Elizabeth A. (Hayes)(Falin) Finch v. Timothy A. Hayes ( 2011 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs May 13, 2011
ELIZABETH A. (HAYES) (FALIN) FINCH v. TIMOTHY A. HAYES
Appeal from the Circuit Court for Greene County
No. 03-CV-419 Kindall T. Lawson, Judge
No. E2010-00750-COA-R3-CV-FILED-OCTOBER 20, 2011
In this post-divorce change of custody case, Elizabeth A. (Hayes) (Falin) Finch (“Mother”)
and Timothy A. Hayes (“Father”) sought to modify their parenting plan regarding their
daughter (“the Child”), who was born on July 13, 2000. At the time of the divorce, the
parties designated Mother as the primary residential parent and provided Father with
regularly scheduled visitation. Following a hearing in response to the parties’ motions for
modification, the court designated Father as the primary residential parent and awarded
Mother co-parenting time. Mother appeals. We affirm the decision of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Affirmed; Case Remanded
J OHN W. M CC LARTY, J., delivered the opinion of the court, in which H ERSCHEL P. F RANKS,
P.J., and C HARLES D. S USANO, J R., J., joined.
James F. Taylor, Rogersville, Tennessee, for the appellant, Elizabeth A. (Hayes) (Falin)
Finch.
Roger A. Woolsey, Greeneville, Tennessee, for the appellee, Timothy A. Hayes.
OPINION
I. BACKGROUND
Mother and Father were divorced on April 24, 2003, and a parenting plan was entered
pursuant to their agreement. Six months later, Mother filed a motion for contempt and a
petition to modify the parenting plan and child support. Father denied Mother’s allegations
and filed a counter-complaint in which he sought a change of custody. These motions were
dismissed seven months later when neither party appeared at the scheduled hearing.
Approximately two years later, Father filed a petition to modify the parenting plan and
a motion for contempt, requesting designation as the primary residential parent. Father
argued that Mother had relocated to Virginia, had allowed unrelated men to reside with her
and the Child, had failed to honor his visitation rights, and had attempted to hinder his
relationship with the Child. Mother filed a motion to dismiss for lack of jurisdiction and a
response to Father’s allegations. Following a hearing on December 19, 2007, the trial court
overruled the motion to dismiss and found that the petition to modify was well-taken, stating
that Father was entitled to shared time with the Child pursuant to a modified parenting plan.
The court further ordered that “neither party shall have overnight guests of the opposite sex
in their home when the [C]hild is present” and that “neither party shall use or possess alcohol
or drugs in the presence of the [C]hild or allow others to use or possess alcohol or drugs in
the presence of the [C]hild.” The court admonished Mother, stating that if she continued to
live with unrelated men, it would “seriously consider a request for change of the residential
custodian.”
Approximately seven months later, Mother filed a motion for contempt and petition
for modification of the parenting plan. Mother claimed that Father failed to pay child
support, failed to spend quality time with the Child, failed to seek medical attention for the
Child, allowed the Child to sleep with another child of the opposite sex, allowed members
of the opposite sex to stay overnight in the Child’s presence, had been verbally and physically
abusive to the Child, was charged with public intoxication and possession of unlawful drug
paraphernalia, and pled guilty to possession of drug paraphernalia. Father responded that he
could not pay child support because of a material change in circumstance concerning his
income, that he spent quality time with the Child, and that he had been placed on judicial
diversion for possession of drug paraphernalia. Father filed a counter-petition and motion
for contempt, alleging that Mother continued to allow unrelated men to reside in the home
with the Child. Mother responded that she had been remarried, that Father failed to exercise
his visitation rights, that he was unemployed and unable to support the Child, that he allowed
a prostitute to sleep in the same bed with the Child, that he had been convicted of drug
offenses, that he was charged with drug offenses committed while the Child was with him,
and that he did not have reliable transportation. The court sent the parties to mediation;
however, mediation proved unsuccessful.
