Sherrod v. Wix

• Decision Date: 14 October 1992
• Citation: 849 S.W.2d 780
• Court: Tennessee Court of Appeals
• Parties: Michael Wallace SHERROD, Plaintiff/Appellant, v. Brenda Faye Sherrod WIX, Defendant/Appellee.

Page 780

849 S.W.2d 780

Michael Wallace SHERROD, Plaintiff/Appellant, v. Brenda Faye Sherrod WIX, Defendant/Appellee.

Court of Appeals of Tennessee Middle Section at Nashville.

Oct. 14, 1992.

Application for Permission to Appeal

Denied by Supreme Court

March 1, 1993.

D. Ronald Ingram, Ingram & Love, Goodlettsville, for plaintiff/appellant.

Michael W. Edwards, Hendersonville, for defendant/appellee.

OPINION

KOCH, Judge.

This appeal arises from a protracted dispute over the custody and visitation arrangements for a four-year-old boy who was born after his parents' divorce proceedings began. Soon after the Circuit Court for Robertson County awarded the mother the divorce and custody of the child, the father began a vigorous campaign to expand his visitation privileges and to obtain custody of his son. The trial court eventually denied the father's request for custody and restricted his visitation privileges. The trial court also found the father in contempt for violating an order enjoining him from harassing the mother and ordered him to pay the mother's legal expenses stemming from the custody dispute. The father takes issue on this appeal with the restriction of his visitation privileges, the contempt citation, and the award for legal expenses. We modify the award for legal expenses and affirm the remaining orders.

I.

Michael Sherrod is a 33-year-old tobacco farmer from Robertson County. In August 1985, he married Brenda Faye (Sherrod) Wix, a licensed practical nurse who was six years his senior. Mrs. Wix had been married previously and had three children from her first marriage. Mr. Sherrod had not been married before.

The marriage was not a happy one. Mr. Sherrod was under a psychiatrist's care and took medication to control his behavior. The couple separated in late 1987, and Mr. Sherrod filed for divorce in December 1987. Mrs. Wix was pregnant at the time. She gave birth to a son in March 1988, and the litigation over the boy commenced even before she left the hospital because Mr. Sherrod believed that Mrs. Wix was interfering with his access to the baby.

Mrs. Wix later counterclaimed for divorce, and in May 1988, the trial court granted her a divorce on the ground of cruel and inhuman treatment and awarded her custody of the parties' son. The trial court also directed Mr. Sherrod to pay child support and determined that he should be permitted visitation on one week day and alternate Sundays.

Within months after the trial court's decision, Mr. Sherrod decided to launch an investigation into Mrs. Wix's activities because he thought that she was not permitting him to spend enough time with his son, that she was dating too many different men and using too many baby-sitters, and that she was associating with the wrong kind of people. In addition to hiring a private investigator, Mr. Sherrod began to follow Mrs. Wix around and to rummage through her garbage to obtain evidence to use against her.

In November 1988, Mrs. Wix filed a petition requesting the trial court to enjoin Mr. Sherrod from coming about her residence or from molesting or harassing her. On December 2, 1988, the trial court entered an order stating, in part:

That Michael Wallace Sherrod is hereby enjoined from coming about the said Brenda Faye Wooten Sherrod except to exercise his visitation with the parties' minor child; further he is enjoined from harassing her, from following her, from going upon any resident property in which she occupies as a home except to exercise visitation and from picking up her garbage from any residence in which she resides.

Mr. Sherrod filed a petition in May 1989 seeking custody of his son. He alleged that he had "received" information that Mrs. Wix was "having undesirable persons around the child" and that "said person or persons are remaining in the home where the child is for extended periods of time at night." No action was taken on this petition, and in May 1990, he filed another petition seeking increased visitation with his son.

Mr. Sherrod decided that Mrs. Wix and her attorney were frustrating his efforts to obtain the information he needed to support his requests for increased visitation or for a change in custody and that his own lawyer was not pursuing discovery as vigorously as he should. Accordingly, he fired his lawyer and set out on his own to obtain additional information about Mrs. Wix who had since remarried.

The scheme Mr. Sherrod devised for obtaining additional proof involved sending Mrs. Wix a questionnaire asking personal questions about her current marriage. Using the name of "Modern Women Research" and a post office box of his own, he sent Mrs. Wix a questionnaire promising a free subscription to a popular women's magazine if she returned the completed questionnaire within ten days. Mrs. Wix completed the questionnaire and returned it to Mr. Sherrod's post office box.

