B.M.M. v. P.R.M.

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

March 16, 2004 Session

B. M. M. v. P. R. M.

Appeal from the Circuit Court for Wilson County

No. 3300DV Clara W. Byrd, Judge

No. M2002-02242-COA-R3-CV - Filed August 18, 2004

This is a child custody dispute. The mother and father entered into a permanent parenting plan

naming the mother the primary residential parent of their daughter. Under the plan, the father had

supervised visitation because the mother was concerned about sexual abuse by the father. The father

later sought to modify the parenting plan to allow for unsupervised visitation. The mother then filed

a notice that she intended to move to Florida with the daughter, which the father opposed. The trial

court granted the father’s petition for unsupervised visitation and denied the mother’s request to

relocate to Florida with the child. The mother and daughter then left for a scheduled trip to Florida,

with the understanding that they would return for the father’s scheduled visitation. The mother

remained in Florida with the daughter for six weeks, asserting that she, the mother, was too ill to

travel. The father was granted an emergency change of custody. The father then retrieved the

daughter through a private investigator, coordinating with Florida officials. Upon return to

Tennessee, the trial court found the mother in criminal contempt for interfering with the father’s

visitation and for moving to Florida. The father was named the primary residential parent and the

mother was granted supervised visitation. The mother was also required to pay the father for the cost

of the private investigator. The mother appeals the denial of her request to move to Florida with the

child, the award of unsupervised visitation to the father, the finding of contempt, the change of

custody, the requirement that her visitation be supervised, and the requirement that she pay the

private investigator’s fee. We affirm.

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

HOLLY M. KIRBY , J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., W.S.,

and DAVID R. FARMER , J., joined.

Paula Ogle Blair, Nashville, for the appellant B. M. M.

Andrew M. Cate, Nashville, for the appellee P. R. M.

OPINION

Appellant B. M. M. (“Mother”) and Appellee P. R. M. (“Father”) were divorced by final

decree on January 29, 2001. At the time, the parties agreed on a “Permanent Parenting Plan”

concerning the parties’ then six-year-old daughter, Chrissy, which was incorporated into the final

decree. Under the parenting plan, Mother was named the primary residential parent and Father was

granted supervised visitation, subject to subsequent modification by mutual agreement. Mother had

insisted on the supervised visitation based on her belief that Chrissy was at risk for sexual abuse by

Father. Mother’s concerns about possible sexual abuse arose from Father’s viewing of internet

pornography, and Mother’s interpretation of games Father played with Chrissy as having sexual

overtones.

On October 5, 2001, Father filed a petition to modify the parenting plan to permit

unsupervised visitation with Chrissy. In the petition, Father maintained that there had never been

any justification for having his visitation supervised, but that he had agreed to the restriction only

because Mother assured him that she would later permit overnight, unsupervised visitation. Father

alleged that, rather than loosening the restrictions, Mother increased them, so he sought court

permission for unsupervised visitation. The trial court issued an order for Mother to show cause why

Father should not have unsupervised visitation. In her response, Mother alleged that Father should

not be permitted unsupervised visitation because he “suffers from paraphilia and sexual addiction

and . . . Father’s inappropriate behavior, including his behavior with or in the presence of the child,

makes [unsupervised visitation] inappropriate.” Mother also asserted that there had been no change

in material circumstances to justify modifying the agreed-upon parenting plan.

Shortly thereafter, on October 25, 2001, Mother sent Father notice of her intent to relocate

to Florida with Chrissy, pursuant to section 36-6-108 of the Tennessee Code Annotated. In the

notice, Mother said that she and Chrissy had lived in Tennessee with Mother’s mother, Lee M.

(“Grandmother”), and that Grandmother was moving to Florida for work. Mother asserted that she

depended on Grandmother to help pay for utilities and repairs to the residence as well as clothes for

Chrissy. Mother also contended that Florida had better home schooling opportunities than were

available in Tennessee. After receiving the notice, Father filed a petition opposing the move on

November 30, 2002, maintaining that there was no reasonable purpose for the move, that Mother had

vindictive purposes for the move, and that the move to Florida posed a threat of specific and serious

harm to Chrissy. On December 17, 2001, Mother filed an answer to Father’s petition opposing her

relocation to Florida with Chrissy, denying any grounds for Father’s opposition to her move.

A trial was conducted on the issues of Mother’s proposed relocation and Father’s petition for

unsupervised visitation. Most of the testimony was heard on May 22 and June 19, 2002. Regarding

the proposed relocation, Mother testified that she wanted her and Chrissy to move to Florida with

Grandmother, because she relied on Grandmother “physically and emotionally,” and because

Grandmother helped pay bills and watch after Chrissy. Mother believed that Chrissy’s relationship

with Grandmother was as important as Chrissy’s relationship with Father. Mother admitted,

however, that she was not financially dependent on Grandmother. Mother testified that, in addition

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to child support, Mother earned between $34,000 and $35,000 per year performing medical

transcription, which she did from her home. Mother said that she did not have worker’s

compensation or insurance benefits from her work, but she had access to VA doctors and received

$100 per month in VA benefits.

Chrissy testified as well. Chrissy was asked about her relationship with Father and the

contemplated move to Florida. She said that, under the parenting plan, she visited Father often

enough, but that “a lot of times I’ll be really looking forward to seeing him because I really miss

him.” When asked about the possibility of seeing Father less often, she responded, “I wouldn’t really

like it, because I really miss him.” She testified: “If I moved to Florida I would want to see him at

least as often as I—at least as often as I could. . . . ”

After hearing the testimony on this issue, the trial court denied Mother’s petition to relocate

to Florida with Chrissy. The trial court found no reasonable purpose for the move, reasoning that

Mother did not need Grandmother’s support to raise Chrissy:

The mom has a home here, friends here, a job. She makes 34,000, 35,000 a year. .

. . She can work when she wants to or at night when the child is in bed. She’s got

VA benefits and got a VA hospital right here. . . .

***

[B]asically you’re in better financial circumstances right here than 99 percent of the

single moms or single dads that I have come before this Court.

The trial court also heard testimony regarding Father’s petition to modify the parenting plan

to permit unsupervised visitation. In her testimony, Mother maintained that supervised visitation

was necessary because Chrissy was at risk of sexual abuse from Father. Mother said that she had

told Father that she was only willing to lift the visitation restrictions if she became convinced Chrissy

was in no danger, and that Father’s seeking counseling was only a first step to alleviating her

concerns. She testified that she first became concerned for Chrissy’s safety when she discovered that

Father had been viewing pornography on the internet, some of which she believed included child

pornography. She introduced into evidence photographs and graphics from their computer’s

temporary internet files. According to David Collinsworth (“Collinsworth”), who testified as a

computer expert on behalf of Mother, temporary internet files are text and graphics from internet

pages automatically saved on computers after being viewed on the internet. Although the files did

not directly indicate that children were in the pornographic photographs, Mother believed that some

of the subjects looked young enough to be underage.

Mother testified that, after she discovered that Father had been looking at internet

pornography, she reevaluated activities she had observed between Father and Chrissy during the

marriage, and had come to suspect that those activities had underlying sexual connotations. She

recalled games in which Father and Chrissy pretended to be animals and licked one another in

various places and sniffed each other’s ears. In her deposition, Mother testified about an incident

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in which Father was blow drying Chrissy’s hair and he pulled back her underwear, pointed the hair

dryer down her back and said “hot pants.”

Mother objected to a number of Father’s activities with Chrissy during his supervised

visitation. Father and Chrissy built tents and forts with blankets and furniture, a game, Mother

implied, which Father orchestrated in order to hide inappropriate conduct. Mother asked them to

stop building tents and forts. Mother said that the animal games that occurred during the marriage

continued; Father and Chrissy apparently played a game in which Chrissy was a stray dog and Father

would catch her and put her in the dog pound. Mother told them to “stay out of the dog pen.”

Mother objected to Father and Chrissy sword fighting, playing Peter Pan and Captain Hook, since

she considered it to be inappropriate. On one occasion, Father and Chrissy had been playing in the

back yard while Mother sat in the back yard reading a book. When Mother went to the bathroom,

Father took Chrissy to some nearby woods, where they were unsupervised for five to ten minutes.

After Mother came back from the bathroom, she yelled repeatedly, and they returned.

In one incident, Father and Chrissy were in the back seat of the car after a shopping trip to

the mall, and Chrissy complained of her legs being tired or sore. Mother then observed Father

massaging Chrissy’s upper thigh as she said “ooh” and “ah.” Mother, in the front seat, pointedly

cleared her throat, and Father stopped. Grandmother told Mother than she once observed Father

massaging Chrissy’s bare back and pelvic area as he tucked her into bed; thereafter, it was arranged

so that Father would no longer tuck Chrissy into bed. Mother told Father that it was inappropriate

for him to rub Chrissy’s legs and maintained that Father should not touch Chrissy in any way that

he would not touch a neighbor’s child.