At the hearing, Jimmy Hayes (“Grandfather”) testified that Father had a drug
addiction but admitted that while he thought Father exhibited withdrawal symptoms, he had
never seen Father take drugs. He said that Father was visiting the Child on a regular basis
until Father was charged with drug offenses. Grandfather stated that on occasion, Father left
-2-
the Child at his house and that other times, Grandfather and his wife stayed with the Child
at Father’s house. He claimed that Father’s girlfriend stayed overnight while the Child was
present. He asserted that Father had been violent toward him and cussed at him in front of
the Child. He recalled that Father borrowed money from him to pay his bills and that
sometimes Father did not have money to buy food. He admitted that he was charged with
assault for an altercation involving Father, that he was aware that Mother probably allowed
men to stay overnight in the residence while the Child was present, and that Mother refused
to let Father see the Child.
Mary Ruth Hayes (“Step-Grandmother”) testified that on occasion, she observed
Father’s girlfriend’s car at Father’s house at night and the following morning. She claimed
that Father allowed a prostitute to spend the night. She recalled that she spent the night at
Father’s house on two or three occasions because the Child was upset. On one such
occasion, she observed a “real red” mark on the Child’s back and overheard Father warn the
Child that she would “get the belt” if she called her grandparents again. She claimed that one
night, she observed mouse feces on the Child’s bed. She said after Father left the Child at
her home, she took the Child to the hospital and discovered that the Child had strep throat.
She remembered an occasion when Father came to the Child’s school for an event and was
“[v]ery shaky,” had glassy eyes, and was exhibiting unusual behavior. She stated that Father
had been arrested for possession of drug paraphernalia. She alleged that Father cursed in
front of the Child, left the Child at her house one weekend during his visitation, and was
unable to provide food and clothing for the Child.
On cross-examination, Step-Grandmother admitted that Father’s alleged overnight
visits with the prostitute occurred at least three years ago. She also admitted that she
believed that the Child would be better off staying with her than with Father or Mother. She
said that she had never seen Father use or possess drugs but that she observed times when
Father was “shaking” and would “get real hyper.” She said that while she did not see Father
hit the Child, she saw a mark on the Child and heard Father screaming at the Child.
Laura Arnsfield, a behavior health specialist with Holston Medical Group, testified
that she believed that the Child should live with Mother. She recalled that the Child had
“consistently maintained” her desire to live with Mother and that when the sessions began,
the Child was unfamiliar with Father and did not want to visit him. Since that time, the Child
said that the visits with Father have been better. She claimed that during Father’s visitation,
the Child felt more comfortable if others were present and that the Child often stayed with
the grandparents or Judy Brown’s sister instead of with Father. She said that one night when
the Child had stayed in a tent outside the house with other children, the Child was too scared
to go back into the house. She acknowledged that Mother told the Child that Father had been
arrested. She said that the Child was resentful toward Father because he hurt Grandfather
-3-
and because Father did not want Grandfather to see her. She recalled that the Child was
eventually allowed to visit Grandfather, despite Father’s protestations.
Father admitted that he pled guilty to possession of drug paraphernalia in January
2008, that he was arrested in June 2008 for public intoxication and possession of drug
paraphernalia, and that he pled guilty in January 2009 to public intoxication. He recalled that
when he was arrested in June 2008, the Child was staying with the grandparents. He claimed
that the June 2008 drug paraphernalia charge was dismissed and that although he pled guilty
to public intoxication, he was not under the influence of anything that night. He testified that
he had never had illegal drugs in his house or allowed anyone in his house who was under
the influence of illegal drugs. He denied that he dated a prostitute but admitted that for two
months, he dated a woman whose name was similar to a well-known prostitute. He said that
he had only dated one woman, Judy Brown, since January 2007.
Regarding his visitation with the Child, he said that Mother was compliant until June
2008, when she told him that he “was never going to see [the Child] again.” Since that time,
Mother would not let him see the Child and interrupted his telephone calls. He admitted that
he was out of work for a couple of months but said that he always had food in the house and
that the house was always clean. He recalled that when Step-Grandmother found what
appeared to be mouse feces on the Child’s bed, he changed the sheets. He testified that he
never hit the Child and that the Child never complained about a red mark on her back. He
said that he allowed the Child, who was eight, to sleep in a tent outside but explained that the
Child was in the tent with Judy Brown’s niece, who was ten. He claimed that the tent was
next to the back door, that the door was unlocked, and that he checked on the children
periodically. He opined that it was “almost impossible” to maintain his relationship with the
Child because Mother called the Child during his visitation, causing the Child to become
upset.
