finding testimony regarding defendant‘s susceptibility to inducement admissible
How later courts described this case
- finding testimony regarding defendant‘s susceptibility to inducement admissible
Written by the judges who cited it.
The opinion
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
July 21, 2015 Session
MICHAEL WATSON v. KARLA MYERS
Appeal from the Chancery Court for Williamson County
No. 42155 Robbie T. Beal, Judge
________________________________
No. M2014-01862-COA-R3-CV – Filed October 7, 2015
_________________________________
In this post-divorce dispute, Father argues that the trial court erred in failing to make him
the primary residential parent because of Mother‘s alleged failure to facilitate a close
relationship between Father and the child. The trial court found a material change in
circumstances, but concluded that a change in the primary residential parent was not in
the best interest of the child. We affirm because the evidence does not preponderate
against the decision of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
ANDY D. BENNETT, J., delivered the opinion of the court, in which FRANK G. CLEMENT,
JR., P.J., M.S., and RICHARD H. DINKINS, J., joined.
Connie Reguli and Julia Shaver, Brentwood, Tennessee, for the appellant, Michael
Watson.
Casey Ashworth, Franklin, Tennessee, for the appellee, Karla Myers.
OPINION
FACTUAL AND PROCEDURAL BACKGROUND
Karla Myers (―Mother‖) and Michael Watson (―Father‖) were married in 2003 in
Illinois. The parties moved to California in November 2003 and had a child, Kloe, in
June 2004. In 2005, Mother and Father separated, and Mother moved to Oregon with
Kloe to live with Father‘s parents. The parties divorced in Oregon in January 2006. By
agreement, Mother was granted sole legal custody of Kloe.
Mother married John Myers (―Stepfather‖) in November 2008. Thereafter, Kloe
lived with Mother, Stepfather, and Keenan (her stepbrother). After marrying Stepfather,
Mother relocated to Arizona, then to Williamson County, Tennessee. In the summer of
2013, Stepfather accepted a new position in Illinois. Father objected to Mother moving
with Kloe.
At the time of the hearing in May 2014, Father was a resident of California and
was married to Jennifer (―Stepmother‖). He had been a Marine for over 19 years and had
been deployed four times since Kloe‘s birth.
On June 26, 2013, the Williamson County Chancery Court entered an agreed order
registering the Arizona custody orders in the State of Tennessee. In July 2013, Father
filed a Petition to Modify Parenting Plan and for Restraining Order. The petition
summarizes the parenting time orders entered by the Arizona court: Father had parenting
time every spring break and fall break, four weeks every summer, three weekends every
year in Arizona, and every Father‘s Day; winter break was divided and Thanksgiving
alternated. All round trip air travel was to be between Nashville and Los Angeles
airports.
In his petition, Father alleged that there had been a substantial change in
circumstances justifying a modification of the parenting plan and a change of custody.
Father asserted the following substantial change in circumstances:
a. The Mother has interfered with the Father‘s parenting time and
relationship with the minor child.
i. The Mother severely restricts and limits the Father‘s phone
contact with the minor child. Often not answering or returning
calls.
ii. Upon information and belief, the Father‘s calls with the minor
child are monitored.
iii. Upon information and belief, the Mother tells the minor child
that her father does not want to see or talk to her.
iv. Mother will not allow the minor child to have pictures of the
father or his family. The step-father recently mailed to the
Father the minor child‘s photo album containing pictures of the
Father and his family members and pictures of the minor
child‘s visit with the Father in California. In the past, the step-
2
father has disposed of a similar photo album containing
pictures of the Father.
v. Additionally, the Mother and/or the step-father have taken
away other items given to the minor child by the Father.
vi. The minor child acts as if she is afraid to be caught speaking to
the Father and is not allowed to talk about her father to her
family members.
b. In June 2012 (after the Mother‘s petition to modify the Father‘s
parenting time was denied by the Arizona court), the Mother moved from
Arizona to Tennessee with the minor child. The Mother gave the Father
very little notice and the Father only learned more specific details about the
move when the Father called the minor child and she was driving to
Tennessee.
i. The Mother‘s move to Tennessee has restricted the Father‘s
parenting time as he is no longer able to exercise his three
weekends per year as a result of the distance between the
parties.
c. The Mother has complicated airfare travel for the Father‘s parenting
time requiring the parties to return to court several times, most recently in
February 2013.
d. On July 11th, 2013 the Mother emailed the Father and again
informed him that she was moving with the minor child from Tennessee to
Illinois. The Mother made an appearance in court in Arizona in May 2013
and entered an Agreed Order to register the custody orders in Tennessee in
June 2013, but failed to inform the Father of her intention of moving until
July 2013. The Mother‘s anticipated move will occur prior to August 14th,
2013. The Mother has provided little details.
Father went on to assert that it was in the child‘s best interest that the parenting plan be
modified to make him the primary residential parent. He also requested an immediate
order to enjoin Mother from removing the child from Tennessee.
Mother responded by filing a motion to allow her to relocate with the child. She
asserted that she had a reasonable purpose for wanting to move to Illinois, namely
Stepfather‘s job offer and the presence of relatives in the area. Father filed a motion to
3
prohibit Mother from relocating and to continue her motion. Mother filed a motion to
dismiss Father‘s petition for a restraining order, as well as an answer to Father‘s petition.
On July 30, 2013, the court heard Mother‘s motion to relocate and Father‘s motion in
opposition. In an order entered on August 13, 2013, the court ordered that Mother‘s
motion to relocate be denied, that the parties would complete discovery within thirty
days, and that the parties would attend mediation.
On September 10, 2013, the court1 held a hearing on Father‘s motion to depose
Stepfather, Mother‘s motion to dismiss Father‘s petition for a restraining order, and
Mother‘s motion to set the case for trial. Father‘s motion to depose Stepfather was
granted. The court denied Mother‘s motion to dismiss Father‘s petition for a restraining
order, but Mother was allowed to relocate to Illinois pendente lite. The case was set for
trial over two days in May 2014.
