# FILED
June 19, 1996 Cecil W. Crowson Ap pellate Cou rt Clerk IN THE COURT OF AP PEALS OF

TENNESSEE, WESTE RN SECTION AT NASHVILL E

_______________________________________________________ ) SHARON LEE WRAY ALLEN, ) Lawrence County Chancery

Court ) No. 6524-95 Plaintiff

/Counter- Defend ant/Appe llant. ) ) VS. ) C. A. No. 01A01-9511-CH-00505 ) JEFFREY KEITH WRAY, ) ) Defendant/Counter-Plaintiff/Appellee. ) )

______________________________________________________________________________ From t he Cha ncery Cou rt of Lawr ence Co unty at Lawre ncebu rg. Honorable Jim T. Hamilton, Judge
Randy Hillhous e , FREEMON & HIL

LHOUSE, L awrenceburg, Tenne ssee Attorney for Plain tiff/Coun ter-Defendant

/Appella nt.

Paul Bates , Christophe r V. Sockwe

ll , BOSTON, BATES & HOL T, Lawrence

burg, Tennessee Attorney for D efendant/Counter-Plaintiff/Appellee.

OPINI ON FIL

ED: AFFI RMED AS M ODIFIED AND REMA NDED

FARMER, J.
CRAWFORD, P.J., W.S. : (Concur s) HIGHERS, J. : (Concur s)These post divorce proceedings were begun when Sharon Lee Wray

Allen (Mother) filed a petition

seeking to modify

the divor ce decr ee by awarding her custo dy o f the par ti es’ two minor children, Steven and Staci. Jeffrey Keith Wray (F ather) answered and petitioned the trial cour t to grant h im sole cus tody . Mother a ppeals f rom t he jud gm ent of the trial court which changed custody from joint custody to custody to Father

and limited Mother’s visitation.
Shortly before the p arties were divorced, they executed a Marital Dissolution Agreement

(MDA) a

greeing to join

t custody with the children to

live with Father, a

nd Mother

to have visitation on alternating weekends. She was to pick up the children at sc h ool on Mo nd ay, Wednesday and

Thursday and pic

k up only their daug

hter Staci on Friday. Father was to pick the children up at Mother ’s reside nce on tho se evenings at approximately 6:00 p.m. Staci was to spend Tuesday night wit h Father’s parents and Steven to spend Friday night with them. The MDA, which was inco rporate d into the d

ivorce d ecree , made no other spe cific pr ovisions f or holida ys.

The orde r appea led from p

rovides i n pertine

nt part a s follows:

Sharon Lee Wray

Allen is award ed visit ation privileges with the parties’ minor chil dren as f ollows: Forty-e ight (48) hours every

other weekend from

6:00 p.m. on Fr id ays until 6:00 p.m. on Sundays as concerns Staci and f rom noon on Saturday until 6: 0 0 p.m. on Sunday every other weekend as concerns Steven. The father

will have the children for the Easter holiday s from 6:0 0 p.m. on the day that school recesses until 6:00 p.m. on the day before school resumes in odd yea rs and the mot h er will have the childre n during said per iod in eve n ye ars. T he father

will have

the child ren fro m 6:00 p.m o n Frida y until 6:00 p.m . on Sunday on Fathe r’s Day w eekend regardless of whose weekend it is for visi ta tion and that the mother will have the chil dren on Mother’s Day weekend regardless of w hose weekend i t is for visitation. The father

will have the children on Memorial Day weekend from 6:00 p.m on F

riday until the f

ollowing Monday at 6:00 p.m . in even years a

nd the mother will have the children du ri ng sa id ho li da ys in odd y ears. The father will have thechildren on 4th of July weekend from 6:00 p.m. on Fr

iday until the next fo llowing M onday in odd years a

nd the mothe r will hav e the chi ldren dur ing said holiday in even y ears. The father

will have the children on Labor Day weekend from6:00 p.m. on Friday until the following

Monday at 6:00 p.m
. in even ye ars and the mothe

r will hav e the chi ldren dur ing said holiday s in odd y ears. T he father

will have the child ren for Thanksgiving hol

i day s from 6:00 p.m. the Wednesda y be fore Thanksgiving Day until 6:00 p.m. the following Sunday before school resumes after Thanksg iving ho li da ys in od d ye ars and the mother will have the children during said per iod in eve n ye ars. The mother

will have the children every Christmas vacation from the day that scho ol rece sses for

