COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE FILED
March 26, 1998
KATHERINE RENEE RICE, ) C/A NO. 03A01-9709-CV-00415 Jr.
Cecil Crowson,
) Appellate C ourt Clerk
Plaintiff-Appellant,)
)
)
v. ) APPEAL AS OF RIGHT FROM THE
) McMINN COUNTY CIRCUIT COURT
)
)
)
JAMES TIMOTHY RICE, )
) HONORABLE JOHN B. HAGLER, JR.,
Defendant-Appellee. ) JUDGE
For Appellant For Appellee
LYNN TARPY S. RANDOLPH AYRES
THOMAS M. LEVEILLE Athens, Tennessee
Hagood, Tarpy & Cox, P.L.L.C.
Knoxville, Tennessee
O P I N IO N
AFFIRMED AND REMANDED Susano, J.
1
In this divorce case, the trial court awarded the
original defendant, James Timothy Rice (“Husband”), an absolute
divorce from Katherine Renee Rice (“Wife”); granted Husband
custody of the parties’ child, Madalyn Sue Rice (DOB: April 20,
1993); divided the parties’ personal property and debts; and
pronounced other decrees that are not relevant to the issues on
this appeal. Wife appealed, presenting issues that raise the
following questions:
1. Does the evidence preponderate against
the trial court’s judgment awarding Husband a
divorce?
2. Does the evidence preponderate against
the trial court’s decision to award custody
of the parties’ child to Husband?
3. Did the trial court err in refusing to
allow testimony regarding Husband’s practice
of reading “pornographic” magazines?
4. Does the evidence preponderate against
the trial court’s decree ordering Wife to pay
a deficiency indebtedness on the parties’
Jeep?
We affirm.
I. Factual Background
The parties were married in Pennsylvania on September
21, 1993. They had been involved prior to their marriage, and
their earlier relationship had produced a child, Madalyn Sue
Rice, who was born on April 20, 1993. Wife has another child,
Meghan LeBlanc, who was five at the time of the trial below.
2
For the bulk of the parties’ three-year plus marriage,
Husband was employed as a salesman for various owners of cemetery
properties. During the marriage, Husband worked in, and the
parties resided in, the states of Pennsylvania, Missouri,
Indiana, Illinois, and finally Tennessee. Husband moved to
Athens, Tennessee in May, 1995. Wife and the two children
followed him to Tennessee at the end of July, 1995.
Prior to moving Tennessee, Husband had learned that
Green Hill Cemetery in Etowah was available for sale. He talked
to a Jim Randolph, his best friend who he had known for 10 years,
about the cemetery and, according to Husband, Randolph agreed to
purchase the cemetery and agreed that he and Husband would
ultimately be partners in the business. Husband and Randolph
then both re-located to McMinn County to pursue this business
interest.
Husband was initially successful in selling lots at the
Etowah cemetery; however, shortly after moving to Tennessee,
Randolph began personally pursuing leads that were received at
the cemetery office, and Husband decided that Randolph was not
dealing with him in a fair manner.1 Concluding that there was
not enough business to support the two of them, Husband decided
to look elsewhere for employment.
Approximately four to six weeks after Wife moved to
Athens, Husband decided to leave Tennessee for a job at a
cemetery in Georgia. Wife refused to relocate to Georgia,
1
According to Husband, Randolph failed to advertise the business as he
had agreed to do.
3
reminding Husband that she had told him that the move to
Tennessee was her last. Husband suggested counseling, but Wife
declined to participate.
In October, 1995, while Husband was working in Georgia,
Wife returned to Illinois with the children and moved in with her
brother and his family.
Wife returned to Tennessee in January, 1996, and moved
in with Randolph at his home in Englewood. The children moved
with her. According to Wife, she and Randolph started a sexual
relationship in March, 1996. At the time of trial, Wife and
Randolph were still living together with the children in
Englewood. Husband was living with his parents in Crystal Lake,
Illinois, where he was employed selling home security systems.
