# FILED
August 5, 1998 Cecil W. Crowson Appellate Court Cle rk 

### IN THE COURT OF APPEA LS OF TENNESSEE

AT NASHVILLE

TRACY RENEE MIGLIN, ) ) Plaintiff/Appellee, ) ) Appeal No. ) 01-A-01-9707-CH-00362 VS. ) ) Maury Chancery ) No. 95-725 DANIEL WALTER MIGLIN, ) ) Defendant/Appellant. )
APPEALED FROM THE CHANCERY COURT OF MAURY COUNTY

AT COLUMBIA, TENNESSEE THE HONORABLE JIM T. HAMILTON, JUDGE

BARBARA J. WALKER 22 Public Square P. O. Box 1574 Columbia, Tennessee 38402-1574 Attorney for Plaintiff/Appe llee LOUISE R. FONTECCHIO 2075 First American Center 315 Deaderick Street Nashville, Tennessee 37238- 2075 Attorney for Defendant/Appella nt

AFFIRMED AS MODIFIED AND REMANDED

BEN H. CANTRELL, JUD GE
CONCUR:- 2 -

TODD, P.J., M.S. KOCH, J. 

## O P I N I O N

The husband in this divorce case challenged almost every a spect of the trial court’s orders, incl uding child custody, alim ony, the divis ion of marital property and the terms of an injunctio n imposed to prevent him fr om interfering with the

wife’s author ityover the children. We modify the injunction because we believe that it s provisions are overbroad . In all other respects, we affirm the trial c ourt.

I.

The parties married on Mar ch 17, 1989. It was the firs t marriage for Daniel Walter Miglin, but appe llee Tracy Renee Migl in had been previously mar ried to Gary Dri skell. A child, Kyle Driskell had been born of that marriage. Mrs. Miglin had been granted physical custody of Kyle, and was receiving child support from her former husband.

Two children were born of the marriage of Danie l and Tra cy Miglin: Jason Daniel Miglin was born on August 8, 1990, and Logan Andrew Miglin was born
on August 17, 19 93. The testimony in this case (including the testimony of Mrs. Mi glin) indic ates that Mr. Miglin w as a loving and devoted father to his children and had a good relationship with Ky le. However Mrs. M iglin’s testimony also indicates an abusive and vindictive side to her husband’s ch arac ter that brings into question his suitability as a prim ary custodian for impr essionable children.

Tensions within t he marri age, which allegedly found exp ression in a pattern o f c ontinual spousal abuse by the hus band led the parties to separate , and- 3 -

upon the application of Mrs. M iglin, the court filed an Or der of Pro tection and Tempo rarySupport on November 7, 1995. T he order was dissolved by mutu a l consenton December 8, 1995, and the parties attempted to resume their life tog ether.

Problems arose almost immediately, allegedly because Mr. Miglin resumed his earlier

pattern of threats and verbal abuse directed against his w ife. On December

27, 1995, Tracy Miglin filed a Complaint for D ivorce, and asked for cust ody of the children and for an O rder of Prot ection. She claimed that her husband had physically abused her on Christmas Eve, had cursed her in front of the children, and had threatened to seriously har m her. The court issued a Tempor ary Restraining Order, forbidding Mr. Migli n from “coming about, harming, bothering, or m olesting”his wife or children. “W

herever they might be.”

The husband answered the divorce com pla int on January 5, 1996, asking that it be dismissed. He denied the wife’s allegations, and a lso advanced the affirmative defense of condonation to any acts he may have commi tte d before December

8, 1995. His answer included a claim that his wi fe was guilty of inappropriatemarital conduct, and that any ill conduct on his part was justifiably caused by the wife’s conduct

.

Afte ra hearing, the court modifi ed the Protective Order to a llow scheduled visit at ion by the husband, and ordered him to pay alimony and child support pendente lite. On April 19, 1996, the husband counter-claimed for divorce, again claiming inappropriate marital conduct by the wife, and stating that he was “the fit and proper person to have c are, custody and control of the minor children.”

