Mary McCabe Peirce v. Lee Wesson Hope

06/06/2024

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

February 14, 2024 Session

MARY MCCABE PEIRCE v. LEE WESSON HOPE

Appeal from the Circuit Court for Shelby County

No. CT-0819-21 Gina C. Higgins, Judge

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No. W2023-00621-COA-R3-CV

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This is a grandparent visitation case brought by the maternal grandmother of the child at

issue. When the trial court dismissed the grandmother’s petition following a trial, it held,

among other things, that there was no danger of substantial harm to the child in the absence

of visitation. Although the trial court ruled in favor of the child’s father on the merits of

the underlying case, it ultimately rejected the father’s request to recover attorney’s fees for

his defense of the lawsuit. For the reasons stated herein, we affirm the trial court’s

dismissal of the grandmother’s petition and also affirm the trial court’s denial of attorney’s

fees to the father.

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

Affirmed and Remanded

ARNOLD B. GOLDIN, J., delivered the opinion of the Court, in which J. STEVEN STAFFORD,

P.J., W.S., and CARMA DENNIS MCGEE, J., joined.

Lara E. Butler and Elizabeth W. Fyke, Memphis, Tennessee, for the appellant, Mary

McCabe Peirce.

Lucie K. Brackin, S. Suzanne Brown, and G. Hite McLean, III, Memphis, Tennessee, for

the appellee, Lee Wesson Hope.

OPINION

BACKGROUND AND PROCEDURAL HISTORY

The Appellant in this appeal, Mary McCabe Peirce (“Grandmother”), is the maternal

grandmother of the child at issue. The Appellee, Lee Wesson Hope (“Father”), is the

child’s father. According to the record, the child’s mother was estranged from

Grandmother as of the time of trial and also did not have a presence in the child’s life as of

that time. The record reflects that the child’s mother has a history of substance abuse.

Father was previously married to the child’s mother, and in the early years of the

child’s life, the child, her mother, and Father lived in Florida, less than a mile away from

Grandmother. Grandmother, who considered herself to be an active grandmother, testified

that she saw the child “maybe two or three [times a week]” from the time of the child’s

birth in December 2009 until Father and the child’s mother separated in late October 2011.

Father has not disputed that Grandmother saw the child on a weekly basis during these

early years of the child’s life; in fact, per his testimony, Grandmother came over to the

marital home “[m]aybe once or twice a week” prior to his separation from the child’s

mother.

Following Father’s separation from the child’s mother in October 2011, the child’s

mother moved out of the marital residence and onto Grandmother’s property. According

to Grandmother’s description of the living arrangement, the child’s mother lived in an

attached “guest quarters” that had no kitchen, meaning that she was in Grandmother’s

house “[e]very day for most of the time.” When describing the living situation further,

Grandmother stated as follows: “They lived, if you went outside my side door and took

three steps one way and three steps another way there was a guest quarters. It had two

bedrooms and a study.” Of note, although the child also stayed in these guest quarters at

times with her mother, the child did not live there exclusively during the pendency of her

parents’ separation. The child also was with Father at times. Per Father’s trial testimony,

the respective parenting time that the child’s mother and he had, in terms of percentages,

was “60-40.”

The child’s mother would later vacate Grandmother’s property after having lived

there for well over a year, and in November 2013, she and Father were divorced.

Grandmother still continued to see the child, albeit with less frequency than during the

period of separation between Father and the child’s mother. According to Grandmother’s

testimony, she saw the child weekly when she was in town, and all of her time with the

child occurred through her daughter, not Father. Grandmother eventually became

estranged from the child’s mother, and according to her testimony, this estrangement

actually occurred before the child’s mother became involved with drugs.

According to Grandmother, she thinks she saw the child for the last time in July

2018. Later that same year, in September 2018, Father obtained emergency custody of the

child.

Following the last time that Grandmother believes she saw the child, which was July

2018, and throughout the immediate months after Father obtained emergency custody of

the child, Grandmother did not contact Father in an attempt to see the child. She would

later reach out to Father, however, through a series of text messages, beginning with one

sent on June 18, 2019. In response to Grandmother’s June 18, 2019, message, Father

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replied that he was “open” to letting the child see Grandmother, but he further stated that

he first required Grandmother to meet with him and a therapist to discuss how to, among

other things, address questions Father believed the child was “likely to ask . . . about her

mother.”

