Tammy Kemp v. Thomas Michael Hale ( 1999 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
FILED
August 24, 1999
Cecil Crowson, Jr.
Appellate Court
Clerk
THOMAS MICHAEL HALE, III, ) C/A NO. 03A01-9809-PB-00284
)
Plaintiff-Appellee, )
)
)
)
) APPEAL AS OF RIGHT FROM THE
v. ) CUMBERLAND COUNTY PROBATE
) AND FAMILY COURT
)
)
)
)
TAMMY RENEE HALE, )
) HONORABLE JAMES A. BEAN
Defendant-Appellant.) JUDGE
For Appellant For Appellee
MICHAEL W. BINKLEY CRAIG P. FICKLING
Nashville, Tennessee Ronald Thurman & Associates
(Appeal Only) Cookeville, Tennessee
O P I N IO N
AFFIRMED AND REMANDED Susano, J.
1
This is a divorce case. The trial court granted Thomas
Michael Hale, III (“Father”) a divorce by judgment entered
January 24, 1997. At the time of the divorce, the defendant,
Tammy Renee Hale (“Mother”),1 was pregnant. For this reason, the
issues of the unborn child’s custody and related matters were
reserved in the divorce judgment “by the parties[’] mutual
agreement.” On April 18, 1997, Mother gave birth to Vadah Marie
Hale (“Vadah”). Following a hearing on July 13, 1998, the trial
court awarded Father sole custody of Vadah with specified
visitation rights being awarded to Mother. She appeals, urging
one issue, involving two concepts, that she states as follows:
Whether the record preponderates against the
trial court’s factual finding that the father
is more stable than the mother (and hence a
comparatively better-fit custodian for the
infant daughter) and whether the trial judge
abused his discretion in awarding custody to
the father based upon all relevant factors.
I. General Factual Overview
The parties met in Nashville in 1993. Mother had moved
there2 in 1987 following her graduation from high school in Rome,
Georgia. Father was also living in Nashville, but was originally
from Crossville. He lived in Nashville for three years, before
moving back to Crossville following the parties’ marriage in
October, 1995.
1
In the divorce judgment, Mother was restored to her maiden name of
Kemp.
2
Mother was born in Nashville. Her family subsequently moved to Rome,
Georgia. She has many relatives in the Nashville area.
2
The parties experienced problems in their marriage and
originally separated at a time not clearly identified in the
record.3 While the parties were separated, Father learned, in
July, 1996, that Mother was pregnant. The parties resumed
cohabitation, apparently in Crossville, for two weeks, after
which Mother once again removed herself from the marital
residence and returned to Nashville. She was there for six or
seven months. The parties were divorced on January 20, 1997.
Two weeks after the divorce, the parties got back
together in Crossville. Mother was still pregnant. According to
Father, the parties remained together this last time “until three
or four months after the baby was born.”
Mother and Vadah moved to an apartment on Old Hickory
Boulevard in Nashville in October, 1997. In June, 1998,
approximately a month before the final custody hearing on July
13, 1998, Mother and Vadah moved in with Mother’s parents in
Rome. Her father operates a Lee Fried Chicken franchise. She
testified that she had worked a few days a week at the restaurant
since returning to Rome.
Father -- Thomas Michael Hale, III -- had moved to
Huntsville, Alabama, from Crossville two weeks before the most
recent hearing below. He moved there to work for his brother-in-
law. He testified that he “book[ed] golf vacations into
Crossville and Huntsville.” He further testified that prior to
making the move to Huntsville, he had traveled back and forth
3
As can be seen from the dates that are known, the parties lived
together as husband and wife for less than a year.
3
between Crossville and Huntsville for four or five months in
connection with his new job. He lives with his sister, his
employer/brother-in-law, and their daughter in a three-bedroom
house near Huntsville. Prior to leaving Crossville, Father had
worked at a golf course there.
