### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE January 30, 2001 Session


### KEVIN JULIAN JOHNSON v. DONNA COL E JOHNSON
Appeal from the Chancery Court for Williamson County No. II-26076 Russ Heldman, Chancellor

No. M2000-00358-COA-R3-CV - Filed August 28, 2001

This appeal involves the dissolution of a ten year marriage. The trial court awa rded the husband a divorce after concluding that the wife was guilty of inappropriate marital conduct. The trial court granted custod

y of the par

ties’ three minor childrento the father and refused the mother visitation rights, and held her in cr

iminal contempt of c

ourt. The wife now appe

als. We have determined that the trial court prope

rly awarded custody

to the father but the trial court erred in refusing the mother visitation, and in convicting her of criminal contempt. Accordingly, we affirm in par tand reverse in part. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed in Part and Reversed in Part

W ILLI AM B. C AIN , J., delivered the opinion of the court, in which B EN H. C ANTRELL , P.J., M.S. and W ILLI AM C. K OCH , J R ., joined. John M. Cannon, Goodlettsville, Tennessee, for the appellant, Donna Cole Johnson. William Donnell Young

, Jr. and Thomas F. B loom, Nashville, Te nnessee, for the

appellee, Kevin Julian Johnson.
OPINION

The parties met

in 1984 while both were employed at N.E.S. Donna Cole became pregnant in 1987 with the partie

s’ first child. The partie

s began living t

ogether in July

1988. They e

ventually married in April 1989 and two months later, twins were born to the marriage.

The marriage was very

turbulent and the record is replete with instances of verbal abuse and episodes of violence.

On March 5, 1999, Mr. Johnson filed a complaint for divorce in the Chancery Court for Williamson County

on the grounds of irreconcilable differences and inappropriate ma

rital conduct. He sought custody of the parties’ children. He filed for an order o f protection alle ging that Mrs.-2-

Johnson had violent and destructive rages in front of the children including cutting his tires, breaking
a side mirror on his tr

uck, and shouting

obscenities a

t him. An e x parteorder of protection was issued.

On March 9, 1999, a show cause order was entered compelling Mrs. J ohnson to appear to show caus e why Mr. Johnson should not be awarded custody of the par ties’ three minor children. On that same date, the court entered a temporary restraining order removing Mrs. Johnson from the parties’ re sidence and placing cust ody of the chil dren with M r. Johnso n pending a h earing.

On April 28, 1999, the parties entered an agreed order allowing Mrs. Johnson to return to the marital residence, and providing that Mrs. Johnson would ter

minate all contac

t with her paramour, Mr. Harbison, pending the final hearing of the case.

On June 3, 1999, Mrs. J ohn son filed a counter-complaint for divorce on the grounds of irreconcilable

differences and inappropriate marital conduct. She also sought custody of the children. She filed for

an order of protection on June 9, 1999, alleging that Mr. Johnson had stopped the school bus she drove, knocked the sunglasses off of her face, cursed her, and committed other violent acts. An ex parte order of protection was issued.

On June 22, 1999, an order was entered providing alternating weeks of custody in the marital home and that Mrs. Johnson was restrained from any contact with Mr. Harbison.

On August 26, 1 999, Mr. J ohnson fil ed a petiti on for conte mpt allegin g M r s. Johnson continuedcontact wit

h Mr. Harbison in violation of the parties’ agreed order and the court’s restraining order, and that

Mrs. Johnson had the minor children at Mr. Harbison’s home. On October 7, 1999, Mrs. Johnso

n responded to the contempt motion admitting she spent time with Mr. Harbison.

The trial court e

ntered an order

on December 17,

1999, stating as f

ollows:
[T]he Court having heard sufficient proof to cause the Court concern for the physical and moral welfare and safety of the minor children of the parties based upon the admissions of the Defendant, Donna Cole Johnson, concerning her attitude toward this Court’s Orders and her attorney’s advice and directions, and the Cour t being of the opinion it now is compelled to issue a Pendente Lite Order pending the final judgment of this cause . . . .

The Final Judgment and Decree of Divorce was entered

on January 20, 2000, finding in p art:
As to the matter of the

divorce, the Cour

t finds Defendan

t has w ill ful ly lied and committed perjury in her testimony and on the case of Inman v. Inman , WL 122984 (Tenn. App. 10/18/92), the Cour t will not grant De

fendant any

affirmative re

lief in this matter and her Cou

nter-Complaint fo

r Divorce is dismiss

ed; that P laint iff is-3-

entitled to an absolute divorce from the Defendant on the grounds of inappropriate marital conduct; .

