McGarity v. Jerrolds

• Decision Date: 24 February 2014
• Docket Number: No. W2013–00250–COA–R3–CV.,W2013–00250–COA–R3–CV.
• Citation: 429 S.W.3d 562
• Parties: Richard McGARITY and Teresa McGarity v. Corbin JERROLDS and Amber Jerrolds.
• Court: Tennessee Court of Appeals

429 S.W.3d 562

Richard McGARITY and Teresa McGarity

v.Corbin JERROLDS and Amber Jerrolds.

No. W2013–00250–COA–R3–CV.

Court of Appeals of Tennessee.

July 17, 2013 Session.

Aug. 27, 2013.

Petition to Rehear Denied Sept. 12, 2013.

Application for Permission to Appeal Denied by Supreme Court Feb. 24, 2014.

J. Gilbert Parrish, Jr., Savannah, Tennessee, for the appellants, Corbin Jerrolds and Amber Jerrolds.

Terry L. Wood, Adamsville, Tennessee, for the appellees, Richard McGarity and Teresa McGarity.

OPINION

J. STEVEN STAFFORD, J., delivered the opinion of the Court, in which ALAN E. HIGHERS, P.J., W.S., and DAVID R. FARMER, J., joined.

J. STEVEN STAFFORD, J.

This is a grandparent visitation case. The trial court awarded visitation to paternal grandparents on the basis of a finding of severe emotional harm to the child if visitation was not granted. The child's mother and adoptive father appeal. We affirm the trial court's ruling with regard to the evidentiary and procedural issues, but reverse as to the finding of a likelihood of severe emotional harm. Affirmed in part, reversed in part, and remanded.

I. Background

Appellants Corbin Jerrolds and Amber Jerrolds (“Mother,” and together with Mr. Jerrolds, “Appellants”) are the biological mother and adoptive father of the minor child (born in 2009) at issue in this case. Appellees Richard McGarity and Teresa McGarity (together with Mr. McGarity, “Grandparents”) are the paternal grandparents of the child. Mother and the child's biological father divorced and Mother married Mr. Jerrolds. After the marriage, Mr. Jerrolds adopted the child. After the adoption, Appellants determined that visitation with Grandparents was no longer in the child's best interest. Due to the cessation of visitation, the Grandparents filed a petition for grandparent visitation.

At trial, the parties stipulated that Grandparents had a substantial relationship with the child. The parties testified that Grandparents babysat the child three or four times a week and kept him two or three days a month on weekends. After Mother married Mr. Jerrolds, however, the visitation was modified to every Friday from 7:30 a.m. to 5:00 p.m. Visitation of any kind ended on February 1, 2012. Mother testified that she terminated visitation because it made the child confused and she did not want the child to learn that his biological father voluntarily relinquished his parental rights until he was old enough to process that information. Mother also testified that it was emotionally painful for her to maintain the relationship with Grandparents. Mother finally testified that she wanted to foster the child's relationship with Mr. Jerrolds and the child's new grandparents. According to Mother, continuing to visit Grandparents was an obstacle to furthering those relationships due to complications and conflicts that could arise in seeking to accommodate three sets of grandparents, as well as the stress caused by scheduling the visits. Mother also testified that after the cessation of visitation, she observed no adverse consequences to the child. Mr. Jerrolds likewise testified to his concern that continued visitation would prevent the creation of a cohesive family unit. According to both Mother and Mr. Jerrolds, since the time Mr. Jerrolds adopted the child, the child knows Mr. Jerrolds as his Father and the child has responded well to that relationship. According to Mother, only after visits with Grandparents, did the child become confused about who his father is or who Mr. Jerrolds is in relation to himself. Finally, Mother, Mr. Jerrolds, maternal grandmother, and another witness testified that since the cessation of visitation with Grandparents, the child has not exhibited any signs of harm; instead, they all testified that he is a happy and well-adjusted child. However, maternal grandmother also admitted that she believed the child would suffer substantial harm if her own relationship with the child were severed.

In contrast, Ms. McGarity testified that they had a close and loving relationship with the child. Grandparents submitted several photographs and a video of them interacting with the child. Ms. McGarity testified that she and her husband were close with the child and that cutting the child off from them could hurt the child. A witness testified that when she observed Grandparents returning the child to Mother, the child would cry and not want to leave Grandparents. Another witness also testified that when she saw the child approximately four to six weeks after the cessation of visitation and mentioned Grandparents to the child, the child became excited and called out paternal grandmother's name. Ms. McGarity also denied that she or her husband ever attempted to confuse the child with regard to who his father is.

