Ferrell v. Ferrell ( 1999 )

FILED
November 17, 1999
Cecil Crowson, Jr.
Appellate Court Clerk
IN THE COURT OF APPEALS AT NASHVILLE
GINGER ASHLEY FERRELL, ) C/A No. M1998-00214-COA-R3-CV
) DAVIDSON COUNTY
Respondent/Appellee, ) Circuit
No:
) 92D-1927
)
v. )
)
)
FRANKIE DEWAYNE FERRELL, )
)
Petitioner/Appellant. )
)
)
APPEALED FROM THE SECOND CIRCUIT COURT OF DAVIDSON COUNTY
THE HONORABLE MARIETTA M. SHIPLEY, JUDGE
No Brief Filed By Respondent/Appellee
Connie Reguli
353 Wimpole Drive
Nashville, TN 37211
Attorney for Petitioner/Appellant
REVERSED AND REMANDED
Houston M. Goddard, Presiding Judge
CONCUR:
FRANKS, J.
CAIN, J.
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O P I N I O N
This case concerns issues presented by the
Father/Appellant, Frankie Dewayne Ferrell, in his petition to
change custody of his two minor children from the
Mother/Appellee, Ginger Ashley Ferrell. We note that although
the Mother was represented by counsel at trial, she did not
file a brief on appeal.
Although the Father enumerates several issues in his
brief, all of them pertain to the overarching issue of whether
the Trial Court erred in allowing the Mother to retain custody
of the two children. He also raises a collateral issue of
attorney’s fees for the “prevailing” party under Tennessee
Code Annotated § 36-5-103(c) in a change of custody case.
We reverse the judgment of the Trial Court and award
sole custody of both minor children to the Father and remand
to the Trial Court for imposition of a supervised visitation
plan for both children with the Mother.
The parties were divorced on October 14, 1992. Two
children were born of the marriage, Mandy and Joey, who were
ages eight and fifteen, respectively, at the time of the
change of custody hearing. The Marital Dissolution Agreement
awarded the Mother sole custody and control of both children
at the time of the divorce.
On April 21, 1998, the Father filed a petition for
change of custody, alleging a material change in circumstances
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had occurred since the entry of the final decree. The change
was that both children had come to live with him since the
divorce decree was entered, the Mother had sought only limited
visitation with both children since they had lived with the
Father, and the Mother had failed to provide child support for
both children. 1
During the change of custody hearing, the Father
testified that he was seeking a change of custody also for
medical reasons. He explained that Mandy became ill while
living with him, and the Mother “had full custody of both
kids, from a legal standpoint, and she was the only one that
could, basically, take them to the doctor, or if any kind of
emergency came up, she was the only one that had legal custody
to do that.”
Since May 1994, Mandy has resided with the Father
because of an alleged incident of sexual abuse by an adult
male friend of the Mother. Joey Farrell has resided with his
Father since January 1996. The Father testified that he
brought Joey to his home in January 1996 after he had been
contacted by Wright Middle School and informed that Joey was
not attending school. The decision for Joey to live with the
Father was a mutual one between the Father and the Mother.
On June 22, 1998 an order was entered suspending the
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Mother’s visitation with her daughter Mandy based upon a
letter to the Court by the counselor. In this same order,
the Judge appointed a guardian ad litem, asked him to visit
the homes of both the Mother and the Father, and report his
findings at the hearing on July 28, 1998.
The Father has been remarried for five years, and
his wife’s three children live in the home with his wife and
him. He has been employed in the same job for fifteen years.
The Father admitted to having a confrontation with
Joey over an incident involving drugs and told the Court that
his entire family was in counseling. The Father has had Joey
submit to drug screenings in an attempt to stop his abuse of
drugs. The Father expressed his belief that Joey would only
conform to rules long enough to get what he wanted.
The Father acknowledged that he was disturbed by the
Mother’s behavior. He testified that Joey had smoked
marijuana and that Joey told him that he had gotten the
marijuana from his Mother. Some of the Father’s other
complaints about the Mother were that she had lived at
numerous locations and had been evicted several times; she
currently did not have her own place to live, but instead
lived with her brother-in-law; she worked nights and thus,
could not properly supervise Joey; she did not have health
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insurance and did not have a car; and she had lived with her
husband, who had an inconsistent work history, for several
years and had gotten married just before the hearing on the
petition to change custody.
Moreover, the Father felt that the sexual abuse of
Mandy was the result of the Mother’s negligence and that Joey’s
poor attendance record at school was due to her failure to
supervise Joey.
The Father also complained that before the hearing
on the petition for change of custody and without notifying
him, the Mother picked Joey up and took him to her home. She
apparently refused to allow Joey to visit with the Father, so
the Father filed a motion to set a visitation schedule.