. . [T]hat considering the cases of Gaskill v. Gaskill , 936 S.W.2d 626, 634 (Tenn.App. 1996) and Suttles vs. Suttles , 748 S.W.2d 427 (Tenn. 1988) in making its decision regardingcustody and visitation as we

ll as the statutory

factors, demeanor and credibility

of the parties, of

the witnesses, the

Court awards sole

and exclusive custody of the t hree (3) minor children of the parties to Plaintiff; that Plaintiff is enjoined andrestrained from delegating any cor poral punishment on the minor children for disciplinary reasons or other reasons to any third party; . . . that as shown in Gaskill v. Gaskill , supra, a parent who is fundamentally dishonest, profane in his or her speech to children, does not obey the Court’s Order or the authority of the Court is not a good example to children; that if the adultery exposes the children to some physical, emotional or moral harm, then the adultery takes on greater significance

in the analyzing of fa

ctors; that it appears to the Court that Defendant would like for Plaintiff

to be dead, that De

fendant has n

o respect or

certain moral
norms c oncer ning telling the truth in court, con

cerning follow

ing court order

s, conc ernin g the adultery issue, concerning the speaking of pr oper language in the presenceof children, the Court finds if it permits Defendant the right of visitatio n it will indeed jeopardize

these children in both a physical and moral sense; that upon Suttlev. Suttles , supra, the Court s hall not grant De

fendant a n y visitation with the minor children of the parties because to set visitation requires visitation be set by CourtOrder and

Defendant has shown she cannot follow the Court’s Orders and the Courthas no confidence whatsoever these ch ildr en would be any

thing but morally andphysically jeopardized by being under Defendant’s care; that the only conta ct the Defendant

shall have is two (2) hours telephone privileges with the minor children, that being one(1) hour on Sunday evening and one (1) hour on Wednesday even ing, withDefendant beingenjoined andrestrained from making any derogatory remarks about Plaintiff/Father

or using any

profanity during these conversations with the children . . . .

. . . . It is further ORDERED, ADJUDGED AND DECREED Plaintiff is hereby awarded sole and exclusive custody of the three (3) minor children, Hank Johnson, JesseJohnson and Ka yce Johnson. Plaintiff is enjoined and restrained from delegatingany co

rpor al punishment on the minor children for disciplinary reasons
or other reasons to any third party. Further, Plaintiff is enjoined and restrained from using any corporal punishment on the minor children except as means of last resort or extreme circum

stances;

It is fu rther ORDERED, ADJUDGED AND DECREED Defendant shall have
no visitation or contact

with the minor children of the parties except as hereinafter ordered. Defendant is awarded telephone privileges with one (1) or all three (3) of the parties’ minor ch

ildren for one (1 ) hour from 7:00 p.m

. until 8:00 p.m. on Sunday-4-

evening and one (1) hour from 7:00 p.m. until 8:00 p.m

. on Wednesd ay evening. Plaintiff sh all p ut all three (3) mi nor children in a r

oom with the telepho

ne to talk withtheir Mother for

this one (1) hour on each Sunday and Wednesday. Defendant is hereby enjoined and r estrained from making any derogatory remarks about Plaintiff/Father

or u sin g any p rof ani ty d urin g these conversations with the minor children.

The appellant has presented this Court with six issues on appeal: whether the trial court erred in (1) admitting into

evidence illeg

ally obtaine

d audiotapes, (2) excluding witnesses and offers of proof from the appellant,

(3) awarding custody to the father; (4) terminating appellant’s visitation rights, (5) finding appellant in criminal contempt, and (6) entering an order for forged checkswithout
an amount or proof of

use of the funds.

We address the issues in the order pres ented by App

ellant.

AUDIO TAPES Appellant first asserts that the trial court erred in admitting into evidence illegally obtained audio tapes.

Prior to the 1994 amendments , the federal Omn ibus Crime Control an

d Safe Streets Ac

t, forbidding nonconsentual interception of wire and electronic commu

nications, did

not apply to the interception of conversations transmitted by way of r a di o waves from a cordless telephone. McKamey v. Roach , 55 F.3d 1236, 1995 FED App. 0180P (6th Cir. 1995).

Prior to Chapter 970 of the Public Acts of 1994, sections 1 and 4, now codified as Tennessee Code Annotated section 39-13-604, no Tennessee law prohibited recording and di ssemina tion of cordless telephone t

r ansmissions. Under this Act, “ ‘[c]ordless telephone’ means a two-way, low power communication system

consisting of two

(2) parts, a ‘ba

se’ unit which con

nects to the public switchedtelephone network and a handset or ‘remote’ unit, that are connected by a radio link and authorized by the

federal communi

cations syst

em to operate

in the frequency bandwidths reserved for cordless telephones.” Tenn. Code Ann. § 39-13-604(a)(3) . This st atute further provides that “[n]orecording of a

protected communication, or any information contained therein, may be used in ev idence unl ess such recording was obtained in accordance with the provisions of this section; provided, that nothing in this section shall be c

onstrued to precl

ude th e introductio

n of evidence derived independently from sources other than the record.” Tenn. Code Ann. § 39-13-604(f)(7).

