Nina Louise James Bumpus v. Scott Michael Bumpus ( 2008 )

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
NOVEMBER 8, 2007 Session
NINA LOUISE JAMES BUMPUS v. SCOTT MICHAEL BUMPUS
Direct Appeal from the Chancery Court for Madison County
No. 59525 Ron E. Harmon, Chancellor
No. W2007-00395-COA-R3-CV - Filed March 25, 2008
This appeal involves a change in child custody and a petition for contempt. When the parties
divorced, they agreed upon a parenting plan providing that Mother would have primary custody of
their two sons. Less than a year later, Father filed a petition to modify the parenting plan, seeking
primary custody. Mother filed a counter-petition, also seeking modification of the parenting plan.
She also filed a petition to cite Father in contempt. Since the divorce, Mother had become pregnant
by another man, and she did not tell the child’s father that the child was born. Mother also lied to
Father and others about the circumstances surrounding the child’s birth. Mother had remained
unemployed since the divorce, and her only source of monthly income was child support from Father
for his two sons. The parties’ oldest son was doing poorly in school and was frequently tardy or
absent. The trial court found that a material change in circumstances had occurred, and that it was
in the best interest of the children for Father to have primary custody. The court also found that
Father’s actions did not rise to the level of contempt. Mother appeals, challenging the trial court’s
decision to change custody, its refusal to find Father in contempt, and other procedural issues.
Finding no error, we affirm.
Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Chancery Court Affirmed
ALAN E. HIGHERS , P.J., W.S., delivered the opinion of the court, in which DAVID R. FARMER , J.,
joined, and W. FRANK CRAWFORD , J., did not participate.
William Bryan Penn, Memphis, TN, for Appellant
Larry Rice, Memphis, TN, for Appellee
OPINION
I. FACTS & PROCEDURAL HISTORY
Nina Louise James Bumpus (“Mother”) and Scott Michael Bumpus (“Father”) were married
in 1994 and had two sons during their marriage. Carter Bumpus was born on August 13, 1997, and
Brandon Bumpus was born on February 28, 2000. Both children have special needs. Carter has
attention deficit hyperactivity disorder, or “ADHD,” and anxiety. Brandon has asthma and cystic
fibrosis, which, according to one of his doctors, “is a genetic disorder which causes a progressive
multi-system disease, most notably chronic lung disease and pancreatic insufficiency.” Thick, highly
viscous mucus forms in the bronchial passages, leaving the lungs susceptible to infection and
consequent inflammation, and the mucus can also obstruct the ducts leading from the pancreas.
Treatment for the respiratory component of cystic fibrosis includes airway clearance techniques, such
as breathing treatments and chest percussions, as well as several prescribed medications. Brandon
must also take pancreatic enzymes when he eats to aid in digestion, and he needs vitamins and
nutritional supplements to meet caloric demands to increase his weight. Brandon’s daily treatments
can take up to two and a half hours, and his condition requires frequent trips to Vanderbilt University
Children’s Hospital for appointments with pediatric pulmonologists, cystic fibrosis specialists, and
gastroenterologists.
Mother filed a complaint for divorce on February 28, 2002, and Father subsequently
counterclaimed for divorce. A temporary parenting plan was entered, providing that the children
would primarily reside with Mother. The children would be with Father on alternating weekends
and every Wednesday after school until he took them to school Thursday morning.
On March 8, 2004, Father moved the court for an order requiring Mother to submit to a
vocational evaluation regarding her earning capacity. The trial court ordered the vocational
evaluation, and Mother was evaluated by a certified rehabilitation counselor. The counselor’s report
stated that Mother did not attend the last two years of high school, but she received a diploma by
mail after being home schooled. Several assessment and achievement tests were administered, and
on one such test, Mother scored on a sixth grade reading level and a fourth grade math and spelling
level. Her scores were consistent on another similar test.
Father also filed a motion pursuant to Rule 35.01 of the Tennessee Rules of Civil Procedure
seeking an order requiring Mother to submit to a mental examination. He contended that Mother
was having difficulty retaining reality and recalling events, and a mental examination was necessary
to determine her fitness as a custodian of the parties’ children. Father asked that the examination
be performed by one of three doctors he listed, “as chosen by counsel for [Mother].” Father
subsequently filed a revised motion to require a mental examination, stating that Carter’s
psychologist recommended that his parents be evaluated. Father’s revised motion listed two other
doctors that Mother’s counsel could choose to perform the exam. On September 13, 2004, the trial
court ordered Mother to submit to a mental examination by John Leite, Ph.D., who was one of the
five doctors listed in Father’s motions.
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On October 27, 2004, the trial court entered a final decree of divorce, which approved and
incorporated a permanent parenting plan and marital dissolution agreement entered into by the
parties. Mother’s mental examination had not yet been completed. The agreed upon parenting plan
provided that the children would reside with Mother, except that every other week, Father would
pick the children up from school on Thursday and return them to school on Monday. Father would
have the children for six weeks during summer vacation, and on alternating holidays. The parenting
plan further provided that the children would continue to be enrolled at the University School of
Jackson (“USJ”) for elementary and high school, and Father would pay their tuition.
On September 1, 2005, Father filed a petition to modify the final decree, alleging that a
change of circumstances had occurred and it was no longer in the children’s best interest to reside
with Mother. According to Father’s petition, Mother had claimed that a known person repeatedly
assaulted and raped her, possibly at her home. Father contended that Mother had created an unsafe
and dangerous environment for the children. In the alternative, Father suggested that Mother could
not distinguish fantasies from reality and was suffering from a serious mental health problem.
Alternatively, Father alleged that Mother may have falsely reported such criminal activity in an effort
to cover her inappropriate sexual activities. Father claimed that Mother had such poor judgment that
she should not be the primary custodian of the children. Father filed another motion to require
Mother to submit to a mental examination by Dr. John Leite, the clinical psychologist, because the
previously ordered examination was never completed.
Mother filed a response to Father’s petition, and she also filed a counter-petition to modify
the final divorce decree. Mother acknowledged in her petition that she was pregnant and expecting
a third child. Mother requested that the parenting plan be modified, alleging that Father had acted
maliciously toward her, engaged in inappropriate activity, failed to administer the necessary
medicines to Brandon for his cystic fibrosis, and otherwise failed to comply with the parenting plan.
She also claimed that Carter was struggling in school and noticeably falling behind his classmates
because Father did not care for him during his parenting time.
