Gorski v. Ragains

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE FILED

July 21, 1999

JOHN MICHAEL GORSKI, ) Cecil Crowson, Jr.

) Appellate Court Clerk

Plaintiff/Appellant, ) Sumner General Sessions, Division II

) No. 2402-G

VS. )

) Appeal No.

LINDA EMILY GORSKI RAGAINS, ) 01A01-9710-GS-00597

)

Defendant/Appellee. )

APPEAL FROM THE

SUMNER COUNTY GENERAL SESSIONS COURT, DIVISION II

GALLATIN, TENNESSEE

THE HONORABLE BARRY R. BROWN, JUDGE

For Plaintiff/Appellant: For Defendant/Appellee:

Joe P. Binkley, Jr. Michael W. Edwards

Nashville, Tennessee Hendersonville, Tennessee

VACATED AND REMANDED

WILLIAM C. KOCH, JR., JUDGE

OPINION

This appeal stems from a protracted post-divorce custody dispute. Shortly after

the divorce, the father filed a change of custody petition in Division II of the Sumner

County General Sessions Court, and the court awarded him primary physical custody

on a temporary basis. Over two years later, the general sessions court dismissed the

father’s petition and ordered that the children be returned to their mother. We vacate

the order dismissing the father’s change of custody petition because the evidence

does not support the general sessions court’s conclusion that there had been no

material change in the children’s circumstances since the divorce.

I.

John Michael Gorski and Linda Emily (Gorski) Ragains are the parents of two

children – Jonathon Edward Gorski, born in January 1988, and Haley Analissa

Gorski, born in June 1990. After their marriage foundered, Mr. Gorski and Ms.

Ragains entered into a marital dissolution agreement addressing all custody, support,

property, and other issues between them. Even though he was aware that Ms.

Ragains abused alcohol, Mr. Gorski agreed in the marital dissolution agreement that

Ms. Ragains would have sole custody of their children. Accordingly, when the

parties were divorced in 1994 in the Sumner County General Session Court, Division

II,1 Ms. Ragains received sole custody of the parties’ children, and Mr. Gorski

received visitation rights in accordance with the marital dissolution agreement.

Ms. Ragains went into an emotional tailspin following the divorce.2 Many of

the parties’ mutual friends seemed to gravitate toward Mr. Gorski, and Ms. Ragains

lost her former social context. Her abuse of alcohol became more acute. Her

1

Division II of the Sumner County General Sessions Court has concurrent jurisdiction with

the circuit and chancery courts over “domestic matters.” See Act of Mar. 10, 1982, ch. 236, § 3,

1982 Tenn. Priv. Acts 89, 89-90, amended by Act of May 11, 1989, ch. 93, § 2, 1989 Tenn. Priv.

Acts 186, 186-87.

2

She explained later that “I was so hurt and devastated by this divorce. I thought I wanted

it, and I didn’t know how to live without [Mr. Gorski].”

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financial problems forced her to obtain a part-time job as a server in a restaurant.3

When she was eventually evicted from her apartment, she and the children moved

into her father’s and step-mother’s home.

Ms. Ragains’ continued alcohol abuse contributed to several bizarre incidents

between late 1994 and early 1995. On one occasion, Ms. Ragains appeared at Mr.

Gorski’s apartment late at night and kicked in a window. On another occasion, Ms.

Ragains telephoned Mr. Gorski in the early morning hours and demanded in loud and

profane language that he come right over and pick up the children. On other

occasions, Ms. Ragains told Mr. Gorski that the children were no longer her priority.

Finally, on Super Bowl Sunday in 1995, Ms. Ragains left the children on the doorstep

of a house where Mr. Gorski was attending a Super Bowl party.4

On February 6, 1995, less than four months after the divorce, Mr. Gorski filed

a change of custody petition. He alleged, among other things, (1) that Ms. Ragains

had lost her ability and desire to care for the children, (2) that Ms. Ragains had shown

an unstable employment history since the divorce, and (3) that Ms. Ragains often had

been drinking when she picked up the children from visitation. He also asserted that

a material change in circumstances had occurred and that he should be awarded both

temporary and permanent custody of the children. On February 17, 1995, before Ms.