Mother admitted that she had told friends that Father was “in kiddy porn” and that she had

told Father’s family that he had touched Chrissy inappropriately. She reported to the police that

Father had been viewing child pornography. She acknowledged that, in the past, she was raped by

her first husband and beaten to the point that she required reconstructive surgery. Mother said she

chose to home-school Chrissy because Chrissy had been tested and found to be a gifted child, and

Mother felt that gifted children in public schools were frequently bored.

Father presented testimony from his first wife, Rebecca M., to whom Father was married for

six years and who was the mother of Father’s son, Ben, Chrissy’s half-brother. Father and Rebecca

M. shared joint custody of Ben. Rebecca M. testified that Father was an excellent parent to Ben,

very patient, mellow and easy-going, and that she never saw any inappropriate behavior toward Ben

or any other child. She had been told the allegations that Father was interested in child pornography

and that he had engaged in inappropriate conduct with Chrissy. She commented, “I bet you a million

dollars that none of that’s true,” and said that she would “stake my life” on the fact that he was a

great father.

The trial court also heard testimony from Father’s son, Ben, a fifteen-year-old honor student.

Ben said that he had a good relationship with Father, that he and his friends would play sports with

Father, and that he was “really fun to be with.” He said that Father and Chrissy had fun playing

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together, and Father tucked Chrissy in at night, with no inappropriate behavior. Ben observed that

Chrissy always loved being around Father. Ben said that he had a good relationship with Chrissy

and he would like to see her more often. Ben described his relationship with Mother, his step-

mother, as “uneasy,” and said that when Mother and Father were married, Ben and Mother did not

get along. He characterized her as “controlling and strict,” and said that Mother criticized him as

“irresponsible” and “a bad influence on Chrissy.” Ben testified that Mother was “very paranoid

about how Chrissy might get hurt or how people might take advantage of Chrissy.”

Father also testified. Initially, he explained that as his marriage deteriorated, Mother belittled

and demeaned him, and their sexual contact greatly diminished. As a sexual outlet, approximately

a year before the parties divorced, he began viewing pornography on the internet. He was “not real

proud” of having done it. Father denied viewing or searching for child pornography. He

acknowledged that a number of the temporary internet files retrieved by the computer expert, David

Collinsworth, had references to subjects who were “young” or “teens,” but said that these were links

or headers to pornography sites that he did not necessarily access.1 He acknowledged having

accessed a few that involved bestiality, out of curiosity. Father said that he agreed to the parenting

plan, which provided for supervised visitation, because he was upset at having failed at another

marriage, he was demoralized by Mother’s belittling of him, and because Mother had threatened to

publicly expose his viewing of pornography. He said that Mother promised him that, if he would

see a counselor, she would relax the restrictions on his visitation. Father obtained counseling from

a psychologist, as agreed, but Mother increased, rather than decreased, the restrictions. When Father

confronted her, Mother refused to consider relaxing the restrictions.

Father flatly denied ever sexually abusing Chrissy. Father testified that he massaged Chrissy

on her back, stomach, and legs to help her sleep, and had done so since Chrissy was a baby, but that

he never touched her genital area. Father maintained that it was not inappropriate for him to massage

Chrissy in a way that he would not massage another child. He denied that the games he played with

Chrissy were for sexual gratification and said that Mother had no objection to them prior to learning

that he had been viewing pornography. Father suggested that Mother had a history of overreacting

to seemingly benign circumstances and said that, after she learned of the pornography, she began

putting a “sexual spin” on innocuous behavior.

Father recounted a number of incidents in which he said Mother overreacted or read sexual

overtones into harmless activities. When Father and Chrissy made blow guns out of construction

paper and tape and accidentally knocked over a drink, Mother put an end to their game and asked

Chrissy ominously, if this was the sort of game she would play with her friends? Mother objected

to the game in which Father was the dog catcher and Chrissy was the stray dog and the dog catcher

would catch her when she sneaked out. Mother said it was not appropriate to put Chrissy in the dog

pen and admonished Chrissy repeatedly, “Is this the sort of game you would play with your friends?”

1

Collinsworth also testified that, although all of the pictures and graphics he retrieved had appeared on the

computer screen, only one of the files that Mother asserted may have had underage subjects indicated that the

computer user intended to view it. The remainder were banners or “thumbnail” links to other web sites.

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Mother objected to Chrissy and Father making tents and forts with blankets and chairs, because

Mother believed Father used this method to get alone with Chrissy, out of Mother’s sight. Mother

disapproved of Father and Chrissy playing Peter Pan with toy swords and hats, because it was too

violent. She thought it was inappropriate for Father and Chrissy to pretend to be animals and sniff

each other’s face or ears, because she believed Father was doing this for sexual gratification. Father

said that they pretended to lick each other’s face or ears, but did not really lick, and that they did not

sniff rear ends as dogs do. After a trip to the mall, Chrissy complained that her legs were tired, and

Father said that he, in the back seat with Chrissy, “lightheartedly” massaged the top of her leg, and

Mother objected. In the incident with the hair dryer, Father said he was drying Chrissy’s hair and

playfully pulled the back of her panties and blew the hair dryer and said “Hot Pants,” and Chrissy

giggled. He was unaware of Mother’s objection until her deposition. On one occasion, Father took

Chrissy out of the back yard to look at some nearby construction, and Mother became very upset.

When Father signed up to go with Chrissy on the father/daughter camping trip organized by

Chrissy’s home-school co-op program, Mother told persons associated with the program that Father

had been viewing child pornography, and, according to Father “they quickly decided that I was unfit

to go on that trip.”

Father testified that Mother treated his son Ben “poorly” and was overprotective of Chrissy.

Mother felt that Ben was “a delinquent” and “a bad influence on Chrissy.” Mother became very

angry when Ben let his mother into their house to see his Halloween pumpkin, because of her

concern that Ben’s mother might do something to Chrissy.

Father said that Mother chose to home-school Chrissy in part because she did not want

Chrissy influenced by the type of children in public schools. Father said that Mother usually signed

up to teach Chrissy’s Sunday School class, and seemed unwilling to let Chrissy out of her sight.

Father was concerned that Mother’s overprotectiveness of Chrissy limited her experiences, and that

the restrictions on Father’s visitation with Chrissy made his contact with her “artificial.” He thought

that Mother communicated to Chrissy a distrust of men in general, resulting in part from Mother’s

abusive first husband. Father denied any inappropriate conduct with Chrissy and sought standard,

unsupervised visitation.

At the conclusion of the testimony on June 19, 2002, the only testimony remaining was

expert psychological testimony. At that point, the trial judge told the parties:

Well, at this time I find no reasonable purpose for the move to Florida. The mom has

. . . an ideal situation here. . . . There is no way she could make this move at this time

without totally alienating this child from her daddy. . . . I’m going to reserve any

findings on whether or not I think this is a total attempt to alienate the child from the

father or whether I think the move is vindictive. I’m reserving those findings at this

time, because I do want to see what the psychologicals show. . . . I really don’t know

that supervision is necessary anymore, but I’m going to let [the expert] finish her

recommendation and see. . . .

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Thus, the trial court at that juncture told the parties that she was inclined not to permit Mother to

move to Florida and that she did not see a need to have Father’s visitation with Chrissy supervised.

The testimony resumed on August 2, 2002.

The trial court heard testimony and received a report from an expert appointed by the court

to evaluate Chrissy, Dr. Lisa Dupree (“Dr. Dupree”), who also worked with the Tennessee Bureau

of Investigation on identifying child pornography. Dr. Dupree commented on the pornographic

images admitted into evidence, noting that, although there were some photos in evidence that

depicted subjects whose age was questionable, the pornography submitted into evidence did not

depict any prepubescent children. Dr. Dupree also explained the difficulty of identifying underage

pornography on the internet. She noted that “virtually every pornographic site that we have seen has

some advertisement of teens.” She suggested that it would be nearly impossible to view any

pornography on the internet without encountering some mention of teens. She also noted:

There are virtually no internet sites that don’t talk about teens. . . . The reality is that

. . . a male with normal sexual arousal is going to have sexual arousal to teens

because they have secondary sexual characteristics. . . . So that is not a deviant

behavior. That is actually normal sexual arousal. . . . [though] it’s inappropriate and

it’s exploitative.