On October 3, 2005, a consent order was entered stating that both parties agreed to submit
to psychological evaluations by Dr. John Leite as soon as practicable. On February 8, 2006, Father
filed a motion for sanctions against Mother because she had not completed her evaluation, and she
allegedly failed to keep her appointments with Dr. Leite. Mother filed a “Motion to Appoint New
Psychologist for Evaluation,” claiming that Dr. Leite was “too busy” to conduct the evaluations. The
trial court subsequently denied Mother’s motion and ordered her to complete her psychological
evaluation with Dr. Leite within ten days or provide written documentation from Dr. Leite that he
was unable to complete the evaluations within that time period. The order further stated that after
Dr. Leite’s report was filed, the trial judge might entertain a reconsideration of Mother’s motion to
appoint a new psychologist.
Mother filed a petition to cite Father in civil and criminal contempt alleging that Father had
violated court orders by failing to administer all of Brandon’s medications; pay the children’s
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babysitter; pay 80% of uncovered medical bills; provide his income information for the previous
year; and consult with Mother about where to enroll the children in school.
Pursuant to the original parenting plan, Father had visitation with the children for six weeks
during their summer vacation, and his six-week visitation began on June 1, 2006. The trial judge
heard testimony on June 30 and July 17, 2006, then entered a temporary order, effective August 1,
2006, granting primary custody to Father pending a further hearing. The trial concluded on
September 13, 2006, after the court had heard live testimony from a total of twelve witnesses. In
addition, the parties introduced excerpts from depositions of three of the children’s physicians
regarding the children’s medical needs.
One of Brandon’s doctors from the Vanderbilt Cystic Fibrosis Center testified by deposition
that people with cystic fibrosis have an average survival of 36 years, and survival depends largely
on the care children are able to receive. He explained the daily care and attention required from
parents, as well as the need for specialty care from physicians. At some point, Father had suggested
that Mother might suffer from Munchausen syndrome, or Munchausen syndrome by proxy. The
children’s pediatrician stated that Mother was very attentive to their medical care, but he did not
observe that she misreported or exaggerated any of their physical conditions, or that she made
excessive demands for appointments or medications. The pediatrician stated that Father was also
a concerned parent. In summary, the pediatrician said that both children were “well cared for
medically.”
A clinical psychologist who had evaluated both children also testified by deposition. The
psychologist discussed Carter’s problems with anxiety and ADHD and opined that “a less
accelerated school environment” may be appropriate for Carter. He explained that Carter was having
difficulty completing assignments on time at his current school, and having to make up work only
contributed to his stress levels. The psychologist also stated that he had observed the signs of ADHD
in Brandon, but he said it would be difficult to treat Brandon’s ADHD with medication because of
its effect on his cystic fibrosis.
Carter was in second grade at USJ during the 2005-2006 school year, and Brandon was in
pre-kindergarten. Carter’s second grade teacher, Ms. Phyllis Gayton, testified that Carter was a
bright student who tried hard, but it was difficult for him to stay on task. She also stated that when
Carter was tardy or missed school, he became further behind, and he oftentimes had to finish work
during recess. Ms. Gayton testified that she wrote several notes to Mother asking her to try to get
Carter to school at 7:30 each morning so that he could have extra time to complete his work. The
school day did not actually start until 7:50. Ms. Gayton also tried to communicate with Mother via
email, and she would speak to her in person when Mother came to school. However, Mother rarely
responded to Ms. Gayton. Some of Ms. Gayton’s notes to Mother from Carter’s assignment book
were introduced as exhibits to her testimony. Carter’s report card reflected that he was absent eight
times that year, and he was tardy twenty-one times, meaning he arrived after 7:50. Ms. Gayton
testified that Father never brought Carter to school late on his visitation days. On cross-examination,
Ms. Gayton testified that she could say “pretty definitively” that Father was not responsible for
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Carter being tardy because sometimes she would see Mother dropping Carter off late, and she also
tried to keep Carter’s visitation schedule in mind. Ms. Gayton testified that Father was an involved
parent who telephoned or emailed her at least once a week and attended conferences.
Ms. Gayton testified that Mother would sometimes interrupt her classroom by simply walking
in unannounced while she was teaching. Mother would sometimes want to speak with Ms. Gayton,
but other times, she would talk to Carter for a few minutes and then leave without even speaking to
Ms. Gayton. Carter’s assignment book contained a note from Ms. Gayton asking Mother to please
call or send a note with any messages because it was difficult to talk to Mother at the door during
teaching time. Carter’s final grades included three B’s and one C. He was the only child in Ms.
Gayton’s class who did not complete his quarterly at-home reading assignment quota.
Father had remarried on November 29, 2005, after he had filed the petition to modify the
parenting plan. Father’s new wife, Angela, had one daughter who was eleven years old. Angela
testified that she loved Carter and Brandon very much. Angela was certified as an emergency
medical technician and had previously worked as a paramedic. She testified about helping Brandon
with his breathing treatments and administering his medication, as well as traveling with him to
Vanderbilt for his appointments. Brandon had one appointment at Vanderbilt soon after Father’s
summer visitation began, and Brandon’s doctor discussed the possibility of inserting some type of
feeding tube if he did not begin to gain weight. Father and Angela supplemented Brandon’s diet and
allowed him additional time at meals. At Brandon’s next appointment two weeks later, his doctors
determined that he was gaining weight, and a feeding tube would not be necessary.
Angela was currently working at Father’s family’s business, but her work schedule was
flexible, and she could usually work from home when the children were not in school. She testified
about how she and Father tried to help Carter with his school work. Angela also described various
charity fundraisers she and Father had organized in order to raise money for cystic fibrosis research.
Angela and the three children were enrolled in taekwondo classes together, and she testified about
occasions when Mother would come to their class and call Carter over to her, interrupting the class.
Angela also testified that Mother recently came to Father’s family’s business with Carter and
Brandon, and she was wearing some type of “IV device” on her side. Mother told Angela that she
had breast cancer, and the device was providing chemotherapy.
Father testified that he filed the petition to modify the parenting plan because Mother’s home
environment had begun to “unravel” in such a way that it was affecting the children. First, Father
testified about his reasons for suspecting that Mother was mentally unstable. He explained that
Mother had been wearing some sort of pouch on her side, with an IV line running beneath her shirt
that she said was for chemotherapy. Mother told Father that she had a cancerous mass on her
stomach. Eventually, Father learned that Mother did not have cancer, but she was pregnant. When
Father asked Mother if she was pregnant, Mother told him she was pregnant as a result of being
sexually assaulted at her home. Mother said that she had filed police reports, but she told Father that
he would not be able to find the reports at the police station because the police “red flagged them”
for her. Father later learned that Mother had not been raped, but she had engaged in consensual
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unprotected sex. Mother gave birth to a third child, a daughter, but she did not tell the child’s father
about her birth or seek any child support from him. Mother had remained unemployed since the
divorce in 2004, and her only source of income was the child support Father paid for Carter and
Brandon.
