10/19/2022 IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON August 18, 2022 Session
IN RE B. C.
Appeal from the Juvenile Court for Lake County No. 17-000045-01 Andrew T. Cook, Judge ___________________________________
No. W2021-00910-COA-R3-JV ___________________________________
This appeal involves a dispute between unwed parents, in which the mother filed a petition to modify a parenting plan and the father filed a counter-petition to modify the parenting plan and to modify custody. The juvenile court dismissed both the petition and counter- petition finding that modification was not in the child’s best interests. The father appeals. We affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed
CARMA DENNIS MCGEE, J., delivered the opinion of the court, in which ARNOLD B. GOLDIN and KENNY W. ARMSTRONG, JJ., joined.
John M. Miles, Union City, Tennessee, for the appellant, Bradley S. C.
Andrea D. Sipes, Jackson, Tennessee, and Matthew A. Beaird, Dyersburg, Tennessee, for the appellee, Cekita L. S.
OPINION
I. FACTS & PROCEDURAL HISTORY
Cekita L. S. (“Mother”) and Bradley S. C. (“Father”) never married, but were in a relationship and lived together as a family from April 2014 until June 2020. During their relationship, the parties had a child together, B. C. (“the Child”), who was born in 2016.1 In 2017, while they still lived together, Father filed a “motion” seeking to establish himself as the father of the Child and to establish a parenting plan. Mother later testified that Father she denied that the Child had seen her with a naked man; and she stated that Father brought these charges against her only after he was rebuked and denied the ability to spend time with her. After a hearing, the court entered an order rescinding its previous order for emergency custody.
[*2]In April 2021, there was a confrontation between the parties when Father came to Mother’s home in the night and demanded to see the Child. According to Mother, it happened on a night when her current boyfriend was at her home. She said that there was no confrontation between Father and her boyfriend. She explained that Father knocked on her door, she answered the door and spoke with him, and “that was it after that.” However, he returned later that night banging on the window and screaming, “Where is [B. C.]? I want to make sure . . . she’s okay.” Mother told him the Child was in the bed asleep, but he kept demanding to be let in to see the Child. She eventually called the police, who then made Father leave, and she did not see him anymore that night. According to Father, he wanted to do a “welfare check” because Mother’s boyfriend was staying overnight at her home. He explained that he just knocked on the door, Mother came to the door, and he told her he wanted to check on the Child. He left afterward, but he returned when he discovered that Mother had called the police. He then spoke with the police to let them know what was going on. He had hoped to get the police report to mention that Mother’s boyfriend was there so there would be a record of an overnight guest. However, he stated that the boyfriend had already left by the time the police arrived.
In June 2021, the juvenile court held a hearing on modification of the parenting plan. Mother testified about the parties’ relationship when they lived together, explaining that it had its good days and bad days. She also stated that there was a history of physical abuse between them which resulted in the police being called on occasion. She admitted to hitting Father once and “mark[ing] his eye . . . a little bit.” Mother attributed the parties’ separation in June 2020 to discord that arose between them after their home sold, which was apparently not owned by them. Therefore, they were unable to live there anymore and were forced to move. She explained that they could not come to an agreement about where they should move, which then escalated. After words were exchanged, she stated that she left the room to try to diffuse the situation and Father came behind her and pushed her down. She then managed to get away from him and called the maternal grandfather to come to the house to help her get some of her things. According to Mother, Father retrieved a gun from his truck when the maternal grandfather came over to the house and warned him to leave. She stated that she did not take anything from the house besides her clothes when she left that day. However, she was able to get the rest of her things sometime later. The parties also separated partly due to the fact that Father became upset with Mother when he found out she was seeing another man. This man had a number of felony convictions. She stated that she never lived with this man and denied that he was ever naked in the presence of the children.