Chris tmas h olidays until 6:00 p.m. Christmas Eve provided that the father will have said children for the remainder of the Christmas holiday each and every

year. The mother wi ll have the childr en for tw o full wee

ks inth e summer of 1995 to coincide with her summer vacation from Perry Enterprises provided she will notify the father at least one week prior to the commencement of said vacation in 1995 and y ear s ther eafter wi ll notify

the father not la

ter than May 1 of said v acation

date s i n order for the father

to have a n opportun

ity to have the children for a like vacation. The weekends for M other’s Day, Fa t her’s Day , Memorial Da y, Labor Day , Easter, and Thanksgiving sha

ll take priority over

any other schedule of alternating weeke nds, so a parent with the holiday wee kend privilege shall have the children, even if he or she had th e ch ildren the immediately prec eding weekend. However, to a voi d three consecutive weekends with the same pa rent as a result of said holi da ys, any alterna

ting shall begin anew with the other pare nt getting the weekend privileges immediat el y following sa

id holiday weekend. Likewise, if the Christmas period includes a weekend that would otherwis e have b een for the other, the other shall have the children for the next weekend thereafter with an y a lternating sche dule beginning anew. The Mother will make arrangement s to see that the children are at thei r ball games; or in the alternative will wait to pick the childre n up afte r the ball games
. In the event

that an extracurricular activity , which the minor children consider

important , presents itself, the father, in good faith, will notify the mother

at least 72 h ours in ad

vance o f the pick up time o f this activity; and the mother, in good f aith, will honor the mino r childre n’s requ est to pur sue these activitie s. The mother wi ll have a

ccess to the child ren’s g rades, medical treatme nt, medical records; and she will be notified of the children’s extracurricular

ac ti vities inc luding ba

ll game s, school p

rogra ms, recitals, etc.
Mother pr

esents the following issue s on appe al:

I. Whether the Trial Court erred in talking to these y oun g children over the

objectio n of appellant without deter mining their ca pa ci ty t o t es ti fy.II. Whether the Trial Court erred i n limiting

the timethe noncustodial parent has to visit with her children. III. Whether the Trial Cour t erred by f ailing to award custody of two young

children with [sic] their mother.

We will addr

ess first the custody issue. The trial c ourt may modify a decree awarding
cus tody upon finding a material change in circumstances. Musselman v. Acuff , 826 S.W.2d 92 0 (Tenn. App. 1991 ); Dalton v. Dalton , 858 S.W.2d 324 (Tenn. App. 1993). Cus tody decree s remain within the control of the court

and are subject to such changes or modifications as the exigencies of the case ma

y r equire. T.C.A. § 36 -6-101( a); Dantzler v. Dantzler , 665 S.W.2d 385 (Tenn. App. 1983). The paramount consideration in a custody proceeding is the best interest of the child.

At the time of entry of the divorce decree, Steven and Staci wer e ag es 8 a nd 5
re sp ec ti ve ly. The modifying order was entered approximately one yea r later. The record revea

ls that Staci is a well-adjusted child and appears to have a g ood relationship with both parents. Steven has experienced

a difficult childhooddue to a medical problem which ha s resulte d in his exhib iting antisocial behavior

on numero

us occas i ons. He w as initially diagnosed and w as treated for attention deficit with hy

peract ive disor der (AD HD) but w as subseq uently diagno sed as Psy

chosis NO S.

Anne Austin Fotrell, M.D., a psyc hiatrist board certified in adult psych iatry and boar

d eligible in ch il d p syc hi at ry, testified by deposition. She testified that the history she obtained from Steven’s parents was that, around the birth of his sister, he bega n to exhibit hyperactive behavior. He began to exhibit aggressive beha vior, disorganized thinking, confusion a nd in gener

al beca me extremely difficult to control in school environment. He has been ex cessively ag gressive and difficul tto focus, especia

lly in the school setting, such as hitting others and destroy ing property . He
was initially treated for AD HD which, in Dr. Fotrell’s opinion, he clearly does not have a

nd, in fact, the medication for that illness made him worse.

Based upon psy cholog ical test

i ng by Dr. Joseph LaBarbe ra, a psychologic al examine r, Steven appeared to be psy chotic, an inability to distinguish reality from fantasy

and an inability t

o org anize one’s thoughts in a coherent fashion. This conclusion was reach ed by Dr. F

otrell, Dr. LaBarbe ra and Dr. B arbara

Olsen, a pediatr ic neur ologist. Dr. Fotrell first saw Steven the end ofMarchor the first of April 1995. She felt that his problem was a phy sical problem with external

situational exacerb ating f eature s, meanin g that hi s problem is aggravated by

stimulus to which he is exposed in his everyday life. It wa s her fe eling a

t that time that he was psyc

hotic because he was anxious. He was started on an anti-psy chotic medication in which he has responded quite well.