Regarding his desire to become the primary residential parent, he asserted that even
though Mother had interfered with his visitation, he would not interfere with Mother’s
visitation and would follow the court’s order regarding her rights. He said that he had a full-
time job with flexible hours, allowing him to care for the Child. When asked how he would
supervise the Child while maintaining his full-time employment, he explained that he could
work while the Child was in school and pick her up after school. He admitted that he allowed
Judy Brown to spend the night on two occasions in the last month while the Child was
present but said that he would not allow her to stay overnight again until they were married.
Mother testified that since the court’s last order, only her current husband, Randy
Finch, lived with her and the Child. When the court directed her to refrain from overnight
visitation with members of the opposite sex, she told her boyfriend, Charles Falin, to move
-4-
out.1 Charles Falin stayed with one of her friends until she bought a camper for him to live
in on the property, which was approximately 89 acres. The camper had its own address, a
driveway, plumbing, and electricity. Charles Falin stayed in the camper for approximately
eight weeks and then left. Shortly thereafter, Mother began dating Randy Finch, who moved
into another camper that was three to four miles from her residence. However, he only
stayed overnight with her at the residence when the Child was not present.
Relative to Father’s visitation with the Child, Mother stated that in June 2008, Father
sent relatives to retrieve and return the Child. She asserted that Father was arrested during
his visitation with the Child and that the Child was often upset when she left for visitation
and when she returned from visitation. She admitted that in June 2008, she refused to let
Father exercise his visitation rights because of his behavior. She believed that it was in the
Child’s best interest to maintain a healthy relationship with Father but asserted that Father
did not have the Child’s best interest at heart. Regarding her ability to care for the Child,
Mother testified that she lived in a four-bedroom house with her husband, his son, and her
three daughters, including the Child. She and her husband maintained suitable employment,
and she did not have a criminal record.
Charles Falin testified that he moved in with Mother two weeks after they started
dating in October 2007. He recalled that in December 2007, Mother told him that he needed
to move out of the residence because the court had prohibited her from having overnight
guests of the opposite sex. He said that he stayed in the house for a short time after the
court’s order but that he eventually moved into a camper that she purchased and placed “six
or eight feet” from the house. He claimed that he slept in the camper “most of the time”
when the Child was present but that on occasion, he stayed overnight in the residence when
the Child was present.2 He remembered that after he and Mother separated, he observed
Randy Finch, who appeared to have just taken a shower, in the house at 10 p.m.
Melissa Jetter, Charles Falin’s fiancé, said that Charles Falin left her in October 2007
and returned in March 2008. She did not know whether he lived in a camper while he was
dating Mother but stated that he never said anything about living in a camper.3 She admitted
that she was upset with Charles Falin and Mother about the situation.
1
During a break in the testimony, Mother talked to Charles Falin about the trial and his potential testimony.
The court admonished Mother for her behavior.
2
He confirmed that Mother had talked to him about this portion of his testimony while he was waiting outside
the courtroom.
3
She confirmed that she heard Mother talking to Charles Falin about his potential testimony while they were
waiting outside the courtroom.
-5-
Jeanette Hayes, Father’s ex-wife, testified that Father had a good relationship with
their three grown daughters, that she never saw Father mistreat them, and that she would not
have any reservations about his ability to care for a child. She admitted that she heard rumors
about Father’s drug abuse but said that she never saw “anything like that out of him.”
Becky Watts testified that Father had been dating her sister, Judy Brown, for
approximately two and half years. She did not believe that Father had ever used or possessed
drugs. She claimed that Father always had food at his house and kept the house generally
clean. She opined that Father had a “really good relationship” with his other three daughters
and wanted to have a “really good relationship” with the Child. She asserted that Father was
“really good” to the Child and that she would not have any hesitation about him becoming
the primary residential parent for the Child. She recalled that the Child had stayed with her
and her daughter approximately three times and that she also sent her daughter to stay with
the Child and Father on other nights. She said that the Child never seemed distressed or
fearful when she was with Father.
Judy Brown testified that she was dating Father. She claimed that her 11-year old son
and her niece were friends with the Child and often spent time together when the Child was
visiting Father. She recalled that Father had supervised her son, her niece, and the Child
overnight but that the Child and her son never slept in the same bed. She asserted that when
the children camped, an adult always supervised them. She admitted that she spent the night
at Father’s house when the Child was present on two occasions but asserted that she slept on
the opposite end of the house from Father. She opined that the Child would run and play
while with Father but that Mother’s telephone calls during Father’s visitation caused the
Child to become “rattled.” She said that Father always had food at the house and was able
to care for the Child.