Mother testified that she was the primary caregiver for the Child and carried out her “motherly” duties, such as attending the Child’s doctor visits and feeding, bathing, and nurturing the Child. She did the same for Father’s oldest child who lived with them. She stated that Father was present in the Child’s life, but he was mainly the breadwinner for the family when the they were together. She explained, however, that she had worked at several jobs both before and after the Child was born, such as a senior-adult caregiver, a postal worker, and a waitress. At the time of the hearing, she had recently started a new job where she was working a 12-hour night shift at a factory for four days each week. Due to her current job schedule, she depended a great deal on the maternal grandmother to help her with the Child. She testified that she was attempting to find another job where she could work during the daytime. In addition to being employed at the time of the hearing, Mother was paying $650 in rent for her apartment and had a written lease agreement in her name.
[*3]Mother admitted that she had worked as a stripper in the past and was paid to do a pornographic video. She testified that Father knew about the video before the Child was born. According to Mother, Father used the video against her whenever they had a disagreement. She stated that he told her that she “was a whore” and “didn’t have morals.” She believed that it was her job as a mother now to set a good example for her children, but admitted that she did not hold herself to that same standard when she was younger. She also testified that she was aware of the video of her oldest child dancing and did not approve of the child’s behavior in the video. There was another video played during the hearing in which Mother was depicted in beach attire and was bent over dancing. Her current boyfriend filmed the video during their trip to Florida and posted it online. She said no one else was around, it was just a playful dance, and she was an adult who could dance and have fun sometimes. During that trip, she explained that Father had the Child. On a separate trip to Beale Street in Memphis, she admitted that she had the Child that weekend and left her to stay with the maternal grandmother while she was on the trip. She also admitted that she had attended a family member’s birthday party at a club where someone was killed, and she was interviewed by the police as a result of the incident.
Mother testified about an exchange she had with one of her family members regarding Father. In that exchange, Mother stated:
I wish you would beat that b***h boy ass. Man, I never knew how much of a b***h he is. I been trying to make s**t work out with him for so long, and I’m tired of MF trying to make me feel like I ain’t nobody because his entire life he has already been around nobody[.]
There was another exchange she had with an acquaintance concerning Father. This acquaintance had a criminal record, and she admitted to giving him Father’s address. However, she denied that the exchange was for the purpose of doing some sort of physical harm to Father. She also testified about her current boyfriend. She stated that he was a regular visitor at her home and would spend the night approximately one or two nights per week when the children were there. He had a home of his own, but she never took her children there to spend the night. He also had children of his own, but he did not bring them to her home. She identified him in a photograph in which he was “[f]lipping the bird,” but she explained that it was “young picture” of him. She was unaware if he had a criminal history, but she believed that she should check into that. She also admitted to unilaterally enrolling the Child in the Lake County School System although the existing parenting plan provided for joint decision-making.
[*4]Father testified that when the parties were together, he attended the Child’s doctor visits and cleaned and cooked. Therefore, he said that Mother did not do those things exclusively. He agreed that Mother was involved in taking care of the Child and did not have any complaints about her parenting while they were together. Since June 2020, however, his opinion about her parenting had changed. He was concerned about her being with other men with criminal histories and engaging in risky conduct. He thought that the video of her dancing in Florida was inappropriate. He also disputed Mother’s testimony and testified that he was unaware of the pornographic video while they were together. He denied that he ever hit Mother but stated that there were times he restrained her. He explained that, in most instances, the violence would be initiated by her, and he would then try to get her to stop.
When they separated, Father admitted that he retrieved his gun from his truck when the maternal grandfather came to move Mother out. However, he explained that he did not “flash” it, point it at anyone, or threaten to use it. Instead, he retrieved it as a precaution. He further explained that it was late, the children were asleep, and the maternal grandfather was yelling, screaming, and cussing. Father asked the maternal grandfather to leave because of his behavior, and he was also worried because of the instances where Mother had allegedly solicited others to do bodily harm to him. Afterward, Father stated that Mother was given the opportunity to get whatever she wanted out of their home and that they never had a disagreement about their belongings.
Father testified that he had been employed with the Tennessee Department of Corrections since 2013 and made “good money.” He was currently a regional coordinator which involved overseeing clients in West Tennessee, but before that he counseled parolees and inmates. He explained that his job required him to travel occasionally to Memphis, but he was not required to do any overnight travel. He further explained that his job has made him protective of his children because it has made him aware that there are a lot of bad people in the world. As such, he was very cautious with his children and who he allowed them to interact with. He wanted to raise the Child in a healthy environment and hoped that both of his children would be productive, contributing members of society who would be able to maintain a healthy lifestyle. He tried to put nothing but good in his children. He also mentioned that he served as the parent representative for the Head Start program that the Child attended. Therefore, he said that others have trusted his judgment when it came to children.