After performing several tests, it was determined that Steven is psychotic, probably
as a permanent condition. However, follow-up pleased Dr. Fotrell in that Steven had done well on medication (Risperdal). Her diag nosis was P syc

hosis NOS (not otherwise specified) which means that she could not p in any

sort of e tiology to his psychosis. The psy chosis of his type is considered
an abnorm ality in brain chemistry . If he were an adult, she would term him schizophreni c . Continued treatment

will consist of medication and she considers his environment to beinstrumental in his treat

ment in tha

t a child w

ho is psy chotic ha s specia

l needs in terms of

their en vironmen t. They do not nee d to be ove

rstimulated. They

need fa irly consiste nt structu re and r outines.

She felt he had shown improvement and it was crucial that he stay in a reg ula r classroom

as long as possible. It was her rec ommendation that he have a stable structur ed lifest yle and no corporal punishment. She recommended that he not be involved in any sort of conflict inapprop riate fo r an 8 y ear old, that he be

left out of

adult dec isions.

With respec t to his schedule, including spending Friday night with his paternal grand parents , she felt i

t was impor

tant that h

e have a n establis hed sche dule with n ot a lot o f deviation, that he is the type of c hild who would benefit maybe from a calendar on the refrig erator
on which he

could mark off day s and see “these are the day s I am going to be here” or “these are the da ys I am g oing to be

there” so he know s well in adva nce. She

felt it wou

ld be detr imental to deprive him of wee

kly visits with

his paternal grandparents as he is ver y attache d to them. Going to places he did not want to go would make him anxious and in this ch ild “anxiou s is bad news.” She advised against taking him out of school before sc hool had dismissed.

He has been

to her of fice on a number of

occasio ns and wa s brought each t ime by his father and stepmother. His mother attended one session. During his sessions, Steven v oiced t hat he was afraid of his stepfather, didn’t like him because he spanked him too hard. He would not ta

lkmuch at all about his mother, des pite repeatedinvitations to do so. Dr. Fotrell also was of the

opinion that decisions regarding visitation, for example, should be made by the adults and not by Steven.

Mother

testified that she no longer worked at Murra y and is presently employ

ed at Perry Enterprises working from 7 to 4 Monda y th

rough T hursday and ge ts off at 1 :00 on Fr

iday s. (We assume she meant 7:00 a.m. to 4:00 p.m.) If awa rded custody, he

r grandparents and a neig

hbor who has a day c are would keep the children when she was not at home. She described the episode when Jeff Allen

(her pr esent hus band) spa

nked Stev en and sa

id that she h ad had lit

tle visitation since that time. Th is occurred before she and Mr. A llen married. She allowed him to spank Steven because Steven had thrown an object at Mr. Allen.

Staci has never been

a behavioral pro

blem, is do ing well in school and has continued to visit her mother on a regular basis and g ets al on g well with Mr. Allen. Mother described three incident s wh en her former husband lost his temper in the presence of the children. She al s o described an incident

when he was screaming

at her in the presence of the children a nd asked Staci if she wanted to live with him or Mr. Allen. She testified on cross that she had never attended any of the ADHD support meetings since the divorce.

She met with

Dr. Fotrell twice and none with Drs. Olsen and LaBar

bera. However, she said that her former husband would not tell her about these appointments until the day before. She related an incident when Steven was at the hospital and she inquired about a Sunday afternoon visit and was told by the staff

that he had left with his father. When she asked Stevenabout it he said that the staff had taken him to the fun center. When she let him know thatthe staff had told her that his dad had ta

ken him he

said “we ll, since you alre ady know I guess I ca

n tell you the truth.” When she aske d him who tol d him to lie t o her he s aid daddy

made him do it.

Father teaches and coaches football a t the high school le

vel. He tes tified tha t Staci has a good relationship with her mother. B oth pare

nts testifie d that the

childre n should re

main together. He testified that he had never told Steven he could not go for visitation with his mother.He described h is sche dule as arriving at school between 7:30 and 7:45. He takes Steven to Lawrencebur

g Public School. Football practice had been ending between 4:30 and 5:00 butwith the new block schedule will be ending around 4:00 at the latest. His prese nt wife does not work outside the home. He attends th e Fresh men or B Team g ames at h ome and Ste ven usua lly accompanies him if he has done his homework . Staci accompanies him to basketball games. He denied ever running down his ex-wife in the presenc e of the children.

