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In re Lennon R.

Court of Appeals of Tennessee, Nashville

May 23, 2019

IN RE LENNON R.

          Session March 6, 2019

          Appeal from the Juvenile Court for Rutherford County No. 11756-C Donna Scott Davenport, Judge

         This is an appeal from the trial court's order that: (1) designated Father/Appellee as primary residential parent; (2) awarded him sole decision-making authority; and (3) set visitation. Mother/Appellant appeals: (1) the designation of Father as primary residential parent; (2) the award of sole decision-making authority to Father; and (3) her number of parenting days with the child. Because the trial court failed to make any findings regarding decision-making authority, we vacate the trial court's award of sole decision-making authority to Father and remand for findings of facts and conclusions of law related to same. We also conclude that the trial court abused its discretion when it failed to maximize Mother's parenting time with the child. Therefore, we reverse the trial court's visitation award and remand for a more equal award of parenting time. Finally, we reverse the trial court's order concerning child support and remand for a recalculation of support consistent with the new parenting schedule entered on remand. The trial court's order is otherwise affirmed.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Reversed in Part; Vacated in Part; Affirmed in Part and Remanded

          Donald Capparella, Nashville, Tennessee, for the appellant, Kendall R. [1]

          Rebecca L. Lashbrook, Murfreesboro, Tennessee, for the appellee, Joshua R.

          Kenny Armstrong, J., delivered the opinion of the court, in which J. Steven Stafford, P.J., W.S. and Arnold B. Goldin, J., joined.

          OPINION

          KENNY ARMSTRONG, JUDGE.

         I. Background

         Lennon R. ("the Child") was born, in September 2015, to Kendall R. ("Mother" or "Appellant") and Joshua R. ("Father" or "Appellee").[2] Mother and Father had a brief relationship but were never married. Shortly after Mother and Father ended their relationship, Mother began dating another man. Soon thereafter, Mother realized she was pregnant. Mother claims that she believed that her boyfriend was the Child's father. The Child's paternity was determined only after Mother's boyfriend took a paternity test, which excluded him as the Child's father. After learning her boyfriend was not the father, Mother surmised that Joshua R. was the Child's father. Mother testified that she did not have Father's contact information, but was able to locate his sister via social media. Mother sent Father's sister a message on social media asking his sister to have Father contact her. After Father failed to contact Mother, she sent a picture of the Child to Father's sister. Soon thereafter, Father contacted Mother, and an at-home DNA test confirmed Joshua R. as the Child's father.

         Father immediately sought parenting time with his then five-month-old daughter. Without a written order in place, Mother gave Father parenting time with the Child, including a few overnights. Then, sometime in February or March 2016, Father picked up the Child from Mother and was driving home when Mother called and asked Father for his address because she needed it for child support purposes. Father, according to Mother's testimony, became very angry. Father contends that Mother began asking him several questions, which he did not answer because he was driving. Both parties agree that Mother told Father he could not keep the Child if he did not provide the information she sought. Further, both parties agree that Mother threatened to call the police and allege that Father kidnapped the Child if he did not bring the Child back to her. Upon hearing this threat, Father returned the Child to Mother. Mother testified that, upon Father's return, he threw the Child at her while the Child was still in her car seat. Days after this incident, Father texted Mother about seeing the Child, but Mother did not respond to his text.

         On May 11, 2016, Father filed a Petition to Establish Paternity in the Juvenile Court for Rutherford County ("trial court"). Mother filed an answer on August 1, 2016. On August 2, 2016, the trial court entered an order confirming Appellee's paternity and setting a temporary parenting plan. The temporary parenting plan awarded Father visitation every other week from Monday at 10:00 a.m. until the following Monday at 10:00 a.m. During Father's weekly visitation, the trial court awarded Mother each Wednesday from 8:30 a.m. until Thursday at 8:30 a.m. Accordingly, the parties' parenting time was almost equal under the trial court's initial parenting plan with Mother receiving somewhat more time.

         The trial court conducted a bench trial on Father's petition on June 27, 2017, December 14, 2017, and December 21, 2017. By order of February 26, 2018, the trial court, inter alia, named Father as the Child's primary residential parent, awarded Father sole decision-making authority, and awarded Mother visitation with the Child every other weekend. The Permanent Parenting Plan Order ("Parenting Plan") awarded Mother 100 days with the Child and awarded Father 265 days with the Child.[3] Mother appeals.

         II. Issues

         We perceive that there are five issues Mother raises on appeal, which we state as follows:

1. Whether the trial court erred when it refused to consider evidence of Father's Driving under the Influence ("DUI") arrests that occurred prior to the Child's conception.
2. Whether the trial court erred when it mischaracterized evidence in the record.
3. Whether the trial court erred when it designated Father as the primary residential parent.
4. Whether the trial court erred when it awarded Father all major decision-making authority.
5. Whether the trial court erred when it failed to maximize Mother's parenting time.