Kevin Johnson’s sister and brother-in-law, Mr. and Mrs. Dotso n, lived across

the street from Mrs. Johnson. They u

sed a polic e-type scanner to intercept the telephone conversations between Mrs. Johnson and Mr. Harbison and other friends of Mrs. Johnson.

The evidence is clear that Mrs. Johnson was using a “remote” unit and that the scanner used by Mr. and Mrs. Dotson to intercept, record and disseminate he r telephone conversations violates Tennessee Code Annotated section 39-13-604.-5-

The tapes were admitted into evidence during cross-examination o f Mrs. Johnson for purposes of impea

chment.

When confronted on cross-examination about her intemperate and profane

language, much of which was in the presence of the children, Mrs. Johnson testified: Q. Now, you said that you used to us

e bad language. When did you stop using bad language? A. Since I got away from Kevin, I ’m in a better mood and I’m happier now and everything seems to be - - Q. What is the date of th at please ma’am? A. I don’t know. I would say Ma rch and April wer

e rough months, a

nd my language has drastically chang ed since then. Q. So you haven’t used any real ba d language since April of ‘99? A. I may have said a few. I don’t do it as much as I used to, is what I said. Q. Do you still use bad language? A. On occasion, but we h ave started the t

hing with me and th

e kids and Carl all of us that whoever says a bad word has to put a quarter in the jar. Q. Have you ever said that you didn’t g ive an F about the Court’s order? A. No. Q. You never said tha t? A. No, sir. THE COURT: When he says F, I assume y ou’re mean ing there is a bad word that come

s after it? MR. YOUNG: Yes, sir. THE COURT: With that clarification have you ever? WITNESS: Not that I recall, no. BY MR. YOUNG: Q. Your husband works for Nashville Electric Service? A. Yes, sir.

. . . . Q. Have you ever told anybody that you wanted the SOB to die? A. No. Q. Never done that? A. No, sir. Q. To die a horrible death? A. I have said that bec

ause Kevin - - I

said he would die. M

y father di

ed in January andI was going to take care of my father, we took shifts, maki ng them up to help my step-mothe

r to take care of

him because she w

as all on her own, a

nd he told
me have you fo

rgotten yo

u have responsib

ilities at home, and I ha d the house cleaned, the kids had done their homework, and I had cooked that night, a nd was gone to take care of my father and K evin call ed and told me I had forgotten I have responsibilities at home, for. I told him that for you saying that means y ou are going-6-

to die a horrible de

ath. My father had cancer for two years a nd two weeks before he died. Q. Have you

[ever] told anybody

that you hoped he died a horrible death, or that he suffered a lo

t, anything

like that? A. No, sir, I think

everything you do will come bac k to you, whether it’s on ea rth or when you die. Following thi s te sti mon y, co uns el f or M r. J ohn son off ered the ill egal ly i nte rcepted audio tapes of Mrs. Johnson’s telephone conv ersation s, with Carl Harbis on and with others,

for the purpose of impeaching the testimony of Mrs. Johnson. After considerable legal argument, the court allowed the audio tapes to be played. To say that the audio tape

s thoroughly

impeached the te

stimony of Mrs

. Johnson is an understa

tement. After playing the first tape, the following occurr ed:

THE COURT: Why did you tell the Court before Mr. Young played this tape that y

ou hadn’t said ce

rtain of these thin

gs? WITNESS: Whenever I’ m carrying on a conversatio

n I don’t rec

all everything

that I say. That was the eig hth time I had be

en arrest ed that week. H e wouldn’t let the kids call me on Thanksgiving. It was horrible. My uncle had passed away. It was a very

upsetting week.

I honestly

couldn’ t tell you wha

t I said yesterday, but I

know the kids weren’t there listening. They were at school. BY MR. YOUNG: Q. We have some more, ma’am. Your children have ne ve r been there and listened to that kind of language? A. I’m

not sure. We have started makinga jar where you have to put in a quarter for bad words. I never lowered myself to tapping the phone on Mr. Johnson. And I have known all along they had my phone tapped or

they couldn ’t have followed me to Columbia or the bowling alley or anything e lse.

