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Potts v. Potts

Court of Appeals of Tennessee, Knoxville

February 8, 2018


          August 9, 2017

         Appeal from the Circuit Court for Hamblen County No. 13-CV-179 Thomas J. Wright, Judge.

         This appeal involves a contentious continuing dispute over visitation with the parties' young daughter. After numerous hearings, the trial court reluctantly continued limited structured visitation to the mother. The principal issue raised on appeal is whether the trial court's rulings were in the best interests of the child. Having carefully reviewed the voluminous record before us, we find that the evidence supports the parenting plan determination and other rulings made by the court.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed; Case Remanded

          Dawn E. Bowie, Knoxville, Tennessee, for the appellant, Victoria Leanne Potts.

          Frank C. Little, Knoxville, Tennessee, and Linda Larson, Dandridge, Tennessee, for the appellee, Timothy S. Potts.

          John W. McClarty, J., delivered the opinion of the court, in which Charles D. Susano, Jr., J., and D. Michael Swiney, C.J., joined.



         I. BACKGROUND

         This case involves the dissolution of a marriage of short duration. Victoria Leanne Potts ("Wife") and Timothy S. Potts ("Husband") were married on October 11, 2008. In June 2012, the couple had a daughter ("the Child"). After the Child's birth, Wife became seriously ill with postpartum depression and developed a serious eating disorder. Despite working with a therapist starting in July 2012, Wife's treatment was unsuccessful. Her primary care physician prescribed Zoloft, but the drug proved of no benefit in addressing Wife's mental health issues. In February 2013, Wife entered an intensive outpatient treatment program in Knoxville. Four months later, she received further inpatient treatment in Knoxville for a period of 18 days, at which time a feeding tube was inserted to ensure Wife's sufficient nutrition. She subsequently entered an inpatient program in Chattanooga, then transitioned to a related outpatient program in Knoxville. Eventually, she received further treatment in Indiana, Florida, and Colorado. Over the course of her illness, Wife was diagnosed, inter alia, with clinical depression, obsessive-compulsive disorder, and anorexia.

         Wife, in her early thirties at the time of these events, has been enrolled at the University of Tennessee in pursuit of a degree in social work.[1] She possesses a BA in education from a college in Florida and was previously employed full time as a teacher in a private school. However, because her degree is from an unaccredited institution, she has been unable to obtain a job with a public school system in Tennessee. The record reveals that Wife had completed a semester of course work toward obtaining a masters in education in order that she could be certified to teach in Tennessee public schools, but she abandoned that course of study when she became pregnant with the Child. Husband's educational background reveals two years of community college education. Six years older than Wife, Husband works as a mine clerk for Nyrstar Tennessee Mines.

         Wife contends that her mental health issues result from abuse, first from her father and later by Husband. In regard to Husband, Wife asserts that he "is emotionally abusive and has severe anger management issues." She contends that Husband's "abusiveness" exacerbated her mental health problems, leaving her in constant fear that she would trigger his anger. She claimed to feel unsafe in his presence. According to Wife, Husband raised his voice in anger, once grabbed her by the arm, once grabbed her by the shoulders, hit her with a pillow, obstructed the doorway to their bedroom and locked her in the bathroom while she was holding the Child. On the occasion where she was holding her daughter, Wife testified that Husband refused to allow her to pass unless she admitted that she had lied. She claims that he would call her selfish, lazy and irresponsible, constantly harassed her, yelled at her, and used terrible language-all in the presence of the Child. Additionally, Wife asserts that Husband isolated her and constantly blamed her. She contends that he often threatened to leave her, poked her, and pointed his finger in her face. Wife admitted, however, that she had also grabbed Husband by the arm once and had hit him with a pillow.

         As to Wife's allegations, Husband admits that he once grabbed Wife's arm, once grabbed her by the shoulders, hit her with a pillow and once stood in the doorway of their bedroom during an argument. He acknowledges calling her "irresponsible" during an argument about money. According to Husband, however, he was unaware that Wife thought he was abusive. He observed that the subject of abuse had never come up in any of Wife's treatment and that none of the providers had ever attempted to address the possibility with him or to encourage him to seek treatment. Contrary to Wife's assertions, Husband contends that he encouraged her to initiate mental health treatment and was a source of support until she filed for divorce. He paid all of the household expenses including Wife's health insurance, car payment and car insurance, cared for the Child, [2] took care of almost all of the household chores, and regularly drove to Knoxville or Chattanooga during the inpatient admissions to enable Wife to see the Child. Wife, however, asserts that Husband was very uncooperative during her treatment and refused to follow the advice or instruction of the therapists.

         During his spouse's treatment, Husband contends that he came to believe Wife posed a risk to the Child. He worried that her insistence on breast feeding and limited caloric intake was harming the Child. Husband's mother testified that she had seen the Child stick her fingers down her throat to gag herself, suggesting the infant had observed her mother perform the action. Husband filed a petition for emergency custody of the Child in the juvenile court before Wife's divorce complaint was filed in the circuit court on August 28, 2013.

         After the juvenile court exercised jurisdiction over the custody of the Child, a probable cause hearing was held on September 4, 2013, wherein the court found probable cause to believe that there was a substantial threat of harm to the Child while in the unsupervised care of Wife. The juvenile court noted:

There is probable cause to believe that [the Child] could be under a substantial threat of harm if placed in your care and control presently. And the reason I say that is because of the suicidal thoughts that you had. I'm going to have to have some expert testimony who knows that you had thoughts while you were driving down the road that you thought about running off the road and killing yourself, and that the only reason you didn't do that was because [the Child] was in the car. I just can't trust that. It's up to me to see that children are protected, and this is a probable cause hearing.
Also, I am very concerned about [the Child]'s birth [sic] weight. It appears that you are compulsive about how much her food intake is and that perhaps you have restricted it to too great of an extent, because she was actually only at the five percentile once upon a time. . . .