         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." Tennessee Farmers Mut. Ins. Co. v. Debruce, No. E2017-02078-COA-R3-CV, 2018 WL 3773912, at *3 (Tenn. Ct. App. Aug. 9, 2018) (citing Tenn. R. App. P. 13(d); Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn. 2000)). The trial court's conclusions of law are reviewed de novo and "are accorded no presumption of correctness." Brunswick Acceptance Co., LLC v. MEJ, LLC, 292 S.W.3d 638, 642 (Tenn. 2008).

         IV. Analysis

         A. Father's Previous DUIs

         Mother argues that the trial court erred when it barred her from questioning Father, on cross-examination, regarding two of his three DUI arrests, which occurred between May 2011 and November 2013 ("Kansas DUIs").[4] Father's counsel questioned Father on direct examination concerning his Kansas DUIs and Father testified to same. However, when Mother's counsel began questioning Father about the DUIs on cross-examination, Father's counsel objected, stating that the information was irrelevant because the DUIs predated the Child's conception. Mother's counsel argued that the Kansas DUIs were relevant to Father's character and ability to parent. The trial court sustained Father's objection and ruled that "anything prior to the birth of th[e] [C]hild [was] not relevant."

         This Court has previously explained that

Rule 401 of the Tennessee Rules of Evidence defines relevant evidence as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Tenn. R. Evid. 401. "In other words, evidence is relevant if it helps the trier of fact resolve an issue of fact." Howe v. Howe, No. E2016-01212-COA-R3-CV, 2017 WL 1324177, at *4 (Tenn. Ct. App. Apr. 10, 2017) (citing Neil P. Cohen, et al., Tennessee Law of Evidence § 4.01[4], at 4-9 (5th ed. 2005)). "Evidence which is not relevant is not admissible." Tenn. R. Evid. 402. If the evidence is relevant, it is admissible unless otherwise excluded by law. Id.
Excluding relevant evidence is "an extraordinary step that should be used sparingly." In re Envy J., No. W2015-01197-COA-R3-PT, 2016 WL 5266668, at *10 (Tenn. Ct. App. Sep. 22, 2016) (citations omitted). A trial court may exclude relevant evidence "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Tenn. R. Evid. 403. This rule requires trial courts to conduct a two-part balancing test. Howe, 2017 WL 1324177, at *4 (citing White v. Vanderbilt Univ., 21 S.W.3d 215, 227 (Tenn. Ct. App. 2002)). First, the trial court must "balance the probative value of the [challenged evidence] against the countervailing factors." Id. (citing White, 21 S.W.3d at 227). "After the court has engaged in the balancing analysis, it may then exercise its discretion to determine whether the evidence should be excluded if the prejudice substantially outweighs the probative value of the evidence." Id. (citing White, 21 S.W.3d at 227). The trial court is in the most suitable position to conduct this balancing test under Rule 403. Id.

In re Angel M., No. E2016-02061-COA-R3-PT, 2017 WL 3228314, at *10 (Tenn. Ct. App. July 31, 2017). Trial courts are generally afforded a "wide degree of latitude" regarding decisions to admit or exclude evidence and will only be overturned on appeal where there was an abuse of discretion. Otis v. Cambridge Mut. Fire Ins. Co., 850 S.W.2d 439, 442 (Tenn. 1993) (citing Strickland v. City of Lawrenceburg, 611 S.W.2d 832, 835 (Tenn. Ct. App. 1980); Tenn. R. Evid. 401; Austin v. City of Memphis, 684 S.W.2d 624, 634 (Tenn. Ct. App. 1984); Inman v. Aluminum Co. of America, 697 S.W.2d 350, 354 (Tenn. Ct. App. 1985)). The trial court abuses its discretion when it applies the incorrect legal standard or reaches a decision that is clearly unreasonable. Overstreet v. Shoney's, Inc., 4 S.W.3d 694, 709 (Tenn. Ct. App. 1999). "Although the discretionary nature of the decision does not shield it completely from appellate review, it does result in less rigorous appellate scrutiny." In re Envy J., 2016 WL 5266668, at *6 (citing White, 21 S.W.3d at 222 (citations omitted)).