Father filed a motion in limine to prohibit the testimony of Tracy E. Steyer, the
child‘s counselor. The grounds for this motion will be discussed more fully below as this
is an issue on appeal. At the beginning of the first day of trial, May 29, 2014, the court
denied Father‘s motion in limine.
The first trial witness was Ms. Steyer, who testified that she began seeing Kloe in
May 2013 at the request of Mother, who was concerned about the effect on the child of
the conflict between the parents. Ms. Steyer had a total of fifteen sessions with Kloe.
Ms. Steyer opined that, as of the last session, a week prior to the hearing, Kloe‘s level of
functioning was ―probably to the lowest that I‘ve seen her.‖ Kloe was ―extremely
distressed‖ and did not want to speak to Ms. Steyer that day; she was crying. Ms. Steyer
was of the opinion that Kloe was upset because she had become aware that Ms. Steyer
was going to be speaking in court about some of the things the child had said in
counseling.
Ms. Steyer testified that, if required to use the DSM,2 she would give Kloe a
diagnosis of a parent-child relationship problem. Otherwise, her clinical diagnosis was
―loyalty strain,‖ which in this case meant that Kloe felt that she ―had to choose between
her parents and that it‘s not okay for her to love both of her parents or speak of loving
both of her parents in front of the other, or speak of missing, in particular, her mother in
front of her father.‖ After her second session with Kloe, Ms. Steyer spoke with Mother
and advised her to make some behavioral changes, primarily that she needed to stop
1
Judge Timothy Easter presided at this hearing.
2
The ―DSM‖ is The Diagnostic and Statistical Manual of Mental Disorders, a publication of the
American Psychiatric Association, which provides standard criteria for the classification of mental
disorders.
4
making derogatory comments about Father in the child‘s presence and stop ―grilling‖ the
child when she returned from visiting Father. As far as Ms. Steyer knew, Mother had
taken these suggestions to heart and had complied with this advice.
Ms. Steyer had only had one conversation with Father, which was by telephone.
Based on what Kloe had told her, Ms. Steyer was concerned that Father would question
the child about her residential preference. Ms. Steyer testified that, when the child told
Father that she wanted things to stay the same, Father cried. Kloe had overheard a
conversation between Father and Stepmother that Mother would be divorcing Stepfather
soon and that she only married him for his money. Kloe also told Ms. Steyer that, when
she arrived at Father‘s house, she was required to leave her suitcase in the garage and
then shower immediately. She had to wear clothes kept for her at Father‘s house. Kloe
told Ms. Steyer that Stepmother ―says that my mom dresses me like a hippie and that my
clothes smell that come from my mom‘s house.‖ According to Ms. Steyer, this was
upsetting to Kloe, especially since she picked out a lot of her clothes. Father told Kloe
not to refer to Keenan as her brother and that Keenan was the reason Father and Mother
got a divorce. Ms. Steyer opined that, although Kloe enjoyed visiting Father, it was
difficult for her to be away from home for a month in the summer; she would get
homesick during that visit. Moreover, it was stressful for her to hear Stepmother make
derogatory comments about Mother. Kloe had anxiety about flying, especially about
having to change planes.
After Mother and Kloe moved to Illinois, Ms. Steyer agreed to continue
counseling the child through Facetime. She opined that Kloe had acclimated to her new
home and school. She stated that Kloe had a strong attachment to her mother and her
stepfather as well as to her stepbrother, Keenan.
Ms. Steyer testified as to the recommendations she made in her report. She
advised that there be no change of primary residential parent and stated: ―[B]ecause of
the trauma she incurs as a result of the ongoing parental conflict, it‘s my opinion that a
change of primary residency might create even more disruption and emotional adjustment
requirement on her part; that, I do believe, would compromise her emotional and
psychological development and security.‖
Father was the next witness. He testified that he was currently stationed at
Twentynine Palms, California and that he was a maintenance chief. The last time that he
was deployed was 2010 through 2011. Father acknowledged that he had been married
four times and that his third marriage was a ―contract marriage,‖ meaning that he married
to give his spouse health insurance and to give him a place to store his things while he
was deployed. His third wife had his power of attorney so that she could take care of his
affairs while he was gone. Father testified that Kloe did not spend much time around the
5
third wife and that she had never complained to him about how the third wife treated her.
Father recently bought a house in Fallbrook, California, which he testified was
about two and a half hours away from Twentynine Palms, but closer to Camp Pendleton;
he had received orders to report to Camp Pendleton. Father was currently married to his
fourth wife, Jennifer (―Stepmother‖), whom he married in June 2012. Stepmother had a
daughter named Courtney, who graduated from high school in 2013 and had been living
with Father and Stepmother since they married. Father testified that he had been
promoted to a higher position, although in the same job, and that his chances of being
deployed were therefore diminished.
Father testified that he first learned that Kloe was going to a counselor when the
child told him. He did not learn the identity of the counselor until the deposition in
August 2013, after which he called Ms. Steyer and talked to her. Ms. Steyer was moving
her office and was hurried, but she did not lead Father to believe that she had any
concerns about Kloe. Father was not aware that the counseling continued after Mother
and Kloe moved to Illinois.
Father testified that he and Stepmother had made a photo album for Kloe, and the
child had picked the photos for it from all of her trips to California. Each time she came
to visit, they would add more pictures. At the end of the summer of 2012, Father and
Stepmother sent the photo album back to Arizona with her. She did not bring it with her
the next time she came to California; she said it had probably gotten boxed up for the
move to Tennessee. At Christmas 2012, Father gave Kloe another photo album, this one
from the wedding of Father and Stepmother with pictures of Kloe and Courtney, who
were both in the wedding. It included photos referring to Stepmother as ―Mommy.‖
Father sent that album home with Kloe, but it was mailed back to Father along with a
letter. Stepfather told Father that it made both Mother and Kloe uncomfortable to have in
their home. Stepfather further told Father that, after Father failed to keep the first album
at his home as requested by Mother, Stepfather had ―disposed‖ of it.
