Kesterson v. Varner

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
May 6, 2004 Session

JUDY KESTERSON v. BRUCE VARNER
Appeal from the Chancery Court for Williamson County
No. II-26072 Russ Heldman, Chancellor

No. M2003-00743-COA-R3-CV - Filed January 27, 2005

Bruce Varner seeks review of the trial court’s dismissal of his Petition to Modify Custody. The trial
court dismissed the petition at the close of the petitioner’s proof, holding that petitioner had failed
to carry his burden of proof that a change of custody was in the best interest of the child. The trial
court assessed attorney’s fees and costs to the petitioner. We affirm the decision of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
Affirmed and Remanded

WILLIAM B. CAIN , J., delivered the opinion of the court, in which PATRICIA J. COTTRELL, and FRANK
G. CLEMENT , JR., JJ., joined.

Penny Harrington, Nashville, Tennessee, for the appellant, Bruce Varner.

P. Edward Schell, Franklin, Tennessee, for the appellee, Judy Kesterson.

OPINION

Father, Bruce Varner, and Mother, Judy Varner (now Kesterson), were divorced in Pulaski
County, Arkansas in September of 1990. The divorce decree awarded Mother custody of the only
child born to the marriage, J.V., a male child born on April 5, 1988. The Arkansas divorce decree
was domesticated in Williamson County, Tennessee by consent order of September 16, 1999. The
order provided for a modification of custody, but the modification of custody did not affect Mother’s
status as primary custodian.

On January 11, 2002, Father filed his “Petition for Change of Custody” in the Chancery Court
for Williamson County asserting that a change of circumstances had occurred since the entry of the
divorce decree and that a change of custody was in the child’s best interest. The petition alleged that
since the divorce decree J.V. had exhibited serious mental and emotional problems evidenced by his
diagnosis in 1993, when he was five years old, of Attention Deficit Hyperactivity Disorder; that at
the time of the filing of the petition J.V. was suffering from Bipolar Disorder and Oppositional
Defiant Disorder; and that J.V. had been hospitalized several times for treatment of mental problems,
had been unable to adjust to school discipline, and had severe human relations problems both with
his peers and with authority figures.
 On February 15, 2002, Mother answered the Petition for Change of Custody admitting the
serious mental problems afflicting J.V., but denying that any change of circumstances had occurred
and further denying that a change of custody would be in the best interest of J.V.

On June 11, 2002, Father filed a motion for appointment of guardian ad litem asserting in
part:

13. A Guardian ad litem would be able to review records,
talk to psychiatrists and psychologists and school personnel for the
sole purpose of discovering what is the best interest of the subject
child and without any concern on the part of medical or educational
personnel that their remarks or recommendations might be used to
advance the interests of a parent rather than the child and, thus, would
be able to make a report to the Court that was based upon full
disclosure of the records, diagnosis, treatments, and recommendations
of professionals.
14. Statements in Mother’s deposition reveal that she has
continuing bitterness toward Father about matters relating to the
divorce and that she and step-father may have a lifestyle predicated
in part on the $1,300 per month child support paid by Father.
15. For the aforementioned reasons, Petitioner/Father
prays that this Honorable Court will grant his Motion for the
appointment of a Guardian ad litem for [J.V.] in this cause, and that
the Guardian ad litem be instructed to obtain information concerning
[J.V.]’s plan of treatment and the appropriate facilities available in
Mother’s community and in Father’s community including the
educational opportunities provided by the local school boards for a
child with [J.V.]’s situation.
16. Petitioner/Father further prays that all costs in
connection with this cause, including attorney fees and Guardian ad
litem fees, be taxed to Mother for the necessity of having to file this
pleading to protect the interest of his minor son, [J.V.].

Responding to this petition the court entered an order on June 20, 2002 temporarily
postponing the appointment of a Guardian ad litem but stating:

The Court is inclined to grant the Motion for the appointment
of a guardian ad litem based in part upon the assurances of the
Petitioner’s counsel that the Petitioner will bear responsibility for the
payment of a guardian ad litem’s fee. Specifically, counsel for Mr.
Varner indicated that her client would be willing to pay a guardian ad
litem’s fee as long as the fee did not exceed $2,500. In the event the
Court appoints a guardian ad litem, Mr. Varner will be required to
pay the guardian ad litem up to $2,500, and, at the appropriate time,

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 the Court will consider whether payment of the guardian ad litem’s
fee should be apportioned between the parties.

By order of July 26, 2002, R. Reid Street was appointed with instructions from the court to
“obtain information concerning the plan of treatment for [J.V.]’s psychiatric condition. Such
information shall include the appropriate facilities available in the petitioner’s community and in the
respondent’s community, particularly the educational opportunities provided by the local school
boards for a child with [J.V.]’s situation.”

Non-jury trial was held February 10 and February 13, 2003 on the issues drawn by the
pleadings, “upon the testimony of witnesses, the report of the guardian ad litem, Roger Reid Street,
Jr., the evidentiary depositions filed by the parties, the arguments of counsel and the record as a
whole.” The court held in pertinent part:

2. The Petitioner, Bruce Varner, failed to prove that a
substantial and material change in circumstances has occurred which
is sufficient to warrant a change of custody in this case.
3. The Petitioner, Bruce Varner, failed to prove that the
best interests of the child require a change of custody.
4. The Court finds that the best interest of the child
require that he continue to be under the absolute care, custody and
control of the Respondent, Judy Kesterson, and that there is no
credible evidence in the record to support a finding that Ms.
Kesterson’s parenting skills have contributed to the problems
experienced by the minor child, Jason Varner.
5. The Petition to change custody is dismissed.
6. The Respondent, Judy Kesterson, is granted a
judgment against the Petitioner, Bruce Varner, for reasonable
attorney’s fees she incurred in this matter in the amount of $25,160.
The Court approves and adopts the Affidavit for Attorney’s Fees filed
by Respondent’s counsel.
7. The Petitioner, Bruce Varner, is ordered to pay all of
the Guardian ad litem’s fee in the amount of $7,975.50. The court
approves and adopts the Affidavit filed by Mr. Street.

This order was entered on February 19, 2003 and Father filed a timely appeal.

The issues stated on appeal by Father are:

Whether the Trial Court erred in granting Appellee’s Motion to
Dismiss at the conclusion of the Appellant’s case when the stated
basis for the dismissal was a “best interests of the child” analysis
although the Court had not made findings of fact as to the existence
of a material change in circumstance.