Mrs. Wix did not discover what Mr. Sherrod had done until a January 1991 hearing when his lawyer produced the questionnaire and began to cross-examine her based on her responses. Mr. Sherrod admitted that he sent the questionnaire to Mrs. Wix but then declined to elaborate on his scheme after the trial court and his attorney advised him that he could be incriminating himself. At the conclusion of the hearing, the trial court found that sending the questionnaire was harassment in violation of its December 1988 injunction ¹ and that Mr. Sherrod was in contempt. The trial court gave Mr. Sherrod a suspended thirty-day sentence and informed him that he would be incarcerated immediately for any other contemptuous acts. The trial court also directed that a transcript of the proceedings be forwarded to the United States Attorney to determine whether a criminal violation of the postal laws had been committed.

On the day after the hearing, Mr. Sherrod and his lawyer decided to send Mrs. Wix the magazine subscription she had requested in her questionnaire. Accordingly, Mrs. Wix later received a card stating that the subscription was "a gift with best wishes from" Mr. Sherrod. Mrs. Wix requested that Mr. Sherrod be held in contempt, and the trial court, in an April 17, 1991 order, found Mr. Sherrod to be in contempt and sentenced him to ten days in jail.

Mr. Sherrod perfected an appeal to this court. Following oral argument in January 1992, Mr. Sherrod alleged that documents had been removed from the trial court's file and that Mrs. Wix's attorney had attached an order to his brief that differed materially from the order actually entered by the trial court. After receiving responses from the trial court clerk and Mrs. Wix's attorney, this court remanded the record to the trial court to enable the parties to resolve their differences concerning the proper contents of the record. The trial court certified that the corrected record was complete on June 23, 1992, and the clerk of this court received the corrected record on July 22, 1992. Both parties have now filed supplemental briefs, and the appeal is ready for decision.

II.

We take up first Mr. Sherrod's challenge to the trial court's decision to change his visitation privileges from every week to every other week with four weeks of visitation during the summer. Our ability to deal with this issue is hampered by the absence of either a transcript of the proceedings in the trial court or a statement of the evidence prepared in accordance with Tenn.R.App.P. 24(c).

When a trial court decides a case without a jury, it's findings of fact are presumed to be correct unless the evidence in the record preponderates against them. Tenn.R.App.P. 13(d). This court cannot review the facts de novo without an appellate record containing the facts, and therefore, we must assume that the record, had it been preserved, would have contained sufficient evidence to support the trial court's factual findings. McDonald v. Onoh, 772 S.W.2d 913, 914 (Tenn.Ct.App.1989); Irvin v. City of Clarksville, 767 S.W.2d 649, 653 (Tenn.Ct.App.1987); Gotten v. Gotten, 748 S.W.2d 430, 432 (Tenn.Ct.App.1988).

Custody and visitation arrangements are customarily left to the trial court's discretion. Edwards v. Edwards, 501 S.W.2d 283, 291 (Tenn.Ct.App.1973). Even though the appellate record does not contain a transcript or statement of the evidence, we have reviewed the trial court's detailed findings of fact and conclusions of law and can find no basis for second-guessing its decision with regard to Mr. Sherrod's visitation rights. The trial court's visitation arrangements reflect the trial court's awareness of the importance of enabling children to develop and maintain a strong relationship with their noncustodial parent. See Bryan v. Bryan, 620 S.W.2d 85, 88 (Tenn.Ct.App.1981); Dillow v. Dillow, 575 S.W.2d 289, 291 (Tenn.Ct.App.1978).

III.

Mr. Sherrod also takes issue with the trial court's decision to require him to pay $4,559 of his wife's legal expenses stemming from this litigation. He asserts that the award should be set aside because (1) he has not "been able to accurately determine the amount of attorney fees incurred by the Appellee," (2) that a portion of the fees were for work not directly related to the custody issue, and (3) that a portion of the fees were incurred for "efforts to have Appellant investigated."

A.

Mrs. Wix did not request an additional award for legal expenses during the original divorce and custody proceeding. She first sought reimbursement for her legal expenses in July 1989 in response to Mr. Sherrod's motion for a change of custody.

At the conclusion of the January 9, 1991 hearing, the trial court awarded Mrs. Wix $3,500 for her legal expenses. Both Mr. Sherrod and Mrs. Wix filed timely motions to alter or amend the judgment with regard to the attorney's fees. Mrs. Wix's attorney pointed out that his customary rate was $100 per hour, not $75 per hour as found by the trial court. Mr. Sherrod asserted that he had been proceeding in good faith and that Mrs. Wix's...