Dr. Dupree’s report noted that Father had admitted to two isolated incidents of sexually

deviant behavior as a teenager, one involving a young child and the other involving a sexual interest

in animals. Though Father fit no sexual offender profile, these incidents, along with some bestiality

internet files in evidence, raised some concerns. She noted that zoophilia is found in “a significant

minority of sex offenders who engage in incest-only offending.” However, the research involved

those incarcerated or already identified as abusers, “[s]o it certainly is not totally appropriate to

generalize that to the entire population.” She testified that these factors raised some concerns but

were not predictors of future abuse:

I’m not comfortable saying that even rises to the level of a DSM diagnosis. But just

the interest [in bestiality] that’s there and other history of the younger child, even

though that was sometime ago, those two things, again, they just increase my level

of concern. It’s not a predictor.

Dr. Dupree said that she talked with Father about his massaging Chrissy under her nightgown to help

her go to sleep and that Father categorically denied that the massages were sexual in nature. She was

asked whether she had an opinion on whether the massages were appropriate, and she responded that

there was no way for her to know whether Father’s intent was sexual or “grooming in nature.” She

defined grooming as “desensitizing a child to touch, you know, putting a child in a situation where

something normal is going on and then moving it to a situation that’s uncomfortable or a violation

of boundaries,” and observed that such grooming “tends to happen slowly over a period of time with

sex offenders and children.” Dr. Dupree said that, based on all of the information she had, even

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though Father’s past raised the level of concern higher than it would have been for someone without

Father’s past, Dr. Dupree did not predict that Father would abuse Chrissy.

In her report, Dr. Dupree stated that she found no evidence of child abuse. She noted that

Grandmother, who had testified that she saw Father touching Chrissy’s pelvic area, was not sure if

Father actually touched the genital area. Although Chrissy categorically denied Father had ever

touched her genitals, Dr. Dupree observed that Chrissy indicated a fear that Father would touch her

in inappropriate places. Dr. Dupree said that Mother had told Chrissy that she had found “dirty

pictures” on Father’s computer, and that Chrissy told Dr. Dupree that, after she learned this, Chrissy

began to worry that Father might touch her in private places. Chrissy was aware that her visits with

Father were supervised in order to protect her from the possibility of Father touching her

inappropriately. Dr. Dupree told Mother that she felt it was inappropriate for her to discuss these

types of things with Chrissy.

Dr. Dupree also noted that Mother decided to bring Chrissy to the Rape and Sexual Abuse

Center for counseling and that she disagreed with this decision. She observed that there was nothing

to support the conclusion that sexual abuse had occurred, and that research indicates that it is ill-

advised to put a child in therapy for sexual abuse where there has been no finding of such abuse. Dr.

Dupree was concerned that Chrissy’s anxiety was picked up from the adults who surrounded her.

Moreover, prior to Chrissy’s visit to the Rape and Sexual Abuse Center, Mother told Dr. Dupree that

she did not believe Father had sexually abused Chrissy, that Mother was simply seeing behaviors that

concerned her. After Mother took Chrissy to the Center, however, Mother’s view changed, and she

became convinced that Chrissy had in fact been abused.

Under these circumstances, Dr. Dupree predicted that at least an allegation of abuse was

likely without intervention. This prediction was not based on Father’s behavior but rather on

Mother’s apparently genuine belief that sexual abuse had occurred; this meant that Mother would

likely be more aggressive in looking for sexual abuse in the future. Dr. Dupree testified that the

likelihood that Mother would allege abuse in the future presented a problem:

[J]ust going to a place called the Rape and Sexual Abuse Center sends this child a

message about her experience and tells her what her experience is. Whether indeed

that’s real or not isn’t even considered. . . . I am very concerned that without effective

family intervention . . . at some point there will be another allegation. And if this

child has been in therapy for sexual abuse for an extended period of time, it may be

impossible to accurately access [sic] or investigate a future allegation of sexual abuse

because of prior treatment that may well be contaminating . . . any information you

might receive.

Thus, Dr. Dupree was concerned that if Chrissy continued to be treated as if she had been abused,

in the absence of evidence to the contrary, it would be impossible to determine the legitimacy of any

potential future allegations. Dr. Dupree added that Chrissy’s response to Mother’s behavior could

cause further problems in managing the situation: “It appears that [Chrissy] experiences her mother’s

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anxiety as her own regardless of whether there is actual danger to her.” Dr. Dupree did not rule out

the possibility that the anxieties Mother passed to Chrissy were the result of Mother’s own personal

issues:

It may be that [Mother] has recognized that her daughter is in danger and her reaction

is defensive in nature. . . . It is also possible [Mother] is reacting to perceptions of

danger that are related to her own personal issues rather than some real danger to her

daughter. Based on information gathered during the assessment, both scenarios must

be considered equally possible.

Dr. Dupree summarized her findings: “At this time sexual abuse is not found to be present.

However, this child appears to be at increased risk for sexual abuse. It is also clear that an allegation

of sexual abuse in the future is likely.” Thus, Dr. Dupree made recommendations “designed to

reduce the risk of sexual abuse . . . and to reduce the risk of a false allegation or an allegation that

can’t be accurately assessed in the future.” She recommended family therapy counseling for Chrissy

in a setting that would involve both Mother and Father. She also recommended individual

counseling for Mother and Father. Dr. Dupree urged that Chrissy’s counseling at the Rape and

Sexual Abuse Center be terminated. She did not comment on whether Father’s visitation with

Chrissy should be supervised.

At the conclusion of the testimony on August 2, 2002, the trial court issued an oral ruling.

Initially, the trial court reiterated its June 19 ruling that there was no reasonable purpose for Mother’s

proposed move to Florida, and denied her request to relocate with Chrissy. The trial court next

reviewed the witnesses’ testimony in some detail. It then granted Father’s petition to modify the

parenting plan to permit unsupervised visitation. The trial court found that there was no evidence

showing Chrissy had been sexually abused. The court stated:

I find no reason for the visitation to be supervised. And I find [Father] to be a very

credible witness, and I believe him when he says he hasn’t abused this child. I

believe this child when this child says he hasn’t molested her. And I rely upon the

experts. And I see absolutely no reason for this father to be denied standard

visitation. And I certainly don’t believe it’s in this child’s best interest. In fact, I

believe it’s a danger to her mental health to continue this supervised visitation based

on the record I have and what the witnesses have stated.

The trial court commented on the harm that the supervised visitation inflicted on Chrissy:

. . . I just believe this supervised visitation has done nothing but harm to this child,

because she is being sent the message that she can’t be trusted alone, that her father

can’t be trusted alone, and they’re living their entire visitation under a microscope.

. . . I’ve had the psychologicals prepared on [Father], and [the expert] did not find

anything there at all to indicate that he had ever abused this child or would ever abuse

this child. The only questionable act he’s ever done has been whatever act he

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indicated that maybe he did when he was a teenager. But [Father] is in his 40s now.

And since then he’s raised one 15 year old that’s just turning out excellent.

The trial court ordered that the therapy at the Rape and Abuse Center be immediately discontinued,

and ordered counseling with a psychologist recommended by Dr. Dupree. The trial judge stated:

My concern is this thought has been put in [Chrissy’s] mind that she and her dad

have an improper relationship, and I think that’s not fair to this child. She shouldn’t

look on their games as being dirty. This child needs to feel that she is loved by both

of her parents, that she is safe with both of her parents, because they haven’t been

anything but good to her. And it’s a shame if we’ve come to the point in time where

you can’t rub a child’s back without being accused of inappropriately touching your

child. . . . That’s what parents are for.

Accordingly, the trial court lifted the restrictions on Father’s visitation and denied Mother’s request

to stay the order pending appeal. The written order denying Mother permission to move to Florida

and removing the restrictions on Father’s visitation was not entered until September 3, 2002.

Immediately following the conclusion of the August 2, 2002 proceedings, Mother took

Chrissy on an agreed-upon trip to Florida to see Grandmother, with the understanding that they

would return on August 9 in time for Father’s first scheduled overnight visitation with Chrissy. But

it was not to be.

For the trip to Florida, Mother packed Chrissy’s school books, her dog, several stuffed

animals, several changes of clothes and pairs of shoes, and children’s books. At about the same

time, sometime during the first week of August, Mother turned over possession of her Tennessee

home to a third party under a lease-purchase agreement which she apparently had entered into on

June 18, 2002. The lease-purchase agreement had originally been contingent upon the trial court

allowing her to move to Florida with Chrissy, but Mother apparently waived that contingency. When

they left for Florida, Mother left in her Tennessee home personal property such as furniture and

clothing, which the tenants placed in storage. In Florida, Grandmother was living in a home which

had Mother’s name on the title. When Mother and Chrissy arrived in Florida, they stayed in this

home with Grandmother. While Mother and Chrissy were in Florida, Chrissy’s home-schooling

continued and she began participating in activities with the Florida home-school co-op in the area.

Mother and Grandmother dyed Chrissy’s hair a lighter color.