Following the hearing, the court found the testimony from Charles Falin and Father
to be credible but found that Mother’s credibility was “totally destroyed.” The court held that
there was a “substantial and material change in the circumstances.” The court acknowledged
that Father had “minor misdemeanor brushes with the law” but held that Father’s behavior
“did not directly affect the [C]hild or the [C]hild’s welfare.” The court found that Father had
“no history of alcohol or drug abuse as it ha[d] been alleged” and that there was “no shred
of evidence” that Father had been living with a prostitute. The court designated Father as the
primary residential parent of the Child and found Mother in contempt for violating the
court’s order. Mother filed a motion to reconsider or for new trial, and the court denied the
motion, holding “that a material change of circumstance[] had occurred and that the child’s
best interest[] would be served by changing the [p]ermanent [p]arenting [p]lan in existence
at the time [Father] filed his [p]etition to [m]odify.” This appeal followed.
-6-
II. ISSUE
Mother’s restated sole issue on appeal is whether the trial court properly designated
Father as the Child’s primary residential parent.
III. STANDARD OF REVIEW
On appeal, we review the decision of a trial court sitting without a jury de novo upon
the record, accompanied by a presumption of correctness of the trial court’s findings of fact,
unless the preponderance of the evidence is otherwise. Tenn. R. App. P. 13(d); Bogan v.
Bogan, 60 S.W.3d 721, 727 (Tenn. 2001). A trial court’s conclusions of law are subject to
a de novo review with no presumption of correctness. Blackburn v. Blackburn, 270 S.W.3d
42, 47 (Tenn. 2008); Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993).
Mixed questions of law and fact are reviewed de novo with no presumption of correctness;
however, appellate courts have “great latitude to determine whether findings as to mixed
questions of fact and law made by the trial court are sustained by probative evidence on
appeal.” Aaron v. Aaron, 909 S.W.2d 408, 410 (Tenn. 1995).
In applying the de novo standard, we acknowledge that “[t]rial courts are vested with
wide discretion in matters of child custody” and that “appellate courts will not interfere
except upon a showing of erroneous exercise of that discretion.” Koch v. Koch, 874 S.W.2d
571, 575 (Tenn. Ct. App. 1993). “Because ‘[c]ustody and visitation determinations often
hinge on subtle factors, including the parents’ demeanor and credibility during . . .
proceedings themselves,’ appellate courts are ‘reluctant to second-guess a trial court’s
decisions.’” Johnson v. Johnson, 165 S.W.3d 640, 645 (Tenn. Ct. App. 2004) (quoting
Gaskill v. Gaskill, 936 S.W.2d 626, 631 (Tenn. Ct. App. 1996)). Appellate courts should
only set aside the trial court’s judgment in such cases when it “falls outside the spectrum of
rulings that might reasonably result from an application of the correct legal standards to the
evidence found in the record.” Eldridge v. Eldridge, 42 S.W.3d 82, 88 (Tenn. 2001).
IV. DISCUSSION
Mother contends that the trial court failed to make a specific finding that designating
Father as the primary residential parent was in the Child’s best interest. Mother further
asserts that while Father had been arrested for public intoxication and possession of drug
paraphernalia while caring for the Child, there was no proof presented that her sexual
conduct harmed the Child. Father responds that Mother failed to adhere to the parenting plan
by prohibiting the Child’s visitation with Father and by allowing members of the opposite
sex to reside in the home with the Child, thereby evidencing a material change in
circumstance that allowed the court to modify the existing arrangement. Father asserts that
-7-
given Mother’s refusal to allow the Child to visit him and her dishonest behavior, the change
in custody was in the best interest of the Child.
When a petition to change or modify custody is filed, the parent seeking the change
has the burden of showing (1) that a material change in circumstance has occurred and (2)
that a change in custody is in the child’s best interest. Kendrick v. Shoemake, 90 S.W.3d 566,
575 (Tenn. 2002); Blair v. Badenhope, 77 S.W.3d 137, 148 (Tenn. 2002); In re M.J.H., 196
S.W.3d 731, 744 (Tenn. Ct. App. 2005); In re Bridges, 63 S.W.3d 346, 348 (Tenn. Ct. App.