Father also explained that Carter was having problems at school, and Mother could not get
him to school on time. Father testified that when he had the children on school nights (every other
Thursday and Sunday night), he set a routine or schedule regarding homework and bedtime. He also
testified that he communicated with Carter’s teacher every week. Father insisted that he had never
taken the children to school late, and that they arrived at school each morning by 7:30. Father had
arranged for Carter to be tutored during the summer, and he said it was going well. Father stated that
he wanted the children to remain at USJ, even though he was responsible for paying the private
school’s tuition, and Mother wanted to enroll the children in a public school. It was Father’s belief
that the children’s academic problems were not due to the school system, but due to Mother’s lack
of encouragement and failure to take them to school on time. On the final day of trial, September
13, 2006, Father testified that the children were back in school and “doing fabulous.”
Father also testified about the children’s medical needs. He explained how he and Angela
worked together to meet those needs, and how they were successful in helping Brandon to gain
weight. Carter, on the other hand, was overweight when he came to live with Father. Father had
taken Carter to a dietician and was encouraging him to become involved in physical activities.
Father stated that Carter had lost some weight and was feeling better about himself.
Mother testified that she did not have cancer, but she also claimed that she never told Father
or his wife that she had cancer or was receiving chemotherapy. According to Mother, she was
prescribed a “Zofran pump” to wear while she was pregnant, which she described as a type of IV bag
containing medicine for nausea. Mother stated, “When I told him that I was in fact pregnant, he
assumed that I had cancer . . . .” On cross-examination, Mother acknowledged telling Father and his
wife that she had a “breast biopsy.”
Mother admitted that she had twice falsely alleged that she was the victim of sexual assaults,
and she had claimed that her pregnancy was the result of such a sexual attack. Mother stated that
the father of her third child wanted Mother to have an abortion, and after he left town, she did not
contact him to tell him that she gave birth to the child. Mother said she did not know whether the
child’s father was employed, and she had not taken any steps to “track him down” or obtain child
support from him. Mother said that she had not applied for any jobs since she divorced Father, and
she was using the money awarded from the division of marital property as her means of support. The
children’s former babysitter, who was a friend of Mother, testified that Mother had been struggling
financially.
When asked about the children’s school situation, Mother acknowledged that she had
problems communicating with Carter’s teacher. Mother denied ever having interrupted Ms.
Gayton’s classroom, but she said that one time she went in and “quietly slipped” a book to Carter
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that he had forgotten. Mother denied taking Carter to school late, and she claimed that Ms. Gayton
could not have known who was dropping him off late. Mother also testified that Ms. Gayton never
sent notes home regarding Carter being late for school; however, she later identified several notes
from Ms. Gayton requesting that Carter be dropped off by 7:30. During her deposition, Mother had
stated her belief that Carter was simply given extra work and deprived of his recess as a form of
punishment by the school.
Mother stated that she and Father had a “somewhat difficult” relationship since the divorce.
Mother testified that sometimes she is unable to reach the children by telephone when they are
visiting Father. Father’s wife, Angela, testified that they sometimes do not answer Mother’s phone
calls if she calls while they are eating or bathing the children. Once during Father’s visitation, he
told Brandon to get off the telephone with Mother because it was bedtime, and Mother instructed
Brandon to tell Father to “shut up.” Father testified that Mother recently refused to let the children
visit Father on his designated holiday.
Mother also testified about the various bases of her petition to cite Father in contempt. Father
testified about his attempts to comply with each of the relevant court orders. For example, Mother
claimed that Father was not properly dispensing the children’s medications. Mother and her mother
were counting the amount of medication they sent to Father’s house for each of the children’s visits,
and how much remained when the children returned, to conclude that Father was not administering
the proper dosages. Father explained that he had his own supply of some of the children’s
medications, so he did not always use the bottles that Mother sent. Father also testified that he
followed the dosage instructions on the prescriptions, not Mother’s instructions.
Next, Mother claimed that Father had failed to pay the cost of the children’s babysitter and
80% of the children’s uncovered medical expenses. Father testified that he mailed a check to the
babysitter on three different occasions, and it was returned each time because she would not accept
delivery. The babysitter testified and admitted that she had declined mail from Father. Regarding
the medical bills, Father stated that Mother would not provide copies of the bills to Father, as
required by the parenting plan. Father stated that he had paid every bill submitted to him. Mother
also alleged that she had not received proof of Father’s life insurance or an affidavit of his income
for the previous year, as required by the parenting plan. Father testified that the necessary documents
had been provided to Mother’s attorney.
Mother claimed that Father failed to pay her $1800 per month in child support during August,
as required by the original parenting plan. Father explained that since he had primary custody of the
children effective August 1, 2006, pursuant to the temporary order, he only paid $1000 in child
support to Mother, just as he usually did when the children resided with him during the summer
months.
Dr. John Leite reported on his psychological evaluations of Father and Mother. Dr. Leite had
interviewed both parties and reviewed their depositions, the children’s medical records, the
depositions of the children’s doctors, and the vocational evaluation of Mother that was performed
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during the original divorce proceedings. One of Dr. Leite’s colleagues collected psychometric test
data from both parties, which Dr. Leite also reviewed. Mother would not sign a release for Dr. Leite
to review her medical history or therapist’s records, but she stated that she was taking an anti-
depressant as prescribed secondary to stress. Dr. Leite concluded that neither party’s test data
suggested any major psychopathology, and Mother’s test data did not suggest the presence of
Munchausen’s syndrome by proxy or sociopathy, as Father had alleged. However, Mother’s test data
did indicate other concerns and situational distress. Dr. Leite’s report stated, regarding Mother:
[I]nterview and test data suggest a psychologically low functioning
individual whose significant anxiety coupled with poor self-
confidence, lack of sophistication and overwhelming environmental
demands contributes to poor judgment and poor decision making on
her part. Her deficits in academic achievement, her previous school
history and deficits in mathematics, spelling and reading ability
would make her involvement in her children’s school experience
problematic. She is certainly committed to her children and appears
simply overwhelmed by their needs.
Dr. Leite testified that Carter and Brandon placed incredibly high demands on the parents because
of their special needs, and Mother had “poor adaptive responses to stress,” so that she simply
becomes overwhelmed. Dr. Leite further testified that caring for a newborn child along with two
“significantly high maintenance” children would only contribute to Mother’s stress and sense of
being overwhelmed. He also described Mother as tending to be overprotective of the children and
expressed concerns regarding “dependency fostering.”