Father denied that he or Stepmother made derogatory comments about Mother in
front of Kloe. Father testified that Kloe and Stepmother got along well and had fun
―hanging out‖ together. Father admitted that he had asked Kloe, before he filed his
petition, what her thoughts were about living with him. She did not express a preference
one way or the other, so he proceeded. He denied crying in front of her when she
answered his questions. He also denied saying that Mother and Stepfather were going to
divorce. Father‘s explanation for why Kloe left her suitcase in the garage was that he had
been accused previously of losing some of her clothes and that she was worried about
getting her clothes from Mother‘s house dirty. He testified that he always asked her if
there was anything in her suitcase that she wanted to get out. He denied telling her that
6
Keenan was not really her brother or that he was the reason for Mother‘s and Father‘s
divorce. Father stated that he had never discussed with Kloe any need to change planes,
and she had never expressed any fear of flying to him. Father testified that Kloe had
heard Mother call him a ―jackass,‖ although the voicemail had been intended for him.
Father was asked to explain to the court why he believed it was in Kloe‘s best
interest for him to be the primary residential parent. He stated:
Kloe needs to be in a—in a home in a family situation where she can
express herself and express how she feels about everybody without being
ridiculed for it. She needs to be able to have full access to everybody that
she wants to talk to, and I‘m not going [to] restrict her from that. If she
wants to, you know, talk to her mother, she can. She‘s not gonna be
directed or told or anything otherwise on how to feel about anybody. And
it‘s just—it‘s the upbringing. In my opinion, the upbringing would be
better.
Father feared that, ―if things don‘t change, I think I‘ll be spending every amount of time I
have with Kloe reassuring her that I‘m her father and that . . . I‘m not a terrible person.‖
Based upon his communications with Stepfather, Father felt that he was not treated as
Kloe‘s father, but as ―an inconvenience.‖
Father submitted two proposed parenting plans, one of which would make him the
primary residential parent and give Mother a schedule similar to the one Father had for
the last several years. The other proposed parenting plan was for split parenting, where
Kloe would be primarily with Father for one year and primarily with Mother for the next
year.
Father testified that, if he was deployed, he wanted Stepmother, instead of Mother,
to take care of Kloe. Father acknowledged that he had four children, but he did not visit
at all with two of them. When asked why he had not tried to resume seeing those two
children, Father replied that, ―At this point, it‘s just a money pit.‖
Mother was the next witness after Father. She stated that she and Stepfather
married in 2008 after dating since 2006. Mother did seasonal work at H & R Block
preparing tax returns. Regarding the move to Illinois, Mother explained that Stepfather
worked for a big real estate company (C.B.R.E.), the same company he worked for in
Arizona; he had moved with that company to Tennessee. Then, in 2013, he was informed
that he was no longer needed on the big Nissan account that he had worked on in Arizona
and Tennessee, so he found out about another job within C.B.R.E. in Illinois. Because
Mother‘s family was from Illinois, this was a desirable location for them. Stepfather and
7
Mother‘s other son moved up to Illinois, but Father blocked Mother and Kloe from
moving at the same time. This was upsetting to Kloe. She was not in Illinois at the start
of the school year.
At the time of the hearing, Kloe was nine years old, just about to turn ten. Mother
testified that Kloe was ―pretty much a straight-A student. She loves to read, she‘s always
done really well, exceptionally well, in school.‖ She had qualified as ―gifted‖ in the past.
Mother stated that she and Stepfather were financially able to provide for Kloe‘s
necessities and that she had been the child‘s primary residential parent for her whole life.
She testified that she had a ―really good‖ relationship with Kloe and that they liked to do
things together like go to the movies, go shopping, or just play in the snow. She and
Kloe both liked to go to the library and sometimes rode bikes together. Kloe also got
along well with Stepfather; they liked to be corny and silly sometimes. Mother described
Kloe as easygoing and lighthearted; she was not a difficult child to get along with, but
was respectful and well-behaved. She loved animals. Keenan, Kloe‘s brother, and Kloe
got along as normal siblings, arguing at times and getting jealous at times, but generally
supporting one another and loving each other.
As to how the current parenting plan was working, Mother testified that Father had
not exercised all three of his weekend visits in Tennessee. She stated that five weeks was
the longest continuous period of time that Kloe had spent with Father, which had
occurred the previous summer. Mother testified that she did not monitor Kloe‘s phone
calls with her father or interfere with them in any way.
Mother stated that she believed Kloe loved her father and that Mother wanted
Kloe to have a good relationship with him. She went on to say, though, that she was
concerned about what Kloe told her about derogatory comments made by Father and
Stepmother and about what happened with her clothing at Father‘s house. Mother would
get frustrated ―because I can‘t work with [Father] on the level that I think co-parents
should. . . . I feel like our communication has broken down so much in these past few
years in the litigation.‖ According to Mother, Kloe became anxious before she went to
visit Father: ―I know it‘s because she‘s excited but, at the same time, she‘s nervous
because she‘s worried about some of the things they say about me when she‘s there.‖
Mother listed her concerns: Father and Stepmother not allowing Kloe to bring her
clothes into their house, not allowing her to call Mother when she cries, sending emails to
Mother telling her not to call Kloe because it upsets her, and Kloe telling Mother she gets
―scared‖ and that she is not able to call Mother.
Asked whether the parenting plan should be modified, Mother stated that four
weeks at a time was too long and should be split up; otherwise, she thought the weekend
visits should be designated more clearly. Mother also wanted payment for the flights to
8
be clearer. Mother further expressed her concerns with having the child change planes on
her own.
Mother testified that she took Kloe to Ms. Steyer because she felt the child was
experiencing stress from being ―in the middle of it‖ due to the litigation between the
parents. She stated that she tried to heed Ms. Steyer‘s advice and ―not to communicate in
a negative manner or get engaged in arguments.‖ As to the photo albums, Mother
testified that she asked Father to stop sending the albums to her house with Kloe. She
understood that she had ―acted poorly.‖ She explained that a couple of the pictures in the
wedding album ―actually had Kloe and Jennifer, her step-mother, in there that said
‗Mommy‘s Girl,‘ and it just really upset me.‖ Stepfather wrote a letter to Father and sent
the album back to Father with the letter. Mother acknowledged that she had not handled
the situation appropriately.