II. Procedural History
Wife filed for divorce on April 8, 1996, some three
months after moving in with Randolph. She alleged that she was
entitled to a divorce on the ground of inappropriate marital
conduct.
4
Husband moved for a bill of particulars, relying on
T.C.A. § 36-4-106(a)2 and Rule 12.05, Tenn.R.Civ.P.3 Wife
responded by alleging verbal and physical abuse, and use of
profanity in front of the children. In addition, she relied upon
the grounds of abandonment and non-support under T.C.A. § 36-4-
102 (a)(3).
On December 18, 1996, Husband filed an answer and
counterclaim for divorce. Both parties sought custody of their
minor daughter.
Following two days of trial, the court took the matters
before it under advisement. On January 23, 1997, the court
entered its final judgment, which recites the following predicate
for the relief granted:
...the Court finds and holds that...Katherine
Renee Rice, has been living in an adulterous
relationship for approximately one year with
a man by the name of Jim Randolph, that [she]
has allowed said Jim Randolph to assume an
inappropriate role in interfering with the
father’s relationship with the parties’ minor
daughter, and that under the provisions of
Tennessee Code Annotated § 36-4-
102(a)(1)...[she] has been guilty of
inappropriate marital conduct. The Court
further finds that [her] testimony concerning
2
T.C.A. § 36-4-106(a) provides, in pertinent part, as follows:
In cases wherein an answer is filed, the court shall,
on motion of the defendant, require the complainant to
file a bill of particulars, setting forth the facts
relied on as grounds for the divorce, with reasonable
certainty as to time and place.
3
Rule 12.05, Tenn.R.Civ.P., provides, in pertinent part, as follows:
If a pleading to which a responsive pleading is
permitted is so vague or ambiguous that a party cannot
reasonably be required to frame a responsive pleading,
the party may move for a more definite statement
before interposing a responsive pleading.
5
alleged abuse by [Husband] was not
particularly persuasive and that the real
reason for the breakup of the marriage is
[her] relationship with one Jim Randolph,
rather than any abuse as alleged by [her].
III. Standard of Review
In this non-jury case, our review is de novo upon the
record of the proceedings below; but the record comes to us with
a presumption of correctness that we must honor “unless the
preponderance of the evidence is otherwise.” Rule 13(d),
T.R.A.P. See also Hass v. Knighton, 676 S.W.2d 554, 555 (Tenn.
1984). Our search for the preponderance of the evidence is
tempered by the principle that the trial court is in the best
position to assess the credibility of the witnesses; accordingly,
such credibility determinations are entitled to great weight on
appeal. Massengale v. Massengale, 915 S.W.2d 818, 819 (Tenn.App.
1995); Bowman v. Bowman, 836 S.W.2d 563, 567 (Tenn.App. 1991).
In fact, this court has noted that
...on an issue which hinges on witness
credibility, [the trial court] will not be
reversed unless, other than the oral
testimony of the witnesses, there is found in
the record clear, concrete and convincing
evidence to the contrary.
Tennessee Valley Kaolin Corp. v. Perry, 526 S.W.2d 488, 490
(Tenn.App. 1974).
IV. Analysis
6
Wife contends that she, not Husband, should have been
granted the divorce. She argues that Husband’s conduct before
their separation was the real cause of the breakup of their
marriage.
“[A] divorce suit is not designed to determine which
spouse has been perfect in behavior, for perfection is found no
more in marriage than elsewhere.” Bush v. Bush, 684 S.W.2d 89,
92 (Tenn.App. 1984). When a marriage is examined in a court
proceeding, it generally reveals a union with “imperfections in
both spouses.” Id. Courts attempt to determine the “straw that
broke the camel’s back” -- conduct that finally brought an “end”
to the marriage relationship. Id. As a practical matter, that
can be a single incident or an accumulation of matters over time.