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 Whether the Trial Court erred by failing to make findings of fact
underlying the custody determination as required by Tennessee Code
Annotated § 36-6-101.

Whether the Trial Court erred by failing to order the implementation
of a Parenting Plan pursuant to § 36-6-[401] and by failing to
consider the requirements of a Parenting Plan pursuant to § 36-6-404.

Whether the Trial Court erred by failing to find a material change in
circumstance has occurred when a child is diagnosed by multiple
psychiatrists and psychologists as suffering from a major mental
illness and requires long term hospitalization and treatment and
treating psychologist testifies that child could improve with
Appellant.

Whether a Trial Court may order a party to litigation to pay the
attorney fees and costs of the opposing litigant without specific
statutory authorization for the order.

Whether a Trial Court may order a party to litigation to pay the entire
fees and costs of a Guardian ad litem appointed by agreement of the
parties and without the opportunity for a hearing on the submitted
affidavit or on the relative ability of the parties to pay.

Whether the language of Tennessee Code Annotated § 36-6-101 as it
existed at the time of filing of the Petition is controlling or whether
the language of the amended statute in effect at the time of the
hearing is controlling.

A. Change of Circumstances

At trial, Mother asserted the applicability of the rule in Musselman v. Acuff, 826 S.W.2d 920
(Tenn.Ct.App. 1991) and Wall v. Wall, 907 S.W.2d 829 (Tenn.Ct.App. 1995) that in order to effect
a change of circumstances the non-custodial parent must show that “continuation of the adjudicated
custody will substantially harm the child.” Wall, 907 S.W.2d at 834. Father asserted that Chapter
859 of the Public Acts of 2002, effective July 15, 2002, and codified as Tenn. Code Ann. § 36-6-
101(a)(2)(B) alters the Musselman/Wall rule in that by the terms of the statute “a material change
of circumstance does not require a showing of a substantial risk of harm to the child.”

As we addressed these issues in detail quite recently in Laurie Ann Searcy v. Sandy Lee
Searcy, No. M2003-00036-COA-R3-CV, 2004 WL 2866973 (Tenn. Ct. App. Dec. 13, 2004), we
reiterate the analysis:

While this modification of custody and visitation Petition was
making its way through the trial court, the standard to be applied in

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determining whether or not a change of circumstances had occurred
was undergoing both a common law and a statutory metamorphosis,
as Kendrick v. Shoemake, 90 S.W.3d 566 (Tenn. 2002), Cranston v.
Combs, 106 S.W.3d 641 (Tenn. 2003), and the legislative enactment
of Chapter 859 of the Public Acts of 2002 were running essentially
simultaneous and parallel courses with the trial court proceedings in
this case. The trial court applied a variation of the “substantial risk
of harm” standard in its November 20, 2002 dismissal of this Petition
for modification. We will discuss the metamorphosis of the rule at
the outset.

Appellate decisions in recent years reflect much controversy
as to what “change of circumstances” means in the context of a
petition to modify an existing custody order. While there has never
been any question but that the burden of proof in such a proceeding
rests upon the non-custodial parent to prove that a change in
circumstances has occurred, the controversy centers around what one
must prove in order to establish a change of circumstances. In Dailey
v. Dailey, 635 S.W.2d 391, 393 (Tenn.Ct.App. 1981) this Court
observed:

We agree that it is a well-settled principle in
this jurisdiction that where an award of custody of a
minor is made which has no restrictions or limitations
it will support a plea of res judicata and to justify a
petition for a change in custody there must have been
such a change in circumstances as will directly affect
the welfare of the minor.

In 1991, however, this Court held:

The paramount consideration in a custody proceeding
is the best interest of the child. When the issue before
the Court is whether to modify a prior custody order,
it need not repeat the comparative fitness analysis that
is appropriate at the time of the original custody
degree. See e.g., Bah v. Bah, 668 S.W.2d 663
(Tenn.App. 1983). Instead, in a modification
proceeding, the trial judge must find a material change
in circumstances that is compelling enough to warrant
the dramatic remedy of changed custody. See, Tenn.
Code Ann. § 36-6-101(a); Woodard v. Woodard, 783
S.W.2d 188 (Tenn.App. 1989); Dailey v. Dailey, 635
S.W.2d 391 (Tenn.App. 1981). Moreover, the burden

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 is on the non-custodial parent to prove changed
circumstances.

Musselman v. Acuff, 826 S.W.2d 920, 922 (Tenn.Ct.App. 1991).

Thereafter, in a number of cases, this Court has followed the
lead of Musselman v. Acuff in establishing that change of
circumstances requires proof that such a change is necessary to
prevent substantial harm to the child.

In order to be compelling enough to warrant the dramatic
remedy of changed custody, the change of circumstances must be
such that “continuation of the adjudicated custody will substantially
harm the child.” Wall v. Wall, 907 S.W.2d 829, 834 (Tenn.App.
1995). When the requested modification is based on the behavior of
the custodial parent, such behavior must clearly posit or cause danger
to the mental or emotional well-being of the child. Musselman v.
Acuff, at 924. We also are mindful that custody decisions should not
be designed to punish one parent or to reward the other. Wall v. Wall,
907 S.W.2d 829, 834 (Tenn.App. 1995). Instead, our paramount
concern remains the welfare and best interest of the minor child. In
re Parsons, 914 S.W.2d 889, 893 (Tenn.App. 1995).

This court has discussed “changed circumstances” as follows:
This decision [regarding custody] is not
changeable except for “change of circumstances”
which is defined as that which requires a change to
prevent substantial harm to the child. Custody is not
changed for the welfare or pleasure of either parent or
to punish either parent, but to preserve the welfare of
the child. Custody is not changed because one parent
is able to furnish a more commodious or pleasant
environment than the other, but where continuation of
the adjudicated custody will substantially harm the
child.

Wall v. Wall, 907 S.W.2d 829, 834 (Tenn.App. 1995).

Thomson v. Thomson, No. 03A01-9809-CH-00308, 1999 WL
894446, at *8 (Tenn.Ct.App. Oct. 18, 1999).

