Nathan Z. Vinson v. Kristin Denise Ball ( 2016 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
August 9, 2016 Session
NATHAN Z. VINSON v. KRISTIN DENISE BALL ET AL.
Appeal from the Juvenile Court for Cumberland County
No. 09-JV-1092 Larry M. Warner, Judge
No. E2015-01856-COA-R3-JV-FILED-NOVEMBER 9, 2016
This is a child custody action involving two minor children. In 2010, the biological
parents of the children entered into an agreed order, which provided that the mother
would be the primary residential custodian with the father enjoying visitation rights.
Thereafter, the mother sent the children to live with their maternal grandfather. In July
2014, the father filed a petition seeking to modify the prior custody order and establish a
permanent parenting plan wherein he would be designated the primary residential parent.
The mother opposed this change, and the maternal grandfather sought to intervene in the
action for the purpose of seeking custody of the children. The trial court awarded
primary custody to the maternal grandfather, determining that a risk of substantial harm
would result if custody of the children were awarded to the father. The father has
appealed. Determining that there is a lack of clear and convincing evidence to support
the trial court‟s finding of a risk of substantial harm, we reverse the custody award to the
grandfather. We remand this matter for a hearing regarding whether a material change in
circumstance has occurred since the initial custody award and whether modifying the
designation of primary residential parent from the mother to the father is in the children‟s
best interest. We also remand this matter for the trial court to revisit the issue of
changing the children‟s surnames. We affirm the trial court‟s denial of the grandfather‟s
request for retroactive child support.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court
Affirmed in Part, Reversed in Part; Case Remanded
THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and CHARLES D. SUSANO, JR., J., joined.
Kelsy A. Miller, Cookeville, Tennessee, for the appellant, Nathan Z. Vinson.
G. Earl Patton, Crossville, Tennessee, for the appellees, Kristin Denise Ball and Richard
Smith.
OPINION
I. Factual and Procedural Background
Petitioner, Nathan Z. Vinson (“Father”), is the biological father of two minor
children, A.S. and K.S. (“the Children”), who were eight and nine years of age,
respectively, at the time of trial. Kristen Denise Ball, formerly known as Kristen Smith
(“Mother”), is the biological mother of the Children. Father and Mother cohabitated for a
short period of time in Tennessee following the Children‟s births but separated when
Father returned to his family home in Louisiana. In 2009, the Cumberland County
Juvenile Court awarded Father temporary custody of the Children for a period of seven or
eight months while Mother was incarcerated. Subsequently, on March 24, 2010, the
Cumberland County Juvenile Court entered an “Order Establishing Parentage,” which
confirmed Father‟s paternity of the Children. In that order, Mother was named primary
residential parent, and Father was granted visitation with the Children for the entire
month of June every year, one weekend per month, and alternating holidays. The order
provided that the issue of child support would be reserved “pending action by the
Department of Human Services.” The order also provided that Father would be
responsible for changing the Children‟s surnames from “Smith” to “Vinson” and that
Mother would cooperate with this endeavor.
It is undisputed that spanning the next three years, the Children moved “back and
forth” between Mother‟s home in Tennessee and the home of her father, Richard Smith
(“Grandfather”), in North Carolina and later South Carolina. Mother admitted that she
was financially unable to care for the Children on her own. Father continued to visit with
the Children whether the Children were living with Mother or Grandfather, and Father
moved to South Carolina for a period to be closer to the Children. Eventually, however,
Father returned to his family home in Louisiana. Father paid no support to Mother or
Grandfather during this time period, although he did provide for the Children‟s needs
when they were visiting with him.
Father asserted that at some point, Grandfather began denying his requests for
visitation. Consequently, Father filed a “Petition to Modify Current Parenting Order and
to Establish a Permanent Parenting Plan” on July 16, 2014. Father alleged that he had
been unable to maintain contact with Mother and had only recently discovered that
Mother had again sent the Children to live with Grandfather without Father‟s knowledge.
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Father averred that he had been exercising visitation but did not wish to return the
Children to Grandfather‟s care because Grandfather was not their legal custodian. Father
thus contended that there had been a material change in circumstance justifying a change
in the designation of primary residential parent from Mother to Father.
Mother and Grandfather jointly filed an answer and counter-petition, seeking to
hold Father in contempt for failing to return the Children from a visit, to establish a
permanent parenting plan, and to set child support. Grandfather, who had concomitantly
filed a motion to intervene, was listed as an “intervening counter-petitioner” on the joint
counter-petition.1 Mother and Grandfather also filed a joint motion seeking immediate
return of the Children to Grandfather. In these pleadings, Mother and Grandfather
asserted that although Father was supposed to have returned the children to Grandfather
on July 15, 2014, Father refused to do so. They also contended that it was in the
Children‟s best interest to remain in the custody of Grandfather. Mother and Grandfather
requested that the trial court formalize Grandfather‟s custody of the Children because he
had been their primary caregiver for many years.
The trial court entered an Order on August 8, 2014, reciting that Father had asked
for ex parte relief to restrain Mother and Grandfather from removing the Children from
Father‟s custody pending a hearing. The court also noted that Grandfather, whom the
court referred to as “the Intervening Counter-Petitioner,” and Mother had filed an answer
and counter-petition as well as a motion seeking the immediate return of the Children to
Grandfather. The court stated, inter alia, in its order: “The Court denied the ex parte
relief requested by the Petitioner and Ordered, sua sponte, that the children be
immediately returned to the custody of the Respondent [Mother] and Intervening
Counter-Petitioner [Grandfather], pending further hearing to take place on August 15,
2014, at 9:00 a.m.” Father subsequently filed pleadings opposing Grandfather‟s
intervention in the case.
The trial court conducted a hearing on August 15, 2014, regarding the
countervailing custody petitions. Mother, Father, and Grandfather were the only
witnesses. Mother admitted that she was financially unable to care for the Children,
which she explained was the reason she sent them to live with Grandfather. Mother
acknowledged that she had paid no support to Grandfather during the time of his care for
the Children. Mother opined that Grandfather and his wife had done well in caring for
the Children, such that she felt it was in the Children‟s best interest to remain in their
custody.
1
Grandfather asserted that he should be allowed to intervene pursuant to either Tennessee Rule of Civil
Procedure 24.01 or 24.02.
