### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE Assigned on Briefs O

ctober 4, 2000 MELISSA DANISE FOSTER KORNBLEE (JARAMILLO) v.

KEVIN RICHARD KORNBLEE Appeal from the Circuit Court for Sumner County No. 19043C Thomas Gray, Judge

No. M2000-00379-COA-R3-CV - Filed February 9, 2001

In this post-divorce

proceeding, Me

lissa Danise Foster

Kornblee (Jaramillo) appeals the trial court’s actions in ordering mental health counseling and treatment of the parties’ minor children by a court appointed professional, declining to allow her to reloc ate with th e minor chi ldren to Wyom ing, allowing Father unsupervised visitation with the children, and aw arding Father attorney’ s fees in defending her

motion to suspend unsu

pervised visitatio

n. We affirm the tr

ial court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
W ILLI AM B. C AIN , J., delivered the o pinion of the court

, in which B EN H. C ANTRELL , P.J., M.S. and W ILLI AM C. K OCH , J R ., J., joined.
Helen Sfikas Rogers and Lana Lennington, Nashville, Tennessee, for the

Appellant, Melissa

Danise Foster Kornblee (Jaramillo).
Laura Y. Goodall, Gallatin, Tennessee, and Robert Todd Jackson, Nashville, Tennessee, for the Appellee, Kevin Richard Kornblee. OPINION
Melissa Foster Kornblee and Kevin Richard Kornblee are the parents of threeminor children, Jonathan born June 9, 1990, Steven born March 26, 1993, and Joseph born November 1, 1995. The Mother was granted temporary custody of the minor children during the pendency of the divorce case with specific visitation provided to Father.
On August 5, 1999, Mother filed a petition requesting the trial court to require supervision of any visitation with Father. The Mother attached to her petition the affidavit of Dr. Ruth A. Smith, P.H.D., a licensed clinical psychologist, asserting certain physical, mental, and sexual a

buse allegedly committed upon the children by the Father.-2-

On September 25, 1999, Husband was favored by a five page, fifteen numbered paragraph letter from Wife, p

roviding in part a

s follows:
This is being sent to inform you that it is my intent to move my residence outside the state of Tennessee.
The location of my proposed new residence shall be w it hin the South Central Wyoming Region.
Reasons for relo

cation are as fo

llows:
1. It is my intention to be able to establish a web design service

for a particular market niche catering to Brides/Engaged coup les. There is a tremendous void in this distinctive are na. Upon completion of extensive research and self-train ing, I conclude that I can broac h this area and thus provide an income to support my children and myself. I have chosen to focus on a certain niche rather than a broad-based web design service. By concentrating primarily upon this section of

the population, the

business will not be e

asily influenced by

sways in the

economy or

other external co

nditions.

. . . 5. I am establishing a

new business in whic

h the marke t is extremely more favorable within the West region, particularly within the areas of Denver, CO and Salt Lake City

, UT. The same ma

rketing opportunities do not exist within a six-hour drive from the Nashville, TN area and thus would prevent the s uccess of my business. Whereas Nashville and surrounding are a hav e only two bridal events per year, Denver alo ne has 16 major Br idal Shows, and approximate

ly a dozen more events. Salt Lake City has eleven major bridal shows on schedule at this time. Other o

pportunities also exi st in Laramie , WY; Cheyenne , WY; Jackson Hole, WY; B oise, ID; & B illings, MT

. At this time, there is n o known competition

catering to this

specific marketing area; thus, provi ding an excellen

t timeto reach into this

niche and establish a cred

ible business.
6. Cost

of living is

comparatively cheaper. The Cost of Living

Index rates lis

t Nashville at 96.86, while Casper, WY (a general city

example of the are

a) is listed as 89.63. A 3-bedroom house in Nashville has an average price of $130,356; in Casper, WY it is at $92,500. A 2-bedroom apar tment rents in Nashville for approx. $895; in Casper, WY for $425. The property tax rate in Nashville is 1.13%; in Casper, WY it is 0.8%. Sales tax in Nashville (state and local) is 8.25%; in Casper, WY it is 5.0%.-3-