[*5]Father testified that he loved the Child more than he loved himself. He explained that he “really didn’t know love until [he] had a child.” When it came to his children, he felt that he was selfless and put their interests above his own. He wanted to ensure that the Child had opportunities and wanted to be a supportive parent so the Child could reach whatever potential she chose to have. He explained that he was raised by his grandmother and did not really have his parents around, so he wished to be the parent that he always wanted to have. He had completed a parenting class, had provided health insurance for the Child, and had a whole life insurance policy that would be traded in for the Child’s college education. He also stated that he tried to plan activities for his children and travel with them. He also attended church and took the child with him. Additionally, the Child had a room of her own where he was currently living, and he had bought a new home where the Child would continue to have a room of her own. He believed that his proposed parenting plan was in the child’s best interests, which provided Mother with every other weekend each month, half of the holidays, and time during the summer. However, he was open to possibly providing Mother with extra time. He further testified that he was not opposed to joint decision-making.
During cross examination of Father, counsel for Mother brought up a video from a housewarming party that Father and the Child attended. It appears from the transcript that the video was shown in court via Mother’s iPhone. The video apparently showed individuals from the party making signs or gestures with their fingers. After the video was shown, counsel for Father asked if it had been admitted yet, to which counsel for Mother responded, “I’m going to ask the Judge.” Counsel for Mother then stated, “I want to introduce this as evidence of whatever it shows and for whatever it’s worth.” Counsel for Father stated, “I don’t know how you’re going to introduce it.” Counsel for Mother then stated, “Well, [counsel for Father] is right. I can’t even use it because I’d have to take her phone and do something with it.” After a few more questions, counsel for Mother said, “Okay. The Judge can do whatever he wants to do with [the video].” As such, it appears from the transcript that the video was never offered into evidence. Father was also questioned about his current girlfriend. He explained that they did things together such as visiting the park and attending church and dinner together, but she never spent the night with him when he had his children. He was asked about a photograph of his girlfriend that was posted online in which she exposed her breasts, but he stated that he had not seen the photograph before. It does not appear from the transcript that counsel for Mother ever offered this photograph into evidence.
Several witnesses also testified on Father’s behalf, including his mother, cousin, barber, co-worker, and the mother of his older child. Those witnesses all attested to Father’s good character, positive parenting skills, and close relationship with the Child.
The court entered its order in July 2021. The court gave great weight to the testimony of the various witnesses who testified as to Father’s “emotional fitness” toward his Child. Yet, the court ultimately found that Father was not credible based on treatment of Mother, the confrontation that occurred in April 2021, and the entry and discussion regarding their parenting plan entered in March 2017. The court found a material change of circumstances because the parties were living together at the time of the entry of the parenting plan in 2017 but were now living separately. However, the court did not find that modification was in the Child’s best interests. The court discussed the relevant factors and provided more than ten pages of discussion related to the Child’s best interest. The court dismissed both Mother’s petition for modification and Father’s counter-petition for modification.
[*6]Additionally, the court expressed several concerns about both parties’ behavior, noting that it was clear “neither party cares in any shape or form for another” and that the manner and demeanor in which both parties spoke against one another was “disheartening.” The court continued as follows:
In once again referencing the manner and demeanor of both parties, it is clear there is true, natural and utter disdain for one another, and their conduct towards the other (with [Mother] inquiring about persons to possibly “beat up” or assault [Father], and [Father’s] actions of manipulation and manufacturing conflicts) is shameful in the eyes of this Court. These actions in the course of the five (5) hour long hearing in this cause do not give the Court much hope or faith in either party.
Therefore, the court ordered that both parties were to attend individual counseling and provide updates of their progress to the court. The court concluded, “It is clear to the Court that although their relationship is not fixable when it comes to their love for one another, something must be done to ensure that their parental relationship is repaired and only grows stronger.” Thereafter, Father timely filed an appeal.