The issues were joined at a he aring on April 26, 1995. The parti e s stipulated t hat the Court could declare the parties divorced rather than awarding divorce to either party. The final decree, issued on May 7, 1996, granted both parties- 4 -

an absolute divorce pursuant t o Tenn. Code Ann. § 36-4-129. Tr acy Miglin was granted child custody, and a v isitation schedule was c reated for Daniel Migli n.

The co urt divided the marital property, granting the mar ital home to Tracy Miglin, and a vacant lot a djoining the marital hom e to Daniel Miglin. Mr. Miglin
was also ordered to pay child support based on his 1995 income, in accor dance with t he guidelines, alimony of $30 0 per month, and one-half of the wife’s attorney fee s . The court stated that i t could no t risk lifting the Tem porary Restraining Ord er and made it permanent. The husband subsequently filed a Notice of Appeal, which this court dismissed without prej udice for lack of finality, becaus e the amount of attorney fees had not been determined.

On June 18, 1996, Tracy Miglin filed a Petiti on for Contempt, claiming that despite the permanent restr aini ng order, her husband had continued to “come about, harm, bother, molest and i nterfere with the Petitione r by following and spying
on [her],” that

he mouthed obscenities to her in front of the children, and th at he was spending an unreasonable amount of time on the lot next door, causing much turmoil in the relationship between m other and children.

At the subsequent hearing, the wif e elaborated on the allegations in her Petit ion, and also claimed that Daniel Miglin followed her and the childre n on th e streetand at the Food Lion store where she s hopped for groceries. The court’s order of September 3, 1996 found Mr. M iglin not to be in willful contem pt, but enjoined him from going on his lot, except for one day a week

to mow the grass. He w as prohibited from shopping at the Food Lion and from dri ving on the street where the marital home
was located, except for the purpos e of picking up or returni ng the c hildren for visitation. His telephone contact with the children was also res

tricted. Mr. Migli n then filed a timely notice of appeal.- 5 - The pa rties filed several s ubsequent pleadings, including a nother peti tion for cont empt by Tracy Miglin , and a petition by Daniel M iglin to reduce the amount of child support and to reduce o r terminate the alimony, d ue to a change of circumstances. After hearings, the trial court made some relative ly minor modifications

in the visitation schedule and the terms of the restraining order, but did not find Mr. Miglin in contempt. The court re fuse d to terminate the alimony , and increased Mr. Miglin’s chi ld support obligation onthe basis of his 1996 incom e. On July 21, 1997 Mr. Miglin filed another Notice of Appeal, asking for a revi ew of all the trial court’s orders

to date.
II. Child Custody and Evidentiary Questions

The issues theappellanthas raised on appeal are (1) whether the trial judge erred in his custody deter mination by failing to appl y the appropriate factors t o the judicial doctrine of c omparative fitness, and by exc luding possibly probative evidence a s to the fitness of the parti es; (2) whether there was sufficient proof to justify the award of alimony and att orney fees; (3) whethe r the divisi on of marital property was equitable; and (4) whether the court abused its discre tion in enjoining the defe ndant from th e use and enjoyment of his property, and the use of public streets and stores. We w ill examine each of these i ssues in turn.

Our Legislature has given the courts the author ity to award child custody in an action for dissolution of a marriage “to either of the parties to the

suit, or to both parties in the instance of joint cu stody or shared par enting, or to some suitable person, as the welfare and interest of the child or childre n may demand . . . .” Tenn. Code Ann. § 36-6-101(a).

The courts have underlined the importance of making a correct determination in custody matters, stating in one case that “neither trial

nor appellate- 6 -

judges have any respon si bility greater than to attempt to correctly adjudicate child custody disputes.” Bah v. Bah , 668 S.W.2d 663, 665 (Tenn. App. 1983).

Such a determination must be bas ed first and foremost on the best interest of the child or childre n, and can involve consideration of a multitude of factors that can affect the child’s best interest. See Nichols v. Nichols , 792 S.W.2d 713 (Tenn. 1990), Rogero v. Pitt , 759 S.W.2d 109 (Tenn. 1988).

