IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
Submitted On Brief May 18, 2005
IN RE: M.L.D.
Direct Appeal from the Chancery Court for Shelby County
No. CH-03-0622-2 Arnold B. Goldin, Chancellor
No. W2004-02695-COA-R3-PT - Filed June 8, 2005
Petitioners, Mother and her husband, brought a petition to terminate Father’s parental rights on the
grounds of abandonment. The trial court found that clear and convincing evidence did not support
a finding a willful abandonment and dismissed the petition. We affirm.
Tenn. R. App. P. Appeal as of Right; Judgment of the Chancery Court Affirmed; and
Remanded
DAVID R. FARMER , J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., W.S.
and HOLLY M. KIRBY , J., joined.
Larry E. Parrish, Memphis, Tennessee, for the appellants, J.M.T. and D.C.T.
William T. Winchester, Memphis, Tennessee, for the appellee, M.A.D.
OPINION
This is a parental rights termination case. In April 2003, J.M.T. (“Mother”), the natural
mother of M.L.D., a minor child born June 1998 in Knoxville, and her husband, D.C.T (“Husband;”
collectively, “Petitioners”) filed a petition in the Chancery Court of Shelby County to terminate the
parental rights of M.A.D. (“Father”), M.L.D.’s natural father, and for Husband to adopt M.L.D. In
their petition, Petitioners alleged that Husband had acquired custody of M.L.D. upon his marriage
to Mother in August 2002 and that M.L.D. had resided continuously in Petioners’ home since that
date. They further alleged that Father was a resident of Florida and that he had willfully abandoned
M.L.D. for more than four consecutive months preceding the petition. They also petitioned the court
to legally change the surname of M.L.D. from Father’s surname to Husband’s.
Father filed a petition for specific visitation on May 5, 2003, and an answer on May 6, 2003.
In his petition for visitation, Father asserted that he was the biological father of M.L.D.; that he and
Mother had entered into a written agreement that he would have custody of M.L.D. one-half the
time; and that he had exercised his right to custody until he moved to Florida and Mother denied
visitation despite Father’s willingness to assume all costs thereof. Father further asserted that
Mother moved abruptly a number of times and willfully refused to allow him to visit or have contact
with M.L.D. He alleged that M.L.D.’s paternal and maternal grandmothers have maintained contact
with each other, and that he has only been able to speak to M.L.D. on the telephone when her
paternal grandmother learns that M.L.D. is visiting her maternal grandmother and Father telephones
at the maternal grandmother’s home. Father asserted that M.L.D.’s maternal grandmother denied
information about Mother’s whereabouts or contact information. Father further asserted he had not
been allowed contact with M.L.D. since February 2001, and that he had not spoken to M.L.D. since
June 2002. In his answer, Father denied that he had willfully abandoned M.L.D. and asserted he had
not known her whereabouts since Mother moved from East Tennessee without his knowledge.
Petitioners responded to Father’s petition on May 16, 2003. In their response, they admitted
Father was the biological father of M.L.D. and that Mother and Father had entered into a written
agreement concerning custody and visitation upon their separation in 1999. They asserted, however,
that Father had visited M.L.D. only sporadically and that he had failed to adhere to the terms of the
agreement. They further asserted that Mother had not secreted the child and denied that M.L.D.’s
grandmothers maintain contact. Mother also asserted that Father resided with his mother in Virginia
before moving to Florida; that Mother brought M.L.D. to Virginia to visit for Christmas shortly after
Mother and Father separated; and that Father did not “show-up”in Virginia but asked Mother to
allow the child to remain in Virginia with his mother for one week so that he could visit there.
Mother further asserted that she agreed to allow M.L.D. to remain in Virginia for one week and that
Father took M.L.D. to Florida and refused to return her to Mother. She asserted that she spent five
weeks attempting to get M.L.D. back until an F.B.I. agent finally convinced Father to return M.L.D.
She submitted Father then returned M.L.D. to Virginia and that Father had not attempted to make
further contact. Mother also asserted she did not move secretly; that her telephone number is
available in the public telephone book; that she did not deny Father access to M.L.D.; and that Father
made no attempt to visit M.L.D.
