The opinion
02/08/2018
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
August 9, 2017 Session
VICTORIA LEANNE POTTS v. TIMOTHY S. POTTS
Appeal from the Circuit Court for Hamblen County
No. 13-CV-179 Thomas J. Wright, Judge
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No. E2016-02283-COA-R3-CV
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This appeal involves a contentious continuing dispute over visitation with the parties’
young daughter. After numerous hearings, the trial court reluctantly continued limited
structured visitation to the mother. The principal issue raised on appeal is whether the
trial court’s rulings were in the best interests of the child. Having carefully reviewed the
voluminous record before us, we find that the evidence supports the parenting plan
determination and other rulings made by the court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Affirmed; Case Remanded
JOHN W. MCCLARTY, J., delivered the opinion of the court, in which CHARLES D.
SUSANO, JR., J., and D. MICHAEL SWINEY, C.J., joined.
Dawn E. Bowie, Knoxville, Tennessee, for the appellant, Victoria Leanne Potts.
Frank C. Little, Knoxville, Tennessee, and Linda Larson, Dandridge, Tennessee, for the
appellee, Timothy S. Potts.
OPINION
I. BACKGROUND
This case involves the dissolution of a marriage of short duration. Victoria Leanne
Potts (“Wife”) and Timothy S. Potts (“Husband”) were married on October 11, 2008. In
June 2012, the couple had a daughter (“the Child”). After the Child’s birth, Wife became
seriously ill with postpartum depression and developed a serious eating disorder. Despite
working with a therapist starting in July 2012, Wife’s treatment was unsuccessful. Her
primary care physician prescribed Zoloft, but the drug proved of no benefit in addressing
Wife’s mental health issues. In February 2013, Wife entered an intensive outpatient
treatment program in Knoxville. Four months later, she received further inpatient
treatment in Knoxville for a period of 18 days, at which time a feeding tube was inserted
to ensure Wife’s sufficient nutrition. She subsequently entered an inpatient program in
Chattanooga, then transitioned to a related outpatient program in Knoxville. Eventually,
she received further treatment in Indiana, Florida, and Colorado. Over the course of her
illness, Wife was diagnosed, inter alia, with clinical depression, obsessive-compulsive
disorder, and anorexia.
Wife, in her early thirties at the time of these events, has been enrolled at the
University of Tennessee in pursuit of a degree in social work.1 She possesses a BA in
education from a college in Florida and was previously employed full time as a teacher in
a private school. However, because her degree is from an unaccredited institution, she
has been unable to obtain a job with a public school system in Tennessee. The record
reveals that Wife had completed a semester of course work toward obtaining a masters in
education in order that she could be certified to teach in Tennessee public schools, but
she abandoned that course of study when she became pregnant with the Child.
Husband’s educational background reveals two years of community college education.
Six years older than Wife, Husband works as a mine clerk for Nyrstar Tennessee Mines.
Wife contends that her mental health issues result from abuse, first from her father
and later by Husband. In regard to Husband, Wife asserts that he “is emotionally abusive
and has severe anger management issues.” She contends that Husband’s “abusiveness”
exacerbated her mental health problems, leaving her in constant fear that she would
trigger his anger. She claimed to feel unsafe in his presence. According to Wife,
Husband raised his voice in anger, once grabbed her by the arm, once grabbed her by the
shoulders, hit her with a pillow, obstructed the doorway to their bedroom and locked her
in the bathroom while she was holding the Child. On the occasion where she was
holding her daughter, Wife testified that Husband refused to allow her to pass unless she
admitted that she had lied. She claims that he would call her selfish, lazy and
irresponsible, constantly harassed her, yelled at her, and used terrible language—all in the
presence of the Child. Additionally, Wife asserts that Husband isolated her and
constantly blamed her. She contends that he often threatened to leave her, poked her, and
pointed his finger in her face. Wife admitted, however, that she had also grabbed
Husband by the arm once and had hit him with a pillow.
As to Wife’s allegations, Husband admits that he once grabbed Wife’s arm, once
grabbed her by the shoulders, hit her with a pillow and once stood in the doorway of their
bedroom during an argument. He acknowledges calling her “irresponsible” during an
1
Because of her battles with depression and an eating disorder, Wife expresses a desire to
help other people who are battling those maladies.