In the Bah

case, the court adopted the doctrine of comparative fitness to replace the “tender years do ct rine,” which had created an almost unshakeable presumption that the mother wa s the most suitable custodian for chi ldren of tender years. According to Bah ,

“Fitness for custodial responsibilities is largely a comparative matter. No human being is deemed perfect, hence no human can be deemed a perfectly fit cust odian. Necessarily, therefore, th e cour ts must determine which of two or more available custodians is m ore or less fit than other s . . . . To the extent the ‘tender

years’ doctrine has continued efficacy it is simply one or many factors to be considered in determining custody, not an unyielding rule of l aw. The only rigid principle is and must be that the best i nterests of the child are paramount in any custody determination.” 668 S.W.2d at 666.

In the present case, the trial judge did not state the reasons beh ind his conclusion that “it would be in the bes t interest of

said children that their exclusive custody be granted to the plaintiff, with the defendant being granted v isitation rights.” The appellant argues on appeal that th e trial court’s order indicates that it failed t o consider the relevant factor s and subject them to compar ative fitness analysis.

The appellant further argues that since the div orce decree and subsequentorders contain no specifi c findings of fact, review in this court is de novo, withoutthe presumption of correctness accorded such findin gs by Tenn. R. Civ. P.- 7 -

13(d). We do not accept the appel lant’s pos ition without reservati ons, but even with out applying the presumption of correctnes s, we think the evidence pr eponderates in favor of the court’s c onclusion.

Mr. Miglin presented quite a f ew witnesses who had been able to observe his interactions with his children. They all tes tified that he took a great deal of pleasur e in their company, that he w as very involved in thei r care, and that th e y responded well to him. He complains that Mr s. Miglin did not present very much testimony

about her parenting skills. While she stated that she “lived f or my kids,” she did not detail why she beli eved herself to be the more fit parent.

However she did testify consistently and in deta i l that Mr. Miglin had been c o ntinually abusive towards her, and that the children had witnessed at least
some of this conduct. Her testimony included incidents of physical abus e, threats of extreme violence, the utterance of i nsults and obscenities dir ected towards her, and the silent mouthing of these same insults and obsceniti es when he became aware that she might be taping him to cr eate a record of his behavior. She also testified that the
c hildren were difficult to disc ipline after returning fr

om visitation with the fat her, an d that the youngest child (two and a half years old at the time of trial) had acquired the habit of cursing and using obs cenities when he became angry

.

It is the view of this court that it is in the best interes t of the children that theybe given the opportunity to m aintain warm and close r elat ionships with both parents. In view of the h istory of this case, and the disturbing testimony as to Mr. Miglin’s behavior , we belie ve that granting custody to hi m would have the effect of undermining the children’s relationship to their mother. We also note that Mr. Miglin has a full-time job, and that h e admitted to the court that he had no plan as to how he would care for the childr en if he were granted prim ary custody.- 8 - The appellant ascribes error to two evidentiary rulings by the trial court relating to the question of custody, and we will address these now. Mr. Miglin offered into evidence the telephone deposition of Gary Dris kell, Mrs. Miglin ’s first husband, for the purpose of proving that Mrs. Miglin had attempted to ali enate Kyle’s affection from his father.

The appellee objected, and the tri al court declined to admit the deposition into evidence, apparently bec ause it was not filed

with the court at

least 72 hours before thescheduled trial, as is required by Rule 22 of the Local Rul es of the Twenty-Second Judicial Circuit. The appellant could have made an offer of proof at the point when the trial cour t refused to admit the deposition, but did not do so.

Trial courts have the right to adopt and enforce local rules of procedure,
so long as these rules are not inconsistent with the Rules of Civil Procedure and the Rules of Criminal Procedur e. See Rule 18, Rules of the Supreme Court. Though the appellantpoints out that the deposition in question was taken in ac cordance with the Rules of Civil Procedure, th ere is nothing in those rules that prevents the trial court from enforcing local r

ules in regard to the fili ng of such depositions with the court.

