IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
December 6, 2004 Session
DAVID L. ELMORE v. MARY ROSANNA ELMORE v. JERRY
RALPH MONDAY, ET AL
Appeal from the Probate & Family Court for Cumberland County
No. 12,777 Steven C. Douglas, Judge
No. E2004-00301-COA-R3-CV - FILED DECEMBER 29, 2004
This case involves a post-divorce custody dispute between the natural father and maternal
grandparents and aunt of three children. The issue presented is whether the trial court erred in
awarding custody to the grandparents and aunt when it made no finding in its order that an award
of custody to the father posed a risk of substantial harm to the children. We hold that the record does
not support such a finding of substantial harm, reverse the trial court’s award of custody, and,
pursuant to the father’s constitutional right of privacy to rear and have custody of his children, we
award the natural father custody and remand to the trial court to set appropriate visitation and support
for the mother.
Tenn. R. Civ. P. 3 Appeal as of Right; Judgment of the Probate & Family Court Reversed;
Case Remanded
SHARON G. LEE, J., delivered the opinion of the court, in which CHARLES D. SUSANO , JR. and D.
MICHAEL SWINEY , JJ., joined.
C. Douglas Fields, Crossville, Tennessee, for the Appellant, David L. Elmore.
David Haines Rotroff, Chattanooga, Tennessee, for the Appellees, Jerry Ralph Monday, Brenda
Joyce Monday, Melissa Renee Beaty, and David Wayne Beaty.
OPINION
David L. Elmore (“Father”) and Mary Rosanna Elmore (“Mother”) were divorced by decree
entered May 4, 2001. The decree of divorce awarded custody of the parents’ three minor children,
Brendana M. Elmore (DOB January 29, 1992), Jonathan David Elmore (DOB February 15, 1994)
and Emily Elizabeth Elmore (DOB December 18, 1998) to Mother.
On September 4, 2002, Father filed a petition to change the children’s primary residential
parent designation from Mother to himself. His petition alleged, among other things, that Mother
“has abandoned her role and responsibility as a parent” and “has divided the [children] among her
relatives, leaving the care of the minor daughters to her parents and the care of her minor son to her
sister.”
Mother answered, denying that primary residential parenting responsibility should be changed
from her to Father, and making a counter-claim for contempt against Father for failure to pay child
support. On October 17, 2003, a petition to intervene was filed by Mother’s parents, Jerry Ralph
Monday and Brenda Joyce Monday (“Grandparents”), and her sister, Melissa Renee Beaty (“Aunt”)
and Aunt’s husband, David Dewayne Beaty.
The petition to intervene alleged that from January of 2001, the Grandparents “have had the
exclusive and primary physical and residential care and custody of ” the two girls, and that the Beatys
have had similar “custody” of Jonathan during that time period. The petition further alleged as
follows:
That the Respondent, [Mother], from and after January of 2001, while
the original custodian of said minor children, has abandoned her role
and responsibility as the minor childrens’ parent and has allowed the
children to live with her parents (the Mondays) and her sister (Beaty).
That from and after January of 2001, [Mother] has exhibited a lack of
interest relative to the nurturing and care of the parties’ three (3)
minor children constituting a substantial and material change in the
circumstances of the parties’ three (3) minor children justifying a
permanent change in the residential care and custody of these
children.
After hearing the case on November 5, 2003, the trial court entered an order awarding
custody of Brendana and Emily to the Grandparents, and custody of Jonathan to Aunt and her
husband. Father appeals, raising the issue of whether the trial court erred in failing to award him
custody.
The trial court made no finding in its order of final judgment that a material change of
circumstances had occurred since the decree of divorce. However, Mother has not appealed the trial
court’s custody decision and is not a party to this appeal. None of the parties involved here argue that
a change of circumstances did not occur.
This is in essence a custody dispute between the biological Father and the non-parent
maternal relatives. The Supreme Court has provided guidance as to the proper procedure and analysis
in situations such as this one on several occasions. See In Re Adoption of Female Child (Bond v.
