In Re Jaxon W. ( 2019 )

02/15/2019
IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs November 1, 2018
IN RE JAXON W.
Appeal from the Juvenile Court for Shelby County
No. U6372 Harold W. Horne, Special Judge
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No. W2018-00629-COA-R3-JV
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In this appeal of the juvenile court’s determination of a petition to establish visitation, the
father appeals the setting of supervised therapeutic visitation for him. The father argues
that the court disregarded evidence that was favorable to him, that the court erred in
relying upon testimony of the child’s counselor, and that the court erred in awarding
attorney’s fees to Mother. Upon our review, we vacate the decision setting the father’s
visitation and remand the case for the court to enter a judgment that discusses the factors
set forth at Tennessee Code Annotated 36-6-106(a)(1)-(15) and makes appropriate
findings relative thereto; we conclude that Father has waived any issue pertaining to the
testimony of the child’s counselor, as he failed to object to the testimony at trial; in all
other respects, we affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Vacated in
Part and Affirmed in Part; Case Remanded
RICHARD H. DINKINS, J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and KENNY W. ARMSTRONG, J., joined.
Cara Welsh, Chattanooga, Tennessee, for the appellant, Gerald W.
Lee Ann Pafford Dobson, Germantown, Tennessee, for the appellee, Jackie W.
OPINION
I. FACTUAL AND PROCEDURAL HISTORY
Gerald W. (“Father”) and Jackie W. (“Mother”) are the parents of Jaxon, who was
born in May 2008; an order was entered on July 3, 2008, establishing Father’s paternity
and setting his child support obligation; visitation was not set in the order.
On January 21, 2016 Father filed a petition seeking visitation with Jaxon “every
other weekend, holidays, and 4 vacation weeks during summer months.” The petition
was set for initial hearing before a magistrate on March 10, 2016, at which time the
hearing was continued to June 9; the order continuing the case provided that, pending the
hearing, Father would have visitation on the first, third, and fifth weekends of each month
from “after school on Friday until school resumes Monday morning,” and that the parties
would attend mediation. The case was continued several more times, and by order
entered October 5, Father’s parenting time was enlarged from that set in the first order to
begin at 6 p.m. on Thursday.
Mediation was unsuccessful, and a hearing was held before the magistrate on
January 11, 2017. On January 18, the magistrate entered its Findings and
Recommendations: sustaining Father’s petition for visitation and continuing Father’s
visitation as it had been set in the temporary order plus setting a summer and holiday
parenting time schedule; granting the parents joint custody of Jaxon; and naming Mother
primary residential parent. Mother requested a de novo hearing before the juvenile court
judge.
The de novo hearing was held before a special judge of the juvenile court on
August 3 and November 9, at which the following witnesses testified: Jaxon’s paternal
great aunts Yulandra J. and Shandra F., Theresa C., a friend of Mother’s,1 Jaxon’s
maternal aunt Angela B., Father, Dr. John McCoy, a licensed psychologist who had been
treating Jaxon since March 2017, and Mother. On December 4, the juvenile court entered
an order making certain findings, vacating all prior orders of visitation,2 granting Father
therapeutic supervised visitation under the care of a licensed family clinical psychologist,
and granting each parent the right to regular telephone conversations “once approved by
their respective family clinical psychologist” and the rights at Tennessee Code Annotated
section 36-6-101(a)(3).
Father filed a motion to alter or amend the judgment, seeking to have the court
make additional findings specifically relating to possible bias on the part of Dr. McCoy.
In her response to the motion, Mother sought her attorney’s fees.3 After a hearing, the
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Theresa C. testified that Mother is “like my daughter,” that Jaxon “is my grandson to me,” and that she
has “been taking care of him almost from day one.”
2
The order states that it “is a final order and is intended to resolve all issues before the Court; any matters
not specifically otherwise addressed are hereby denied.” Father had filed an “Emergency Petition to
Modify Visitation And/Or Custody,” on October 3, 2017, in which he sought to be designated as primary
residential parent or to have his summer or holiday parenting time increased. Father does not raise the
denial of his emergency petition as an issue in this appeal.
