Donna Bunker v. Roger Finks ( 2002 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
April 16, 2002 Session
DONNA J. (FINKS) BUNKER v. ROGER FINKS
Appeal from the Circuit Court for Hamilton County
No. 96DR0800 L. Marie Williams, Judge
FILED MAY 8, 2002
No. E2001-01496-COA-R3-CV
Donna J. (Finks) Bunker (“Mother”) and Roger Finks (“Father”) were divorced in Ohio in 1993.
The parties had two minor children. Mother and the children relocated to Chattanooga, Tennessee,
and Father stayed in Ohio. The Ohio Divorce Decree was brought properly before the Tennessee
Trial Court. Father filed a petition seeking a change of custody and visitation, while Mother filed
a cross-petition seeking an increase in child support. The Trial Court found that while Father proved
a material change in circumstances, he failed to carry his burden of showing that a change of custody
was warranted. The Trial Court also restricted Father’s visitation with the children to take place only
in Chattanooga. The Trial Court did not increase Father’s child support obligation. Both Father and
Mother raise issues on appeal. Father’s issues on appeal concern custody and visitation, primarily
of the parties’ younger child (“Younger Child”). We affirm, as modified, and remand.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
as Modified; Case Remanded.
D. MICHAEL SWINEY , J., delivered the opinion of the court in which HERSCHEL P. FRANKS, J., and
CHARLES D. SUSANO, JR., J., joined.
Catherine M. White, Chattanooga, Tennessee, for the Appellant, Roger Finks.
Leslie B. McWilliams, Chattanooga, Tennessee, for the Appellee, Donna J. (Finks) Bunker.
OPINION
Background
Mother and Father were divorced in Ohio in 1993. They have two minor children.1
The Ohio Divorce Decree incorporated a shared parenting plan which contemplated both Mother and
Father serving as “residential parents” of both children with Mother as the primary custodian;
granted Father visitation; and ordered Father to pay child support. In 1993, Mother and the children
moved to Chattanooga, Tennessee, and still live there today. Father lives a few miles from his
parents and sister in Ohio.
In 1996, Mother filed a Petition to Register and Modify Foreign Custody Order in
the Trial Court in Hamilton County. In this petition, Mother sought a modification of Father’s
visitation schedule. Father filed an Answer and Counter-Petition denying that his visitation
scheduled should be modified. Father also requested the Trial Court modify custody to award him
custody of the children. As support for his request to modify custody, Father alleged Mother had
numerous live-in boyfriends and was uncooperative with Father regarding the children. Father also
alleged Mother had set upon a course of alienating the children from him. In August 1996, the Trial
Court entered an Order (“1996 Order”) granting Mother’s request to register the Ohio Divorce
Decree, modified Fathers’ visitation schedule, denied Father’s request to modify custody, increased
Father’s child support obligation, and ordered counseling for the children to take place in Ohio and
Tennessee.2 The Trial Court, acting sua sponte, in its 1996 Order, also entered a permanent
restraining order against both parties, enjoining them from making derogatory remarks about the
other party or allowing anyone else from doing so in front of the children.
The next pleading filed was Father’s Petition for Contempt and to Address Existing
Parenting Issues and/or Custody filed in June 2000. Father alleged a number of grounds for his
petition, including Mother’s interference with his Spring Break and summer visitation and telephone
contact with the children and her failure to set up counseling with the Chattanooga counselor as
ordered by the 1996 Order. Father also alleged that a material change of circumstances had occurred
in the children’s home environment such that a change in custody was warranted. Father alleged that
Mother’s then husband, Dale Bunker, was physically abusive towards Mother and that Dale Bunker
had been indicted for rape of a child. In addition to a change of custody, Father requested emergency
mediation to address a number of issues, including summer visitation and custody issues.
The Trial Court ordered the parties to attend a parenting seminar and emergency
mediation. The record shows that mediation failed. Thereafter, along with her reply to Father’s
1
The parties’ older child is from a previou s marriag e of M other’s. Th e reco rd show s Father adopted this child
during the parties’ marriage.
2
In the 199 6 O rder, the Trial Court specified the Chattanooga counselor by name and ordered that the
Chattano oga counselo r wo uld b e resp onsible for selectin g an Oh io counselor.
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petition, Mother filed a counter-petition seeking an increase in Father’s child support obligation due
to an increase in his income and a reduction in his visitation time. Mother alleged the children were
afraid of Father and that the children complained they did not want to visit Father for long periods
of time.
Father filed a motion in October 2000, requesting the Trial Court address the issue
of Thanksgiving and Christmas visitation because the children told Father they did not want to visit
him. The Trial Court entered an order in December 2000 (“December 2000 Order”), holding that
Father would exercise visitation with only the Younger Child over the upcoming Christmas Break.
