Smith v. Smith, No. M2005-01688-COA-R3-CV (Tenn. App. 4/9/2008)
| Decision Date | 09 April 2008 |
| Docket Number | No. M2005-01688-COA-R3-CV.,M2005-01688-COA-R3-CV. |
| Parties | BARRY D. SMITH v. TAMARA YVETTE SMITH. |
| Court | Tennessee Court of Appeals |
Appeal from the Chancery Court for Sumner County; No. 2002D-208; Tom E. Gray, Chancellor.
Judgment of the Chancery Court Affirmed.
Karla C. Hewitt, Nashville, Tennessee, (on appeal) for the appellant, Tamara Y. Smith.
Robert G. Ingrum, Gallatin, Tennessee, and Thomas F. Bloom, Nashville, Tennessee, for the appellee, Barry D. Smith.
Jerry Scott, Sr. J., filed a separate dissenting opinion.
OPINION
This appeal involves a dispute regarding the residential schedule for a twelve-year-old child. In the divorce proceeding filed in the Chancery Court for Sumner County, the trial court, at the parties' request, appointed a psychologist to examine the parties and their child and to report his findings and conclusions to the court and the parties. After the psychologist completed and filed his reports, the trial court and the parties used them to fashion interim visitation orders. Despite the earlier use of the reports, the mother objected to the use of the reports at trial on the ground that she had not been afforded an opportunity to depose the psychologist. The trial court overruled the objection. After receiving the testimony of the parties and their child, the court designated the father as the primary residential parent and fashioned a residential schedule accordingly. On this appeal, the mother asserts that the trial court erred by (1) admitting and considering the psychologist's report, (2) designating the father as the primary residential parent, and (3) declining to award her attorney's fees. We have determined that the wife waived her opportunity to object to the introduction of the psychologist's reports. We have also determined that the evidence presented at the trial is, by itself, sufficient to support the trial court's designation of the father as the primary residential parent and that the trial court did not err by denying the mother's request for attorney's fees.
Barry D. Smith and Tamara Y. Smith began dating in late 1994. Both of them had been married before, and Mr. Smith had two children from his previous marriage. Their only child, a daughter, was born in January 1996. Despite their stormy relationship, the parties were married in December 1999. Mr. Smith continued to work at his concrete business, while Ms. Smith stayed at home to serve as their daughter's primary caregiver.
The parties separated in May 2002, and one week later, Mr. Smith filed a complaint in the Chancery Court for Sumner County seeking a divorce on the grounds of inappropriate marital conduct and irreconcilable differences. In December 2002, Ms. Smith filed an answer and a counterclaim seeking a divorce on the grounds of inappropriate marital conduct and irreconcilable differences. Both parties requested the trial court to designate them as their child's primary residential parent. Each party leveled accusations of misconduct and psychological instability at the other. Of particular concern, Ms. Smith accused Mr. Smith of physically abusing her and the parties' child and also asserted that Mr. Smith had sexually abused their child.
On February 28, 2003, the parties prepared and filed an agreed order establishing supervised visitation for Mr. Smith and the parties' child. The order mandated psychological examinations for the parties and their child and psychosexual evaluations of both Mr. Smith and Ms. Smith. The parties left it to the trial court to select an expert to conduct these evaluations. Accordingly, they included a blank line in their agreed order where the trial court could insert the name of the expert. After talking with several mental health professionals, the trial court appointed Dr. Victor Pestrak, a licensed clinical psychologist, to conduct the examinations. The trial court filed the agreed order containing Dr. Pestrak's name on March 26, 2003.
Dr. Pestrak conducted his evaluations in May and June of 2003. Both parties received copies of his reports, and copies were also filed under seal with the trial court. Dr. Pestrak's reports stated that he "[did] not find any claims of sexual abuse to hold up to even modest scrutiny when data from all three parties [was] examined." The reports also noted that the child Dr. Pestrak determined that the child should be involved in counseling to aid her in processing her parents' divorce, and he concluded that "there is no evidence from these evaluations that any parental visitation needs to be supervised."
Neither party attempted to interview or depose Dr. Pestrak after receiving copies of the reports that had been filed under seal. As the litigation proceeded, Ms. Smith changed attorneys twice, and the trial court conducted several hearings in response to Mr. Smith's requests for increased visitation. The trial court, without objection from the parties or their lawyers, relied upon Dr. Pestrak's reports in its ruling on these visitation matters.