Since the summer of 2013, Mother believed that she was ―trying not to get caught
up in – or engaging in constant bickering and fighting via email. We don‘t converse on
the phone.‖ She went on to state that she was trying not to get involved with Kloe‘s
relationship with Father: ―I‘m really trying to step back and not get involved or make her
feel like she‘s being pulled between the two of us.‖ She told Kloe that her father loved
her and that she needed to listen to Father and Stepmother when she was with them.
Asked about Father‘s two proposed parenting plans, Mother opined that it would
not be in Kloe‘s best interest to alternate school years between the parents. She felt this
would be difficult for the child. Further, she did not agree that Kloe should live with
Father.
On cross-examination, Mother acknowledged sending Father derogatory emails in
the past telling him that he was not a good father. Mother again explained that she had
reformed her behavior and now realized the importance of fostering a healthy relationship
between Kloe and Father.
The final witness was John Myers, Stepfather, who testified that he had known
Kloe since around March 2006. He opined that Mother was a caring and involved mother
who always had her children‘s interests at heart. He stated that Kloe and Mother got
along ―great‖ and that Kloe was a happy child. She was bright and excelled in school.
As to his relationship with Kloe, Stepfather testified that it was positive.
Stepfather stated that he worked for C.B.R.E., a commercial real estate company;
his current position was facilities manager. The previous summer, when he lived in
Franklin, Tennessee, he worked on the Nissan account, but his position on that account
was terminated because the client did not feel that he was a good fit for that account.
9
Stepfather testified about the photo albums and about how upset Kloe and Mother
were about them. He explained that he had not destroyed the other album. It was
returned to Father at the hearing.
Trial court’s decision
The trial court filed an order on August 18, 2014 in which it found that there had
been a material change in circumstances. The facts supporting this finding were: (1) the
two fairly quick moves, which were not ―simply across the state line,‖ but were a
―significant ways away‖; (2) the increasing tension between the parties, with some
adjustment on Mother‘s part and a bit of de-escalation; and (3) Mother‘s failure to follow
the orders of the Arizona court and to engage in ―the type of co-parenting that most
courts would appreciate,‖ as well as the unworkable nature of the current parenting plan.
Having found a material change in circumstances, the trial court proceeded to
consider the best interest factors contained in Tenn. Code Ann. § 36-6-106(a). (The
court‘s analysis will be examined in detail below.) The court concluded that it was not in
Kloe‘s best interest to change her primary residential parent. Pursuant to the parenting
plan ordered by the trial court, Father had 80 days of parenting time a year (an increase
over the former parenting plan under which he had approximately 67 days a year3). He
had five weeks of parenting time during the summer, spread out over three visits—two
two-week visits and one one-week visit.
Mother filed a motion to alter or amend the trial court‘s order and/or a motion to
modify child support. She sought a subpoena requiring Father to provide proof of his
actual income, an update of her income, the addition of the Los Angeles airport as an
optional airport, and the addition of the cost of her health insurance to the child support
worksheet. In his response, Father admitted that his income had increased post-trial.
On October 6, 2014, the trial court entered an agreed order modifying Father‘s
child support obligation to $839.00 a month. Father appealed the trial court‘s August 18,
2014 decision.
ISSUES ON APPEAL
Father argues that the trial court erred in allowing the therapist, Ms. Steyer, to
testify regarding hearsay statements of the minor child and in admitting the therapist‘s
expert opinion testimony. Father further argues that the trial court erred in failing to
3
This is according to Father‘s estimate at the hearing.
10
make him the primary residential parent or to maximize the parenting time for both
parents. Mother asserts that the trial court erred in failing to award her attorney fees and
costs; she also seeks her attorney fees and costs on appeal.
ANALYSIS
Testimony of therapist
Father first argues that the trial court erred in failing to grant his motion in limine
to exclude the expert opinion testimony of the therapist, Ms. Steyer. He asserts three
errors: that the trial court should not have allowed the therapist to testify as an expert;
that the trial court should have prohibited the therapist from being a conduit for the
child‘s testimony; and that the communications between the child and the therapist were
privileged communications.
Questions regarding the admissibility of expert testimony ―are matters left to the
trial court‘s discretion.‖ Brown v. Crown Equip. Corp., 181 S.W.3d 268, 273 (Tenn.
2005). Under the deferential abuse of discretion standard, we must review a trial court‘s
discretionary decision to determine:
(1) whether the factual basis for the decision is properly supported by
evidence in the record, (2) whether the [trial] court properly identified and
applied the most appropriate legal principles applicable to the decision, and
(3) whether the [trial] court‘s decision was within the range of acceptable
alternative dispositions.
Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 524-525 (Tenn. 2010); see also Flautt &
Mann v. Council of Memphis, 285 S.W.3d 856, 872-73 (Tenn. Ct. App. 2008) (quoting
BIF, a Div. of Gen. Signal Controls, Inc. v. Serv. Constr. Co., No. 87-136-II, 1988 WL
72409, at *3 (Tenn. Ct. App. July 13, 1988).
Although Father asserts that the trial court erred in allowing Ms. Steyer to testify
as an expert, he does not directly challenge her qualifications.4 Tennessee Rule of
Evidence 702 provides:
If scientific, technical, or other specialized knowledge will substantially
4
Father focuses on the content of Ms. Steyer‘s testimony, asserting that she relies on hearsay
from the child, and challenging her diagnosis of loyalty strain as not widely accepted in the professional
community. These arguments will be addressed below with respect to the hearsay argument.
11
assist the trier of fact to understand the evidence or to determine a fact in
issue, a witness qualified as an expert by knowledge, skill, experience,
training, or education may testify in the form of an opinion or otherwise.