It does not appear to be disputed that, in the ensuing meeting with this therapist,

Father confronted Grandmother about the situation surrounding the child’s mother and

expressed a desire for Grandmother to appear and testify at an upcoming court hearing. As

it turns out, Grandmother did not appear at the referenced hearing, which concerned

Father’s proposed parental relocation. According to Father’s testimony, Grandmother had

ignored a subpoena to appear at the hearing. Incidentally, a couple of days prior to the

hearing, the child’s mother had agreed to let Father permanently relocate with the child to

Memphis, Tennessee. When asked at the trial of this matter why he had still wanted

testimony if the child’s mother had already agreed to allow him to relocate, Father

responded in part as follows: “[W]e still have to have a hearing because in Florida the judge

wants to hear it directly from the mother that she is signing away her child.”

When Grandmother later reached out again about potentially seeing the child, Father

brought up Grandmother’s absence at the prior court hearing and further stated that

Grandmother had made the wrong choice and that her decision “will reverberate for the

next 9 years and beyond.” Although Father also directed Grandmother to provide dates

she would be available if she wished to sit down for another meeting with the therapist, it

appears that Grandmother’s subsequent response to Father’s message, as well as additional

texts from her to him, were ignored. Father and the child relocated from Florida to

Memphis in the spring of 2020.

In addition to contacting Father, Grandmother also sent letters to the child. Father

claimed at trial that he gave the child all of the letters with the exception of two, regarding

which, Father noted, Grandmother “had spelled [the child’s] name wrong two different

ways on the envelopes.”1 On one occasion, the child wrote back to Grandmother in a small

notebook, and at trial, photographs of the child’s correspondence to Grandmother were

introduced as an exhibit. According to Grandmother, based on her reading of the letter,

the child “sounded happy, well-adjusted.”

Grandmother initiated the present litigation seeking grandparent visitation in March

2021, and the underlying trial took place over two separate dates in the spring of the

following year. Subsequently, in March 2023, the trial court entered an order dismissing

Grandmother’s petition. In pertinent part, the trial court found, among other things, that

there was “no danger that substantial harm may or will result to the minor Child should

1

Grandmother took photographs of the letters prior to sending them. When shown a couple of the

envelopes at trial, Grandmother acknowledged that she had spelled the child’s name incorrectly, saying she

“must have been in a rush.”

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there be no court ordered visitation.” In a later order, the trial court rejected Father’s ability

to recover attorney’s fees in defense of Grandmother’s lawsuit.

Now that the present appeal is pending before this Court, both parties seek relief.

Whereas Grandmother’s issue on appeal generally poses the question of whether the trial

court erred in dismissing her petition for grandparent visitation, Father’s raised issue asks

whether the trial court erred in denying his request for attorney’s fees and whether he is

entitled to attorney’s fees on appeal. We will address the grievances of both parties in our

discussion below.

STANDARD OF REVIEW

This case was resolved following a bench trial, and as such, we review the trial

court’s findings of fact “de novo upon the record of the trial court, accompanied by a

presumption of the correctness of the finding, unless the preponderance of the evidence is

otherwise.” Tenn. R. App. P. 13(d). “[G]reat weight is given to the trial court’s

determinations of credibility,” Pless v. Pless, 603 S.W.3d 753, 770 (Tenn. Ct. App. 2019),

and “appellate courts will not re-evaluate a trial judge’s assessment of witness credibility

absent clear and convincing evidence to the contrary.” Wells v. Tenn. Bd. of Regents, 9

S.W.3d 779, 783 (Tenn. 1999). Although a presumption of correctness accompanies the

trial court’s factual findings, the same is not true of legal issues. “[W]e review questions

of law de novo with no presumption of correctness.” Sample v. Sample, 605 S.W.3d 629,

634 (Tenn. Ct. App. 2018).

DISCUSSION

Legal Background and General Statutory Exposition

A grandparent visitation case such as the present one “raises a conflict between the

parent’s constitutional right to make decisions about the care and custody of the child and

the grandparent’s right to visitation under Tennessee Code Annotated section 36-6-306.”

Coleman v. Olson, 551 S.W.3d 686, 697 (Tenn. 2018). In specifically elaborating on the

nature of the constitutional rights of a parent and the circumstances under which a state

may intervene in parental decision-making, the Tennessee Supreme Court has noted as

follows:

The right of a parent to raise a child is a fundamental liberty interest protected

by the Fourteenth Amendment to the United States Constitution and article

I, section 8 of the Tennessee Constitution. Hawk v. Hawk, 855 S.W.2d 573,

578–79 (Tenn. 1993) (quoting Meyer v. Nebraska, 262 U.S. 390, 399, 43

S.Ct. 625, 67 L.Ed. 1042 (1923); Davis v. Davis, 842 S.W.2d 588, 598–600

(Tenn. 1992)). Parents’ rights to the care and custody of their children

without undue government interference is “among the oldest of the judicially

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recognized liberty interests protected by the due process clauses of the

federal and state constitutions.” Lovlace v. Copley, 418 S.W.3d 1, 30 (Tenn.