The Trial Court also ordered Father to arrange for the Younger Child to attend counseling in Ohio
during Christmas visitation. The Trial Court stated that the Ohio counselor should contact the
Younger Child’s Chattanooga counselor to discuss her best interests.
Trial of the parties’ pending petitions took place in April 2001. At the time of trial,
the older child was nearly 17 years old, and the Younger Child was 10 years old. Two expert
witnesses provided testimony. A psychologist, Dr. Jolie S. Brams, testified on behalf of Father by
telephonic deposition. A licensed clinical social worker, Katie Rhodes, provided testimony at trial
on behalf of Mother. The record shows that Brams’ and Rhodes’ opinions regarding the Younger
Child were very different.
Dr. Brams testified she met separately with Father and the Younger Child one time
during the Younger Child’s visitation with Father in Ohio over the Christmas 2000 holidays. Dr.
Brams testified the purpose of her session with Father and the Younger Child was to conduct a
partial visitation and custody evaluation but that she had no opinion regarding with whom the
Younger Child should be placed. Dr. Brams described Father as inflexible and rigid, not amenable
to change, not a stellar parent, but a hard-working individual. While Dr. Brams stated that Father
had done very little to improve his relationship with the children, Dr. Brams testified further that
Father appeared to take care of the Younger Child and spoke of her with affection. Dr. Brams
testified that while Father may be boring, Father could offer the Younger Child stability.
Dr. Brams characterized the Younger Child as having a mental health impairment that
is causally-related to her upbringing by Mother and opined that the Younger Child needed
psychiatric counseling. Dr. Brams also predicted that the Younger Child would, in the future, have
a personality disorder. The Younger Child related to Dr. Brams a number of disturbing matters
regarding Mother and their home life in Chattanooga, including that Mother’s former husband, Dale
Bunker, sexually molested the Younger Child’s friend; the Younger Child witnessed Mother having
sex with a man in a hotel room; Mother’s present boyfriend and his child were living with Mother
and the children; Mother told the Younger Child she hated the child’s teacher and school and did not
help the Younger Child with homework; the teen-aged older child sleeps with his girlfriend in his
room; and Mother told the Younger Child that if her paternal grandparents in Ohio were nice to her,
it was a lie. Dr. Brams testified the Younger Child was not a happy child and told her she did not
want to call Father “father” or anything else. Dr. Brams testified the Younger Child had been taught
to devalue and reject those who love her and that the Younger Child’s characteristics suggested she
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was caught in a loyalty bind. Dr. Brams also believed the Younger Child may have an eating
disorder. Dr. Brams’ recommendation to the Trial Court, in addition to psychiatric counseling for
the Younger Child, was that Father visit with the Younger Child in a neutral setting, for example,
the guardian ad litem’s office in Chattanooga, where the Younger Child and Father could talk
without external pressures.
Katie Rhodes testified she first met Mother and the Younger Child in March 2001,
and at the time of trial, had met with the Younger Child approximately six times. Rhodes testified
Mother’s stated purpose for bringing the Younger Child to her was Mother’s concern that the
Younger Child may have an eating disorder and may have difficulty with both parents. Rhodes
testified she found no clinical depression present in the Younger Child, nor did she find that the
Younger Child was overeating. Rhodes also testified the Younger Child appeared comfortable and
had a normal affect. Like Brams, however, Rhodes found that the Younger Child felt caught
between her parents. Rhodes, however, found the Younger Child had neither a mental health
impairment nor a profound emotional disturbance. Rhodes testified the Younger Child, instead, had
transient depression during stressful events. Rhodes did not attribute this problem to the Younger
Child’s upbringing by Mother. Rhodes testified the Younger Child did not relate any of the negative
incidents regarding Mother she had related to Dr. Brams. Rhodes found the Younger Child did not
feel as though she and Father had a good relationship and that during visitation in Ohio, the Younger
Child gets bored and does not feel comfortable. Rhodes’ recommendation was that Father and the
Younger Child have more frequent, but shorter visits.
Father testified Mother had repeatedly interfered with his exercise of visitation with
the children and his telephone contact with the children. Father testified he did not get to exercise
visitation with the children over their Spring Break in 2000. Likewise, for Thanksgiving Break in
1999, the children told Father they wanted to stay in Chattanooga instead of visiting him in Ohio.
Father also was concerned about the presence of domestic violence in Mother’s household when she
was married to Dale Bunker and about Bunker’s sexual molestation of the Younger Child’s friend.
