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Clark v. Johnson

Court of Appeals of Tennessee, Knoxville

May 29, 2018


          January 18, 2018 Session

          Appeal from the Chancery Court for Sullivan County No. 16-CK-40744(M) John S. McLellan, III, Judge [1]

         In this case involving grandparent visitation, the petitioners, Graham Clark and Marisa Clark ("Grandparents"), filed a petition in the Sullivan County Juvenile Court ("juvenile court") in November 2016, approximately thirteen months after the death of their daughter, Megan Clark Johnson ("Mother"), who was the mother of the four minor children at issue here. Naming the children's father, Timothy Curtis Johnson ("Father") as the respondent, Grandparents averred that the children were dependent and neglected due to the death of Mother in October 2015 and an allegedly severe reduction in Grandparents' visitation with the children since December 2015. The case was subsequently transferred to the Sullivan County Chancery Court ("trial court"), with Grandparents having given notice to Father that they were seeking relief in the form of grandparent visitation. The trial court thereafter treated the petition as one for grandparent visitation. Following a hearing, the trial court entered a temporary order directing that Grandparents would enjoy unsupervised visitation with the children on alternate weekends. Following a subsequent bench trial, the trial court granted visitation to Grandparents upon finding that, pursuant to Tennessee Code Annotated §§ 36-6-306 and -307 (2017) (collectively, the "Grandparent Visitation Statute"), their visitation and relationship with the children had been severely reduced over several months prior to the petition's filing and that such reduction posed a risk of substantial emotional harm to the children. Also finding that it was in the best interest of the children to grant Grandparents a set visitation schedule, the trial court ordered overnight visitation one weekend a month and two additional nights monthly, as well as one week's uninterrupted visitation in the summer and the sharing of major holidays. Father timely appealed. Having determined that the evidence preponderates against a finding that the reduction in Grandparents' visitation and relationship with the children in the months preceding the petition's filing met the statutory definition of a severe reduction, we reverse.

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

          Nicholas A. Schaefer, Kingsport, Tennessee, for the appellant, Timothy Curtis Johnson.

          Randall D. Fleming, Kingsport, Tennessee, for the appellees, Graham Clark and Marisa Clark.

          Thomas R. Frierson, II, J., delivered the opinion of the court, in which Charles D. Susano, Jr., and John W. McClarty, JJ., joined.



I. Factual and Procedural Background

         The facts underlying this action are essentially undisputed. Father and Mother were married in 2006 and had four children either born to them or adopted by them: M.J., who was ten years of age at the time of trial; E.J., who was six years of age; L.J., who was four years of age; and M.M.J., who was two years of age (collectively, "the Children"). Although Mother had suffered from health problems spanning several years, testimony during trial indicated that Mother's death on October 21, 2015, came following a sudden decline in Mother's health that had not been expected by the parties.

         At all times relevant to this case, Grandparents resided in Kingsport, Tennessee. According to Grandmother's testimony, Mother and Father initially resided in Dandridge, Tennessee, and were living there when Mother underwent brain surgery in 2006. Mother and Father then relocated to Knoxville, where Father had obtained employment, and remained there until 2009. According to Father's testimony, the adoption of the eldest child, M.J., was finalized in 2009 while Father and Mother were living in Knoxville. It is undisputed that when Father and Mother resided in Knoxville, Grandparents visited them often, as well as welcoming them often to visit in Kingsport.

         Mother became pregnant in late 2009, and Father, Mother, and M.J. subsequently moved into Grandparents' residence so that Grandparents could offer assistance to the parents. During the pregnancy, Mother suffered complications that required her to remain on bed rest for several months. During this time period, Father was initially employed with a company in Dandridge, but he subsequently obtained employment with Nyrstar, a mining company in Jefferson City, Tennessee, which required him to commute approximately 100 miles between his work and Grandparents' residence in Kingsport. According to Grandmother, Mother and Father stayed with Grandparents for approximately eight to nine months during Mother's pregnancy and while she was recovering from the birth of E.J., who was born in June 2010. Following E.J.'s birth, Father, Mother, M.J., and E.J. returned to their former residence in Knoxville. Father and Mother subsequently adopted L.J. and M.M.J., and Grandparents continued to visit back and forth with the family.