McKenzie), 896 S.W.2d 546 (Tenn.1995); Petrosky v. Keene, 898 S.W.2d 726 (Tenn.1995); In Re
Askew, 993 S.W.2d 1 (Tenn.1999). The Court has consistently stressed that a natural parent has a
constitutional privacy interest which includes the important and fundamental right to the care and
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custody of his or her children. Id; see also Hawk v. Hawk, 855 S.W.2d 573 (Tenn.1993); Nale v.
Robertson, 871 S.W.2d 674 (Tenn.1994).
In light of this constitutional right, the Bond Court set forth the following two-part analysis:
[I]n a contest between a parent and a non-parent, a parent cannot be
deprived of the custody of a child unless there has been a finding,
after notice required by due process, of substantial harm to the child.
Only then may a court engage in a general “best interest of the child”
evaluation in making a determination of custody.
In Re Adoption of Female Child (Bond v. McKenzie), 896 S.W.2d at 548.
Further, this Court has held that the required showing of risk of substantial harm to the
children must be demonstrated by clear and convincing evidence. Ray v. Ray, 83 S.W.3d 726, 733-
34 (Tenn. App.2001); Hall v. Bookout, 87 S.W.3d 80, 86 (Tenn. App. 2002); Henderson v. Mabry,
838 S.W.2d 537, 540 (Tenn. App.1992).
As the Supreme Court discussed in Blair v. Badenhope, 77 S.W.3d 137 (Tenn.2002), the
applicable analysis is somewhat different when a natural parent is seeking to modify a valid order
granting custody to a non-parent. But in the present case, there is no prior decree granting custody
to a non-parent, and so the Grandparents and Aunt were required to make a showing, by clear and
convincing evidence, that granting custody to Father subjected the children to a risk of substantial
harm.
In its written order, the trial court did not make a finding of substantial harm, nor did it find
Father to be an unfit parent. The trial court’s order stated as follows in relevant part:
[U]pon the sworn testimony of the witnesses and parties, the exhibits,
and the entire record, the Court is of the opinion that it is in the
manifest best interest of the original parties’ three (3) children that
their primary residential and physical custody be awarded to the
Intervening petitioners.
At the close of the hearing, presented with the argument by Father’s counsel that the
Grandparents and Aunt had failed to show a risk of substantial harm, the trial court stated the
following:
I guess the good decision that was made was to allow the children to
go live with the aunt and the grandparents. I think there’s some
substantial risk of harm for the children to be moved from this
environment. I think it’s in the best interest of the children for them
to stay with the grandparents and the aunt.
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“It is a long-recognized rule that a Court speaks only through its written judgments, duly entered
upon its minutes. Therefore, no oral pronouncement is of any effect unless and until made a part of
a written judgment duly entered.” State v. Bough, 2004 WL 2481367 at *6 (Tenn. filed Nov.1, 2004)
(internal quotations and brackets omitted). In this case, the trial court’s order made no reference to
oral pronouncements from the bench. Furthermore, it is apparent from the trial court’s remark about
“some substantial risk of harm” that it was likely made in an attempt to “shoehorn” what was clearly
a best interests analysis to fit into a risk of substantial harm analysis. The court made no factual
findings, oral or written, in support of a conclusion of substantial harm.
Notwithstanding the lack of findings, the parties presented evidence and argument to the trial
court that there was (according to Grandparents and Aunt) or was not (according to Father) proof
supporting a conclusion of risk of substantial harm if custody was awarded to Father. We therefore
review the record to determine if it supports the conclusion, by clear and convincing evidence, of risk
of substantial harm.
The Grandmother testified as follows about her concerns with transferring custody to Father:
Q: Is there anything that you know about [Father] that presents itself
or should be presented to this Court as to why these children should
not be transferred to him in full residential custody?
A: I just don’t think he’s going to be capable of taking care of three
children, working, because it is a full-time job. My husband is
retired. I mean, you know, he takes them to school. He goes and
picks them up. He baby-sits them when there’s no school, you know.