Father testified Mother did not tell him about these matters. Father also testified Mother previously
had been treated for alcohol abuse and recalled a recent telephone conversation with Mother on
Easter during which she sounded intoxicated. Furthermore, Father testified he believed Mother was
intentionally attempting to alienate the children from him. In addition, Father’s mother testified that
beginning in 1998, she noticed a change in the children’s demeanor in that both children began to
act withdrawn. Moreover, Father testified that despite the court-ordered counseling in the 1996
Order, Mother failed to seek counseling for the Younger Child.
The record shows Mother did not dispute that Bunker had assaulted her on one
occasion, testifying that Bunker had hit her with his fist and another object, possibly a tire iron, in
the front yard of their home. Mother also did not dispute that Bunker had sexually molested a friend
of the Younger Child. Mother testified that the Younger Child had reported the abuse to her in April
1999. Mother testified that after discussing the matter with the Younger Child and the victim,
Mother reported the molestation to Child Protective Services and cooperated with the police in
securing Bunker’s arrest and conviction for attempted rape of a child. Mother testified she divorced
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Dale Bunker in December 2000.3 Mother testified she and Bunker were married in 1995, and, until
the report of molestation, she believed they had a good marriage. According to Mother, she had no
earlier indication that Bunker was sexually molesting any children. Mother, however, testified she
and Bunker still co-own a business together and that she sees him daily at work since he is out of
jail on work-release.
Despite the Younger Child’s report to Dr. Brams, Mother denied living with any man
except Bunker and testified that her current boyfriend has stayed overnight only on two occasions.
The older child testified Mother does not have any overnight male guests and that Mother’s
boyfriend was not living with them. Mother also denied having sex with a man in a hotel room
where the Younger Child was present. Mother and the older child denied that Mother had been
drinking when she had the telephone conversation with Father on Easter. Mother also denied having
a problem with alcohol or being treated for alcohol dependency, but admitted she had attended
Alcoholics Anonymous meetings and been treated in an alcohol treatment facility. Mother claimed
the treatment actually was for depression.
With respect to Father’s allegations that Mother was attempting to alienate the
children from Father, Mother testified she wants the Younger Child and Father to rebuild their
relationship. Mother denied Father’s allegations that she interfered with his visitation and telephone
contact with the children and testified that in the six to seven-month period prior to trial, Father had
called the children approximately four times. Mother testified the Younger Child, around the time
of her visitation with Father, would become agitated, frequently complain, and wet the bed. Mother
also testified that although the Younger Child did not see the court-ordered counselor in accordance
with the 1996 Order, the Younger Child saw her school counselor from 1996-99.
Both children testified at trial. The older child testified Father was very controlling
and was unwilling to change his behavior and that communicating with Father was difficult. The
Younger Child testified Mother told her they were at trial so the children would not have to go to
Ohio. The Younger Child testified she does not like visiting Father and his family in Ohio and that
she does not enjoy talking to Father. The Younger Child calls Father by his first name and does not
recall the time period when Father lived with Mother and the children. The Younger Child testified
she does not like Father because he yells. Despite Dr. Brams’ report otherwise, the Younger Child
denied that Mother talked to her about Father’s parents and denied that Mother’s current boyfriend
was living with them.
3
Mother testified that upo n hearing about the mo lestation in April 19 99, sh e imme diately repo rted it to C hild
Protective Serv ices. A ccord in g to M oth er, sh e w as instructe d not to confront D ale Bunker a bout the c la im. Mother
testified th at 4 m onth s later, in A ugu st 199 9, she was que stioned by a police detective. Mother testified it was at this
time that she obtained a pro tective order against D ale Bunk er.
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After trial, the Trial Court entered a Memorandum Opinion and an Order (“Final
4
Order”). In its Memorandum Opinion, the Trial Court held, in pertinent part, as follows:
Upon hearing the evidence in this cause, including discussions with
the children, the Court finds significant issues concerning the well-
being of the children have been raised by [Father] with some validity.
However, the Court finds he has not carried his burden of proof
necessary to name [Father] the primary residential parent. The Court
finds a material change of circumstances resulting in substantial harm
to the children has occurred in the deterioration of the relationship
between the Father and the children. Therefore, the residential
schedule must be changed. The Court must address the absence of a
meaningful relationship between [Father] and the two children and
craft a residential schedule designed to encourage and enhance the
father-child relationship. The Court ORDERS the primary residence
shall remain with the Mother. The Court finds both children desirous
of establishing a strong relationship with [Father] in the future.
However, it is necessary for [Father] to cooperate in this process and
to rebuild the relationship under the supervision of the Court and
without the interference of [Mother].