Following a hearing on August 9 and 10, 2004, and based on the record as a whole, the trial
court determined that Petitioners had failed to prove by clear and convincing evidence that Father
had willfully abandoned M.L.D. It accordingly refused to terminate Father’s parental rights, ordered
Father to pay child support, ordered the guardian ad litem to prepare a parenting plan, and ordered
visitation. The trial court entered a consent order allowing Petitioners to substitute counsel and, on
September 24, 2004, Petitioners filed a petition to alter or amend the judgment pursuant to Rule
59.04 of the Tennessee Rules of Civil Procedure. The trial court denied the petition on November
10, 2004, and Petitioners filed a timely notice of appeal to this Court. We affirm.
Issues Presented
Petitioners have raised eighteen issues for our review. The issue as we perceive it is whether
the trial court erred by refusing to terminate Father’s parental rights based on abandonment where
Father and Mother were not married at the time of M.L.D.’s birth and where Father had not visited
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or supported M.L.D. in over four months preceding the filing of the petition. Additionally, Father
requests attorneys fees on appeal.
Standard of Review
Our standard of review of a trial court sitting without a jury is de novo upon the record.
Wright v. City of Knoxville, 898 S.W.2d 177, 181 (Tenn.1995). There is a presumption of
correctness as to the trial court's findings of fact, unless the preponderance of evidence is otherwise.
Tenn. R. App. P. 13(d). When no transcript or statement of the evidence is included in the record
on appeal, we conclusively presume that the findings of fact made by the trial court are supported
by the evidence and are correct. J.C. Bradford & Co. v. Martin Constr. Co., 576 S.W.2d 586, 587
(Tenn. 1979). However, no presumption of correctness attaches to a trial court’s conclusions on
issues of law. Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn.2000); Tenn. R. App. P. 13(d).
Tennessee Code Annotated § 36-1-113 governs the termination of parental rights. The code
provides, in pertinent part:
(c) Termination of parental or guardianship rights must be based upon:
(1) A finding by the court by clear and convincing evidence that the grounds
for termination or parental or guardianship rights have been established; and
(2) That termination of the parent's or guardian's rights is in the best interests
of the child.
Tenn. Code Ann. § 36-1-113(c)(2001). This section also provides the grounds on which parental
rights may be terminated. The existence of any statutory basis for termination of parental rights will
support the trial court's decision to terminate those rights. In re C.W.W., 37 S.W.3d 467, 473 (Tenn.
Ct. App. 2000).
A finding of grounds to terminate parental rights must be supported by clear and convincing
evidence. Id. at 474. The “clear and convincing evidence” standard is more exacting than the
“preponderance of the evidence” standard, although it does not demand the certainty required by the
“beyond a reasonable doubt” standard. Id. To be clear and convincing, the evidence must eliminate
any substantial doubt and produce in the fact-finder's mind a firm conviction as to the truth. Id.
Insofar as the trial court's determinations are based on its assessment of witness credibility, this Court
will not reevaluate that assessment absent evidence of clear and convincing evidence to the contrary.
See Wells v. Tennessee Bd. of Regents, 9 S.W.3d 779, 783 (Tenn. 1999).
Analysis
We begin our analysis by noting that the appellant has the burden to demonstrate that the
evidence preponderates against the judgment of the trial court. Capital City Bank v. Baker, 442
S.W.2d 259, 266 (Tenn. Ct. App. 1969). Additionally, under Rule 24 of the Tennessee Rules of
Appellate Procedure, the appellant has the duty to prepare the record which conveys a fair, accurate,
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and complete account of what transpired in the trial court regarding the issues which form the basis
of the appeal. The appellant also has the burden to provide this Court with a transcript of the
evidence or a statement of the evidence from which we can determine whether the evidence
preponderates for or against the findings of the trial court. Coakley v. Daniels, 840 S.W.2d 367, 370
(Tenn. Ct. App. 1992). In the absence of a transcript or statement of the evidence, we conclusively
presume that the findings of fact made by the trial court are supported by the evidence and are
correct. J.C. Bradford & Co. v. Martin Constr. Co., 576 S.W.2d 586, 587 (Tenn. 1979). In the
present case, Petitioners have filed no transcript or statement of the evidence in this Court.1
Accordingly, we presume the findings of the trial court to be correct.