Dr. Leite also stated that children with ADHD need a structured environment, and he
observed that Carter was having significant academic problems that required intense parental
involvement. He stated that Father demonstrated very superior intellectual ability, and Father was
concerned that Mother allowed the children to be frequently absent from school or tardy. Dr. Leite
concluded from Mother’s discussions of the children’s teachers that Mother viewed “fairly typical
academic expectations as harsh and too demanding.” Dr. Leite noted that Mother wished to remove
the children from USJ, and Dr. Leite questioned that decision.
Mother retained another clinical psychologist, Dr. John Ciocca, to review Dr. Leite’s
evaluation. However, Dr. Ciocca did not independently evaluate Mother. From Dr. Ciocca’s review
of the record, he agreed with Dr. Leite’s conclusion that Mother did not suffer from any major
psychopathology or Munchausen’s Disorder by proxy. However, Dr. Ciocca disagreed with Dr.
Leite’s conclusion that the record demonstrated poor judgment and poor decision making by Mother.
On cross-examination, Dr. Ciocca acknowledged that it would be an indication of poor judgment if
Mother did in fact take Carter to school late twenty-one times in one school year, lie about having
cancer, and falsely report sexual assaults. Father and Mother had discussed this conduct in their
depositions, which were part of the record that formed the basis of Dr. Leite’s conclusions. Dr.
Ciocca then testified that he wished to “amend” his report to clarify that he saw no indication of poor
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judgment or decisions “regarding the rearing of the children on an ongoing basis.” In other words,
Dr. Ciocca explained that not all poor decisions demonstrate an inability to make reasonable
decisions as a parent, and there was no procedure to adequately evaluate parenting capacity. Dr.
Ciocca also opined that there was insufficient evidence in the record to support Dr. Leite’s
conclusion that Mother had “deficits in academic achievement” because Dr. Leite did not
independently evaluate Mother’s academic ability. Instead, Dr. Leite relied on the vocational
evaluation conducted during the original divorce proceedings and the information Mother provided
in her interview. Finally, Dr. Ciocca testified that there was an insufficient basis for Dr. Leite to
conclude that Mother was overwhelmed by the children’s needs because Dr. Leite did not evaluate
the relationship between Mother and the children.
Mother also presented the testimony of various friends and family members who generally
testified that she was a loving mother. At the conclusion of the testimony, the trial judge reserved
ruling until the parties submitted various deposition excerpts and proposed findings of fact. On
January 26, 2007, the trial court entered an order containing the following findings of fact and
conclusions of law:
The instant case involves children with needs that will tax the
skills of both parents as well as their support groups. While the Court
has found the father to be better able to provide day to day care for his
sons, that does not diminish the children’s need for the love and
devotion of their mother.
Both parents have a valuable contribution to make toward the
development of these children and it is the hope of the court that each
will strive to fulfill that contribution to the best of their ability.
The Court, in considering the contempt allegation against the
father, finds his non-compliance is not significant and does not rise
to the level of willful contempt. Therefore, it is not punishable as
such. Considering these facts and the respective financial positions
of the parties, I decline to award either party their attorney fees.
COMES NOW the Court after consideration of all the proof
and evidence adduced at the trial of this cause and finds as follows:
FINDINGS OF FACT
1. On October 24, 2004, the Court entered a Permanent
Parenting Plan in this cause.
2. The parties, Scott Bumpus (“Father”) and Nina Bumpus
(“Mother”), have two children, Brandon Bumpus, age six, and
Carter Bumpus, age eight (“the children”).
3. Brandon Bumpus suffers from Cystic Fibrosis.
4. Carter Bumpus suffers from attention difficulty.
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5. Since the entry of the Permanent Parenting Plan, both parties
allege in their petitions that there has been a change in
circumstances.
6. Father could not have foreseen at the time of the entry of the
Parenting Plan [] the changes in circumstances that occurred.
7. Since the divorce, Mother became pregnant and gave birth to
a third child (“Ashley”) out of wedlock.
8. Mother admitted that her pregnancy was an unforeseen
change in circumstances.
9. Mother did not inform Ashley’s father about Ashley’s birth.
10. Mother does not receive, nor has she ever sought support
from Ashley’s father for the support of Ashley.
11. Mother suffers from high anxiety, low self-confidence, low
self worth, and poor adaptive responses to stress.
12. Mother has become overwhelmed since the birth of her third
child.
13. Mother’s mathematic, spelling, and reading abilities are at the
level of [a] fourth to sixth grader.
14. Mother is not supportive of the children’s education.
Specifically, “she tended to view what seemed to be some
normal, typical academic expectations as overly harsh.”
15. Since the divorce of Mother and Father, the children have had
problems with their schooling and getting to school on time
when in the care of Mother.
16. Mother has been late twenty one (21) times bringing the
children to school in the past year while this matter was
pending.
17. Father has never been late bringing the children to school.
18. Carter Bumpus becomes behind in his schoolwork when he is
late or absent from school.
19. Father is “deeply involved in the schooling of both the boys.”
20. Since the parties[’] divorce, Father has remarried.
21. Defendant’s wife, Angela Bumpus (“Stepmother”), is college
educated and certified as an Emergency Medical Technician.
22. Father and Stepmother provide the children with a healthy
environment, where they encourage the children’s success.
23. Father and Stepmother have the children involved in
academic and athletic activities.
24. If the children remained in the care of Mother, she would
continue “dependency fostering” which could result in the
children’s anxiety and poor functioning and poor interaction
with the outside world.
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25. Father will provide the children with “a structured
environment as well as academic support for the kids.”
26. Neither party is entitled to payment of their attorney fees by
the opposing party. The Court costs are to be divided equally
between the parties.
CONCLUSIONS OF LAW
1. There has been a material change in circumstances that was
not reasonably foreseeable at the time of the entry of the
Parenting Plan.
2. It is in the best interests of the children for Father to be their
primary physical custodian of the children [sic], and to be the
decision making parent.
(citations to the record omitted). A “permanent parenting plan order” was attached to the final order,
which provided that Father would have primary responsibility for the care of the children. Mother
would have parenting time with the children every Friday after school. On the first and third
weekends of each month, Mother would keep the children until 9:00 p.m. on Friday. On the second
and fourth weekends, Mother would return the children on Sunday at 6:00 p.m. Major decisions
would be made by Father after reasonably consulting with Mother and other knowledgeable persons,
such as teachers and physicians. Both parents were ordered to comply with instructions from the
children’s medical providers. Finally, the parenting plan provided that no child support would be
paid pending further orders of the court.
