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Stark v. Burks

Court of Appeals of Tennessee, Jackson

August 30, 2019


          Session June 19, 2019

          Appeal from the Juvenile Court for Henry County No. 23475 Andrew Brigham, Judge

         In this action concerning enforcement or modification of a permanent parenting plan, the trial court analyzed the issues in accordance with the provisions of Tennessee Code Annotated Title 36 concerning child custody matters, rather than Title 37, involving dependency and neglect proceedings. Following the trial court's modification of the parties' permanent parenting plan, the father filed post-trial motions seeking the appointment of a guardian ad litem and entry of an order providing for joint counseling sessions with the father and the child. The trial court denied these motions and awarded the mother attorney's fees as the prevailing party pursuant to Tennessee Code Annotated § 36-5-103(c). The father has appealed. Discerning no reversible error, we affirm.

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

          J. Neil Thompson, Huntingdon, Tennessee, for the appellant, Glenn A. Stark.

          Teresa McCaig Marshall, Paris, Tennessee, for the appellee, Jana A. Burks.

          Thomas R. Frierson, II, J., delivered the opinion of the court, in which J. Steven Stafford, P.J., W.S., and Carma Dennis McGee, J., joined.



         I. Factual and Procedural Background

         On November 25, 2009, the State of Tennessee, on behalf of Jana A. Burks ("Mother"), filed a petition in the Henry County Juvenile Court ("trial court") seeking to establish the paternity of a minor child, R.B. ("the Child"), who was born earlier that same year. Mother alleged that Glenn A. Stark ("Father") was the biological father of the Child. A DNA test subsequently completed on March 30, 2010, showed the probability of Father's paternity of the Child to be 99.999995%. The parties thereafter proceeded to establish an agreed permanent parenting plan ("PPP"), which was approved for entry by the trial court on July 14, 2010. On August 6, 2010, the trial court issued a final order incorporating the parties' PPP and awarding Mother a judgment for child support arrearage.

         On September 11, 2013, the trial court entered an agreed order modifying the PPP. Subsequently, on April 21, 2014, the trial court entered an order modifying Father's current child support obligation and clarifying the amount of arrearage owed by Father.

         On December 10, 2014, Father filed a motion to compel visitation. In his motion, Father averred that he had not been given the opportunity to exercise his visitation rights with the Child during the Christmas holidays as provided by the parties' current PPP. Father stated that Mother refused to communicate with him regarding the visitation schedule. One week later, on December 17, 2014, Mother filed a motion seeking an order "restraining and prohibiting [Father] . . . from contacting" Mother or the Child pending further court order. Mother referenced statements made by the Child, alleging that Father had touched the Child in a sexual and inappropriate manner on multiple occasions during his co-parenting time. Mother supported her request by referring the trial court to an April 2014 forensic interview of the Child, wherein the Child allegedly provided specific details concerning such abuse. Mother further informed the court that she had enrolled the Child in ongoing counseling to cope with the alleged abuse. On February 9, 2015, Judge Vicki S. Snyder entered an order recusing herself from this matter. The case was thereafter heard by Judge Andrew Brigham by interchange.

         The trial court conducted a hearing concerning the parties' motions on November 10, 2015. In addition to hearing the testimony of the parties and reviewing the Child's forensic interview, the court also considered testimony from the child's counselor, a daycare worker, Father's adult daughter, and Father's mother. On November 16, 2015, the trial court entered an order granting Mother's motion for a restraining order and modifying the parties' PPP. In reaching its decision, the trial court applied the burden of proof set forth in Tennessee Code Annotated § 36-6-101(a)(2)(B), requiring that a party seeking modification of a PPP "prove by a preponderance of the evidence a material change in circumstances." The court then determined that Mother had demonstrated, by a preponderance of the evidence, that Father had touched the Child in an inappropriate manner on more than one occasion, which constituted a material change in circumstance affecting the Child. The court specifically found in pertinent part:

To conclude that the proof does not support this determination [that abuse had occurred] would require the court to disregard the child's statements during the forensic interview and instead conclude that her allegations were false. The court would further be forced to conclude that [the Child] was likewise repeating this falsity to [her counselor], Dr. Pickering, and to Mother. This canard would have to be the product of the mind of a 4 year old child and would need [to] be repeated consistently over the space of several months. The court cannot reach this conclusion when weighing the totality of the evidence. The court understands that Father is placed in the position of having to prove that something did not occur; a difficult task, to be sure. Nevertheless, the court is compelled to this conclusion.
In addition, if one is to conclude that [the Child's] disclosures during the forensic interview are a fabrication, then one must also conclude that [the Child] is able to convince [her counselor], a licensed mental health professional for 21 years, of the authenticity of her story. The court is not prepared to reach this conclusion.
The court notes, again, that the child made consistent disclosures to different people over a period of time.