In the days leading up to his scheduled August 9 visitation with Chrissy, Father tried

unsuccessfully to call Chrissy. On August 5, 6, and 7, he called both Mother’s cell phone and

Grandmother’s home phone and reached no one. On August 8, Mother answered the phone and told

him she was sick and unable to return Chrissy to Tennessee for the August 9 visitation. Mother

called Father on August 10, and told him that she was on medication and unable to drive. When

Father asked to speak with Chrissy, Mother told him Chrissy did not want to speak with him and

disliked talking with him on the phone. On August 13, the date of Father’s next scheduled visitation,

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Father went to Mother’s Tennessee residence. The tenants, who were at the home, informed Father

that Mother and Chrissy no longer lived there.

Father then made plans to go to Grandmother’s home in Florida to get Chrissy and bring her

to Tennessee for his visitation. Due to the circumstances, Father planned to bring with him an

associate pastor from his church. On August 21, Father was finally able to reach Mother by the

telephone. He discussed the planned trip with her, gave her the flight information, told her the

associate pastor would be with him, and asked her to bring Chrissy to the airport. Mother objected

to Father bringing the associate pastor and refused to take Chrissy to the airport. She subsequently

called the senior pastor of the church, as well as the church’s district office. She told them Father

might engage in inappropriate sexual conduct with Chrissy, sent them excerpts from Dr. Dupree’s

report, and threatened to sue the church if the associate pastor accompanied Father. Father cancelled

his travel plans.

During this time period, roughly the latter part of August or in September, Grandmother flew

to Tennessee to retrieve items from the Tennessee house. The tenants living in Mother’s Tennessee

house loaded a truck with furniture and belongings and Grandmother drove it to Florida. During

Grandmother’s trip to Tennessee, Mother and Chrissy remained in Florida. There is no suggestion

in the record that Father was told at the time that Grandmother was traveling to Tennessee.

Father maintained that, during this time, he was not permitted to speak to Chrissy on the

telephone, and that when he reached Mother or Grandmother on the telephone, he was told either

that Chrissy was not there or that she did not want to talk to him.2 On August 28, Father called and

Grandmother answered the telephone. He asked to speak to Chrissy and was told that Chrissy did

not want to speak with him. When Father questioned this, Mother, in the background, asked Chrissy

loudly, do you want to speak to your father? Chrissy responded no. This was repeated, this time

apparently closer to the telephone, and then the telephone was hung up.

Father called the Florida home again on September 5 to speak with Chrissy. Father tape-

recorded the conversation:

Grandmother: “Hello.”

Father: “Hi, Lee. It’s [Father]. Could you put” --

Grandmother: “Can you hold just one moment?”

Father: “Sure.”

Grandmother [talking into cell phone]:

“Aunt Reeny, I’ve got to go. I’ll give you a call back

later, maybe tonight. Yeah, it’s the a_ _hole.”

***

2

W hen asked in her later testimony whether she talked to Father while she was in Florida, Chrissy said “Uh-

huh.”

-11-

Grandmother (to Father): “Yes, okay. I’m with you. Yes?”

Father: “I’m calling to talk to Chrissy.”

Grandmother: “I’m sorry. Chrissy is not here anymore.”

Father: “Could you tell me how I could get a hold of her,

please.”

Grandmother: “Actually, I don’t know. I have no idea where she is.

I don’t know where [Mother] is, but they’re no longer

here. They left.”

Father: “Okay. Do you know if they came back up here [to

Tennessee]?”

Grandmother: “I haven’t the foggiest idea.”

Father: “You don’t know? Well, okay. Well, that’s really

interesting.”

Grandmother: “It really is, but I’ll tell you something, [Father].

Don’t bother me any more. Okay. I don’t need to be

bothered by a perverted a_ _hole, piece of dog s_ _t,

and that’s, basically, what I think of you. So don’t

bother me. Don’t come near me. Don’t come after

me. Just don’t bother me because I don’t associate

with the type people you are.”

Father: “That’s fine.”

Grandmother: “Okay?”

Father: “As long as you aren’t lying to me and —”

Grandmother: “Listen. Don’t you ever call me a liar again, you son

of a b _ _ ch , or I’ll be back to Nashville after your

damn a_ _”

Father: “That’s fine. You’re harboring someone who is

breaking the law.”

Grandmother: “I’m not harboring anybody. Let me tell you

something. If somebody wants to break the law, let

me tell you, you come near me, I’ll show you what

kind of law can be broken, you piece of dog s_ _t.

That’s the only thing you are. You’ve been the cause

of nothing but grief both for my daughter and my

granddaughter.”

Father: “Yeah, that’s what you say.”

Grandmother: “Yes. Let me tell you, man.”

Father: “There’s nothing you have to say to me. Good-bye.”

Grandmother: “Yes. Good-bye. Don’t ever bother me again, ever,

because if you do, I’ll have your f_ _ _ing a_ _ in

jail.”

-12-

At that point, then, Father did not know where Mother and Chrissy were. Not surprisingly, he did

not call Grandmother’s Florida home again.

Not long after this, on September 10, 2002, Father filed a petition for contempt with the

Tennessee trial court. Reciting many of the above facts, he asserted that Mother had in fact moved

to Florida in defiance of the trial court’s order, that she was preventing him from exercising his

court-ordered right to visitation, and that he had been unable even to speak with Chrissy by telephone

since August 21. In addition, based on Mother’s alleged intentional interference with his and

Chrissy’s relationship, Father requested temporary emergency custody and an eventual permanent

designation as primary residential parent. On September 11, the trial court issued an order granting

Father emergency custody of Chrissy.

Right away, Father set about hiring private investigators in Florida to locate Mother and

Chrissy. Within a few days, the private investigators learned that Mother and Chrissy were in fact

still living with Grandmother. Father had the private investigators conduct surveillance on

Grandmother’s home and on Mother’s and Chrissy’s comings and goings during the day every day,

while the lawyers worked on getting the Tennessee order for emergency custody domesticated in

Florida. This process took approximately two weeks. Father then flew down to Florida, met with

his Florida lawyer to finalize the orders, coordinated with the local Florida sheriff’s department and

met with the private investigators. On September 26, as Father and the private investigators waited

in separate vehicles a short distance from Grandmother’s home, a sheriff’s deputy attempted to serve

the domesticated order on Mother, by knocking on the door of Grandmother’s home and by

telephoning her home as well. There was no answer to either. The sheriff’s deputy then left and

Father and the private investigators continued the surveillance of Grandmother’s home.

After some time, Grandmother came out of the house and looked around. She then got in

Mother’s car, in the garage, drove around the neighborhood briefly and returned. Soon after that,

Mother and Chrissy emerged, got in Grandmother’s car, a Ford Mustang, and drove away from

where Father and the private investigators were parked. Father contacted the sheriff’s department

and the private investigator started his vehicle and drove behind Mother and Chrissy in the Mustang.

Shortly, Grandmother, in Mother’s car, pulled in behind the private investigator’s vehicle. With

Father’s vehicle last in line, all of the cars began winding their way through the neighborhood and

onto the main road. While on the main road, Grandmother got her vehicle behind the Mustang,

which Mother was driving, and bumped the private investigator’s vehicle twice to prevent him from

going around her. A sheriff’s car then began pursuit, and the car that Grandmother was driving

swerved at Father’s vehicle, forcing it temporarily off the road. The Mustang then pulled into a

dead-end street and the pursuit ended. Grandmother protested that the sheriff’s deputies should not

give Father custody of Chrissy because he was a danger to her. The private investigator alleged to

the deputies that Grandmother had intentionally struck his vehicle with hers, and Grandmother was

placed in handcuffs and put in the police car. Father then obtained custody of Chrissy.

After Father returned with Chrissy to Tennessee, he enrolled her in a local school and brought

Chrissy to see the counselor ordered by the trial court. After Father gained custody of Chrissy,

-13-

Mother spoke with Chrissy by telephone virtually every day. In the middle of October, 2002, Mother

returned to Tennessee and moved into a somewhat smaller house while continuing to lease out her

original Tennessee home. Pending the hearing on Father’s contempt petition and his petition for a

permanent change of custody, the trial court ordered supervised visitation for Mother at Father’s

discretion. Mother visited with Chrissy at the Exchange Club and attended Chrissy’s school

activities such as cheerleading practices and basketball games. Mother also met with school officials

and Chrissy’s teacher.

During this time period, Father tape-recorded Chrissy’s telephone conversations with Mother

and Grandmother. In the telephone conversations, Mother and Grandmother asked Chrissy

repeatedly if she was ready to “come home” and told her that they were working to get her “home.”

Mother also asked Chrissy if anyone had tried to touch her inappropriately. Mother advised Chrissy

to throw temper tantrums in public places if Father resisted letting her talk to Mother on the

telephone. Mother told Chrissy that Father was trying to have her put in jail. Moreover, a copy of

Dr. Dupree’s earlier report was sent to the principal of Chrissy’s school by an anonymous

“concerned citizen.”

