Pizzillo v. Pizzillo
| Decision Date | 03 June 1994 |
| Citation | 884 S.W.2d 749 |
| Parties | Diana Pearl PIZZILLO, Plaintiff/Respondent/Appellee, v. Gabriel Anthony PIZZILLO, Jr., Defendant/Petitioner/Appellant. |
| Court | Tennessee Court of Appeals |
John D. Kitch, Nashville, for the plaintiff/respondent/appellee.
Robert Todd Jackson, Robert L. Jackson, Nashville, for the defendant/petitioner/appellant.
This appeal involves the visitation arrangements for an eleven-year-old girl and her father. Approximately one year after the divorce, the father filed a petition in the Probate Court of Davidson County 1 seeking specific visitation with his daughter and son. The mother opposed the father's request because she believed that he had sexually abused his daughter and a teenage niece. Following a series of hearings before the probate court and a special master, the probate court declined to increase the father's visitation with his daughter and ordered the father to pay all the costs, the expert witness fees, and the mother's legal expenses. The father has appealed. We vacate the order and remand the case for further proceedings.
Gabriel Anthony Pizzillo, Jr. and Diane Pearl Pizzillo had two children during their marriage. Kaleena Marie Pizzillo was born in March 1983, and Michael Anthony Pizzillo in August 1985. The Pizzillos' relationship was not stable, and by 1986 they were in counselling for chronic arguing and verbal fighting. They eventually separated in April 1987 after Mr. Pizzillo's teenage niece accused him of sexual abuse.
In June 1987 the Pizzillos' four-year-old daughter told her maternal grandmother that her father had sexually abused her. This statement led to an investigation by the Department of Human Services and eventually to criminal charges against Mr. Pizzillo. Mr. Pizzillo insisted that he was innocent; however, he followed his attorney's advice to accept pretrial diversion rather than standing trial. On September 24, 1987, Mr. Pizzillo and the district attorney general signed a memorandum of understanding containing an admission that he sexually abused his daughter and niece. Mr. Pizzillo also agreed to pretrial diversion for two years, to seek psychiatric counseling, and to pay for the psychiatric therapy of his daughter and niece.
Ms. Pizzillo filed for divorce. On June 30, 1988, the Pizzillos entered into a marital dissolution agreement in which they agreed that Ms. Pizzillo would receive a divorce on the ground of irreconcilable differences and that she would receive custody of their two children. They also agreed that Mr. Pizzillo would be entitled to supervised visitation with his son but that visitation with his daughter would await the recommendations of the Luton Community Mental Health Center. On August 4, 1988, the Davidson County Probate Court entered a final decree of divorce consistent with the marital dissolution agreement.
Mr. Pizzillo filed a petition in November 1989 seeking specific visitation with both his children and to hold Ms. Pizzillo in contempt for impeding his visitation with his son. Mr. Pizzillo remarried in June 1990 and also amended his petition to request unsupervised visitation with his son. In response to these petitions, the probate court appointed Dr. Louise Strang, a clinical psychologist, to evaluate the two children and their parents. Dr. Strang filed a report in June 1991 recommending expanded visitation with both children, and the probate court entered an order on October 23, 1991 permitting Mr. Pizzillo limited, supervised visitation with his daughter and expanded visitation with his son. The probate court left open the possibility of expanding Mr. Pizzillo's visitation rights further "under such conditions and at such times as recommended by the psychologist and approved by the court."
In April 1992, Dr. Cathryn Yarbrough, the clinical psychologist supervising the visitations between Mr. Pizzillo and his daughter, recommended expanding the supervised visitations with the use of non-professional supervisors. Ms. Pizzillo objected to permitting visitation between Mr. Pizzillo and his daughter without a psychologist present because she did not believe the child was emotionally prepared for these visits and because Mr. Pizzillo continued to insist that he had not sexually abused his daughter. Following a May 1992 hearing, the probate court appointed Dr. William D. Kenner, a child psychiatrist, to interview Mr. Pizzillo regarding the allegations of sexual abuse and to report the results of his evaluation to the court. Dr. Kenner filed a report in August 1992 finding that "Mr. Pizzillo's children would benefit from visiting with their father in an unsupervised setting as recommended by Cathryn Yarbrough, Ph.D."