II. ISSUES PRESENTED
Father presents the following issues for review on appeal, which we have slightly restated:
1. Whether the court erred in considering a photograph of Father’s girlfriend, which the court found could be “slightly provocative in nature,” when the photograph was not offered into evidence; 2. Whether the court erred in considering a video, from which the court found that there appeared to be drinking and smoking of cigarettes, when the video was not offered into evidence; 3. Whether the court erred in weighing as evidence the circumstances surrounding the entry into the existing parenting plan or considering why the existing parenting plan was needed, where (a) the plan was sworn to and subscribed by both parties under penalty of perjury; (b) both parties appeared in court and submitted the plan to a different judge for approval; and (c) the plan was then approved by that judge and no appeal was taken therefrom; and 4. Whether the court erred in failing to find that the preponderance of the evidence established that a modification of custody to establish Father as the primary residential parent was in the Child’s best interests as the court’s finding that it was not in the Child’s best interests to modify custody to Father was an abuse of discretion because it reached an illogical result, resolved the issue of the Child’s best interests based on a clearly erroneous assessment of the evidence, and/or relied on reasoning that caused an injustice.
[*7]For the following reasons, we affirm the decision of the juvenile court.
III. STANDARD OF REVIEW
The Tennessee Supreme Court has “emphasized the limited scope of review to be employed by an appellate court in reviewing a trial court’s factual determinations in matters involving child custody and parenting plan developments.” C.W.H. v. L.A.S., 538 S.W.3d 488, 495 (Tenn. 2017) (citing Armbrister v. Armbrister, 414 S.W.3d 685, 692-93 (Tenn. 2013) (stating that the appropriate standard of “review of the trial court’s factual findings is de novo upon the record, accompanied by a presumption of correctness of the findings, unless the preponderance of the evidence is otherwise”)). The Tennessee Supreme Court has explained that
[a] trial court’s determinations of whether a material change in circumstances has occurred and whether modification of a parenting plan serves a child’s best interests are factual questions. Thus, appellate courts must presume that a trial court’s factual findings on these matters are correct and not overturn them, unless the evidence preponderates against the trial court’s findings.
Id. (quoting Armbrister, 414 S.W.3d at 692 (citations omitted)). “Similarly, appellate courts will not interfere with a trial court’s custody determination or decision concerning a parenting schedule absent an abuse of discretion.” In re Jonathan S., No. M2021-00370- COA-R3-JV, 2022 WL 3695066, at *5 (Tenn. Ct. App. Aug. 26, 2022); see C.W.H., 538 S.W.3d at 495; Armbrister, 414 S.W.3d at 693; Eldridge v. Eldridge, 42 S.W.3d 82, 88 (Tenn. 2001); Dungey v. Dungey, No. M2020-00277-COA-R3-CV, 2020 WL 5666906, at *2 (Tenn. Ct. App. Sept. 23, 2020). “‘An abuse of discretion occurs when the trial court . . . appl[ies] an incorrect legal standard, reaches an illogical result, resolves the case on a clearly erroneous assessment of the evidence, or relies on reasoning that causes an injustice.’” Id. (quoting C.W.H., 538 S.W.3d at 495). Therefore, we will set aside a trial court’s decision concerning custody or a parenting plan “only when the trial court’s ruling falls outside the spectrum of rulings that might reasonably result from an application of the correct legal standards to the evidence.” Id. (quoting Dungey, 2020 WL 5666906, at *2).
[*8]IV. DISCUSSION
A. Evidentiary Issues i. Consideration of Evidence Outside the Record
We first address the two issues concerning the juvenile court’s consideration of a photograph and a video not offered into evidence as exhibits. Interestingly, the question here is not whether such evidence was admissible or inadmissible; rather, it is whether the court improperly considered the evidence because it was never offered and admitted into evidence in the first place.