II. Applicable Law
Our review of this non-jury case is de novo upon the
record of the proceedings below; however, that record comes to us
with a presumption that the trial judge’s factual findings are
correct. Rule 13(d), T.R.A.P. We must honor this presumption
unless we find that the evidence preponderates against those
findings. Id.; Hass v. Knighton, 676 S.W.2d 554, 555 (Tenn.
1984).
Our de novo review is subject to the well-established
principle that the trial judge is in the best position to assess
the credibility of the witnesses; accordingly, such credibility
determinations are entitled to great weight on appeal.
Massengale v. Massengale, 915 S.W.2d 818, 819 (Tenn.App. 1995);
Bowman v. Bowman, 836 S.W.2d 563, 566 (Tenn.App. 1991).
A trial court has broad discretion regarding a custody
determination.4 Brumit v. Brumit, 948 S.W.2d 739, 740 (Tenn.App.
1997); Marmino v. Marmino, 238 S.W.2d 105, 107 (Tenn.App. 1950);
4
Mother attempts to argue that this is a modification case rather than
an original award of custody, citing an alleged oral understanding between the
parties -- not memorialized in a signed writing -- that Mother would have sole
custody. We disagree. The judgment now before us on this appeal is the
original final award of custody in the divorce suit.
4
Varley v. Varley, 934 S.W.2d 659, 665 (Tenn.App. 1996). We will
not disturb such a determination unless the record reflects an
“erroneous exercise of that discretion.” Mimms v. Mimms, 780
S.W.2d 739, 744-45 (Tenn.App. 1989).
“Absent some compelling reason otherwise, considerable
weight must be given to the judgment of a trial court in a
divorce proceeding in respect to the credibility of the parties
and their suitability as custodians.” Id. at 744.
There are “[n]o hard and fast rules...for determining
which custody and visitation arrangement will best serve a
child’s needs.” Gaskill v. Gaskill, 936 S.W.2d 626, 630
(Tenn.App. 1996). A custody determination is “factually driven”
and “requires the courts to carefully weigh numerous
considerations.” Id. The overriding consideration is the best
interest of the child. Id. See T.C.A. § 36-6-106 (Supp. 1998).
As we said in Bah v. Bah, 668 S.W.2d 663, 665 (Tenn.App. 1983),
“neither trial nor appellate judges have any responsibility
greater than to attempt to correctly adjudicate child custody
disputes.” Id.
III. Trial Court’s Judgment
The trial court stated that it had considered the
factors set forth in T.C.A. § 36-6-106. Having done so, the
court concluded that Father should be awarded sole custody of
Vadah. It stated the following in its memorandum opinion from
the bench:
5
We have a young female child here; and as
both attorneys know--but for the benefit of
those people who are here--of course, T.C.A.
36-6-106 certainly sets out what the Court is
to consider in making a determination with
regard to where custody of a child or
children should go; and the Court is well
aware of that; and I take that into
consideration in making this decision.
I’m of the opinion that, after taking
everything into consideration, that the
person who is the best parent, the best
person to have custody of this child is the
father. I think, after considering
everything, he’s not perfect; neither is the
mother; but I think he has stability.
One thing that really impressed me about him
was the fact that--I assume he’s about
twenty-nine. That was the age of Ms. Haile
[sic], somewhere in there. I don’t know to
that effect. What really impressed me is
that this father has been visiting with this
child every weekend. Most young people that
I know of, particularly fathers, are not that
responsible. They’d rather be out partying
or going on a date; but here, he takes care
of his daughter--that has not been
controverted--on the weekends and has been
doing so for quite some time. There was
further testimony that he not only feeds the
child, he cares for the child, he plays with
the child, he bathes the child. And that’s
not to take away from the mother. I’m sure
the mother does that. But he impresses me as
being the most stable of the parties at this
time.
And keep in mind that custody of a child or
children is never permanent. At any time
there’s a showing that there’s a change in
circumstances that would warrant changing
custody, if it can be shown it would be in
the best interest of the child or children,
then the action can be brought back before
the Court.