And it’s going to be hard on [Father] to work a full-time job and take
care of three kids, two kids that has boo-coos of homework every
night.
* * *
Q: Have you ever been to [Father’s] house?
A: The one he’s in now?
Q: Yes.
A: No.
Q: Well, you allege in your petition that he just doesn’t have adequate
physical accommodations.
A: I was going by what Michelle told me.
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Q: So she’s been to his house?
A: Michelle, his daughter, yes.
Q: So you really don’t have any knowledge of what you’ve alleged in
here yourself, right?
A: No.
Q: You’ve never looked at it?
A: Not the one he’s in now. No.
Q: Even though you say he’s not a fit or proper person, really what
you just testified to is you just don’t think he’s up to doing everything
that you feel is necessary to raise these children.
A: I don’t think it’s going to be an easy task for him. No.
Mother testified that prior to their divorce, Father was physically abusive to her in front of
the children. Mother also admitted having been charged with assault, theft and drug possession, the
first two charges also occurring before the divorce. Mother further testified that she suffered from
a methamphetamine and marijuana addiction, and she freely admitted giving false answers on
interrogatories propounded to her in this case. There is no other evidence in the record suggesting
Father had been physically abusive; Father testified that Mother “put something like 11 stitches in
me one time.”
The record is not entirely clear regarding how much visitation Father had with the children
prior to February 2003. He testified that “I did as much as I possibly could,” and Grandmother and
Aunt testified that his visitation was sporadic. However, the evidence presented which causes the
most concern was Father’s testimony that from February 2003 until August 2003, he had no contact
with his children. He testified that the reason for this absence was that he “was trying to catch”
Mother, to find evidence supporting his petition for custody. During this time, Mother was living
with Grandparents some of the time and with her fiancee at times. Father testified as follows
regarding his ill-advised strategy:
It’s been like two and a half years now. I mean, and I’ve done
everything to try and get evidence on [Mother] and that’s been real
hard. And it came to a point where, you know, you said, you know,
we’re going to have to do something. I mean, something stinks. And
I ran out of ideas. I got desperate.
Jerry [Grandfather] over there, he’s a good grampa. I mean,
I can’t say nothing bad about the man. I think a lot of Jerry. But
when I quit coming around, they just seen me no longer as a threat
and they quit keeping such a tight rein on [Mother]. And I knew in
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my heart if they thought that I wasn’t a threat that [Mother] would go
back to her old ways, back into the partying and stuff, heavy, and it
worked.
It is undisputed that Father fell behind on his child support payments. He testified without
contradiction that he was unable to make them after he lost his job and had to file bankruptcy. Father
is presently working at an $8.00 per hour job as a mechanic. He testified that since April 2003,
roughly one-half of his paycheck has been garnished for child support, and that he received and
accepted the garnishment notice without objection. The trial court found that Father’s failure to make
the full amount of child support payments was not willful.
At the time of the hearing, Father lived in a two-bedroom trailer. He testified that he was
prepared and able to move to a three-bedroom if he should receive custody of the children. Father
lives in the same school district that the children are in presently, so they will not have to change
schools.
We believe the record is clear that Father has exercised poor judgment, particularly in his
tactical effort to try to gain custody in a paradoxical and misguided way. But we are of the opinion
that the evidence presented does not rise to a showing, by clear and convincing evidence, that the
children will be subjected to a risk of substantial harm by granting him custody. Therefore, his
constitutional parental right to the care and custody of his natural children must prevail in this case.
For the aforementioned reasons, the judgment of the trial court granting the Grandparents and
Aunt and her husband custody is reversed. Father is hereby designated as the primary residential
parent of his three minor children. This matter is remanded to the trial court for such further
proceedings as may be necessary consistent with this opinion, said further proceedings to include
consideration of the issue of Mother’s child support obligation. Costs on appeal are assessed to the
Appellees, Jerry Ralph Monday, Brenda Joyce Monday, Melissa Renee Beaty, and David Dewayne
Beaty.
_____________________________________
SHARON G. LEE, JUDGE
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