         In 2013, Father and Mother relocated to Dandridge, renting a home there. Undisputed testimony demonstrated that Grandparents, especially Grandmother, spent a great deal of time with the Children during this time period and maintained a close relationship with Mother and Father as well. Grandmother testified that she was no longer employed by 2013 and would "help out with" the Children "probably every day" during the work week. She stated that Father, Mother, and the Children also visited at Grandparents' home often and that Father "was a very big part of our family." Prior to her death in October 2015, Mother was in a coma for several days, and Grandparents undisputedly assisted Father in caring for the Children during this difficult time. Grandmother also testified that Father, Mother, and the Children had moved into a home they had newly purchased three weeks prior to Mother's death, although the record is not clear as to the location of this new home, where Father and the Children continued to live at the time of trial.

         Following Mother's death, Grandmother provided care to the Children daily during the work week to facilitate Father's return to work after a short leave of absence. Father acknowledged during trial that soon after Mother's death and for a few weeks thereafter, Grandparents cared for the Children overnight at Grandparents' residence approximately two nights a week. Father testified that although several people assisted him in caring for the Children while he returned to work, Grandmother "was instrumental in helping [him] with the kids during that time." For his part, Grandfather, who was a high school football coach, testified that as his work schedule allowed, he had "dropped in" at Father's home on many occasions to visit the Children in the months following Mother's death. Grandfather also interacted with M.J. regularly during football season because M.J. volunteered as a ball boy for the team coached by Grandfather.

         In December 2015, Father hired as a nanny a woman, S., who previously had cared for the Children as a babysitter.[2] S. moved in with Father and the Children in the spring of 2016, and she and Father became engaged in July 2016. Father testified during the May 3, 2017 trial that he and S. were to be married two weeks after trial. When questioned regarding when he believed his relationship with Grandparents had begun to deteriorate, Father stated that he believed it was when he and S. had become engaged.

         Although Grandparents have acknowledged throughout these proceedings that they continued to see the Children well after December 2015, they have asserted that the nature of the visitation Father allowed them gradually changed from individual quality time and overnight stays at Grandparents' home to mere invitations to attend the Children's events and activities, such as M.J.'s football games, with many people present. Grandparents also maintain that Father's responses to inquiries regarding the Children became increasingly delayed. Grandparents acknowledge that a compilation of text messages they presented at trial demonstrated that one or both Grandparents visited with one or more of the Children on more than forty occasions in the eleven months preceding the petition's filing. Grandmother and Grandfather each respectively testified that Father had not refused a requested visit to either of them without providing a reason such as a prior engagement.

         In September 2016, Father received a letter, dated September 13, 2016, from Grandmother's former counsel, stating in substantive part:

Please be advised that I have been retained by [Grandmother] in order to assist her in seeing her grandchildren. Please contact myself, or [Grandmother], to arrange same so that we can avoid litigation in this matter.

Included in the text message conversations presented during trial was the following exchange between Father and Grandmother, dated September 25, 2016:

Father: I received a letter from your attorney, but I haven't

heard from you in 2 months . . .

Grandmother: It says to call me so We can work out visitation.
Father: You've never been not allowed to see the kids . . . all
you have to do is ask.
Grandmother: Ok I would like to set up a schedule where I get all four kids one day a week, one weekend a month, and time with all of them on their birthdays and holidays, and a week in the summer. I would like this in writing as advised per my attorney. I would be glad to discuss this over a telephone call or in person.
Father: If you would like to see the kids then let me know and we'll work out a time you can come visit them, but I'm not going to have a schedule with you.
Grandmother: It's obvious we're having communication issues and I would like to lay out a day a week I can have them over to my house so I would like a schedule. I would prefer to talk about this in person or on the phone.
Father: I understand what you are requesting, but it would be better for our family to provide you our schedule so that you could then find the best time for yourself to come over and visit them.
Grandmother: I'll be glad to work with your family to find what time is best for you all, but I would like to take them to my house to spend time with them with me and my family, the way I always have.
Father: Your family is also welcome to come over here and visit with them.