3
Mother’s response to the motion summarily states (in pertinent part): “Attorney for Mother would urge
this Court to dismiss Father’s Motion at Father’s costs; and that Mother be awarded attorney fees and
costs for defending the child’s interest in this cause.”
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court entered an order denying Father’s motion and ordering him to pay $612.50 in
attorney’s fees to Mother’s counsel.
Father appeals, raising the following issues for our review:
1. Did the trial court properly consider all the evidence presented when
determining that there was a material change of circumstances or
other basis which would require a radical modification of the
father’s parenting time?
2. Was the trial court presented with appropriate evidence as to the
credentials of the clinical psychologist sufficient to treat him as an
expert and thereby rely on his opinion as to the needs of this child?
3. Was sufficient evidence presented to the court to justify an award by
the court of attorneys fees to the mother?
II. STANDARD OF REVIEW
Because this case was tried by the court sitting without a jury, we review the case
de novo upon the record with a presumption of correctness of the findings of fact by the
trial court. Tenn. R. App. P. 13(d). Questions of law are reviewed de novo with no
presumption of correctness. Watson v. Watson, 196 S.W.3d 695, 701 (Tenn. Ct. App.
2005) (citing Campbell v. Florida Steel Corp., 919 S.W.2d 26, 35 (Tenn. 1996); Tenn. R.
App. P. 13(d)). To preponderate against a trial court’s finding of fact, the evidence has to
support another finding of fact with greater convincing effect. Watson, 196 S.W.3d at 701
(citing Walker v. Sidney Gilreath & Assocs., 40 S.W.3d 66, 71 (Tenn. Ct. App. 2000);
The Realty Shop, Inc. v. R.R. Westminster Holding, Inc., 7 S.W.3d 581, 596 (Tenn. Ct.
App. 1999). We review the court’s legal conclusions de novo with no presumption of
correctness. Watson, 196 S.W.3d at 701 (citing Campbell, 919 S.W.2d at 35).
III. ANALYSIS
A. The Court’s Ruling on Visitation
Our review of custody and visitation determinations was explained in In re S.C.H:
Ordinarily, “the details of custody and visitation with children are
peculiarly within the broad discretion of the trial judge.” Suttles, 748
S.W.2d at 429 (quoting Edwards v. Edwards, 501 S.W.2d 283 (Tenn. Ct.
App. 1973)); see also Eldridge [v. Eldridge], 42 S.W.3d [82] at 85 [(Tenn.
2001)]. However, the exercise of that discretion must be based on proof and
applicable legal principles. Hogue [v. Hogue], 147 S.W.3d 245[, 251
(Tenn. Ct. App. 2004)]; D. v. K., 917 S.W.2d [682] at 685 [(Tenn. Ct. App.
1995)]. A trial court acts outside its discretion if it applies an incorrect legal
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standard or reaches a decision against logic or reasoning the causes an
injustice to a party. Eldridge, 42 S.W.3d at 85. Applicable legal standards
require that restriction, curtailment, or elimination of visitation rights must
be based on specific findings, resulting from clear and definite evidence,
that one of the situations justifying such action exists.
No. M2003-01382-COA-R3-CV, 2004 WL 2941151, at *5 (Tenn. Ct. App. Dec. 20,
2004).
The order of legitimation entered in July of 2008 did not adjudicate custody,
designate a primary residential parent, or set parenting time. The order entered by the
magistrate on January 18, 2017 held that Mother and Father would have joint custody of
Jaxon, designated Mother as primary residential parent, and set a parenting schedule.