At the outset, we feel that it is important to review the procedure for the introduction of exhibits, which is summarized as follows:
An attorney who wants to introduce an exhibit at trial should (a) ask the court reporter or other court officer to mark the exhibit for identification . . . ; (b) show the exhibit to adversary counsel (this should be reflected in the record), thereby giving him the opportunity to raise objections before foundation questions and answers suggest inadmissible matter; (c) either obtain the court’s permission to approach the witness to deliver the exhibit for his inspection or, if required by court rule, ask that a court official present the exhibit to the witness; (d) lay the proper foundation for the admission of the exhibit, including proof of authenticity . . . ; and (e) then request that the exhibit be introduced into evidence.
Edgemon v. Edgemon, No. E2006-00358-COA-R3-CV, 2007 WL 1227467, at *4 (Tenn. Ct. App. Apr. 26, 2007) (quoting Lawrence A. Pivnick, Tennessee Circuit Court Practice § 24:12, at 703-04 (4th ed. 1995)).
The procedure used by the attorneys and the court regarding both the photograph and video is perplexing. From our review of the transcript, neither the photograph of Father’s girlfriend nor the video of the housewarming party was ever offered or admitted into evidence. As previously discussed, counsel for Mother asked Father questions about the photograph of his girlfriend, but it does not appear from the transcript that counsel for Mother ever requested that the photograph be introduced into evidence as an exhibit. The transcript demonstrates that counsel for Mother also showed and asked Father questions about a video of a housewarming party that he and the Child attended. After attempting to offer the video into evidence, counsel for Mother conceded that he could not use it. He said, “I can’t even use it because I’d have to take her phone and do something with it.” After a few more questions, counsel for Mother then stated “[t]he Judge can do whatever he wants to with [the video].” Counsel for Father did not object to the questions about the photograph or the video, but he did ask at one point whether the video had been admitted yet. He explained that he was waiting for counsel for Mother to offer the video in order to make an objection. At oral argument before this Court, counsel for Father stated that he was not given the opportunity to review the photograph or the video, nor did he request to see them. At the very least, counsel for Father should have raised an objection to avoid a potential waiver of this issue. See Tenn. R. Evid. 103(a)(1). Regardless, both the photograph of Father’s girlfriend and the video of the housewarming party were never offered and admitted into evidence as exhibits, and they are therefore absent from the record.
[*9]It is apparent from the transcript, however, that at least the video was presented to and viewed by the judge because he stated, “Well, I would . . . like to see it. I haven’t seen it. . . . [L]et me take a look there.” Additionally, the court referenced both the photograph and the video in the “findings of fact” portion of its order. In regard to the photograph, the court stated that Father’s “girlfriend currently . . . has a social media page on the social network Instagram which was alleged to display photographs of her in a manner that could be slightly provocative in nature[.]” In regard to the video, the court stated as follows:
[Father] . . . on cross examination has . . . admitted to attending a party . . . in Illinois; upon a viewing of a video presented to [Father] and the Court, the Court must note that at this party, there was what appears to be drinking and some type of smoking of certain substances (the Court can only assume they were cigarettes, because the video did not provide audio or visual confirmation if the items were illegal in any form)[.]
We have “explained that a trial court may not rule upon evidence that is not properly introduced and admitted in the record.” State ex rel. Moody v. Roker, No. W2019-01464- COA-R3-JV, 2021 872686, at *7 (Tenn. Ct. App. Mar. [9], 2021). Moreover, “[t]he fair and impartial administration of justice demands that facts be determined only upon evidence properly presented on the record.” Tarpley v. Hornyak, 174 S.W.3d 736, 748 (Tenn. Ct. App. 2004) (quoting Lillie v. United States, 953 F.2d 1188 (10th Cir. 1992) (quoting Price Bros. v. Philadelphia Gear Corp., 649 F.2d 416, 419 (6th Cir. 1981))).
An evidentiary error is “harmful and call[s] for reversal when ‘considering the whole record, error involving a substantial right more probably than not affected the judgment or would result in prejudice to the judicial process.’” In re Estate of Smallman, 398 S.W.3d 134, 152 (Tenn. 2013) (citing State v. Gomez, 367 S.W.3d 237, 249 (Tenn. 2012) (quoting Tenn. R. App. P. 36(b)))4; see also Flax v. DaimlerChrystler Corp., 272