But even if the local rule w er e i nvalid or inapplicable unde r the circumstances, we woul d still have no basis upon w hich to reverse the trial court on this issue. Rule 403 of the Rul es of Evidence permits the trial court to exclude relevant evidence if its probative value is substantially outweighed by “considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” We note that the record contains testimony by Mr. Miglin’s s ister as to interactions she observed between Gary Drisk el l and Renee Miglin which are consistent with Mr. Miglin’s theory, and which thus raise an inference that the depositiontestimony would have been merely cumulative.However, in the absence of an offer of proof, and the resulting exclusion of the deposition from the technical rec ord, this court cannot- 9 -

consider whether the deposition was properl y excludable under Rule 403 or any other
r ule of evide nce. See Davis v. Hall , 920 S.W.2d 213 (Tenn. App. 1995)

. See also Rule 103(a)(2), Tenn. R . Evid.

The appellant also ascribes error to the t rial court’s refusal to allow the children to testify. He argues that since Mrs. Miglin testified that her hu sband had been abusive to her

in front of the children, and Mr. Miglin denied this, testimony by the children themselves was necessary to determine the truth of the allegations. In the alternative, the appellant argues that the trial c ourt sho uld have appointed a guardian ad litem to

investigate the circums tances of the children and to r eport to the court on their behalf.

The trial court has

broad discretion in determining whether to take the testimony

of a minor child. State

v. Fears , 659 S.W.2d 370 (Tenn. Crim. App. 1989). Apparently the court was satisfied with Mrs. Miglin’ s credibility. In view of the ages

of the Miglin children (five and a half, and two and a half) and the age of Kyle Driskell (nine) we do not believe that the judge abused his discretion in declining to allow them to testify.
III. Alimony and Att orney Fees
Our Legislature has set out twelve factors for tri al court to consider in determining alimony awards. Tenn. C ode Ann. § 36-5-101. Most (but not all) of these factors relate to the economic ci rcumstances of the parties, for the desired effect of alimony is to redress the econ omic in equities that arise upon div orce. Our courts have stated that need and ability to pay are the most critic al fa ctors for the court to consider. Lancaster v. Lancaster , 671 S.W. 2d 501 (Tenn. App. 1984); Loyd v. Loyd, 860 S.W.2d 409, 412 (Tenn. App. 1993)

.- 10 - Both partie s in the present case have submi tted sworn statements of income and expenses. TracyMiglin also submitted a sworn statement of the parties’ separate and joint assets and liabil ities. Analysis of thes e documents reveals that an income that was probably ample for a household of five individuals is barely adequate when that household is split by divorce.

The proof shows that Tracy Miglin‘s employm en t opportunities have been limited by her duties a s a homemaker and parent. H owever, she works parttime as a waitress, earning about $390 per month. Although she has an Associates (two-year) degree, she has chosen waitressing because it e nables her to adjust her schedule to work only when the children are being taken care of by a babysitter, or Mr. Miglin is exercisinghis visitation privileges. She also r eceives about $400 per month in child support from Gary Driskell.

Her statement

of income and expenses shows total monthly expenses of $1984.08, which includes a mortgage payment of $601.58. Thus, even when the child supp ort or dered in the original divorce decree ($1,097) was added to Mrs. Miglin’s other incom e, she faced a monthly shortf all of about $100.

Daniel Miglin is a skill ed auto worker, employed at the Saturn auto plant and ea rning $4,046 per month. After taxes and deductions, he nets $2,920. H i s monthly expenses (excluding alim ony and child support, but including $510 in monthly rent) comes to $1,595. Adding his c hild support obligation to hi s expenses brings them up to $2,692.

