### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE April 15, 1999 Sessi

on BILLY RHODES STEAGALL v. NANC Y ROSE STEAGALL Appeal from the Chancery Court for Marshall County

No. 7194 F. Lee Russell, Judge

No. M1998-00948-COA-R3-CV - Filed July 27, 2001

This appeal involves a post-divorce dispute regarding the custody of a 15-year-

old boy. In August 1997, the boy’ s fa the r pet iti one d th e Ch ance ry Co urt for Mar sha ll C oun ty t o change theminor’s custody because of his

concern that the

mother’s attempt to

home school the boy had undermined his education and development of social skills. The mother opposed the petition and requested an increase in child support. During the June 1998 trial, the father presented evidence raising serious questions about the pr ogres s of the child’s education and development of social skills, as well as other aspects of the mother’s approach to parenting. The mother presented no evidence of her own. Instead, after the close of the father’s proof , she asserted that the trial court could remediate the
ac knowledged defic iencies without changing custody. Thereafter , the parties and the court discussed at length the provisions of a proposed r emedial order, and the hearing was adjourned when the parties and the court believed they had agreed on the contents of the proposed order. Before the trial court entered the proposed order, the wife took issue with a provision requiring her to enroll the child in public school. The trial court informed the parties that it had unders too d that both parties had agreed to sendtheir child to public school and that it would resume the trial if its understanding was incorrect. Rather than requesting the trial court to resume the hearing, the mother filed this appeal claiming that the trial court had infring ed on her constitut

ionally prot

ected right to r

aiseher child. We have determined

, in accordance

with Tenn. R. App. P. 36(a), that the mother is not entitledto appellate relief because she is, in part, responsible for the error and because she fa

iled topursue the reasonably

available steps that would have nullified the harmful effect of the error. Accordingly , we affirm the judgment. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
W ILLI AM C. K OCH , J R ., J., delivered the opinion of the court, in which W ILLI AM B. C AIN and P ATRICIA J. C OTTRELL , JJ., joined. Gregory D. Smith, Clarksville

, Tennessee, for

the appellant, Na

ncy R. Steag

all. Barry B . White, Lewisbu

rg, Tennessee

, for the appelle

e, Billy Rhod

es Steagall.1 The record does not contai n a tra nscript or summary of the trial court’s interview wit

h the parties’ son. However, the transcr

ibed comments of the

trial cour

t and the lawy

ers at other stages o f the procee ding indicate that the child told that tri

al court that he desired to live wi th Mr. Steagall, at least in part, to enable him to see the other members of Mr. Steagall’ s family more. -2- OPINION Nancy Rose Steagall and Billy Rhodes Steagall married in 1981. Their only child, a son, was born in Ma

rch 1986. T he parties were divorced by

the Chancery

Court for Marshal

l County in March1988. In acc

ordance with the

ir marital dissoluti

o n agreement, Ms.

Steagall rece

ived sole custody of their son, and Mr. Steagall received non-specific visitation rights. Mr. Steag

all was also required to pay Ms. Steagall $70 per week in child support. Thereafter, Ms. Steagall and the

parties’
son moved to Culleoka in Maury County. Mr. Steagall remaine d in Lewisburg an d eventually remarried. Ms. Steagall is em ployed as a

paramedic

by the Williamson Medical Center Emergency Medical Service, and Mr.

Steagall is employed as a paramedic by the Rutherford County Ambulance Service.
After the divorce, Ms. Ste

agall, as the cu

st odi al parent, made all the major decisions regarding the child’s education, his exposure to his extendedfamily, and the nature of his visitation withMr. Steagall. Ev

en though sh

e was elected to the

Maury County

Board of Educa

tion, Ms. Steagall withdrew her sonfrom

public school afte

r the third grad

e and began hom

e schooling him. Her decision was based, in large part, on her Christian beliefs and her apprehensions about

the public school curriculum. Ms. Steagall hom e schooled the parties’ son f or the fourth, fif

th, and sixth grades. During these years, Mr. Steagall grew incre asingly concerned about the boy ’s attitude about his studies and his so

cial skills. Things came to a head in 1 997. Mr. Steagal l decided that Ms.