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argument about money. According to Husband, however, he was unaware that Wife
thought he was abusive. He observed that the subject of abuse had never come up in any
of Wife’s treatment and that none of the providers had ever attempted to address the
possibility with him or to encourage him to seek treatment. Contrary to Wife’s
assertions, Husband contends that he encouraged her to initiate mental health treatment
and was a source of support until she filed for divorce. He paid all of the household
expenses including Wife’s health insurance, car payment and car insurance, cared for the
Child,2 took care of almost all of the household chores, and regularly drove to Knoxville
or Chattanooga during the inpatient admissions to enable Wife to see the Child. Wife,
however, asserts that Husband was very uncooperative during her treatment and refused
to follow the advice or instruction of the therapists.
During his spouse’s treatment, Husband contends that he came to believe Wife
posed a risk to the Child. He worried that her insistence on breast feeding and limited
caloric intake was harming the Child. Husband’s mother testified that she had seen the
Child stick her fingers down her throat to gag herself, suggesting the infant had observed
her mother perform the action. Husband filed a petition for emergency custody of the
Child in the juvenile court before Wife’s divorce complaint was filed in the circuit court
on August 28, 2013.
After the juvenile court exercised jurisdiction over the custody of the Child, a
probable cause hearing was held on September 4, 2013, wherein the court found probable
cause to believe that there was a substantial threat of harm to the Child while in the
unsupervised care of Wife. The juvenile court noted:
There is probable cause to believe that [the Child] could be under a
substantial threat of harm if placed in your care and control presently. And
the reason I say that is because of the suicidal thoughts that you had. I’m
going to have to have some expert testimony who knows that you had
thoughts while you were driving down the road that you thought about
running off the road and killing yourself, and that the only reason you
didn’t do that was because [the Child] was in the car. I just can’t trust that.
It’s up to me to see that children are protected, and this is a probable cause
hearing.
Also, I am very concerned about [the Child]’s birth [sic] weight. It appears
that you are compulsive about how much her food intake is and that
perhaps you have restricted it to too great of an extent, because she was
actually only at the five percentile once upon a time. . . .
In spite of its concerns regarding Wife, the juvenile court found Husband had been too
2
Wife argues that Husband’s mother, not Husband, served as caregiver.
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restrictive with visitation. The court thereafter entered an order transferring the juvenile
court case and consolidating it with the divorce action pending in the circuit court.
Wife continued to receive treatment and she asserted that her condition was
improving. In August 2013, a medical doctor observed that Wife was responding well to
treatment and that “[a]t no time ha[d] [Wife’s] illness interfered with her ability to care
for her daughter.” The physician indicated that Wife put her daughter’s needs before her
own and had “never been psychotic or had any wish or impulse to harm anyone.” By
October 2014, a therapist indicated that Wife’s “mood is stable,” that she had
“appropriate thought processes, and is capable of using good judgment.” The therapist
found “no reason there should be any restrictions in [Wife’s] interactions with her
daughter.” Another therapist opined that Wife “represented[ed] NO risk to herself or
others, including specifically her 2-year-old daughter.” In contrast, Dr. James F. Murray,
Ph.D., testified that he was extremely concerned about Wife’s ability to safely and
appropriately parent the Child. Dr. Murray, who was engaged as an expert for the court
at the request of Wife who paid for Dr. Murray’s evaluation, recommended minimal
supervised visitation for Wife with Husband as the primary residential parent and sole
decision maker because her mental health issues are “characteristically difficult to treat in
a comprehensive fashion, likely to recur, and likely to significant[ly] impact or limit
adaptive/functional capacity across a number of important life dimensions.”
In December 2014, the trial court granted the divorce, reserving the co-parenting
issue along with the child support issue. Pursuant to Tennessee Code Annotated section
36-4-129(b), the court stated as follows:
[B]oth parties have been involved in a course of conduct over the past two
years that caused their relationship to disintegrate and their love and
affection for one another to be extinguished. For the wife’s part, this
finding flows from her inability to fulfill her roles as a parent and a wife
over the year prior to filing for divorce and from her determination that
husband was an abuser who failed to support her during her battle with
mental illness. For the husband’s part, this finding stems from his inability
to maintain an emotional attachment to his wife during her lengthy
treatment and his determination that she was untrustworthy and a threat to
their child, as evidenced by his initiation of ex parte juvenile court
proceedings to prevent the wife from being unsupervised with the child. . . .
It appears that Wife’s condition has stabilized and no additional inpatient or intensive
outpatient treatment has occurred.