3
Father testified that despite his repeatedly asking for custody of the Children since
2010, Mother had refused. Father stated that he had to arrange his visitation through
Grandfather a majority of the time. Father characterized Grandfather as initially
cooperative but related that Grandfather became less so with time. According to Father,
Grandfather had, of late, thwarted his attempts to visit the Children, calling Father a
“sperm donor.” According to Father, he moved to South Carolina at some point to reside
closer to the Children. He eventually returned to Louisiana because he had not been
allowed to visit the Children freely and could not obtain lucrative employment in South
Carolina.
Father explained that he currently resided with his grandmother at her home in
Shreveport, where he had lived most of his life. Father was employed on an oil drilling
rig in another state, working and living for fourteen consecutive days away from home
and then returning home for fourteen consecutive days off. Father testified that he earned
$24 per hour, for a gross income of approximately $60,000 per year. According to
Father, he was able to provide for the Children‟s needs, clarifying that his mother, who
lived nearby, and grandmother would care for the Children when he was away for work.
Father acknowledged that he had never paid child support, rationalizing that he had never
been ordered to do so.
Grandfather testified that he had recently moved to Fort Mill, South Carolina,
because of the superior reputation of Fort Mill‟s school system. According to
Grandfather, shortly after the parentage order was entered in 2010, Mother asked him to
assume physical custody of the Children, providing him with a “letter of guardianship” so
that he could enroll the Children in school. Grandfather stated that he was unaware of
Father‟s address and usually exchanged the Children for visitation by meeting Father‟s
mother or grandmother at a half-way point. Grandfather acknowledged that although
Mother had paid no support for the Children, he supported the Children for her as he
believed family should.
According to Grandfather, Father had abandoned the Children since their birth.
Grandfather asserted that he had attempted to cooperate with Father and give Father as
much visitation as he desired, in addition to allowing Father to have telephonic access to
the Children. Grandfather acknowledged that he felt “confident” that the Children were
well cared for when they were with Father. However, Grandfather related that he had
been the one providing the Children with stability throughout most of their lives,
describing them as happy and thriving in his care.
During closing arguments, Father‟s counsel posited that before custody could be
awarded to a non-parent, the court was required to make a finding of substantial harm.
Upon ruling from the bench, the trial court awarded custody to Grandfather based on a
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material change in circumstance. The court awarded Father visitation during the month
of June only, with exchange of the Children to occur in Birmingham, Alabama. The
court admonished Father to appear on time for the exchange or otherwise face substantial
incarceration.
The trial court subsequently entered an order on September 2, 2014, determining
that a material change in circumstance had taken place since the 2010 parentage order.
The court found that neither parent had provided for or supported the Children
appropriately and that the Children were “blessed” to have Mr. Smith as a grandparent.
The court accordingly awarded primary custody of the Children to Grandfather. In
finding that neither parent had ever been ordered to pay child support, the court imputed
minimum wage income to Mother and determined Father‟s gross income to be $4,032 per
month based upon his testimony. Pursuant to the Child Support Guidelines, the court set
Mother‟s child support obligation at $286 per month and Father‟s child support
obligation at $984 per month. The court further ruled that the Children‟s surnames
remain as “Smith.”
Mother and Grandfather thereafter filed a joint motion seeking to alter or amend
the judgment. In support, they asserted that the trial court had not specifically ruled on
the motion to intervene and further had not made specific findings of fact to support the
transfer of custody to Grandfather. Mother and Grandfather also complained that the
issues of retroactive child support and medical expenses had not been addressed.
Meanwhile, Father filed a notice of appeal, which appeal was subsequently dismissed by
this Court due to Father‟s failure to pay the required litigation tax. See Tenn. Code Ann.
§ 67-4-601 (2013), et seq.
Upon remand, the trial court conducted a hearing on October 1, 2014, regarding
the pending motion to alter or amend. When Grandfather‟s counsel advised the court that
no written order had been entered allowing Grandfather‟s intervention, the court
remarked, “[i]t would appear to me . . . that I cured the motion to intervene when I
granted you custody.” Grandfather‟s counsel then proffered that in order to transfer
custody to Grandfather as a non-parent, the court was required to make a finding of
substantial harm. At the conclusion of the hearing, the court announced:
Now, we‟ve dealt with the issues of custody, we‟ve dealt with the
issues of visitation, I believe, and I think we‟ve also dealt with the issue of
current support, leaving us with unpaid medical bills and retroactive child
support. I will be very concerned with the time period from the date of the
order establishing paternity in 2010, I believe, I‟ll be concerned with the
income of the parties in that time frame. So, we can look at that. And,
obviously, patterns of visitation by either parent, any of the parents.
5
When Father‟s counsel asked the court to clarify that it was granting Grandfather‟s
motion to alter or amend, the court responded affirmatively. Father‟s counsel then
inquired whether the parties needed to conduct discovery only on the issues of retroactive
child support and medical bills, to which the court again responded in the affirmative.
Grandfather subsequently filed a petition for contempt on November 24, 2014,
regarding Father‟s alleged non-payment of child support, as well as a motion to compel
Father‟s discovery responses. By agreed order dated June 9, 2015, the trial court set the
matter for a final hearing on July 28, 2015. On the day of the hearing, Mother and
Grandfather filed a joint motion seeking permission to file an amended answer and
counter-petition, in which, for the first time, they alleged that the Children would be
subjected to substantial harm if custody were granted to Father.
Upon commencement of the July 28, 2015 hearing, Grandfather‟s counsel
informed the court that the motion to amend had just been filed. Father‟s counsel argued
that the amendment should be denied due to its filing on the day of the final hearing,
which had been set for some time. In support, Father‟s counsel asserted that Father had
not been provided proper notice of this claim and an opportunity to prepare a defense.
The court stated, “I think what you [Grandfather‟s counsel] have done here is, you‟ve just
memorialized what your proof here in the Court has been submitted . . . .” The court
therefore granted filing of the amendment. The court subsequently inquired of Father‟s
counsel whether she wished to seek a continuance. Counsel responded that Father
wished to go forward with the hearing. Counsel, however, asked for a clarification of the
issues to be addressed, stating that her understanding was that only issues of retroactive
child support and medical expenses remained for determination. Grandfather‟s counsel
declared that Grandfather was seeking a determination of substantial harm from the court.