Steagall’s style of

parenting andher heavy-ha nded attempts

at gate-keeping between him and his son were adversely affecting the child’s development. He was concerned about the adeq uacy of the boy’s education and the development

of his social skills. He was also concerned that Ms. Steagall had gone too far in try ing to shape the boy’ s world view. Finally, he was concerned that his own differing views about parenting were causing h

is efforts at visitation to bec

omeextremely contentious. In August 1997, after the boy expr

essed a d esire to live with him, Mr. Steagall petitioned the Chancery Court for Marshall County to change custody. Ms. Steag all objected to changing custody and requ e sted an increase in chil

d support.
The trial court conducted a hearing in Jun 1998 on the issues of cus tody and chi

ld support. Mr. Steagall, as the movingparty, had the burden of proving that there had bee n a material change in the child’s circumstances and that it would be in the child’s best interests to change custody. He undertook

to carry this burden by sugg esting that the trial court interview the p arti es’ son in chambers and by pres

enting his own tes

timony as wel

l as that of Ms . Ste agall. At the law yers’ request, the trial court interviewed the parties’ son in chambers before hearing the other witnesses. The lawyers were present during the interview, but the parents were not. 1 Thereafter, Mr. Steagall’s2 Ms. Steagall admit ted that she had ov erreacted when she thre atened to h ave Mr . Steagall arrested for kidnaping when he took their son to Wal-Mart to purchase tennis shoes after obtaining permission from the boy’s grandmother.

3 Ms. Steagall admitted that she had told he r son that she an d Mr. S teagall were sti ll marr ied in t he eyes of

God and that Mr. Steagal

l had si nned for marrying anot

her woman. She also admi tted that she had purchased a Bible for her
son to give his

father as a

Christmas present and that she had underli

ned in that Bibl

e the passage quoti

ng Jesus as saying “Whoever shall put away his w ife, and marry a nother, com mitteth adultery ag ainst her. ” Mark 10:11 (King James). Finally, she tes

tifi ed that “ at thi s present

time I s till really care deeply

for this man [Mr. St

eagall] and I care deeply for, you know, w hat might hap pen with him.”

4 Ms. Steagal

l objecte d to quest

ions suc h as: “How

many boo ks are in your hous e?” and “How many times do you rea d for your chi

ld?”
5 Ms. Steagall testified that the boy was “right at grade level” in ma thematics and social studies.

6 Ms. Stea gall also testified tha t “We’ve b een spend ing a lot of time in re ading his B ible.”

7 Mr. Steagall also te stified that he and his new wife had complied with Ms. Ste agall’s request and that the boy attends a Baptist church with his cousin when he is staying wi th his father. -3- lawyer ca lled Ms. Steagall as his first witness. Ms. Steagall’s testimony plainly did not help her
cause. Mr. Steagall’s l awyer wa

s able to elicit tes

timony that ma

de her appear e

xtremely overprotec tive 2 and unab le to accept that Mr. Steagall had

remarried and w

as moving on with hi

s life. 3

Most

significantly

, Ms. Steagall ad

mitted that her atte

mpts at home schooling had not been entirely successful. She co nceded that she had refused to permit the parties’ son to take the standardizedachievement tests until after Mr. Steagall filed his petitio n to change custody. She explained her

decision by saying that school officia ls had declined to permit her to examine the test in advance and be

cause she believed

that the test contained inappropriate personal questions about the household. 4 She also conceded that the parties’ son had recently t

aken a standard

ized test and that this test had revealed that he was two years below gra de level in science and that he was one year below

grade level in r

eading and lang

uage arts. 5

Mr. Steagall testified that he had initially agreed that Ms.

Steagall could h

ome school their son, even though he had

reservations about

home schooling. H

e stated that he be

came increasin

gly concerned

as time went on about what the boy was studying a nd his attitude abouthis homework. He estimatedthat

at least thirty percent of the school work was religious 6 and that he had observed
a “drop in . . . [his son’s] eagerness” to do his homework after Ms. Steagall withdrew the boy from publicschool. He also testified that Ms. Steagall had made visitation “as complicated as it could be” andrecounted how Ms. Steagall had instructed him not to permit their son to accom pan y h is new wife to Roman Catholic se rvices because