*******
The Court finds [Mother] has failed to cooperate with [Father]
in affording him residential time with the children and has
manipulated and sabotaged those efforts. The Court finds [Mother]
has failed to obey the Court’s orders in arranging and implementing
the counseling the Court ordered and finds her actions in this regard
are a further indication of her intent to undermine the father-child
relationship. Her testimony that she wants the children to have a
good relationship with their father is contradicted by her actions and
her demeanor. Were it not for the status of the (or the absence of a)
relationship between the children and their father at this time, the
Court would modify the decision-making authority and the residential
time of the Mother. However, despite [Mother’s] failure to obey
Court orders, the children’s best interests must be considered and the
Court finds it appropriate for [Father] to visit with the children in
Chattanooga under the dictates of this Order.
4
The Trial Court incorporated the Memorandum O pinion and a Permanent Parenting Plan into its Final Order.
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The Trial Court, in its Memorandum Opinion, limited Father’s visitation to take place
strictly in Chattanooga. In its Final Order entered September 6, 2001, the Trial Court set Father’s
child support obligation at $968.30 per month, finding that no upward deviation was warranted
because of Father’s forthcoming travel-related expenses for visitation in Chattanooga. The Trial
Court ordered, in its Final Order, that Father and the children enter into counseling in Chattanooga
and ordered that Mother comply with the recommendations of the counselor. The Trial Court stated
that “[t]he counselor may make recommendations to the parties concerning an expansion in
[Father’s] residential schedule.” Additionally, in its Final Order, the Trial Court found Mother in
contempt for failing to follow the Trial Court’s orders regarding Father’s visitation and counseling
for the children in Chattanooga but reserved sentencing.
After entry of the Memorandum Opinion, Father filed a Tenn. R. Civ. P. 62 Motion
to Stay, requesting that the Trial Court stay enforcement of the Order. As grounds, Father contended
that he wished to exercise visitation with the Younger Child in Ohio since there was no proof at trial
that the Younger Child had ever suffered harm while visiting Father in Ohio. The Trial Court denied
Father’s Motion to Stay. Thereafter, Father filed a Motion for Clarification requesting the Trial
Court clarify whether the costs related to Dr. Brams’ evaluation and deposition in the amount of
approximately $2,090 should be divided equally between the parties. Father argued in his motion
that Dr. Brams’ evaluation fees were incurred as a result of the Trial Court’s December 2000 Order
that the Younger Child was to see a counselor while visiting Father in Ohio over Christmas Break.
The Trial Court ordered Mother to pay only $300 of Dr. Brams’ fees.
Father appeals. We affirm, as modified, and remand.
Discussion
On appeal, and although not exactly stated as such, Father raises the following issues
for this Court’s consideration: (1) whether the Trial Court erred in denying Father’s request for a
change of custody; (2) whether the Trial Court erred in modifying Father’s visitation schedule; (3)
whether the Trial Court erred in denying Father’s Motion to Stay; and (4) whether the Trial Court
committed error when it ordered Mother to pay only $300 of Dr. Brams’ total fees of approximately
$2,090, instead of ordering Mother to pay $1,045.
Mother raises one additional issue on appeal. Mother contends the Trial Court erred
in failing to find that an upward deviation in Father’s child support obligation was warranted, given
Father’s increase in income and less-than-average visitation time.
Our review of the Trial Court’s findings of fact is de novo upon the record,
accompanied by a presumption of correctness of the findings of fact of the Trial Court, unless the
preponderance of the evidence is otherwise. Tenn. Rule App. P. 13(d); Alexander v. Inman, 974
S.W.2d 689, 692 (Tenn. 1998). A Trial Court’s conclusions of law are subject to a de novo review
with no presumption of correctness. Ganzevoort v. Russell, 949 S.W.2d 293, 296 (Tenn. 1997).
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The crucial issues in this matter are the custody of the Younger Child and the
limitations placed upon Father’s visitation with the Younger Child. Therefore, we will address these
issues first. Determinations regarding custody and visitation "'are peculiarly within the broad
discretion of the trial judge.'" Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001) (quoting Suttles
v. Suttles, 748 S.W.2d 427, 429 (Tenn. 1988)). In addition, this Court has recognized that custody
and visitation decisions "often hinge on subtle factors, including the parents' demeanor and
credibility. . . ." Gaskill v. Gaskill, 936 S.W.2d 626, 631 (Tenn. Ct. App. 1996). Accordingly, on
appeal, the Trial Court's custody and visitation decisions will not be reversed absent a showing of
abuse of discretion. Id. Likewise, the Trial Court’s decision not to grant Father’s Motion to Stay
is subject to an abuse of discretion review. Sanjines v. Ortwein & Assoc., P.C., 984 S.W.2d 907, 909
(Tenn. 1998). Under the abuse of discretion standard of review, this Court will not reverse the
decision of a trial court "'so long as reasonable minds can disagree as to propriety of the decision
made.'" Eldridge v. Eldridge, 42 S.W.3d at 85 (quoting State v. Scott, 33 S.W.3d 746, 752 (Tenn.