Ragains had even answered Mr. Gorski’s petition, the general sessions court entered

an order temporarily changing the existing custody arrangement to joint custody,

placing the children under the protection of the Department of Human Services in

order to conduct home studies of the both parents' homes, and setting a March 1995

hearing on Mr. Gorski’s petition to change custody.

Ms. Ragains responded to Mr. Gorski’s petition by denying that there had been

a material change in the parties’ circumstances after the divorce. On March 22, 1995,

the parties submitted an agreed order providing that they would have joint custody

3

Mr. Gorski would have us believe that it is significant that Ms. Ragains was employed as

a server at a Hooter’s restaurant. Other than illustrating Ms. Ragains’ need for a second job in order

to make ends meet, we attach little importance to the fact that Ms. Ragains chose to work at this

particular restaurant rather than somewhere else.

4

Concerning this unhappy period in her life, Ms. Ragains later candidly admitted that “I

couldn’t control my own life, much less my kids. I mean do you think they’re going to have respect

for their mother who is abusing alcohol like it was . . ..”

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until the final disposition of Mr. Gorski’s petition. During this time, Ms. Ragains

also sought help for her alcohol abuse. She began attending both Alcoholics

Anonymous and professional counseling, and eventually, she was able to stop

drinking. She also obtained part-time work at both United Parcel Service and First

Tennessee Bank and attended a court-ordered parenting class. As a result of these

interventions, Ms. Ragains’ bizarre conduct stopped.

In May 1995, the parties submitted another agreed order continuing the joint

custody arrangement but naming Mr. Gorski as the children’s "primary custodian."

At this point, the general sessions court evidently decided to supervise this custody

dispute on an on-going basis rather than to hear and act on Mr. Gorski’s change of

custody petition that had been filed three months earlier. Rather than setting Mr.

Gorski’s petition for a dispositive hearing, the general sessions court’s May 1995

order merely recited that “this matter shall be reviewed by the Court on Friday,

August 4, 1995.”

Thereafter, for the next two years, the general sessions court held a hearing

before the children’s school year resumed to “review” the case. During the hearing

held in the summer of 1995, the court awarded custody of the children to Mr. Gorski

“on a temporary basis” to be “reviewed” next summer. At the 1996 hearing, which

was not held until October 1996, the court ordered the continuation of the temporary

custody arrangement but also increased Ms. Ragains’ visitation and ordered her to

begin paying child support to Mr. Gorski. The court also directed that “[t]his matter

shall be set for a final hearing upon motion of either party . . . during the month[s] of

June, July or August, 1997.”

In May 1997, Ms. Ragains filed a motion requesting a final hearing and asking

that the children be returned to her. The general sessions court held a hearing on July

18, 1997 and heard a number of witnesses, including the parties themselves, Mr.

Gorski’s live-in girlfriend, and Frank Ragains, Ms. Ragains’ then soon-to-be new

husband. The evidence at that hearing showed that Ms. Ragains had quit drinking

and that she had started a full-time job at a department store. It also showed that she

was engaged to be married later in the summer and that she wanted to enroll the

children in parochial school. In addition, Ms. Ragains described her plans for the

children including academics, sports, and extracurricular activities. When asked

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directly why she wanted sole custody of the children, she said, “Well, a lot of things

have changed.”

On August 5, 1997, over two and one-half years after Mr. Gorski filed his

petition, the general sessions court entered its order finally resolving the custody

issue. The court found that Mr. Gorski had been aware of Ms. Ragains’ abuse of

alcohol when he originally agreed to give her sole custody of the children. The court

also determined that Ms. Ragains no longer abused alcohol and, therefore, that there

had been no “drastic, permanent change since the time of the divorce.” The court

specifically found that the children had fared well while living with Mr. Gorski and

that both parents were currently “capable parents who love their children.” Even

though the court did not find specifically that changing the joint custody arrangement

that had been in place since 1995 would be in the children’s best interests, it

dismissed Mr. Gorski’s petition and directed that “the parties shall revert to the Final

Decree of Divorce of October 31, 1994.” Accordingly, Mr. Gorski was required to

return the children to Ms. Ragains.

II.