Roman Catholics were not going to heaven because they prayed to the Virgin Mary rather than to Jesus. Mr. Steagall expressed concer n that the parties’ son
was picking up on some of the prejudicial feelings that his mother has towards different religi ons and different kinds of people. 78 Ms. Steagal l test ified t hat her pa

stor had told her that

the school was u

naccredited because “they teac h them
more. Rather than ju st stayi ng down here, they

are w ay up here. ” She adde d that “Stan ford i s not a

ccredi ted, t o my understanding;

Harvard’s not accre

dited, to my un

derstanding. ”
9 Based on the trial court’s statements, even a

casual obs

erver woul

d have under

stood tha t the t rial cou rt did not intend to dism iss Mr. Stea gall’s petition to ch ange custod y. -4- Mr. Steagall also te

stified that Ms.Steagall had consistently refused to discuss his concerns about home schoo ling. However, after he filed his petition to change custody, Ms. Steag all indicated that she was considering enrolling their son in a small, unaccredited school operated by her church, calledLigh tho use Bapt ist Acad emy. 8 While on the witness s tand, Ms. Steagall confirmed that she haddecided to send th

e parties’ son to Lighthouse Baptist Academy beg inning with the next school year. However, she could provide little information about the school’s curriculum or activities other than to say that “they do the swimming and all the other sports.”
The case took an unusual turn at the close of Mr. Steagall’s proof. Ms. Steaga ll moved to dismiss Mr. Steagall’s p

etition to change custody. During

the colloquy that followed, Ms. Steagall’s lawyer conceded that the trial court’s concerns about home schooling were “legitimate” and

that the parties’ son was “underpe rforming pursua

nt the standardize

d test in home school

in g. ” He also conceded that Ms. Stea gallmay have been “a little bit overprotective.” However, Ms. Steag all’s lawyer insisted that the trial court could reme dy these matters without changing custody. He invited the trial court to enter a more specific visitation schedule, saying “that’s probably what should have happened a long time ago.” He also stated that it would be “legitimate” for the trial court to order Ms. Steagall to stop home schooling theparties’ son and t o “put him in some

sort of private school.”
Rather than ruling directly on Ms. Steagall’s motion to dismiss, the trial court construed her lawyer’s arguments as an invitation to a ddress the education and visitation problems she had acknowledged. 9 Accordingly, the trial court told the parties “what I would do if this wer e all the proof that I was going to he ar t oday.” After stating that the home schooling had been “ a failed experiment” and expressing concerns about the child’s “isolation,” the trial court stated:

I think what I would want to do if I weredeciding the case on the evidence before me is not to change custody yet, but rather

to split the time during the summer equally between the parties and then go back t o an arrangement during the school yea r where she was custodial, he hadevery other weekend and some additional time that would need to be worked out. With the addition that I would w ant him to act as custodial parent when he did have the child, because I don’t think we need the k

ind of control that

she thinks is approp

riate
on issues like trips to N

ew York. I do

n’t think he [Mr. Ste

agal l] needs to have to get her permission to do thin gs like that when he has the child.10 We are left to speculate about the r eason for this tactical

decision. It

could have been the lateness of the hour because at that time it was ap proachin g 5:40 p.m ., or it could have been the b elief that the parties had settled all the ir disputes. We ha ve conclud ed that the latter is more probable. Had Ms. Steagall’ s lawyer i ntended to present

additional evidence, he would have inquired when the trial would re sume. His inq uiry regarding the prepar ation of the or der is more consistent with a beli ef that t he parties’ disputes had been r esolved because an order would otherwise

have been
unnecessa ry. -5-

She has a lot of fears. Some of them in my mind are actually grounded in the fact that she ’s not past this marr ia g e yet. She’s not really over him yet. Some

of that is her religious beliefs, which I can respect – or I can respect that belief at any rate. But I think she is not getting on with her life a bit, and there’s some fears there. There’s control that she’s insisting on keeping that doesn’t reflect the reality of dangers to the child. During the ensuing discussion, the parties and the trial court beg an negotiating

the specific terms of the visitation ar

rangeme nts, Mr. Steagall’s modified child support obligations, which parent could claim the child as a dependent for federal tax purposes, and the possibility of awarding Ms. Steagall her attorney’s

fees. During the discussion regarding visitation during the summer of 1998, the following exchange between the trial court and Ms. Steagall’s lawy er occurred:
MR. WINGO: And then at the end of the summer, I guess when school sta