         The trial court also found that it was in the Child's best interest for custody to remain with Mother and for Father to have no contact with the Child until further order of the court, based on the recommendation of the Child's counselor and the significant distance between Mother's and Father's residences. The court further determined:

[U]pon a favorable recommendation of [the Child's] mental health professionals, contact may well resume between [the Child] and Father. Such is for a future date. Absent an agreement, such contact would be by court order, must involve input from [the Child's] mental health professionals, must involve circumstances that would indicate that a threat to [the Child's] safety no longer exists, and must be in her best interests.

         Father filed a timely notice of appeal from the trial court's November 16, 2015 order; however, this Court dismissed the appeal, determining that the November 16, 2015 order was not final because it failed to address whether Father's child support obligation should be modified. This Court therefore remanded the matter to the trial court.

         Father subsequently filed two motions on June 12, 2017. First, Father requested that the trial court allow joint mental health counseling sessions for the Child and Father. Father additionally requested that the court use the counselor's evaluations from those sessions to determine the appropriate modification of Father's co-parenting time with the Child. Father argued that his only avenue for restoration of co-parenting rights would be for the trial court to allow counseling sessions wherein a medical professional could evaluate Father and the Child to determine whether restoration of visitation rights would serve the Child's best interest. Second, Father filed a motion asking the court to appoint a guardian ad litem to protect the interest of the Child in this matter. Mother filed responses to each of Father's motions, asserting that the motions should be denied and that she should be awarded attorney's fees related thereto.

         On July 3, 2018, the trial court amended its previous order to provide that Father's child support obligation had not been modified following the change in co-parenting schedule. A second order was entered on the same date, denying Father's motions for joint counseling sessions and appointment of a guardian ad litem. The court found that the Child's best interest would not be served by ordering the Child to participate in sessions with another counselor. With respect to the appointment of a guardian ad litem, the court expressed concern that appointing a guardian ad litem would necessitate further interviews of the Child, during which she would be subjected to "bringing up these memories." The trial court specified that Father could depose the Child's current counselor to evaluate whether the counselor believed that the appointment of a guardian ad litem served the welfare of the Child. Should the counselor believe that a guardian ad litem was needed, the trial court would "address that appointment." Furthermore, Mother's request for attorney's fees was denied.

         Also on July 3, 2018, Mother filed a "Motion Pursuant to Rule 52.02 of the Rules of Civil Procedure and Motion for General Relief." In this motion, Mother asked the trial court to amend its findings or make additional findings of fact and requested that the court reconsider its prior ruling and award her attorney's fees based upon her inability to pay them. Father filed a notice of appeal on July 13, 2018.

         On September 11, 2018, the trial court entered an order concerning Mother's motion, determining the relief sought to be in the nature of a Tennessee Rule of Civil Procedure 59 motion to alter or amend. The trial court concluded that Mother was entitled to an award of attorney's fees concerning her defense of the post-trial motions filed by Father. As support, the court determined that Tennessee Code Annotated § 36-5-103(c) provided authority to award attorney's fees to Mother. Mother was accordingly awarded attorney's fees in the amount of $7, 085.57 related to her defense of Father's motions seeking appointment of a guardian ad litem and for joint counseling.

         II. Issues Presented

         Father presents the following issues for our review, which we have restated slightly:

1. Whether the trial court erred by treating this matter as a custody action pursuant to Tennessee Code Annotated Title 36 rather than a dependency and neglect action pursuant to Tennessee Code Annotated Title 37.
2. Whether the trial court erred by failing to appoint a guardian ad litem when Mother filed her motion alleging sexual abuse of the Child by Father.
3. Whether the trial court erred by failing to grant Father's post-trial motion to appoint a ...

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