2000) & State v. Gilliland, 22 S.W.3d 266, 273 (Tenn. 2000)). A trial court's decision will not be
reversed for abuse of discretion unless the trial court "'applie[d] an incorrect legal standard, or
reache[d] a decision which is against logic or reasoning that causes an injustice to the party
complaining.'" Id. (quoting State v. Shirley, 6 S.W.3d 243, 247 (Tenn. 1999)). This Court, while
using the abuse of discretion standard, is not permitted to substitute its judgment in place of the trial
court. Id.
As discussed, Mother brought the original Ohio Divorce Decree before the Tennessee
Trial Court, and jurisdiction is not disputed. Under Tennessee law, a trial court’s original custody
decree, once it is entered, is res judicata and may not be modified unless a material change of
circumstances has occurred such that the child’s welfare requires a modification of the custody
decree. Hoalcraft v. Smithson, 19 S.W.3d 822, 828 (Tenn. Ct. App. 1999). Tennessee law gives a
"strong presumption in favor of continuity of placement." Placencia v. Placencia, 3 S.W.3d 497,
503 (Tenn. Ct. App. 1999).
The party seeking a modification of the custody decree has the burden of proof to
show a material change of circumstances has occurred such that custody should be modified.
Hoalcraft v. Smithson, 19 S.W.3d at 828. Our Supreme Court, in discussing what constitutes a
material change of circumstances, held “[i]n general, the change must occur after the entry of the
order sought to be modified and the change cannot be one that was known or reasonably anticipated
when the order was entered.” Id. at 829. In addition, the changed circumstances must be that of the
child’s and not the circumstances of either or both parents, and the circumstances must materially
affect the child. Id. Child custody decrees have been modified by Tennessee courts based upon “the
character of the custodian; the conduct of the custodian; and the child’s welfare.” Id. The preference
of the child at issue is only one of the factors to be considered when determining custody. Id.
Once the trial court determines the moving party has carried his burden of showing
that a material change of circumstances has occurred, the court must determine whether a change in
custody would serve the best interests of the child at issue. Id. The trial court, when making a best
interest determination, must assess the comparative fitness of the parties. Placencia v. Placencia,
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3 S.W.3d at 503. While there is no bright line comparative fitness test, the statutory factors provided
by Tenn. Code Ann. § 36-6-106 are used by courts in making this comparative fitness determination.
Id.; see also Gaskill v. Gaskill, 936 S.W.2d at 630 (listing additional factors).5 Generally, custody
arrangements which promote the relationship between the child and both the custodial and non-
custodial parents are preferable. Turner v. Turner, 919 S.W.2d 340, 346 (Tenn. Ct. App. 1995).
5
Tenn. Code Ann. § 3 6-6-106 (a) provid es:
In . . . any other proceeding requiring the court to make a custody determination regarding a minor child, such
determination shall be made upon the best interest of the child. The court shall consider all relevant factors including
the following where applicable:
1. The love, affection and emotional ties existing between the parents and child;
2. The dispo sition of the parents to provide the child with food, clothing, medical care,
education and other necessary care and the degree to which a parent has been the primary
caregiver;
3. The importance of continuity in the child’s life and the length of time the child ha s lived in
a stable, satisfactory environment; provided, that where there is a finding, under 36-6-106(8),
of child abuse, as defined in § § 39-15-401 or 39-15-402, or child sexual abuse, as defined
in § 37 -1-60 2, by o ne (1) pare nt, and that a non-perp etrating p arent has relocated in order to
flee the perpetrating parent, that such relocation shall not we igh against an award o f custod y;
4. The stability of the family unit of the parents;
5. The mental and p hysical health of the parents;
6. The home, school and community record of the child;
7. The reaso nable preference of the c hild if twelve (12) years o f age or olde r. The cou rt may
hear the preference of a younger child upon request. The preference s of older children sho uld
normally be given greater weight than those of younger children;
8. Evidence of physical or emotio nal abuse to the child, to the other pa rent or to any other
person; provided, that wh ere there are allegations that one (1) pare nt has co mmitted child
abuse, [as defined in § § 39-15-401 o r 39-15-402], or child sexual abuse, [as defined in § 37-
1-602], against a family member, the court shall consider all evidence relevant to the physical
and emotional safety of the child, and determine, by a clear preponderance of the evidence,
whether such abuse has occurred. The court shall include in its decision a written finding of
all evidence, and all findings of facts connected thereto. In addition, the court shall, where
appro priate, refer any issues of abuse to the juvenile court for further pro ceedings;
9. The character and behavior of any other person who resides in or frequents the
home of a parent and such person’s interactions with the child;
10. Each parent’s past and potential for future performance of parenting resp onsibilities,
including the willingness and ability of each of the parents to facilitate and encourage a close
and continuing parent-child relationship between the child and the other parent, consistent
with the best interest of the child.
