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Allen v. Allen

Court of Appeals of Tennessee, Jackson

March 7, 2017


          Session January 18, 2017

         Direct Appeal from the Circuit Court for Shelby County No. CT-005271-09 Donna M. Fields, Judge

         This appeal arises from the post-divorce restriction of an alternate residential parent's parenting time. The parties divorced in 2010. By agreement, the father was designated primary residential parent of the parties' two minor children. The original parenting plan gave the mother 160 days of unsupervised visitation per year, including time in the summers and on holidays. In 2014, the father filed a petition requesting that the trial court restrict mother's parenting time to supervised visitation only. Father's lawyer then approached the trial court ex parte with an affidavit of the daughter's psychologist and requested emergency relief restricting the mother's visitation. The trial judge signed a temporary injunction requiring the mother's parenting time to be supervised. When the mother attempted to set aside this injunction, the trial court ordered the mother to undergo a Rule 35 evaluation. After performing his examination of the mother, the independent Rule 35 evaluator testified that the mother was capable of caring for her children without supervision. Nevertheless, the trial court entered a final order and permanent parenting plan that substantially decreased the mother's parenting time and required it to be supervised indefinitely. The trial court also awarded the father $15, 000.00 in attorney's fees. Following a thorough review of the record, we vacate the order of the trial court restricting the mother's parenting time, reverse the trial court's order awarding the father attorney's fees, remand the case to the trial court, and necessarily reinstate the parties' original parenting plan.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Vacated in part, Reversed in part, and Remanded

          Lara E. Butler and Elizabeth W. Fyke, Memphis, Tennessee, for the appellant, Candy Rachelle Munn Allen.

          Kay Farese Turner, Memphis, Tennessee, for the appellee, Mark Antonio Allen.

          Brandon O. Gibson, J., delivered the opinion of the court, in which Arnold B. Goldin and Kenny Armstrong, JJ., joined.



         I. Facts & Procedural History

         Mark Antonio Allen ("Father") and Candy Rachelle Munn Allen ("Mother") were married on February 26, 2004. Two minor children were born of the marriage - a son, Jaison, now age 13, and a daughter, Tessa, now age 12 (collectively the "Children"). Father filed a complaint for divorce against Mother on November 10, 2009. Father and Mother were able to mediate a resolution to the issues in the divorce case, and the trial court entered a final decree of absolute divorce and an agreed permanent parenting plan on October 18, 2010 (the "Original Plan"). By agreement of the parties, the Original Plan designated Father as the primary residential parent, receiving 205 days of parenting time, and Mother as the alternate residential parent, receiving 160 days of parenting time. In addition to her weekly visitation schedule, Mother was also granted two weeks with the Children in the summers, alternating holidays, and joint decision-making with Father on all major decisions regarding the Children. Neither party's parenting time was to be supervised pursuant to the Original Plan.

         In the summer of 2012, the parties informally agreed for the Children to move temporarily to Oregon with Mother while Father was recovering from back surgery. About a year and a half later, in December 2013, Mother petitioned the trial court (then Judge John McCarroll) to modify custody and the Original Plan, citing the fact that Father had allowed the Children to live with her in Oregon for an extended period of time and attend school there. On August 19, 2014, Judge McCarroll denied Mother's request finding that the Children's move was intended to be temporary. Judge McCarroll further found that, although Mother and Father were equal in a majority of the factors to be considered when determining whether to change a parent's status from alternate residential parent to primary residential parent, Mother's living situation was not stable at that time. Judge McCarroll therefore left the Original Plan in full force and effect.[1]Shortly thereafter, Judge McCarroll retired, and Judge Donna Fields became the new trial judge in this case.[2]

          On December 19, 2014, Father filed a pleading styled "Petition for Modification of Permanent Parenting Plan, Emergency Petition for Temporary Injunction and Restraining Order and Petition for Civil Contempt" against Mother. In this petition, Father alleged that Mother's parenting time should be restricted to only supervised visitation in order to protect the Children from the emotional upset and psychological abuse that they were experiencing at the hands of Mother.