2013) (citing Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147

L.Ed.2d 49 (2000)); see also State ex rel. Bethell v. Kilvington, 100 Tenn.

227, 45 S.W. 433, 435 (1898) (“Ordinarily, the parent is entitled to the

custody, companionship, and care of the child, and should not be deprived

thereof except by due process of law.”). Parents have a privacy interest that

protects them from unwarranted state intervention in parental decision-

making and prohibits the court from imposing its subjective notion of what

is in the “best interests of the child.” Hawk, 855 S.W.2d at 579–80.

Yet the state may interfere with these rights when there is a

compelling state interest. Smallwood [v. Mann, 205 S.W.3d 358, 362–63

(Tenn. 2006)] (citing Nash-Putnam v. McCloud, 921 S.W.2d 170, 174 (Tenn.

1996)). The state has a role of parens patriae and a duty to protect minors,

and the state may intervene in parental decision-making when necessary to

prevent substantial harm to the child. In re Hamilton, 657 S.W.2d 425, 429

(Tenn. Ct. App. 1983) (citing State Dept. of Human Servs. v. Northern, 563

S.W.2d 197 (Tenn. Ct. App. 1978)); see also Hawk, 855 S.W.2d at 581

(holding that “neither the legislature nor a court may properly intervene in

parenting decisions absent significant harm to the child from those

decisions”). The substantial harm requirement protects parents from

unwarranted state interference in the parenting process. Hawk, 855 S.W.2d

at 580. Absent substantial harm to the child, a trial court lacks a sufficiently

compelling justification for interfering with the parents’ privacy rights by

ordering grandparent visitation. Id. at 582.

Id. at 697–98.

This “substantial harm” component has thus been described as the threshold

question in grandparent visitation cases, McGarity v. Jerrolds, 429 S.W.3d 562, 570 (Tenn.

Ct. App. 2013), and we have previously noted that “[t]he decisions of the U.S. Supreme

Court and the Tennessee Supreme Court, interpreting the federal and state constitutions,

explicitly prohibit any judicial assumption that grandparent/grandchild relationships

always benefit the child, as contrary to the parents’ fundamental right to raise their children

as they see fit.” Green v. Evans, No. M2011-00276-COA-R3-CV, 2012 WL 1107887, at

*8 (Tenn. Ct. App. Mar. 30, 2012). As is evident below, Tennessee’s grandparent visitation

statute incorporates the “substantial harm” consideration as a part of the requisite analysis

connected to a grandparent’s pursuit of visitation rights.

Because Grandmother’s concerns in the present appeal pertain to the specific

manner in which the trial court addressed various parts of Tennessee’s grandparent

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visitation statute, which is codified at Tennessee Code Annotated section 36-6-306, we

begin by quoting to the statute here to provide a point of reference for our ensuing

discussion:2

(a) Any of the following circumstances, when presented in a petition for

grandparent visitation to the circuit, chancery, general sessions courts with

domestic relations jurisdiction, other courts with domestic relations

jurisdiction or juvenile court in matters involving children born out of

wedlock of the county in which the petitioned child currently resides,

necessitates a hearing if such grandparent visitation is opposed by the

custodial parent or parents or custodian or if the grandparent visitation has

been severely reduced by the custodial parent or parents or custodian:

(1) The father or mother of an unmarried minor child is deceased;

(2) The child’s father or mother are divorced, legally separated, or were

never married to each other;

(3) The child’s father or mother has been missing for not less than six (6)

months;

(4) The court of another state has ordered grandparent visitation;

(5) The child resided in the home of the grandparent for a period of twelve

(12) months or more and was subsequently removed from the home by the

parent, parents, or custodian (this grandparent-grandchild relationship

establishes a rebuttable presumption that denial of visitation may result in

irreparable harm to the child); or

(6) The child and the grandparent maintained a significant existing

relationship for a period of twelve (12) months or more immediately

preceding severance or severe reduction of the relationship, this relationship

was severed or severely reduced by the parent, parents, or custodian for

reasons other than abuse or presence of a danger of substantial harm to the

child, and severance or severe reduction of this relationship is likely to

occasion substantial emotional harm to the child.

(b)(1) In considering a petition for grandparent visitation, the court shall first

determine the presence of a danger of substantial harm to the child. Such

finding of substantial harm may be based upon cessation or severe reduction

2

Regarding the version of the statute quoted here, we have, as mentioned in the succeeding

footnote, quoted to the version that was applicable at the time of the filing of Grandmother’s petition.