Second, we note that Petitioners devote considerable attention in their brief to this Court to
the question of whether Father is, in fact, the legal parent of M.L.D. where Father and Mother were
not married at the time of M.L.D.’s birth or at any time thereafter.2 A party may not raise an issue
for the first time upon appeal. Cantrell v. Walker Die Casting, Inc., 121 S.W.3d 391, 396 (Tenn. Ct.
App. 2003). Upon review of the technical record, we find the issue whether Father is M.L.D.’s legal
parent was not raised during the course of proceedings before the trial court but was raised for the
first time in Petitioners’s Rule 59 motion to alter or amend the judgment. The trial court denied this
motion.
The purpose of a Rule 59.04 motion to alter or amend a judgment is to provide the trial court
with an opportunity to correct errors before the judgment becomes final. Bradley v. McLeod, 984
S.W.2d 929, 933 (Tenn. Ct. App. 1998)(overruled in part on other grounds by Harris v. Chern, 33
S.W.3d 741 (Tenn. 2000)). The motion should be granted when the controlling law changes before
the judgment becomes final; when previously unavailable evidence becomes available; or to correct
a clear error of law or to prevent injustice. Id. A Rule 59 motion should not be used to raise or
present new, previously untried or unasserted theories or legal arguments. Local Union 760 of
Intern. Broth. of Elec. Workers v. City of Harriman, No. E2000-00367-COA-R3CV, 2000 WL
1801856, at *4 (Tenn. Ct. App. Dec. 8, 2000) perm. app. denied (Tenn. May 14, 2001), see Bradley,
984 S.W.2d at 933 (holding: a Rule 59 motion should not be used to raise new legal theories where
motion for summary judgment is pending). We review a trial court’s determination of whether to
grant a Rule 59.04 motion to alter or amend a judgment under an abuse of discretion standard.
Stovall v. Clarke, 113 S.W.3d 715, 721 (Tenn. 2003).
In this case, the parties do not dispute that Father is the biological father of M.L.D. or that
Mother and Father lived together at the time of M.L.D.’s birth and for a period of time thereafter.
Neither Mother nor Father dispute that they entered into an agreement for custody and support of
1
Petitioners have attached a document which they submit is a statement of the evidence to their brief to this
Court. However, a document attached to a brief is not a part of the official record before this Court on appeal. Hunt v.
Shaw, 946 S.W .2d 306, 309 (Tenn. Ct. App. 1996).
2
Nine of the eighteen issues Petitioners enumerate in their brief are predicated on this issue.
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M.L.D. when they separated, and this agreement is in record.3 Further, it is undisputed that Father
exercised some of his parental rights and obligations after the birth of M.L.D., although the parties
dispute the nature and extent of Father’s desire to assume his parental obligations. Moreover, Father
asserts he was prevented from continuing his relationship with M.L.D. by Mother’s refusal to allow
him access to the child.
Under these circumstances, we cannot say any injustice results from the trial court’s refusal
to grant Petitioners’ Rule 59 motion to allow consideration of the question of whether Father is
M.L.D.’s legal parent. Petitioners waived this issue by failing to raise it during the trial proceedings.
Likewise Petitioners waived the issue, raised for the first time on appeal, of whether Evan Nahmias
was properly named the guardian ad litem in this case by order of the court.4 Accordingly, we will
not consider these issues here.
We next turn to whether the trial court erred in determining that the proof did not support a
finding by clear and convincing evidence that Father willfully abandoned M.L.D. The Tennessee
Code provides, in pertinent part:
“Abandonment” means, for purposes of terminating the parental or guardian rights
of parent(s) or guardian(s) of a child to that child in order to make that child available
for adoption, that:
(i) For a period of four (4) consecutive months immediately preceding the
filing of a proceeding or pleading to terminate the parental rights of the parent(s) or
guardian(s) of the child who is the subject of the petition for termination of parental
rights or adoption, that the parent(s) or guardian(s) either have willfully failed to visit
or have willfully failed to support or have willfully failed to make reasonable
payments toward the support of the child[.]