rts, he wo uld – Your Honor wo uld require him to g

o to regular schoo

l?
THE COURT: Yes.
MR. WING O: O kay.
THE COURT: We will ha ve to define reg

ular school.
On two occasions, the trial court declared a recess to enable the lawyer s to consult with their

clients about the terms of their agreement and to enable the trial court to discuss the proposed summer visitation arrangements with the parties’ child.
At the conclusion of these discussions, the parties had agreed to a modified specific visitation schedule and an i

ncrease in Mr. Ste

agall’s child

support. Without aski

ng the trial cour

t to rule on his motion to dismiss

and without calling any of the w itnesses who were

present to testify

on Ms. Steagall’s behalf, Ms. Steagall’s lawyer simply aske d the trial court if it was going to prepare the order containing theparties’ agre ements. 10 Mr. Steagall’s lawyer volunteered to draw the orde r after the trial court de

clined and assure

d Ms. Steagall’s l

awyer tha t he would send him a

draft.
Mr. Steagall’s lawy

er prepared a

n order reflec

ti n g his understand

ing of the partie

s’ agreements

withthe court. We surmis e that he provided

a copy of th

is order to Ms. Steagall’s lawyer11 Because thi s facsi mile was not included in the record, we cannot know with certaint y either the

content s of the facsimil

e or whether the facsimile was sent contempora neously to Mr. Steagall’s lawyer. W e presume that M s. Steagall’s lawye r also sent the fac simile to M r. Steagall’s lawye r because to do otherwise would have amounted to an inappro priate ex parte communicati on. Based on the tri

al court’s

response, it is safe to conclude that the facsimile must have dea lt with the public sc hool issue.
-6- since the copy of

the order prese

nted to t he trial court contained the signatures of both lawyers indicating that theorder was “approved for entry.” Reflecting the discussions during the June 12, 1998 heari ng, the or der (1) contained a well-defined visitation schedule, (2) provided that Mr. Steagall would have all the rights of a custodial parent while his son was visiting him, (3) increased Mr. Steagall’s child support from $70 per week to $116.19 per week, (4) provided that the parties would alternate claiming their son as a tax deduction, a

nd (5) ordered M

s. Steagall to refrain from making “gratuitous cr

iticisms” of Mr. Ste

agall in their son’s presence. In addition, the order directed Ms. Steagall to enroll the parties’ son in “public school.”
On July 8, 1998, apparen

tly after he signed the proposed order, Ms. Steagall’s lawy er sent a facsimile to the trial court apparently objecting to the portion of the order

directing Ms. Ste

agall to enroll the parti

es’ child in public

school. 11 On July 9, the

trial court sent the following letter by facsimile to the la

wyers for both parties:

I am in receipt

of John’s [Ms. Steagal

l’s lawy er’s] fax of July 8, 1998, at 4: 21 P .M.

At the end of the evidence in this case, I felt that Mrs. Steagall had made
some decisions ab out the rearing of . . . [the parties’ son] that raised serious doubts about her fitness to rai se the child in the absence o f active directio n by me. It was my understanding of

John’s closing statement that he and Mrs. Steagall were asking that I modify any un acceptab le custodial d ecisions by M rs. Steagall in lieu of changing custody ou tright to Mr. S teagall. I beli eve that if you will examine t he transcr ipt of the clo sing stat

ements, you wi

ll find t hat John made that “

offer.” I think you will also find that in a q uestion put to me by Joh n after I had b egun to
announce my opinion , he made re fe re nce to a cha nge to “pu

blic sch ool” and I
re spon ded in the a

ffir mative.It is

possible that t his exch ange was of

f the r ecord, but I do not believe t

hat it was. I may have b een asked by Barry [M r. Steagall’s lawyer] at some point what my ruling had been

at an earli

er poin t, but no part of my decision was announced in John’ s absence. I intended fo r the child to be in pub lic school. If

I misunderst

ood John’s offer t

o allow me to make what are ordinarily custodial decisions, and if Ms. Stegall [sic] is now insisting on her right to have the child in a paroch

ial school, then I think we need to resume the hearing. I want to revisi t the i ssue of c

ustody if my choice is betwe

en an “uns

upervise d” custody

by Ms. Stegall [sic] and custody by Mr. Stegall [si c].

I have to say agai

n that I am ut

terly amazed

that an elected member of

the Maury County Board of Education ref uses to have her

son in t he public

schools of Maury C ounty.