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In its Memorandum Opinion, the Trial Court found that Father carried his burden of
proving a material change of circumstances had occurred. This material change was the
deterioration of the relationship between Father and the children. The Trial Court, however, found
that Father did not carry his burden of establishing that a change of custody was warranted. While
the Trial Court did not specifically state that a change of custody would not be in the Younger
Child’s best interests, this finding is implied from the Trial Court’s denial of Father’s request to
change custody.
On appeal, Father contends the Trial Court erred in failing to change custody since
he established a material change in circumstances, that is, the deterioration of his relationship with
his children, and showed that this change was due to Mother’s conduct. The Trial Court found that
Mother was, at least, partially at fault for the material change in circumstances. The Trial Court
found Mother had sabotaged and undermined Father’s visitation and his relationship with the
children and found that Mother’s testimony regarding her wish for a good relationship between
Father and the children was not credible. Moreover, the Trial Court held Mother in contempt for
failing to comply with the Trial Court’s orders regarding Father’s visitation and counseling for the
children.
Because the older child will turn 18 years old in less than two months from the date
of this Opinion, we will focus our discussion on the custody and visitation issues solely on the
Younger Child. This is not to say that a meaningful relationship between Father and his soon-to-be
18 year old child cannot be achieved. We, however, acknowledge that this Court, due to the older
child’s age, is powerless to take any effective steps to help create any such relationship. The power
to create such a relationship now lies solely with Father and his soon-to-be adult child.
Father, as the moving party, had the burden of establishing a material change in the
Younger Child’s circumstances such that a change of custody is warranted and that the custody
change would serve the Younger Child’s best interests. Hoalcraft v. Smithson, 19 S.W.3d at 828.
While the Trial Court found Father carried his burden of proof of establishing a material change of
circumstances, it impliedly found that a change in custody would not serve the Younger Child’s best
interests. While we acknowledge the record supports the Trial Court’s finding that Mother is, at
least partially, to blame for the decline of Father’s and the Younger Child’s relationship and the
Younger Child’s feelings for Father, the Trial Court’s decision not to modify the existing custody
arrangement neither was against reason or logic, nor did the Trial Court apply an incorrect legal
standard in making this decision. See Eldridge v. Eldridge, 42 S.W.3d at 85. Accordingly, we find
no error in the Trial Court’s decision not to modify the existing custody arrangement, and we affirm
this portion of the Final Order.
We now turn to Father's issue on appeal regarding the Trial Court's decision to limit
Father's visitation with the Younger Child strictly to Chattanooga, thus eliminating Father’s exercise
of visitation at his home in Ohio. As in custody matters, courts, when determining visitation, are
to be guided by the best interests of the child at issue. Turner v. Turner, 919 S.W.2d at 346. Our
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Supreme Court determined that when reviewing a trial court's decision regarding visitation, "the
child's welfare is given 'paramount consideration' . . . and the 'right of the noncustodial parent to
reasonable visitation is clearly favored.'" Eldridge v. Eldridge, 42 S.W.3d at 85 (quoting Luke v.
Luke, 651 S.W.2d 219, 221 (Tenn. 1983) (citations omitted)). Courts may limit or eliminate the non-
custodial parent's right to visitation where "there is definite evidence that to permit . . . the right
would jeopardize the child, in either a physical or moral sense.'" Id. (quoting Luke v. Luke, 651
S.W.2d at 221); see also Tenn. Code Ann. § 36-6-301 (providing that after a custody determination
and upon the request of the non-custodial parent, the court shall grant visitation "unless the court
finds, after a hearing, that visitation is likely to endanger the child's physical or emotional health. .
. .").
Father argues the Trial Court erred by requiring his visitation with the Younger Child
to take place only in Chattanooga. Father contends the record contains no proof that Father harmed
either child during their visitation periods in Ohio. Father also argues that the Younger Child’s
wishes not to visit Father and her negative feelings about Father are not enough to warrant such a
restriction on his right to visitation.