Mother filed a notice of appeal to this Court, but we remanded the case to the trial court for
the entry of a final order. On February 14, 2008, the trial court entered a final order setting child
support at $20 per week to be paid by Mother, although she remained unemployed. We have
determined that this order disposes of all issues and is in fact final.
II. ISSUES PRESENTED
Mother presents the following issues for review, which we cite from Mother’s brief:
1. Whether the trial court erred when it heard matters related to the education of the parties and
other factors that were well known prior to the entry of the final decree of divorce, thereby
making them res judicata.
2. Whether the trial court, in this case, erred in ruling that a material change in circumstances
occurred that necessitated changing primary custody of the children from Mother to Father.
3. Whether the trial court erred when it did not exclude the continued involvement of the court
appointed psychologist in this matter.
4. Whether the trial court erred when it ruled that the noncompliance by [Father] was not
significant, did not rise to the level of willful contempt, and therefore was not punishable.
5. Whether Mother should be awarded attorney’s fees incurred by her in this appeal.
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Father also seeks an award of attorney’s fees on appeal. For the following reasons, we affirm the
decision of the chancery court. In addition, we decline to award attorney’s fees to either party on
appeal.
III. STANDARD OF REVIEW
In child custody cases, we review a trial court’s findings of fact de novo upon the record, with
a presumption of the correctness of the finding, unless the preponderance of the evidence is
otherwise. Hass v. Knighton, 676 S.W.2d 554, 555 (Tenn. 1984). Appellate courts are reluctant
to second-guess a trial court’s custody decision where so much depends on the trial court’s
assessment of the witnesses’ credibility. Nelson v. Nelson, 66 S.W.3d 896, 901 (Tenn. Ct. App.
2001); Steen v. Steen, 61 S.W.3d 324, 328 (Tenn. Ct. App. 2001). Unlike this court, trial courts are
in a position to observe the witnesses and to assess their credibility. Keisling v. Keisling, 196
S.W.3d 703, 721 (Tenn. Ct. App. 2005); Buckles v. Riggs, 106 S.W.3d 668, 676 (Tenn. Ct. App.
2003). “Custody decisions often hinge on subtle factors, such as the parents’ demeanor and
credibility during the proceedings.” Joiner v. Griffith, No. M2004- 02601-COA-R3-CV, 2006 WL
2135441, at *2 (Tenn. Ct. App. July 31, 2006) (citing Adelsperger v. Adelsperger, 970 S.W.2d 482,
485 (Tenn. Ct. App. 1997)). As such, trial courts have broad discretion to fashion custody and
visitation arrangements that best suit the unique circumstances of each case. Joiner, 2006 WL
2135441, at *2 (citing Parker v. Parker, 986 S.W.2d 557, 563 (Tenn. 1999)). “It is not the function
of appellate courts to tweak a visitation order in the hopes of achieving a more reasonable result than
the trial court.” Eldridge v. Eldridge, 42 S.W.3d 82, 88 (Tenn. 2001). If no error in the trial court’s
ruling is evident from the record, the ruling must stand. Id. In sum, a trial court’s decision regarding
custody should be set aside only 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.” Curtis
v. Hill, 215 S.W.3d 836, 839 (Tenn. Ct. App. 2006) (quoting Eldridge v. Eldridge, 42 S.W.3d 82,
88 (Tenn. 2001)). We will reverse or modify the trial court’s custody decision if we conclude that
the decision rests on an error of law, or if the evidence preponderates against the finding that there
has been a material change in circumstances.
IV. DISCUSSION
A. Standards for Modifying a Custody Order
Existing custody arrangements are favored because children thrive in stable environments.
Kellett v. Stuart, 206 S.W.3d 8, 14 (Tenn. Ct. App. 2006). A custody decision, once made and
implemented, is considered res judicata upon the facts in existence at that time, or those that were
reasonably foreseeable when the decision was made. Curtis, 215 S.W.3d at 840; Kellett, 206 S.W.3d
at 14. Still, courts are authorized by statute to alter a custody arrangement as required by intervening
circumstances, or “as the exigencies of the case may require.” Krupp v. Cunningham-Grogan, No.
M2005-01098-COA-R3-CV, 2006 WL 2505037, at *6 (Tenn. Ct. App. Aug. 29, 2006) (citing Tenn.
Code Ann. § 36-6-101(a)(1) (Supp. 2006)). Tennessee Code Annotated section 36-6-101(a)(2)(B)
provides the following instruction regarding changing custody, in pertinent part:
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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 in circumstance. A
material change of circumstance does not require a showing of a
substantial risk of harm to the child. A material change of
circumstance may include, but is not limited to, failures 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.
Therefore, the “threshold issue” in cases involving a proposed modification of an existing custody
order is whether a material change in circumstances has occurred since the initial custody
determination. Blair v. Badenhope, 77 S.W.3d 137, 150 (Tenn. 2002). “Only if the court answers
this ‘threshold’ question in the affirmative does it proceed to perform a new comparative fitness
analysis and then determine whether a new custody and visitation arrangement is in the child’s best
interests.” Krupp, 2006 WL 2505037, at *7 (citing Kendrick v. Shoemake, 90 S.W.3d 566, 570
(Tenn. 2002); McEvoy v. Brewer, No. M2001-02054-COA-R3-CV, 2003 WL 22794521, at *2
(Tenn. Ct. App. Nov. 25, 2003)). The party petitioning to change the custody order must prove both
that a material change in circumstances has occurred and that a change of custody is in the child’s
best interest. Kellett, 206 S.W.3d at 14.
1. Res Judicata
Mother first contends that the trial court erred in considering matters known prior to the
divorce decree, such as the parties’ educational levels, because of the doctrine of res judicata. “Res
judicata is a claim preclusion doctrine that promotes finality in litigation.” In re Estate of Boote,
198 S.W.3d 699, 718 (Tenn. Ct. App. 2005). The doctrine bars a second suit between the same
parties on the same cause of action with respect to all the issues which were or could have been
litigated in the former suit. Id. As previously stated, once a custody decision is made and
implemented, it is considered res judicata upon the facts in existence at that time, or those that were
reasonably foreseeable when the decision was made. Curtis, 215 S.W.3d at 840; Kellett, 206 S.W.3d
at 14. The initial decree is conclusive in a subsequent action to change custody “unless some new
fact has occurred which has altered the circumstances in a material way to make the welfare of the
children require a change in custody.” Rushing v. Rushing, No. W2003-01413-COA-R3-CV, 2004
WL 2439309, at *5 (Tenn. Ct. App. Oct. 27, 2004) (quoting Long v. Long, 488 S.W.2d 729, 731-32
(Tenn. Ct. App. 1972)). In other words, the court cannot entertain a subsequent petition to modify
custody unless a material change in circumstances occurred after the initial custody determination.