The court permitted Grandfather to proceed with the presentation of proof regarding this
claim without further objection by Father‟s counsel.
Grandfather testified that he had recently paid a substantial medical bill resulting
from an incident wherein K.S. suffered a broken arm. According to Grandfather,
although Father had stated that he would contribute to these medical expenses, he had not
done so. Grandfather characterized the Children as “theirs,” referring to Grandfather and
his wife, by reason of the Children having been in their physical custody for a majority of
the Children‟s lives. Acknowledging that the Children appeared to enjoy spending time
with Father and his family, Grandfather added that he knew the Children loved Father
and that Father loved them. While Grandfather indicated that he believed the Children
were “okay” when they were in Father‟s care, he expressed displeasure that Father had
not paid child support until ordered to do so by the court.
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Grandfather also admitted that there had been occasions when Father had
requested to visit with the Children but Grandfather had refused. Moreover, Grandfather
conceded that he left a voicemail message for Father stating that he would do everything
in his power to make sure Father never saw the Children. Grandfather explained that he
was upset because upon their return from visitation, the Children had articulated that
Grandfather wanted a “do-over” because he had not done a good job raising his own
children. Grandfather was also disturbed when the Children reported Father‟s use of a
racial slur upon referring to the Children‟s half-sister. Furthermore, according to
Grandfather, Father had offered to add the Children to his medical insurance through his
employment but never followed through.
Mother testified that Father demonstrated a bad temper and had physically pushed
her while she was pregnant with K.S. She reported that another incident of physical
assault had occurred previously. As Mother explained, both incidents happened before
she agreed to allow Father to exercise visitation with the Children in the 2010 parentage
order.
Father related that although he wanted to maintain custody of the Children in 2010
when the parentage order was entered, the trial court had informed the parties that it
would not remove custody from Mother because Mother had made “one mistake.” Father
testified that Grandfather and his wife worked six days per week, often into the evening
hours, such that the Children were frequently left in the care of a babysitter. Father also
explained that he was unable to add the Children to his medical insurance coverage
because Grandfather refused to send copies of the Children‟s birth certificates or social
security numbers. Father expressed his distress at only having seen the Children one time
during the prior year, indicating that he had been denied visitation at Christmas.
According to Father, the Children reported that they would be in trouble if they wished to
call Father or send him a letter when they were with Grandfather. Father also reported
that the Children were extremely sad upon leaving his home to return to Grandfather.
Father asserted that should his work schedule be the basis for his not being granted
custody, he would find a new full-time job in Louisiana. Concerning allegations of
domestic violence, Father explained that when he was residing with Mother, he had not
assaulted her; rather, he insisted it was Mother who assaulted him. Father further
indicated that the assault incident was the reason he had left and returned to Louisiana.
At the conclusion of the hearing, the trial court determined that no retroactive
child support would be awarded and that each parent would be responsible for $7,500 in
medical expenses. The court reaffirmed its earlier award of custody to Grandfather,
finding that substantial harm to the Children would result if custody were granted to
Father. The court noted that if the Children moved to Louisiana with Father, there would
be “too many unknowns” because the court did not know who would care for the
7
Children or where they would go to school. The court also observed that a grant of
custody to Father, considering his current work schedule and living situation with his
grandmother, would basically be “trading” one grandparent for another. By virtue of the
time the Children had resided with Grandfather and the totality of the circumstances, the
court determined that the Children should remain in Grandfather‟s custody.
The trial court subsequently entered an order on September 10, 2015, stating in
pertinent part:
The Court finds that the Petitioner Father lives in Shreveport,
Louisiana and that he is employed as a motor man on an oil-drilling rig, and
that such work takes him out of town, regularly for two weeks at a time,
and that he has to remain out of town and stay at a bunk house during these
working periods. Father earns approximately $60,000.00 per year, and
when not working, resides in a home owned by his grandmother.
The Respondent Mother resides in Cookeville, Tennessee and is
currently unemployed. The proof showed that she has relied upon the
Intervening Petitioner, her father, for support. Respondent mother testified
that it was in the best interests of the children to continue residing with her
father in Fort Mill, South Carolina. . . .
The Court finds that [Grandfather] currently lives in Fort Mill, SC, a
town to which he moved specifically because of the reputation of the school
system there as would relate to the children. Richard Smith has had
physical custody of the parties‟ children, with the parties‟ full knowledge
and consent for a majority of the children‟s lives, and has received no
financial support from either parent, prior to [the] Court‟s temporary Order
in this cause. Despite this, the proof demonstrated that Richard Smith has
made great attempts to maintain and encourage a relationship between the
children and both parents, regularly traveling great distances to meet the
mother and even further distances for the children to meet their father for
periods of visitation.
The Court further finds that legal custody of the children should be
granted to the Intervening Petitioner as substantial harm would result to the
children in the custody of either of the parents in this case. Specifically, it
is noted that the Mother in the case has joined the Intervening Petitioner in
advocating for her father as being in the best position to take care of the
children. In doing so, she has waived the requirement of a showing of
substantial harm as to her. However, the Court also finds that her
8
testimony supports a finding that the children would be subjected to
substantial harm in the custody of the mother, as she has demonstrated a
sustained inability to support the children financially and such a pattern of
poor choices in her life that the children would be subjected to such harm.
As to the Petitioner Father, prior to the Court‟s temporary Order in
this cause, he had failed to support the children financially other than
purchasing necessaries for the brief and sporadic periods of visitation he
has exercised. He has never paid any medical expenses for the children,
opting consciously to allow [Grandfather] to support the children
completely. The Court finds that this sustained abandonment of the
children, along with his inability to care for the children while he works
away from his home for long periods of time, supports a finding that the
children would be subjected to substantial harm in his care as well. The
Court finds that Father‟s work schedule essentially requires the Court to
choose between the maternal grandfather and the paternal great-
grandmother whom the Father has indicated would care for the children
while he was working on the oil rig. The length of time that the children
have been with the [m]aternal grandfather in an apparently satisfactory and
stable environment weighs heavily in the Court‟s analysis.