(Emphasis added). On voir dire, Ms. Steyer testified that she is a licensed marriage and
family therapist with a master‘s degree in marriage and family therapy. She had previous
experience testifying as an expert in custody cases. The trial court stated that it ―would
have no questions with regard to whether . . . she‘s able to . . . significantly assist the
trier of fact . . . .‖ Thus, the court was ―satisfied with her qualifications as an expert in
the field.‖ Father has provided no evidence to suggest that the trial court abused its
discretion in accepting Ms. Steyer as an expert. Moreover, contrary to Father‘s assertion,
Ms. Steyer did provide a diagnosis under the DSM during her testimony.
We next address Father‘s assertion that the trial court erred in allowing Ms. Steyer
to testify to hearsay statements. There is no dispute that Ms. Steyer‘s testimony includes
some statements made by Kloe. The therapist relied on statements made by the child to
bolster her opinions and to support her diagnoses. For example, Ms. Steyer testified that
Kloe felt that she had to choose between her parents and that it was not okay for her to
speak of loving one parent in front of the other or, in particular, to speak of missing her
mother in front of her father. These statements supported Ms. Steyer‘s diagnosis of
loyalty strain. According to Ms. Steyer, Kloe also told her that Father asked her where
she preferred to live and that, when the child said she wanted things to stay the same,
Father cried.
Father argues that, ―The Court should have prevented the therapist from being a
conduit for the statements of the child that did not fall under the narrow exception found
in the rules of evidence.‖ The ―narrow exception‖ referenced by Father is the hearsay
exception for abuse and neglect set forth in Tenn. R. Evid. 803(25). Because this case
does not involve allegations of abuse and neglect, however, subsection (25) is not
applicable. Mother argues that other subsections of Tenn. R. Evid. 803 are applicable to
the hearsay statements of Kloe included in Ms. Steyer‘s testimony. For example, she
points to Tenn. R. Evid. 803(4) regarding statements made for the purpose of medical
diagnosis or treatment.5 We have concluded, as did the trial court, that Tenn. R. Evid.
5
In State v. Gordon, 952 S.W.2d 817, 823 (Tenn. 1997), our Supreme Court held that the
statements of a child (who was allegedly raped) to a psychologist were made for the purposes of medical
diagnosis and treatment within the meaning of Tenn. R. Evid. 803(4). The child, in Gordon, was taken to
the hospital immediately after the incident, then taken to the emergency room where she spent several
hours. Id. The next day, she was interviewed by a child psychologist at Our Kids Clinic; the history
taken by the psychologist was relied upon by the nurse practitioner who treated the child. Id. In each
case, it must be determined, based upon all of the surrounding circumstances, whether a particular
statement is ―reasonably pertinent to diagnosis and treatment.‖ Tenn. R. Evid. 803(4); Gordon, 952
12
702 and 703 are dispositive on the issue before this court.
Tennessee Rule of Evidence 703 provides:
The facts or data in the particular case upon which an expert bases an
opinion or inference may be those perceived by or made known to the
expert at or before the hearing. If of a type reasonably relied upon by
experts in the particular field in forming opinions or inferences upon the
subject, the facts or data need not be admissible in evidence. Facts or data
that are otherwise inadmissible shall not be disclosed to the jury by the
proponent of the opinion or inference unless the court determines that their
probative value in assisting the jury to evaluate the expert‘s opinion
substantially outweighs their prejudicial effect. The court shall disallow
testimony in the form of an opinion or inference if the underlying facts or
data indicate lack of trustworthiness.
(Emphasis added).
Our Supreme Court explained the proper application of these rules in McDaniel v.
CSX Transportation, Inc., 955 S.W.2d 257 (Tenn. 1997):
In Tennessee, under [Tenn. R. Evid. 702 and 703], a trial court must
determine whether the evidence will substantially assist the trier of fact to
determine a fact in issue and whether the facts and data underlying the
evidence indicate a lack of trustworthiness. The rules together necessarily
require a determination as to the scientific validity or reliability of the
evidence.[6]
McDaniel, 955 S.W.2d at 265. When determining whether expert testimony meets the
requirements of Rules 702 and 703, a trial court must consider whether the ―‗basis for the
witness‘s opinion, i.e., testing, research, studies, or experience-based observations,
S.W.2d at 823.
6
The Court, in McDaniel, also established nonexclusive reliability factors often relied upon by
courts in assessing scientific testimony:
(1) Whether scientific evidence has been tested and the methodology with which it has
been tested; (2) whether the evidence has been subjected to peer review or publication;
(3) whether a potential rate of error is known; (4) whether . . . the evidence is generally
accepted in the scientific community; and (5) whether the expert‘s research in the field
has been conducted independent of the litigation.
McDaniel, 955 S.W.3d at 265. Other cases have recognized, however, that these factors do not fit in
every case. See Brown v. Crown Equip. Corp., 181 S.W.3d 268, 272 (Tenn. 2005).
13
adequately supports that expert‘s conclusions‘ to ensure that there is not a significant
analytical gap between the expert‘s opinion and the data upon which the opinion is
based.‖ Denning v. CSX Transp., Inc., M2012-01077-COA-R3-CV, 2013 WL 5569145,
at *5 (Tenn. Ct. App. Oct. 9, 2013) (quoting State v. Scott, 275 S.W.3d 395, 402 (Tenn.
2009)).
In Brown v. Crown Equipment Corporation, our Supreme Court reversed the trial
court‘s decision to exclude the expert testimony of a mechanical engineer and a
biomechanical engineer in a products liability action. Brown, 181 S.W.3d at 272. The
Court discussed factors that a trial court may consider to determine the reliability of an
expert‘s methodology—including the ―expert‘s qualifications for testifying on the subject
at issue[,] . . . particularly where the expert‘s personal experience is essential to the
methodology or analysis underlying his or her opinion.‖ Id. at 274 (citation omitted).
Another factor the Court discussed was ―the connection between the expert‘s knowledge
and the basis for the expert‘s opinion.‖ Id. at 275 (citation omitted). The latter factor
was described as being ―important particularly when the expert‘s opinions are based upon
experience or observations as these areas are not easily verifiable.‖ Id. (citation omitted).