7. The crime rate index for the Nashville Area is listed at 282. For C

asper, WY it is at 4 4. This information is based upon a national average being at 100. A value of 200 means that the city has twice the crime-rat e as t he average cit y. A value of

50 means that the c

ity has half

the crime ra te of the ave rage cit y. 8. Cultural opportunities abound for the children’s exposure. Many educational experiences are available within the area that are found prim arily only

in places such as New York or Chicag o, yet without the cost of living; crime; etc

. associated with th

ose areas. Histo

rical sites, top-r

ate museums,ar t exhibitions, music, theaters, a brand new Aquarium, amusement parks, etc. are all within ea

sy access. 9. The Roc ky Mountains p rovide some of the

most fantastic sce

nery in th

e wo rld. The children and I greatly enjoy the sno

w and have alway

s f oun d peacefulness

and serenity in the

mountains. There

are many c

hances to view wildlife; herds of

antelope, buffalo, elk, moose, wild horses, and deer. Since we enjoy being

outdoors and explor

ing nature, this a

rea would gran

t us a wonderful lifetime experience to do so.
10. The children would co ntinue to be home-s

chooled; thus prevent ing further disrup ti on of their lives. There are several home-schooling groups in the area, which afford

ample “socialization” as well as being ab le to participate in extra-curricula

r programs such

as sports and band

if th ey so choose (something that they are not able to do here in TN).

. . . 15. We are presently without a home of our own, living with my par ents sinc e August 23, 1999 until the fin

alization of the pro

ceedings. Since our business is to be focused in the

West region, it would be in our best intere sts to settle in that area; rather than buying another home and then uprooting the children once again. All of us need to have some stability and a home of our own.
In short, the relocation i s what I fe el would provide the children and I with an excellent option for establishing and maintaining a successful

business; ensuring not only my future, but theirs’ as well. We would live in an area with many opportunities for both educational and entertainment experiences. Our costs of living will be much che a per, enabling me to be tter provide for

the children. The

crime rate is tremendously

less (over 6.4 time

s LESS!!!). We w

ould simply have a

much better quality of life available to us versus if we were to remain in TN.-4-

Pursuant to TN CODE 36-6-108, you have been given notice of intent to move; the location of

the proposed new residence; & r easons for the re

location. You may

file a petition in opposition within thirty (30) days of receipt of this notice.
Sin cere ly,

Melissa D. Kornblee CC: Helen Rogers By a somewhat remar

kable coinciden

ce, the discover

y deposition o

f the Mo ther revealed that i n April 1998 she had e

stablished an inte

rnet relationship

with Art Jaramillo, w

ho lived in

Sout h Central, Wyom ing, and int rod uced him to t he ch ild ren o f th e par tie s by w ay o f internet correspondence

beginning in September 1998. The relationship progressed and in December 1998, unbe kno wnst

to Father, she took the children on a fourteen day vaca tion to the home of Mr. Jaramillo where the children slept in one bedroom and Mother shared a bedroom with Mr. Jaramillo. Following the discovery of Mother’s relationship with Mr. Jaramillo and her September 25, 1999, ultimatum, disclosing her intent to reloc

ate to South Centra

l Wyoming, wit

h “my children,” Father filed his petition on October 5, 1999, to restrain Mother from relocating with the parties’ three minor children.
The trial of the divorc

e case was held on Octobe

r 7, 1999. At the co

nclusion of the tria

l, the court declared the parties divorced pursuant to Tennessee Code Annotated Sec tion 36-4-129, awarded cust ody to Mother, and specified parental rights, including extensive visitation and communication with Father. Prop erty was div

ided, child

support was set, and a

restraining order was issued restraini n g and prohibiting Mother from relocating the children from Tennessee without approval of the c