As to the issue of the children‟s name change, which was addressed
in the March 24, 2010 Order, to the effect that it was [Father‟s]
responsibility to change the children‟s surnames []from Smith to Vinson,
the Court finds that due to the fact that [Father] has not in fact acted to
change the children‟s names since that time, that the children are now eight
and nine years old, and that the children have been in school, using the
surname Smith for five and four years respectively, that it is no longer in
the children‟s best interests for that name change to occur.
Father timely appealed.
II. Issues Presented
Father presents the following issues for our review, which we have restated
slightly:
1. Whether the trial court erred by allowing Grandfather to intervene in
this custody action.
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2. Whether the trial court abused its discretion by awarding primary
custody of the Children to Grandfather absent a showing that the
Children would be substantially harmed in Father‟s care.
3. Whether the trial court erred by ordering that the Children‟s last
name should not be changed despite a previous agreed order
mandating the change.
Grandfather and Mother present the following additional issue:
4. Whether the trial court erred by failing to order retroactive child
support.
III. Standard of Review
Regarding the standard of review applicable to a child custody determination, this
Court has explained:
Our review of this bench trial is de novo. The trial court‟s findings
of fact, however, come to us with a presumption of correctness that we
must honor unless the evidence preponderates against those findings. Tenn.
R. App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001). In
weighing the preponderance of the evidence, great weight is accorded to the
trial court‟s determinations of witness credibility, which shall not be
ignored by us absent clear and convincing evidence against those
determinations. Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002). We
review a trial court‟s judgment determinations of witness credibility with
great deference and will not re-evaluate a trial judge‟s credibility
determinations unless they are contradicted by clear and convincing
evidence. Wells v. Tenn. Bd. of Regents, 9 S.W.3d 779, 783 (Tenn. 1999).
No presumption of correctness attaches to the trial court‟s conclusions of
law. Langschmidt v. Langschmidt, 81 S.W.3d 741, 744-45 (Tenn. 2002);
Jahn v. Jahn, 932 S.W.2d 939, 941 (Tenn. Ct. App. 1996).
As a general rule, decisions regarding custody are within the broad
discretion of the trial judge and will not ordinarily be reversed absent some
abuse of that discretion. Otis v. Cambridge Mut. Fire Ins. Co., 850 S.W.2d
439, 442 (Tenn. 1992); Suttles v. Suttles, 748 S.W.2d 427, 429 (Tenn.
1988). Accordingly, a trial court‟s discretionary judgment will be upheld if
the decision is one about which reasonable minds might disagree. A trial
court abuses its discretion when it “applies an incorrect legal standard, or
10
reaches a decision which is against logic or reasoning that causes an
injustice to the party complaining.” Eldridge v. Eldridge, 42 S.W.3d 82, 85
(Tenn. 2001) (quoting State v. Shirley, 6 S.W.3d 243, 247 (Tenn. 1999)).
In re Abigail G.D.H., No. E2011-00118-COA-R3-JV, 2011 WL 3209180, at *5-6 (Tenn.
Ct. App. July 28, 2011).
IV. Grandfather‟s Intervention
Father argues that the trial court should not have been permitted Grandfather to
intervene because there was no demonstration of parental unfitness. Mother and
Grandfather assert that the trial court appropriately granted intervention because the
Children had been in Grandfather‟s care for a substantial amount of time and Father had
failed to support the Children during that timeframe.
The Tennessee Rules of Civil Procedure provide for two types of intervention:
intervention as of right and permissive intervention. Intervention as of right is addressed
in Tennessee Rule of Civil Procedure 24.01, which states:
Upon timely application anyone shall be permitted to intervene in an
action: (1) when a statute confers an unconditional right to intervene; or (2)
when the applicant claims an interest relating to the property or transaction
which is the subject of the action and the applicant is so situated that the
disposition of the action may as a practical matter impair or impede the
applicant‟s ability to protect that interest, unless the applicant‟s interest is
adequately represented by existing parties; or (3) by stipulation of all the
parties.
Tennessee Rule of Civil Procedure 24.02 addresses permissive intervention, providing:
Upon timely application anyone may be permitted to intervene in an action:
(1) when a statute confers a conditional right to intervene; or (2) when an
applicant‟s claim or defense and the main action have a question of law or
fact in common. In exercising discretion the court shall consider whether
or not the intervention will unduly delay or prejudice the adjudication of the
rights of the original parties.
Our thorough review of the record in this matter reveals no order expressly
granting Grandfather‟s motion to intervene or providing a basis for allowing his
intervention. Instead, during the October 1, 2014 hearing on the motion to alter or
amend, Grandfather‟s counsel inquired regarding the status of Grandfather‟s motion to
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intervene. The judge announced, “It would appear to me . . . that I cured the motion to
intervene when I granted you custody.” Father contends that neither Tennessee Rule of
Civil Procedure 24.01 nor 24.02 would provide a basis for allowing Grandfather to
intervene in this custody action because Grandfather was not a parent and had no direct
claim of custody that would supersede Mother‟s or Father‟s claim. Father asserts that the
custody determination should have been made between Mother and Father only.
Grandfather argues that the right of grandparents to permissive intervention in
custody cases involving their grandchildren has been established in prior rulings from this
Court. See, e.g., Toms v. Toms, 209 S.W.3d 76, 80 (Tenn. Ct. App. 2005) (trial court
allowed intervention by grandparents when the grandparents alleged in their petition that
the parents were not properly caring for the children); Elmore v. Elmore, 173 S.W.3d
447, 448 (Tenn. Ct. App. 2004) (trial court allowed intervention by grandparents when
the grandparents alleged in their petition that they had been caring for the children for
over two years and that the mother had abandoned her responsibilities as a parent); Dean
v. Compton, No. M1998-00052-COA-R3-CV, 2000 WL 329351, at *14 (Tenn. Ct. App.
Mar. 30, 2000) (trial court allowed intervention by grandparents when the grandparents
alleged in their petition that both parents had failed to provide for the children, forcing
the grandparents to assume that responsibility). But see In re Marquise T.G., No.
M2011-00809-COA-R3-JV, 2012 WL 1825766, at *1 (Tenn. Ct. App. May 18, 2012)
(holding that although the grandmother was not precluded from seeking custody, the trial
court did not err in limiting her intervention to seeking “any visitation rights to which she
might have been entitled to under Tenn. Code Ann. § 36-6-306” because her petition
failed to allege substantial harm).