         With no hearing having taken place on Father's petition for modification, on January 20, 2015, counsel for Father approached the trial court ex parte for emergency relief with an affidavit of Dr. Elizabeth Harris as support. In her affidavit, Dr. Harris, a practicing clinical psychologist, stated that she had counseled Tessa in about seven sessions over the past two months. Father had informed Dr. Harris of the ongoing litigation with Mother regarding custody of the Children. According to her affidavit, it appeared to Dr. Harris that Mother had been attempting to undermine Tessa's relationship with her Father. Although Dr. Harris never spoke with Mother regarding these issues with Tessa, her affidavit deemed Mother to be "psychologically unhealthy, " a characterization Dr. Harris would later withdraw. Dr. Harris's affidavit further alleged Tessa had reported that her Mother was assuring Tessa she would be moving with her to Atlanta. Dr. Harris would also later recant that statement. Additionally, Dr. Harris stated that Mother was allowing Tessa to engage in unsupervised access to the internet and that Tessa was posting age-inappropriate materials online. In sum, Dr. Harris's affidavit stated that it was her opinion, "based upon a reasonable degree of psychological certainty, that [Tessa] is at risk of being permanently damaged by being allowed to continue unsupervised parenting time with her mother, " and that "mother should be required to immediately undergo a psychological and psychiatric evaluation." Based on these allegations and without hearing any proof from Mother, Judge Fields granted Father's request for emergency relief and signed a Fiat that stated, in pertinent part, as follows:

All parenting time to be exercised by Mother shall be supervised until a full hearing on the Petition for Modification of Permanent Parenting Plan and Petition for Contempt filed herein, or further orders of this court at The Exchange Club for 2 hours each visit in Memphis.

         On February 6, 2015, the trial court held a hearing regarding the aforementioned injunction and Mother's subsequent motion to set it aside. At that hearing, as well as throughout the duration of the litigation, there was a considerable degree of confusion amongst the attorneys for both parties and the trial judge as to why exactly they were there, procedurally speaking. However, all involved appeared to eventually agree that the court should determine whether Father was entitled to the continuation of the injunctive relief he requested in his petition that would keep mother from seeing the children on an unsupervised basis, as well as resolve a request by Father that Mother be required to undergo a psychiatric evaluation pursuant to Rule 35 of the Tennessee Rules of Civil Procedure. At this hearing, Mother's position was that Dr. Harris's affidavit was erroneous in several material respects but that, even assuming everything that was alleged was true, Father's allegations and Dr. Harris's affidavit were insufficient on their face to support imposing supervised visitation on Mother.

         The proof presented at the February 6, 2015 hearing consisted of the testimony of Dr. Harris, Avis Allen (Father's wife), and Mother. Father did not testify at this hearing. Dr. Harris offered her expert testimony related to the circumstances outlined in her affidavit. Initially, Father enlisted Dr. Harris's help in November 2014 because Tessa had written an apparent "suicide note." However, after meeting with Tessa, Dr. Harris determined that Tessa was sad and unhappy, most likely from missing her Mother but that she was "not a threat to herself." Nonetheless, Dr. Harris was troubled when she was told that Mother had contacted the Department of Children's Services to report alleged abuse of Tessa by Father. Dr. Harris did not feel that Mother's report was warranted, and she thereafter contacted Father's attorney to express her concern.[3] After communicating with Father's attorney and/or her staff, Father's attorney's office typed Dr. Harris's affidavit for Dr. Harris to review and sign. During her testimony on February 6, 2015, Dr. Harris went through the assertions in her affidavit, elaborating on some and disavowing others. Dr. Harris stood by her conclusion that she did not believe Tessa's access to the internet/social media was advisable or age appropriate. While admitting that most of her information had come from Father, Dr. Harris still recommended that Mother be required to undergo a Rule 35 evaluation. On the other hand, Dr. Harris did clarify some key aspects of her affidavit. Although the affidavit asserted that Mother was taking Tessa to different schools in Atlanta and assuring her she would be living there, Dr. Harris said at the hearing that was a misstatement, and that "Tessa just told me about the schools . . . I don't know that . . . she has actually, physically, been to any schools." Likewise, Dr. Harris acknowledged that the affidavit was in error in stating that Mother was assuring Tessa she would be living in Atlanta and rather Tessa had only told Dr. Harris that she was hopeful she would be able to live with her Mother in Atlanta. Regarding Dr. Harris's allegation in her affidavit that Mother was psychologically unhealthy, Dr. Harris conceded on cross-examination that it was "probably not" appropriate for her to have made that statement without even meeting with Mother and that she likely "erred on the side of not reaching out to speak with [Mother]" before she signed her affidavit. Additionally, Dr. Harris had apparently supervised at least one session of Mother's parenting time with the Children. Recalling the session, Dr. Harris stated that the Children were both very happy to see Mother and that "[i]t was lovely. They played a game together and they did make a sandbox scene together. It was a very appropriate interaction. . . . I'm very concerned [about] Tessa, especially, but Ja[i]son [] also, being able to have time with their mother. They're very connected to her. They love her very much. There's a strong bond there."