He admitted that Steven had a “horrible school y ear” the previous y

ear. He testified that he has noti ced a co nsid erable change in Steven s ince tak ing Rispe rdal. Pri or to this medication, Steven had a ha

rd time co ntrolling

his emotion s, instanc es of hallucin ation and i napprop riate reaction to normal circumstances. He was the one that made the arrangements for Steve n to be seen by t he healt h care pr ofession als and th

e only assistanc e his former wife offe red was to keep Sta

ci. During the fi fteen d ays Steve n was h ospi tali zed, he mad e nine trips inclu ding ta king him and returning him home. He also attended family counseling sessions. Although Mother told them she would attend one of the s essions, s he did notattend. The counseling sessions dealt with how to deal withSteven when he was released from the hospital and is called After Care. Mother attended none of these sessions.

He did not take summe

r employ ment during the pa st y ear so he could spe

nd mo r e time with the children. When it was believed that Steven was suffering f rom ADHD, Father scheduledhis hours of in-service training on how to deal with children with this problem. He stated that the children are very

close to his parents a

nd Steven has spent every Friday nig

ht with them since he was 2 years old. He denied that he had conditioned Steven to be afraid of Sharon’s husba nd but, to the

contrar y, h ad encourage d him to visit his mother. He attends practically all of Steven’s baseball practices, but

to his knowledge Mother has not attended any . He believes that Steven’s fear of Jeff Allen is genuine.

Father testified that Mother did not attend any of the ADHD mee

tings. She

also did notattend any M Te am meetings, which was described as where teache r’s aides, the administrator and parents are involved in a group discussion to plan an I EP (Individualized Education Pl an) for the student. He testifiedthat Steve n told him that Jeff Allen had spanked him on one occasion, abouttwo weeks after Sharon and Jeff were ma rried, for spilling popcorn.

It is apparent from our review of this reco rd that the relation ship of the

parentsis such that joint custody is no longer wor kable and not in the best interest of the children. As this Court said in Dodd v. Dodd , 737 S.W.2d 286, 289-290 (Tenn. App. 1987):

There needs to

be one residence, one

haven in all the storms of life, including those stor

ms whipped

up by the winds o f divor ce. There needs to be one parent

with primary control and r esponsibility for the upbringing of

the part ies’ chil dren, wh

enever possible. Custody , in re al it y, means re sponsibilit y for the care, nurture

and development of the mental, emotional andphysical needs of the child. The custodial parent should expect and receive cooperation and assistance from the non-custodial parent i n every respec t to serve

the best in terests of their child or children.

Dodd , 737 S.W.2d at 289-290.

Our review i s de novo with a pre sumption tha t the tria l court’ s finding s of fact are correct unless the preponderance of the evidenc e i s o therwise . Rule 13( d) T.R.A. P.; Hass v. Knighton , 676 S.W.2d 554 (Tenn. 1984). The paramou nt conside

ration in a custody procee ding is the best inter

est of the ch ild. Chang ed circumstance s in this ca se include t he fact that both p arents have remarried, the children’s relationships w ith their respective stepparents and the fact that, as previous ly

noted, the relationship o f the par tie s is such th at joint cu stody is not work

able. B oth parentsagree that it would be in the best interest of the childre n for them to remain together. They have lived in their Father’s home, pursuant to the parties’ initial agreement, since the divorce. T hey appear to be well

- adj usted (which we recognize in Steven’s case is a relative term). The children have a good relationship with their Father and stepmother. The relationship with their stepfa ther, particularly

in Steven’s case, leaves much to be desired. Despite the seriousness of Steven’s medical problem, his stepfa

ther test ified tha t he and Moth e r do not discuss Steven’s problem and, when askedhow he was going to recog nize and take care of

it if he was not aware of it, responded “whe n we find out if he’s got one, we will take car e of it.”

Mother argues that the trial

court fa iled to ap ply the tender ye ars doctrine. Given the ages of the children, we seriously doubt the application of the doctrine to this case. However, whenapplica

ble, it is but one factor to be considered. Having reviewed this record, we do not find the evidence to preponderate again st the trial court’s finding that the b est inter

est of the childre n is
se rv ed by F at he r h av in g c us to dy.