Mother appealed the decision to the Juvenile Court where, in the order entered December
4, the court vacated all prior orders of visitation and established the parenting schedule at
issue in this appeal. Under these circumstances, in which the court was fashioning a
visitation schedule for the first time, Tennessee Code Annotated section 36-6-301 is the
applicable standard for the court to apply; that statute reads:
After making an award of custody, the court shall, upon request of the
noncustodial parent, grant such rights of visitation as will enable the child
and the noncustodial parent to maintain a parent-child relationship unless
the court finds, after a hearing, that visitation is likely to endanger the
child’s physical or emotional health. In granting any such rights of
visitation, the court shall designate in which parent’s home each minor
child shall reside on given days of the year, including provisions for
holidays, birthdays of family members, vacations and other special
occasions. If the court finds that the noncustodial parent has physically or
emotionally abused the child, the court may require that visitation be
supervised or prohibited until such abuse has ceased or until there is no
reasonable likelihood that such abuse will recur.
We are also guided by precedent establishing that “the public policy of this state, as
expressed by Tennessee Code Annotated § 36-6-301 and reiterated by considerable case
law, is that the non-custodial parent be awarded visitation reasonably sufficient to
maintain the parent-child relationship.” Melvin v. Melvin, 415 S.W.3d 847, 851 (Tenn.
Ct. App. 2011) (citing Suttles v. Suttles, 748 S.W.2d 427, 429 (Tenn.1988); In re Z.A.W.,
No. W2005-01956-COA-R3-JV, 2006 WL 1627180, at *4 (Tenn. Ct. App. June 12,
2006)). “Notwithstanding the discretion afforded the trial court in matters of child
custody, the least restrictive visitation limits generally are favored in order to encourage
the parent-child relationship.” Id. (citing Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn.
2001); In re Z.A.W., 2006 WL 1627180, at *5).
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In establishing the visitation schedule in this case, the trial court made the
following findings:
1. This case began June 2, 2008, with the filing of a petition to establish
parentage and a subsequent order of July 3, 2008, establishing Gerald L[.]
W[.] as the legal father of Jaxon C[.] W[.], born May 9, 2008, and setting a
child support obligation.
2. On January 21, 2016, Mr. W[.] filed a petition for visitation which was
granted January 11, 2017.
3. Said child’s mother, Jackie W[.], filed, January 11, 2017, a request for a
hearing pursuant to Tennessee Code Annotated, Section 37-1-107(d).
4. Said child has lived since birth with his mother who has performed the
majority of the parenting responsibilities relating to his daily needs.
5. Up to the date visitation was ordered, March, 2016, visitation between
the father and son was rare. Since March, 2016, the father has been
exercising visitation roughly 112 days per year. The pickup and return of
said child for visitation has minimized the parent’s contact with each other
to avoid conflict. Without assigning fault, it would be fair to say that there
is a substantial degree of animosity between each parent. The father, at this
time, would like to exercise more visitation; and the mother would like to
restrict visitation.
6. Both parents appear to have a genuine concern for the care of their child;
although they have very different parenting styles.
7. Emotionally, said child appears to have a genuine fear of his father and
emotionally is being scarred by the enforcement of visitation.
8. Morally and physically each parent appears to have the ability to parent
said child. However, their style of parenting is so divergent that their child
is unable to adapt and appears to be suffering emotionally.
9. Dr. John McCoy, clinical psychologist, testified that said child is very
afraid of his father and does not wish to be around him. That one occasion
said child expressed suicidal thoughts related to visitation. It appears the
father may have unrealistic expectations of his son and that his
authoritarian approach to parenting has not been well received by his son.
Additionally, said child feels picked upon in the father’s home where he is
now married with a newborn baby and two older step-children.
10. It appears said child suffers from ADHD which is currently being
treated with Vyvanse. Numerous other complaints were testified to as to
discipline styles and name calling all leading to a conclusion that this child
is being pulled in two (or more) directions in a manner which is mentally,
and perhaps physically, harmful.