The final disposition of the case occurred in August 2016. At that time, Wife had
been visiting regularly with the Child under the supervision of the Assurance Group in
Knoxville. Becky Cook, the operations director at the facility, testified regarding the
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interaction between the Child and Wife: Wife “has done nothing that causes me
concern.” Ms. Cook noted that the visits go well and an affectionate bond exists between
them. A licensed professional counselor who had been working with Wife for about a
year and a half, Martha Finnegan, observed that Wife has made significant progress
regarding her depression and that her medication had been decreased. Ms. Finnegan
expressed no concerns about Wife’s parenting skills and being around her daughter. She
opined that Wife “would never harm” the Child. The court described “recent activities
and interaction between [Wife and the Child as] appropriate with no words, actions or
inactions to cause any concern for the supervised visitation supervisor.”
In the memorandum opinion filed by the trial court, it was noted that “[a] separate
order was filed December 12, 2014 [that] contains extensive findings which are hereby
incorporated by reference. . . . That order from December 12, 2014 is an integral part of
this Court’s findings, conclusions, and rulings on the issues in this divorce.” The court
found in the prior order that the preponderance of the evidence did not support Wife’s
allegations that she had been “abused” by Husband. In the September 2, 2016 order, the
court addressed the “significant progress” Wife had made in addressing her mental health
issues. According to the court,
one indication of the positive progress [Wife] has made is that she has
remained stable in the midst of what has to be an excruciatingly stressful
situation. The psychologist who testified at trial indicated that symptoms
from the various maladies suffered by [Wife] would tend to be exacerbated
or become symptomatic when [Wife] is placed under stress. It is difficult
to imagine a more stressful period than what she has been going through
fighting for visitation with her daughter, having to be observed during all of
her parenting time, having her parenting unilaterally terminated by Father
on more than once occasion, receiving an extremely negative parenting
evaluation from the Court’s expert, appearing, and often testifying, at
numerous court proceedings, all the while maintaining a part time job,
taking college courses, taking care of her own home and attending to her
mental health treatment. It is difficult to imagine that she will ever be
anymore stressed than she has been during this time period. Yet, she has
improved and has a significant period of demonstrated stability.
Despite the improvement by Wife, the court specifically held:
Clearly the most significant issue in the case has been [Wife’s] mental and
emotional health. Her illness has simply precluded her from being involved
at all for lengthy periods of time in the life of this child. And the concerns
that her illness has raised prevent her from enjoying normal parenting time
with this child despite her significant improvement during the last year.
Because of the child’s age and stage of development and the severity and
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seriousness of the illnesses experienced by [Wife], it is with regret that the
undersigned FINDS the best interest of the child to be served by a period of
continued supervised visitation on the part of [Wife]. See Tenn. Code Ann.
§ 36-6-406(d)(1) & (2). In this situation, there is no question that the
[Husband] must be the primary residential parent. Because the parties are
unable to agree on anything, someone must be designated as the decision
maker and in this case it must be [Husband], due to concerns about
decisions [Wife] has made or attempted to make in the past about the
Child’s mental and physical health, eating habits and need for evaluation,
therapy, and treatment.
Wife filed a timely appeal.
II. ISSUES
The issues raised on appeal by Wife are restated as follows:
a. Whether the trial court conducted a meaningful
comparative fitness evaluation based on the best interest of
the Child.
b. Whether the evidence below preponderates against the
findings and conclusions of the trial court.
c. Whether Wife was denied due process of law because
of her mental illness, which could have been avoided by
application of a clear and convincing evidentiary standard of
proof in very narrow circumstances:
1. Whether under any standard Wife was denied
procedural due process.
2. Whether the use of the clear and convincing standard
of proof for restricting parental rights in custody
determinations would provide better protection from inherent,
unconscious bias against parties vulnerable to the stigma of
mental illness.
III. STANDARD OF REVIEW
Our review of the trial court’s factual findings is de novo upon the record of the
trial court, accompanied by a presumption of the correctness of the findings, unless the
preponderance of the evidence is otherwise.” See Tenn. R. App. P. 13(d); Kendrick v.
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Shoemake, 90 S.W.3d 566, 570 (Tenn. 2002). We review the trial court’s resolution of
questions of law de novo, with no presumption of correctness. Kendrick, 90 S.W.3d at
569. 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. Massey-Holt v. Holt, 255 S.W.3d 603, 607
(Tenn. Ct. App. 2007) (internal citations omitted). A trial court’s decision regarding the
details of a parenting plan should not be reversed absent an abuse of discretion. Eldridge
v. Eldridge, 42 S.W.3d 83, 88 (Tenn. 2001).