Please schedule t

he resumed hearing if we are goi ng to need one.12 According to the notice of appearance and brief filed by Ms. Steagall’ s new lawyer, The Rutherford Institute

is “nonprofit r

eligious based civil l

iberties or

ganization t

hat defends the rights of persons of all religious fait

hs throughout the United Sta

tes on a pro bono basis.. . . Protec ting the religious rig hts for all Americans in the f ace of dir

ect att ack on those right

s is the i nterest of

TRI.”
13 Page v. Turcott , 179 Tenn. 491, 503, 167 S.W.2d 350, 354 (1943) (circuit courts); Massen gill v. Masse ngill , 36 Tenn. App. 385, 39 0, 255 S.W.2d 10 18, 1020 (1953) (chancery courts).

14 Lawyers may file motions and othe r docum ents by facsimile o nly in the Sixteenth Judicial D istrict. In re Petiti on For Facsim ile Filings in the Trial Courts of R utherford County (Tenn. Dec. 20, 199 0). In other circumstances, the TennesseeSupreme Court has declined to appro ve the transm ission and filing o f docume nts by facsimile. Love v. College Level Assess

ment Servs., Inc. , 928 S.W .2d 36, 3 8-39 (T enn. 199 6).
-7- The record does not reveal whenor if Ms. Steagall’s lawyer ever responded to the trial court’s July 9, 1998 letter. What is certain is that on July 10, 1998, the trial court entered the order prepared by Mr. Steagall’s lawye

r and signed by both counsel. I t is also cert ain that Ms. Steag all
never attempted to s ched ule the “resumed hearing” mentioned in the trial court’s letter and never fileda Tenn. R. Civ. P. 59 motion to alter or amend the judgment. Instead, Ms. Steagall replaced her lawyer with another lawye r furnished to her without charge by The Rutherford I nstitute 12 and filed a notice of

appeal.
I.
At the outset, we express our concern about the effect that t

he informality

of the proce edings during and after the June 1998 trial had on the appellate record. Both the trial court and counsel for the parties appear to have l ost sight of th e fact that Tennessee’s civil trial courts are “courts of record” 13 whose proceedings are governed by the Tennessee Rules of

Civ il P roce dur e. A ccor din gly, all motions or other applications to the trial court for an order, unless made during the course of a trial, should be in writing and filed with the court. Tenn. R. Civ. P. 7.02(1). Similarly, all of a trial court’s orders and judg

ments, excluding rulings made during the course of trial, should be reduced to writing and entered on the minutes. Allen v. McWilliams , 715 S.W.2d 28, 29 (Tenn. 1986).
As far as this record shows , the July 8, 199 8 facsimile sent by Ms. Steagall’s la

wyer to the trial court was not presented in the form of a motion and was never fo rmally file

d with the trial cou

rt. We know nothing of its substance, and we know of its existence only because the trial court referred to it in its July 9, 199 8 facsimile to the lawyer

s. While the relianc

e on facsimile tec

hnology is

now widespread in the

legal professi

on, its applicati on in judi cial proceed ings is limited. 14 To conform to the plain require ments of T enn. R. Civ. P. 7.02(1), Ms. Steagall’s lawyer should have communicatedhis client’s disagreement with the proposedorder prepared by Mr. Steagall’s lawy er using a written motion duly filed with the trial court and entered on the permanen t records of the court.-8-

This case is also another example of the problems that can occur when a trial

court chooses to communicate its decisions to the parties using some means other than an order e nter ed on its minutes. Like the July

8, 1998 facsimile f

rom Ms. Steagall’s lawyer, the trial court’s July 9, 1998 facsimile to the parties was apparently never entered on the trial court’s minutes. Accordingly, the trial court’s decision– which isof pivotal importan ce in the case – w

ould have been mis sing had Ms. Steagall’s appellate lawyer not requested that his client’s copy be included in the record. The trial court should have responded to Ms. Steagall’s lawyer’s July 8, 1999 facsimile with a written order that could have be

en entered on the

minutes of the cour

t.
Notwith standing t hese shortcoming s, we have piece

d together the e

vents that most likel

y occurred in the trial court. If we are mistaken in any particula r, our error is due, not to a lack of effort to read the tea

leaves we have b

een provided, but

rather to the lac

k of an adequate

appellate record. We are, at least, confident that the record, such as it is, provides an a