2001). A finding that a material change in circumstance has occurred is a threshold inquiry.
Kendrick, 90 S.W.3d at 570; Blair, 77 S.W.3d at 150; see also Cranston v. Combs, 106
S.W.3d 641, 644 (Tenn. 2003) (applying the standard affirmed in Kendrick); Curtis v. Hill,
215 S.W.3d 836, 840 (Tenn. Ct. App. 2006). “If a material change in circumstance[] has
occurred, it must then be determined whether the modification is in the child’s best
interest[].” Kendrick, 90 S.W.3d at 570.
There are no bright line rules as to whether a material change in circumstance has
occurred, but the Tennessee Supreme Court has directed courts to consider (1) whether the
change occurred after the entry of the order sought to be modified; (2) whether the change
was known or reasonably anticipated when the order was entered; and (3) whether the change
is one that affects the child’s well-being in a meaningful way. Cranston, 106 S.W.3d at 644
(citing Kendrick, 90 S.W.3d at 570). Indeed, Tennessee Code Annotated section 36-6-
101(a)(2)(B) specifically provides,
If the issue before the court is a modification of the court’s prior decree
pertaining to custody, the petitioner must prove by a preponderance of the
evidence a material change of circumstance. A material change of
circumstance does not require a showing of a substantial risk of harm to the
child. A material change of circumstances may include, but is not limited to,
failure to adhere to the parenting plan or an order of custody and visitation or
circumstances that make the parenting plan no longer in the best interest of the
child.
Here, both Mother and Father failed to comply with the parenting plan. Father
allowed a member of the opposite sex to spend the night at his residence while the Child was
present on at least two occasions, while Mother consistently had a member of the opposite
sex residing with her and the Child in the residence. Mother denied this fact; however, the
court found that Mother’s credibility was “totally destroyed.” Moreover, Mother prevented
Father from exercising his visitation rights. These changes occurred after the entry of the
order sought to be modified and were in direct violation of that order. These changes
damaged the Child’s relationship with Father and impacted the stability of the Child’s home
-8-
environment, thereby affecting the Child’s well-being in a meaningful way. Accordingly,
we conclude that the trial court did not err in determining that a material change of
circumstance occurred, thereby necessitating the further determination of whether
modification or a change of custody was in the Child’s best interest.
Having concluded that a material change of circumstance occurred, we must now
determine whether the trial court erred in finding that the designation of Father as primary
residential parent was in the Child’s best interest. While the court did not issue specific
findings of fact on this issue other than generally stating it was “deciding the future or what’s
best on behalf of the [C]hild based on the proof,” the record and the court’s findings support
the trial court’s ultimate decision. See generally Cranston, 106 S.W.3d at 645 (providing
that the record on appeal and the court’s findings were sufficient to facilitate appellate review
even though the court applied the wrong standard when changing the original custody order).
Additionally, the court denied the motion for new trial, stating “that a material change of
circumstance[] had occurred and that the child’s best interest[] would be served by changing
the [p]ermanent [p]arenting [p]lan in existence at the time [Father] filed his [p]etition to
[m]odify.” However, “[w]hen the trial court makes no specific findings of fact . . . we must
review the record to determine where the preponderance of the evidence lies.” Kendrick, 90
S.W.3d at 570 (citing Ganzevoort v. Russell, 949 S.W.2d 293, 296 (Tenn 1997)).