IV. DISCUSSION
a. Motion to Dismiss
The trial court granted the divorce in this matter in December 2014; the issue of
child custody, inter alia, was reserved. The remaining issues between the parties--
parenting time, child support, and alimony--were addressed in the trial court’s
memorandum opinion and final judgment order entered on September 2, 2016 (“the
Order”).
Husband observes that the Order set forth a detailed residential parenting schedule
regarding the Child, which took effect on the date of its entry. It stated: “Counsel for
Mother shall prepare a permanent parenting plan reflecting the rulings herein and submit
to the Court. The 8-month visitation progression starts with the filing of this
Memorandum Opinion and Final Judgment Order.” Thereafter, Wife’s counsel drafted
and submitted a parenting plan as directed, which was signed and entered into the trial
court’s record on October 21, 2016. Wife filed a notice of appeal on November 14 from
[T]he final judgment of the Circuit Court for Hamblen County, Tennessee
(Parenting plan Order incorporating Memorandum Opinion of September 2,
2016 into a final order) entered in this Court’s record on October 21, 2016.
...
Husband now contends that Wife’s notice of appeal is untimely because the final
order was the trial court’s September 2 Order rather than the October 21 Order. He
asserts that the September 2 Order resolved all of the outstanding issues between the
parties. According to Husband, the later filed parenting plan is not an operative order but
simply a restatement of the same residential parenting schedule that was set forth in the
September 2 Order.
Wife responds that “[a]ny final decree or decree of modification in an action for
absolute divorce, legal separation, annulment, or separate maintenance involving a minor
child shall incorporate a permanent parenting plan . . . .” Tenn. Code Ann. § 36-6-
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404(a) (emphasis supplied). She contends that the September 2 Order was not the final
decree of divorce as several matters were not addressed in the court’s memorandum
opinion and order that were set forth in the permanent parenting plan order filed on
October 21, 2016. According to Wife, neither order, standing alone, was sufficient to
conclude all issues between the parties.
“[E]very final decree in a divorce action in Tennessee involving a minor child
must incorporate a permanent parenting plan.” See Armbrister v. Armbrister, 414 S.W.3d
685, 696 (Tenn. Oct. 21, 2013); Tenn. Code Ann. § 36-6-404(a). Creating a parenting
plan is one of the most important decisions confronting a trial court in a divorce case.
Steen v. Steen, 61 S.W.3d 324, 327 (Tenn. Ct. App. 2001).
Tennessee Code Annotated section 36-6-402(3) defines a permanent parenting
plan as: “a written plan for the parenting and best interests of the child, including the
allocation of parenting responsibilities and the establishment of a residential schedule, as
well as an award of child support consistent with chapter 5 of this title[.]” Tennessee
Code Annotated section 36-6-404 lists the specific elements that the trial court must
include in the written plan which constitutes a permanent parenting plan. Husband
contends that the trial court’s September 2 Order addressed every element required by
statute to be included in a permanent parenting plan with the exception of selecting a
process for dispute resolution. According to Husband, in the relevant section of the
permanent parenting plan that was submitted by Wife’s counsel, the box for “Mediation
by a neutral party chosen by the parents or the Court” was selected. He argues that the
trial court’s omission of this minor detail in the Order is of no substance with regard to
the parties and is therefore inconsequential. Husband further contends that there is no
statute or rule indicating that the parenting plan “form” set forth by the Administrative
Office of the Courts (“AOC”), pursuant to Tennessee Code Annotated section 36-6-
404(3)(d), is the only format which constitutes a permanent parenting plan. Husband
argues that the court’s September 2 Order is a permanent parenting plan as defined by
Tennessee Code Annotated section 36-6-402(3), and thus, meets the requirements of
Tennessee Code Annotated section 36-6-404(a)-(b).
A final judgment is primarily one that fully adjudicates all the matters existing
between all the parties. Tenn. R. App. P. 3(a); Wilson v. Wilson, 58 S.W.3d 718, 725
(Tenn. Ct. App. 2001). Until a judgment becomes final, it remains within the trial court’s
control and may be modified any time prior to the entry of a final judgment. Eldridge v.
Eldridge, 137 S.W.3d 1, 20 n. 10 (Tenn., Ct. App. 2002).