         In spite of its concerns regarding Wife, the juvenile court found Husband had been too restrictive with visitation. The court thereafter entered an order transferring the juvenile court case and consolidating it with the divorce action pending in the circuit court.

         Wife continued to receive treatment and she asserted that her condition was improving. In August 2013, a medical doctor observed that Wife was responding well to treatment and that "[a]t no time ha[d] [Wife's] illness interfered with her ability to care for her daughter." The physician indicated that Wife put her daughter's needs before her own and had "never been psychotic or had any wish or impulse to harm anyone." By October 2014, a therapist indicated that Wife's "mood is stable, " that she had "appropriate thought processes, and is capable of using good judgment." The therapist found "no reason there should be any restrictions in [Wife's] interactions with her daughter." Another therapist opined that Wife "represented[ed] NO risk to herself or others, including specifically her 2-year-old daughter." In contrast, Dr. James F. Murray, Ph.D., testified that he was extremely concerned about Wife's ability to safely and appropriately parent the Child. Dr. Murray, who was engaged as an expert for the court at the request of Wife who paid for Dr. Murray's evaluation, recommended minimal supervised visitation for Wife with Husband as the primary residential parent and sole decision maker because her mental health issues are "characteristically difficult to treat in a comprehensive fashion, likely to recur, and likely to significant[ly] impact or limit adaptive/functional capacity across a number of important life dimensions."

         In December 2014, the trial court granted the divorce, reserving the co-parenting issue along with the child support issue. Pursuant to Tennessee Code Annotated section 36-4-129(b), the court stated as follows:

[B]oth parties have been involved in a course of conduct over the past two years that caused their relationship to disintegrate and their love and affection for one another to be extinguished. For the wife's part, this finding flows from her inability to fulfill her roles as a parent and a wife over the year prior to filing for divorce and from her determination that husband was an abuser who failed to support her during her battle with mental illness. For the husband's part, this finding stems from his inability to maintain an emotional attachment to his wife during her lengthy treatment and his determination that she was untrustworthy and a threat to their child, as evidenced by his initiation of ex parte juvenile court proceedings to prevent the wife from being unsupervised with the child. . . .

         It appears that Wife's condition has stabilized and no additional inpatient or intensive outpatient treatment has occurred.

         The final disposition of the case occurred in August 2016. At that time, Wife had been visiting regularly with the Child under the supervision of the Assurance Group in Knoxville. Becky Cook, the operations director at the facility, testified regarding the interaction between the Child and Wife: Wife "has done nothing that causes me concern." Ms. Cook noted that the visits go well and an affectionate bond exists between them. A licensed professional counselor who had been working with Wife for about a year and a half, Martha Finnegan, observed that Wife has made significant progress regarding her depression and that her medication had been decreased. Ms. Finnegan expressed no concerns about Wife's parenting skills and being around her daughter. She opined that Wife "would never harm" the Child. The court described "recent activities and interaction between [Wife and the Child as] appropriate with no words, actions or inactions to cause any concern for the supervised visitation supervisor."

         In the memorandum opinion filed by the trial court, it was noted that "[a] separate order was filed December 12, 2014 [that] contains extensive findings which are hereby incorporated by reference. . . . That order from December 12, 2014 is an integral part of this Court's findings, conclusions, and rulings on the issues in this divorce." The court found in the prior order that the preponderance of the evidence did not support Wife's allegations that she had been "abused" by Husband. In the September 2, 2016 order, the court addressed the "significant progress" Wife had made in addressing her mental health issues. According to the court,

one indication of the positive progress [Wife] has made is that she has remained stable in the midst of what has to be an excruciatingly stressful situation. The psychologist who testified at trial indicated that symptoms from the various maladies suffered by [Wife] would tend to be exacerbated or become symptomatic when [Wife] is placed under stress. It is difficult to imagine a more stressful period than what she has been going through fighting for visitation with her daughter, having to be observed during all of her parenting time, having her parenting unilaterally terminated by Father on more than once occasion, receiving an extremely negative parenting evaluation from the Court's expert, appearing, and often testifying, at numerous court proceedings, all the while maintaining a part time job, taking college courses, taking care of her own home and attending to her mental health treatment. It is difficult to imagine that she will ever be anymore stressed than she has been during this time period. Yet, she has improved and has a significant period of demonstrated stability.

         Despite the improvement by Wife, the court specifically held:

Clearly the most significant issue in the case has been [Wife's] mental and emotional health. Her illness has simply precluded her from being involved at all for lengthy periods of time in the life of this child. And the concerns that her illness has raised prevent her from enjoying normal parenting time with this child despite her significant improvement during the last year. Because of the child's age and stage of development and the severity and seriousness of the illnesses experienced by [Wife], it is with regret that the undersigned FINDS the best interest of the child to be served by a period of continued supervised visitation on the part of [Wife]. See Tenn. Code Ann. ยง 36-6-406(d)(1) & (2). In this situation, there is no question that the [Husband] must be the primary residential parent. Because the parties are unable to agree on anything, someone must be designated as the decision maker and in ...

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