According to the Father, Joey exhibited behavioral changes
during his stay with his Mother: he burned a gang symbol into
his skin; he had been with someone who stole a car; and he
changed his appearance by wearing baggy pants and by shaving
his eyebrows and his head.
The Mother testified that she had intended to get
her name on the lease of the apartment she lived in, while
admitting that she had lived at as many as nine different
addresses in six years and had been sued for eviction three
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times. In response to the Father’s concern that she did not
have a car, she stated that she had purchased a car. She
admitted that she got married just before her appearance in
Court for the change of custody hearing and that her husband
had an inconsistent work history.
The Mother further admitted to a thirteen-year
history of using marijuana. She also admitted that when Joey
and Mandy were younger she left them home alone with a man she
had known only a couple of weeks and that Mandy was sexually
abused by the man.
Mother testified that if Joey smoked cigarettes in
her home, she was not there when it happened. She stated that
she did not smoke marijuana in front of Joey, but did admit
that he may have walked by the room she was in while she was
smoking it. She further stated that if Joey used marijuana
at her home, she would drug test him frequently and would get
him counseling. However, she admitted that she had never
taken Joey for a drug test or for counseling.
Witnesses other than the parties testified as
follows:
LISA BARNEY
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She is a friend of Joey’s. She was frequently in
the home of the Mother and that she had seen the Mother smoke
marijuana about every weekend and that Joey was present during
this time. She had seen Joey smoke cigarettes in front of the
Mother. The Mother had allowed her to spend the night at her
home while Joey was there and that she and Joey had sexual
relations in the Mother’s home.
JOHNNY MYERS, BY DEPOSITION
Johnny Myers, the husband of the Mother, was
unemployed at the time of his deposition on June 4, 1998. He
acknowledged that he had earned $5,842 in 1995, $13,655 in
1996, and $1,738 in 1997. He did not have a driver’s license
and had not had a valid driver’s license for over two years.
He and the Mother had lived together for
approximately four years and did not get married until she was
scheduled to appear in court on the petition to change
custody. He had seen the Mother smoke marijuana on more than
one occasion in their home and within the last year, stating
that she would smoke about once a month. He acknowledged that
he had seen Joey smoke cigarettes and that the Mother had
caught Joey smoking cigarettes.
He and the Mother had lived with his brother, Thomas
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Myers, for about a year. He identified eight addresses at
which the Mother had resided during the last five years. When
Joey was at the residence, he slept in the family room.
Furthermore, he believed Joey was able to supervise himself
and thus, could be left alone in the evening.
THOMAS MYERS, BY DEPOSITION
The Mother had resided with Thomas Myers for
approximately one year at the time of the trial. His
daughter, Erin, had also lived in the home, and she attended
only thirty days of school the previous year. Her boyfriend,
Devon, had been suspended from school under the zero tolerance
program for having marijuana and a knife in his car at school.
Devon had spent the night in the home with Erin. Thomas Myers
had seen the Mother smoke marijuana in the home more than
once, and Johnny Myers had also smoked marijuana. He had seen
Joey smoke cigarettes in the home.
The Trial Court entered a Memorandum Opinion and
Parenting Plan on August 3, 1998. The Court noted that the
guardian ad litem recommended that Joey live with his Mother
during the week and his Father on the weekends because that is
a time “when he is most prone to get into trouble.” The
Court set out a list of guidelines in the parenting plan,
which included maintaining a minimum grade point average of
80; participating in court-ordered drug screenings; attending
school everyday; showing respect to his teachers, parents, and
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stepparents; observing a curfew; refraining from smoking
cigarettes; and not altering his body with tattoos or body
piercing. If the guidelines were not met, the Court stated
that the Father could file a Motion for an Immediate Change of
Residential Provisions.
An order was also entered on August 3, 1998 ordering
Joey and his Mother to submit to drug screenings at the
General Sessions Probation office.
On August 13, 1998, the Father filed a Motion to
Alter or Amend the Judgment. Some of his allegations were
that the Court had punished him by setting the same guidelines
on the child as he had set and then placing the child with the
Mother and that the Father had been the primary caregiver.
The Father further asked the Court to make the Mother provide
proof that she had changed her employment schedule and had
added her name on the lease of the apartment in which she
resided. The Father asked that, in the alternative, the Court
to make an immediate change of custody if any infractions
occurred in the guidelines.
On September 25, 1998, the Father filed a Motion for
Immediate Change of Custody because the Mother failed to
appear for her drug screenings, and on October 2, 1998, the
Father filed a Motion for Immediate Change of Custody because
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Joey had violated his curfew. On October 7, 1998, the Court
entered an Order on the Motion to Alter or Amend the Judgment,
which left the Parenting Plan in place and ordered Joey to
follow the guidelines imposed by the Trial Court.