Cranston v. Combs, 106 S.W.3d 641, 644 (Tenn. 2003); Woolman v. Woolman, No.
M2000-02346-COA-R3-CV, 2001 WL 1660714, at *4 (Tenn. Ct. App. Dec. 28, 2001). For
purposes of res judicata, a prior judgment or decree does not prohibit re-examination of the same
question between the same parties when the facts have changed or new facts have occurred that have
altered the legal rights and relations of the parties. In re Estate of Boote, 198 S.W.3d at 719 (citing
White v. White, 876 S.W.2d 837, 839-40 (Tenn. 1994); State ex rel. Cihlar v. Crawford, 39 S.W.3d
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172, 178 (Tenn. Ct. App. 2000)). Still, the change in circumstances must have occurred after the
entry of the custody order sought to be modified, and a party cannot use previously existing facts to
show a material change in circumstances. Costley v. Benjamin, No. M2004-00375-COA-R3-CV,
2005 WL 1950114, at *5 (Tenn. Ct. App. Aug. 12, 2005).
After a threshold finding that a material change in circumstances has occurred, the court is
permitted to make a “fresh determination” of the best interest of the child. Id. at *4; see also Gervais
v. Gervais, No. M2005-01483-COA-R3-CV, 2006 WL 3258228, at *3 (Tenn. Ct. App. Nov. 9,
2006). “This determination should be made according to the factors enumerated in Tennessee Code
Annotated section 36-6-106.”1 Kendrick v. Shoemake, 90 S.W.3d 566, 570 (Tenn. 2002).
1
At the time of trial, such factors included:
(1) The love, affection and emotional ties existing between the parents and child;
(2) The disposition 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
has lived in a stable, satisfactory environment; provided, that where there is a
finding, under § 36-6-106(a)(8), of child abuse, as defined in §§ 39-15-401 or
39-15-402, or child sexual abuse, as defined in § 37- 1-602, by one (1) parent, and
that a non-perpetrating parent has relocated in order to flee the perpetrating parent,
that such relocation shall not weigh against an award of custody;
(4) The stability of the family unit of the parents;
(5) The mental and physical health of the parents;
(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 upon request. The
preferences 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; provided, that where there are allegations that one (1) parent has
committed child abuse, as defined in §§ 39-15-401 or 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
appropriate, refer any issues of abuse to the juvenile court for further proceedings;
(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; and
(10) Each parent's past and potential for future performance of parenting
responsibilities, 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.
Tenn. Code Ann. § 36-6-106(a) (2005).
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If the trial court in this case had modified the custody decree solely on the basis of the parties’
educations or other similar facts that were known during the divorce proceedings, we would find
error in its decision. The original decree was considered res judicata upon those facts. However,
that is not the situation we have before us. The trial court specifically found that a material change
in circumstances had occurred, which “was not reasonably foreseeable at the time of the entry of the
Parenting Plan.” Then, the court found that it was in the children’s best interest for Father to be their
primary custodian. A trial court can and should make a “fresh determination” of the children’s best
interest if it first finds that a material change in circumstances has occurred since the original decree.
In doing so, it should not turn a blind eye to facts that were known at the time of the previous decree.
In making the best interest determination, some of the factors to consider include “[t]he
disposition of the parents to provide the child with . . . education,” the child’s school record, and
“[e]ach parent’s past and potential for future performance of parenting responsibilities.” Tenn. Code
Ann. § 36-6-106(a)(2),(6),(10) (2005). Dr. Leite testified that children with ADHD need a structured
environment, and he specifically observed that Carter was having significant academic problems that
required intense parental involvement. Dr. Leite stated in his report that “[Mother’s] deficits in
academic achievement, her previous school history and deficits in mathematics, spelling and reading
ability would make her involvement in her children’s school experience problematic.” He noted that
Mother allowed the children to be frequently absent from school or tardy, and that she viewed “fairly
typical academic expectations as harsh and too demanding.” Dr. Leite also indicated that Mother
wished to remove the children from USJ, and Dr. Leite questioned that decision. We find that
Mother’s educational background and abilities were relevant to the best interest analysis to the extent
that they affected her willingness to encourage and support Carter and Brandon in their education.
Before trial, the judge entered an order specifically stating that he would only revisit issues known
during the divorce as they related to the present welfare of the children. We find no error in that
decision.
2. A Material Change in Circumstances
Next, Mother contends that the trial court erred in concluding that a material change in
circumstances had occurred since the final decree of divorce to justify changing custody. We begin
by noting that Mother filed a “Counter Petition to Modify the Final Decree of Divorce” in the trial
court and asked the court to modify the permanent parenting plan. Although she did not specifically
use the phrase “material change in circumstances,” she alleged various ways that Father had failed
to comply with the parenting plan since the divorce, which allegedly did not serve the children’s best
interest. (Vol.3, p.90). In Krupp v. Cunningham-Grogan, No. M2005-01098-COA-R3-CV, 2006
WL 2505037, at *7 (Tenn. Ct. App. Aug. 29, 2006), a parent similarly argued to the trial court that
a custody order should be modified, then on appeal, claimed that there was no basis for modifying
the original order. The Court explained:
Parties cannot make arguments on appeal that are inconsistent
with the arguments they made in the trial court. Thus, having
contended in the trial court that there has been a material change in
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circumstance sufficient to trigger a judicial reevaluation of the
[original] child custody and visitation order, Mr. Krupp is judicially
estopped from denying the existence of a material change in
circumstance on appeal. In re Austin S., No. M2005-01839-COA-R3-
JV, 2006 WL 770455, at *2 (Tenn. Ct. App. Mar. 24, 2006) (No
Tenn. R. App. P. 11 application filed); see also Marcus v. Marcus,
993 S.W.2d 596, 602 (Tenn. 1999); Webber v. Webber, 109 S.W.3d
357, 359 (Tenn. Ct. App. 2003).
Id. In another case, we refused to consider a parent’s argument on appeal that no material change
in circumstances had occurred, when he admitted in his answer that circumstances had changed since
the entry of the original decree. Rose v. Lashlee, No. M2005-00361-COA-R3-CV, 2006 WL
2390980, at *2 (Tenn. Ct. App. Aug. 18, 2006).