Relative to the child’s best interest, Tennessee Code Annotated section 36-6-106(a)
provides, in pertinent part,
(a) In . . . any other proceeding requiring the court to make a custody
determination regarding a minor child, the determination shall be made in the
best interest of the child. In taking into account the child’s best interest, the
court shall order a custody arrangement that permits both parents to enjoy the
maximum participation possible in the life of the child consistent with the
factors set out below, the location of the residences of the parents, the child’s
need for stability and all other relevant factors. The court shall consider all
relevant factors, including the following, where applicable:
(1) The love, affection and emotional ties existing between the parents or
caregivers and the child;
(2) The disposition of the parents or caregivers to provide the child with food,
clothing, medical care, education and other necessary care and the degree to
which a parent or caregiver has been the primary caregiver;
-9-
(3) The importance of continuity in the child’s life and the length of time the
child has lived in a stable, satisfactory environment . . . ;
(4) The stability of the family unit of the parents or caregivers;
(5) The mental and physical health of the parents or caregivers;
(6) The home, school and community record of the child;
(7)(A) The reasonable preference of the child if twelve (12) years of age or
older;
(B) The court may hear the preference of a younger child on
request. The preference of older children should normally be
given greater weight than those of younger children;
(8) Evidence of physical or emotional abuse to the child, to the other parent,
or to any other person . . . ;
(9) The character and behavior of any other person who resides in or frequents
the home of the parent or caregiver and the person’s interactions with the
child; and
(10) Each parent’s or caregiver’s past and potential for future performance or
parenting responsibilities, including the willingness and ability of each of the
parents and caregivers to facilitate and encourage a close and continuing
parent-child relationship between the child and both of the child’s parents,
consistent with the best interest of the child.
In setting the residential schedule, the trial court is also instructed to consider similar,
relevant factors. See Tenn. Code Ann. § 36-6-404(b) (listing additional factors).
In this case, the credible testimony presented at trial reflected that the Child enjoyed
a relationship with both parties and that both parties were capable of providing the Child with
food, clothing, medical care, education, and other necessary care. No evidence was
presented regarding the mental and physical health of the parties; the home, school, and
-10-
community record of the Child; physical or emotional abuse of the Child;4 or behavior of
those who reside in or frequent the home of the parties.
Testimony was presented that Mother allowed unrelated adult men to live with her and
the Child in direct violation of the court’s order. In an attempt to evade that order, Mother
placed a camper within feet from the house. We acknowledge that Mother is now married;
however, her actions are still relevant to this case. Father also ignored the court’s order on
two occasions; however, he, unlike Mother, was truthful about his indiscretions. While there
was no proof that these indiscretions harmed the Child, Mother’s use of the camper to evade
the court’s order, her repeated refusal to admit her indiscretions, and her attempt to influence
Charles Falin’s testimony at trial portray dishonest behavior and an inability to comply with
future court orders. Moreover, Mother ignored the purpose and substance of the court’s
order regarding overnight visitation, namely to provide a stable, satisfactory environment for
the Child and place her Child’s needs above her desires. Thus, while removing the Child
from Mother would interrupt the continuity of the Child’s care and Mother’s status as the
primary caregiver, the evidence presented at trial reflects that the Child has not lived in a
stable, satisfactory environment with a stable family unit for a significant period of time.
Mother also refused Father’s visitation rights in direct violation of the court’s order,
thereby evidencing her refusal to encourage the Child’s relationship with Father. As
reflected by the testimony presented at trial, the Child’s relationship with Father was
hindered by Mother’s behavior and her repeated refusal to facilitate visitation. While the
Child told Laura Arnsfield that she wanted to live with Mother, the Child was “unfamiliar”
with Father because of Mother’s interference with his visitation rights. Witnesses testified
that Father generally enjoyed a good relationship with the Child and that Father was capable
of providing for the Child. We acknowledge Father’s past criminal behavior, but we, like
the trial court, cannot conclude that these instances affected the Child or impacted his ability
to adequately care for the Child in the future.
With all of the above considerations in mind, we conclude that the preponderance of
the evidence supports the trial court’s naming of Father as the primary residential parent as
being in the best interest of the Child. Accordingly, we affirm the decision of the trial court
but further advise the parties that failure to promote and encourage a close relationship
between the Child and the other parent may result in the custody determination being
reviewed in the future.
4
Grandmother found a red mark on the Child after the Child told her that Father hit her, but no testimony was
presented regarding the severity of the mark or the circumstances under which the Child received the mark.
-11-
V. CONCLUSION
The judgment of the trial court is affirmed, and the case is remanded for such further
proceedings as may be necessary. Costs of the appeal are taxed to the appellant, Elizabeth
A. (Hayes) (Falin) Finch. If the current custody arrangement conflicts with the trial court’s
ruling affirmed by this opinion, then that arrangement will remain in place until the
conclusion of the appellate proceedings when the appellate court clerk issues the mandate
pursuant to Rule 42 of the Rules of Appellate Procedure.
_____________________________________
JOHN W. McCLARTY, JUDGE
-12-