Shelby Circuit No. 149530-8 R.D.
The opinion of the court was delivered by: W. Frank Crawford, Presiding Judge, W.s.
FROM THE SHELBY COUNTY CIRCUIT COURT THE HONORABLE D'ARMY BAILEY, JUDGE
CONCUR: ALAN E. HIGHERS, JUDGE DAVID R. FARMER, JUDGE
This appeal involves a petition to modify child custody. Respondent-Appellant, Erin Blanding Bingham (Mother), appeals from the order of the trial court granting the petition to modify custody filed by Petitioner-Appellee, Thomas Gregory Townshend (Father).
The parties were married on April 18, 1992. Father is currently a refrigeration repairman, and Mother is currently unemployed having only a very sporadic employment history. Mother has been diagnosed as having a bipolar disorder. The parties' only child, Caitlin Frances Townshend, was born January 22, 1993. After approximately four years of marriage, the parties were divorced by final decree entered March 12, 1996. The final decree of divorce incorporated a Marital Dissolution Agreement which, inter alia, granted custody of the parties' minor child to Mother and granted Father reasonable visitation.
On November 6, 1996, Father filed a Petition for Contempt, to Modify Final Decree of Divorce and for Immediate Injunction. In this petition, Father requested, inter alia, that he be granted specific visitation because Mother had prevented him from visiting the minor child and Mother did not want him to have any contact with the minor child for a year. Mother subsequently filed an answer to the petition. On November 13, 1996, Father filed a Petition for Temporary Emergency Custody and to Modify Custody asserting that a material change in circumstances has occurred warranting that custody be changed.*fn1 The petition specifically alleges that Mother was using cocaine in the presence of the minor child and had taken the minor child to the home of one of Mother's friends who is a professional dominatrix.
On November 22, 1996, the trial court appointed a guardian ad litem to represent the child's interests. An evidentiary hearing was held on April 11, 1997, and an order was entered on April 22, 1997 granting emergency temporary custody to Father. On November 5, 6, and 10, 1997, a further evidentiary hearing was held, and on December 17, 1997, an order was entered changing custody of the minor to Father. The order also required Father to pay $1,000.00 of the guardian ad litem fee and Mother to pay $500.00 of the fee, and provided for each party to be responsible for their own attorney's fees.
Mother has appealed and presents the following issues, as stated in her brief, for our review:
"(1) Whether the trial court used the proper standard of review to change custody of the minor child to the father. "(2) Whether the preponderance of the evidence supports the trial court's decision to change custody of the minor to the father. "(3) Whether the trial court erred in refusing to allow the attorney for the mother to adequately explore the extent of the multiple personality disorder of Patricia Clay, a key witness against the mother. "(4) Whether the trial court erred in considering the report of the guardian ad litem."
In his brief, Father raises the issues of whether Mother's appeal is frivolous and whether the trial court erred in not awarding him any attorney's fees and in ordering him to pay two-thirds of the guardian ad litem fee.
Since this case was tried by the trial court sitting without a jury, we review the case de novo upon the record with a presumption of correctness of the findings of fact by the trial court. Unless the evidence preponderates against the findings, we must affirm, absent error of law. T.R.A.P. 13(d). This presumption applies in child custody cases. Hass v. Knighton, 676 S.W.2d 554, 555 (Tenn. 1984).
We will consider Mother's first two issues together.
The petition to modify custody filed by Father was prompted primarily by allegations on the part of Patricia Clay that Mother was using drugs in the presence of the minor child and that Mother had shackled the minor child to a sleeper sofa while at Clay's apartment on November 4, 1996. Mother vehemently denies these allegations of drug use and shackling, but admits that she did visit Clay, who she knew to be a professional dominatrix, with the minor child and allowing the child to "play" with Clay's "tools of the trade."
Mother contends that the allegations by Clay are false and prompted by Clay's vindictiveness towards Mother due to allegations by Clay that Mother stole approximately $400.00 from Clay when she came to visit Clay on November 4, 1996. Mother admits that she and the minor child went to visit Clay, who has a multiple personality disorder, on November 4, 1996. She admits that Clay was intoxicated at the time. She further admits that she knew Clay was a professional dominatrix and that Clay's "tools of the trade" were lying around Clay's apartment. It is also undisputed that the minor child was "playing" with the various items used by Clay as a dominatrix. Mother denies that she went to Clay's to smoke crack cocaine and denies that she shackled the minor child to the sleeper sofa so she could use the drug. She states that the minor child had inquired as to what the handcuffs were used for and that she told her that the police use them to "keep bad people from getting away." She further states that she did place one end of the handcuffs around the minor child's wrist and the other end around her own, but released the handcuffs soon after.
It is also undisputed that on November 4, 1996, Clay subsequently passed out on the sofa sleeper and that the minor child fell asleep on the sofa sleeper. Some time afterward, Joe Phillips, an acquaintance of both Mother and Clay, came over to Clay's apartment. Phillips, Mother, and the minor child left Clay's apartment some time that evening while Clay was still passed out on the sofa sleeper. Mother left a note for Clay and took a small amount of marijuana according to Clay ...