In the trial court’s judgment entered July 30, 1998 --
following the hearing on July 13, 1998 -- the court said as
follows:
6
After having conducted a comparative fitness
analysis of the parties, taking into
consideration the criteria set out in T.C.A.
§ 36-6-106 and other relevant factors
including the demeanor of the parties and
their witnesses, the Court finds that the
defendant, Thomas Michael Hale, III, is more
comparatively fit to have custody of the
parties’ minor child, namely, Vadah Marie
Hale. Specifically, the Court finds that it
is in the best interest of the parties’ minor
child that the defendant be vested with
custody.
(Bold print in original).
IV. Analysis
A.
While expressing that it had considered all of the
factors set forth in T.C.A. § 36-6-106, the trial court focused
its primary attention on “[t]he stability of the family unit of
the parents.” T.C.A. § 36-6-106(4). The trial court concluded
that Father’s present situation was, relatively speaking, more
stable than that of Mother’s. Mother disagrees with this
assessment; she strenuously argues that she has the more stable
environment, one that is bolstered by a support network in Rome,
including Vadah’s maternal grandmother -- a person that everyone
agrees is capable of caring for Vadah in the absence of Mother.
The evidence does not preponderate against the trial
court’s determination that Father is the more stable of the two
parents. Father is employed in Huntsville at a full-time job.
After commuting between Crossville and Huntsville for three or
four months, Father made a determination that employment with his
7
brother-in-law was a good career move for him. This prompted him
to move his residence to Huntsville. There is no showing that
his sister’s house is an inappropriate place to raise Vadah. It
is true that the house only has three bedrooms to accommodate his
sister, her husband, their child -- a female, six years old --
and Father and Vadah; but there is no proof in the record that
Vadah’s living accommodations there are in any way harmful to
her.
While Mother’s accommodations in Rome are likewise
suitable for Vadah, there is another factor that comes into play
in evaluating the stability of Mother’s circumstances, i.e.,
Mother’s Nashville connection.
Mother admitted that she had four residences -- three
in Nashville and the present one in Rome -- in a period of a year
and a half. Since January, 1997, she had lived with her uncle in
Nashville; an aunt in Nashville; her apartment on Old Hickory
Boulevard; and now her parents’ home in Rome. There is an
abundance of proof that Mother exposed Vadah in Nashville to
people who, at a minimum, had previously used drugs. These
include Mother’s aunts, Missy and Doris, with whom she is close,
as well as Mother’s best friend, Jody Herendeen. Mother had
allowed each of these three individuals to keep Vadah for her.
When asked if these people were still using drugs, Mother stated
that she did not know; but it is obvious from the record that
Mother, within a year of the custody hearing, had allowed Vadah
to stay overnight with all three of these people even though
Mother knew they had used drugs in the past and could not say,
8
with any certainty, that they were no longer engaged in such
activity.
While Mother moved to Rome on the eve of the custody
hearing, it is clear that she still has significant ties to the
Nashville area. Her boy friend lives in Nashville. She
testified that the two of them had discussed marriage. When
asked if she planned to move back to Nashville, she very
cautiously said that she didn’t “plan on moving back any time
soon.” (Emphasis added).
There is evidence in the record from which it could be
reasonably inferred that while Mother is physically in Rome, her
heart is still in Nashville. It is a reasonable inference from
the proof that Mother intends to frequently visit, if not return
to, Nashville. She testified that she had been back to Nashville
since her recent “move” to Rome and that she took her child with
her. Her testimony does not reflect that she has made a
conscious decision to keep Vadah away from her aunts or her best
friend, despite her lack of knowledge as to whether they are
still using drugs.
Because of all of the above, we cannot say that the
evidence preponderates against a finding that Father’s abode in
Huntsville is more stable than Mother’s situation, involving, as
it clearly does, both time in Nashville as well as time in Rome.
9
B.
In the alternative, Mother argues that when considered
in the light of all of the factors enumerated in T.C.A. § 36-6-
106, the evidence preponderates against a finding that it is in
Vadah’s best interest to place her sole custody with Father.