As we stated above, the trial court ordered M r. Miglin to pay alimony of $300 per month until August of 1998. The amount of alimony to be awarded lies within the di scretion of the trial j udge, and will not be modifi ed absent abuse of that discretion. See Rains v. Rains, 58 Tenn. App. 214, 428 S.W.2d 650 (1968); Franklin- 11 -

v. Franklin , 746 S.W.2d 715 (Tenn. App. 1987) . Examining the ec onomi c circumstances

of the parties in light of the factors enumerated in T enn. Code Ann. § 36-5-101, we cannot say that the trial cou rt abused its discretion, and w e affirm the alimony award.

The trial court also grant ed Trac y Miglin one-half of her attorney fees, ordering Daniel Miglin to pay the sum of $2,665. The appellant insists this was error, b ecause no testimony was presented about her inability to pay her o wn fees

. However the sworn statement of the parties’ separate and joint ass ets and liabilities clearly indicates that the wife di d not have sufficient funds wi th which to pay her attorney.
Attorneys fees may properly be allowed as a part of alimony. Raskind
v. Raskind

, 45 Tenn. App. 583, 325 S.W.2d 617 (1959). Like alimony award s in general, such an award is within the sound dis cretion of th e trial court, and the appellate cou rt wi ll not interfere except upon a clear showing of abuse of that discretion. Elliott

v. Elliot , 825 S.W.2d 87 (Tenn. App. 1992). We see no such abuse here.

IV. Property Division

The marital property included a home in Columbia, Tennessee, v alued at $119,000, and two additional lots valued at $15 ,000 each, which adjoin the home on both sides. The husband had also accumulated assets in a Saturn savings plan and a Saturn retirement account that m et the definition of marital property, because theywere acquired during the c ourse of the marriage. See Tenn. Code Ann. § 36-4-- 12 -

121(b). The rest of the marital estate wascomprised of two vehicles, and household goods with a modest valuati on.

The trial court granted th e wife the marital home, and made her solely responsible for the payments on the mor tgage n o te, which had a balance of about $60,500. He gave one of the lots to the husband and one to the wife, and granted the hus band the sole ownership of his savings, valued at $36,646, and his retireme n t account, valued at $17,812. Each of the par ties was granted one of the vehi cles, and the household goods were also divided. Thus the divis ion of the marital proper ty was roughly equal, with the husband stating that he received property w ith a total value of about $81,000, and that the wife recei ved property worth about $93,000, including the value of the equity in the home

.

The appellant argues that the trial court erred in the division of marital prop erty, not because of inequality in the amounts awarded to each pa rt y, bu t because t he wife obtained a home for her immediate use, while the husband wa s primarilygiven fundsthat he will not have acces s to for many years. H e suggests that it would have been preferable to s plit both the equity in the hom e and the retirement accountbetween the parties, so that a second mortgage could be plac ed on the home for his bene fit, and he could thereby obtai n funds for a down payment on a ho use. He complains that the

lack of a down payment is forcing h im to live in an apartm ent.

However we feel there is very l ittle basis for this c omplaint. First, t h e Legislature has instructed t he courts that in dealing with the m arital home “special consideration”

should be given to the

spouse having physical cus tody ofthe children. Tenn. Code Ann. § 36-4-121(d). In addition, since he was also granted a lot adjoining the marital h om e, which has been valued at $15,000,we see no obstacle that prevents him from selling the lot, and thusacquiring his down payment. Such a sale would probably do much to alleviate the tension betwe en the parties. Since Mr.- 13 -

Miglin’s u se of that lot has been a source of so much disagreement, we can hardly fault the trial court for declinin g to create further opportunities for mischief by g iving each of the parties ownership rights in the other’s property.
V. The Injunction

In the hearing on her Petition fo r Contempt, Teresa Miglin testified that her former husband used his pr operty in s uch a way as to intimidate her, and to in terfer e with her control and dis cipline over the childr

en. The record indicates that the appellant spends a lot of time on the property, cutting the lawn, planting flowers, building a toolshed, or hitting golfb alls with a friend. This activity natural ly attracts the attention of his children, who come over to play and to see their father.