We note that “the decision to allow intervention is a matter within the discretion of
the trial court. This decision should not be reversed by an appellate court absent a
showing of abuse of discretion.” Shelby Cnty. Deputy Sheriff’s Ass’n v. Gilless, 972
S.W.2d 683, 685 (Tenn. Ct. App. 1997). Furthermore, as our Supreme Court has
explained:
Under the abuse of discretion standard, a trial court‟s ruling “will be upheld
so long as reasonable minds can disagree as to propriety of the decision
made.” 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 abuses its discretion only
when it “applie[s] an incorrect legal standard, or reache[s] a decision which
is against logic or reasoning that cause[s] an injustice to the party
complaining.” State v. Shirley, 6 S.W.3d 243, 247 (Tenn. 1999). The
abuse of discretion standard does not permit the appellate court to substitute
its judgment for that of the trial court. Myint v. Allstate Ins. Co., 970
S.W.2d 920, 927 (Tenn. 1998).
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Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001).
In this case, Grandfather‟s initial petition seeking custody alleged that the Children
had been residing with him for some time and that Father had failed to support or
regularly visit the Children. Not until the date of the final hearing did Grandfather file an
amended counter-petition alleging that the Children would be subjected to substantial
harm if custody were granted to Father. Based upon the above-described precedent,
however, we determine that the trial court did not abuse its discretion in allowing
Grandfather to intervene in this custody dispute because of the allegations contained in
his initial petition regarding the parents‟ failure to support and care for the Children. See
Toms, 209 S.W.3d at 80.
V. Award of Custody to Grandfather
Father asserts that the trial court erred in awarding custody to Grandfather because
Grandfather and Mother failed to demonstrate by clear and convincing evidence that
Father was unfit or that substantial harm would result if the Children were placed in
Father‟s care. Father contends that if Grandfather had not been allowed to intervene,
Father‟s burden of proof would have been to show by a preponderance of the evidence
that a material change in circumstance had occurred since the prior custody award to
Mother and that a modification was in the Children‟s best interest. As this Court has
previously explained:
Because Father in his petition to modify the permanent parenting plan
requested that he be named the primary residential parent rather than
Mother, this action is considered one for modification of “custody.” See
Armbrister v. Armbrister, 414 S.W.3d 685, 703 (Tenn. 2013) (comparing
the standard for an action to modify custody to the standard for an action to
modify only a residential parenting schedule). Upon a petition to modify
custody from one parent to the other parent, “the „threshold issue‟ is
whether a material change in circumstance has occurred after the initial
custody determination.” See Kendrick v. Shoemake, 90 S.W.3d 566, 570
(Tenn. 2002) (quoting Blair v. Badenhope, 77 S.W.3d 137, 150 (Tenn.
2002)). Upon a trial court‟s finding that a material change in circumstance
affecting the children has occurred, “it must then be determined whether the
modification is in the child[ren]‟s best interests.” Kendrick, 90 S.W.3d at
570 (citing Tenn. Code Ann. § 36-6-106); see generally Boyer v.
Heimermann, 238 S.W.3d 249, 255 (Tenn. Ct. App. 2007) (“In approaching
questions of custody and visitation, the needs of the children are
paramount; the desires of the parents are secondary.”).
13
Regarding the standard a petitioning parent must meet to prove a material
change in circumstance sufficient for consideration of whether custody
modification is in the best interest of the child, Tennessee Code Annotated
§ 36-6-101(a)(2)(B) (2014) provides in relevant part:
(B) 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 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.
(i) In each contested case, the court shall make such a finding
as to the reason and the facts that constitute the basis for the
custody determination.
See also Armbrister, 414 S.W.3d at 703.
Muhonen v. Muhonen, No. E2013-02601-COA-R3-CV, 2015 WL 740667, at *5-6 (Tenn.
Ct. App. Feb. 20, 2015).
Inasmuch as Grandfather was allowed to intervene and seek custody of the
Children, however, the proper analysis is as set forth in Blair v. Badenhope, 77 S.W.3d
137, 142 (Tenn. 2002), wherein our Supreme Court explained:
[I]n a contest between a parent and a non-parent, a parent cannot be
deprived of the custody of a child unless there has been a finding, after
notice required by due process, of substantial harm to the child. Only then
may a court engage in a general “best interest of the child” evaluation in
making a determination of custody.
The High Court expressly found that a parent would enjoy the presumption of superior
parental rights when there was no prior order transferring custody from a parent to a non-
parent. Id. In this case, because there exists no prior decree2 granting custody to
2
Mother testified that she sent the Children to live with Grandfather and granted him “power of attorney”
with respect to the Children. Grandfather testified that Mother provided him with a “guardianship letter”
so that he could enroll the Children in school. The only prior order or decree in the record regarding
14
Grandfather, he is required to show “by clear and convincing evidence, that granting
custody to Father subjected the children to a risk of substantial harm.” Elmore, 173
S.W.3d at 449.3 Once such a finding has been made, the court may then proceed to
evaluate the custody determination in light of the best interests of the Children. See
Dean, 2000 WL 329351, at *15.
In the case at bar, the trial court determined that the Children would be subjected
to substantial harm if allowed to reside with Father, specifically finding that:
[P]rior to the Court‟s temporary Order in this cause, [Father] had failed to
support the children financially other than purchasing necessaries for the
brief and sporadic periods of visitation he has exercised. He has never paid
any medical expenses for the children, opting consciously to allow
[Grandfather] to support the children completely. The Court finds that this
sustained abandonment of the children, along with his inability to care for
the children while he works away from his home for long periods of time,
supports a finding that the children would be subjected to substantial harm
in his care as well. The Court finds that Father‟s work schedule essentially
requires the Court to choose between the maternal grandfather and the
paternal great-grandmother whom the Father has indicated would care for
the children while he was working on the oil rig. The length of time that
the children have been with the [m]aternal grandfather in an apparently
satisfactory and stable environment weighs heavily in the Court‟s analysis.
Father posits that no clear and convincing evidence supports the trial court‟s finding of
substantial harm. Upon a thorough review of the record, we agree.
custody of the Children is the 2010 Order Establishing Parentage, which solely involves Mother and
Father.