With respec t to visitati on, the MD A did not make provisions for holiday visitation s. Given the circumstances of thi s cas e, we believe the trial cou rt exerci sed sound

discreti on in establishing a holiday visitation schedule. Howe ver, with respect to Staci, we do not find the evidence to prepond

erate in favor of a finding that it is in h

er best interest to vary the visita tion with respect to Mother picking her up at school on Monday , Wednesday and Thursday wi th Husband picking up Staci at Wife’s residence on those evenings at approximately 6:00 p.m. However, Mother should not take Staci from school prior to t he ending of the regular school day . During summer
va cation, we find no reason why Mother’s visitation on those three day s should not extend unti l approxima

tely 9:00 p.m. The judgment of th e t ri al co ur t i s m od if

ie d a cc or di ng ly. On the other hand,
we believe the evidence preponderates in favor of the trial court’s findings that Mother’s visitation with Steven be in accordance with the trial court’s decision.

At the time the trial c ourt in dicate d the desire to talk with the children, Mother’s attorney objected on the basis that the children were too y oung. Counsel’s statement to the court that “I don’t think the children are of an age th at you need to be talking to them. It would be over our objection” could be construed as a ref erence to T.C.A. § 36-1-106 (7) or the childr en’s ina bility to appreciate the obligation to testify truthfully in a court of law
.

In determining cus tody, the court is to consider all relevant factors, including the
reasona ble preference of the child if twelve y ears of age or older. The

court may hea

r the preference of the young er child upon request but the pref e rences of older children should normally be given greater weight. T.C.A. § 36-6-106(7). Every person is presumed

compete nt to be a witness unle ss otherwis e provided in the rules or by statute. Tenn.R.Evid. 601. Every witness is required to take an oath or affirmation before testify ing. Rule 603.
Age or mental status does not autom aticall y bar one f rom testifying unde

r Tenn.R.Evid. 601. I

f a witne ss is of suf

ficient c apacity

to unders tand th e obli ga tion of an oath oraffirmation, absent some rule or statute to the contrary , the witness is competent. The question of

compete ncy

is a matter for the trial court’s discretion. State v. Caughron , 855 S.W.2d 52 6, 53 8 ( Tenn. 1993), cert. denied, 114 S. Ct. 475 (1993). The defendant in Caughron argue d that th e failure of the trial cou

rt to ask the minor whether she understood the differenc e between telling the truth and a lie and whether she comprehended the importa nce of telling the truth rendered her competency

evaluation conducted before she testified inadequate. The trial judge asked the minor
some gener

al questio ns, such a s how she w as doing in sch ool and how her counseling was progressing and some questions about her awareness of the testimony . The supreme court ruled that the trial judge did not abuse his discretion.

As stated in Gotwald v. Gotwald , 768 S.W.2d 689, 697 (Tenn. App. 1988):
Only a child who has a due sense of obligation and sanctity of an oath, who understands the evil of lying a nd that such wrongdoing is punishable, or who, having sufficient natural intelligence, has been so instructed as to comprehend the nature of telling the truth a n d consequences o f a w illful fa lsehood ma

y pr operly be permitted to testify. State v. Nelson , Tenn. Cr. App. 1980, 603 S.W.2d 158.

Gotwald , 768 S.W.2d at 697.

Father’s attorney inquired a s to whether the court desired to talk to the children. At that pointMother’s attorney

objected stating “I

don’t think the children are of an age that you need to be talkin g with the

m.” The c ourt then

stated tha t he then w

ished toask them a few questions and the children were questioned in chambers with both attorney s and the court reporter present. There is no indication in the record that the children were administere d the oath. In addition to being questioned by

the trial judge, the child

ren wer e questio ned by

bothof the attorney s. Both children expressed a desire to live with their father.

These children are both under theage of twelve and the rec ord does not indicate that they were administered an

oath. How ever, w e find tha t any error in this reg ard is harmless . Rule 36(b) T.R.C.P. Excluding the statements of the child ren, the evidenc e does no t prepond erate a gainst the tr ial cour

t’s findin g that the best inte rest of th e childr en is ser ved by placing custody withth efather.

The judgment of the trial court is affirmed as modifi ed and this cause is remanded

for any f urther necessa ry procee dings. T

he costs of this ap

peal ar e taxed one -half to Jeffrey Keith Wr ay a nd on e- ha lf

to Sh ar on Lee Al le n, fo r w hi ch ex ec ut io n m ay i ss ue if ne ce ss ar y.

___________________________________ FAR MER , J.

______________________________ CRAWFORD, P.J., W.S. (Conc urs)

______________________________ HIG HERS, J. (Conc

urs)