         On November 1, 2016, Grandparents filed a petition in the juvenile court, alleging that the Children were dependent and neglected due to Mother's death and the subsequent, purportedly severe reduction in Grandparents' visitation. Pursuant to the Grandparent Visitation Statute, Grandparents sought "a reasonable visitation schedule" and "a rebuttable presumption of substantial harm to the [Children] based upon the cessation or severe reduction of the relationship between the children and the grandparents." The juvenile court entered an order on November 2, 2016, appointing attorney Kenneth E. Hill as guardian ad litem to represent the Children.

         Upon Grandparents' subsequent motion filed in the juvenile court, the action was transferred to the trial court via an order entered December 22, 2016, which was signed by both the juvenile court judge and the presiding chancellor. The transfer order does not state a reason for the transfer, but email correspondence among court personnel, Grandparents' trial counsel, and the guardian ad litem, attached to the transferred juvenile court file, indicates that a judicial conflict existed because the "3 judges/magistrates" usually hearing cases in the juvenile court all knew Grandfather. Upon transfer, the trial court treated the petition as one for grandparent visitation.

         On January 20, 2017, Grandparents filed a notice of mediation set for February 6, 2017, but Father, who was not yet represented by counsel, did not appear for that mediation. Grandparents then filed a notice of hearing set for March 1, 2017. Father's counsel subsequently filed a notice of appearance on February 28, 2017, as well as a motion to continue. Following a hearing conducted on March 1, 2017, the trial court entered an order on March 13, 2017, granting Father's motion to continue the hearing on the petition but also setting a temporary visitation schedule for Grandparents of alternating weekends with the Children. The parties subsequently participated in mediation in April 2017 but were unable to reach an agreement.

         The trial court conducted a bench trial on May 3, 2017, hearing testimony from the parties, as well as several witnesses who testified regarding the close and loving relationship between Grandparents and the Children. The trial court subsequently entered an order on May 31, 2017, granting Grandparents' request for visitation and setting forth a visitation schedule. In granting visitation, the trial court found that Father had severely reduced Grandparents' visitation and relationship with the Children. The court further found that Grandparents had successfully raised and Father had failed to rebut the statutory rebuttable presumption of substantial harm to the Children if visitation were not granted. See Tenn. Code Ann. § 36-6-306(b)(4) ("[I]f the child's parent is deceased and the grandparent seeking visitation is the parent of that deceased parent, there shall be a rebuttable presumption of substantial harm to the child based upon the cessation or severe reduction of the relationship between the child and grandparent.").

         Having determined that a denial of visitation to Grandparents posed a danger of substantial emotional harm to the Children, the trial court then considered the factors delineated in Tennessee Code Annotated § 36-6-307 (2017) to determine that granting Grandparents' petition for a set visitation schedule would be in the best interest of the Children. The trial court set the visitation schedule as follows:

[Grandparents] shall have overnight visitation with [the Children] each month beginning June 2017 on the third weekend of each month, from Friday at 5:00 p.m. until Sunday at 5:00 p.m. If the parties can agree, the Court will consider an alternate weekend to permit flexibility due to the parties' and [the Children's] activity schedules and plans.
[Grandparents] shall have two additional overnight visitations each month at a time to be agreed upon by the parties consistent with the children's schedule of activities and school or by further Order of the Court if agreement cannot be reached.
[Grandparents] shall have the [Children] for a minimum period of seven days during their summer vacation in the month of June or July of each year upon reasonable notice to [Father] this year, and notice by May 1 beginning 2018 and each year thereafter.
[Grandparents] shall share major holidays such as Thanksgiving and Christmas with the [Children] as may be determined by agreement of the parties, consistent with family traditions, or by further Order of the Court.

(Paragraph numbering omitted.) Father timely appealed.[3]

         II. Issue Presented

Whether the trial court correctly applied the legal standard required by the Grandparent Visitation Statute to find that Grandparents' visitation and contact with the Children had been opposed or severely reduced by Father.