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The court then ordered:
1. That the petition for visitation should be sustained.
2. That all prior orders of visitation are vacated.
3. That the father, Gerald L[.] W[.], may have therapeutic supervised
visitation under the care of a licensed family clinical psychologist or
psychiatrist in coordination with, and cooperation with, said child's
psychologist, Dr. John McCoy.
4. That each parent shall have the right to regular telephone conversations
with their child between 7:00 P.M. and 7:15 P.M. each night for reasonable
durations once approved by their respective family clinical psychologist or
psychiatrist. . . .
While Father does not take issue with any of the court’s specific factual findings
as being unsupported by the evidence, he complains that the court ignored Mother’s
testimony about Jaxon’s behavior. Specifically, he argues that Jaxon’s behavioral issues
predated Father’s increased contact with him; in support of this argument, he cites
Mother’s testimony that Jaxon, a fourth grader at the time of trial, gets bored in school,
runs to be the first person in line, calls out an answer without being called on, and
engages in other actions which she characterized as “little nitpicky things.” Father also
contends the trial court overlooked evidence of his positive parenting style, which he
argues was established by the testimony of Mother’s sister, Angela B., regarding her
observations of Father’s interactions with Jaxon.4
In addition to that referenced above, we have reviewed all the testimony cited by
Father. That testimony does not preponderate against the trial court’s findings or
mandate another holding; indeed, much of the testimony he cites supports the court’s
findings, specifically numbers six and eight. The testimony of Mother, Theresa C., and
Dr. McCoy supports the other findings relative to Jaxon being “emotionally scarred by
the enforcement of visitation” and “being pulled in two (or more) directions in a manner
4
In pertinent part, the testimony cited is:
Q. Okay. Have you had occasion to observe [Father] in his interaction with his son,
Jaxon?
A. Yes.
Q. Okay. And did anything you observe cause you any concern?
A. No.
Q. How would you describe his parenting style?
A. His parenting style is family like. He is very active with all of his children. As far as
one main example that I observed is that he takes them to . . . a church every third
Saturday and they pass out things to the homeless, food and clothing. So, I thought that
was a great attribute and as far as playing sports with them and coaching teams of that
nature.
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which is mentally, and perhaps physically, harmful.” We conclude that the court’s
factual findings are supported by a preponderance of the evidence and do not lead us to
conclude, as urged by Father, that the court ignored substantial testimony.
While Father does not specifically assert that the court erred in setting his
parenting time or in requiring that his visitation be supervised, we address the extent to
which the order furthers the mandate at section 36-6-301 that parenting time be granted
“as will enable the child and the noncustodial parent to maintain a parent-child
relationship unless the court finds, after a hearing, that visitation is likely to endanger the
child’s physical or emotional health.”
The finding in the order that “[Jaxon] appears to have a genuine fear of his father
and emotionally is being scarred by the enforcement of visitation” provides a basis for the
limitation of Father’s parenting time to therapeutic supervised visitation. See Tenn. Code
Ann. § 36-6-301. The order, however, does not refer to section 36-6-301 or otherwise
state the legal basis of its ruling; neither does it discuss the factors at Tennessee Code
Annotated section 36-6-106(a)(1)-(15), which are to be applied when setting a parenting
schedule that permits both parents to have maximum participation in the life of Jaxon to
the extent that it is in Jaxon’s best interest for both of them to do so.
In the absence of an order that explains the legal basis for requiring that Father’s
visitation be supervised in the manner ordered and applies the factors at section 36-6-
106(a)(1)-(15) to the factual findings as affirmed herein, we are unable to afford the trial
court’s decision the deference that our review entails, and a remand for entry of an order
that states the legal basis for decision is appropriate. In this regard, we are also
concerned that paragraph 3 of the order, relating to the supervised visitation, is not
sufficiently specific for us to review, for the parties to implement or enforce, or for
Father’s child support to be established in accordance with the child support guidelines.
In addition, in light of the court’s finding that there is a “substantial degree of animosity”
between Mother and Father, we are concerned that paragraph 4, relative to telephone
conversation, may be unworkable as written.