Tenn. Code Ann. § 36-1-102(1)(A)(I)(2001 & Supp. 2004).
The element of willfulness is central to the determination of abandonment. See In re
Swanson, 2 S.W.3d 180, 188 (Tenn. 1999). This Court recently has noted that, “[f]ailure to support
a child is ‘willful’ when a person is aware of his or her duty to support, has the capacity to provide
the support, makes no attempt to provide support, and has no justifiable excuse for not providing the
support.” In re Adoption of T.A.M., No. M2003-02247-COA-R3-PT, 2004 WL 1085228, at *4
(Tenn. Ct. App. May 12, 2004) (no perm. app. filed). A custodial parent’s or third party’s conduct
does not excuse a biological parent’s willful failure to support or visit unless that conduct actually
prevents or significantly hinders the parent from doing so. In re D.M.D., No.
W2003-00987-COA-R3-PT, 2004 WL 1359046, at *3 (Tenn. Ct. App. June 17, 2004). Further,
3
This agreement was never entered as an order of any court.
4
W e note that Petitioners did not raise this issue in either their motion to alter or amend the judgment or in their
motion to strike the report of the guardian ad litem. Additionally, in their motion for rehearing on temporary visitation,
Petitioners stated, “Evan Nahmias has been appointed as Guardian Ad Litem in this matter and has filed a report.”
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interference with a parent’s attempts at visitation does not excuse the parent from his obligation to
support the child financially. Id.
The Tennessee Supreme Court examined the element of willfulness in In Re Swanson, 2
S.W.3d 180. In that case, Brittany Swanson (Brittany) was born to Harry and Brigitte Swanson (Mr.
Swanson and Ms. Swanson, respectively) in 1990. Mr. and Ms. Swanson separated in 1991, and Mr.
Swanson relocated first to Mississippi and then, in 1991, to Missouri. He remained in Missouri at
all times relevant to the lawsuit. Brittany remained with Ms. Swanson, with whom she moved from
Tipton County to various places in Shelby County and Mississippi. In Re Swanson, 2 S.W.3d at
182.
In 1993, Brittany was placed in the legal care and custody of the Department of Human
Services (“DHS”) following a determination of dependency and neglect. She was placed in foster
care through the Baptist Children’s Home and, in 1994, the goal of foster care and reunification with
her parents was changed to adoption. Id. In 1995, the Baptist Children’s Home obtained custody
of Brittany and, in January 1996, filed a petition to terminate the parental rights of Ms. Swanson and
Mr. Swanson. Id. at 183. Ms. Swanson died in October 1996. Id. at 182 n.1. DHS made no attempt
to contact Mr. Swanson, and Mr. Swanson learned of the termination proceedings from friends who
had seen published notice in the newspaper. Id. at 183.
Mr. Swanson testified that he had attempted to maintain contact with Brittany, but that Ms.
Swanson refused to allow visitation. Id. at 182. He further testified that he did not know the
whereabouts of Brittany or Ms. Swanson following their several moves, and that he had attempted
to learn of their whereabouts through Ms. Swanson’s father, who refused to provide any information.
The In re Swanson Court held that the Tennessee Code provision as it then existed was
unconstitutional insofar as it did not require a finding of willfulness to support termination based on
abandonment and that the proof did not support a finding of willful abandonment by clear and
convincing evidence. It accordingly ordered custody of Brittany to be returned to Mr. Swanson.
Id. at 181.
In the present case, the trial court considered affidavits and, we assume, testimony regarding
whether Mother had refused to allow Father access to M.L.D. and whether she had refused to allow
Father to know M.L.D.’s whereabouts. The trial court determined the proof did not support a finding
of willful abandonment. Insofar as the trial court’s findings are based on witness credibility, we give
great deference to the trial court’s findings and will not disturb those findings absent clear and
convincing evidence to the contrary. Sullivan v. Sullivan, 107 S.W.3d 507, 510 (Tenn. Ct. App.