In any event, we find ample evidence in the record to support the trial court’s finding that a
material change in circumstances had occurred since the entry of the original decree. There are no
bright-line rules for determining whether a material change in circumstances has occurred, but some
of the many considerations relevant to the issue include: “(1) whether the change occurred after the
entry of the order sought to be modified, (2) whether the change was not 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.” Boyer v. Heimermann, 238 S.W.3d 249, 256 (Tenn. Ct. App.
2007) (citing Cranston v. Combs, 106 S.W.3d 641, 644 (Tenn. 2003); Kendrick v. Shoemake, 90
S.W.3d 566, 570 (Tenn. 2002); Blair v. Badenhope, 77 S.W.3d 137 (Tenn. 2002)). “Not every
change in the circumstances of either a child or a parent will qualify as a material change in
circumstances.” Id. However, evidence that an existing custody arrangement has proven
unworkable in a significant way is sufficient to satisfy the “material change in circumstances”
standard. Id. In addition, “a parent’s change in circumstances may be a material change in
circumstances for the purposes of modifying custody if such a change affects the child’s well-being.”
Kendrick, 90 S.W.3d at 570.
The chancellor made extensive findings and cited, among other things, that Mother had given
birth to a third child, she failed to inform the child’s father about her birth or seek any type of support
from the father, and Mother had become overwhelmed since the birth of her third child. The court
further found that “[s]ince the divorce of Mother and Father, the children have had problems with
their schooling and getting to school on time when in the care of Mother.” The court found that
Mother had been late in taking the children to school twenty-one times in the past year, and Father
had never been late. He also noted that “Carter Bumpus becomes behind in his schoolwork when
he is late or absent from school.” We agree with the trial court’s determination that a material
change of circumstances occurred that affected the well being of the children in a meaningful way.
That is all that is required under the first prong of our analysis.
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3. Best Interest
Mother also challenges the trial court’s conclusion that a change in custody was in the best
interest of the children. In making a custody decision, the needs of the children are paramount, while
the desires of the parents are secondary. Gaskill v. Gaskill, 936 S.W.2d 626, 630 (Tenn. Ct. App.
1996) (citing Lentz v. Lentz, 717 S.W.2d 876, 877 (Tenn. 1986)). Custody should never be used to
punish or reward the parents; rather, it should promote the children’s best interest by placing them
in an environment that will best serve their physical and emotional needs. Id. “Each parent has his
or her own strengths and weaknesses, and it would be unrealistic to measure parents against a
standard of perfection.” Krupp, 2006 WL 2505037, at *6 (citing Earls v. Earls, 42 S.W.3d 877, 885
(Tenn. Ct. App. 2000); Gaskill, 936 S.W.2d at 630; Bush v. Bush, 684 S.W.2d 89, 93 (Tenn. Ct.
App. 1984)). However, if the parents cannot share the responsibilities of joint custody, the courts
must decide which parent is comparatively more fit to take on the primary parenting role. Id. (citing
Oliver v. Oliver, No. M2002-02880-COA-R3-CV, 2004 WL 892536, at *2 (Tenn. Ct. App. Apr. 26,
2004); McEvoy v. Brewer, No. M2001-02054-COA-R3-CV, 2003 WL 22794521, at *2 (Tenn. Ct.
App. Nov. 25, 2003)).
Regarding the best interest analysis, Mother claims that she has provided excellent medical
care for the children, while Father is allegedly “in denial” about the children’s medical conditions
and more concerned with the children gaining independence. From our careful review of the
sizeable record in this case, we find nothing to indicate that Father does not attend to the children’s
medical needs or appreciate their severity. The trial court specifically found that “Father and
Stepmother provide the children with a healthy environment . . . .” Father testified that he managed
Brandon’s cystic fibrosis according to what his doctors recommended, and it is not necessary to
recount the lengthy testimony from Father and Angela regarding their specific methods of attending
to the children’s medical conditions. Father testified that he and Angela “provide a healthy
environment for [Brandon]; we provide an environment where his mind is going to grow as well as
his lungs. This child is not going to be defined by cystic fibrosis.” The children’s pediatrician stated
that both children were “well cared for medically.” He described Mother as very attentive to the
children’s medical care, and Father as a concerned parent. It is clear from the parties’ testimony that
Mother, Father, and Angela all travel to Brandon’s medical appointments at Vanderbilt. We cannot
say that Mother or Father is comparatively more fit to provide for the children’s medical care, and
we commend both parties for their efforts.
Next, Mother claims that the trial court erred in weighing the evidence regarding her
responsibility for the children’s problems at school. She claims there was no evidence to prove that
she took Carter to school late twenty-one times. She also argues that it was an “abuse of discretion”
for the trial court to discount her testimony that Carter’s private school, USJ, “goes out of the way
to assign him extra work, keep him out of play time, suspend his extra activities,” and so forth. She
cites the opinion of the children’s psychologist that “a less accelerated school environment may well
be more appropriate for Carter at the present time.” We recognize that much conflicting testimony
was presented before the trial court regarding Carter’s academic struggles. Carter’s teacher testified
that she gave Carter unlimited extra time to complete his assignments, but she asked Mother to bring
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Carter to school early so that he could do some work there and prepare for the school day. Ms.
Gayton discussed the problems Carter encountered when he was repeatedly late to school. She
testified that she could say “pretty definitively” that Father was never responsible for bringing Carter
to school late. Father also testified that he did not take the children to school late, and they actually
arrived at school by 7:30. Mother denied that she was responsible for Carter being tardy, blaming
the “carpool system” and accusing Carter of spending too much time at his locker. Mother also
pointed to the fact that Brandon was never reported tardy, but Father testified that because Brandon
was in pre-kindergarten, his teachers did not count tardies.
The trial court found that Mother had been late twenty-one times bringing the children to
school in the past year, while Father had never been late bringing the children to school. The court
also found that “Mother is not supportive of the children’s education” and “she tended to view what
seemed to be normal, typical academic expectations as overly harsh.” On the other hand, the court
described Father as “deeply involved in the schooling of both the boys” and stated that Father would
“encourage the children’s success” and provide “a structured environment as well as academic
support for the kids.” A trial court is, of course, in the best position to observe the demeanor of the
witnesses and to assess their credibility. Keisling v. Keisling, 196 S.W.3d 703, 721 (Tenn. Ct. App.
2005). “Consequently, we are loathe to second-guess the trial court’s determination of credibility.”
Id. With due deference to the trial court’s determinations of credibility, we cannot say the evidence
preponderates against a finding that Father is better suited to provide the children with an education.