In this case, the trial court determined that the real
cause of the breakup of this marriage was Wife’s adulterous
relationship with Randolph. In denying Wife’s motion to alter or
amend, or for a new trial, the court made the following
significant statements:
Also, I think I should add that I did judge
the credibility of the witnesses. I could
not -- well, I’ll put it this way: Had I
believed all the allegations of abuse, it
might have been a different case, but I
watched the witnesses testify and I could not
accredit much of that testimony.
I also felt very clearly that the mother’s
relationship with Mr. Randolph began earlier
than she had testified. I think that’s one
reason Mr. Randolph was not here to testify
in court, because there was going to be a lot
of questions asked and to be answered with
respect to that. I think there was a great
deal of deception involved in the early part
7
of that relationship, and all that went into
account in the Court’s decision in judging
the credibility of the parties as they
appeared before the Court.
“[A] persistent pattern of adulterous conduct” will
support a grant of an absolute divorce on the ground of
inappropriate marital conduct. Farrar v. Farrar, 553 S.W.2d 741,
744 (Tenn. 1977). It is likewise clear that post-separation
conduct of an inappropriate nature will support a grant of
divorce under certain circumstances. Clark v. Clark, 644 S.W.2d
681, 682 (Tenn.App. 1982); Perry v. Perry, 765 S.W.2d 776, 779
(Tenn.App. 1988).
In this case, the parties had sharply contrasting
theories as to the cause of the end of their marriage. Wife
claimed that Husband’s verbal and physical abuse, coupled with
the instability of his employment and his failure to support his
family, were the main causes of the failure of their marriage.
On the other hand, Husband pointed to Wife’s relationship with
Randolph as the ultimate cause of their breakup. The trial court
resolved these credibility issues in favor of Husband. The court
did not find the evidence of abuse to be persuasive. As we have
previously indicated, a trial judge, who sees and hears the
witnesses, is in a much better position than are we to resolve
competing and sharply contrasting testimony. Tennessee Valley
Kaolin Corp., 526 S.W.2d at 490.
There is evidence in the record to support the trial
court’s conclusion that Wife and Randolph were involved before
8
March, 1996, the point in time at which Wife claimed the affair
began. Wife admitted that she and the children had dinner out
with Randolph in October, 1995, and also admitted that he visited
her in Illinois for Thanksgiving, 1995. There was also evidence
of gifts and long-distance phone calls prior to March, 1996.
This evidence gives rise to a reasonable inference, accepted by
the trial court, that there was a romantic, if not sexual,
relationship prior to March, 1996.
In view of the trial court’s very explicit findings
regarding the credibility of the parties, we cannot say that the
evidence preponderates against the grant of divorce to Husband.
Wife’s issue as to the divorce is found adverse to her.
Wife also complains about the trial court’s award of
custody of the parties’ minor daughter to Husband. She argues
that the trial court awarded custody to Husband in order to
punish Wife for her adulterous relationship with Randolph. She
relies upon a number of cases holding that custody should not be
used to punish a party for errant behavior. See, e.g.,
Sutherland v. Sutherland, 831 S.W.2d 283, 286 (Tenn.App. 1991).
She points out that she was the primary caregiver, that even
Husband acknowledges that she is a good mother, that the court’s
decree has the effect of separating Madalyn from her half-sister,
and that Husband’s employment instability and failure to send
support demonstrates his unfitness as a custodian. Wife claims
that the court failed to make the analysis required by both
T.C.A. § 36-6-106 and the “comparative fitness” test first named
in Bah v. Bah, 668 S.W.2d 663, 666 (Tenn.App. 1983).
9
The trial court made explicit findings on the subject
of custody:
...the Court never intends to use custody to
punish a party. If the Court does that, then
the Court is wrong. I don’t think that I
used custody to punish the mother in this
case.
The Court had to decide which parent would be
more likely to insure that this four-year-old
child would have a relationship with both
parents. And after hearing all the evidence,
I found that if the father had custody, there
was a greater chance that the child would
have a meaningful relationship with the
mother than if the mother had custody,
because the mother’s paramour had seriously
interfered with the father’s access to the
child.