The Court, in Brown, emphasized that these factors are non-exclusive and that a
trial court is not required to consider them in making a determination regarding the
reliability of an expert‘s testimony. Id. The Court continued:
[T]he trial court enjoys the same latitude in determining how to test the
reliability of an expert as the trial court possesses in deciding whether the
expert‘s relevant testimony is reliable. [Kumho Tire Co. v. Carmichael,
526 U.S. 137, 152 (1999)]. The objective of the trial court‘s gatekeeping
function is to ensure that ―an expert, whether basing testimony upon
professional studies or personal experience, employs in the courtroom the
same level of intellectual rigor that characterizes the practice of an expert in
the relevant field.‖ Id. Furthermore, upon admission, expert testimony will
be subject to vigorous cross-examination and countervailing proof. [State
v. Stevens, 78 S.W.3d 817, 835 (Tenn. 2002)]; McDaniel, 955 S.W.2d at
265. The weight of the theories and the resolution of legitimate but
competing expert opinions are matters entrusted to the trier of fact. See
McDaniel, 955 S.W.2d at 265.
Id.
With regard to Father‘s hearsay argument, Tenn. R. Evid. 703 expressly states:
―If of a type reasonably relied upon by experts in the particular field in forming opinions
or inferences upon the subject, the facts or data need not be admissible in evidence.‖
14
This language has been interpreted to allow hearsay to support an expert opinion. See
Holder v. Westgate Resorts Ltd., 356 S.W.3d 373, 379 (Tenn. 2011); State v. Lewis, 235
S.W.3d 136, 151 (Tenn. 2007). Therapists rely on the hearsay statements of their clients
to form opinions regarding a diagnosis. Because the hearsay statements at issue were
used to bolster Ms. Steyer‘s diagnosis, we find no abuse of discretion in the trial court‘s
decision to allow Ms. Steyer to testify as an expert and to admit the statements of Kloe
about which she testified.7
We also reject the third prong of Father‘s argument with respect to Ms. Steyer‘s
testimony: that Kloe‘s statements to Ms. Steyer constituted privileged communications.
Father relies upon Tenn. Code Ann. § 63-22-114, which provides, in pertinent part:
The confidential relations and communications between licensed marital
and family therapists, licensed professional counselors or certified clinical
pastoral therapists and clients are placed upon the same basis as those
provided by law between attorney and client, and nothing in this part shall
be construed to require any such privileged communication to be disclosed.
Thus, the law recognizes a confidential relationship between a marital and family
therapist and his or her client. In Shaw v. Shaw, No. E2010-01070-COA-R10-CV, 2011
WL 255335, at *4-5 (Tenn. Ct. App. Jan. 20, 2011) a case involving a father‘s request for
access to his daughter‘s counseling records, the court stated:
We conclude that a child‘s perceived loss of a confidential relationship with
a therapist, standing alone, is insufficient to make the furnishing of such
records to a parent, including a noncustodial parent, against a child‘s best
interest.
...
[W]hile these records certainly are privileged, that privilege can be waived
by either parent, unless to do so would not be in the child‘s best interest. In
the absence of a finding of abuse, a finding that it is in the child‘s best
interest not to disclose the records to a non-custodial parent will be a
7
This Court is aware of cases decided under Tenn. R. Evid. 703 involving psychologists
testifying as experts with respect to scientific theories. See, e.g., State v. Shuck, 953 S.W.2d 662, 667
(Tenn. 1997) (finding testimony regarding defendant‘s susceptibility to inducement admissible). We are
not, however, aware of caselaw decided under Tenn. R. Evid. 703 involving a child‘s statements to a
therapist or psychologist. Rather, the cases about children‘s statements to therapists have been decided
under Tenn. R. Evid. 803(25) regarding ―statements about abuse or neglect made by a child alleged to be
the victim of physical, sexual, or psychological abuse or neglect.‖ See, e.g., In re Malichi C., No. E2009-
00055-COA-R3-PT, 2009 WL 3270178, at *10 (Tenn. Ct. App. Oct. 13, 2009); State Dep’t of Children’s
Servs. v. M.S., No. M2003-01670-COA-R3-CV, 2005 WL 549141, at *17 (Tenn. Ct. App. Mar. 8, 2005).
15
difficult hurdle to overcome.
In this case, Kloe is a ten-year-old, so her confidential relationship with Ms. Steyer
was subject to waiver by either of her parents, unless the trial court determined that
allowing such waiver would be contrary to her best interest. The trial court rejected
Father‘s privilege argument, stating that perhaps if Kloe were an older child, 16 or 17, the
Court would have taken the argument more seriously.
We find no abuse of discretion in the trial court‘s rulings with regard to the
testimony of Ms. Steyer.
Primary residential parent
Father‘s other argument is that the trial court erred in failing to make him the
child‘s primary residential parent or, in the alternative, to maximize his parenting time as
required by Tenn. Code Ann. § 36-6-106(a).
We review the trial court‘s findings of fact de novo, presuming them to be correct
unless the evidence preponderates otherwise. TENN. R. APP. P. 13(d); Mann v. Mann, 299
S.W.3d 69, 71 (Tenn. Ct. App. 2009); Smith v. Tenn. Farmers Life Reassurance Co., 210
S.W.3d 584, 588 (Tenn. Ct. App. 2006). ―[F]or the evidence to preponderate against a
trial court‘s finding of fact, it must support another finding of fact with greater
convincing effect.‖ Nashville Ford Tractor, Inc. v. Great Am. Ins. Co., 194 S.W.3d 415,
425 (Tenn. Ct. App. 2005). Appellate courts give ―great weight‖ to a trial court‘s
findings of fact that are based on a witness‘s credibility. Mann, 299 S.W.3d at 71; Smith,
210 S.W.3d at 588. We review questions of law de novo with no presumption of
correctness. Nelson v. Wal-Mart Stores, Inc., 8 S.W.3d 625, 628 (Tenn. 1999).