The hearing on the contempt charge and Father’s petition for a permanent change of custody

was held November 13-14 and December 10, 2002. At the hearing, both Mother and Grandmother

testified, offering innocuous explanations for their actions. Mother claimed that she had gone to

Florida for vacation only, and that she had planned to bring Chrissy back to Tennessee on August

9, the day of Father’s scheduled visitation. Mother acknowledged that Chrissy was involved in home

school co-op in Florida, but explained that she was only involved in their social activities, and noted

that, on August 27, she had enrolled Chrissy in a Tennessee home school program. Mother also

pointed out that after she arrived in Florida, she had made an appointment for Chrissy with the

Tennessee psychiatrist for August 14, pursuant to the trial court’s order, although the appointment

was later cancelled. Grandmother testified that Chrissy always packed school books, her dog, toys,

and numerous clothes and shoes on trips. Mother explained that the house in Florida was in her

name only because Grandmother had had a bankruptcy in the past, and Mother qualified for a lower

interest rate. Although Mother technically made the down payment, the money for the down

payment had come from Grandmother. Mother testified that, although the trial court denied her

request to move with Chrissy to Florida, she went ahead with the lease-purchase agreement on her

Tennessee home because she wanted to downsize to a smaller home. Mother asserted that during

the litigation, she had been looking for a new, smaller place in Tennessee, and when she left for

Florida she “had a new place in mind.” Mother claimed that the furniture that was moved to Florida

belonged to Grandmother, not to her. She said that her own furniture remained in storage in

Tennessee so that it could be moved to a new home in Tennessee. Mother said she and Grandmother

changed Chrissy’s hair color only because Chrissy wanted her hair “done the color of Mary [K]ate

and Ashley” (teen celebrities) and asserted that it did not drastically alter Chrissy’s appearance.

Mother testified that she had no purpose or intent to violate the trial court’s order. She said

that Grandmother had moved to Florida in October 2001, and said that she made Father aware well

in advance of her plan to visit Grandmother at the conclusion of the hearing. Although she planned

-14-

to bring Chrissy back to Tennessee on August 9 for her visitation with Father, Mother testified that

she became ill. She said that she experienced diarrhea, nausea, vomiting, muscle jerks and twitches,

and severe headaches that caused vision disturbances. Mother sought medical help and, on the day

she had been scheduled to return with Chrissy to Tennessee, she was sedated by powerful

prescription medication, including Xanax, and stayed in bed for a couple of days. She told Father

by telephone of her illness, and told him that her symptoms and the medicine made it impossible for

her to drive Chrissy to Tennessee, and that she did not know when she would be able to do so. Over

the course of the next two months, Mother said, she saw medical professionals at least fifteen times.

She said that, at one point, her condition began to improve, but then deteriorated again around the

middle of September. Grandmother testified that Mother tried several times to pack up and return

with Chrissy to Tennessee, but that Mother would cry, shake and hyperventilate, and would end up

at the doctor’s office again.3 Mother acknowledged that she was “devastated and terrified” after the

trial court’s order awarding Father unsupervised visitation, and that she had “very real concerns”

about Chrissy’s safety. She said that nothing she had heard had diminished her belief “that

something might have happened to Chrissy.” In Florida, when she thought of these firmly-held

beliefs, she became ill.

Mother acknowledged that, while Chrissy was in Florida, Chrissy rarely spoke by telephone

to Father, perhaps only once. She said that this was because Chrissy did not want to talk to Father.

Mother was asked about her efforts to get Chrissy to talk to Father. At first, Mother said, she was

“not up for” a fight with Chrissy over the issue. Mother said that later, however, she tried to make

Chrissy talk to Father. Mother said that she and Grandmother physically carried Chrissy to the

telephone and held the phone up to Chrissy’s face. She testified that Chrissy “went just absolutely

board rigid and . . . turned white in the face.” Chrissy did not talk to him.

In her testimony, Grandmother was asked about the telephone conversation with Father in

which she told him Chrissy was not there anymore. At this point, Grandmother was apparently

unaware that the conversation had been tape-recorded. She said she came home from work that day

and Mother and Chrissy were not there. She said that when Father called, she told him that they

were not there, that she did not say that they were not there “anymore.” Grandmother testified that

Father immediately responded by calling her a liar and accusing her of harboring a criminal and that

he “kept pressing” her. She acknowledged calling him a rude name and said she told him, “I prefer

you don’t call me.” When confronted with the tape of the conversation, Grandmother acknowledged

that she had in fact told Father that Chrissy was not at her home “anymore” and that she responded

to Father’s rather civil inquiries about Chrissy with foul language. Grandmother claimed that, when

Mother and Chrissy later returned, Mother called Father and told him that they were at

Grandmother’s house.

3

Mother and Grandmother asserted that they had talked to a retired friend in Kentucky about the friend’s

planned visit to Florida in October and inquired about getting the friend to assist Mother in bringing Chrissy back to

Tennessee in October, some two months after Father’s scheduled August 9 visitation.

-15-

Grandmother admitted that she had traveled to Tennessee while Mother and Chrissy were

in Florida, and said that she could not bring Chrissy to Tennessee for her scheduled visitation with

Father because Mother’s anxiety and fear from having to turn Chrissy over to Father caused

Mother’s illness. Mother also acknowledged that Grandmother could have brought Chrissy to

Tennessee, but said that Grandmother was reluctant to do so and she could not make Grandmother

bring her.

Mother and Grandmother also explained the September 26 car chase that resulted in the

police taking custody of Chrissy and turning her over to Father. Mother testified that, in the days

prior to September 26, unknown persons would periodically knock on their door, ring the bell, call

on the telephone, and run around the house yelling and banging on windows. She did not answer

the door or the telephone out of fear. Mother said that this occurred five or six times, sometimes at

night. Even though they were “very scared,” they did not call the police. On September 26, an

unknown person knocked on the door and rang the bell, and the telephone also rang. Mother was

afraid, and Grandmother came home from work and looked around the neighborhood. Chrissy was

scheduled to play with friends from the Florida home-school co-op, so Mother and Chrissy left for

that. Since Chrissy liked Grandmother’s Mustang, they took Grandmother’s car. When the private

investigator’s vehicle came up behind the car Mother was driving, Mother said, she was “petrified.”

She said she did not know the people following her and Chrissy. During the car chase, she asserted,

she was trying to get to the local mall, feeling that would be a safe place. When she inadvertently

turned into a dead-end street, she was “very relieved” to see the police cars pulling up.

Mother asserted that since Father obtained custody of Chrissy, he had not been adequately

tending to Chrissy’s multiple health issues, including recurring bladder infections, problems with

control of her bowel, and allergies.4 Although Mother said she was “happy with” the school in

which Chrissy was enrolled, she felt that Father did not adequately address Chrissy’s educational

needs.

During the hearing, the trial court required Mother to submit medical records to substantiate

her claim that, while in Florida, she had become too ill to drive safely to Tennessee. The medical

records from Florida in fact supported Mother’s assertions of illness and went on to note that Mother

needed psychotherapy to address depression and anxiety as well as to improve problem solving and

coping skills. The Florida records stated that Mother should not drive under the medications

prescribed. Father’s counsel noted several statements in the medical records in which Mother

described her situation and the source of her anxiety. Although some of the records described

Mother as “visiting” Florida, other records said she had “moved” to Florida and described Mother’s

fears about Father. One record dated August 12, 2002 said: “She states that she came to Florida

because she is afraid that the father will molest their daughter if he is allowed unattended visitation.”

A second note that day says: “She states that she recently moved to Florida with her daughter. . . .”

A record dated September 6, 2002 noted: “She stated that she is doing her best to obtain legal advice

4

Mother insisted that it was imperative that Chrissy begin taking Claritin at the “first onset” of allergy

symptoms and stay on it several months, because Chrissy “has a history of having developed pneumonia from post-

nasal drip.”

-16-

while in Florida to prevent her daughter from being returned to her father in Tennessee.” An entry

on September 13, 2002 said: “She states that she came to Florida because she is afraid that the father

will molest their daughter if he is allowed unattended visitation.” Mother denied the accuracy only

of the statements indicating that she had in fact moved to Florida.