3
Pursuant to the Supreme Court‟s opinion in Blair, Father cannot be deprived of custody without receipt
of the proper “notice required by due process.” See 77 S.W.3d at 142. Father contends that he was
surprised and ultimately prejudiced by the allegations of substantial harm that were raised on the morning
of the July 28, 2015 hearing. The law is well settled, however, that when a party does not request a
continuance of the trial date in order to address any new claim or evidence brought forth shortly before
the trial, such party cannot complain of prejudice on appeal. See Matus v. Metro. Gov’t of Nashville, 128
S.W.3d 653, 656 (Tenn. Ct. App. 2003); Schnider v. Carlisle Corp., 65 S.W.3d 619, 621 (Tenn. Ct. App.
2001); Farmers & Merchants Bank v. Dyersburg Prod. Credit Ass’n, 728 S.W.2d 10, 19 (Tenn. Ct. App.
1986). The trial court offered Father the opportunity to seek a continuance of the trial date, but Father
decided to go forward with the trial. Therefore, Father cannot now complain that he was prejudiced by
the trial court‟s decision to allow amendment of the counter-complaint.
15
Regarding substantial harm, this Court has previously explained:
The courts have not undertaken to define the circumstances that pose
a risk of substantial harm to a child.[FN] These circumstances are not
amenable to precise definition because of the variability of human conduct.
However, the use of the modifier “substantial” indicates two things. First,
it connotes a real hazard or danger that is not minor, trivial, or insignificant.
Second, it indicates that the harm must be more than a theoretical
possibility. While the harm need not be inevitable, it must be sufficiently
probable to prompt a reasonable person to believe that the harm will occur
more likely than not.
[FN]
This court has observed that a finding of substantial harm
to a child includes “a finding of parental unfitness or of
dependency and neglect of the child . . . .” Eason v. Bruce,
No. W2000-01326-COA-R3-CV, 2001 WL 502834, at *2
(Tenn. Ct. App. May 10, 2001) (No Tenn. R. App. P. 11
application filed).
Ray v. Ray, 83 S.W.3d 726, 732 (Tenn. Ct. App. 2001) (additional footnote omitted).
This Court further explained regarding custody decisions in general:
Custody decisions should not be used to punish parents for past
misconduct or to award parents for exemplary behavior. The courts
understand that persons are able to turn their lives around. Accordingly,
custody decisions should focus on the parties‟ present and anticipated
circumstances, and on the parties‟ current fitness to be custodians of
children.
The courts may and should consider past conduct to the extent that it
assists in determining a person‟s current parenting skills or in predicting
whether a person will be capable of having custody of a child. However,
the consideration of past conduct must be tempered by the realization that
the persons competing for custody, like other human beings, have their own
virtues and vices. Biological parents are not required to demonstrate they
are perfect before they can be granted custody of their children.
Ray, 83 S.W.3d at 734 (internal citations omitted).
We note that the procedural posture of the Ray case is somewhat similar to the
history of this cause. In Ray, the parties, Mr. and Ms. Ray, were engaged in an ongoing
16
divorce action that encompassed a custody dispute regarding the four minor children born
during their marriage. Id. at 728. Mr. Ray was not the biological father of the two
youngest children, a set of three-year-old twins, and the biological father of the twins,
Mr. Staggs, sought to intervene in the divorce action to seek custody of those children.
Id. Mr. Staggs had no prior relationship with the twins because he did not learn that he
was their father until approximately one month before he sought intervention. Id. at 729.
Following his intervention, Mr. Staggs sought and was granted visitation with the twins,
which he began exercising immediately. Id.
Subsequent to a hearing on the custody issue, the Ray trial court determined that
Ms. Ray was “not a fit and proper person” to have custody of any of the four children.
Id. at 730. The court then engaged in a comparative fitness analysis between Mr. Ray
and Mr. Staggs with regard to custody of the twins, determining that Mr. Ray was the
better choice for custodian. Id. The court also noted its reluctance to separate the twins
from their siblings. Id. Mr. Staggs thereafter filed a Tennessee Rule of Civil Procedure
59.04 motion. The trial court subsequently entered an order finding that there was clear
and convincing evidence of a risk of substantial harm to the twins if placed in Mr.
Staggs‟s custody, stating:
[B]ecause of both natural parents‟ use of drugs, instability in relationships,
the natural father‟s history of family mental illness, lack of father‟s
connection with his family, anger undisputed in natural father . . . natural
Father‟s lack of interest in trying to determine paternity until the children
were almost two years old, Father‟s taking no part in the young children‟s
formative years and leaving them to fend for themselves, and Father failing
to pay adequate support even after he learned he was the Father . . . .”
Id. The court thus ruled that the children would remain with Mr. Ray, who was “the only
stable force in their li[ves].” Id.
On appeal in Ray, this Court reviewed the trial court‟s findings of fact with a
presumption of correctness, see Tenn. R. App. P. 13(d), but determined that the facts
found by the trial court did not clearly and convincingly establish that the twins would be
exposed to a risk of substantial harm if placed in the custody of Mr. Staggs. Id. at 733-
34. Reviewing each individual factual finding in detail, this Court determined that the
evidence failed to attain the level of clear and convincing. Id. at 734-38. For example,
this Court determined that Mr. Staggs had not demonstrated a “lack of interest in trying to
determine paternity until the children were almost two years old,” nor had he consciously
“[taken] no part in the young children‟s formative years and [left] them to fend for
themselves” because the evidence demonstrated that Mr. Staggs had attempted to call Ms.
Ray while she had changed her phone number and that he had also attempted
17
unsuccessfully to locate her through mutual friends. Id. at 735. This Court noted that
upon learning of his children‟s existence, Mr. Staggs immediately sought to intervene in
the Rays‟ divorce to obtain visitation and seek custody. Id. This Court also noted that
Mr. Staggs had successfully established a relationship with the twins by exercising
continuing visitation. Id.
With regard to the Ray trial court‟s factual findings involving Mr. Staggs‟s past
and personal relationships, this Court noted that Mr. Staggs had demonstrated positive
change in his life by discontinuing his past use of cigarettes and illegal drugs, as well as
enjoying a stable and positive relationship with his wife. Id. at 736. This Court
determined the evidence regarding Mr. Staggs‟s alleged “anger” to be “anecdotal and
unremarkable.” Id. This Court also determined that there was no evidence that Mr.
