Rebecca Webb v. Mark Thomas Webb ( 2013 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
November 18, 2013 Session
REBECCA WEBB v. MARK THOMAS WEBB
Appeal from the Chancery Court for Bedford County
No. 26910 J. B. Cox, Judge
No. M2012-02438-COA-R3-CV - Filed December 17, 2013
Father appeals the trial court’s amended judgment in this divorce action. Discerning no
error, we affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
A NDY D. B ENNETT, J., delivered the opinion of the court, in which P ATRICIA J. C OTTRELL,
M.S., P.J., and F RANK G. C LEMENT, J., joined.
Mark Thomas Webb, Wartrace, Tennessee, Pro Se.
Randall W. Morrison, Tullahoma, Tennessee, for the appellee, Rebecca Webb.
MEMORANDUM OPINION 1
F ACTUAL AND P ROCEDURAL B ACKGROUND
The protracted, acrimonious proceedings underlying this case date back to 2007.
Rebecca Webb (“Mother”) and Mark Webb (“Father”) were declared divorced by order
1
This Court, with the concurrence of all judges participating in the case, may affirm, reverse or
modify the actions of the trial court by memorandum opinion when a formal opinion would have no
precedential value. When a case is decided by memorandum opinion, it shall be designated
“MEMORANDUM OPINION,” shall not be published, and shall not be cited or relied on for any reason
in any unrelated case. Tenn. R. Ct. App. 10.
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entered July 9, 2010. As to the designation of the minor child’s primary residential parent,
the July 9, 2010 order stated, in part, that Mother “shall be awarded primary residential
parent . . . contingent upon the psychiatric evaluation of the Mother . . . .” Father appealed
and this Court dismissed the appeal without prejudice for lack of a final judgment.2 Father
then filed a petition for writ of certiorari in the United States Supreme Court. It was denied.3
On September 17, 2012, the trial court held a hearing to, among other things, set a
permanent parenting plan and clarify the child’s summer visitation schedule. The resulting
order, entered October 12, 2012, designated Mother as the “decision maker” for the child’s
“medical matters, educational matters, religious upbringing and extracurricular activities.” 4
Father, pro se, filed a notice of appeal from the October 12 order on November 5,
2012. However, on November 13, 2012, Father, through counsel, moved the court to alter
or amend its October 12, 2012 judgment to clarify the oral rulings made during the
September 17, 2012 hearing and to include the court’s ruling that Mother shall “reasonably
consult” Father as to decisions about the minor child’s healthcare, education, religious
upbringing, and extracurricular activities. Father’s counsel also moved to withdraw.
On February 11, 2013, this Court cited Father’s pending motion to alter or amend and
ordered him to obtain a final order from the trial court within sixty days. The trial court
heard Father’s motion to alter or amend and, by order entered June 7, 2013,5 amended its
October 12, 2012 judgment to, inter alia:
Grant Father parenting time every other weekend during the school year;
Grant both parties alternating summer weeks, two uninterrupted weeks per
summer (with thirty days notice to each other), and alternating holidays with
the child;
Designate Mother as decision maker about the child’s healthcare, education,
religious upbringing, and extracurricular activities, and order Mother to
2
See Webb v. Webb, No. M2010-01714-COA-R3-CV, 2012 WL 274191 (Tenn. Ct. App. Jan. 30,
2012).
3
See Webb. v. Webb, 133 S. Ct. 848 (2013).
4
See Tenn. Code Ann. § 36-6-404(a)(5).
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The trial court specified that “[t]o the extent that this order conflicts with previous orders of the
Court in this matter, the provisions of this order shall control.”
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reasonably consult with Father beforehand about such decisions;
Specify that, except for brief out-of-state weekend trips and the uninterrupted
two-week summer vacation, Father shall not exercise out-of-state visitation
with the child prior to giving Mother thirty days notice and obtaining her
approval, which she shall not unreasonably withhold; and
Relieve Father’s trial counsel from further representation.
By separate order entered the same day, the trial court designated Mother as primary
residential parent, approved her psychological evaluation, and found that she “no longer
suffers from a depressive mental disorder and she can effectively parent the parties’ minor
child” and that it is in the child’s best interest for Mother to be his primary residential parent.
Father appeals.
ISSUES
On appeal, Father seems to assign error to the trial court’s designation of Mother as
decision maker for the minor child and the trial court’s findings based on Dr. Harry Steuber’s
psychological evaluation of Mother. The rest of his assertions do not pertain to the order
appealed from. In granting Father’s motion to alter or amend, the trial court explicitly
replaced its previous orders, including the one entered following the September 2012
hearing. Furthermore, Father’s trial counsel drafted the final June 7, 2013 amended
judgment.
