Dwight Morisch v. Ryann Maenner - Dissent

03/23/2021
IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs November 2, 2020
DWIGHT MORISCH v. RYANN MAENNER ET AL.
Appeal from the Juvenile Court for Haywood County
No. 9924 J. Roland Reid, Judge
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No. W2020-00362-COA-R3-JV
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Carma Dennis McGee, J., dissenting.
Respectfully, I must dissent from the majority’s decision to reverse the trial court’s
order granting visitation to the grandfather in this case. At the outset, I emphasize that the
scope of this appeal is very narrow. On appeal, Mother raised only the issues of whether
she had opposed visitation and whether Grandfather had proven that severance of the
relationship with the child would occasion substantial harm to the child.1
As the majority opinion correctly states, grandparent visitation is governed by
Tennessee Code Annotated section 36-6-306, which predicates a right to visitation on not
only a grandparent’s visitation being opposed by the custodial parent, but alternatively
upon visitation having been “severely reduced.” Tenn. Code Ann. § 36-6-306(a) (emphasis
added). It is the severe reduction which I submit was found by the trial court in this case,
and subsequently not raised on appeal by Mother. The majority concludes that Grandfather
did not allege that his visitation with Chevy had been severely reduced. That is a premise
with which I cannot agree. Although Grandfather’s petition is not artfully worded, if
liberally construed, I think it sufficiently alleges opposition to and severe reduction of
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Mother’s brief is sadly lacking. I believe it could be found that Mother presented nothing more
than a skeletal argument on appeal, causing her issues and arguments to be waived. See Sneed v. Bd. of
Prof’l Responsibility of Supreme Court, 301 S.W.3d 603, 615 (Tenn. 2010) (“It is not the role of the courts,
trial or appellate, to research or construct a litigant’s case or arguments for him or her, and where a party
fails to develop an argument in support of his or her contention or merely constructs a skeletal argument,
the issue is waived.”). Additionally, Mother’s brief fails to adequately cite authority that supports her
position. See Chiozza v. Chiozza, 315 S.W.3d 482, 489 (Tenn. Ct. App. 2009) (stating appellate courts
routinely hold that failure to cite relevant authority in accordance with Tennessee Rule of Appellate
Procedure 27(a)(7) constitutes waiver); Newcomb v. Kohler Co., 222 S.W.3d 368, 401 (Tenn. Ct. App.
2006) (stating that the failure to cite authority on appeal may constitute wavier of the issues). However,
since the majority has chosen to graciously accept the brief and analyze the merits of the case, I will proceed
likewise.
visitation. The petition states, in part, “[t]hat loss or severe reduction of the relationship
has resulted or will result in severe emotional harm to the child.” (emphasis added).
The record shows that there was conflicting testimony by the parties as to whether
Mother caused the severe reduction as well as whether Grandfather made requests for
visitation with the child. When asked about the number of visits in 2019, Mother conceded
that she “allowed three visits.” It is obvious that the trial judge credited Grandfather’s
testimony, as he specifically noted the “dispute” in the testimony and then found, “[t]he
evidence preponderates in favor of petitioner’s position that he had some visits with the
child between 2014 and 2019. However, these visits were very limited in number and
duration.” The trial court also found, “Respondent mother reached out to petitioner in 2019
for him to keep the child while she attended college classes on 2 or 3 occasions.” See Kelly
v. Kelly, 445 S.W.3d 685, 692 (Tenn. 2014) (stating “appellate courts should afford trial
courts considerable deference when reviewing issues that hinge on the witnesses’
credibility”).
While the trial court credited Grandfather’s testimony in finding that he had “some
visits” between 2014 and 2019, Mother and Grandfather agree that between November
2016 and early 2019, Grandfather did not have any visits with Chevy. At trial, the court
specifically asked Grandfather whether he had visits between November 2016 and March
2019, and Grandfather responded “No.” Mother does not dispute this testimony; in fact,
she asserted that Grandfather had no visits from 2014 to 2019.
As this Court has recognized, reduction to “token visitation” qualifies as severe
reduction under the statutory scheme. Clark v. Johnson, No. E2017-01286-COA-R3-CV,
2018 WL 2411203, at *10 (Tenn. Ct. App. May 29, 2018). Further, this Court has made
clear that the reduction is not a comparison test, stating “the statutory definition does not
describe a reduction in visitation in comparison to any visitation the grandparents may have
enjoyed previously. The statutory definition of a severe reduction is ‘reduction to no
contact or token visitation as defined in § 36-1-102.’” Id. at *13 (quoting Tenn. Code Ann.