The trial court took the matter under advisement at the conclusion of trial and asked each party to prepare proposed findings of fact and conclusions of law. The trial court entered an order on December 17, 2012, which incorporated by reference the proposed findings of fact and conclusions of law prepared by Grandparents in their entirety. In the order, the trial found that the cessation of visitation between the child and paternal grandparents was likely to cause substantial harm to the child. The paternal grandparents were, therefore, awarded visitation one weekend a month and on Christmas Day, with permission to attend all school and sporting events in which the child participates. Grandparents later filed a Motion for Discretionary Costs, which was denied by Judge C. Creed McGinley, sitting for the trial court by interchange, on May 3, 2013.

Appellants appealed, raising the following issues, which are restated from their brief:

1. Whether the trial court erred in permitting the admission of photos and videotape over the objection of counsel after a stipulation that Grandparents had a substantial relationship with the child?

2. Whether the trial court erred in not making its own independent findings of fact and conclusions of law when it simply approved the proposed findings of fact and conclusions of law of Grandparents?

3. Does the Grandparents' visitation violate Appellants' fundamental rights as parents under the Tennessee and U.S. Constitutions to exercise control over the care and custody of their children?

4. Did the trial court err in concluding that visitation is in the best interests of the child? ¹

II. Analysis

Because this case was heard by the trial court, sitting without a jury, we review the trial court's findings of fact de novo with a presumption of correctness, unless the evidence preponderates otherwise. Tenn. R.App. P. 13(d). No presumption of correctness, however, attaches to the trial court's conclusions of law and our review is de novo. Blair v. Brownson, 197 S.W.3d 681, 684 (Tenn.2006) (citing Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn.2000)). For the evidence to preponderate against a trial court's finding of fact, it must support another finding of fact with greater convincing effect. 4215 Harding Road Homeowners Ass'n v. Harris, 354 S.W.3d 296, 305 (Tenn.Ct.App.2011); Walker v. Sidney Gilreath & Assocs., 40 S.W.3d 66, 71 (Tenn.Ct.App.2000).

A. Admission of Photographs and Video

The Appellants first argue that the trial court erred in permitting the admission of photographic and video evidence showing the relationship between Grandparents and the child. Trial courts are given wide latitude on evidentiary decisions and we will only overturn the trial court's decision upon a showing of an abuse of discretion. Danny L. Davis Contractors, Inc. v. Hobbs, 157 S.W.3d 414, 419 (Tenn.Ct.App.2004). “The abuse of discretion standard requires us to consider: (1) whether the decision has a sufficient evidentiary foundation; (2) whether the trial court correctly identified and properly applied the appropriate legal principles; and (3) whether the decision is within the range of acceptable alternatives.” Id. (citing Crowe v. First Am. Nat'l Bank, No. W2001–00800–COA–R3–CV, 2001 WL 1683710, at *9 (Tenn.Ct.App. Dec. 10, 2001)).

From our review of the record, however, counsel for Appellants did not object to these photographs until after counsel for Grandparents had questioned Ms. McGarity about them. In addition, when counsel for Grandparents offered the compact disc containing the allegedly objectionable photographs as evidence, the trial court specifically asked counsel for Appellants if there was an objection. Counsel for Appellants responded only that he wanted an opportunity to review the compact disc, not that he had an objection to the admission of the photographs. Further, when counsel for Grandparents sought to introduce the video of Grandparents with the child, the trial court again asked for any objections. Counsel for Appellants responded that there were no objections subject to his review of the video. According to the record before this Court, counsel for Appellants did not raise any objections to either the photographic or video evidence subsequent to their review.

In most cases, in order to raise an issue on appeal regarding the admissibility of evidence, the party raising the issue must have made a contemporaneous objection. It is well-settled that the failure to raise a contemporaneous objection to the admission of evidence at the time the evidence is introduced at trial results in waiver of the particular issue on appeal. SeeTenn. R.App. P. 36(a) (“Nothing in this rule shall be construed as requiring relief be granted to a party ... who failed to take whatever action was reasonably available to prevent or nullify the harmful effect of the error.”); State v. Thompson, 36 S.W.3d 102, 108 (Tenn.Crim.App.2000). In this case, counsel for Appellants did not object to the questions regarding the photographs until after several of the photographs had been admitted. In addition, counsel for Appellants did not raise any objection when Grandparents' counsel sought to...