Upon review, we note that rights are included in the permanent parenting plan that
are not addressed in the September 2 Order. Thus, we find the appeal to be timely filed.
The September 2 Order did not resolve all the disputed matters in the pending litigation.
Further, Tennessee Code Annotated section 36-6-404(3)(d) notes that the AOC’s
“parenting plan” form “shall be used consistently by each court within the state that
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approves parenting plans.” Accordingly, the judgment was not final without the required
mandatory form. Husband’s motion to dismiss is denied. Wife’s request for attorney
fees and costs incurred in defending the motion to dismiss, however, is also denied.
b. Best Interest
Wife argues that the trial court, distracted by Husband’s contentions about her
mental health, made a custody determination that was not in the best interest of the Child.
She contends that the trial court conflated a custody evaluation (“the purpose of which is
to focus on factors that pertain specifically to the psychological best interests of the
child”) with a forensic psychological evaluation (“the purpose of which is to evaluate and
report on the clinical mental status of individuals in the legal system.”). Wife asserts that
little information was developed to address what the psychological best interests of the
Child might have been. Wife further argues that the trial court improperly applied the
Tennessee Code Annotated section 36-6-106 factors. Accordingly, she claims that the
evidence of record preponderates against the trial court’s ruling. Husband responds that
the court followed the appropriate procedures and had sufficient evidence with which to
set a parenting schedule that was in the Child’s best interests.
The trial court is not required to list and discuss each factor enumerated in
Tennessee Code Annotated section 36-6-106. As this Court has explained:
Ascertaining a child’s best interests does not call for a rote examination of
each of [the relevant] factors and then a determination of whether the sum
of the factors tips in favor or against the parent. The relevancy and weight
to be given each factor depends on the unique facts of each case. Thus,
depending upon the circumstances of a particular child and a particular
parent, the consideration of one factor may very well dictate the outcome of
the analysis.
In re Marr, 194 S.W.3d 490, 499 (Tenn. Ct. App. 2005). The trial court in the instant
case expressly considered all of the statutory factors. Specifically, the court stated in its
memorandum opinion:
In determining the child’s best interest there are a number of factors that
must be considered in every case, including fifteen specifically listed
factors in T.C.A. § 36-6-106(a). See also, T.C.A. § 36-6-404(b). Having
carefully considered all of the statutorily mandated factors, the Court
FINDS the following statutory factors from § 36-6-106 to be of primary
importance in determining the primary residential parent as well as the
terms of a permanent parenting plan.
The court determined that Husband had been the primary provider and caregiver for the
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daily needs of the Child and that he had a loving and stable relationship with his
daughter. Despite the court’s acknowledgment of the Child’s loving and evolving
relationship with her mother, the court concluded that concerns about Wife’s illness
prevent her at this time from enjoying normal parenting time with the Child. The court
did not dispute Wife’s improvement but found the Child’s age and stage of development
and the severity and seriousness of Wife’s illnesses to require supervised visitation for
Wife to be in the Child’s best interests.
Interestingly, the court expressed its concern about Husband’s disdain for Wife’s
role in the Child’s life, citing Husband’s adoption of Dr. Murray’s negative conclusions
about Wife. The court specifically noted:
[Husband] has latched on to the negative conclusions reached by Dr.
Murray regarding [Wife]’s parenting ability without recognizing that
[Wife] has spent the last year and a half functioning well, in a continuing
therapeutic relationship, at a minimal level of treatment, without any
inpatient or even intensive outpatient treatment being necessary. At trial
[Husband] could not even bring himself to acknowledge that she had
improved much less say that he was glad she was doing better. While
embracing Dr. Murray’s negative conclusions about [Wife] as if they were
the Holy Grail, [Husband] completely ignores Dr. Murray’s cautionary
statement that his recommendations be subject to revision to consider
positive changes in [Wife’s] health and functioning.
The record reveals that the trial court conducted a thoughtful and thorough and
unbiased assessment of the relevant facts of this case and made a custody determination
that was in the best interests of the Child.3 The court made findings that Wife’s therapist
Ms. Finegan was “helpful and credible” and observed that she “would have no concerns
about [Wife] appropriately parenting [the Child].” In contrast, the court considered Dr.
Murray’s testimony that he was extremely concerned about Wife’s ability to safely and
appropriately parent the Child and recommended minimal supervised visitation for Wife
with Husband as the primary residential parent and sole decision maker. Despite Dr.