When the case was finally set for trial, Mr. Smith's lawyer informed Ms. Smith's lawyer that he intended to rely on Dr. Pestrak's reports as part of this case. Ms. Smith's lawyer did not notice Dr. Pestrak for a deposition, obtain a subpoena to require Dr. Pestrak to testify in person, or seek a continuance. However, during the trial, which took place over the course of four days in March and April 2005, Ms. Smith's lawyer objected to the introduction and use of Dr. Pestrak's reports on the grounds that they were hearsay, that Dr. Pestrak's appointment did not comply with Tenn. R. Evid 706, and that he had not been able to cross-examine Dr. Pestrak. The trial court overruled Ms. Smith's objections and admitted Dr. Pestrak's 2003 reports.
On April 26, 2005, the trial court handed down a partial judgment from the bench. The court determined that both parties were guilty of inappropriate marital conduct and declared them divorced. The court divided the marital estate and denied Ms. Smith's request for alimony and attorney's fees. The trial court reserved judgment on a determination of custody, and on June 8, 2005, the court filed a memorandum opinion designating Mr. Smith as the primary residential parent. The trial court filed its final decree of divorce on June 14, 2005. Ms. Smith has appealed.
Ms. Smith renews her arguments that Dr. Pestrak's reports were inadmissible because they were not made under oath and because Dr. Pestrak was not called to testify at trial. Mr. Smith asserts that Ms. Smith waived her opportunity to object to the use of the reports by failing to object when the trial court used them to make interlocutory visitation decisions, by failing to depose Dr. Pestrak, and by failing to subpoena him at trial. Under the facts of this case, we have determined that Ms. Smith failed to question the admissibility of Dr. Pestrak's reports in a timely manner and, therefore, that the trial court did not err by admitting Dr. Pestrak's reports into evidence.
Decisions regarding the admissibility of evidence lie within the discretion of the trial court. State v. Lewis, 235 S.W.3d 136, 141 (Tenn. 2007); McDaniel v. CSX Transp., Inc., 955 S.W.2d 257, 263 (Tenn. 1997). Therefore, unless the trial court abuses its discretion, appellate courts will not overturn a trial court's rulings on evidentiary matters. State v. Lewis, 235 S.W.3d at 141. The abuse of discretion standard is a review-constraining standard of review that calls for less intense appellate review and, therefore, less likelihood that the trial court's decision will be reversed. State ex rel. Jones v. Looper, 86 S.W.3d 189, 193 (Tenn. Ct. App. 2000); White v. Vanderbilt Univ., 21 S.W.3d 215, 222-23 (Tenn. Ct. App. 1999). Appellate courts do not have the latitude to substitute their discretion for that of the trial court. Henry v. Goins, 104 S.W.3d 475, 479 (Tenn. 2003); State ex rel. Vaughn v. Kaatrude, 21 S.W.3d 244, 248 (Tenn. Ct. App. 2000). Thus, a trial court's discretionary decision will be upheld as long as it is not clearly unreasonable, Bogan v. Bogan, 60 S.W.3d 721, 733 (Tenn. 2001), and reasonable minds can disagree about its correctness. Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001); State v. Scott, 33 S.W.3d 746, 752 (Tenn. 2000).
Discretionary decisions must, however, take the applicable law and the relevant facts into account. Ballard v. Herzke, 924 S.W.2d 652, 661 (Tenn. 1996). Accordingly, a trial court will be found to have abused its discretion only when it applies an incorrect legal standard, reaches a decision that is illogical, bases its decision on a clearly erroneous assessment of the evidence, or employs reasoning that causes an injustice to the complaining party. Perry v. Perry, 114 S.W.3d 465, 467 (Tenn. 2003); Clinard v. Blackwood, 46 S.W.3d 177, 182 (Tenn. 2001); Overstreet v. Shoney's, Inc., 4 S.W.3d 694, 709 (Tenn. Ct. App. 1999). A trial court, by definition, abuses its discretion when it makes an error of law. Koon v. United States, 518 U.S. 81, 100, 116 S. Ct. 2035, 2047 (1996); Boyd v. Comdata Network, Inc., 88 S.W.3d 203, 212 (Tenn. Ct. App. 2002).
Ms. Smith relies upon Dover v. Dover, 821 S.W.2d 593 (Tenn. Ct. App. 1991) to support her claim that the trial court erred by admitting and considering Dr. Pestrak's reports over her objection. She asserts that Dover v. Dover stands for the proposition that the report of an expert appointed by a court in accordance with Tenn. R. Evid. 706 can only be admitted and...
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