This same analysis was applied by this Court in Brown v.
Brown, No. 02A01-9709-CV-00228, 1998 WL 760935, at *8
(Tenn.Ct.App. Nov. 2, 1998). This court said: “In the absence of any
competent testimony that a continuation of the current custody

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arrangement presents a danger of substantial harm to Chandler, we
decline to disturb the trial court’s decision to deny a change of
custody.” Thereafter, the Court said in footnote:

The principle enunciated in Wall v. Wall, supra, is not at odds
with the traditional “best interests” test. Ping-pong custody
adjudications are not in a child’s best interests. This problem has
been addressed with unanimity by Aaby, Musselman, and Contreras,
as well as by Wall. Aaby, a parental relocation case, specifically held
that “Tennessee allows custody to be changed if the behavior of the
custodial parent clearly posits a danger to the physical, mental or
emotional well-being of the child [citation omitted].” [Emphasis
supplied]. Aaby v. Strange, 924 S.W.2d 623, 629 (Tenn. 1966).
Musselman, citing Ballard v. Ballard, 434 So.2d 1357, 1360 (Miss.
1983), held: “It is only that behavior of a parent which clearly posits
or causes danger to the mental or emotional well-being of a child . .
. which is sufficient basis to seriously consider the drastic legal action
of changing custody.” [Emphasis supplied]. Musselman v. Acuff, 826
S.W.2d 920, 924 (Tenn.App. 1991). Contreras, quoting Sartoph v.
Sartoph, 31 Md.App. 58, 354 A.2d 467, 473 (Md.App. 1976), stated:
“The custody of children should not be disturbed unless there is some
strong reason affecting the welfare of the child. To justify a change
in custody, the change in conditions must have occurred which affects
the welfare of the child and not that of the parents.” [Emphasis
supplied]. Contreras v. Ward, 831 S.W.2d 288, 290 (Tenn.App.
1991). These cases are all in accord with the language of Wall v.
Wall, supra, that, once a valid custody determination is made, such
custody is not subject to change unless there is a “change of
circumstances . . . which requires a change to prevent substantial
harm to the child.” Wall v. Wall, 907 S.W.2d 829, 834 (Tenn.App.
1995). “In short, when all goes well with children, stability, not
change, is in their best interests.” Contreras v. Ward, supra, citing
Sartoph v. Sartoph.

Brown, 1998 WL 760935, at *8 n.3.

In Richardson v. Richardson, No. W2000-02374-COA-R3-
CV, 2001 WL 687074, (Tenn.Ct.App. June 14, 2001), the Western
Section of this Court again followed the Musselman and Wall rule
relative to substantial harm to the child. In a prophetic concurring
opinion, Judge Farmer questioned the continued viability of the
Musselman-Wall standard asserting that: “I am concerned that we
have created too harsh a standard by holding that a change of custody
will be granted only upon a showing that a continuation of the

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adjudicated custody will substantially harm the child.” Richardson,
2001 WL 687074, at *7 (Farmer, J., concurring).

In 2002, the supreme court, in Blair v. Badenhope, 77 S.W.3d
137 (Tenn. 2002), in the context of a custody case between a parent
and a non-parent, observed: “[A] trial court should apply the standard
typically applied in parent-vs-parent modification cases: that a
material change in circumstances has occurred, which makes a
change in custody in the child’s best interests.” Blair, 77 S.W.3d at
148.

Later in 2002, the supreme court expanded upon its Blair
observation in Kendrick v. Shoemake, 90 S.W.3d 566 (Tenn. 2002),
holding:

The principal issue in this case concerns the
proper standard to be applied to a petition to modify
custody from one parent to the other parent. This
issue is largely resolved by our recent decision in
Blair v. Badenhope, 77 S.W.3d 137 (Tenn. 2002).
Blair involved a custody dispute between a parent and
a non-parent. We concluded that once a valid order of
custody has been issued, subsequent custody
modification proceedings should apply the “standard
typically applied in parent-vs-parent modification
cases: that a material change in circumstances has
occurred, which makes a change in custody in the
child’s best interests.” Id. at 148. As explained in
Blair, the “threshold issue” is whether a material
change in circumstances has occurred after the initial
custody determination. Id. at 150. While “[t]here are
no hard and fast rules for determining when a child’s
circumstances have changed sufficiently to warrant a
change of his or her custody,” the following factors
have formed a sound basis for determining whether a
material change in circumstances has occurred: the
change “has occurred after the entry of the order
sought to be modified,” the change “is not one that
was known or reasonably anticipated when the order
was entered,” and the change “is one that affects the
child’s well-being in a meaningful way.” Id.
(citations omitted). We note that a parent’s change in
circumstances may be a material change in
circumstances for the purposes of modifying custody
if such a change affects the child’s well-being.

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Kendrick, 90 S.W.3d at 570.

Finally, in 2003, the supreme court laid to rest any lingering
doubt about the demise of the Musselman-Wall rule. In Cranston v.
Combs, 106 S.W.3d 641 (Tenn 2003) that court held:

We granted review to determine whether the Court of Appeals
erred in determining that the appellant (father) in this post-divorce
case failed to present evidence of a material change of circumstances
justifying a change of custody of the parties’ two minor children. The
Chancellor granted a change in custody from the appellee (mother)
after finding that there was a material change in circumstances that
presented a substantial risk of harm to the children. A majority of the
Court of Appeals reversed, holding that there was no material change
of circumstances that presented a threat of substantial harm to the
children. After reviewing the record and applying our recent decision
in Kendrick v. Shoemake, 90 S.W.3d 566 (Tenn. 2002), we conclude
that a material change of circumstances occurred after the initial
custody determination and that the modification of custody was in the
best interest of the children. Although the Chancellor and the Court
of Appeals did not have the benefit of Kendrick in this case, and
therefore applied an incorrect legal standard, we affirm the result
reached by the Chancery Court. Accordingly, the judgment of the
Court of Appeals is reversed, and the judgment of the Chancery Court
is reinstated.

....

A majority of the Court of Appeals reversed the Chancery
Court’s change of custody ruling, concluding that Cranston and
Combs “bickering” over visitation did not constitute a material
change of circumstances that presented a threat of substantial harm to
the children. Indeed, the majority determined that Combs failed to
present evidence “rising to the level of substantial harm” to his son
and “no actual evidence of any harm at all” to his daughter. The
majority therefore concluded that it was unnecessary to apply a
comparative fitness analysis. Special Judge Ash dissented,
concluding that the Chancery Court properly found that a material
change in circumstances existed and properly applied the comparative
fitness analysis.