With respect to a petition to modify a permanent parenting plan to change the
primary residential parent, the threshold issue is whether there has been a material change
of circumstances since the plan took effect. See Tenn. Code Ann. § 36-6-101(a)(2)(B);
Cranston v. Combs, 106 S.W.3d 641, 644 (Tenn. 2003). In this context, a material
change of circumstance ―may include, but is not limited to, failures to adhere to the
parenting plan or an order of custody and visitation or circumstances that make the
parenting plan no longer in the best interest of the child.‖ Tenn. Code Ann. § 36-6-
101(a)(2)(B). If the trial court finds that there has been a material change in
circumstances, it must then determine whether it is in the child‘s best interest to modify
the parenting plan as requested. See Tenn. Code Ann. § 36-6-106(a); Cranston, 106
S.W.3d at 644.
A trial court‘s determinations as to ―whether a material change in circumstances
16
has occurred and whether modification of a parenting plan serves a child‘s best interests
are factual questions.‖ Armbrister v. Armbrister, 414 S.W.3d 685, 692 (Tenn. 2013).
―Because decisions regarding parenting arrangements are factually driven and require
careful consideration of numerous factors, trial judges, who have the opportunity to
observe the witnesses and make credibility determinations, are better positioned to
evaluate the facts than appellate judges.‖Id. at 693 (citations omitted). Thus, ―[a] trial
court‘s decision regarding the details of a residential parenting schedule should not be
reversed absent an abuse of discretion.‖ Id. (citation omitted).
The trial court found that there had been a material change of circumstances in this
case:
1. There has been a material change in circumstances. There have been 2
fairly quick moves. The moves, in and of themselves, would cause the
Court some concern and should cause the father some concern. The
moves weren‘t simply across the state line. They were significant ways
away.
2. The Court is concerned that the tension between the parties has
continued to increase. There has been a slight adjustment on Mother‘s
part. There has been a bit of de-escalation of the tensions, yet those
tensions still exist.
3. Mother did clearly not follow court orders out of Arizona. She has not
engaged in the type of co-parenting that most courts would appreciate.
Additionally, the current parenting plan is unworkable.
Father is not arguing that the court erred on the issue of a material change of
circumstances.8
The second step in the analysis regarding whether there should be a change in the
primary residential parent is to determine whether such a change would be in the best
interest of the child. Tennessee Code Annotated 36-6-106(a) sets out factors to be
considered by the court in determining the best interest of the child. The court made
findings of fact with respect to all of the statutory factors:
5. As to Factor Number 1 (the love, affection, and emotional ties existing
between the parents of the child), the Court believes that both parents
love the child. There has been nothing to show this Court that the
emotional ties existing between the parents and the child are anything
but strong. If the Court were to guess, it would surmise the emotional
8
Mother does not assert that the court erred in finding a material change in circumstances.
17
ties between the child and Mother are stronger, simply because of the
amount of time Mother gets to enjoy with the child. However, Number
1 is a wash and should be fairly given to each party.
6. As to Factor Number 2 (the disposition of the parties to provide the
children with basic needs), Father has put forward quite a bit of
argument and some evidence that Mother, without being married, would
have a difficult time providing for the child. That may be true to some
degree but the Court does not believe there is any concern that both
parents aren‘t able to provide, clearly, for the basic needs of the child.
Factor Number 2 is a wash and should be equally given to both parties.
7. As to Factor Number 3 (the importance of continuity in the child‘s life),
the Court puts great weight on the fact Mother has been the primary
caregiver. This factor was a major issue of dispute. Mother has moved
from state to state. Father has moved quite a bit, which would cause the
Court concern that he would continue to move residences, even though
it has been within the same state and even, at times, within the same
street. It appears the child seems to be very well-adjusted, even though
the living location of the child has not been what the Court would
consider to be stable. The environment and homes provided seem to
have been quite stable. The Mother should probably be given a little
weight on Category Number 3.
8. As to Factor Number 4 (the stability of the family unit of the parents or
caregivers), the Court finds there hasn‘t been a lot of testimony with
regard to this factor. Father has a sister who lives close and Mother has
her family in Illinois. There is no reason to believe that both parties do
not have family support. Mother has been able to obtain quite a bit
more family support by her more recent move.
9. As to Factor Number 5 (the mental and physical health of the parents),
the Court believes both parents are mentally and physically healthy.
10. As to Factor Number 6 (the home, school, and community record of the
child), the school record of the child is important. The child appears to
be well-adjusted at school and has a good school record. The Court did
not put any weight on the fact that the moves have occurred and her
school has been disrupted.
11. As to Factor Number 7 (the reasonable preference of the child), the
preference of the child was not considered.
12. As to Factor Number 8 (evidence of physical or emotional abuse), there
is no evidence of any physical or emotional abuse to the child.
13. As to Factor Number 9 (the character and behavior of any person who
resides in or frequents the home of a parent and the person‘s interactions
with the child), the Court has no reason to believe any person who
18
resides in or frequents the home of the child is a bad influence on the
child. Additionally, the Court has a vested interest in attempting to keep
siblings together. The Court placed weight on whether it would be
appropriate to separate those children.[9]
14. As to Factor Number 10 (each parent or caregiver‘s potential for future
performance of parenting responsibilities, including the willingness and
ability of each of the parents to facilitate a close parent/child
relationship with the other), the Court finds both parents have failed at
that. Both parents have attempted to move on but in doing so have
created an environment for the child to believe that the other parent is
not as important. The primary responsibility of this rests on Mother‘s
shoulders and places quite a bit of responsibility for that on her.
After having considered all of these factors, the trial court reached the following
conclusions:
[T]he child is well-adjusted and in a stable home, if not a stable home
location. The Court does not believe that Mother‘s efforts have gone so far
as to undermine Father‘s abilities to maintain a good relationship and bond
with the child. For the Court to uproot the child and switch the parenting
plan, the Court would have to find fairly compelling evidence that Mother’s
intentions were to alienate Father and that those intentions were having an
effect that the child was being damaged. The Court is not able to do that.