2002). Moreover, as noted above, in the absence of a trial transcript or statement of the evidence,
we conclusively presume the findings of the trial court to be correct. Accordingly, we affirm the trial
court’s determination that clear and convincing evidence did not support a finding of abandonment
in this case.
We next address Petitioners’ assertion that, after the trial court dismissed their petition for
adoption on August 17, 2004, it lost subject matter jurisdiction to enter a parenting plan on
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November 2, 2004. Petitioners rely on In re D.M.D., No. W2003-00987-COA-R3-PT, 2004 WL
1359046 (Tenn. Ct. App. June 17, 2004), for the proposition that once the trial court dismissed their
petition for adoption, it lost subject matter jurisdiction to entertain further questions of custody or
to enter a parenting plan. We disagree with Petitioners’ reading of In re D.M.D.
In In re D.M.D., we held that, upon dismissal of the petition to terminate parental rights and
for adoption, the chancery court did not have subject matter jurisdiction to adjudicate matters of
custody because subject matter jurisdiction over issues of custody reverted to the juvenile court,
which retained continuing exclusive subject matter jurisdiction over its prior custody order. In re
D.M.D., 2004 WL 1359046, at *5. In that case, the chancery court had no subject matter jurisdiction
to alter a custody order previously entered in the juvenile court. In the case now before us, however,
the parties agree that no court has adjudicated the matter of custody or entered an order pertaining
to custody, visitation, or support. Thus, In re D.M.D. is inapplicable to this case.
We turn finally to Father’s contention that this is a frivolous appeal and to his request for
attorney’s fees. Father asserts he is entitled to attorneys fees under Tennessee Code Annotated § 36-
5-103(c). We disagree. Under § 36-5-103(c), the prevailing party may recover attorney fees incurred
in enforcing a child support or custody decree. This is not such a case. However, when it appears
to the reviewing court that an appeal from a court of record was frivolous or taken solely for delay,
the court may, either upon motion of a party or on its own motion, award just damages against the
appellant, which may include, but need not be limited to, costs, interest on the judgment, and
expenses incurred by the appellee as a result of the appeal. Tenn. Code Ann. § 27-1-122 (2000).
Courts construe this section of the Code strictly in an effort not to discourage legitimate appeals.
Davis v. Gulf Ins. Group, 546 S.W.2d 583, 586 (Tenn. 1977). A frivolous appeal is one that is
“devoid of merit” and which cannot reasonably succeed. Id. It is one completely “lacking in
justiciable issues.” Id.
The determination of whether a parent’s rights to his/her child should be terminated is the
most serious and grave issue to be addressed by this Court. Accordingly, we are loathe to consider
an appeal of a trial court’s judgment terminating a parent’s rights to be frivolous. In this case,
however, Petitioners appeal from the trial court’s determination not to terminate Father’s parental
rights and do so without benefit of an adequate record for our review. As stated by this Court in
Young v. Barrow, 130 S.W.3d 59, 67 (Tenn. Ct. App. 2003):
Thus, an appeal in which the reviewing court’s ability to address the issues raised is
undermined by the appellant’s failure to provide an adequate record is deemed
frivolous because it has no reasonable chance of succeeding.
Additionally, Petitioners have attempted to insert new, previously untried issues into this matter at
every post-judgement stage of litigation. Petitioners are not acting pro se, moreover, but have the
benefit of legal counsel who is presumed versed in the rules of civil and appellate procedure. They
have raised eighteen issues in their brief for review by this Court, all of which are without merit.
Under these circumstances, we find this appeal to be frivolous. This cause is remanded to the trial
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court for the assessment of damages in accordance with Tennessee Code Annotated § 27-1-122 and
for any further proceedings which may be required.
Holding
In light of the foregoing, the judgment of the trial court is affirmed. Costs of this appeal are
taxed to the Appellants, J.M.T. and D.C.T., and to their surety, for which execution may issue if
necessary.
___________________________________
DAVID R. FARMER, JUDGE
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