The probate court conducted another hearing in October 1992 and entered an order on November 17, 1992 rejecting the visitation recommendations of Dr. Strang, Dr. Yarbrough, and Dr. Kenner. The probate court's action resulted from its concern over Mr. Pizzillo's denial that he had sexually abused his daughter despite his admission in the September 1987 memorandum of understanding. The probate court also directed Mr. Pizzillo to pay for all the costs, expert fees, and Ms. Pizzillo's legal expenses associated with the proceeding. This appeal followed.
We turn first to the admissibility of the September 1987 memorandum of understanding between Mr. Pizzillo and the district attorney general. An admission against interest is generally admissible under Tenn.R.Evid. 803(1.2) as an admission of a party opponent. The expunction of the memorandum of understanding, however, renders inadmissible both the memorandum of understanding itself and any admissions against interest contained in it.
The complaints about Mr. Pizzillo's conduct with his daughter and niece led to the filing of two aggravated sexual battery charges against him. Acting on the advice of counsel, Mr. Pizzillo accepted the district attorney general's offer to enter into a two-year pretrial diversion program in lieu of entering a formal plea or standing trial on the charges. Part of the agreement included the entry of a formal memorandum of understanding pursuant to Tenn.Code Ann. § 40-15-105 (Supp.1993).
On September 24, 1987, the criminal court approved and filed an agreed order incorporating the memorandum of understanding. Mr. Pizzillo never entered a formal plea but admitted in the memorandum of understanding that he had unlawful sexual contact with his daughter and niece. He also agreed to seek therapy for himself and to pay for his daughter's and niece's therapy. In return, the State agreed to reduce the charges to attempt to commit a felony, to continue the case for two years, and to dismiss the charges with prejudice if Mr. Pizzillo successfully completed the pretrial diversion program and adhered to all the conditions of the memorandum of understanding.
Mr. Pizzillo successfully completed the pretrial diversion program in September 1989. Thereafter, the criminal court dismissed the charges with prejudice in accordance with Tenn.Code Ann. § 40-15-105(e). After the dismissal of the charges, the criminal court also expunged all public records of the charges pursuant to Tenn.Code Ann. § 40-32-101(a)(1) (1990).
The memorandum of understanding governed the visitation arrangements between Mr. Pizzillo and his children until Mr. Pizzillo successfully completed his pretrial diversion program in September 1989. Thereafter, the memorandum of understanding provided that the probate court would assume jurisdiction over the visitation issues since it was the court with jurisdiction over the Pizzillos' divorce. As soon as the criminal court dismissed the charges against him, Mr. Pizzillo requested the probate court to expand his visitation rights with both his children.
Ms. Pizzillo vigorously opposed Mr. Pizzillo's request for expanded visitation. Her opposition was due, at least in part, to Mr. Pizzillo's insistence that he had never sexually abused his daughter. In an effort to contradict these denials, Ms. Pizzillo filed a copy of the expunged September 1987 memorandum of understanding with the probate court. The trial court considered the memorandum of understanding over Mr. Pizzillo's objections and, in fact, denied Mr. Pizzillo expanded visitation because he was denying committing the very acts he had admitted committing in the memorandum of understanding. 2
Admissions by a party opponent are admissible as exceptions to the hearsay rule. Tenn.R.Evid. 803(1.2)(A). The factual statements contained in pleadings filed in other cases are admissions of a party opponent, and thus they may be received into evidence when they are inconsistent with the pleader's contentions in the present case. Pankow v. Mitchell, 737 S.W.2d 293, 296 (Tenn.Ct.App.1987). They need not be verified to be admissible, and they continue to be admissible even after the case in which they were filed has been withdrawn or dismissed. Pankow v. Mitchell, 737 S.W.2d at 297 (); Bowers v. Potts, 617 S.W.2d 149, 154 (Tenn.Ct.App.1981) (verification not required).
Mr. Pizzillo's admission contained in the September 1987 memorandum of understanding would be admissible using these principles. Memoranda of understanding are, however, unique documents whose use in later proceedings must be consistent with the statutes authorizing them and governing their use. Thus, we must also look to Tenn.Code Ann. §§ 40-15-105 and 40-32-101.
Tenn.Code Ann. § 40-15-105 authorizes district attorneys general to permit certain first-offenders to enter a pretrial diversion program before pleading to or being tried for the charges against them. 3 Persons who receive pretrial diversion are not required to admit or plead guilty to the charges against them, State v. King, 640 S.W.2d 30, 33 (Tenn.Crim.App....
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