         We conclude that the trial court abused its discretion when it refused to allow Mother's counsel to cross-examine Father concerning his Kansas DUIs. First, information regarding a parent's history with alcohol and the decisions that parent makes when consuming alcohol is certainly probative in a child custody proceeding because such evidence goes to a parent's decision-making skills, which affect his or her ability to parent. See In re Price v. Price, No. 02A01-9609-CH-00228, 1997 WL 338588, at *7 (Tenn. Ct. App. June 20, 1997) ("DUI is a serious offense that shows a lack of judgment on [the parent's] part."). Here, the probative value in hearing evidence regarding Father's previous DUIs is not "outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Tenn. R. Evid. 403. Therefore, such evidence would have been relevant to the current proceeding.

         Lastly, Father "opened the door" to such testimony when he testified regarding his Kansas DUIs on direct examination. "Tennessee has long recognized a 'good-for-the-goose, good-for-the-gander' rule that 'if a party opens the door for the admission of incompetent evidence, he is in no plight to complain that his adversary followed through the door thus opened; and this, although no objection was made in the first instance to the admission of such evidence.'" Ray v. Richards, No. M2000-01808-COA-R3-CV, 2001 WL 799756, at *4 (Tenn. Ct. App. July 17, 2001) (quoting Spadafina v. State, 77 S.W.3d 198, 213 (Tenn. Crim. App. 2000) (quoting Thomas v. State, 113 S.W. 1041, 1042 (1908); see also Garrison v. State, 40 S.W.2d 1009, 1013 (1931))). Consequently, because Father introduced the issue, he cannot oppose cross-examination on same.

         Although we conclude that the trial court erred in preventing Mother's counsel from cross-examining Father concerning his Kansas DUIs, under Tennessee Rule of Appellate Procedure 36(b), "[a] final judgment from which relief is available and otherwise appropriate shall not be set aside unless, considering the whole record, error involving a substantial right more probably than not affected the judgment or would result in prejudice to the judicial process." Tenn. R. App. P. 36(b). Although, for the reasons discussed above, the trial court should have overruled Father's objection, any error was harmless because the fact of Father's DUIs was already in the record based on his answers during direct examination. Therefore, we cannot conclude that the trial court's error in denying Mother an opportunity to question Father further concerning his Kansas DUIs more probably than not affected the judgment or resulted in prejudice to the judicial process. As such, this error does not require reversal.

         B. Permanent Parenting Plan

         Mother also argues that the trial court erred when it: (1) designated Father as the Child's primary residential parent; (2) awarded Father sole major decision-making authority; and (3) dramatically reduced her parenting time with the Child. Before addressing these issues, we first address Mother's contention that the trial court erred in finding her testimony and her witness's testimony less credible than Father's testimony and that of his witnesses. Specifically, Mother alleges that the trial court made several adverse credibility findings against her without specifying its reasoning. In Wells v. Tennessee Board of Regents, 9 S.W.3d 779 (Tenn. 1999), the Tennessee Supreme Court explained that

trial courts are able to observe witnesses as they testify and to assess their demeanor, which best situates trial judges to evaluate witness credibility. See State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990); Bowman v. Bowman, 836 S.W.2d 563, 566 (Tenn. Ct. App. 1991). Thus, trial courts are in the most favorable position to resolve factual disputes hinging on credibility determinations. See Tenn-Tex Properties v. Brownell-Electro, Inc., 778 S.W.2d 423, 425-26 (Tenn. 1989); Mitchell v. Archibald, 971 S.W.2d 25, 29 (Tenn. Ct. App. 1998). Accordingly, appellate courts will not re-evaluate a trial judge's assessment of witness credibility absent clear and convincing evidence to the contrary. See Humphrey v. David Witherspoon, Inc., 734 S.W.2d 315, 315-16 (Tenn. 1987); Bingham v. Dyersburg Fabrics Co., Inc., 567 S.W.2d 169, 170 (Tenn. 1978).

Wells, 9 S.W.3d at 783. The trial court found "that [] Father and his witnesses [had] greater credibility than that of [] Mother or her witnesses." The trial court did not expand on its reason for the credibility finding. Certainly, the better practice would have been for the trial court to explain the reasons for its credibility finding; however, we acknowledge that such findings often rest on obscure considerations. As such, we usually defer to the trial court concerning its findings on credibility. Nonetheless, even if we assume, arguendo, that Mother, Father and their respective witnesses were equally credible, for the reasons discussed below, the evidence does not weigh against the trial court's designation of Father as the Child's primary residential parent.

         Concerning the trial court's fashioning of a custody arrangement for the parties' child, Tennessee Code Annotated section 36-6-106(a) provides, to-wit:

[i]n a suit for . . . divorce . . . or in any other proceeding requiring the court to make a custody determination regarding a minor child, the determination shall be made on the basis of the best interest of the child. In taking into account the child's best interest, the court shall order a custody arrangement that permits both parents to enjoy the maximum participation possible in the life of the child consistent with the factors set out in this subsection ...

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