Tracy Miglin testified that on one occasion when she came outside to tell the children to come in f or dinner or bed, the appellant yelled at her, threatened her, and told her to get off his l ot; that he has told her on 5-7 occ asions in front of

the children that if she comes on his property he will have her arrested; that when they are inside the house and he is on the lot, he calls them on his cellular phone to tell them to come out and see him.

She also testi f ied that he mouthed obscenities to her while he was on the lot and she was

on the porch or in the doorw ay of her home, that he stalked her at the Food Lion Store and followed her home, and that on her birthday, he parked in frontof his lot after dark for about thirty minutes with his lights on. She stated that she finds his presence on the lot threatening and intimidati ng.

Mr. Miglin denied most of theappellee’s allegations, tho ugh he admitted he told her to get off his prope rty. He denied that he had ever stalked her, or that he had any sinister intentions towards her, and he offered an innocent exp lanation for all- 14 -

the incidents where she felt he was followingher or harassing her. We note, however, that once one person has been placed in fear by another, it does not necessarily take
a very blatant act to reawak en the fear in the victim,and any deliber ate at tempt to reawaken that fear amounts to intimidation.

The trial court res pon ded to Mrs. Miglin’s concerns by issuing a very broad injunction, some of w hose provisions were: 1. The Respondent is prohibit ed from going to his Lot 33 located at Clearbrook Court, Columbia, Tennessee except for one(1) day each week

for the sole purpose of mow ing the grass. 2. The Respondent is proh i bited from being on Rutherford Lane except at those times w hen he is picking up or returning the children for his visitation privileges.

. . . 4. The Respondent is prohibite d from shopping at Food Lion, Trotwood Avenue, Co lumbia, Tennessee.

The courts possess broad powers to issue res training orders and injunctionsto preserve the peace and to pr event injury. See

Rule 65, Tenn. R. Civ. P. We believe, however, that res training order

s should be drawn as narrowly as is possible to achieve their legitimateends. While we apprecia te the difficulty the

trial court faced in trying to restrain the c onduct of the appellant, totally barring him from public places and so severely limiti ng his use of his own proper tyappears to us to be an excessive intrusion upon his liberty.

Appellee cites us toanother case involving a r estraining order, Sitton v. Finley , 743 S.W.2d 933(Tenn. Crim. App. 1987) , for the proposition that the order in question is not too restrictiv e. The restraining order in the Sitton

case prohibited the plaintiff’s ex-husband from using cer tain sections of four

streets in Clarksville “for the purpose of harassing, intimidating o r disturb ing” his ex-wife.” He admitted he had lingered on those streets, but claim ed he had a legitimate reason for being there. The- 15 -

court found that he was actually there for the purpose of harassme nt or intimidation, and ruled that he was guilty of contempt of court. The appeal s court affirmed.

We believe that th e present case can be distinguished from Sitton , because the restraining order in that case did not totally pr ohibit the defendant from frequenting the streetsin question, but merely from using those streets to harrass the plaintiff at her home and place of business. F urther, the appellant in Sitton was not challenging the validity of the restraining order, but merely the finding that it had been violated.

We believe that the trial cou rt’s order should be modi fied to eliminate clauses 1, 2 and 4, quoted above, but that the appe llant should be enjoined from using his property in such a w ay as to harrass, intim idate or disturb the appellee or to interfere with her control over the chil dren whi le they are in her custody. We also observe that the trial court has another tool available to influence the appellant’s behavior, in its power to reduce th e appellant ’s sc heduled visitation in propor tion to the amount of unscheduled visitation he exercises on his lot.

VI.

The judgment of the trial court is modified in regard to the injunction against the husband. In all other respects it is affirmed. Remand this cause to the Chancery Court of Maury County fo r further proceedings cons istent with this opinion. Tax the costs on appeal equally between the appellant and the appell ee.

____________________________ BEN H. CANTRELL, JUD GE- 16 -

CONCUR:

_______________________________ HENRY F. TODD, PRESI DING JUDGE MIDDLE SECTION

_____________________________ WILLIAM C. KOCH, JR.,JUDGE