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 ...