Mr. Gorski raises two related issues with regard to the general sessions court’s

decision in this case. First, he asserts that the court improperly placed the burden on

him during the July 1997 hearing to prove the existence of a material change in

circumstances warranting a change in custody. Second, he asserts that the evidence

does not support the court’s conclusion that there had been no material change in

circumstances since the entry of the original divorce decree. While we have

determined that the general sessions court properly placed the burden of proof on Mr.

Gorski, we find that Mr. Gorski successfully proved that the children’s circumstances

had changed materially since the divorce.

A.

We turn first to the burden of proof issue. Procedural issues such as this one

are of consequence in custody proceedings because following consistent and correct

procedures is one of the surest ways for the courts to make real the legal system’s

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aspiration to provide equal justice under the law. Procedural rules are particularly

important in domestic relations matters because they provide the chief means for

keeping the exercise of judicial discretion within proper bounds. See Carl E.

Schneider, Discretion, Rules, and Law: Child Custody and the UMDA’s Best-Interest

Standard, 89 Mich. L. Rev. 2215, 2218 (1991) (noting that “family law lives in a

tension between according officials discretion to make decisions and limiting that

discretion by requiring them to follow rules”).

The procedural rules applicable to this case are both statutory and decisional.

Tenn. Code Ann. § 36-6-101(a)(1) (Supp. 1998) empowers courts to make initial

custody decisions and to change or modify existing custody arrangements “as the

exigencies of the case may require.” Thus, by statute, initial custody decisions are

neither set in stone nor written in sand. While they govern all factual circumstances

known to the trial court up through the time of their rendering, initial custody

decisions do not prevent a trial court from subsequently modifying a custody

arrangement when required by unanticipated facts and subsequently emerging

conditions. See Smith v. Haase, 521 S.W.2d 49, 50 (Tenn. 1975); Adelsperger v.

Adelsperger, 970 S.W.2d 482, 485 (Tenn. Ct. App. 1997); Woodard v. Woodard, 783

S.W.2d 188, 189 (Tenn. Ct. App. 1989); McDaniel v. McDaniel, 743 S.W.2d 167,

168 (Tenn. Ct. App. 1987).

The statutory prerogative to change existing custody arrangements does not,

however, give trial courts a license to shuttlecock children around. In the interest of

continuity and stability, a trial court ordinarily should not consider changing its initial

custody decision until (1) it is satisfied that the child’s circumstances have changed

in a material way since the entry of the presently operative custody decree, (2) it has

carefully compared the current fitness of the child’s parents, and (3) it has concluded

that changing the existing custody arrangement is in the child’s best interests. See

Adelsperger v. Adelsperger, 970 S.W.2d at 485; see also Peters v. Peters, No. 02A01-

9810-CH-00283, 1999 WL 285891, at * 5 (Tenn. Ct. App. May 10, 1999) (No Tenn.

R. App. P. 11 application filed); Knight v. Knight, No. 01A01-9710-CV-00609, 1999

WL 20775, at *1 (Tenn. Ct. App. Jan. 20, 1999) (No Tenn. R. App. P. 11 application

filed); Brown v. Brown, No. 02A01-9709-CV-00228, 1998 WL 760935, at *12 (Tenn.

Ct. App. Nov. 2, 1998) (Farmer, J., concurring) (No Tenn. R. App. P. 11 application

filed).

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In terms of procedure, the party seeking to alter an existing custody

arrangement must show that the circumstances surrounding the child have materially

changed in a way that could not be reasonably foreseen at the time of the original

custody decision and that the child’s best interests will be served by changing

custody. See Adelsperger v. Adelsperger, 970 S.W.2d at 485; see also Solima v.

Solima, No. 01A01-9701-CH-00012, 1998 WL 726629, at *3 (Tenn. Ct. App. Oct.

16, 1998) perm. app. denied (Tenn. Apr. 19, 1999). This burden remains on the party

challenging the court-ordered custody arrangement, even if that party has obtained

temporary custody of the child, either by agreement or by court order, while the

change of custody proceeding is pending. See Mills v. Mills, 818 P.2d 339, 342 (Idaho

Ct. App. 1991); Winters v. Winters, 617 S.W.2d 585, 590 (Mo. Ct. App. 1981); Miller

v. Miller, 305 N.W.2d 666, 673 (N.D. 1981); Garvin v. Garvin, 271 S.E.2d 413, 413

(S.C. 1980).