Staggs suffered from mental illness or that his estrangement from certain family members
would affect his parenting ability. Id. Rather, this Court determined that the evidence of
Mr. Staggs‟s current fitness to be custodian was more convincing, including the
following:
Mr. Staggs had held a well-paying job for over eighteen months and had
earned the trust and respect of his employer. He [had] also been married to
a woman he had been dating for approximately eighteen months, and he
had been fully integrated into her family. He had earned the admiration and
respect of his wife‟s parents for his honesty and tenacity. He had also
gained experience with young children and was serving as a volunteer
coach for a YMCA youth basketball program. In light of this evidence, we
find that the trial court placed undue weight on Mr. Staggs‟s past conduct
rather than on his current fitness to have custody of his children.
Id. at 737. This Court thereby vacated the trial court‟s order regarding custody and
remanded the matter for further hearing on the issue of whether Mr. Staggs‟s current
situation would expose the twins to substantial harm if Mr. Staggs were granted custody.
Id. at 738.
Similarly, in Elmore, the maternal grandparents and aunt intervened in a custody
dispute between the father and the mother, alleging that the maternal grandparents and
aunt had been the primary physical custodians of the children for over two years. See
Elmore, 173 S.W.3d at 448. The mother‟s family further alleged that the mother had
abandoned her responsibilities as a parent to the children. Id. Without making a finding
of substantial harm, the trial court awarded custody of the children to the maternal
grandparents and aunt instead of to the mother or father. Id.
18
On appeal in Elmore, this Court noted that although the trial court had made no
finding of substantial harm, this Court could review the evidence presented at trial by
both the father and the mother‟s family to determine if clear and convincing evidence
supported a finding of risk of substantial harm. Id. at 450. The maternal grandmother
had testified that she did not believe the father was capable of caring for three children
while working. Id. She also testified that she had never been to the father‟s home and
had no knowledge of whether it was suitable. Id. The mother testified that the father had
been physically abusive to her prior to their divorce, although she acknowledged that she
had been charged with assault, theft, and drug possession; had suffered from drug
addiction; and had given false answers to interrogatories. Id.
The father in Elmore admitted that he had failed to visit with the children for six
months, explaining that he was trying to “catch” the mother in unwholesome behavior.
Id. at 451. The father also acknowledged that he had fallen behind on his child support
payments, resulting in the garnishment of his wages. Id. This Court noted that although
the father lived in a trailer with only two bedrooms, he had testified that he was prepared
and able to move to a three-bedroom trailer if granted custody. Id. While determining
that the father had exercised “poor judgment” in his failure to visit in order to gain a
tactical advantage in the custody dispute, this Court concluded that no clear and
convincing evidence demonstrated that the children would be subjected to substantial
harm if custody were granted to the father. Id. This Court therefore reversed the custody
award to the maternal grandparents and aunt and designated the father as the primary
residential parent of the three children based on his superior constitutional right to their
care and custody. Id.
In the case at bar, the trial court primarily focused its substantial harm analysis on
Father‟s past lack of child support payments prior to the court‟s order requiring such
child support payments. While noting that Father did provide for the Children‟s needs
during their visits with him, the trial court determined that Father “opted” to allow
Grandfather to support the Children. The court found that this “abandonment” by Father,
coupled with his work schedule, resulted in a determination that the Children would be
subjected to a risk of substantial harm if placed in Father‟s custody.4
With regard to child support, Father stated that he had never been ordered to pay
child support and had never been contacted by the Department of Human Services
regarding support. Although there is no prior order requiring Father to pay child support,
4
The trial court also declared that “[t]he length of time that the children have been with the [m]aternal
grandfather in an apparently satisfactory and stable environment weighs heavily in the Court‟s analysis.”
We note, however, that “[e]vidence that [a child] will be harmed from a change in custody because she
has lived and bonded with [non-parents] cannot constitute the substantial harm required to prevent the
parents from regaining custody.” In re Adoption of A.M.H., 215 S.W.3d 793, 812 (Tenn. 2007).
19
“[a] parent‟s obligation to support his or her child exists regardless of a court order
requiring the parent to pay support.” See In re Jacobe M.J., 434 S.W.3d 565, 572 (Tenn.
Ct. App. 2013) (quoting Tenn. Code Ann. § 36-1-102(1)(H)). Furthermore, “[e]very
parent who is eighteen (18) years of age or older is presumed to have knowledge of a
parent‟s legal obligation to support such parent‟s child or children.” Id.
Father also testified, however, that he had repeatedly asked Mother to allow him to
have custody of the Children through the years so that he could take care of them and
provide for their needs. Father stated that Mother instead chose to send the Children to
live with Grandfather, at times without Father‟s knowledge.5 Father testified that he
earned an income of approximately $60,000 per year and was capable of providing for all
of the Children‟s needs. Furthermore, it is undisputed that Father provided for the needs
of the Children during their visits with him, some of which lasted longer than one month.
Grandfather acknowledged that he felt “confident” that the Children were well cared for
when they were with Father. Father also testified that he purchased clothing, toys, and
gifts for the Children that Grandfather refused to allow the Children to take to
Grandfather‟s home.
Father admitted that part of his reluctance to pay child support to Grandfather was
because Grandfather thwarted his attempts to visit the Children and referred to Father as a
“sperm donor.” During his testimony, Grandfather acknowledged that there had been
times when Father had asked to see the Children but Grandfather refused his requests.
Although Grandfather‟s behavior does not justify Father‟s non-payment of child support,6
it does negate Grandfather‟s and Mother‟s assertions that Father “abandoned” the
Children or would fail to support the Children if they were in his custody. Father has
demonstrated through the years that he is competent to provide for the Children while
they are in his care. Father has also demonstrated a consistent desire to spend time with
the Children when allowed to do so. Thus, Father‟s past failure to pay child support,
standing alone, is insufficient to establish substantial harm.
With regard to Father‟s work schedule, the trial court stated that Father‟s two-
week-on, two-week-off schedule “essentially requires the Court to choose between the
maternal grandfather and the paternal great-grandmother whom the Father has indicated
would care for the children while he was working on the oil rig.” The court made this
5
Father reported that when Mother returned the Children to Grandfather‟s physical custody in April 2014,
Father was not informed and was unable to locate Mother or the Children until he contacted the local
sheriff‟s department.