ourt. The final decree of divorce further provided:
IT IS FU RTHER O

RDERED AND AD

JU DGED b y the Court that the Mother’s request for

a Restraining Or

der against

the Father takin

g the children to

his church is hereby denied.
IT IS FURTHER ORDERED AND ADJUDGED by the Court that the Court hereby appoints Celia Woolverton Peak Phone: 615-327-1264 as a family therapist to counsel both parties and the three(3) minor children. The Court further1 Melissa Danis e Kornbl ee sh all wit hin 1 0 days

of Oct ober 19 , 1999 c all

Ms. Pe ak fo r appointm ent. Kevin Richard Kornbl

ee shall withi n 10 days of

October 19, 1999 call Ms. Peak for appointment. ss Tom Gray , Judge 10-19-99.

2 Ms. Michael Murph y was a psychologist

employed by Mr. Kornblee to hel p him make whatever changes in his p ersonal be havior that wo uld assist in his relatio nship with the ch ildren. -5- requires both parties 1 and the three(3 ) minor children to go to the therapist and participate

in the sessions as de

termined by

the therapist. The

therapist wil

l file a report with the Court on o r before January 30, 2000, and the Court will thereafter consider overnight visitation for the Father. Mother did not appeal from the final decree of divorce.
On November 29, 1999, the trial court addressed to counsel for both parties, a l ette r disclosing in par

t: On the 23rdday of Nove

mber, 1999, Celia

Woolverton Peak made an inquiry as to the role and function of Ms. Michael Murphy 2 and Dr. Ruth Smith.
It was my intent

that Celia Woolv

er ton Peak would work as a Court appointed neutral in the best interest of the minor children, and that she would be the only one serving as counselor/therapist for the children.
It was not my intent to prohibit Kevin Kornblee from continuing counseling withMs. Michael Murphy ; it was not my

intent to prohibit Melissa Kornblee from seeing Dr. Ruth Smith. Dr. Smith nor Ms. Murphy are to provide service to the children. On December 14, 1999, counsel for Mother filed a

motion questioning

the authority

of the Court to appoint Dr.

Peak asserting

in part:
7. Plaintiff

be lieves that the Court’s actions in seeking the recommendation, firs t of all, of Father’s counselor who is a lesser qualified, lesser experienced and lesser

skilled health ca

re provider rat

her than Dr. Ruth

Smith who has a Doctorate in c

linical psyc

holo gy as well

as extensive skills in treatment, or consulting a completely

neutral psy

chiatrist or clinical psychologist independent of this action to

obtain a recommendation, was improper given the circumstanc

es of this case and does not demonstrate the neutrality necessary from the Bench.
8. Moreover, the Court’s letter of November 29, 1999 is an attempt by the Court to dictate mental health care of the minor children in a non-emergency situation and interfere with the irlong-term ther apeutic relation

ship with Dr. Ruth-6-

Smithin violation of the very strong and long line of cases and authority in Tennessee that establish

a parent’s right to raise their own children as they see fit and withoutoutside interference. Hawk v. Hawk , 855 S.W.2d 573 (Tenn.

1993); Simon v. Simon , 900 S.W.2d 682 (Tenn. 1995); Ellison v. Ellison , 994 S.W.2d 623 (Tenn. App. 1998); Rust v. Rust

, 864 S.W.2d 52 (Tenn.

App. 1993); Baker v. Baker , 1997 W.L. 731939 (Tenn. App. 1997). Simply put, this Trial Court has n o basis to c hange the children’s pediatrician, dentist, or cli nical psychol ogist with out strong, compellin g, life-thr eatening reasons. The Court’s confusion in its letter of November 29, 1999 is obvious when the Court states it do

es not intend to “pr

ohibit” Melissa Kornblee from seeing Dr. RuthSmith since Dr. Smith has never treated the Mother but only the children.
9. For

all the above-mentioned reasons, Plaintiff/Mother asks this Court to revie w i ts appointment of Ms. Celia Woolverton Peak, to reconsider whether or notthe Court needs to have another health car e provider

