Pritchett v. Pritchett

COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE FILED
April 28, 1998
VICKIE GALE PRITCHETT, ) C/A NO. 03A01-9708-CH-00362 Jr.
Cecil Crowson,
) Appellate C ourt Clerk
Plaintiff-Appellee, )
)
)
)
v. ) APPEAL AS OF RIGHT FROM THE
) SULLIVAN COUNTY CHANCERY COURT
)
)
)
)
DENNIS DAY PRITCHETT, )
) HONORABLE RICHARD E. LADD,
Defendant-Appellant.) CHANCELLOR
For Appellant For Appellee
THOMAS R. BANDY, III NAT H. THOMAS
Kingsport, Tennessee Kingsport, Tennessee
O P I N IO N
AFFIRMED AND REMANDED Susano, J.
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In this divorce case, the defendant, Dennis Day
Pritchett (“Father”), appealed. He raises issues pertaining to
custody, child support, and visitation. Those issues present the
following questions for our consideration:
1. Did the trial court err in awarding the
plaintiff, Vickie Gale Pritchett (“Mother”),
custody of Brandon Scott Pritchett and Jeremy
Tyler Pritchett?
2. Did the trial court err in refusing to
deviate from the Child Support Guidelines?
3. Did the trial court err in failing to
direct the parties to meet at a point
generally halfway between their residences to
exchange their minor children in connection
with visitation?
Prior to the parties’ marriage on May 5, 1990, Mother
was a widow with two children -- Jason and Brandon. As a
consequence of the death of her first husband, Wife receives a
monthly payment from the Social Security Administration for the
benefit of these two children.
Following the parties’ marriage, Father adopted Jason
and Brandon. The adoption had no effect on the children’s Social
Security entitlement. At the time of trial, the children’s
combined monthly Social Security payment was $1,712. Each of the
children will be entitled to a monthly benefit at least until the
age of majority.
Jeremy Tyler Pritchett was born to the parties on March
19, 1993. At the time of trial, his half-brothers, Jason and
Brandon, were age 16 and 12, respectively.
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Our review is de novo on the record of the proceedings
below. Rule 13(d), T.R.A.P. That record comes to us with a
presumption of correctness that we must honor “unless the
preponderance of the evidence is otherwise.” Id. See also Hass
v. Knighton, 676 S.W.2d 554, 555 (Tenn.App. 1983). There is no
presumption of correctness as to the trial court’s conclusions of
law. Ganzevoort v. Russell, 949 S.W.2d 293, 296 (Tenn. 1997).
Father argues that the evidence preponderates against
the trial court’s implicit finding that the best interests of
Brandon and Jeremy dictate that their custody should be with
Mother.1 We do not reach Father’s issue with respect to his
adopted son, Brandon. This is because the record is replete with
references to the fact that Father was only seeking custody of
his natural child, Jeremy. For example, during the course of his
cross examination of Mother, Father’s counsel told the court that
“we’re not seeking custody of the two adopted children.” During
his direct examination of Father, the same counsel posed the
following question: “[W]hy do you want custody of Jeremy?”
(Emphasis added). He did not ask the same question with respect
to Brandon. There is nothing in the record even remotely
suggesting a request for Brandon’s custody.
Our jurisdiction is appellate only. T.C.A. § 16-4-
108(a)(1). We review issues that were properly raised and
litigated in the trial court. Irvin v. Binkley, 577 S.W.2d 677,
679 (Tenn.App. 1978). Issues cannot be raised for the first time
1
Father did not seek the custody of Jason at trial and does not seek his
custody on this appeal. The record suggests that Jason has indicated a desire
to live with Mother.
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on appeal. Atkins v. Kirkpatrick, 823 S.W.2d 547, 551 (Tenn.App.
1991); Airline Construction, Inc. v. Barr, 807 S.W.2d 247, 264
(Tenn.App. 1990). Furthermore, a party will not be permitted to
advance a position on appeal when that party has argued a
contrary position at trial. Little v. Paduch, 912 S.W.2d 170,
174 (Tenn.App. 1995).
Father’s position in the trial court was that he did
not seek the custody of either of his adopted children. We will
not permit him to change his position on appeal, and thereby
attempt to cast the trial court in error for not doing something
that it was never asked to do.
On the subject of the parties’ natural child, Jeremy,
we do not find that the evidence preponderates against the trial
court’s decision to award his custody to Mother. We have
carefully considered all of the evidence in light of the factors
set forth in T.C.A. § 36-6-106 and the comparative fitness test
first pronounced as such in Bah v. Bah, 668 S.W.2d 663, 666
(Tenn.App. 1993). On balance, we find more than sufficient
evidence to justify the trial court’s decree. The issue of
custody addresses itself to the sound discretion of the trial
court. Grant v. Grant, 286 S.W.2d 349, 350 (Tenn.App. 1954). We
find no abuse of that discretion in the trial court’s award of
Jeremy’s custody.
The trial court set Father’s child support obligation
in strict compliance with the Child Support Guidelines
promulgated by the Department of Human Services pursuant to the
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provisions of T.C.A. § 36-5-102(e). Father argues that a
deviation downward is justified in view of the fact that Mother
receives a Social Security benefit of $1,712 per month for his
adopted children -- a benefit directly tied to the death of their
natural father.
We find no basis in the Child Support Guidelines for a
deviation downward in this case. See Tenn.Comp.R. & Regs., ch.
1240-2-4-.04. See also Jones v. Jones, 930 S.W.2d 541, 545
(Tenn. 1996). The children’s Social Security benefit is totally
unrelated to Father. The Child Support Guidelines are based on
an underlying assumption that children of divorce are entitled to
the benefit of a certain percentage of the obligor parent’s
income. See Tenn.Comp.R. & Regs., ch. 1240-2-4-.02(2)(e) and ch.
1240-2-4-.03. See also Nash v. Mulle, 846 S.W.2d 803, 804-05
(Tenn. 1993). Generally speaking, this is true regardless of
other sources of income, support or monies that may be available
to those children. The evidence does not preponderate against
the trial court’s decision not to deviate from the support
dictated by a strict application of the Child Support Guidelines.
Finally, Father agues that the trial court erred in
failing to order the parties to exchange their children for
visitation at a halfway point between the parties’ respective
residences in Kingsport and Thomasville, North Carolina.
Issues pertaining to visitation also address the sound
discretion of the trial court. Suttles v. Suttles, 748 S.W.2d
427, 429 (Tenn. 1988). We will not disturb a trial court’s
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judgment on this subject except on a showing of an abuse of
discretion. Id. We find no such abuse in this case.
The judgment of the trial court is affirmed. Costs are
taxed to the appellant and his surety. This case is remanded to
the trial court for enforcement of that court’s judgment and
collection of costs assessed below, all pursuant to applicable
law.
__________________________
Charles D. Susano, Jr., J.
CONCUR:
________________________
Houston M. Goddard, P.J.
________________________
Herschel P. Franks, J.
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