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of the relationship between an unmarried minor child and the child’s

grandparent if the court determines, upon proper proof, that:

(A) The child had such a significant existing relationship with the

grandparent that loss or severe reduction of the relationship is likely to

occasion severe emotional harm to the child;

(B) The grandparent functioned as a primary caregiver such that cessation

or severe reduction of the relationship could interrupt provision of the

daily needs of the child and thus occasion physical or emotional harm; or

(C) The child had a significant existing relationship with the grandparent

and loss or severe reduction of the relationship presents the danger of

other direct and substantial harm to the child.

(2) For purposes of this section, a grandparent shall be deemed to have a

significant existing relationship with a grandchild if:

(A) The child resided with the grandparent for at least six (6) consecutive

months;

(B) The grandparent was a full-time caretaker of the child for a period of

not less than six (6) consecutive months; or

(C) The grandparent had frequent visitation with the child who is the

subject of the suit for a period of not less than one (1) year.

(3) A grandparent is not required to present the testimony or affidavit of an

expert witness in order to establish a significant existing relationship with a

grandchild or that the loss or severe reduction of the relationship is likely to

occasion severe emotional harm to the child. Instead, the court shall consider

whether the facts of the particular case would lead a reasonable person to

believe that there is a significant existing relationship between the

grandparent and grandchild or that the loss or severe reduction of the

relationship is likely to occasion severe emotional harm to the child.

(4) For the purposes of this section, if the child’s parent is deceased and the

grandparent seeking visitation is the parent of that deceased parent, there

shall be a rebuttable presumption of substantial harm to the child based upon

the cessation or severe reduction of the relationship between the child and

grandparent.

(c) Upon an initial finding of danger of substantial harm to the child, the court

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shall then determine whether grandparent visitation would be in the best

interests of the child based upon the factors in § 36-6-307. Upon such

determination, reasonable visitation may be ordered.[3]

(d)(1) Notwithstanding § 36-1-121, if a relative or stepparent adopts a child,

this section applies.

(2) If a person other than a relative or a stepparent adopts a child, any

visitation rights granted pursuant to this section before the adoption of the

child shall automatically end upon such adoption.

(e) Notwithstanding any law to the contrary, as used in this part, with regard

to the petitioned child, the word “grandparent” includes, but is not limited to:

(1) A biological grandparent;

(2) The spouse of a biological grandparent;

(3) A parent of an adoptive parent; or

(4) A biological or adoptive great-grandparent or the spouse thereof.

(f) For purposes of this section, “severe reduction” or “severely reduced”

means reduction to no contact or token visitation as defined in § 36-1-102.

Tenn. Code Ann. § 36-6-306.

The requisite analysis under the statute, which has been described by commentators

as both “lengthy and complex,” Marlene Eskind Moses & Jessica J. Uitto, The Current

Status of Tennessee’s Grandparent Visitation Law, 46 Tenn. B.J. 24 (Jan. 2010),4 has also

3

Although we have quoted herein to the version of the statute applicable at the time of the filing of

Grandmother’s petition, we note that the statute has been slightly amended during the pendency of this

appeal. The current version of section 36-6-306(c) reads as follows:

Upon an initial finding of danger of substantial harm to the child, the court must then

determine whether grandparent visitation would be in the best interests of the child based

upon the factors in § 36-6-307. Upon such determination, reasonable visitation may be

ordered. Reasonable visitation must constitute, at a minimum, sufficient contact to

reasonably permit a strong and meaningful relationship to be established with the child.

Tenn. Code Ann. § 36-6-306(c).

4

Although the specific content of the statute has been amended in some respects since this

characterization, the description still fairly holds.

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been variously referred to as involving a three-pronged analysis, id., or as containing four

elements that grandparents must prove to establish court-ordered visitation. Beltz v.

Heffner, No. E2018-01962-COA-R3-CV, 2019 WL 5607467, at *2 (Tenn. Ct. App. Oct.

30, 2019). Regardless of how the dictates of the statute are combined or classified in

numerical terms, we note that the statute initially demands that a grandparent prove not

only that “grandparent visitation is opposed by the custodial parent or parents or custodian”

or that “grandparent visitation has been severely reduced by the custodial parent or parents

or custodian,” Tenn. Code Ann. § 36-6-306(a), but also that one of the six situations in

Tennessee Code Annotated section 36-6-306(a) exist. See id. As is relevant to the present

case, we note that one of these six situations is implicated when “[t]he child’s father or

mother are divorced, legally separated, or were never married to each other[.]” Tenn.

Code Ann. § 36-6-306(a)(2) (emphasis added).