The record shows Father’s own expert witness, Dr. Brams, testified that her
recommendation was for Father and the Younger Child to work on their relationship by meeting in
a neutral setting, such as the Guardian ad litem’s office in Chattanooga. The other mental health
professional who provided testimony, Katie Rhodes, recommended Father and the Younger Child
begin rebuilding their relationship by visiting for shorter periods of time. In addition, the Younger
Child’s testimony shows that, while her home life with Mother is not perfect by any means, she does
not like to visit Father and his extended family in Ohio and has an extremely strained relationship
with Father. Moreover, the Memorandum Opinion shows the Trial Court, in limiting Father’s
visitation to Chattanooga only, was attempting to meet the best interests of the children. While
Mother’s conduct was a significant cause of the problems between the Younger Child and Father,
this Court has recognized that visitation and custody determinations “‘should reflect the realities of
all family members and should promote conduct that is reasonable in light of all the circumstances.’”
Helson v. Cyrus, 989 S.W.2d 704, 708 (Tenn. Ct. App. 1998) (quoting Jones v. Jones, No. 01A01-
9607-CV00346, 1997 Tenn. App. LEXIS 132, at * 12 (Tenn. Ct. App. Feb. 26, 1997), no appl. perm.
app. filed).
While limiting Father’s visitation with the Younger Child to Chattanooga was not an
abuse of discretion, we hold that, under these circumstances and in light of Father’s right to exercise
visitation, imposing such a limitation upon Father’s visitation indefinitely constitutes error. To limit
indefinitely Father’s visitation with the Younger Child, who at the time of trial was 10 years old, to
take place only in Chattanooga would essentially reward Mother for her misconduct and efforts to
sabotage the Father’s and Younger Child’s relationship. Moreover, the Younger Child’s visitation
with Father and his family in Ohio may well facilitate their relationship. See Tenn. Code Ann. § 36-
6-301 (providing that “the court shall, upon request of the non-custodial parent, grant such rights of
visitation as will enable the child and the non-custodial parent to maintain a parent-child relationship
. . . .”). It is undisputed that it is in the Younger Child’s best interest to have a positive relationship
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with Father. We believe this best can be accomplished by allowing visitation in Ohio. Accordingly,
on remand, the Trial Court is directed to hold a hearing within 60 days of the filing date of this
Opinion. At this hearing, the Trial Court is to set a date no later than 6 months after this hearing on
remand for the Younger Child’s visitation with Father in Ohio to recommence.
We next consider Father’s issue on appeal regarding whether the Trial Court erred
in denying Father’s Motion to Stay in which Father requested the Trial Court to stay the portion of
the Final Order that restricted Father’s visitation to Chattanooga. Father’s motion was filed under
Tenn. R. Civ. P. 62 which provides, in pertinent part, the following:
In . . . actions . . . that award, change or otherwise affect the custody
of a minor child, an interlocutory or final judgment shall not be
stayed after entry unless otherwise ordered by the court. . . .
Tenn. R. Civ. P. 62.01 (emphasis added). In light of the facts and circumstances presented by the
record on appeal and our finding that such a restriction on Father’s visitation, albeit for a limited
period of time, will serve the Younger Child’s best interests, we find that the Trial Court’s refusal
to stay its order requiring Father’s visitation to be in Chattanooga was not error.
Next, we address Mother’s argument on appeal that the Trial Court erred in setting
Father’s child support obligation at $968.30 per month. Mother contends Father’s gross income for
the year 1999 was $49,360.80 and for the first 10 months of 2000 totaled $50,428.64. Mother argues
that, based upon Father’s earnings for 1999 and anticipated earnings for 2000, Father’s gross
monthly income, for purposes of setting child support, should be averaged to total $4,535 per month.
Mother argues that, under the Child Support Guidelines (“Guidelines”), Father’s average gross
monthly income warrants a child support obligation of $1,061 per month. In addition, Mother
contends Father’s less-than-average visitation time justifies an upward deviation from the Guidelines
amount.
Tenn. Code Ann. § 36-5-101(e)(1)(A), discusses the application of the Guidelines,
and provides, in pertinent part, the following:
the court shall apply as a rebuttable presumption the child support
guidelines . . . . If the court finds that evidence is sufficient to rebut
this presumption, the court shall make a written finding that the
application of the child support guidelines would be unjust or
inappropriate in that particular case, in order to provide for the best
interest of the child(ren) or the equity between the parties. Findings
that the application of the guidelines would be unjust or inappropriate
shall state the amount of support that would have been ordered under
the child support guidelines and a justification for the variance from
the guidelines.
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See also Tenn. Comp. R. & Regs., ch. 1240-2-4-.01 (2)-(3); ch. 1240-2-4-.02(7).