involved in this fami

ly situation and, in any e

vent based on the v

ery clear authority presented, withdraw its instruction of the letter issued on November 29, 1999.
On this same December 14, 1999, Mother filed a petition seeking to suspend unsupervised visitation with Father based on another affidavit of Dr. Ruth A. Smith.
The Father responded to the December 14, 1999 petition and motion by Mother denying the allegations thereof and seeking an award of attorney ’s fees for the defense of the motion and petition. Following a lengthy hearing on January 19, 2000, of all pending motions, the t rial c ourt entered its orde

r of February

2, 2000, holding th

at: [A]fterhearing the testimony of the parties, of Ms.Cel ia P eak, Ms. Mic hael Mur phy, and of Mr. and Mrs. Foster, refused to consider the Affidavi t of Dr. Ruth Smith or t o grant a continuance to depose Dr. Smith. After hearing the testimony of thos e parties present, including the testimony of Ms. Peak that she no longer wished to be involved in this case, the Court denied the Mother’s Motion to Suspend UnsupervisedVisitation or to allow her to select mental health care providers for the minor children ra

ther than the Cour

t. The court further held:

ORDERED, ADJUDGED and DECREE D that the Court denied the Mo ther’s Motion to determine the children’s menta l health care provider and determined that1 At the hearing on the 7th day of October, 1999 this Court ordered therapy for the children by a court

appointed neutral menta l health prov ider. Pare nts were ordered to parti cipate. The purpose was to attempt strengthening the bond between children and father and included was for the Court to t ake action lessening impact of divorce on the children and to try to provide professional assistance so the children could grow an d develop as secu re stable individuals. A short time frame was included . ss Tom Gra y, Chancellor.

2 Mrs. Kornblee resumed use of her maiden name Melissa Foster a fter the October 19, 1999 divorce decree. -7- it did have the authority to make those decisions 1 and, thus, enjoined and restrained the Mother from taking the children to visit with Dr. Ruth Smith, pending further orders of the Court, and it is further ORDERED, ADJUDGED and DECREED that the Motion to Suspend UnsupervisedVisitation is denied, and awards Mr. Kornblee reasonable attorney’s fees agains t Ms. Fo ster 2 in the amount of $264 0.00 which shall be

a judgment in favor of Kevin Richard Kornblee against Melissa Danise Foster for which execution may issue, if necessary . . . . From this order of February 2, 2000, Melissa Foster Kornblee (Jaramillo) has appealed.
On appeal from this non-jury trial, the a pplicable standa rd of review is de novo upon the record of the trial court accompanied by a presumption of the correc tness of the findings of fact of the trial court unless the preponderance of the evidence is otherwise. Tenn.R.App.P. 13(d). Appellant first asserts

that the trial court was in error and exceeded its authority “by directing who will provide menta

l health counselin

g or treatment f

or the parties’ minor children by refusing to allow Dr. Ruth Smith to continue tre atment and counseling of the minor children and by preventing the custodial parent from seeking mental health care treatment for her minor children.” On this issue, Appellant relies primarily on Hawk v. Hawk , 855 S.W.2d 573 (Tenn. 1993). Such reliance is misplaced. Hawk involved an attempt by grandparents to obtain visitation with grandchil dren und er the Grandpar ents’ Visitation Ac

t (T.C.A. 36-6-301 (1985)). The re cord in Hawk, as stated by the Tennessee Supreme Court, reflected “a f amily history of

bickeri ng and personality

clashes that ultimately resulted in a decision by the appe llants, Bob and Bay Hawk,that neither they nor th

e ir children, Meg

an and Steven, wou

ld associate with B ob’s parents, ap pellees Bill and Sue Hawk.” Hawk , 855 S.W.2d at 575 (Tenn. 1993). In declaring grandparent visitation unconstitutional over the joint objections of fit parents, the Supreme Court stated:

In this case, the paternal grandparents direc tly ch allenge this fundamental privacy in teres t by seeking court-ordered visitation. Bill and Sue Hawk arg ue that-8-

grandparent

visitation is a “com

pelling state inte

rest” that warr

ants use of the state’s parents patriae power to impose visitation in “best interests of the children.” They insist that a judicially determined finding that visitation is in the best interests of the children is a sufficiently compelling justification to override the parents’ united opposition, regardless of the fact that the parents’ fitness is not challenged and that the parents’ domestic

situ atio n has neve

r been the subject of

judicial c oncern. W

e find, however, that without a substantial danger of

harm to the child, a court may not constitutionally

impose its own subjective notions of the “bes tinterests of the child” when an intact, nuclear family with fit, married parents is involved.
Hawk , 855 S.W.2d at 579 (internal footnotes omitted).
In a divorce and custody situation, the nuclear fami ly is destroyed and the authority of the court is clear. T

ennessee Code An

notated Section 36

-6-101 provides:
Decree for custody and support of child-Enforcement-Juvenile court jurisdiction-Presumption of parental fitness-Educational seminars. -(a) (1) In a

suit for annulment, divorc

e, or separate

maintenance, wh

ere the custody

of a minor child or minor children is a question, the court may, notwithstanding a decr ee f or annulment, divorce or separate maintenance is denied, award the care, custody and control of such child

or children to either of the parties to the suit or to both parties in the instance of joint custody or shared parenting, or to some suitable person, as the welfare and interest of the child or children may demand, and the court may decree that suitable support be made by the natural parents or those who stand in the place of the natural parents by

adoption. Such decree shall remain within the control of the court and be subject to such changes or modifications as the exigencie s of the case may require.
Melissa Foster Kornblee did not appeal thefinal decree of divorce entered October 19, 1999, that appointed Celia Peak as family therapist for the family including the children. She waited until December

14, 1999, before filing her untimely objections to the action of t he court in a ppointin g a therapist. At the October 7, 1999, final divorce hearing, the trial court was clearly not impressed by the testimony of Dr. Ruth Smith. The trial court observed: “I was a little bit concerned about Dr. Smith’s tes tim ony t hat she alw ays takes what someone tells her at face value. She took at face value what Mrs. Kornblee told

her, and she said, ‘I always take that at fac e value,’ and I expressed to her that I thought perhaps she should have an honest touch of scepticism relative to certain situations.”
It was after hearing the testimony of Dr. Smith at the trial and after hearing and adjudging the credibility of

all of the witnesses that the trial court made its decision to appoint Ms. Peak as an independent

and unbiased family therapist. At the conclusion of the January 19, 2000 hearing, the court reiterate

d its purpose to appo

int an independen

t and unbiased the

rapist:-9-

The court explained on October 7th t hat the therapy was for the purpose of attempting to strengthen the bon d between the children and the father. And I am going to exercise what I

consider to

be the authority of the Court to take action that the Court finds is in the best interest of the children.
So I don’t find t

he motion well take

n. I find that th

is Courtis supported by the case law that exists in what the Court was attempting to do with helping to mend the bond between the father and the children.
The issue before the court was not the vesting of custody in Mrs. Kornblee. Rather, the issue was the relationship between theminor children and their father. The trial court, listening to all of the testimony an

d viewing all of th

e witnesses, conc

luded that Mrs. Kor

nblee was enga ged in a studied ef fort to destroy the relationship between the children and their father and tha t Dr. Smith, who was Mrs. Kornblee’s selection for therapy with the children, was not

only biased but ready

to accept at “face value” anything Mrs. Kornblee told her about Mr. Kornblee.
Where the t rial judge has seen and hea rd witnesses, esp

ecially where issues of credi bility and we

ight of oral testi

mony are inv

olved, on review c

onsiderable deference must still be accorded to those c ircumst ances. Humphrey v. Dav id Witherspoon, Inc. , 734 S.W.2d 315 (Tenn. 1987). Where the issu e for deci sion depends on the determination of the credibility