As mentioned earlier in this Opinion, the statute also demands a consideration of

harm as a prerequisite to granting grandparent visitation. Of note, however, the particular

manner in which the harm consideration is litigated in a given grandparent visitation case

could vary depending upon the underlying facts. For instance, although not relevant to the

facts at issue here, the statute provides that, “if the child’s parent is deceased and the

grandparent seeking visitation is the parent of that deceased parent, there shall be a

rebuttable presumption of substantial harm to the child based upon the cessation or severe

reduction of the relationship between the child and grandparent.” Tenn. Code Ann. § 36-

6-306(b)(4). Another rebuttable presumption pertaining to the question of harm is

contained in, incidentally, one of the six listed circumstances found in Tennessee Code

Annotated section 36-6-306(a). That particular presumption, which is of much dispute in

the present litigation, provides that, if “[t]he child resided in the home of the grandparent

for a period of twelve (12) months or more and was subsequently removed from the home

by the parent, parents, or custodian,” such a “grandparent-grandchild relationship

establishes a rebuttable presumption that denial of visitation may result in irreparable harm

to the child[.]” Tenn. Code Ann. § 36-6-306(a)(5). Of course, although the litigation of

the harm element in grandparent visitation cases may occur within the framework of the

above rebuttable presumptions, these presumptions are not always available to a party.

Indeed, in other cases, it is incumbent upon grandparents to affirmatively prove, in the first

instance, “the presence of a danger of substantial harm to the child.” Tenn. Code Ann. §

36-6-306(b)(1); see also McGarity, 429 S.W.3d at 571 & n.4 (noting that proof of such

harm is a threshold requirement under the statute in “most cases” but stating that petitioning

grandparents “are not required to affirmatively prove substantial harm” when the rebuttable

presumptions in the statute are implicated). As for what actually constitutes harm in this

context, this Court has acknowledged that “[t]he term ‘substantial harm’ does not lend itself

to easy definition.” McGarity, 429 S.W.3d at 573. When generally discussing this in a

prior opinion, we attributed such a difficulty in definition to “the variability of human

conduct.” Ray v. Ray, 83 S.W.3d 726, 732 (Tenn. Ct. App. 2001). Nonetheless, we have

noted that “the use of the modifier ‘substantial’ indicates two things.” Id. As we noted:

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First, it connotes a real hazard or danger that is not minor, trivial, or

insignificant. Second, it indicates that the harm must be more than a

theoretical possibility. While the harm need not be inevitable, it must be

sufficiently probable to prompt a reasonable person to believe that the harm

will occur more likely than not.

Id. (internal footnote omitted).

The requisite analysis under the statute does not end upon a finding of substantial

harm. Indeed, “[u]pon an initial finding of danger of substantial harm to the child, the court

shall then determine whether grandparent visitation would be in the best interests of the

child based upon the factors in § 36-6-307.” Tenn. Code Ann. § 36-6-306(c). Then,

“[u]pon such determination [regarding best interests], reasonable visitation may be

ordered.” Id.

Assessing the Trial Court’s Dismissal of Grandmother’s Petition

There is no dispute in this case as to whether Grandmother satisfied the dictates of

Tennessee Code Annotated section 36-6-306(a) so as to necessitate a hearing according to

the statute’s terms. See Tenn. Code Ann. § 36-6-306(a) (“Any of the following

circumstances . . . necessitates a hearing if such grandparent visitation is opposed by the

custodial parent . . . or if the grandparent visitation has been severely reduced by the

custodial parent[.]”). Indeed, Father does not dispute that he opposed visitation, and he

also concedes that he and the child’s mother are divorced. See Tenn. Code Ann. § 36-6-

306(a)(2). Grandmother, however, criticizes the following passage from the trial court’s

order that appears after acknowledgments by the trial court that “the parents were divorced”

and that Father had opposed visitation:

Next, Grandmother has to prove that the Child resided in the home of

the grandparent for a period of twelve (12) months or more and was

subsequently removed from the home by the parent, . . . or the child and the

grandparent maintained a significant existing relationship for a period of

twelve (12) months or more immediately preceding severance or severe

reduction of the relationship, . . . and severance or severe reduction of this

relationship is likely to occasion substantial emotional harm to the child.