dequate factua

l basis for our disposition

of this appeal.
II.
The outcome-determ

inative issue in this

case does notinvolve Ms. Steag all’s decision to homeschool the parties’ son. It is axiomatic that follow ing a divorce, the parent gra nted sole custody of a child ha s the preroga tive to mak e the major d ecisions r egarding the c hild’s upb ringing, subjec t of course to the court’s oversight. Neely v. Neely, 737 S.W.2d 539, 542 (Tenn. Ct. App. 1987). Thus, in the absence of some limitation imposed by the courts, the custodial parent has the solepower to

determine the co

urse of a child’s education. Hoefler v. Hoefler , No. M1998-00966- COA-R3-CV, 2001 WL 327897, at *5 (Tenn. Ct. App. Apr . 5, 20 01) (No Tenn. R. App. P. 11
a pplication filed). The courts should interfere as little as possible with post-divorce family de cisions , Adelsperger

v. Adelsperger , 970 S.W.2d 482, 484 (T enn. Ct. App. 1997). Acco rdingly, th

e courts should decline to second-guess a custodial parent’s decisions regarding hi

s or her child’s education unless these decisions are contrary to state law or harmful to the child. Rust v. Rust , 864 S.W.2d 52, 56 (Tenn. Ct. App. 1993).
Homeschooling is an educationalalternative that is entirely consistent with state law. Rust
v. Rust , 864 S.W.2d at 56. Thus, Ms. Steagall’s dec i sion to home school the parties’s son, in and of itself, is not subject to judicial review. However, the question d oes notend there. The c ourts may, and in fact m

ust, intervene when they

are presented w

ith competent evid

ence that the home schooling in aparticular

case is harming the child. Evidence that a child is being adversely affected by homeschooling provides the trigger required by Tenn. Code Ann. § 36-6-101(a)(1) (Supp. 2000) because it su bstanti ates the existence of a change in t

he child’s circu

mstances that is ad

versely affectingthe child in a material way. See Hoalcraft v. Smithson , No. M2000-01347-COA-R10-CV, 2001 WL 775602, at *17 (Tenn. Ct. App. July 10, 2000) (No Tenn. R. App. P. 11 application filed); Gorski v. Ragains , No. 01A01-9710-GS-00597, 1999 WL 511451, at *3 (Tenn. Ct. App. July 21, 1999) (No Tenn. R. App. P. 11 application filed) (requirements for changing custody ).15 There is no direct or indirect indica tion in th is r ecord that Ms. Steagall ever withdrew her objection to the

portion o f order eve ntually filed on Ju ly 10, 199 8, directing he r to enroll the p arties’ child in pu blic schoo l. -9- The trial court found that Ms. Steagall’s efforts at home schooling were a “failed experiment.” The record contains ample evidence to support this conclusion, and evenMs. Steagall conceded that home schooling

had harmed the pa

rties’ son. Her

lawyer admitted that the trial court’s
concerns about t

he child’s l ack of achievement were “legitimate,” and Ms. Steagall herself state d that she had decided to discontinue home schooling beginning in the 199 8-1999 school year. Acco rdi ngly, the propriety of home schooling as opposed to other educational experiences is not before the court in this case.
Sim ila rly, the outcom e of this cas e does not h inge on whether the July 19, 1998 order was
an agreed order. To be sure , partie s ordinarily may not challenge orders they have agreed to and acknowledged

in open court. Harbour v. Brown , 732 S.W.2d 598, 600 (T enn. 1987); REM

Enters., Ltd. v. Frye , 937 S.W.2d 920, 922 (T enn. Ct. App. 1996) . However, even if a party h

as initially agreed to an order, it is free to withdrawits agreement a ny time before it is formally accepted by the trial court in open court or signed and entered as the judgment of

the court. Thus,

in the words of th e Tenn essee Supreme Court, “a valid consent judgment cannot be entered by a court when one party withdraws his [or her] consent and this fact is communicated to the court prior to the entry of the judgment.” Harbour v. Brown , 732 S.W.2d at 599.
Viewed in its most charitable light, Ms. Steagall and the trial court had different understand ings about the significanc e of the trial court’s insistence that the parties’ son could be required to attend “regular” school. In using this phrase, the trial court evidently mean t “p ublic school.” However, Ms. Steagall evidently understood the phrase to mean any school other than homeschooling. This misunderstanding came to a head when Ms.

