visitation. The affidavit was mailed to Ms. Conley, she signed it and returned it to Mother's attorney. On October 30, 2003, Mother's attorney filed the affidavit as an exhibit attached to Mother's Petition to Stay Visitation. Father promptly filed a vigorous objection, contending Mother's petition was part of a series of unfounded attempts to interfere with Father's visitation, along with a Petition for Change of Custody.
An emergency hearing was held within ten days of the filing of Mother's petition. While the parties were waiting to be heard, Ms. Conley advised Mother and her attorney that the affidavit contained erroneous statements, which she discovered as she reviewed it in preparation for the hearing. No one advised Father, Father's counsel, or the trial court, of the errors in Ms. Conley's affidavit at that hearing. Moreover, neither Mother nor her counsel ever advised the trial court of the errors in Ms. Conley's affidavit.4 It was not until Ms. Conley disclosed the errors during the five-day trial in July of 2004 that the court became aware of the errors in the affidavit.
A five-day bench trial was conducted in July 2004 on the competing petitions, at the conclusion of which the trial court judge found Mother's conduct constituted a material change in circumstances sufficient to modify custody. The trial court also found it in the best interest of the children that the parents share joint custody. Because custody was changed, which increased Father's parenting time significantly, the trial court found it appropriate to reduce Father's child support obligation to $860 per month. The trial court additionally denied Father's request to assess his attorney fees and costs against Mother.
Mother appeals both rulings, contending there was no material change of circumstance, thus, no justification to change custody, and without a change of custody there was no basis to modify child support. Father appeals the denial of his request to assess attorney fees and costs against Mother.
This court reviews custody and visitation decisions de novo with a presumption that the trial court's findings of fact are correct unless the evidence preponderates otherwise. Kendrick v. Shoemake, 90 S.W.3d 566, 569 (Tenn. 2002); Nichols v. Nichols, 792 S.W.2d 713, 716 (Tenn.1990). Moreover, appellate courts are reluctant to second-guess a trial court's determination regarding custody and visitation. Parker v. Parker, 986 S.W.2d 557, 563 (Tenn. 1999). This is because of the broad discretion given trial courts in matters of child custody, visitation and related issues. Id.; see also Nelson v. Nelson, 66 S.W.3d 896, 901 (Tenn. Ct. App. 2001). Custody decisions often hinge on subtle factors, such as the parents' demeanor and credibility during the proceedings. Adelsperger v. Adelsperger, 970 S.W.2d 482, 485 (Tenn. Ct. App. 1997). Accordingly, trial courts have broad discretion to fashion custody and visitation arrangements that best suit the unique circumstances of each case. Parker v. Parker, 986 S.W.2d 557, 563 (Tenn. 1999).
Furthermore, it is not the role of the appellate courts to "tweak [parenting plans] . . . in the hopes of achieving a more reasonable result than the trial court." Eldridge v. Eldridge, 42 S.W.3d 82, 88 (Tenn. 2001). This is particularly true when no error is evident from the record. Id. Thus, a trial court's decision regarding custody or visitation will be set aside only when it "falls outside the spectrum of rulings that might reasonably result from an application of the correct legal standards to the evidence found in the record." Id.
We review the record de novo with a presumption that the court's factual findings are correct, absent a showing that the evidence preponderates to the contrary. Tenn. R. App. P. 13(d); see Berryhill v. Rhodes, 21 S.W.3d 188, 190 (Tenn. 2000); Farrar v. Farrar, 553 S.W.2d 741, 743 (Tenn. 1977). It is also well settled that the burden rests upon petitioner to prove a significant variance between the obligation applicable to his alleged current income and the original child support obligation. Turner v. Turner, 919 S.W.2d 340, 345 (Tenn. Ct. App. 1995). Broad discretion is afforded the trial court in its child support determinations. That discretion is bounded on all sides by the child support guidelines and should not be disturbed on appeal unless this Court finds in its de novo review that the evidence preponderates against that finding. See Butler v. Butler, 680 S.W.2d 467 (Tenn. Ct. App. 1984).
Mother contends the evidence preponderates against the trial court's finding of a material change of circumstances that warranted a modification of custody. Finding the evidence more than sufficient to support the trial court's findings, we affirm the modification of custody.
Notwithstanding the importance of stability and continuity, intervening changes in a child's circumstances may require modifying an existing custody and visitation arrangement. Tenn. Code Ann. § 36-6-101(a)(1) empowers the courts to change custody "as the exigencies of the case may require," and courts will change custody when the party seeking to change custody proves (1) that the child's circumstances have materially changed in a way that could not have been reasonably foreseen at the time of the original custody decision, see Smith v. Haase, 521 S.W.2d 49, 50 (Tenn.1975); McDaniel v. McDaniel, 743 S.W.2d 167, 169 (Tenn.Ct. App. 1987), and (2) that the child's best interests will be served by changing the existing custody arrangement. See Solima v. Solima, 7 S.W.3d 30, 35 (Tenn.Ct.App. 1998).
In child custody and visitation cases, the welfare and best interests of the child are...
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