Cranston, 106 S.W.3d at 642, 643.

So it was that, in Cranston v. Combs, the controlling issue was
placed directly before the supreme court contrasting the Musselman-

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Wall rule, as relied on by the majority of this Court, with the less
stringent rule asserted in dissent by Special Judge Don Ash.

The supreme court left little doubt as to the controlling rule
relative to “change of circumstances.”

The appellant, Combs, argues that a finding of “harm” is not
a prerequisite to changing an initial custody determination under
Tennessee law. The appellant also argues that even if a finding of
“harm” is required, the Chancery Court’s custody determination
should be reinstated because it found a “substantial risk of harm” and
concluded that a change of custody was in the best interests of the
children.

The appellee, Cranston, argues that the trial court must find
“harm” before engaging in a comparative fitness analysis for the
purpose of a change in custody determination. The appellee asserts
that the Court of Appeals’ majority correctly determined that there
had been no evidence of a material change in circumstances creating
a risk of harm to the children and reversed the Chancery Court’s
ruling.

Our recent decision in Kendrick v. Shoemake, 90 S.W.3d 566
(Tenn. 2002), resolves the issues before this Court. We held in
Kendrick that the modification of a valid order of custody must be
based on the “ ‘standard typically applied in parent-vs-parent
modification cases: that a material change in circumstances has
occurred, which makes a change in custody in the child’s best
interests.’ ” Id. at 570 (quoting Blair v. Badenhope, 77 S.W.3d 137,
148 (Tenn. 2002)).

We clarified that this standard requires the trial court to
engage in a two-step process to make its final custody determination.
First, the court must determine whether a material change in
circumstances has occurred after the initial custody determination.
Although there are no bright-line rules for determining when such a
change has occurred, there are several relevant considerations: (1)
whether a change has occurred after the entry of the order sought to
be modified; (2) whether a change was not known or reasonably
anticipated when the order was entered; and (3) whether a change is
one that affects the child’s well-being in a meaningful way.
Kendrick, 90 S.W.3d at 570; see also Blair, 77 S.W.3d at 150.

Second, after finding that a material change in circumstances
has occurred, the trial court must determine whether modification of

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custody is in the child’s best interests using the factors enumerated in
Tennessee Code Annotated section 36-6-106 (2001).

Cranston, 106 S.W.3d at 643-44.

Running a parallel course to the events in Kendrick, Cranston,
and the case at bar was a legislative initiative that culminated in the
enactment of Chapter 859 of the Public Acts of 2002 effective as of
July 15, 2002. This Act was not effective as of the June 26, 2002
hearing in the case at bar. It was, however, effective prior to the
dispositive Order of the trial court of November 20, 2002.

Kendrick and Cranston both acknowledged this legislative
act, which was codified as Tennessee Code Annotated section 36-6-
101(a)(2)(B). In footnote, it is observed in Cranston:

As the parties have noted, the legislature has
enacted Tennessee Code Annotated section 36-6-
101(a)(2)(B) (2001 & Supp. 2002), which provides:

If the issue before the court is a modification of the
court’s prior decree pertaining to custody or a
residential parenting arrangement, the petitioner must
prove by a preponderance of the evidence a material
change in circumstance. A material change of
circumstance does not require a showing of a
substantial risk of harm to the child. A material
change of circumstance may include, but is not
limited to, failures to adhere to the parenting plan or
circumstances which make the parenting plan no
longer in the best interest of the child. (Emphasis
added).

Although the statute did not become effective until July 15, 2002,
i.e., after the proceedings in this case, it reflects that the legislature
has likewise clarified that a substantial risk of harm to a child is not
required to find a material change in circumstances for the purpose of
modifying a custody decree. See Kendrick, 90 S.W.3d at 570 n. 5
(discussing the enactment of Tenn. Code Ann. § 36-6-101(a)(2)(B)).

Cranston, 106 S.W.3d at 644 n.1.

Thus, both by common law development and by legislative
enactment, Musselman v. Acuff, Wall v. Wall, and all of their
respective progeny as to this issue have been overruled.

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Laurie Ann Searcy v. Sandy Lee Searcy, No. M2003-00036-COA-R3-CV, 2004 WL 2866973, **1-6
(Tenn. Ct. App. Dec. 13, 2004).

B. Standard of Review of Involuntary Dismissal Under Tenn. R. Civ. P. 41.02.

The trial court dismissed this petition at the close of petitioner’s proof on the grounds that
Father had shown no right to relief. In argument before that court Father asserted, “you must take
[the testimony before the court] in the light most favorable to the petitioner on the motion to dismiss
at the conclusion of the plaintiff’s proof.”

The rule provides:

After the plaintiff, in an action tried by the court without a
jury, has completed the presentation of plaintiff’s evidence, the
defendant, without waiving the right to offer evidence in the event the
motion is not granted, may move for dismissal on the ground that
upon the facts and the law the plaintiff has shown no right to relief.
The court shall reserve ruling until all parties alleging fault against
any other party have presented their respective proof-in-chief. The
court as trier of the facts may then determine them and render
judgment against the plaintiff or may decline to render any judgment
until the close of all evidence; in the event judgment is rendered at the
close of plaintiff’s evidence, the court shall make findings of fact if
requested in writing within three (3) days after the announcement of
the court’s decision.

Tenn. R. Civ. P. 41.02(2).

Shortly after adoption of the Tennessee Rules of Civil Procedure, this Court assessed the
standard applicable to a ruling on a motion to dismiss at the conclusion of the plaintiff’s proof:

We are of the opinion, however, that in passing upon the
motion of defendant to dismiss at the conclusion of complainant’s
proof, the chancellor is not relieved of the duty of looking to all of the
evidence and of taking the strongest legitimate view of it in favor of
the opponent of the motion, allowing all reasonable inferences from
it in his favor.

Butts v. Birdwell, 503 S.W.2d 930, 937 (Tenn.Ct.App. 1973).

This interpretation of Tenn. R. Civ. P. 41.02(2) in Butts v. Birdwell was repudiated by the
Tennessee Supreme Court in City of Columbia v. C.F.W. Const. Co., 557 S.W.2d 734 (Tenn. 1977).