         III. Standard of Review

         We review a non-jury case de novo upon the record, with a presumption of correctness as to the findings of fact unless the preponderance of the evidence is otherwise. See Tenn. R. App. P. 13(d); Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn. 2000); Hadjopoulos v. Sponcia, No. E2015-00793-COA-R3-CV, 2016 WL 1728250, at *5 (Tenn. Ct. App. Apr. 28, 2016) (explaining that the evidentiary standard in grandparent visitation cases is a preponderance of the evidence). However, we review questions of law de novo with no presumption of correctness. Bowden, 27 S.W.3d at 916 (citing Myint v. Allstate Ins. Co., 970 S.W.2d 920, 924 (Tenn. 1998)). "A determination of visitation 'often hinges on subtle factors such as the [parties'] demeanor and credibility during the trial proceedings.'" Lovlace v. Copley, 418 S.W.3d 1, 16 (Tenn. 2013) (quoting Battleson v. Battleson, 223 S.W.3d 278, 282 (Tenn. Ct. App. 2006)). The trial court's determinations regarding witness credibility are entitled to great weight on appeal and shall not be disturbed absent clear and convincing evidence to the contrary. See Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002).

          We review issues of statutory interpretation de novo, adhering to the following longstanding principles:

When dealing with statutory interpretation, well-defined precepts apply. Our primary objective is to carry out legislative intent without broadening or restricting the statute beyond its intended scope. Houghton v. Aramark Educ. Res., Inc., 90 S.W.3d 676, 678 (Tenn. 2002). In construing legislative enactments, we presume that every word in a statute has meaning and purpose and should be given full effect if the obvious intention of the General Assembly is not violated by so doing. In re C.K.G., 173 S.W.3d 714, 722 (Tenn. 2005). When a statute is clear, we apply the plain meaning without complicating the task. Eastman Chem. Co. v. Johnson, 151 S.W.3d 503, 507 (Tenn. 2004). Our obligation is simply to enforce the written language. Abels ex rel. Hunt v. Genie Indus., Inc., 202 S.W.3d 99, 102 (Tenn. 2006). It is only when a statute is ambiguous that we may reference the broader statutory scheme, the history of the legislation, or other sources. Parks v. Tenn. Mun. League Risk Mgmt. Pool, 974 S.W.2d 677, 679 (Tenn. 1998). Further, the language of a statute cannot be considered in a vacuum, but "should be construed, if practicable, so that its component parts are consistent and reasonable." Marsh v. Henderson, 221 Tenn. 42, 424 S.W.2d 193, 196 (1968). Any interpretation of the statute that "would render one section of the act repugnant to another" should be avoided. Tenn. Elec. Power Co. v. City of Chattanooga, 172 Tenn. 505, 114 S.W.2d 441, 444 (1937). We also must presume that the General Assembly was aware of any prior enactments at the time the legislation passed. Owens v. State, 908 S.W.2d 923, 926 (Tenn. 1995).

In re Estate of Tanner, 295 S.W.3d 610, 613-14 (Tenn. 2009).

         IV. Subject Matter Jurisdiction

         As a threshold issue, we address, sua sponte, whether the trial court, as a chancery court, properly exercised subject matter jurisdiction to consider Grandparents' petition upon transfer from the juvenile court when Grandparents' petition alleged dependency and neglect and no resolution of such an allegation had been adjudicated in the juvenile court. See Tenn. R. App. P. 13(b) (explaining that although "[r]eview generally will extend only to those issues presented for review, " "[t]he appellate court shall also consider whether the trial and appellate court[s] have jurisdiction over the subject matter, whether or not presented for review . . . ."). Pursuant to Tennessee Code Annotated § 37- 1-103 (2017), exclusive, original subject matter jurisdiction over dependency and neglect proceedings is vested solely in juvenile courts. This exclusive jurisdiction continues until either "(1) the case is dismissed; (2) the custody determination is transferred to another court; (3) a petition for adoption is filed; or (4) the child reaches the age of eighteen." In re D.Y.H., 226 S.W.3d 327, 330 (Tenn. 2007).

         In the case at bar, we determine that Grandparents' petition alleged dependency and neglect in name only. In reviewing pleadings, we "must give effect to the substance, rather than the form or terminology of a pleading." Stewart v. Schofield, 368 S.W.3d 457, 463 (Tenn. 2012) (citing Abshure v. Methodist Healthcare-Memphis Hosp., 325 S.W.3d 98, 104 (Tenn. 2010)). In the petition, Grandparents specifically alleged in relevant part:

The minor children are dependent and neglected in that [Mother was] deceased on October 21, 2015 and the maternal grandparents['] time with the children has drastically been reduced. Prior to their daughter's deceasing, ...

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