On October 13, 1998, the Father filed a supplement
to his Motion for Immediate Change of Custody. The Mother had
missed another drug screening and had failed to provide the
Court with a copy of Joey’s report card. On October 19, 1998,
the Court filed the notices from the General Sessions
Probation office that the Mother had failed to appear for drug
screenings on two previous occasions, and on that same date,
the Court filed the results of a drug screening the Mother had
been asked to take the day she appeared in Court on the Motion
for Immediate Change of Custody. The results from that drug
screening showed that she was under the influence of cocaine.
The Father filed a Notice of Appeal on October 30,
1998.
The basis of the Father’s appeal is that the Trial
Court erred in allowing the Mother to retain custody of both
children. Specifically, the Father contends that the Trial
Court erred in not considering the Mother’s voluntary
relinquishment of custody and in entering an order reflecting
the change of custody that the parties had already implemented
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and that the Court erred in not making an immediate change of
custody when the Mother failed to appear for drug screens as
ordered by the Court instead of the Father filing a motion.
In a custody case, our review is de novo upon the
record accompanied by a presumption of correctness under Rule
13(d) of the Tennessee Rules of Appellate Procedure. We must
affirm, unless the preponderance of evidence is otherwise.
Hass v. Knighton, 676 S.W.2d 554, 555 (Tenn. 1984). The
noncustodial parent carries the burden to prove changed
circumstances. Musselman v. Acuff, 826 S.W.2d 920, 922 (Tenn.
Ct. App. 1991). Tennessee Code Annotated § 36-6-101(a)(1)
provides that the decree for custody “shall remain within the
control of the court and be subject to such changes or
modification as the exigencies of the case may require.”
There is no definitive rule as to what constitutes
changed circumstances. Dantzler v. Dantzler, 665 S.W.2d 385,
387 (Tenn. Ct. App. 1983). “‘Changed circumstances’ includes
any material change of circumstances affecting the welfare of
the child or children including new facts or changed
conditions which could not be anticipated by the former decree.
” Dalton v. Dalton, 858 S.W.2d 324, 326 (Tenn. Ct. App. 1993)
(citation omitted). A party’s failure to comply with a Trial
Court order regarding prohibited use of alcohol and drugs may
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result in a change of custody. Hooke v. Thompson, an
unreported opinion of this Court, filed in Nashville on
October 4, 1995.
The Father has been employed for the last fifteen
years and has been remarried for the last five years. The
record shows that the Father has had custody of his two
children for a number of years with the consent of the Mother.
The friction between the Father and Joey appears to surface
when the Father attempts to correct Joey’s errant behavior
with respect to his abuse of drugs. One has only to look at
the procedural history of this case to see the efforts of the
Father to control his son’s behavior. The Father has also
sought counseling for his entire family and has even required
his son to undergo drug screenings in an attempt to correct
his son’s behavior.
The Mother, on the other hand, admits to having
smoked marijuana over a thirteen-year period, and according to
the testimony of several witnesses during the hearing, has
smoked it in the presence of Joey. The Mother, furthermore,
has had an erratic living arrangement, having lived at
numerous addresses over a six-year period of time. In fact,
the apartment in which she currently resides is leased to her
husband’s brother, Thomas Myers. Furthermore, the record
shows that Joey, while living with his Mother, did not have a
bedroom in which to sleep, but slept instead in the family
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room. The record further shows that Joey has been allowed to
smoke cigarettes while staying with his Mother. There was
also testimony that Joey was allowed to spend the night with
female teenager while at the Mother’s residence, and that the
two teenagers had engaged in sexual relations at the Mother’s
residence. In addition, the Mother’s residence is frequented
by other teenagers who would provide a bad influence on Joey.
Finally, we are most troubled by the Mother’s
continued drug abuse. We note that the Mother and Joey both
have failed to appear for court-ordered drug screenings, and
on one occasion when the Mother was tested, the test showed
she was under the influence of cocaine.
We believe that there has been a sufficient change
in circumstances established by a preponderance of the
evidence to warrant a change in the custody arrangements. The
Father can provide a stable home environment for both Mandy
and Joey, and the record reveals that the Father has never
attempted to keep the children from visiting with the Mother.
Under Tennessee Code Annotated § 36-5-103(c), the
prevailing party in an action for a change of custody may
receive attorney’s fees. In light of our decision to award
custody of both children to the Father, the Father is awarded
his attorney’s fees.
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Based on the foregoing, we reverse the judgment of
the Trial Court and award sole custody of both children to the
Father and remand to the Trial Court for imposition of a
supervised visitation plan for both children with the Mother.
The Father is awarded his attorney’s fees, the amount of which
will be determined by the Trial Court upon remand. The case
is accordingly remanded to the Trial Court for imposition of a
supervised visitation plan, awarding of attorney’s fees and
collection of costs below, which are, as are costs of appeal,
adjudged against the Mother.
_________________________
Houston M. Goddard, P.J.
CONCUR:
_________________________
Herschel P. Franks, J.
_________________________
William B. Cain, J.
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