The Court is not close to the level where it would consider changing an
agreement or a previous court order that has been in place for some time.
(Emphasis added). The trial court made some modifications to the parenting plan,
including changing Father‘s summer parenting time to three separate periods (June 1 to
June 15, July 1 to July 15, August 1 to August 7) instead of one four-week period; and
specifying dates for weekend parenting time.
Father‘s arguments against the trial court‘s failure to make him the primary
residential parent all focus on factor ten—each parent‘s ability to facilitate a close
parent/child relationship between the child and the other parent. See Tenn. Code Ann. §
36-6-106(a)(10). He asserts:
Mother‘s insistence on using the LAX airport, her refusal to allow the
Father video conferencing time (Skype), her tossing the child‘s photo
album, her ignoring the father‘s calls to the child, her foul name-calling
9
Kloe and her half-brother Keenan have grown up together with Mother.
19
emails, and her attempts to change the child‘s name and call the stepfather
‗daddy‘ all point to her attempts to annihilate the existence of the Father in
the life of the child.
Father argues that the evidence preponderates against the trial court‘s finding that both
parents had failed to foster the child‘s relationship with the other parent. He asserts that
the ―evidence was overwhelming that the Mother had intentionally undermined the
Father to the child.‖
We begin our analysis by noting that the trial court made an erroneous statement
as to the proper standard to apply in considering the child‘s best interest: ―For the Court
to uproot the child and switch the parenting plan, the Court would have to find fairly
compelling evidence that Mother‘s intentions were to alienate Father and that those
intentions were having an effect that the child was being damaged.‖ (Emphasis added).
Rather, pursuant to Tenn. Code Ann. § 36-6-101(a)(2)(B), ―If the issue before the court is
a modification of the court‘s prior decree pertaining to custody, the petitioner must prove
by a preponderance of the evidence a material change in circumstance.‖ (Emphasis
added). That subsection goes on to state that, ―A material change of circumstance does
not require a showing of a substantial risk of harm to the child.‖ Tenn. Code Ann. § 36-
6-101(a)(2)(B). Thus, the appropriate standard is the preponderance of the evidence.
In her proof, Mother presented a different version of the facts, describing actions
by Father designed to put distance between Kloe and Mother. For example, Mother
asserts that Father and his wife made derogatory comments about Mother in Kloe‘s
presence; that Father questioned Kloe about her desires regarding custody and cried when
she said she wanted to continue living primarily with Mother; that Father would not let
Kloe call Mother when she was at his house; and that Father required Kloe to leave her
suitcase in the garage and criticized the clothing she brought. Mother testified that she
wanted Kloe to have a good relationship with her father.
In making its determination regarding the primary residential parent issue, the trial
court necessarily relied upon its assessment of the parties‘ credibility. Appellate courts
give ―great weight‖ to a trial court‘s findings of fact that are based on a witness‘s
credibility. Smith, 210 S.W.3d at 588.
Father proposed two parenting plans. In one, he would be the primary residential
parent. We cannot say that the evidence preponderates against the trial court‘s decision
to keep Mother as the primary residential parent. In the second, Father and Mother
would have primary residential parenting responsibilities in alternating years. We
likewise cannot say that the evidence preponderates against the trial court‘s decision to
20
reject this option.10 Although the trial court stated an erroneous standard, we find that the
evidence does not preponderate against the trial court‘s ultimate decision.
Attorney fees
Mother argues that the trial court erred in failing to award her attorney fees and
costs and that she should be awarded attorney fees and costs on appeal.
Tennessee abides by the American Rule regarding the payment of attorney fees.
State v. Brown & Williamson Tobacco Corp., 18 S.W.3d 186, 194 (Tenn. 2000). The rule
requires litigants to pay their own attorney fees unless a statute or an agreement provides
otherwise. Id. There is such a statute applicable in cases involving ―custody or the
change of custody.‖ Tenn. Code Ann. § 36-5-103(c). Tennessee Code Annotated section
36-6-103(c) provides:
The plaintiff spouse may recover from the defendant spouse, and the spouse
or other person to whom the custody of the child, or children, is awarded
may recover from the other spouse reasonable attorney fees incurred in
enforcing any decree for alimony and/or child support, or in regard to any
suit or action concerning the adjudication of the custody or the change of
custody of any child, or children, of the parties, both upon the original
divorce hearing and at any subsequent hearing, which fees may be fixed
and allowed by the court, before whom such action or proceeding is
pending, in the discretion of such court.
An award of attorney‘s fees is ―largely in the discretion of the trial court, and the
appellate court will not interfere except upon a clear showing of abuse of that discretion.‖
Aaron v. Aaron, 909 S.W.2d 408, 411 (Tenn. 1995) (citation omitted). A trial court
abuses its discretion when it applies an incorrect legal standard, reaches a result that is
not logical, decides a case based on an assessment of the evidence that is clearly
erroneous, or relies on reasoning that results in an injustice to an interested party.
Gonsewski v. Gonsewski, 350 S.W.3d 99, 105 (Tenn. 2011).
The court in this case decided that each party would be responsible for his or her
own attorney fees. Mother cites a statement by the court that the evidence was not close
to justifying a change in custody. The court also noted, however, that:
10
Father has not proposed any other method of maximizing his parenting time under the existing
limitations—i.e., he lives in California and Mother lives in Illinois.
21
Both parents have attempted to move on but in doing so have created an
environment for the child to believe that the other parent is not as
important. The primary responsibility of this rests on Mother’s shoulders
and places quite a bit of responsibility for that on her.
(Emphasis added). We find that the trial court‘s decision not to award Mother her
attorney fees is ―within the range of acceptable alternatives.‖ BIF, 1988 WL 72409, at
*3. We find no abuse of discretion.
We further decline to award Mother her attorney fees on appeal.
CONCLUSION
The judgment of the trial court is affirmed. Costs of appeal are assessed against
the appellant, Michael Watson, and execution may issue if necessary.
_________________________
ANDY D. BENNETT, JUDGE
22