Murray’s testimony, the court recognized that the psychologist did not have the benefit of
re-interviewing Wife after her recent period of stability, and that she had made significant
progress since his evaluation. The court further acknowledged that it would be difficult
to imagine that Wife will ever be anymore stressed than she has been during this time
period.
3
Statute addresses “a custody arrangement that permits both parents to enjoy the
maximum participation possible in the life of the child consistent with the factors set out in this
subsection (a), the location of the residences of the parents, the child’s need for stability and all
other relevant factors.” Tenn. Code Ann. § 36-6-106(a).
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Trial courts are in a better position to observe the witnesses and assess their
credibility; therefore, trial courts enjoy broad discretion in formulating parenting plans.
Massey-Holt, 255 S.W.3d at 607. “Thus, determining the details of parenting plans is
‘peculiarly within the broad discretion of the trial judge.’” Suttles v. Suttles, 748 S.W.2d
427, 429 (Tenn. 1988). Appellate courts should not overturn a trial court’s decision
merely because reasonable minds could reach a different conclusion. Eldridge, 42
S.W.3d at 85. Based upon our review of the record, we hold that the evidence does not
preponderate against the trial court’s findings of fact, and we find no error in the court’s
parenting plan determination. We recognize, however, that “supervision of a parent’s
visitation with his or her child is “a significant intrusion on the parent-child relationship,”
“is not to be undertaken lightly or without reasonable basis,” and a court “should seek to
end the supervision as soon as it is no longer needed.” Culbertson v. Culbertson, 455
S.W.3d 107, 157 (Tenn. Ct. App. 2014).
c. Abuse
Wife asserts that the trial court was premature in its finding that Husband did not
abuse her. She contends that the court’s finding foreclosed inquiry during the
comparative fitness analysis into the code provisions requiring the court to “consider
evidence of physical abuse . . . to the other parent . . . .” Tenn. Code Ann. §§ 36-6-
106(a)(8) & 36-6-404(b)(12). The trial court found that “[t]here is absolutely no
evidence that [Husband] inflicted or attempted to inflict physical injury or that the words
or actions of the husband should have placed wife in fear of physical harm or restraint.
While the husband’s words and actions during some of the couple’s arguments may have
been unappreciated and unwelcomed they would not have placed a reasonable person in
fear of injury or restraint.”
Tennessee Code Annotated section 36-3-601(1) defines abuse as:
[I]nflicting, or attempting to inflict, physical injury on an adult or minor by
other than accidental means, placing an adult or minor in fear of physical
harm, physical restraint, malicious damage to the personal property of the
abused party, including inflicting, or attempting to inflict, physical injury
on any animal owned, possessed, leased, kept, or held by an adult or minor,
or placing an adult or minor in fear of physical harm to any animal owned,
possessed, leased, kept, or held by the adult or minor[.]
Ironically, Wife admitted that she grabbed Husband’s arm in order to prevent him
from leaving their house and also struck him with a pillow because she was frustrated
with him, thus committing against Husband actions similar to ones that she asserts are
abuse when committed by her spouse. It is clear that the relationship between the parties
had deteriorated beyond repair. Our review of the record, however, reveals that the trial
court properly weighed the facts before it before finding that there was no abuse by
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Husband. The preponderance of the evidence supports the findings of the trial court
regarding alleged abuse.
d. Dr. Murray
Despite the fact that she agreed to the selection of Dr. Murray to conduct a
parenting evaluation, Wife now contends that he was unqualified to conduct the
evaluation. She specifically contends that the evaluation was not performed pursuant to
the guidelines of the American Psychological Association that “the child’s welfare is
paramount” and did not provide any information about “parenting attributes, the child’s
psychological needs, and the resulting fit.” See American Psychological Ass’n,
Guidelines for Child Custody Evaluations in Family Law Proceedings, 65 American
Psychologist, No. 9, 865-867 (2010). Husband submits that the parties stipulated at trial
to Dr. Murray’s qualifications as an expert witness. The trial court reviewed Dr.
Murray’s curriculum vitae and expressly found:
[S]ince the plaintiff[] [Wife] selected him [Dr. Murray] to do the evaluation
I’m going to find that he’s able to testify about opinions with regard to
mental health, mental illness, child and parent interactions and any related
issues that he was asked to observe the parties about. So he’s . . . he’s an
expert.