Grandmother argues that the trial court “should have proceeded” to an analysis of

substantial harm under Tennessee Code Annotated section 36-6-306(b). Specifically,

Grandmother submits that the trial court misstated her next element of proof by

considering, as the foregoing passage from the court contemplates, whether the

circumstances in either Tennessee Code Annotated section 36-6-306(a)(5) or section 36-6-

306(a)(6) have been established. Admittedly, the trial court’s language in the foregoing

passage lacks some precision to the extent that the “Next, Grandmother has to prove”

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phrasing suggests, in a vacuum, that Grandmother is somehow obligated to prove the

circumstances in either Tennessee Code Annotated section 36-6-306(a)(5) or section 36-6-

306(a)(6) notwithstanding her prior establishment of Father’s opposition to visitation and

the divorce of the child’s parents under section 36-6-306(a)(2). Grandmother is

undoubtedly correct that she is not required to prove additional circumstances outside of

Tennessee Code Annotated section 36-6-306(a)(2) in order to prevail in this case, but

whereas the trial court’s specific phrasing in the foregoing passage is not a model of clarity,

the larger context of the order clearly indicates that the trial court did not actually demand

proof of additional circumstances under Tennessee Code Annotated section 36-6-306(a)(5)

or section 36-6-306(a)(6). Indeed, consider the following excerpt from the trial court’s

order that immediately follows the passage quoted above:

Grandmother must prove that one of the applicable factors set forth

under Tenn. Code Ann. § 36-6-306(a)(1)-(6) exists. Again, it is undisputed

by the Parties that the factual basis for (a)(2) exists in this case. The minor

Child’s parents were divorced on November 13, 2013, however, it is disputed

by the Parties that the factual basis for (a)(5) or (a)(6) exist in this case. The

Court finds (a)(2) applicable to this Petition but not (a)(5) or (a)(6).

....

The next issue is whether there is danger of substantial harm to the

minor Child absent a grant of visitation rights.

(emphasis added).

A more comprehensive examination of the order thus shows that the trial court did,

in fact, proceed to an analysis of substantial harm notwithstanding its determination that

neither Tennessee Code Annotated section 36-6-306(a)(5) nor section 36-6-306(a)(6) had

been established. Indeed, in the final analysis of the order, it is apparent that the trial court

did not actually condition Grandmother’s right to relief on establishing either Tennessee

Code Annotated section 36-6-306(a)(5) or section 36-6-306(a)(6) on top of her

acknowledged establishment of Tennessee Code Annotated section 36-6-306(a)(2).

In addition, despite the lack of clarity in places, the larger context of the trial court’s

order suggests that Tennessee Code Annotated section 36-6-306(a)(5) was itself

specifically considered, as is appropriate, in order to evaluate whether Grandmother was

entitled to the rebuttable presumption contained in that Code provision. Grandmother’s

own position on appeal does not eschew reliance on the rebuttable presumption available

under Tennessee Code Annotated section 36-6-306(a)(5), as she actually argues that the

trial court “should have” considered it established.

In light of the foregoing, notwithstanding what the specifically quoted “Next,

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Grandmother has to prove” language appears to suggest in immediate view of the court’s

prior recognition that Tennessee Code Annotated section 36-6-306(a)(2) had been

established, our overview of the larger context of the order should dispel any suggestion

that the trial court foreclosed an examination into the harm question because of its finding

that circumstances under Tennessee Code Annotated section 36-6-306(a)(5) and section

36-6-306(a)(6) were absent. Moreover, as noted, Grandmother clearly wanted the trial

court to entertain whether circumstances had been established under Tennessee Code

Annotated section 36-6-306(a)(5) for purposes of establishing a rebuttable presumption of

harm in this case.

As noted earlier, the provision in Tennessee Code Annotated section 36-6-306(a)(5)

itself exists among the six statutory circumstances that can necessitate a hearing for

grandparent visitation pursuant to the authority of Tennessee Code Annotated section 36-

6-306(a). In also providing for the rebuttable presumption of harm relied upon in this case

by Grandmother, the text of the provision reads as follows:

The child resided in the home of the grandparent for a period of twelve (12)

months or more and was subsequently removed from the home by the parent,

parents, or custodian (this grandparent-grandchild relationship establishes a

rebuttable presumption that denial of visitation may result in irreparable

harm to the child)[.]

Tenn. Code Ann. § 36-6-306(a)(5).

In its order, the trial court appeared to reject the availability of this rebuttable

presumption of harm on two fronts. On one front, the trial court appeared to reject the

availability of the provision due to the supposed absence of facts that the child resided “in

the home” of Grandmother. Id. On a second front, the trial court appeared to reject the

availability of the provision due to lack of proof that would satisfy the statute’s temporal

component, i.e., that the child “resided in the home of the grandparent for a period of

twelve (12) months or more.” Id. (emphasis added).