         Avis Allen, Father's most recent wife, also testified on February 6, 2015. Mrs. Allen was living with Father when the Children returned to Father's home in the summer of 2014, although Father was then still married to the Children's first step-mother at that time. According to Mrs. Allen, Tessa became hostile toward Father after the court initially denied Mother's petition to gain custody of the Children, and Tessa began insisting she wanted to live with her Mother, particularly when she returned from visitation with Mother. Mrs. Allen also disagreed with Tessa's internet usage, although some of it was shown to have occurred at Father's house, and she was concerned about Tessa's "suicide notes, " including one that Mrs. Allen and Father had seen but had not been shown to Mother until the day of the hearing.

         The court then heard testimony from Mother, who was questioned extensively regarding Tessa's social media usage. It is abundantly clear from the record that the trial court was not at all comfortable with Tessa's or Mother's activities on the internet. The trial court appeared concerned that Mother posting fully-clothed pictures of her Children on sites such as Facebook and Instagram would be tempting to child predators. Tessa also posted pictures and a video of herself giving a makeup tutorial, which was of apparent grave concern to the court. Mother confirmed that she had made a report to the Department of Children's Services but said she did so because Tessa told her that Father used physical force with her. Mother further testified to the hardship that the restricted visitation was imposing on her, not only because she missed her Children, but she was now working from 8:00 a.m. until 5:00 p.m., which impaired her ability to use the Exchange Club for supervised visitation. Mother further explained that she sent text messages to Father several times asking him to have the Children call her but that he never responded.

         After hearing the testimony of Dr. Harris, Avis Allen, and Mother, the trial court decided to continue requiring Mother's visitation to be restricted and supervised and denied Mother's request to set aside the injunctive relief. Although the court made no formal findings of fact or conclusions of law at that time to support her decision, she did mention that in her opinion Tessa was "on the wrong path." Additionally, the court ordered that Mother undergo a psychological evaluation pursuant to Rule 35 of the Tennessee Rules of Civil Procedure, which would be paid for by Mother, and that the supervised visitation would continue until the evaluation was complete.[4]

         Mother's Rule 35 evaluation was completed by Dr. John Ciocca in July of 2015. Generally speaking, Dr. Ciocca concluded that, although Mother was not a perfect person or a perfect parent, she did possess the judgment to care for her children on an unsupervised basis. The "Summary and Recommendations" section of Dr. Ciocca's report provided:

Ms. Munn is a 44 year old African-American female, who does not present with any major symptoms of mental illness or psychological distress. She does present with anxiety, worry and sadness about her current limited access to her children. Further, she demonstrates a somewhat obsessive and narcissistic style that inhibits her self[-]awareness and insight.
She is willing to admit to mistakes in judgment and her failure to inform Mr. Allen directly about their daughter's increasing psychological discomfort . . . . [S]he denies any intentional efforts to promote her daughter's distress[.]
. . . . Ms. Munn expressed concern that her [ex-] husband wished to exaggerate her shortcomings and limit her access to the children, despite her positive relationship with them as primary parent during their two year stay in Oregon.
Overall, however, she demonstrates the capacity to care for her children in a loving, careful and thoughtful manner, and does not represent danger of harm to herself or others. The use of a family therapist will be useful in her management of the children's adjustment to their current circumstances and to offer advice regarding her tendency to indulge her children as a means of dealing with their mutual sadness and disappointment. Further[, ] the use of a family counselor, such as Dr. Harris, will serve to improve the cooperation between her and the children's father regarding the guidelines and restrictions for the children. Ms. Munn should also pursue individual psychotherapy to improve her insight and help manage her sadness and anger regarding the current circumstances. Ms. Munn does not demonstrate any limitations that would prevent her from functioning as well as an average parent under the current circumstances.

(Emphasis added.)

         Based on this report, Mother filed a petition to set aside the injunctive relief requiring supervised visitation and to modify the previous orders of the court related to Mother's restricted parenting time. On October 9 and October 12, 2015, the trial court once again heard testimony on these issues. In addition to presenting the aforementioned written report of his conclusions about Mother's capacity to parent her Children, Dr. Ciocca testified before the trial court as follows:

Q. . . . [T]ell the Court what your conclusion was regarding Ms. Munn's ability to parent her children without supervision.
A. My opinion . . . to a reasonable degree of psychological and professional certainty . . . . indicated that I felt like her psychological functioning was sufficiently stable to allow her to exercise reasonable judgment in caring for her children.
Q. Do you think that she has the judgment to care for her children on an unsupervised basis?
A. Yes, that was my conclusion.

(Emphasis added.) Regarding the allegation in Dr. Harris's affidavit that Mother was causing harm to Tessa by getting her hopes up that she might move to Atlanta, Dr. Ciocca stated the following:

A. She [Dr. Harris] opined in [her] affidavit that Mother was negatively impacting the child by inappropriately getting her hopes up and creating in the child a sense of anticipation that ultimately led to disappointment and depression in the child[.]
Q. Okay. When you evaluated Ms. Munn, what did you discover; what did you delve into with her about that behavior?
A. I talked with her about that very issue. She elaborated with me that her daughter had expressed to her a desire to move with her and that she had to deal with that issue on a regular basis and had to learn to deflect and reduce the child's expectations.
That was certainly an issue between her and her daughter. It was a dynamic part of the discussion that she had to deal with, but quite to the contrary, rather than increasing her expectations, she was trying to dampen them and had been doing so ever since . . . the summer of 2014.

(Emphasis added.)

         Dr. Ciocca also explained to the court how extensively he prepared himself before reaching these conclusions. In addition to his individual interviews with Mother, Dr. Ciocca reviewed the Original Plan that was agreed to and signed on October 18, 2010; Mother's Petition to Modify Custody filed in December of 2013 and the Order denying that Petition and Mother's request for a new trial; Father's Petition for Modification of Permanent Parenting Plan filed on December 19, 2014; the affidavit of Dr. Harris filed January 20, 2015; the transcript of trial testimony and court ruling of February 6, 2015; the order on Father's Emergency Petition for Temporary Injunction, signed by the trial court on February 11, 2015; the order on Motion for Rule 35 Evaluation of Mother, which was entered on February 11, 2015; blog postings provided by Father's attorney; Ms. Munn's medical records; copies of Mother's diary entries; and notes from some supervised visits Mother had with the Children at the Exchange Club. Furthermore, Dr. Ciocca conducted testing of Mother using the Minnesota Multiphasic Personality Inventory 2 and the Milan Clinical Multiaxial Inventory 3. Dr. Ciocca testified to the following regarding the results of those tests:

Q. Are there any things in your testing, your findings, that would prevent [Mother] from . . . parenting her children on an unsupervised basis?
A. There was nothing in my overall evaluation, testing, interviews, any element of my evaluation that would suggest that she's not capable of taking care of her children and ...

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