The Guidelines set the “minimum base” of a child support obligation which is a “flat
percentage of the obligor’s net income . . . depending on the number of children . . . .” Tenn. Comp.
R. & Regs., ch. 1240-2-4-.02(5) & .03(2); Barnett v. Barnett, 27 S.W.3d 904, 906 (Tenn. 2000). In
this matter, Father’s child support obligation is 32% of his net income since two minor children are
involved. Tenn. Comp. R. & Regs., ch. 1240-2-4-.03(5). The Final Order, however, shows the Trial
Court, in setting Father’s child support obligation, took into account Father’s travel-related expenses
for visitation with the children in Chattanooga, stating as follows:
No upward deviation in [Father’s] support obligation is made for his
reduced time with the minor children to allow him monies to pay for
his transportation to Chattanooga.
This Court has recognized that travel-related expenses for visitation may warrant a
deviation from the Guidelines amount. Leach v. Leach, W2000-00935-COA-R3-CV, 2001 Tenn.
App. LEXIS 467, at * 18 (Tenn. Ct. App. June 25, 2001), no appl. perm. app. filed. Under the facts
and circumstances contained in the record on appeal, we hold that Father’s child support obligation
as ordered by the Trial Court is appropriate. As discussed, Father’s visitation in Chattanooga will
serve the best interests of both children and will facilitate Father’s and the children’s relationship.
The Guidelines contemplate serving the best interests of the child involved, stating that “[i]n
deviating from the guidelines, primary consideration must be given to the best interest of the
child(ren) for whose support the guidelines are being utilized.” Tenn. Comp. R. & Regs., ch. 1240-
2-4-.04(5). In light of our holding recommencing the Younger Child’s visitation with Father in Ohio
and the older child turning 18 in June 2002, the Trial Court may, as it deems necessary, address the
issue of child support at the hearing on remand.
The final issue for our consideration is Father’s issue regarding the Trial Court’s
denial of Father’s request that Mother pay one-half of Dr. Brams’ fees which totaled $2,087.50 and
the Trial Court’s order that Mother only pay $300 of Dr. Brams’ fees. Father raised this issue in his
Motion for Clarification and attached a statement of Dr. Brams’ fees. Dr. Brams’ fee statement
includes charges related to the evaluation, preparation of report and deposition. The Trial Court,
after a hearing was held on the matter, ordered Mother to pay $300, without specifying what portion
of Dr. Brams’ fees Mother was paying.
While the Trial Court did not provide its reasoning for limiting Mother’s share of Dr.
Brams’ fees to $300, the record shows that Father sought counseling for the Younger Child with Dr.
Brams during visitation over Christmas Break 2000 after the Trial Court ordered Father “to arrange
for the Younger Child to see a counselor. . . .” The record shows Dr. Brams conducted a partial
visitation and custody evaluation with Father and Child instead of just a counseling session. Dr.
Brams’ involvement with the Younger Child can best be described as both satisfying the Trial
Court’s Order for the Younger Child to see a counselor and serving as an expert witness on Father’s
behalf. Father’s Motion for Clarification, therefore, was essentially a motion for discretionary costs.
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Tenn. R. Civ. P. 54.04(2) provides that “reasonable and necessary expert witness fees for depositions
or trials . . .” are “allowable only in the court’s discretion. . . .” Accordingly, the Trial Court’s
decision to award Father only $300 of Dr. Brams’ fees is subject to an abuse of discretion review,
and as a result, this Court “employ[s] a deferential standard when reviewing decisions either to
award or deny discretionary costs.” Scholz v. S.B. Int’l, Inc., 40 S.W.3d 78, 84 (Tenn. Ct. App.
2000). In light of these facts and circumstances and due to the deference we give the Trial Court’s
decision regarding the award of discretionary costs, we find the Trial Court’s order that Mother pay
only $300 of these fees was not error.
Conclusion
The judgment of the Trial Court is affirmed as modified and this cause is remanded.
Upon remand, the Trial Court is directed to hold a hearing within 60 days of the filing of this
Opinion to set a date-certain, no later than 6 months from the date of the hearing on remand, for the
Younger Child’s visitation with Father in Ohio to recommence and, if the Trial Court deems it
necessary, to address the issue of child support upon the recommencement of visitation in Ohio, and
for such further proceedings as may be required, if any, consistent with this Opinion and for
collection of the costs below. The judgment of the Trial Court is affirmed in all other respects. The
costs on appeal are assessed equally against the Appellant, Roger Finks, and his surety, and the
Appellee, Donna J. (Finks) Bunker.
___________________________________
D. MICHAEL SWINEY, JUDGE
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