At the conclusion of the hearing, the trial judge issued an oral ruling in which she clearly

rejected Mother’s innocuous explanations for her actions. In her ruling, the trial judge indicated that,

when she had previously considered Mother’s petition to move to Florida, she had suspected that the

purpose behind the proposed move was to alienate Chrissy from Father, and that Mother’s

subsequent actions proved that this suspicion was correct. The trial court noted that, at that point,

Mother could have sought to protect Chrissy by appealing the trial court’s ruling, seeking a stay

pending appeal and participating in the counseling ordered by the trial court, but that Mother chose

not to do so. Instead, she moved out of her Tennessee home and in fact moved to Florida, despite

Mother’s protestations otherwise. The trial court pointed out that Mother did not provide

documentation of any medical attention for her claimed illness prior to August 10, 2002, when she

was already in contempt of court for not having returned Chrissy to Father for his visitation.

The trial court discredited Mother’s and Grandmother’s testimony in other respects. The

judge noted that Grandmother had testified that Father “basically goaded her into cussing him out,”

and that the tape of the conversation “didn’t sound at all like what she described.” The trial court

observed that both Mother and Grandmother maintained that numerous people had come to the home

on several occasions banging on the door, and that they were afraid these unknown persons would

attempt to snatch Chrissy. Despite this, the trial court pointed out that the police were not called and

observed that an explanation for this behavior would be if Mother were “hiding out from the law or

trying to avoid the police coming to the house to take the child . . . .”

The trial court granted Father’s petition to be permanently designated the primary residential

parent. In doing so, the trial court first reiterated its belief that Father was a caring parent who would

not harm Chrissy and reviewed the evidence which supported this conclusion. The trial court next

noted several changes in circumstances since the August 2 oral ruling which justified a permanent

change in custody. These circumstances included: Mother giving up her home within the week of

the original decision; a reduction in Mother’s salary by almost half of the amount stated at the first

trial; Mother’s relocation to Florida with Chrissy in defiance of the trial court’s order; and the actions

by Mother and Grandmother to deprive Father of his court-ordered visitation rights. The trial court

contrasted this with Father’s actions since obtaining temporary custody of Chrissy, which were

supportive of Chrissy’s relationship with Mother.

The trial court also cited as a change in circumstance the deterioration of Mother’s mental

health. The trial court commented on Mother’s demeanor during the trial:

[W]hen I look at her medical records, I can’t tell any difference in the depression

state and anxiety state from the date of August 10th, when this lady couldn’t

function, until now. This psychiatrist down in Florida—they were talking about her

-17-

being tearful at times and at other times displaying what they described as mood

incongruent laughter. If you took this up to the Court of Appeals, it wouldn’t show

it. But [Mother] laughs at the wrong times, and that record is not going to show it.

The trial court emphasized that the change in custody was not punishment for Mother’s contempt

of court: “I just don’t think she can be trusted with this child anymore. That really concerns me, this

child’s safety.” The trial court granted Mother supervised visitation at Father’s discretion.

On the contempt petition, the trial court found Mother guilty of fifteen counts of criminal

contempt for the denial of Father’s visitation and one count of criminal contempt for moving Chrissy

to Florida in violation of the trial court’s earlier order.5 The trial judge was reluctant to put Mother

in jail because Chrissy would think that Father had put Mother in jail. Consequently, although the

trial judge sentenced Mother to ten days in jail for each of the fifteen counts regarding Father’s

visitation, she gave Mother the option, in lieu of jail, to pay Father restitution under section 29-9-105

of the Tennessee Code for the $14,800 in the private investigator fees that resulted from Mother’s

violation of the order forbidding her from moving with Chrissy to Florida. In the event that Mother

paid the restitution to Father prior to serving the entire sentence, the trial court stated that it would

suspend the remainder of Mother’s jail sentence. The trial court also permanently designated Father

as Chrissy’s primary residential parent. Finally, because Mother had been found guilty of willful

contempt, Father was awarded attorney’s fees in the amount of $15,127.50. Mother now appeals.6

Mother lists several issues on appeal, including whether the trial court erred in first denying

her request to relocate, granting Father unsupervised visitation, and permitting testimony about the

marital relationship, and later finding Mother guilty of criminal contempt, designating Father as the

primary residential parent, limiting Mother to supervised visitation,7 awarding attorney’s fees to

Father, and ordering Mother to pay Father’s private investigator fees.

5

The original order on this matter was filed on January 30, 2003. However, the trial court amended the

final order by way of a M ay 2, 2003 order modifying its holding on contempt and setting the amount of attorneys

fees awarded to Father, an issue that had been reserved in the January 30 order. The May 2 order was filed after the

record of this appeal had been filed with this Court. Mother therefore filed a motion to stay the appeal until the

record was supplemented with the May 2 order. An order from this Court was filed June 25, 2003 noting that the

record had been supplemented on June 18 and granting Mother fifteen days to file her brief. However, the order also

states: “All other matters, including the effect of the post-judgment items contained in the supplemental record, are

reserved pending completion of the briefing schedule and oral argument.” W e will therefore consider the May 2,

2003 order as though it had been filed with the original record.

6

Although the trial court issued an oral ruling on August 2, 2002, the written order was not entered until

September 3, 2002. Mother’s notice of appeal of this order was filed on September 16, 2002. Mother also sought an

extraordinary appeal pursuant to Rule 10 of the Tennessee Rules of Appellate Procedure, which was denied. The

written order on the trial court’s December 10, 2002 oral ruling was not entered until January 30, 2003, and

Mother’s notice of appeal was filed on February 28, 2003.

7

Mother originally also appealed the trial court’s decision leaving visitation at Father’s discretion. This

issue is moot in light of the trial court’s post-judgment order establishing a court-ordered visitation schedule for

Mother.

-18-

On appeal, we will presume the trial court’s factual findings to be correct unless the evidence

preponderates otherwise. Tenn. R. App. P. 13(d); Huntley v. Huntley, 61 S.W.3d 329, 334 (Tenn.

Ct. App.1991). Decisions regarding visitation and custody are generally reversed only for abuse of

discretion, as “ ‘the details of custody and visitation with children are peculiarly within the broad

discretion of the trial judge.’ ” Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001) (citations

omitted). Regarding the finding of criminal contempt against Mother, we “must review the record

to determine if the proof adduced at trial supports the finding of the trier of fact of guilt beyond a

reasonable doubt.” Levenhagen v. Levenhagen, No. M1998-00967-COA-R3-CV, 2000 WL 1292446,

at *7-*8 (Tenn. Ct. App. Sept. 14, 2000); see Tenn. R. App. P. 13(e); Thigpen v. Thigpen, 874

S.W.2d 51, 53 (Tenn. Ct. App.1993) (noting that, for contempt, an appellate court does not view the

evidence in the light most favorable to the accused; rather, a finding of criminal contempt will be

reversed only when the evidence does not support the conviction beyond a reasonable doubt). The

trial court’s punishment for contempt and its award of attorney’s fees are reviewed for an abuse of

discretion. Aaron v. Aaron, 909 S.W.2d 408, 411 (Tenn. 1995) (considering attorney’s fees); Hawk

v. Hawk, 855 S.W.2d 573, 583 (Tenn. 1993) (considering punishment imposed for contempt). As

to the trial court’s determinations regarding credibility, the weight, faith, and credit to be given to any

witness’s testimony lies in the first instance with the trial court, which has the opportunity to observe

the witnesses’ manner and demeanor while testifying, and the credibility accorded by the trial court

will be given great weight by the appellate court. In re Estate of Walton v. Young (In re Estate of

Walton), 950 S.W.2d 956, 959 (Tenn. 1997). The trial court's conclusions of law are reviewed de

novo, with no presumption of correctness. Huntley, 61 S.W.3d at 334.

We address first the trial court’s decision to grant Father unsupervised visitation with Chrissy.

Mother argues that the parties had in place an agreed-upon marital dissolution agreement and

parenting plan which provided for supervised visitation for Father, and that in order to modify the

visitation arrangement, the trial court was required first to find a material change in circumstances

and then that the modification was in the child’s best interest. She cites Adelsperger v. Adelsperger,

970 S.W.2d 482, 485 (Tenn. Ct. App. 1997). Mother maintains that the circumstances which

warranted the supervised visitation still existed, and that Father’s alleged sexual behavior toward

Chrissy made it clear that removing the requirement of supervision for Father’s visitation was not

in Chrissy’s best interest. Mother argues that Father’s massages of Chrissy were cause for concern,

that his games with Chrissy were inappropriate, and that Father tried to evade supervision during the

visitation. She discusses selected portions of Dr. Dupree’s testimony and report, emphasizing Dr.

Dupree’s statement that there was “information that suggests an increased risk for this child,” and the

discussion of the two incidents when Father was a teenager, one involving a younger child and

another involving an interest in bestiality. She notes Dr. Dupree’s statement that “whenever you see

one sexually deviant behavior you’re likely to see other sexually deviant behaviors.” As to Father’s

massages of Chrissy, Mother points out Dr. Dupree’s statement that it was not possible for her “to

know if indeed his intent was sexual or grooming in nature.”