We need not tax the length of this Opinion by definitively considering whether the

trial court’s conclusion in relation to Tennessee Code Annotated section 36-6-306(a)(5), or

all of the ancillary findings connected thereto, should withstand appellate scrutiny. We

pretermit any definitive assessment of such matters because, even assuming arguendo that

Grandmother was entitled to a presumption of harm in this case under section 36-6-

306(a)(5), Father clearly rebutted the notion that there is a danger of irreparable or

substantial harm resulting from an absence of visitation between the child and

Grandmother. In this vein, we note that the trial court’s own order contains ample findings

that themselves serve to rebut the presumption that section 36-6-306(a)(5) creates.

For instance, the trial court noted that “[t]he uncontroverted proof adduced from the

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testimony of Father, the witnesses, and even Grandmother, is that the Child is happy and

well-adjusted living in Memphis with Father and the life they have established.” Further,

the trial court stated that “based upon the testimony of the witnesses and the proof adduced

at trial . . . there is no danger that substantial harm may or will result to the minor Child

should there be no court ordered visitation.”

As for the proof that supports such conclusions, and which clearly works to rebut

any presumption of harm, we initially note that, although there is no question that

Grandmother was a frequent presence in the child’s life up until the summer of 2018, she

last saw the child per her testimony in July 2018. Father was awarded emergency custody

of the child the following fall in September 2018, and eventually, many months thereafter

in June 2019, Grandmother reached out to Father about potentially seeing the child.

Concerning the time since, the case has not been marked by any evidence that the child’s

disposition or personality has changed negatively as a result of not seeing Grandmother.

To the contrary, as discussed below, there is affirmative evidence that the child is doing

well.

When Grandmother was asked on cross-examination about whether the letter that

the child had sent to her gave her any concern about the child’s emotional well-being,

Grandmother responded, as noted earlier, that the child “sounded happy, well-adjusted.”

Continuing on, Grandmother testified as follows: “She sounded like she missed me, but,

you know, she was telling me what she was doing every day, what she wanted to share

with me. She sounded well-adjusted. She’s fine.” (emphasis added). That the child, as

Grandmother put it, “sounded happy,” certainly resonates through the letter, and in this

regard, we specifically note that much of the writing by the child in the letter appears to

convey an animated, excited tone through the child’s frequent use of exclamation marks.

Aside from Grandmother’s testimony referenced above that the child “sounded

happy” and was “fine,” the trial court heard additional testimony from other witnesses who

testified concerning the child and her well-being. One witness called by Father, Ellison

Bakelaar, who stated that her daughter was “best friends” with the child, described her as

“very mature,” “very well adjusted,” and “[v]ery happy.” In expounding upon this last

point, Ms. Bakelaar stated as follows: “She’s always -- big, big smiles. She’s . . . very

charismatic, great sense of humor. Like I said, she’s just always -- I’ve never -- I’ve never

seen her in a bad mood.” According to Ms. Bakelaar, she also had never seen the child

give any indication that she was in distress. Another witness, Treat Macdonald, who also

knew Father and the child, testified that he had known the child for “[t]hree years or so”

and described her as “very bright, wicked sense of humor, and a whole lot of fun.”

According to his testimony, the child had never indicated to him that she was in distress,

and he claimed he had never heard the child mention the name “Mary Peirce” and also had

no recollection of the child ever mentioning her “grandmother.” As for Father’s testimony,

he claimed that the child never got upset after receiving any letters or cards from

Grandmother, and when he was asked if the child had, at any time since September 2018,

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gotten upset about not seeing her grandmother, Father responded in the negative. Father

also testified that the child did not get upset when writing the letter that was sent to

Grandmother.

As should be evident, a common thread runs through all of this evidence. Even per

Grandmother’s account, the child appeared to be happy and well-adjusted, and in our view,

the ultimate disposition by the trial court in this case was clearly the correct one. This

remains true irrespective of whether the rebuttable presumption of harm relied upon by

Grandmother should have been considered to be available to her. Indeed, as we stated

earlier, even assuming arguendo that Grandmother was entitled to a presumption of harm

in this case, Father’s proof clearly rebutted the notion that there is a danger of irreparable

or substantial harm resulting from an absence of visitation between the child and

Grandmother. In light of our conclusion on this matter, we hereby affirm the trial court’s

dismissal of Grandmother’s petition for grandparent visitation. In concluding our review

on appeal, however, an additional issue—Father’s request for attorney’s fees—remains to

be addressed. We turn to that matter below.

Father’s Issue Concerning Attorney’s Fees

Although the trial court dismissed Grandmother’s petition for grandparent

visitation, it ultimately ruled that Father was not entitled to attorney’s fees. The trial court

acknowledged that Father was the “prevailing party” in this case, but it held that the fee

provision relied upon by Father—Tennessee Code Annotated section 36-5-103(c)—“does

not apply in the context of grandparent visitation actions to allow a biological parent to

recover attorney fees from a grandparent.”