There was only one part of the case that
shocked me. That was the part that shocked
me, that the mother’s new friend simply
attempted to take the place of the father in
this case. I think the evidence was
overwhelming. And even after taking the
tender years’ doctrine, the continuity and
placement, and so forth, into account, the
Court felt that it was in the best interest
of the child that the father have custody,
and nothing has been changed -- has been
shown that would make me change my opinion.
If the Court is wrong in that regard, I hope
the appellate court will correct it.
* * *
Whether I gave proper weight to the different
factors is a question for someone else, but I
can assure you that I considered all the
factors which the legislature requires the
Court to consider.
We do not find support in the record for Wife’s
argument that the trial court did not employ the analysis
required by T.C.A. § 36-6-106 and the Bah case. On the contrary,
the record clearly reflects that the trial court correctly
analyzed the issue of custody. There was substantial evidence
10
that Wife permitted Randolph -- described by both parties as
“dictatorial” -- to interfere with, if not control, Husband’s
relationship with his daughter. Randolph’s conduct in this case
gives rise to a reasonable inference, drawn by the trial court,
that Wife’s continued exercise of custodial rights in the
Randolph household would severely limit, and adversely affect,
Husband’s relationship with the child.
There is also proof in the record that Madalyn is
confused by her mother’s relationship with Randolph. Wife
admitted that she and Randolph kissed, hugged, and held hands in
front of the children. Madalyn’s confusion is shown clearly by
the fact that she would sometimes call Randolph “Daddy,” while
she frequently called her real father by his first name.
Randolph’s involvement in Madalyn’s life is further shown by the
fact that he administered discipline to the child by spanking her
with a hair brush. There was also testimony that as early as
December, 1995, Madalyn had told her paternal grandmother that
Randolph was going to be her new daddy.
The best interest of a child is the overriding
consideration in all custody determinations. T.C.A. § 36-6-106;
Luke v. Luke, 651 S.W.2d 219, 221 (Tenn. 1983). Generally
speaking, it is not appropriate to separate siblings by a custody
order. Baggett v. Baggett, 512 S.W.2d 292, 293-94 (Tenn.App.
1973); but this principle is not inflexible. It must give way to
other considerations if the best interest of a child so dictates.
11
We do not believe that the trial court awarded custody
to Husband in order to punish Wife for her adulterous conduct.
Wife’s adultery is not the issue. What is important about that
relationship is Wife’s decision to move into Randolph’s house,
knowing that Randolph and her husband had had a falling out,4 and
then allowing Randolph to act as her surrogate with respect to
Husband’s relationship with his daughter. It is a reasonable
inference from the proof -- including testimony regarding a
physical altercation between Randolph and Husband -- that
Randolph permitted his personal animosity to affect his anointed
role as Wife’s surrogate for visitation matters.
It is unfortunate that Madalyn will be separated from
her half-sister. The trial court attempted to lessen the effect
of this separation by “encourag[ing]” Wife to allow Meghan to
visit in Husband’s home. As we have previously indicated, the
best interest rule trumps all other custody principles --
including the one generally disfavoring separation of siblings.
In resolving credibility issues as to entitlement to
divorce and custody, it is clear that the trial court was
influenced somewhat by Randolph’s failure to testify. In this
case, the trial court was within its discretion in drawing an
inference adverse to Wife under the so-called missing witness
rule. See NEIL P. COHEN, ET AL., TENNESSEE LAW OF EVIDENCE § 401.9
(3d ed. 1995)(“The general rule is that failure to call a witness
who (1) has peculiar knowledge of facts, and (2) would naturally
4
Husband testified that Randolph, who had been his best friend, failed
to honor his commitment to Husband regarding the Etowah cemetery; Randolph, on
the other hand, believed that Husband had stolen money from the cemetery.
12
favor the party’s contention raises an inference that the
testimony would have been unfavorable to the party who failed to
call the witness.”).
The evidence reflects that Husband has established good
living conditions for his daughter in Illinois. There was no
evidence indicating that Madalyn will be adversely affected by
living with Husband in the home of his mother and stepfather.