Again, we disagree.
The guardian litem appointed in this case concluded
that both of the parents were fit to have Vadah’s custody. She
concluded that Mother should be awarded custody and so
recommended. She was persuaded that the residence in Rome was
the best place for Vadah to live. However, the guardian ad litem
acknowledged that Mother was emotionally “fragile,” something
also acknowledged by Mother’s counsel in her closing argument.5
Such a conclusion is not inconsistent with Mother’s psychological
evaluation in the April-May, 1998, time frame, that was performed
by Dr. Susan M. Bumgardner, a licensed clinical psychologist,
shortly before the custody hearing below. While finding “no
indication of any serious, stable psychopathology that would
necessitate therapy,” Dr. Bumgardner did state that tests
performed in connection with the evaluation “suggest that
[Mother] is a little more self-absorbed than most people and that
she may be less aware of the impact of her actions on the world
around her than most people.” There was evidence that Mother had
been medicated in the past for depression.
5
"Ms. Kemp [formerly Hale] is a fragile woman. We admit that. She has
a history of panic attacks. Her mother has panic attacks. It appears to run
in her family. But she’s doing okay.”
10
Mother and Father both admitted to using marijuana,
cocaine, and Valium while they were married; but the proof
reflects that neither had used drugs for approximately a year
prior to trial. The trial court accepted this evidence at face
value, as do we.
The trial court was impressed with Father’s
interactions with Vadah during visitation. Other witnesses
testified that Father was a good, attentive parent. Mother even
acknowledged that she knew of nothing to indicate Father had ever
harmed Vadah in any way. When asked at an earlier hearing if she
felt that Vadah was safe with her father, she answered in the
affirmative.
Contrary to Mother’s assertion, there were a number of
factual matters about which there was a dispute between the
parties. Mother’s evidence was to the effect that father had
threatened his former wife, her family and even his daughter if
he did not get custody. Father denied all of this. Mother said
that Father did not discourage her admitted use of marijuana
during her pregnancy; Father testified that he did. Mother
asserted that Father was not adept at administering Vadah’s
breathing treatments for her asthma.6 Father said he was very
proficient in this phase of Vadah’s care. Mother’s proof was to
the effect that Father had threatened that if he had Vadah,
Mother would not get to see him; again Father denied that he had
made such a statement. Mother testified that Vadah would wake up
crying shortly after returning from visitation with her father;
6
Mother smokes; Father does not. In fairness, it should be noted that
Mother denies smoking in the child’s presence.
11
he testified that his daughter did not want to leave him at the
conclusion of visitation. Mother offered evidence that Father
had attempted to take his life; Father denied that he tried to
commit suicide. These and other disputes required the trial
court to make credibility determinations. The trial court’s
judgment that Father should be the sole custodian of Vadah tends
to validate Father’s credibility on these various issues. These
determinations naturally weigh on our own preponderance of the
evidence evaluation.
We recognize that there is proof supporting a
conclusion that Mother should be awarded Vadah’s custody: the
fact that Mother has been the child’s primary caregiver during
most of the child’s life; the fact that, when Mother is in Rome,
she has available to her a caring network of family to help her
with Vadah; the recommendation of the court-appointed guardian ad
litem; and the suitability of the residence of the maternal
grandparents in Rome. However, before we can disturb the trial
court’s judgment, we must find that the evidence preponderates
against what that court did. Considering all of the evidence, we
do not so find, and hence must honor the presumption of
correctness that accompanied the record to this appellate court.
Rule 13(d), T.R.A.P.
Mother’s issues are found to be without merit.
The judgment of the trial court is affirmed. Costs on
appeal are taxed against the appellant. This case is remanded to
the trial court for such further proceedings, if any, as may be
12
necessary, consistent with this opinion, and for collection of
costs assessed below, all pursuant to applicable law.
__________________________
Charles D. Susano, Jr., J.
CONCUR:
_______________________
Herschel P. Franks, J.
_______________________
William H. Inman, Sr.J.
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