Father asserts that the trial court erred in denying his request for fees and also

submits that we should award him appellate attorney’s fees. In response, Grandmother

argues that the trial court committed no error on the subject of fees and states that the

“legislature chose not to include the right to recover attorney fees in the current grandparent

visitation statute,” while also citing to this Court’s past decision in Kiihnl v. Kiihnl, No.

02A01-9111-CV-00286, 1992 WL 357188, at *5 (Tenn. Ct. App. Dec. 4, 1992), wherein

we observed that the “legislature did not make a like provision [to Tennessee Code

Annotated section 36-5-103(c)] when it enacted the grandparent visitation statute.”

In support of his position that the trial court erred in denying him attorney’s fees,

Father suggests that this case “closely parallels” the Tennessee Supreme Court’s decision

in Toms v. Toms, 98 S.W.3d 140 (Tenn. 2003). Toms involved an extraordinary appeal

under Rule 10 of the Tennessee Rules of Appellate Procedure stemming from a trial court’s

grant of temporary custody of children to their paternal grandparents during the pendency

of an underlying divorce action. Id. at 141. In addition to reversing the trial court’s award

of temporary custody to the grandparents, the Supreme Court remanded for an assessment

of attorney’s fees against the grandparents pursuant to a request by the children’s mother

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for attorney’s fees under Tennessee Code Annotated section 36-5-103(c). Id. at 145–46.

In explaining why attorney’s fees were recoverable, the Supreme Court quoted to the

statute’s language and then stated as follows:

From this language, it is clear that the spouse to whom custody is awarded

may recover attorney’s fees from the other spouse. It is also clear that a third

person to whom custody is awarded may recover attorney’s fees. In this case,

however, the spouse having custody is seeking to recover attorney’s fees

from a third party intervenor seeking custody. We conclude that the statutory

language supports such an award of attorney’s fees.

Grandparents were made parties to the divorce action as a result of

their request to intervene. The trial court awarded Grandparents temporary

custody of the children. Had Grandparents prevailed in this Court, they

would have been entitled to recover attorney’s fees from Mother, Father, or

both under Tennessee Code Annotated section 36–5–103(c). See D v. K, 917

S.W.2d 682, 686 (Tenn.Ct.App.1995) (construing Tennessee Code

Annotated section 36–5–103(c) to allow for fees on appeal). We conclude

that parties to whom attorney’s fees may be awarded pursuant to this statute

may also have attorney’s fees awarded against them when their petition is

unsuccessful.

Id. at 145.

Father’s reliance on Toms is misplaced. As evidenced from the above discussion,

Toms, unlike the present case, involved a matter of custody. There is no question that the

statute applies to, among other situations, actions concerning custody:

(c) A prevailing party may recover reasonable attorney’s fees, which may be

fixed and allowed in the court’s discretion, from the nonprevailing party in

any criminal or civil contempt action or other proceeding to enforce, alter,

change, or modify any decree of alimony, child support, or provision of a

permanent parenting plan order, or in any suit or action concerning the

adjudication of the custody or change of custody of any children, both upon

the original divorce hearing and at any subsequent hearing.

Tenn. Code Ann. § 36-5-103(c). The statute does not, however, provide for an award of

attorney’s fees in the context of a grandparent visitation case, and inasmuch as Tennessee

adheres to the American Rule, we cannot countenance Father’s position on fees. As the

Tennessee Supreme Court has instructed:

Under the American rule, a party in a civil action may recover attorney fees

only if: (1) a contractual or statutory provision creates a right to recover

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attorney fees; or (2) some other recognized exception to the American rule

applies, allowing for recovery of such fees in a particular case.

Cracker Barrel Old Country Store, Inc. v. Epperson, 284 S.W.3d 303, 308 (Tenn. 2009).

Although Father endeavors to shoehorn this case under the reach of the statute and

characterizes Grandmother’s petition as a “challenge to the existing custody Order,” we

note that in a relatively recent appeal, which arose from an action for grandparent visitation,

this Court stated that it was “unaware of any contract, statute, or recognized exception that

would provide [a basis for an award of attorney’s fees to the grandmother therein].” In re

Diawn B., No. M2017-01159-COA-R3-JV, 2018 WL 3530838, at *6 (Tenn. Ct. App. July

23, 2018). In light of the foregoing, we hereby respectfully deny Father any relief

concerning this issue.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is hereby affirmed.

s/ Arnold B. Goldin

ARNOLD B. GOLDIN, JUDGE

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