Steagall’s lawy

er sent a facsimi

le to the trial court

o n July 8, 1998, apparently objecting to the provision in the proposed order requiring her to enroll

the parties’ child in public school. Based on the record before us, there is no question that Ms. Steagall never specifically

agreed in open

court to send the pa

rties’ child to publ

ic school and that her lawyer communicated the withdrawal of her consent to the proposed order before the trial court enter

ed it on July

10, 1998. Accordingly, the trial court should not have entered the proposedorder

on July 10, 1998 containing the provision directing Ms. Ste

agall to enroll th

e child in public school unless it received an additional communic

ation from Ms. Stea

gall after its July

9, 1998 facsimile stating that she had withdrawn her objection to the proposed order. 15

III.
The outcome-determ

inative issue in this

case involves w

hether Ms. Steagall is entitl ed to seek appellate relief from the trial court’sJuly 10, 1998 order. Even when a trial court commits

plain error, the aggrieve

d party will n

ot be entitled to re

lief on appeal if

it was responsible for the error or if it “failed to take whatever action was reasonably available to prevent or nullify the harmful effect of . . . [the] error. ” Tenn . R. App. P. 36(a). B ased on this recor d, Ms. Steagall c

ould have easily nullified the harmful effect of the trial court’s July 10, 1998 order but deliberately chose not to.16 We are not sayi ng that th

ere would have not hav e been an appeal follo wing the resum ed trial. Had the trial court dismissed Mr. Steagall’s petiti on to change custody, Mr. Stea gall may very well ha ve ap peal ed. On the othe r hand, had the trial

court decided to award Mr. Steagall custody of the parties ’ chil d, Ms. Steagall coul

d, and probabl

y would, have appealed . Howeve r, in that circumsta nce, the issues w ould have involved w hether the trial co urt had an ad equate basis to chan ge custody. -10- Unless Ms. Steagall withdrew her objection to the proposed order, the trial court should not have entered the orde

r requiring tha

t Ms. Steagall enr

oll the parties’ c

hild in public school

. However, on July 9, 1998, the trial court informed Ms. Steagall’s lawyer that it would “resume the hearing” if its understanding of the parties’ agreement during the June 1998 hearing was inc

orrect. In fact, the trial court invited Ms. Steagall’s lawyer to “resche dule the resumed h earing if we are going to need one.” Based on this unequi vocal offer, it is clear that the trial court would have resumed the trial

had Ms. Steagall so requested prior to July 10, 1998, and that the trial court al

so would ha ve vaca ted its July 10, 1 998 order and re sumed the trial had

Ms. Steagall file

d a timely Ten n. R . Ci v. P . 59 .04 mot ion to a lte r or ame nd. Ms. Ste agal l ch ose not to p urs ue ei the r rem edy.
This court has held tha

t a party wh

o declined four o

ffers for a mistr

ia l could not ob tain appellate relief f r om the error that would have entitled her to a mistrial. Harwell v. Walton , 820 S.W.2d 116, 120 (Tenn. Ct. App. 1991). While Harwell v. Walton is couched in terms of “waiver,” Ms. Harwell in r eality forfeit ed her right t o appellat e relief by faili ng to pursue the relie f readily available to

her – the mistrial – that would have nullified the harmful effect of the error in the trial
court. Li ke the trial court’s offers of a mistrial in Harwell v. Walton , the trial court in this case offered to resume the trial to enable Ms. Steag all to present wha

tever evidence

she could

muster to su pporther d ecision to send the parties’ child to Lighthouse Baptist Academy. Ms. Steagall, for
reasons of her own, decided not to accept the trial court’s offer. Had she done so, this

appeal would have been ent ire ly un nece ssa ry. 16 Acco rdi ngly, in accordance with Tenn. R. App. P. 36(a), we have concluded that this appeal must be dismissed.
IV.
We dismiss thi

s appeal a nd affirm the judgm

ent of the trial cou rt. We remand the case

to the trial court for whatever further proceedings may be required

consisten t with this o

pinion. We

also tax the costs of this appeal to Nancy Rose Steagall and her surety

for whi ch ex ecut ion , if nece ssa ry, may issue.

_______________________________________ WILLIA M C. KOCH, JR., JUDGE