GRAHAM CLARK ET AL.
TIMOTHY CURTIS JOHNSON
January 18, 2018 Session
from the Chancery Court for Sullivan County No.
16-CK-40744(M) John S. McLellan, III, Judge 
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
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.
R. Frierson, II, J., delivered the opinion of the court, in
which Charles D. Susano, Jr., and John W. McClarty, JJ.,
R. FRIERSON, II, JUDGE
I. Factual and Procedural Background
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.
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.
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.
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.
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.
December 2015, Father hired as a nanny a woman, S., who
previously had cared for the Children as a
babysitter. 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.
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.
September 2016, Father received a letter, dated September 13,
2016, from Grandmother's former counsel, stating in
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
heard from you in 2 months . . .
Grandmother: It says to call me so We can work out
Father: You've never been not allowed to see the kids . .
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
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.
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.
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.
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.
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
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
[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
[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
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.
Standard of Review
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).
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.
In re Estate of Tanner, 295 S.W.3d 610, 613-14
Subject Matter Jurisdiction
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).
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,