§ 36-6-306(f)). Token visitation is defined in Tennessee Code Annotated section 36-1-
102(1)(C) as visitation that “constitutes nothing more than perfunctory visitation or
visitation of such an infrequent nature or of such short duration as to merely establish
minimal or insubstantial contact with the child.” I would submit that this is exactly what
the trial court found had taken place. Any visits that Grandfather had between 2014 and
the beginning of this case were, in the trial judge’s words, “very limited in number and
duration.” Stated differently, Grandfather’s visits were “severely reduce[d]” to mere
“token visitation” that would entitle him to seek relief under the Grandparent visitation
statute. See Tenn. Code Ann. §§ 36-6-102(1)(C) and -306(a).
Further, Mother does not challenge on appeal those findings which constitute
“severe reduction.” Therefore, I would hold that she has waived the issue. See Hodge v.
Craig, 382 S.W.3d 325, 334 (Tenn. 2012) (“Appellate review is generally limited to the
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issues that have been presented for review.”).
The majority relies heavily on this Court’s ruling in Uselton v. Walton, No. M2012-
02333-COA-R3-CV, 2013 WL 3227608 (Tenn. Ct. App. June 21, 2013). In Uselton, this
Court held that opposition to a grandparent’s visitation cannot be established by a parent’s
conduct after a petition is filed “[i]f the custodial parent did not oppose grandparent
visitation before the petition for court-ordered grandparent visitation is filed,” but
recognized that “post-petition conduct by the custodial parent can be utilized only
to bolster or contradict a showing that the custodial parent opposed visitation prior to the
filing of the petition[.]” Id. at *13, *15. (emphasis added). Although Uselton was decided
prior to the amendment to the grandparent visitation statute that added the language on
“severe reduction,” this Court has since stated that “any reduction in Grandparents’
relationship with [a child] subsequent to the petition’s filing would be outside the relevant
time period for the threshold finding of a severe reduction.” Clark, 2018 WL 2411203, at
*8. The inverse of our statement in Clark should hold true; any additional visits actually
granted by a parent after a petition is filed should also be “outside the relevant time period
for the threshold finding of a severe reduction.” Id. The majority here emphasizes
Grandfather having one visit after he filed the subject petition. However, I submit that the
fact that Mother allowed only one visit between the time of the filing of the petition and
the time of trial (a period of almost eleven months) bolsters the trial court’s finding that a
severe reduction had occurred.
As the majority correctly states, we review a trial court’s findings of fact de novo
upon the record, affording the trial court a presumption of correctness unless the evidence
preponderates otherwise. Tenn. R. App. P. 13(d); In re Carrington H., 483 S.W.3d 507,
524 (Tenn. 2016); Manning v. Manning, 474 S.W.3d 252, 256 (Tenn. Ct. App. 2015). The
trial court in this case made extensive findings of fact. Consistent with the Court’s holding
in Horton v. Cooley, I do not think that there is anything in the present record to
preponderate against the trial court’s findings. See Horton v. Cooley, No. M2019-00945-
COA-R3-CV, 2020 WL 2731235, at *5 (Tenn. Ct. App. May 26, 2020) (stating “[f]or the
evidence to preponderate against the trial court’s findings, it ‘must support another finding
of fact with greater convincing effect,’ . . . and the evidence in the record does not
preponderate against the trial court’s findings. Therefore, we affirm the trial court’s
determination that Mother did not severely reduce Grandparents’ visitation with the
Child.”).
Despite the trial court’s findings regarding the other statutory requirements, Mother
raises only one remaining issue on appeal: whether Grandfather had proven that severance
of the relationship with the child would occasion substantial harm to the child. The
majority does not reach this issue. Based upon the record, I would hold that the trial court
correctly found that Grandfather “met his burden of showing a ‘danger of substantial harm
to the child’, if visitation was denied.” See Tenn. Code Ann. § 36-6-306. Therefore, for
the foregoing reasons, I would affirm the trial court’s order in this case.
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_________________________________
CARMA DENNIS MCGEE, JUDGE
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