Dr. Murray testified that Wife “continues to have very severe, very significant
psychiatric symptomatology.” He observed that Wife
is so focused on her own psychological pain and her own symptoms, which
she uses, which will cause her pain and are the only mechanisms that she
knows how to relieve the pain, that she can’t see [the Child] as [the Child].
And she can’t separate her own needs from [the Child]. . . . And so I think
she just is so encompassed in her experience of pain and victimization and
eating disorders and maladaptive ways of handling depression and anxiety
that she can’t look at somebody else and say this is somebody else, this is
who they are, this is what they need and don’t need. Let me take my stuff
and pack it away and fit in with this person. She can’t. I don’t believe she
can do it.
In summary, Dr. Murray opined that Wife is so consumed by psychological symptoms
and pain that it is difficult for her to live a life separate from her symptoms. He further
expressed the belief that Wife’s mental health condition directly impacts in a negative
way her ability to parent the Child. Dr. Murray recommended that Husband be identified
as the primary residential custodian with sole decision capacity for all significant issues.
He proposed that Wife have regular scheduled visitation with the Child for 2 hours one
weekday afternoon or early evening each week and a 4 hour supervised period every
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other weekend, supervised by a licensed mental health professional to be selected by
Husband. Admittedly, by the conclusion of the case, the trial court observed that Dr.
Murray’s “opinions and his parameters are starting to deteriorate a little bit with me.”
When determining the admissibility of expert testimony, the role of the trial court
is that of a gatekeeper. State v. Scott, 275 S.W.3d 395, 401 (Tenn. 2009). Questions
pertaining to the qualifications, competency, admissibility and relevancy of expert
testimony are left to the discretion of trial court. Brown v. Crown Equipment Co., 181
S.W.3d 268, 273 (Tenn. 2005).
As noted by Husband, Wife never objected to Dr. Murray’s qualifications or the
extent of the trial court’s order appointing him. Wife was well-represented at the trial
court by experienced counsel. She may not now raise objections that were not raised in
the trial court simply because Wife has new counsel. An issue not raised in the trial court
cannot be raised on appeal. Simpson v. Frontier Cmty. Credit Union, 810 S.W.2d 147,
153 (Tenn. 1991); see also Lovell v. Metropolitan Government, 696 S.W.2d 2 (Tenn.
1985); Lawrence v. Stanford, 655 S.W.2d 927 (Tenn. 1983). Further, even if Wife was
allowed to raise these arguments for the first time on appeal, the evidence supports the
conclusion that Dr. Murray was well-qualified to conduct the evaluation and testify as an
expert in this case. The trial court did not abuse its discretion in allowing the expert
testimony.
e. Evidence Standard
Wife claims that her due process rights have been violated because the trial court
used the preponderance of the evidence standard instead of the clear and convincing
standard with regard to its findings of fact in this custody determination. According to
Wife, “[i]n cases involving a parent living with mental illness, using the clear and
convincing standard reduces the risk of bias (perhaps unrealized even on the part of the
fact finder) regarding mental illness and permits the stigma surrounding those suffering
from it to filter the consideration of the best interests factors by the trial court.” She
asserts that the higher standard would have “better leveled the evidentiary playing field”
for her.
The Tennessee Supreme Court has already opined that the clear and convincing
evidentiary standard should be used with regard to the termination of parental rights.
Hawk v. Hawk, 855 S.W.2d 573, 581 (Tenn. 1993). In this case, however, Wife’s
parental rights were not at issue. Rather, the trial court was deciding the residential
parenting schedule for the Child. In decisions concerning comparative fitness, custody,
visitation, and child support, the preponderance of the evidence standard is the correct
standard to use. See Hass v. Knighton, 676 S.W.2d 554 (Tenn. 1984). The trial court
used the proper evidentiary standard.
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To the extent that Wife is advocating for the clear and convincing evidentiary
standard to be used only for parents with mental illness, Husband avers that this would
violate the Equal Protection Clause of the Fourteenth Amendment to the United States
Constitution. As argued by Husband, a state “may not draw distinctions between
individuals based solely on differences that are irrelevant to a legitimate governmental
objective.” Lehr v. Robertson, 463 U.S. 248, 265 (1983) (quoting Reed v. Reed, 404 U.S.
71, 76 (1971)). Individuals may not be subjected to disparate treatment when there is no
substantial relation between the disparity and an important state purpose. Id.