The motion authorized by this rule is not to be confused with
a motion for directed verdict which is authorized by Rule 50,

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 Tennessee Rules of Civil Procedure. Motions for a directed verdict
are neither necessary nor proper in a case which is being tried without
a jury. Motions for dismissal in non-jury cases under Rule 41.-02(2),
Tennessee Rules of Civil Procedure, and motions for directed verdicts
in jury cases under Rule 50, Tennessee Rules of Civil Procedure, are
somewhat similar, but, there is a fundamental difference between the
two motions, in that, in the jury case, the judge is not the trier of facts
while in the non-jury case he is the trier of the facts. In the jury case
he must consider the evidence most favorably for the plaintiff, allow
all reasonable inferences in plaintiff’s favor and disregard all
counteracting evidence, and, so considered, if there is any material
evidence to support a verdict for plaintiff, he must deny the motion.
But in the non-jury case, when a motion to dismiss is made at the
close of plaintiff’s case under Rule 41.02(2), the trial judge must
impartially weigh and evaluate the evidence in the same manner as
though he were making findings of fact at the conclusion of all of the
evidence for both parties, determine the facts of the case, apply the
law to those facts, and if the plaintiff’s case has not been made out by
a preponderance of the evidence, a judgment may be rendered against
the plaintiff on the merits, or, the trial judge, in his discretion, may
decline to render judgment until the close of all the evidence. The
action should be dismissed if on the facts found and the applicable
law the plaintiff has shown no right to relief.

City of Columbia v. C.F.W. Const. Co., 557 S.W.2d at 740.

C. Standard of Review as to the Facts

Normally, review of the facts on appeal of a non-jury case is governed by Tenn. R. App. P.
13(d). The findings of fact of the trial court are presumed to be correct unless the evidence
preponderates otherwise. See Berry Hill v. Rhodes, 21 S.W.3d 188, 190 (Tenn. 2000); see also
Farrar v. Farrar, 553 S.W.2d 741, 743 (Tenn. 1977). In cases such as the case at bar where the trial
court has made no findings of fact, review of the facts is de novo on the record before the court
without any presumption of correctness. Brooks v. Brooks, 982 S.W.2d 403, 404 (Tenn. 1999). The
reason for such rule is “since the trial court made no findings of fact, there is nothing in this record
upon which the presumption of correctness contained in Tenn. R. App. P. 13(d) can attach.” Kelly
v. Kelly, 679 S.W.2d 458, 460 (Tenn.Ct.App. 1984).

D. The Petitioner’s Burden

The burden of proof is on the petitioner to establish that a material change of circumstances
has occurred; that he or she is comparatively more fit than the party with custody under the
challenged custody decree; and that it would be in the child’s best interest for the moving party to
become the custodial parent. See Hoalcraft v. Smithson, 19 S.W.3d 822, 830 (Tenn. Ct. App. 1999).
The relevant considerations in determining whether or not a change of circumstances has occurred

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are: (1) whether a change has occurred after the entry of the order sought to be modified; (2) whether
a change was known or reasonably anticipated when the order was entered; and (3) whether a change
is one that affects the child’s well-being in a meaningful way. Kendrick, 90 S.W.3d at 570,
Cranston, 106 S.W.3d at 644; see also Blair v. Badenhope, 77 S.W.3d 137, 150 (Tenn. 2002).

After the original custody decree was entered in this case, the child was diagnosed in the
ensuing years to be suffering from Attention Deficit Hyperactive Disorder, Oppositional Defiant
Disorder, Depressive Disorder and Bipolar Disorder. No evidence in the record indicates that at the
time of the original custody decree either of the parties were aware of any potential for the
development of these serious mental problems. The behavior of J.V., exhibited in school and
otherwise, and established by the expert testimony to be consistent with his mental disorders,
obviously affects the child’s well-being in a meaningful way. The preponderance of the evidence
clearly establishes a change of circumstance since the entry of the original custody decree. The
determinative question is whether or not Petitioner Bruce Varner has established by a preponderance
of the evidence that a change of custody is in the best interest of J.V.

At the outset of the hearing Petitioner called R. Reid Street, court-appointed guardian ad
litem, as a witness. The record discloses:
THE COURT: It might be good for the Court to ask
this preliminarily. Ms. Harrington, do you have any objection to the
Guardian-Ad-Litem report being admitted into evidence as an
evidentiary item?
MS. HARRINGTON: No, I do not. In fact - -
THE COURT: Mr. Schell?
MR. SCHELL: No, objection.
THE COURT: Be marked as Exhibit No. 1. And I will
let the clerk recover it from the file and that will be marked as Exhibit
No. 1 for evidence.

The record reflects that the thoroughness and completeness of the report of the guardian ad
litem did not go unnoticed by the parties or the court.

Q. Did you try to follow the course of treatment that
[J.V.] followed beginning in the fall of 2001?
A. What I did, I got all the records - - the records were
provided to me by you, Ms. Harrington, and Mr. Schell. And I
participated in some of the depositions. And then I obtained some
records on my own from the present physician that he has. And since
- - you want me to go through the treatment, what’s taken place since
fall of 2001?
Q. I think you’re being very helpful to the Court.
A. Well my report - -
Q. It would save us a little time?
A. My report details that in the history and I will have to
refer to it.

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 THE COURT: You may. It is a very good report, very
thorough, Mr. Street. The Court is very pleased with your work.

The report of the guardian ad litem provides, in part:

Following the divorce, Ms. Kesterson (Varner) was remarried
on January 12, 1990, to Dr. Robert Kesterson and Mr. Varner was
remarried on February 24, 1990, to Laura Varner. Ms. Kesterson has
had continuous custody of [J.V.] since her remarriage with the
exception of a three (3) month period from December, 2000, to
March, 2001, when [J.V.] lived with Mr. Varner in Chicago. [J.V.]
was initially diagnosed as ADHD in 1993. Since that time he has
been treated by a number of physicians, psychologists and
psychiatrists. During the period of time from 1993 to 1998 [J.V.]
continued to have problems at school and at home, and during this
period of time various medications were used with Ritalin being the
most prevalent. During this period of time from 1993 to 1998, there
were periods of summer visitation with Mr. Varner and periods of
Christmas visitation; however, no spring break visitation is ever
exercised by Mr. Varner. In the fall of 1998, [J.V.] began attending
Grassland Middle School and he began encountering problems while
at the school. Until Christmas 2000, [J.V.] was involved in a number
of instances of inappropriate behavior which created significant
problems. During this period of time [J.V.] was under the treatment
of Dr. Vedavyara B. Biliyar, M.D. and it was while under the
treatment of Dr. Biliyar that he suggested [J.V.] go to live with his
father for a period of time. The parties discussed the situation and it
was agreed that in December, 2000, [J.V.] would live in Chicago with
his father. While living in Chicago [J.V.] made one (1) visit to
Franklin after which he ([J.V.]) accused his step-father, Robert
Kesterson, of abusing him after returning to Chicago. [J.V.] remained
in Chicago until spring break 2001, when he returned to Franklin for
a visit. Following this visit Ms. Kesterson refused to allow [J.V.] to
return to Chicago. It was her position and opinion that [J.V.]’s
condition had deteriorated while in Chicago and that it was in his best
interest to remain in Tennessee. During the period of time April to
September, 2001, [J.V.] lived with his mother and step-father but his
condition apparently continued to go downhill until late September
when Ms. Kesterson admitted [J.V.] to Vanderbilt Psychiatric
Hospital. Immediately prior to this admission [J.V.] had been sent to
the Williamson County Alternative Learning Center. Further, [J.V.]
had been threatening his brother and according to Ms. Kesterson was
doing other “bizarre things.” While in Vanderbilt Psychiatric
Hospital [J.V.] was treated by Dr. Charles Corbin who gave him a
diagnosis of: (1) Bipolar Disorder, Manic; (2) Attention Deficit

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Hyperactivity Disorder, and, (3) Oppositional Defiant Disorder.
Also, Dr. Corbin noted that [J.V.] was “continuously manipulative,
impulsive and difficult to guide and treat.” Dr. Corbin further
recommended a long-term residential treatment center. However,
after his release from Vanderbilt Psychiatric Hospital [J.V.] was sent
back to the Williamson County schools’ Alternative Learning Center
where he remained for approximately the next three (3) weeks. [J.V.]
continued to have problems at the ALC and it was recommended that
he receive inpatient hospitalization at Tennessee Christian Medical
Center (TCMC). TCMC was chosen apparently because Dr. Biliyar
was the medical director. Dr. Biliyar previously had given [J.V.] a
diagnosis of: (1) Attention Deficit Hyperactive Disorder; (2)
Oppositional Defiant Disorder-Mild; and, (3) Depressive Disorder not
otherwise specified. After a one (1) week stay at TCMC, [J.V.] was
transferred to Peninsula Village Treatment Center in Louisville,
Tennessee for approximately nine (9) weeks. While at Peninsula
Village [J.V.] was given a diagnosis of:(1) Bipolar Disorder - Not
Otherwise Specified, Most Recent Phase Mixed; (2) Oppositional
Defiant Disorder, and, (3) Ruleout Parent/Child Relationship
Problems. It subsequently was determined by the Peninsula Village
staff that this facility was not an appropriate place for individuals
with problems such as [J.V.]s. Accordingly, Ms. Kesterson and her
husband began searching for another facility.
The Devereux Florida Treatment Facility in Viera, Florida
was determined to be an appropriate placement and [J.V.] was
transferred to that facility on January 12, 2002. [J.V.]’s diagnosis at
the time of admission was: (1) Dysthymia; (2) Attention Deficit
Hyperactivity Disorder, Combined Type; (3) Oppositional Defiant
Disorder, and, (4) Ruleout Psychiatric Disorder NOS. [J.V.] remained
at this facility until May 31, 2002, when he was discharged with a
discharge diagnosis similar to the admitting diagnosis. Also, at the
time of discharge [J.V.] was on two (2) medications, Ritalin and
Tagamet, and he was discharged to the care of Ms. Kesterson. Upon
his return to Tennessee [J.V.] was referred to Youth Villages for
followup counseling following his inpatient treatment. [J.V.] began
his freshman year at Franklin High School in August, 2002, and has
now completed his first semester at Franklin. Further, since June,
2002, [J.V.] has been under the treatment of Dr. Gilbert Raulston,
M.D. Dr. Raulston initially stated that [J.V.] met the criteria for
ADHD - Combined Type as well as Oppositional Defiant Disorder.
In June, 2002, he stated that he was a “bit reticent” to make a
diagnosis of Bipolar Disorder, however, on October 28, 2002, it
appears from his treatment notes that a diagnosis of Bipolar Disorder
- Mixed was made.

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 Review of the record and the depositions of all of the expert medical witnesses establishes
that the guardian ad litem has succinctly and accurately portrayed the history of a very bright young
man with serious mental problems. Both Bruce Varner and his present wife, Laura Varner, on the
one side, and Judy Kesterson and her husband, Dr. Robert Kesterson on the other feel strongly that
they provide the best hope for the future of J.V. The record, however, is replete with evidence that
a very intelligent child is manipulative to the extreme and will resort to practically anything to
accomplish his desires.

Dr. James Guy Wellborn, a practicing clinical psychologist in Williamson County, began
working with J.V. on June 20, 2001, thereafter meeting with both J.V. and the Kesterson family and
by telephone with Mr. Varner. When counsel for Mr. Varner ventured an observation that the
Kestersons were simply “worn out” with the child, Dr. Wellborn responded:

What I would say about [J.V.] is it is difficult for me to
imagine a parent who would not be exhausted by this kid regardless
of their view about feistiness being a desirable thing or high energy
or that kind of business in the experience that I’ve had with him both
in the school setting and individually and with the family.

Dr. Wellborn further testified on cross-examination:

Q. In your treatment of [J.V.], did you find him to be
manipulative?
A. Yes.
Q. Confrontational?
A. He’s remarkably successful in it because he’s very
bright and so . . .
Q. Did you get the impression that he was playing his
parents off of one against each other?
A. Yes.
Q. Meaning Mr. Varner and Ms. Kesterson.
A. Everybody. He played everybody. He played the
Kestersons off each other. He played his mom and stepdad against
his dad and stepmom. He played the teachers. Oh, yeah, this is like -
- this is expectable; that’s not unusual.
Q. And when it was reported to you that [J.V.]’s behavior
in Illinois was essentially the same as it was when he was here, did
that surprise you to hear that?
A. Oh, no.
Q. Would you have been surprised if it were otherwise?
A. Yes. It would have been unexpected given my
diagnosis, and given my own understanding in my mind about what
I considered to be going on, it would have surprised me.