In this case, Mr. Gorski filed the petition to change custody while he was the

non-custodial parent. Accordingly, as the moving party,5 he had the burden of

demonstrating (1) that a material change in circumstances had occurred, (2) that he

was comparatively more fit than Ms. Ragains to be the children’s custodian, and (3)

that it would be in the children’s best interests for him to be the custodial parent. The

fact that the children had been temporarily in his custody since 1995 did not shift the

burden to Ms. Ragains.

B.

No one-dimensional statement of the applicable legal rules can resolve this

particular case. Real world complexity steals into the equation when we consider, as

we must, that events and lives have not stood still while this custody dispute has been

in the courts. At this stage of the proceeding, we cannot ignore the fact that all the

parties’ circumstances are not the same as they were when they were last before the

trial court.

5

The moving party retains the burden of proof and persuasion with regard to motions and

petitions pertaining to child custody. See Nichols v. Nichols, 792 S.W.2d 713, 715 (Tenn. 1990);

Rust v. Rust, 864 S.W.2d 52, 56 (Tenn. Ct. App. 1993).

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Drawing from common sense observation, experience, and child development

theory, child custody law places a value on continuity and stability in children’s lives.

Our decisions reflect this belief. See, e.g., Taylor v. Taylor, 849 S.W.2d 319, 328

(Tenn. 1993); Adelsperger v. Adelsperger, 970 S.W.2d at 485; Contreras v. Ward,

831 S.W.2d 288, 290 (Tenn. Ct. App. 1991). Thus, while human behavior rarely

lends itself to neatly drawn lines of direct cause and effect,

The notion is that to grow and flourish a child is entitled to

and needs the security of a permanent place with

permanent ties to a parent figure; moreover, even

occasional environmental or familial changes, as well as

the threat or fear of such changes, will undermine the

child’s sense of stability and therefore the child’s comfort

and security.

National Interdisciplinary Colloquium on Child Custody, Legal and Mental

Perspectives on Child Custody Law: A Deskbook for Judges, § 20:1, at 238 (1998).

Prompt resolution of custody matters can help provide children with stability

and continuity. See King v. King, No. 01A01-9110-PB-00370, 1992 WL 301303, at

*2 (Tenn. Ct. App. Oct. 23, 1992) (No Tenn. R. App. P. 11 application filed).

Therefore, while we recognize that custody disputes are often among the most

difficult cases for courts to satisfactorily resolve, their prompt and conclusive

dispositions serve everyone’s best interest. Gallagher v. Adkins, No. 87-342-II, 1988

WL 34085, at *5 (Tenn. Ct. App. Apr. 15, 1988) (Koch, J., concurring) (No Tenn. R.

App. P. 11 application filed).

On occasion, trial courts will be compelled to make temporary alternations of

custody decisions in order to safeguard the children and to protect the integrity of the

judicial process. See King v. King, 1992 WL 301303, at *2. Temporary alterations

of existing custody arrangements should be limited to circumstances where clear and

convincing evidence shows that a child is being harmed or is about to be harmed

where he or she is. See Gallagher v. Adkins, 1988 WL 34085, at *6 (Koch, J.,

concurring). They should, in virtually all circumstances, amount to nothing more than

a preliminary decision that one or the other parent will keep the children until a

reasonably prompt full hearing on custody can be held. See Fountain v. Fountain,

365 So. 2d 1139, 1142 (La. Ct. App. 1978); Deffenbaugh v. Deffenbaugh, 596 P.2d

966, 971-72 (Ore. 1979).

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We emphasize this point about post-divorce temporary custody for two

reasons. First, courts should not be too hasty to ignore their previous final custody

decisions when they are called upon to re-enter the divorced parents’ wrangles. Once

a court fashions a permanent custody arrangement, a new family unit forms, and this

new family unit is entitled to be protected from adverturistic governmental intrusion.

See Rust v. Rust, 864 S.W.2d at 55-56 (stating that the concept of custody is

inextricably linked with parents’ rights to be free from unwarranted outside

interference with their child rearing). When courts must intrude into the otherwise

private realm of family life, they should do so in a way calculated to interfere with

the parent-child relationship as little as possible. See Rust v. Rust, 864 S.W.2d at 56;

Neely v. Neely, 737 S.W.2d 539, 542 (Tenn. Ct. App. 1987). It is difficult to imagine

an act intruding into the parent-child relationship more than wrenching a child away

from one parent and giving the child to the other parent, albeit temporarily.