The court also found, relevant to the best interest analysis, that Mother had become
overwhelmed by the birth of her third child. Mother was raising an infant and two children with
special needs by herself. Mother did not receive any type of financial or other support from Ashley’s
father, and Mother was unemployed. Father had remarried and had a stable home environment.
Considering all these factors, the record supports the trial court’s conclusion that a change in custody
was in the best interest of the children.
B. Dr. Leite
On appeal, Mother argues that the trial court erred “when it did not exclude the continued
involvement of the court appointed psychologist in this matter.” At the beginning of Dr. Leite’s
testimony, counsel for Father asked him to describe their past relationship.2 Dr. Leite testified that
in 1992, Father’s counsel handled his personal divorce, and since then they had developed a
friendship and consulted on cases. On cross-examination, Mother’s attorney asked if it would be fair
to say that Dr. Leite was “good friends” with Father’s attorney, to which Dr. Leite responded, “Yes.”
However, after that response, Mother’s attorney’s moved on and continued to examine Dr. Leite
2
As previously discussed, during the original divorce proceedings, Father moved for M other to be evaluated
by one of five psychologists listed in his motion, “as chosen by counsel for [Mother].” The trial court entered an order
providing that Mother would be evaluated by Dr. Leite, who was one of the five psychologists listed. However, the
evaluation was not performed because the parties reached an agreement on a parenting plan. During the modification
proceedings, a consent order was entered providing that both parties would be evaluated by Dr. Leite.
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without objection as to his impartiality. It appears that Mother assigns error to the fact that the trial
judge did not exclude Dr. Leite from participating in the trial sua sponte when Dr. Leite testified
about his friendship with Father’s counsel. Mother states in her brief that she “filed a timely motion
to appoint a new psychologist.” However, the only motion Mother filed in this regard was
approximately four months before trial when she simply claimed that Dr. Leite was “too busy” to
evaluate her.3 Mother also lists several facts in her brief which allegedly imply bias or prejudice on
the part of Dr. Leite; however, after reviewing these facts, we find no support for Mother’s assertion.
Rule 35.01 of the Tennessee Rules of Civil Procedure provides, in pertinent part:
When the mental or physical condition (including the blood group) of
a party, or of a person in the custody or under the legal control of a
party, is in controversy, the court in which the action is pending may
order the party to submit to a physical or mental examination by a
suitably licensed or certified examiner or to produce for examination
the person in custody or legal control.
The Middle Section of this Court has interpreted Rule 35.01 “to provide the defendant the right to
have a plaintiff examined by a physician selected by the defendant unless the plaintiff can show a
good reason why the court should not honor the defendant’s choice.” Newton v. Ceasar, No.
M2000-01117-COA-R10-CV, 2000 WL 863447, at *2 (Tenn. Ct. App. Jun. 29, 2000). The Court
noted that in other jurisdictions, objections to the defendant’s choice of doctors have been upheld
on the grounds of bias, inconvenience, and the fact that the examination would cause harm or pain.
Id. “A doctor chosen by the defendant to examine the plaintiff is not objectionable, however, solely
because of a personality conflict between plaintiff’s counsel and the doctor, nor on a bare allegation
of bias or prejudice.” Id. (citations omitted). In this case, Mother did not raise a valid objection to
the doctor chosen by Father.
We note that Dr. Leite testified unequivocally that Mother’s test data did not suggest the
presence of Munchausen’s syndrome by proxy or sociopathy, as Father had alleged, and Mother’s
brief cites Dr. Leite’s testimony extensively in this regard. Mother clearly disagrees with some of
Dr. Leite’s other conclusions, and at trial, she presented the testimony of Dr. Ciocca, who also
criticized some of Dr. Leite’s statements. However, weighing the credibility of the experts and
resolving legitimate but competing expert opinions were matters entrusted to the trier of fact. Brown
v. Crown Equipment Corp., 181 S.W.3d 268, 275 (Tenn. 2005). In short, we find no error by the
trial court regarding Dr. Leite’s involvement in the case.
3
Dr. Leite stated in his report that Mother was late for her first appointment, requiring a second appointment
which did not occur for several months “due to the birth of her baby and varied legal concerns.” He also testified that
she repeatedly cancelled appointments.
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C. Contempt
Mother contends that the trial court erred “when it ruled that the noncompliance by [Father]
was not significant, did not rise to the level of willful contempt, and therefore was not punishable.”
On appeal, we review a trial court’s decision of whether to impose contempt sanctions using the
more relaxed abuse of discretion standard of review. Moody v. Hutchison, 159 S.W.3d 15, 25
(Tenn. Ct. App. 2004) (citing Hawk v. Hawk, 855 S.W.2d 573, 583 (Tenn. 1993)). “Determinations
regarding contempt lie within the trial court’s sound discretion and are final, absent any plain abuse
of that discretion.” Hill v. Hill, 152 S.W.3d 543, 548-49 (Tenn. Ct. App. 2004) (citing Hawk v.
Hawk, 855 S.W.2d 573, 583 (Tenn. 1993); Sherrod v. Wix, 849 S.W.2d 780, 786 (Tenn. Ct. App.
1992)). Given Father’s testimony regarding his attempts to comply with the various court orders,
we find no abuse of discretion in the trial court’s determination that contempt sanctions were not
necessary at this time.
D. Attorney’s fees on Appeal
Both Father and Mother have requested attorney’s fees on appeal. “The decision of whether
to award attorney’s fees on appeal rests solely within the discretion of this Court.” Parchman v.
Parchman, No. W2003-01204-COA-R3-CV, 2004 WL 2609198, at *6 (Tenn. Ct. App. Nov. 17,
2004) (citing Tenn. Code Ann. § 36-5-103(c) (2003)). We should consider “the ability of the
requesting party to pay the accrued fees, the requesting party’s success in the appeal, whether the
requesting party sought the appeal in good faith, and any other equitable factor that need be
considered.” Id. (citing Dulin v. Dulin, No. W2001-02969-COA-R3-CV, 2003 Tenn. App. LEXIS
628, at *26-27 (Tenn. Ct. App. Sept. 3, 2003)). Given the issues involved in this case and the
parties’ financial positions, each party should pay their own attorney’s fees.
V. CONCLUSION
For the aforementioned reasons, we affirm the decision of the chancery court. Further, we
decline to award attorney’s fees to either party. Costs of this appeal are taxed to the appellant, Nina
Louise James Bumpus, for which execution may issue if necessary.
___________________________________
ALAN E. HIGHERS, P.J., W.S.
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