of witnesses, the t

rial court is the be

st judge of the credibility

and its findings of

credibility

are entitled to g

reat weight. This is true because t

he trial c ou rt alone has the opportunity to observe the appearance

and the demeanor

of the witnesses. Royal Insurance Co. v. Alliance Insurance Co. , 690 S.W.2d 541, 543 (Tenn.App. 1985). Tenn-Tex Prop. v. Brownell-Electro, Inc. , 778 S.W.2d 423, 425-26 (Tenn. 1989).
Brewer v. Brewer , 869 S.W.2d 928, 934 (Tenn.Ct.App. 1993).
Given the circumstances in this case, the trial court certainly did not abuse its disc

retion in appointing an unbiased therap ist who could in the w

ords of the trial c

ourt be “new and

neutral to this situation, and who would work from the perspective of the Court.”
As to the effort of Mrs. Kornblee to move the children to Wyoming, t h e trial court specifically

found that there was “not a compelling reason for the mother to reloc

atethe children.” Indeed, at the

January 19, 2000, hearing Mrs. Kornblee testified that she “has no plans to take the children to Wyoming.”
The relocation issue is best discussed in the secondissue raised by the Mother which a

sserts that the trial court erred in allowing Mr. Kornblee unsupervised visitation.
At the conclusion o

f the January

19, 2000, hearing

, the trial court observed:-10- Now, on the motion to suspend unsupervised visitation, that is denied. The evi dence does not preponde rate that the fat

her has sexually

abused or in

any othe r way physically

abused these children. The credibility of Ms. Foster, the mother, is lacking. She testified, No, I’m not try

ing to prevent a

relationship with the father. I’m trying to get it to be appropriate. I don’t find that credible. She is not tryi ng to get it appropriate. She wants to limit, restrain, interfere with the visitation.
On the make up visitation where the Court was being reasonable, Ms. Foster was unreasonable. Sh

e wants to take the day away a nd then call the day that he can have his make up visitation. That’s not being reasonable. It’s not within t he spirit of the final decree.
The only eviden

ce that the Fathe

r had sexually

abused, or in

any way phy

sically abused, these children came

from Mrs. Kornblee and her selected therapist who accepted anything Mrs. Kornblee told her at “face value.”
Here again we ar e faced with a credibility issue addressed by the trial court. When the testimonyof Ms. Peak, the co urt appoi nted therapist, is considered in contrast to the testimony of Dr. Smithrelative to the actual relationship between the children and the father, it cannot be said that the trial court abused its discretion, either in preventing Mrs. Kornblee from relocating the children to Wyoming or in

refusing to

restr ict Mr. Kornblee to supervised visitation. Given the vindictive spirit dis pla yed i n th e rec ord by M rs. Kornblee, t he trial court did not err in refusing to allow the children to relocate

to Wyoming an

d in declining to r

estrict the visitat

ion of the childre

n with their father to supervised visitation.
The last issue asserted by

Mother is the award of attorney’s fees to Mr.Kornblee in resisting the second effort by

Mrs. Kornblee to r

estrict his visitati

on to the children on allegations of sexual and physical

misconduct which the trial court found to be groundless. Trial courts in Tennessee are vestedwith wide discretion in the award of attorney ’s fees in

post-divorce domestic proceedings and this Court will not set aside the action of the trial court unless an abuse of discretion is shown. See Aaron v. Aaron , 909 S.W.2 d 408, 411 ( Tenn. 1995 ) (citing Storey v. Storey, 835 S.W.2d 593, 597 (Tenn.Ct.App. 1992); Crouch v. Crouch , 385 S.W.2d 288, 293 (Tenn.Ct.App. 1964)). In this case the trial court did not abuse its discretion.
The judgment of the tr

ial court is in all re

spects affirmed

and costs are ass

essed to Appellan

t, Melissa Danise Kornblee (Jaramillo). The case is remanded to the trial court for such further pro ceed ings as m ay be n eces sar y.

___________________________________ WILLIA M B. CAIN, JUDGE