The evidence does not preponderate against the trial
court’s award of custody to Husband.
Wife contends that the trial court erred in failing to
allow her counsel to inquire into Husband’s practice of reading
“pornographic” literature. We do not find this to be error in
this case.
The totality of the record pertaining to this subject
is as follows:
Q What other problems were there in your
marriage?
A He drinks a lot. And I’m not a doctor,
but he’s very close to being an alcoholic.
He cusses. He throws a temper. He likes to
read dirty magazines; he has them laying
around the house; I mean just tons of stuff.
It was -- just there was a pile and pile of
stuff there.
MR. AYRES: Your Honor, I’m going to object to
this. We asked for a bill of particulars.
We also asked in her deposition and this
never came out in it either. They filed
their specifics and there was nothing in
there about any so-called “pornography,” and
that’s the first I’ve ever heard of this.
13
THE COURT: Mr. McKenzie, do you --
MR. McKENZIE: As far as -- go back to the
alcohol, Your Honor, I think we did mention
he was verbally abusive. Certainly the
alcohol, if I could question her --
THE COURT: What about the books?
MR. McKENZIE: The magazines we did not list
that as a specific ground.
THE COURT: What about, was the deposition
taken?
MR. McKENZIE: Yes. I don’t remember that
being mentioned.
THE COURT: Did Mr. Ayres ask any questions
that that would have been a fair answer to?
MR. McKENZIE: Your Honor, I believe he asked
her what were the, what were the problems in
the marriage and --
THE COURT: I think I’ll sustain the
objection.
The testimony sought to be elicited in this case was
not relevant. This is because Wife did not allege Husband’s
reading of pornographic literature as a part of her grounds for
divorce. The question before the trial court pertained solely to
Wife’s grounds for divorce. Husband had attempted to “flesh”
these grounds out by filing his motion for bill of particulars.
Since this matter was not raised in the pleadings, questions
about it were irrelevant. George v. Alexander, 931 S.W.2d 517,
525 (Tenn. 1996) (Reid, J., concurring); Bridges v. CSX Transp.,
Inc., 845 S.W.2d 760, 764 (Tenn.App. 1992). The function of a
pleading is to “give notice to the parties and the trial court of
the issues to be tried.” Castelli v. Lien, 910 S.W.2d 420, 429
(Tenn.App. 1995).
14
Wife cannot contend that Husband was not surprised by
this line of inquiry. The record before us clearly reflects that
Husband’s counsel was in fact surprised by the testimony. Wife’s
deposition is in the record, and it is entirely devoid of any
reference to the pornographic literature issue. Husband’s
counsel questioned Wife regarding her grounds for divorce in the
deposition and she failed to mention, in any way, Husband’s use
of pornographic material. This issue is found adverse to Wife.
Finally, Wife contends that the trial court erred in
requiring her to pay a deficiency debt of $3,200 on the parties’
Jeep.
Generally speaking, marital debts are to be equitably
divided between the parties. Cutsinger v. Cutsinger, 917 S.W.2d
238, 243 (Tenn.App. 1995); Mondelli v. Howard, 780 S.W.2d 769,
773 (Tenn.App. 1989). “When practicable, the debts should follow
the assets they purchased.” Id.
The Jeep was titled in Wife’s name. Husband left this
vehicle with Wife after she had moved in with Randolph. It was
in Wife’s possession when it was repossessed.
There were a number of debts allocated between the
parties in the judgment of divorce. We find that the evidence
does not preponderate against the trial court’s decision that it
was equitable to burden Wife with the deficiency on the Jeep
debt.
15
The judgment of the trial court is affirmed. Costs on
appeal are taxed against the appellant and her surety. This case
is remanded to the trial court for enforcement of that court’s
judgment and collection of costs assessed there, all pursuant to
applicable law.
__________________________
Charles D. Susano, Jr., J.
CONCUR:
______________________
Herschel P. Franks, J.
______________________
Don T. McMurray, J.
16