6
“Under well-recognized principles of Tennessee law, the obligation of support and the right of visitation
are both intended for the benefit of the child, and the two are not interdependent.” Rutledge v. Barrett,
802 S.W.2d 604, 607 (Tenn. 1991).
20
finding despite Father‟s testimony that he was willing to seek full-time employment in
Louisiana if the Children were placed in his care and despite the substantial support
system that Father and the Children would enjoy due to the presence of the paternal
grandmother and great-grandmother. Grandfather acknowledged that he related well to
Father‟s family and offered no concerns about their influence on the Children.
Grandfather also admitted that the Children always enjoyed their co-parenting time with
Father and his family. We therefore determine that a finding of substantial harm is not
supported by clear and convincing evidence.
Furthermore, Father testified that he had excellent medical and dental insurance
through his employer that would be available to the Children. Father stated that although
he had attempted to have the Children added to his medical insurance coverage, he was
unable inasmuch as Grandfather would not provide copies of the Children‟s birth
certificates. Father testified that while he was prepared to purchase a home for himself
and the Children, his grandmother‟s home provided plenty of room for everyone in the
meantime. According to Father, he and the Children maintained a strong bond and the
Children became extremely upset when it was time to leave him. Father also testified
that Grandfather limited his contact with the Children via telephone and that the Children
reported that they would “get in trouble” if they asked to call Father or send him mail. It
was undisputed that in recent years, Grandfather refused Father‟s requests for additional
visitation, even though Grandfather acknowledged that Father loved the Children and that
the Children loved Father and enjoyed their time with him.
It is also noteworthy that Mother and Grandfather presented no evidence regarding
any history of drug abuse, alcohol abuse, or criminal behavior by Father. At the final
hearing, Mother testified that Father had physically pushed her when she was pregnant
with K.S. and committed some other prior act of assault. Father testified, however, that it
was actually Mother who assaulted him, which precipitated his leaving Tennessee and
returning to Louisiana. Mother acknowledged that she had been charged with domestic
assault approximately three years before trial. The trial court made no findings regarding
this testimony. Rather, the court focused its analysis on Father‟s past nonpayment of
support and his employment schedule.
Based on the totality of the evidence, we determine that Mother and Grandfather
did not clearly and convincingly establish that the Children would be exposed to a risk of
substantial harm if they were placed in Father‟s care. See Elmore, 173 S.W.3d at 451;
Ray, 83 S.W.3d at 736-738. We conclude that the trial court erred by granting primary
custody of the Children to Grandfather, who is a non-parent. We therefore reverse the
trial court‟s award of custody to Grandfather and remand this matter for a hearing
regarding whether a material change in circumstance has occurred since the initial
custody award and whether modifying the designation of primary residential parent from
21
Mother to Father is in the Children‟s best interest. See Muhonen, 2015 WL 740667, at
*5-6. The court should also establish an appropriate permanent parenting plan, to include
the proper amount of child support to be awarded pursuant to the applicable guidelines,
such child support issue having been reserved in the 2010 “Order Establishing
Parentage.”
VI. Name Change
Father asserts that the trial court erred by refusing to change the Children‟s
surnames from “Smith” to “Vinson” in accordance with the earlier parentage order.
Father relies upon the doctrine of collateral estoppel, arguing that the earlier order had
become final prior to the instant proceedings. Mother and Grandfather assert that the
parentage order upon which Father relies merely provided that Father could change the
Children‟s surnames, which task Father failed to accomplish. We note that inasmuch as
the 2010 parentage order reserved the issue of child support, it was not a final order. See
Tenn. R. App. P. 3(a); In re Estate of Henderson, 121 S.W.3d 643, 645 (Tenn. 2003)
(explaining that a final judgment is “one that resolves all the issues in the case, „leaving
nothing else for the trial court to do.‟”) (quoting State ex rel. McAllister v. Goode, 968
S.W.2d 834, 840 (Tenn. Ct. App. 1997)). Therefore, the doctrine of collateral estoppel
does not apply. See Glass v. SunTrust Bank, No. W2010-02527-COA-R3-CV, 2011 WL
3793495, at *1 (Tenn. Ct. App. Aug. 26, 2011).
Mother and Grandfather further posit that a court should not change a child‟s
surname unless such change promotes the child‟s best interest. See Halloran v. Kostka,
778 S.W.2d 454, 456 (Tenn. Ct. App. 1988) (“[I]n making a decision such as this that
will impact on a child‟s life, paramount consideration must be given to what is in the best
interest of the child, and the rights of the parents must yield to that concern.”). Although
the trial court in its final order briefly addressed the best interest of the Children with
regard to changing their surnames, we determine that this issue should be revisited by the
trial court upon remand in connection with the court‟s analysis of whether a material
change in circumstance has occurred. We therefore vacate the trial court‟s determination
regarding changing the Children‟s surnames and remand this issue for further hearing,
including presentation of proof regarding the best interest of the Children relative to this
issue.
VII. Retroactive Child Support
Finally, Grandfather argues that the trial court erred by failing to order Father to
pay retroactive child support. Although Grandfather sought retroactive support in his
pleadings, the trial court specifically found in its final order that no retroactive support
would be awarded. Based upon this Court‟s reversal of the award of custody to
22
Grandfather, we affirm the trial court‟s denial of an award of retroactive child support to
Grandfather. We conclude that it would be inappropriate to award Grandfather
retroactive child support in this instance.
VIII. Conclusion
For the foregoing reasons, we reverse the trial court‟s award of primary custody of
the Children to Grandfather. We remand this matter for a hearing regarding whether a
material change in circumstance has occurred since the initial custody award and whether
modifying the designation of primary residential parent from Mother to Father is in the
Children‟s best interest. Upon remand, the court should also establish an appropriate
permanent parenting plan, to include the proper amount of child support to be awarded
pursuant to the applicable guidelines, such child support issue having been reserved in the
2010 “Order Establishing Parentage.” We also remand for reconsideration of whether it
is in the best interest of the Children to change their surnames. We affirm the denial of
retroactive child support to Grandfather. This matter is remanded to the trial court for
further proceedings consistent with this opinion. Costs on appeal are assessed to the
appellee, Richard Smith.
_________________________________
THOMAS R. FRIERSON, II, JUDGE
23