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 Dr. Vedavyasa Biliyar, a treating psychiatrist for J.V., defined his behavior in terms similar
to Dr. Wellborn.

Q. [J.V.] tends to be verbally aggressive in your
experience?
A. Well, periodically. Again, he can be very sweet too.
He’s a master manipulator.
Q. That was my next question. Does he tend to
manipulate situations?
A. (Moves head up and down.)
Q. And is it your impression then that he tends to
manipulate both his mother and his father, Mr. Varner?
A. Yes.
Q. Does he tend to tell each of them what he thinks they
want to hear?
A. Correct. Or what he wants out of them, what he wants
them to think at that time.
Q. You found him to be a young man who tends to
exaggerate?
A. Very dramatic. That’s why I put him in the histrionic
personality.
Q. And sometimes his exaggerations are to the point of
untruths, in your opinion?
A. Yes, yes.
Q. Is it possible to tell whether some of [J.V.]’s problems
are genetic as opposed to learning behaviors?
A. Yes, yes.
Q. Can you tell us what of his problems you believe are
genetic?
A. The impulsivity - - you know, actually bipolar disorder
is a genetic disorder. But I remember dad saying that he’s just like
[J.V.], therefore, I believe that he had ADHD. But I remember
mother saying that she was hyperactive too. He possibly gets it from
both sides, the impulse control problem. Now, the bipolar, I don’t
know, the emotional intensity, I don’t know where he got it from.
Q. Is [J.V.] the kind of child who tends to need more
supervision and guidance than your average child?
A. Oh, yes.

When J.V. entered Peninsula Village Treatment Facility on November 9, 2001, he was
treated by Dr. Gregory Gass, staff psychiatrist. Dr. Gass testified:

Q. Can you give me some specific examples of behavior
or conduct on [J.V.]’s part that was thought to be inappropriate while
he was there?

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 A. Okay. He was quite demanding. I can’t remember a
specific what it was he wanted, but I do remember that there were
some - - I’m pretty sure there were some physical restraints that had
to do with simply his not understanding that at a certain time things
don’t happen or that you cannot always have your way.
I know at the time, we had a smaller unit that we had
to move a group of patients that were inappropriate for treatment into
- - as they were disrupting the unit so badly with things like temper
tantrums, and I know [J.V.] tended to do that. He was having quite
a few tantrums.
Q. Did [J.V.]’s behavior improve at all while he was at
your facility?
A. No. Actually, it fluctuated. With the confrontational
style we have with simply trying to understand that there are rules to
life and consequences with rules, he would get very frustrated.
When he came in, he really wasn’t demonstrating any
fluctuation in mood state. And I was questioning the diagnosis from
the beginning, of the bipolar disorder. It was more based on historical
reports and the transfer diagnosis.
So, I had initiated some medication tapers, and the
Zyprexa specifically is an anti-psychotic agent that is used also in
bipolar disorder for mood stabilization. When I attempted to taper his
Zyprexa, we saw a real deterioration in [J.V.]. He not only would
become easier just to react to the environment and be frustrated, but
his interpretation of it was not quite accurate.
I remember specifically him pointing out that the rest
of the world was misperceiving it, he was the only one that was
correct. Those aren’t his exact words, but that was his perception,
was that we were all mistaken and he was the only one correct in his
interpretation of reality.
Q. So, if I understand your testimony correctly, his length
of stay there at Peninsula Village was not, or was it, a typical length
of stay; is that correct?
A. No, it was an atypical. We are a long-term treatment
facility. Our patients average eight months here. A full course of
treatment is more like a year, as it has to do with simply behaviors
and personality.

[J.V.] demonstrated some thought disorders. He wasn’t
willing to attach to other people. His - - And when you look at the
supplemental testing, he was organized at a psychotic level in terms
of the way he interpreted the world. He was functioning totally - - not
totally, but he was functioning primarily with an internal world as
opposed to reacting from cues in his environment.

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 We can’t treat a patient like that here. Actually, our
confrontational style could potentially make a patient like that worse.
And when we recognize we are dealing with that, we generally refer
to a more traditional psychiatric setting that works more with thought
disorders and can give more individualized a treatment as opposed to
we do more of a group treatment.

On January 22, 2002, J.V. was transferred from Peninsula Village Residential Psychiatric
Facility to the Children’s Services Center at Devereux, Viera. At this facility he was treated by Dr.
Manal Soliman, chief psychiatrist for Children’s Services. The testimony of Dr. Soliman deviates
very little from the testimony of the other professionals. In response to a question by the guardian
ad litem he set forth what appears to be the controlling problem relative to custody.

Q. If [J.V.]’s custody was changed from his mother to his
father and he went to Chicago to live, are you saying that when he
had disagreements with his natural father and his stepmother, he
would start idealizing his mother and stepfather in Tennessee?
A. I think that would happen wherever he lived. He could
have a disagreement with either set of parents wherever he lived and,
he would then idealize the set of parents that he wasn’t disagreeing
with at the moment. He isn’t a malicious person, but the normal - -
this normal pitting of one parent against another during this phase of
development is exaggerated when the parents are physically not able
to be in the same community. That’s why it really - - it would be in
[J.V.]’s best interest for the parents to talk to one another more.
Q. When you were involved in this case, did you find that
the parents didn’t talk to each other regarding [J.V.]’s best interests
or just didn’t talk to each other?
A. I found that they were very reluctant to talk to each
other. They avoided having any conjoint, that is simultaneous
sessions, where they would all be present together. And that is
because they’re human beings and they were angry at one another.
It’s unfair, I believe, to expect them to be talking to one another with
[J.V.] unless they can first resolve their own issues with each other,
and that may mean just agreeing to talk to each other regularly on the
phone.

As a petitioner seeking the change of custody, Bruce Varner’s major difficulty is the burden
of proof to the best interest consideration. He agrees that J.V. is an extraordinarily difficult child.
When the parents agreed for J.V. to go to Chicago and try living with his father this behavior
continued. J.V. was suspended from Hadley Middle School for disruptive behavior. The continuing
behavior and suspension do nothing to bear the burden of proof.

The guardian ad litem made a careful investigation of all of the parties in this case in the
course of which he undertook a trip to Chicago and the Glen-Ellyn suburb of Chicago to investigate

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school conditions, housing and neighborhood conditions around the home of Bruce Varner. During
the course of the guardian’s testimony, the trial court inquired as to whether or not he had formulated
an opinion as to which parent should assume the primary parenting role.