As Mother knows well at this point, supervision of a parent’s visitation with his or her child

is a significant intrusion on the parent-child relationship. It is sometimes necessary in order to protect

-19-

the child yet permit continuation of the relationship. It is not to be undertaken lightly or without a

reasonable basis.

Mother correctly points out that an agreed-upon parenting plan, incorporated into a court

order, becomes res judicata. Adelsperger, 970 S.W.2d at 485. Normally, modification of the agreed-

upon designation of the primary residential parent and the allocation of parenting time calls for

showing a material change in circumstances and that a modification will serve the child’s best

interest. Id. By its nature, however, supervision of a parent’s visitation with a child must be viewed

in a different context. Unlike, for example, the designation of the primary residential parent, such

supervision is normally intended to continue only so long as there is a reasonable need for it. Other

courts have noted that a trial court should modify the conditions of supervised visitation or end it

altogether when “the allegations that necessitated the supervision are determined to be without

‘credible evidence’ . . . or . . . the noncustodial parent had demonstrated a clear ability to control the

propensities which necessitated the supervision.” Carter v. Carter, 470 S.E.2d 193, 200 (W.VA.

1996) (internal citations omitted). As always, “the best interests of the children should determine the

pace of any visitation modification to assure that the children’s emotional and physical well being is

not harmed.” Id.

Indeed, in this case, Mother does not dispute Father’s testimony that the parties discussed the

conditions under which the supervision of Father’s visitation would end. They certainly disagree on

the conditions that would have to be met in order to end the supervision, but there is no indication that

the parties agreed that the supervision would continue until Chrissy reached majority.

Since supervision stems from the delicate balancing of protection of the child with

preservation of the child’s relationship with her parent, we are compelled to recognize that such

decisions hinge on the trial court’s assessment of the parties’ credibility, specifically, whether the

parent can be trusted to spend time alone with the child without violating the necessary boundaries.

As we have noted above, such credibility determinations are peculiarly within the province of the trial

court, and the appellate court must accord such credibility decisions great weight. See Walton, 950

S.W.2d at 959.

In this case, the trial court heard exhaustive evidence on the issue of Father’s alleged sexual

proclivities, from the parties, numerous witnesses and even expert testimony. To Mother’s dismay,

the trial judge here found Father and the witnesses who testified on his behalf credible. The trial

judge looked at Dr. Dupree’s testimony in overall context, and found that it did not support Mother’s

assertion that Father was a threat to Chrissy’s well-being. In assessing the credibility of Mother and

the witnesses who testified on her behalf, the trial court found that Mother’s reaction to Father’s

viewing of pornography had resulted in Mother convincing herself of phantom threats to Chrissy’s

safety that simply never existed. Making such credibility determinations with respect to the well-

being of a child is perhaps a trial judge’s most important responsibility, and the appellate court is

obliged to accord great deference to its findings.

In this appeal, Mother rightly asks that her concerns about sexual abuse of her beloved

daughter be taken seriously. This we must do. While we accord appropriate deference to the trial

-20-

court’s assessment of the witnesses’ credibility, we are also obliged to examine the record

independently and review the trial court’s decisions carefully. This, likewise, has been done. After

reviewing the evidence in detail, we cannot disagree with the trial court’s decisions to grant Father

unsupervised visitation.

Viewed as a whole, the evidence simply does not support Mother’s conclusion that Father’s

viewing of pornography as their marriage disintegrated and the isolated incidents that occurred when

he was a teenager mean that Father has engaged in sexually inappropriate behavior with their daughter

or that he is likely to engage in such behavior. The trial judge found that the games and massages

were appropriate parental behavior, and we cannot disagree. This is corroborated by the testimony

of Father’s first wife and his son, Ben, both found credible by the trial court. Even Dr. Dupree’s

testimony and report, although heavily relied upon by Mother, when viewed in total context, does not

support her assertion that Father’s time with Chrissy should be supervised.

Indeed, the evidence strongly supports the trial court’s conclusion that Mother’s

hypervigilance regarding Father’s alleged sexual abuse of Chrissy has done real harm to Chrissy.

Mother’s overreaction resulted in Chrissy being treated as a survivor of sexual abuse, without any

evidence that such abuse had occurred. Mother watched Father’s every move around Chrissy,

signaling disapproval at indications of normal physical affection, frequently asking Chrissy if Father

had touched her inappropriately and making it clear to Chrissy that Mother’s fear of such sexual

misconduct was the reason his visitation was supervised. Chrissy was even brought to the Rape and

Sexual Abuse Center for counseling as a sexual abuse victim. In her testimony, Dr. Dupree

acknowledged but downplayed any risks regarding Father. However, she unequivocally said that

Mother’s exaggerated response was unhealthy for Chrissy and would likely result in future

accusations of sexual abuse, regardless of whether there was any basis for such accusations.

With deference to the trial court’s determinations of credibility, we cannot find that the trial

court erred in granting Father unsupervised visitation, in concluding that Chrissy should not be treated

as a sexual abuse survivor when no such abuse had occurred, and in determining that Father and

Chrissy should be permitted to have a normal father-daughter relationship. The trial court’s decision

to award Father unsupervised visitation is affirmed.

Mother also argues that, during the first hearing on whether Father’s visitation should be

supervised, the trial court erroneously permitted Father to testify about events that occurred in the

marriage. Clearly this testimony was appropriate to give necessary background for the parties’

agreed-upon parenting plan. This issue is without merit.

Next, Mother contends that the trial court erred in refusing to permit her to relocate to Florida

with Chrissy. The trial court initially concluded that there was no reasonable purpose for Mother’s

proposed move and that there was a threat of serious harm to Chrissy from the move, namely, the

destruction of her relationship with Father. The trial court reserved any ruling on the issue of whether

the relocation was proposed for a vindictive purpose. Later, in the course of the hearing on Father’s

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petition for contempt, the trial court concluded that Mother had in fact proposed the move to Florida

for a vindictive purpose.

The trial court reasoned that Mother was in a comfortable position in Tennessee even if

Grandmother no longer lived with them. It was undisputed that Mother was not financially dependent

on Grandmother. The trial court also considered the almost certain destruction of Chrissy’s

relationship with Father, already burdened by Mother’s overreaction to Father’s viewing of

pornography and Mother’s resulting hypervigilance regarding sexual abuse. We cannot disagree with

this conclusion. Mother’s conduct indicated that, despite her protestations otherwise, she did not

appropriately value Chrissy’s relationship with her father, even going so far as to testify that she

believed that Chrissy’s relationship with Grandmother was as important as Chrissy’s relationship with

Father. The trial court rightly concluded that a move to Florida would likely result in the destruction

of the father-daughter relationship.

Moreover, as discussed more fully below, the trial court did not err in concluding that the

relocation to Florida was proposed for a vindictive reason. The proposed move followed closely on

the heels of Father’s request that the restrictions on his visitation be removed, and Mother’s actions

prompting the contempt hearing show that, in moving to Florida, Mother intended to seriously

damage, if not destroy, Chrissy’s relationship with Father. Therefore, the trial court’s decision not

to permit Mother to relocate to Florida with Chrissy is affirmed.

We next address the trial court’s finding that Mother was in contempt of court for both

preventing Father from having his visitation with Chrissy and for moving to Florida with Chrissy.

Section 29-9-102(3) of the Tennessee Code provides that the trial court has the power to hold a party

in contempt of court for “[t]he willful disobedience or resistance of any . . . party . . . to any lawful

. . . order . . . of such courts.” Tenn. Code Ann. § 29-9-102(3) (2000). Mother argues that her failure

to return Chrissy to Father for the court-ordered visitation could not be considered willful under the

statute, because she intended to return Chrissy to Tennessee for her visitation but was physically

unable to do so. She also argues that the evidence does not support the trial court’s finding that she

in fact moved to Florida with Chrissy.

The undisputed evidence shows that within days of the order granting Father unsupervised

visitation, Mother leased her Tennessee home and gave up possession of it, left for Florida without

any arrangements for housing upon return to Tennessee, took many of Chrissy’s belongings, including

her school books, involved Chrissy in a Florida home school coop program, and lived with

Grandmother in a Florida home purchased in her own name. The only documentary evidence offered

by Mother that she even considered returning to Tennessee was a letter offered by Mother showing

acceptance to a Tennessee home school program, dated August 27, 2002, nearly a month after Mother

and Chrissy arrived in Florida and eighteen days after Chrissy missed her first unsupervised visitation

with Father. All of this indicates Mother intended from the beginning to stay in Florida indefinitely.