Mother asks us to consider whether Father’s pleadings should be heard due to
violation of Tenn. R. Ct. App. 9; whether the trial court abused its discretion in approving
the psychological evaluation; and whether Mother is entitled to her reasonable attorney fees
on appeal.
S TANDARD OF R EVIEW
Because “‘the details of custody and visitation with children are peculiarly within the
broad discretion of the trial judge,’” we review such issues for an abuse of discretion.
Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001) (quoting Suttles v. Suttles, 748 S.W.2d
427, 429 (Tenn. 1998)). An abuse of discretion occurs “only when the trial court’s ruling
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.” Id. at 88.
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A NALYSIS
We begin by addressing Mother’s threshold issue. Tennessee Rule of Appellate
Procedure 27(a)(7)(A) requires the appellant to include in the brief an argument setting forth
“the contentions of the appellant with respect to the issues presented, and the reasons
therefor, including the reasons why the contentions require appellate relief, with citations to
the authorities and appropriate references to the record . . . .” As Mother argues, Father’s
briefs fall far short of meeting this basic requirement because they are replete with non-
issues6 and “broad, disrespectful allegations[ 7 ] that do not allow [this Court] to address any
real issue in this case.” Mother contends that Father’s briefs should be stricken in accordance
with Tenn. R. Ct. App. 9.8 We are not unsympathetic to Mother’s arguments, but we are also
mindful that pro se litigants such as Father “are entitled to fair and equal treatment,”
Whitaker v. Whirlpool Corp., 32 S.W.3d 222, 227 (Tenn. Ct. App. 2000), and we seek to
resolve this case on its merits. See Tenn. R. App. P. 1; Johnson v. Hardin, 926 S.W.2d 236,
238 (Tenn. 1996).
Father argues that Mother should not have sole decision-making authority regarding
their son’s education, religion, medical treatment, and extracurricular activities.
Undoubtedly, the child’s best interests will be served if these decisions can be made without
undue delay and stress and, in this case, ample evidence shows that the parties sharply
disagree over these decisions, particularly whether the child should attend a Baptist or a
nondenominational secondary school. “[W]here the parents are unable to agree on matters
of great importance to the welfare of their minor children, the primary decision-making
authority must be placed in one parent or the other.” Coley v. Coley, No. M2007-00655-
COA-R3-CV, 2008 WL 5206297, at *7 (Tenn. Ct. App. Dec. 12, 2008). Based on the record
before us, we must conclude that joint decision-making, requiring the assent of both parents,
is not in the child’s best interest. Mother is the primary residential parent,9 so she
appropriately holds the authority to make major decisions for the child. We find no abuse
6
e.g., “WHO IS FINANCING THIS UNRELENTING ATTACK AGAINST APPELLANT BY
APPELLEE?”
7
Among other things, Father alleges that the trial judge is “consumed with paranoia” and that his
rulings and orders are vindictive, frivolous, unconscionable, biased, discriminatory, and made in
collusion with Mother’s trial counsel.
8
Rule 9 of the Court of Appeals of Tennessee provides that “[a]ny brief or written argument
containing language showing disrespect or contempt for any court of Tennessee will be stricken from the
files, and this Court will take such further action relative thereto as it may deem proper.”
9
Father does not challenge the designation of Mother as primary residential parent.
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of discretion in the trial court’s ruling that, after reasonable consultation with Father, Mother
has the final decision-making authority for education, religion, medical treatment, and
extracurricular activities.
In accordance with this Court’s mandate following Father’s first appeal, the trial court
considered Dr. Steuber’s evaluation of Mother before designating her primary residential
parent. Father takes issue with the fact that a psychologist, not a psychiatrist (as specified
in the trial court’s July 9, 2010 order), performed Mother’s mental evaluation, but fails to
state what, if any, import this distinction has. In its final order appointing Mother primary
residential parent, the court specified that at the time it ordered Mother’s evaluation it
“believed that Dr. Steuber was a psychiatrist, however, he was and is, in fact, a Ph.D.
Licensed Clinical Psychologist.” Based upon Dr. Steuber’s report, the trial court found that
“although Dr. Steuber is not a psychiatrist, he was well qualified by education and training
to do the evaluation and protect the best interest of the minor child.” Father offers no
evidence, and we find none in the record, indicating that the trial court erred in considering
the psychologist’s report or abused its discretion in approving the report, finding Mother can
effectively parent the child, and finding that her designation as primary residential parent
serves the child’s best interest.
C ONCLUSION
We affirm the trial court’s first amended judgment and order appointing Mother
primary residential parent in their entirety. Applying our discretion, we respectfully decline
Mother’s request for attorney fees on appeal. Costs of appeal are assessed against the
appellant, Mark Thomas Webb, for which execution may issue if necessary.
_________________________
ANDY D. BENNETT, JUDGE
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