B. The Testimony of John McCoy, Ph.d
Father contends that the court erred in permitting John McCoy, a licensed clinical
psychologist who had been treating Jaxon since 2017, to offer “his opinion as to the
mental health status of [Jaxon], as well as the causes of his concerning behaviors”; he
also argues that Dr. McCoy was not qualified as an expert. Dr. McCoy, who testified as
to his treatment of Jaxon, was not offered as or declared by the court to be an expert
witness. At no point did Father object to his testimony or seek to limit it in any way.
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Rule 103(a) of the Tennessee Rules of Evidence provides:
(a) Effect of Erroneous Ruling. Error may not be predicated upon a ruling
which admits or excludes evidence unless a substantial right of the party is
affected, and
(1) Objection. In case the ruling is one admitting evidence, a timely
objection or motion to strike appears of record, stating the specific ground
of objection if the specific ground was not apparent from the context[.] …
In Grandstaff v. Hawks, this Court said, “Failure to object [to] evidence in a timely and
specific fashion precludes taking issue on appeal with the admission of the evidence.” 36
S.W.3d 482, 488 (Tenn. Ct. App. 2000) (citing Ehrlich v. Weber, 88 S.W. 188, 189
(Tenn. 1905); Pyle v. Morrison, 716 S.W.2d 930, 936 (Tenn. Ct. App. 1986); Tenn. R.
Evid. 103(a)(1)). “A party is not entitled to relief if the party invited error, waived an
error, or failed to take whatever steps were reasonably available to cure an error.” Tenn.
R. App. P. 36(a), cmt. a.
In light of Father’s failure to make an appropriate and timely objection to the
testimony of which he complains, the issue is waived.
C. Award of Attorney’s Fees to Mother
Father also appeals the award of $612.50 to Mother for attorney’s fees. He argues
that the court erred because there is “nothing in the record indicating that the Mother or
her attorney submitted any written evidence as to the attorney fees or other expenses.”
Tennessee Code Annotated Section 36-5-103(c) provides a right to recover
attorney fees in custody and child support disputes. In re Carter K., No. M2017-01507-
COA-R3-JV, 2018 WL 896060, at *7 (Tenn. Ct. App. Feb. 14, 2018). The order at issue
states that the decision was based on “statements of counsel and review of the record.”
The record on appeal does not include a transcript of the hearing or a statement of the
evidence adduced at that hearing; it only contains the request for attorney’s fees, not
accompanied by an affidavit or other proof, in Mother’s response to Father’s motion to
alter or amend.
In the absence of a transcript or statement of the evidence, we must “assume that
the record, had it been preserved, would have contained sufficient evidence to support the
trial court’s factual findings.” Sherrod v. Wix, 849 S.W.2d 780, 783 (Tenn. Ct. App.
1992). It is Father’s burden, as appellant, to provide this Court with an adequate record,
including a transcript of the evidence or a statement of the evidence of the hearing at
which the decision now complained of was made. Coakley v. Daniels, 840 S.W.2d 367,
370 (Tenn. Ct. App. 1992). In the absence of a transcript or statement of the evidence,
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we have no means to review the court’s decision; accordingly, we affirm the award of
fees.
IV. CONCLUSION
For the foregoing reasons, we vacate the order setting Father’s visitation and
remand the case for the trial court to enter an order in compliance with Tennessee Code
Annotated section 36-6-301, that makes appropriate findings as to the factors at section
36-6-106(a)(1)-(15), and that more clearly establishes a parenting plan within the
meaning of section 36-6-402(3);5 in all other respects, the judgment is affirmed.
_________________________________
RICHARD H. DINKINS, JUDGE
5
Tennessee Code Annotated section 36-6-402 (3) states:
“Permanent parenting plan” means a written plan for the parenting and best interests of
the child, including the allocation of parenting responsibilities and the establishment of a
residential schedule, as well as an award of child support consistent with chapter 5 of this
title.
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