Mother insists that her failure to bring Chrissy back to Tennessee was caused by her illness,

which was documented, and that consequently it was not intentional, which is required for a finding

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of contempt. Indeed, the evidence shows that Mother was in fact ill, but it also indicates clearly that

Mother’s illness resulted from her intense anxiety at having to turn Chrissy over for unsupervised

visitation with Father. Mother’s statements to medical professionals, as well as Grandmother’s

observations of Mother becoming ill at the prospect of returning Chrissy to Tennessee, demonstrates

this. Mother appears to argue that she should have been permitted to keep Chrissy in Florida with

her indefinitely or at least until she was no longer sickened by the prospect of Father visiting

unsupervised with Chrissy. But after hearing exhaustive evidence, the trial court found that Mother’s

fears, however real, were without basis; Mother was bound by law to accept and abide by the trial

court’s ruling, and failed to do so.

Despite rather implausible testimony by both Mother and Grandmother that they were

supportive of Chrissy’s relationship with Father, their conduct belied this. For many of Father’s

telephone calls to Chrissy, Mother and Chrissy were gone, although Mother ostensibly was too ill to

bring Chrissy to Tennessee or even to bring her to the airport to meet Father. Mother did not testify

about any efforts by her to call Father back when he left messages. On a telephone call from Father

when Chrissy and Mother happened to be home, Mother yelled to Chrissy, do you want to speak to

your father? Chrissy, of course, dutifully responded no, and this charade was repeated for emphasis.

In an astonishing display of cruelty, Grandmother told Father that Chrissy was not there “anymore,”

that she did not have “the foggiest idea” where they were, and called him vile names for having the

temerity to question her about his daughter’s whereabouts. Grandmother, of course, returned to

Tennessee to retrieve yet more furniture but gave no consideration to bringing Chrissy for her court-

ordered visitation. When Father made arrangements to travel to Florida to get Chrissy, accompanied

by his pastor because of his justifiable concerns over what Mother might do, Mother called church

officials and threatened legal action against the church if they supported Father’s efforts to see his

daughter. When the Florida sheriff’s deputy came to Grandmother’s house to serve her with an order,

she said she was afraid to come to the door because a group of unknown persons had been coming

to the home at odd hours, banging on the door, ringing the bell, calling on the telephone and even

banging on windows and yelling outside. Despite this, no law enforcement officials were called.

Both Mother and Grandmother offered a variety of fallacious explanations for this conduct, which

the trial court rightly and categorically rejected. The evidence in the record clearly supports the trial

court’s finding of criminal contempt, including the requisite intent, beyond a reasonable doubt, and

the finding of contempt is affirmed.

Next, Mother challenges the trial court’s modification of the original parenting plan to

designate Father as the primary residential parent. A change of custody may be made if there has

been a material change in circumstances and if the modification is in the child’s best interests.

Adelsperger, 970 S.W.2d at 485. When determining whether there has been a change in material

circumstances, courts should consider whether “the change ‘has occurred after the entry of the order

sought to be modified,’ the change ‘is not one that was known or reasonably anticipated when the

order was entered,’ and the change ‘is one that affects the child’s well-being in a meaningful way.’

” Kendrick v. Shoemake, 90 S.W.3d 566, 570 (Tenn. 2002) (citations omitted). Further, a parent’s

change in circumstances may justify a change in custody if the change affects the child’s well-being.

Id. A material change in circumstances may also include a parent’s failure to follow the parenting

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plan. Tenn. Code Ann. § 36-6-101(a)(2)(B) (Supp. 2002). The determination of whether the change

in custody is in the child’s best interests should be made according to the factors set out in Tennessee

Code Annotated section 36-6-106. Kendrick, 90 S.W.3d at 570. These factors include the parents’

mental and physical health and the willingness and ability of each parent to facilitate and encourage

a relationship with the other parent. Tenn. Code Ann. § 36-6-106 (2001).

Mother argues that, even if she is found to be in contempt of court, her prolonged stay in

Florida was not a sufficient change in circumstance to warrant a change in custody, and that a change

was not in Chrissy’s best interest. The trial court correctly found that Mother had in fact moved to

Florida, and this was ample justification for designating Father as the primary residential parent.

However, the trial court did not rely on this as the basis for its decision. Rather, the trial court based

its decision on other changed circumstances, such as the fact that Mother had given up possession of

her Tennessee home, with no replacement Tennessee home, without informing anyone; that Mother

testified that she was only making half as much money as a medical transcriptionist; and that

Mother’s parenting decisions were poor, such as suggesting to Chrissy that she throw a temper

tantrum in a public place if Father resisted letting Chrissy call Mother. Most importantly, the trial

court based its decision on Mother’s deteriorated mental health, laid out clearly in the Florida medical

records Mother introduced into evidence to show her inability to return Chrissy to Tennessee for

visitation. The trial court observed that there was no evidence that Mother’s mental state had

improved and that in fact Mother’s demeanor in court, such as mood incongruent laughter, indicated

that her mental and emotional condition remained unstable. The trial court also based its decision on

the behavior of both Mother and Grandmother in Florida, clearly directed toward alienating Chrissy

from Father and making it impossible for him to see her, and the trial judge’s justifiable conclusion

that Mother could not be trusted with Chrissy. The trial court contrasted this with Father’s conduct

since receiving custody of Chrissy, which was to facilitate Chrissy’s relationship with Mother:

[Father] actually let her talk to this child within 24 hours after he’s finally gotten to

see this child for the first time in six weeks, which amazes me. It shows me which

parent has the best parenting skills, which parent is not going to alienate the child,

[Father].

All of this evidence supports the trial court’s finding of a material change in circumstances.

Mother argues that a change of custody is not in Chrissy’s best interest, because Father

represents a continued threat of abuse to Chrissy, and because Father neglects Chrissy’s many health

issues. Mother’s argument that Father represents a continued threat of sexual abuse is discussed

above and must be rejected. Mother argues that, after having obtained custody of Chrissy, Father

neglects Chrissy’s medical needs. This argument must be rejected as well. Although Father does not

duplicate Mother’s near-obsessive attention to Chrissy’s health issues, the evidence does not support

Mother’s assertion that this difference in parenting constitutes neglect. Overall, the evidence

overwhelmingly supports the trial court’s designation of Father as the primary residential parent, and

it is affirmed.

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Mother next appeals the trial court’s requirement that her visitation be supervised. Mother

clearly remains convinced that Father is a danger to Chrissy, and that her actions in keeping Father

from Chrissy were in Chrissy’s best interest. Mother to this day fails to understand how her conduct

deprives Chrissy of a normal parental relationship with either her father or her mother. Generally,

the details of visitation with children are within the broad discretion of the trial judge and will be

reversed only on a showing that the trial judge abused that discretion. Eldridge, 42 S.W.3d at 85.

The trial judge in this case found that Mother’s conduct demonstrated that she could not at this point

be trusted with unsupervised visitation of Chrissy. Sadly, the evidence fully supports this conclusion.

Finding no abuse of discretion, we affirm the trial court’s requirement that Mother’s visitation with

Chrissy be supervised.

Mother argues next that it was an abuse of discretion for the trial court to award Father the

$14,800 in private investigator fees he incurred to retrieve Chrissy in Florida, under Tennessee Code

Annotated section 29-9-105. Mother argues that Father did not plead these fees as damages and that

they were therefore improper under Rule 9.07 of the Tennessee Rules of Civil Procedure. However,

our review of the record indicates that Mother failed to raise this issue at trial. Issues not raised at

trial may not be argued on appeal. Simpson v. Frontier Credit Union, 810 S.W.2d 147, 153 (Tenn.

1991). Moreover, the trial court assessed these fees against Mother as an alternative to her spending

10 days in jail for each of the fifteen counts of criminal contempt, a total of 150 days in jail. The trial

court did this apparently because Mother had told Chrissy that Father was attempting to have her put

in jail, and the trial judge did not want Father blamed because Mother chose to defy the trial court’s

order and place herself in contempt of court. We see no error in the trial court’s decision, and it is

affirmed.

Mother also appeals the award to Father of $15,127.50 in attorney’s fees, accrued after Mother

took Chrissy to Florida.8 Our review of the affidavit of Father’s counsel’s confirms the trial court’s

conclusion that the attorney’s fees were reasonable and necessary in this case. The contempt and

change of custody proceedings were necessitated by Mother’s failure to return Chrissy for Father’s

visitation. The trial court decision to assess attorney’s fees against Mother was not an abuse of

discretion, and it is affirmed as well.

The decision of the trial court is affirmed. Costs of this appeal are taxed to Plaintiff/Appellant

B. M. M. and her surety, for which execution may issue if necessary.

___________________________________

HOLLY M. KIRBY, JUDGE

8

As discussed supra note 5, although the trial court’s May 2, 2003 order setting attorney’s fees was added

to the record on appeal, the order is given full effect. Mother inexplicably reserved argument on the issue of

attorney’s fees. No further briefing is necessary or permitted on the issue of attorney’s fees.

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