THE COURT: My original question is yes or no; do
you have an opinion on that issue?
THE WITNESS: Yes, I have an opinion.
THE COURT: All right. Do the attorneys have any
objection to the Court asking the Guardian-Ad-Litem what his
opinion is on that question alone? Mr. Schell?
MR. SCHELL: No objection.
THE COURT: Ms. Harrington?
MS. HARRINGTON: No objection.
THE COURT: All right, then I’m going to ask this
Guardian-Ad-Litem what your opinion is.
THE WITNESS: Based on what I’ve seen. Based on
what I’ve studied, it would be my opinion that [J.V.] should stay here.
And that’s based on the fact that he is doing better in school now.
Based on the fact that I feel Ms. Kesterson addresses the issues - - has
been addressing the issues of the medical problems that [J.V.] has.
And I don’t think Mr. [Varner] fully addressed those issues or truly
came to the conclusion there were medical problems until very
recently.
THE COURT: So in order to get a direct answer, the
direct answer is the mother?
THE WITNESS: The mother, yes, sir.

The trial court faced a very difficult decision involving a very difficult child. The mental,
psychological and emotional problems of this very gifted child defy adequate solution. Both parents
are genuinely interested in J.V. and in their differing ways each seeks to do what is in the child’s best
interest. The preponderance of the evidence supports the decision of the trial judge in leaving
custody with the mother. Mr. Varner has simply failed to carry his burden of proof to establish that
his care for J.V. as primary residential parent would work any more for the best interest of J.V. than
leaving primary residential custody with Mrs. Kesterson.

Mr. Varner complains of the allowance by the trial court of attorney’s fees for Mrs. Kesterson
and further in taxing the guardian ad litem fee entirely to Mr. Varner. Under Tennessee Code
Annotated § 36-5-103(c) the award of attorney’s fees is in the discretion of the trial court. Sherrod
v. Wix, 849 S.W.2d 780 (Tenn.Ct.App. 1992). The allowance, as well, of guardian ad litem fees is
discretionary with the trial court. Tenn. R. Civ. P. 54.04. Mr. Varner argues that he did not receive
“a reasonable opportunity to prepare his defenses and objections” before the court assessed the GAL
fees and opposing counsel’s attorney fees against him. For Authority, the Mr. Varner relies upon
the following discussion from Oster v. Yates:

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 Employer next insists that it should not have been taxed with
employee's trial preparation expenses, consisting of $84.00 for the
costs of transcribing Dr. Allen's deposition, $35.00 for a copy of the
employee's discovery deposition, $10.00 for a copy of Dr. Allen's
medical records and $2.69 for a copy of the first injury report from
the Department of Labor.

Tenn. R. Civ. P. 54.04(2) provides as follows:

(2) A party who desires to recover discretionary costs
or any recoverable costs not included in the bill of
costs prepared by the clerk of the trial court shall
move the court to assess discretionary costs and attach
thereto an itemized and verified bill of costs. The
affidavit shall be made by the party or his duly
authorized attorney or agent having knowledge of the
facts, certifying that such items of costs are accurate
and were reasonable and necessary to preparation and
trial of the case and that the services for which such
fees have been charged were actually performed. The
motion shall be filed as a post trial motion pursuant to
Rule 59.01.

The rule was cited with approval in Lock v. Nat. Union Fire Ins. Co.
of PA, 809 S.W.2d 483 (Tenn.1991), in which case a post trial motion
was filed in strict compliance with Rule 59.01, as required.
In the present case, at the conclusion of the hearing, employee's
attorney orally moved to have discretionary costs taxed against the
employer. No affidavits were filed and no hearing relative to the
reasonableness or necessity of the claimed expenses was held. The
matter was not treated as a post trial motion. In short, employer was
not given a reasonable opportunity to prepare and present its defenses
and objections to the motion. Under these circumstances, we are
persuaded that the allowance of discretionary costs was an abuse of
discretion.

Oster, a Div. of Sunbeam Corp. v. Yates, 845 S.W.2d 215, 217 (Tenn.1992).

Oster involved a worker’s compensation claim in which the plaintiff, at the close of the
hearing made an oral motion for discretionary costs without accompanying affidavits. In this respect
the case is distinguishable on its facts from the case at bar. Mr. Varner requested the appointment
of the guardian ad litem. The court in its order disposing of the motion put Mr. Varner on notice of
the possibility of paying the entirety of those fees. The transcript reveals the following additional
exchange regarding the entry of Mr. Street’s fee affidavit:

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 THE COURT: With that regard, Mr. Street, I’ll excuse
you from the rest of the proceedings. If something comes up
requiring your coming back, we’ll let you know.
[MR. STREET]: I prepared an affidavit of my time and
expenses.
THE COURT: Any objection to it being submitted?
MR. SCHELL: No, sir, I’ve seen it.
MS. HARRINGTON: No, sir, I’ve seen it.
THE COURT: All right it will be Exhibit 2.

The albeit unusual form of entry did not prohibit counsel form interposing an objection as
to the admissibility or propriety of the exhibit, or attempting to reserve the right to cross-examine
the witness at a different point in the proceedings. From a review of the guardian’s report and
testimony the fees charged were quite reasonable.

As for the attorney’s fees, Mr. Schell likewise prepared an affidavit of fees and expenses
which the trial court requested in making its ruling. Contrary to his assertion in his brief, the record
reveals no effort made on the part of Mr. Varner to object to those fees, or bring any challenge to the
trial court alleging error in its consideration of the affidavit. See Tenn. R. C.V. P. 59.04; 60.02. In
light of this failure to afford the trial court an opportunity to correct any alleged error argued here,
we are disinclined to second guess the trial court’s exercise of its discretion. See Tenn. R. App.
13(d), see also Barnhill v. Barnhill, 826 S.W.2d 443, 456 (Tenn. Ct. App. 1991). Woodlawn Mem’l.
Park, Inc. v. Keith, 70 S.W.3d 691,698 (Tenn. 2002).

The judgment of the trial court is in all respects affirmed and the case is remanded to the trial
court for further proceedings. Costs of the cause are taxed against the appellant, Bruce Varner.

_____________________________________
WILLIAM B. CAIN, J.

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