Second, awards of temporary custody inevitably destabilize the equation for

modifying permanent custody. Quite often, they will insidiously shift the momentum

in the case to the temporary custodian. See, e.g., Bjork v. Bjork, No. 01A01-9702-

CV-00087, 1997 WL 653917, at *2-6 (Tenn. Ct. App. Oct. 22, 1997) (No Tenn. R.

App. P. 11 application filed) (awarding a post-divorce change of permanent custody

to a father following a lengthy award of temporary custody to the father). As we have

previously pointed out, temporary custody, when permitted to continue over a long

period, creates a “new status quo,” and permits the parent with actual custody to

establish a track record that heightens his or her chances of obtaining permanent

custody. See King v. King, 1992 WL 301303, at *2.

C.

This case, like Gallagher v. Atkins and King v. King, illustrates how the

disposition of a petition to change custody can be rendered more difficult by a

temporary custody arrangement that lasts for an extended period of time. The general

sessions court , downplaying the fact that the children had been in Mr. Gorski’s

custody for approximately twenty-seven months, appears to have based its denial of

Mr. Gorski’s petition to change custody primarily on Ms. Ragains’ successful efforts

to stop abusing alcohol. Whether or not we approve of the court’s use of temporary

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custody in this case, we cannot ignore the extended period of time these children have

spent with Mr. Gorski.

Any burden Mr. Gorski had to demonstrate a material change in the children’s

circumstances has been met in this case. The most striking change in the children’s

circumstance is that the children had been living with Mr. Gorski rather than Ms.

Ragains. In addition, Ms. Ragains’ expressions of disinterest in her children and her

attempts to abandon them were unforeseen changes in circumstances. Because of

these circumstances, the trial court erred by concluding that there had not been

material changes in the children’s circumstances since November 1994.

Because this record contains compelling evidence of a material change in the

children’s circumstances since November 1994, the general sessions court should

have proceeded to compare the fitness of Mr. Gorski and Ms. Ragains to be the

custodial parent and then should have determined whether it would have been in the

children’s best interests for them to remain with Mr. Gorski or to return to Ms.

Ragains. In making the best interests determination, the general sessions court should

have taken into consideration the bonding that may have occurred between Mr.

Gorski and the children during the twenty-seven months they were living with him.

The general sessions court is better situated than we are to compare the fitness

of the parties and to determine the placement for the children that will be in their best

interests. These determinations require the careful balancing of many factors, see

Rogero v. Pitt, 759 S.W.2d 109, 112 (Tenn. 1988); Holloway v. Bradley, 190 Tenn.

565, 571, 230 S.W.2d 1003, 1006 (1950); Garner v. Garner, 773 S.W.2d 245, 248

(Tenn. Ct. App. 1989), and may hinge on subtle nuances in the parties’ demeanor and

credibility. See Rutherford v. Rutherford, 971 S.W.2d 955, 956 (Tenn. Ct. App.

1997); Gaskill v. Gaskill, 936 S.W.2d 626, 631 (Tenn. Ct. App. 1996). Thus,

although this custody dispute has gone on too long as it is, we vacate the order

granting Ms. Ragains sole custody of the children and remand the case with

directions to the general sessions court to receive evidence concerning Mr. Gorski’s

and Ms. Ragains’ current fitness to be custodial parents and then to make a final

custody determination consistent with the children’s best interests. During the

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pendency of this hearing, the children shall remain in the sole custody of Ms.

Ragains.

III.

The order granting Ms. Ragains sole custody of Jonathon and Haley Gorski

entered on August 5, 1997 is vacated, and the case is remanded for further

proceedings consistent with this opinion. The costs on this appeal are taxed in equal

proportions to John Michael Gorski and his surety and to Linda Emily Ragains for

which execution, if necessary, may issue.

____________________________

WILLIAM C. KOCH, JR., JUDGE

CONCUR:

_________________________________

BEN H. CANTRELL,

PRESIDING JUDGE, M.S.

_________________________________

WILLIAM B. CAIN, JUDGE

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