We do not find that Wife set forth a legitimate basis for parents with mental health
diagnoses to be afforded a stricter evidentiary standard with regard to the care, custody,
and control of their minor children. Her mental health diagnoses, while unfortunate, do
not form a legitimate basis for her to demand a different evidentiary standard from that of
parents without a mental health issue. Therefore, the preponderance of the evidence
standard is the proper evidentiary standard. Further, as none of the constitutional issues
asserted now by Wife were raised in the trial court, we find that they have been waived.
See also Civil Serv. Merit Bd. Of City of Knoxville v. Burson, 816 S.W.2d 725, 735
(Tenn. 1991). The trial court did not use Wife’s disability to create a presumption against
her. The record reveals that the proceedings before that court were conducted properly
and Wife is bound by the decisions of her experienced prior counsel.
f. Dr. Robinson
Husband called Barbara Robinson (“Dr. Robinson”), his treating therapist, as an
expert witness. Wife asserts that the probative value of Dr. Robinson’s testimony in
response to “thinly veiled hypotheticals” was substantially outweighed by prejudice to
Wife. She claims that the trial court erred in disallowing her expert, Sydney Peltier, to
testify while allowing Dr. Robinson.
To be admissible, expert testimony must be relevant and it must satisfy Tennessee
Rules of Evidence 702 and 703. Rule 702 states, “If scientific, technical, or other
specialized knowledge will substantially 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.”
Rule 703 states:
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. The court
shall disallow testimony in the form of an opinion or inference if the
underlying facts or data indicate lack of trustworthiness.
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Based on the foregoing, it is the responsibility of the trial court to determine that
“(1) the witness qualifies as an expert, and (2) the expert’s testimony is reliable in that the
facts underlying the testimony are trustworthy and the testimony will substantially assist
the trier of fact.” Freeman v. Blue Ridge Paper Products, Inc., 229 S.W.3d 694, 707-08
(Tenn. Ct. App. 2007) (citing Brown, 181 S.W.3d at 274). “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 fields.’”
Brown, 181 S.W.3d at 275 (quoting Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152
(1999)).
Dr. Robinson related at trial that she was not testifying specifically about Wife but
instead was informing the court generally about the typical characteristics found in
certain mental health disorders. Dr. Robinson observed that it would be unethical and
biased for a treating mental health provider to testify on behalf of his or her patient. It
appears the testimony was allowed by the trial court in order for the court to educate itself
about the mental health diagnoses mentioned during trial. Such consideration of the
relevancy of expert testimony is consistent with the trial court’s role as a gatekeeper.
Scott, 275 S.W.3d at 401. The court did not abuse its discretion in allowing Dr.
Robinson’s testimony.
g. Motion in Limine
Wife asserts that the trial court violated her due process rights by granting
Husband’s motion in limine regarding Wife’s failure to supplement her written discovery
responses and lack of compliance with the court’s scheduling order. At a hearing on July
28, 2016, Wife’s counsel assured the court that Husband would be provided with a list of
the expert witnesses Wife intended to call at trial by August 8, 2016; further, counsel
stated that each witness would be produced for deposition no later than August 15, 2016.
However, after she failed to produce them for depositions, Wife’s expert witnesses were
excluded from testifying at trial. We find no error on the part of the trial court. Wife’s
assertion that the court improperly granted Husband’s motion lacks merit.
h. Attorney’s Fees
We heard oral argument in this case on August 9, 2017. On the same day, Wife
filed a motion seeking an award of attorney’s fees and costs associated with this appeal.
The issue of appellate attorney’s fees and costs was not raised by Wife in her brief as
required by Killingsworth v. Ted Russell Ford, Inc., 205 S.W.3d 406, 410-11 (Tenn.
2006). As noted in Killingsworth, “[o]ur rules of appellate procedure require an appellant
to set forth in his or her brief ‘[a] statement of the issues presented for review.’” Tenn. R.
App. P. 27(a)(4) (2006). A claim for appellate attorney’s fees is an issue that should be
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set before the appellate court because a remand to the trial court is not a foregone
conclusion.” Id. at 411. Further, pursuant to Rule 27(a)(8) of the Tennessee Rules of
Appellate Procedure, an award of attorney’s fees generated in pursuing the appeal is a
form of relief that must be stated. Id. Because the request was raised by motion but not
as an issue in briefing, we deny the motion.
V. CONCLUSION
The decision of the trial court is affirmed, and the case is remanded for such
further proceedings as may be necessary. Costs of the appeal are assessed to the
appellant, Victoria Leanne Potts.
_________________________________
JOHN W. MCCLARTY, JUDGE
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