While Mrs. Johnson did not consent to the inte rception of her t

elephone calls, i

tis difficult to conceive of how she could use the kind of language that she used in her telephone conversations withMr. Harbison and w

ith others when she knew all the time that her phone was being tapped. The ques t ion, however, is whether or not the illegally obtained tapes are a dmissible in evidence for impeachment purposes. There is case law that can be used to support the proposition that the trial court was not in error in admitting the tapes for impeachment of Mrs. Johnson. See Anthony v. Sta te , No. 02C01-9805-CC-00159, 1999 WL 569560, at *13 (Tenn. Crim. App. 1999); see also State v. Electroplating, Inc. , 990 S.W.2d 211, 226 (Tenn. Crim. App. 1 998); see also State v. Mason , No. 01C01-9509-CC-00288, 1997 WL 211245, at *9 (Tenn. Crim. App. 1 997); see also State v. Hopper , 695 S.W.2d 530, 538-39 (Tenn. Crim. App. 1985).
However, the statute is clear in its prohibition against admissibili ty as “evidence.” Tenn. Code Ann. § 39-13-604. It is clear th at in many ca

ses it has been hel

d that evidence in

admissible-7-

under the crimina

l exclusionary

rule may ne

vertheless admiss

ible for impeach

ment.
Evidence obtained through illegal means and, for that reason , rende red inadmissible

by the exclusi

o n ary rule, is nevertheless admissible to impeach the direct testimonyof the defendant in a criminal case, Walder v. United States , 347 U.S. 62, 74 S.Ct. 354, 98 L .Ed. 503 (1954), a

nd als o to impeach the defendant’s “answers to questions put to him on cross-examination that are plainly within the scope of the defendant’s direct examination.” United States v. Havens , 446 U.S. 620, 627, 100 S.Ct. 1912, 1916, 6 4 L.Ed.2d 559 ( 1980). This constitu tionally per

missible impeachment

is not limited to e vi dence that merely attacks the quality of a defendant’s testimony. Rather, Walder and H avens c learly authorize the use of “impeachment” evidence which is relevant to

substantive issues

and which usually implicates the defe nda nt o n th e ul tim ate iss ue o f gui lt. In th ese c ases , il lega llyobtainedphysical evidence used to impeach the defendant-witness would have cogently inculpated the defendant, were it not for the limi tations on use. See also Harrisv. New York , 401 U .S. 2 22, 91 S.Ct . 643, 28 L. Ed.2d 1 (197 1) (allowing impeachment

through the use of a Miranda -deficient confession). Nevertheless, as
a function of

the constitutional rule and not any evidentiary rule, such e vidence is not to be used in the “government’s direct case, or otherwise, as substantive evidence of guilt.” Havens , 446 U.S. at 628, 100 S.Ct. at 1917. Thus, under the constitutional rule, “impeachment” does not refer to precisely-cra ftedrules of evidence so much as it signifies a general policy

of not permitting “false testimony [to] go unchallenged.” Id. , 446 U.S. at 627, 100 S.Ct. at 1917. State v. Electroplating, Inc. , 990 S.W.2d 211, 226 (Tenn. Crim. App. 1998). The Supreme Court of Indiana addressed an analogous factua l situation:

In Beaber v. Beaber , (C.P. Stark Co. 1974) 41 Ohio Misc. 95, 322 N.E.2d 910, a trial judge held that neither the federal wiretap statutes nor the right of privacy unde r the United States Constitution preven ted him from listening to a husband’s wiretapping of a wife’s telephone conve

rsations in the mar

ital home. The cou

rt reasoned, in th

is divorce proceeding wherein child cu stody was in is sue, that he was on ly listening to the tapes for impeachment purposes. On the basis of other evidence before him, the judge thought that

the husband was in an “indefensib le position” without

the tapes, since the husband’s testimony alone seemed “ almos t unbelievable” until the tapes
were admitted, which tapes vindicated him and “completely obliterated” th e otherwise believable testimony of h is wife. Id ., 41 Ohio Misc. at 97, 103, 322 N.E.2d at 912, 915. The trial judge’s opinion was affirmed in an unpubli shed opinion by the Ohio Court of Appeals, Beaber v. Beaber , No. 4187 (Ohio App ., 5th Dist. , Aug. 4, 1975). Th e Ohio Court of Appe

als also saw the qu

estion as one o f admitting the wiretaps solely for purposes of impeachment, u

pon the issue of witn

ess credibility

relative to a l leged perjury in fraudulently obtaining a court order, rather-8-

than as a question of usi

ng such wir

etaps as substantive proof in the case, absent perj ury. Id ., slip op. at 14-15. The court concluded, after recognizing the federal line of authority th

at otherwise

unconstitutional evidence can be used for impeachment purposes, that:

“The law has justice not injustice as its purpose. Justice not injustice is the endsought by the United States Constitution, the Constitution of the State of Ohio, andby the laws of the United States, of th

e State of Ohio, and the Cou

rts. Although unde

r some other circumstances the tapes might be constitutionally inadmissible or their admission might be prohibitedby statute, under the facts of the instant case there
can be no justification for permitting the plaintiff to turn the method by which the tapes were obtained to herown advantage, and thus provide herself wi th a shield against contradiction of her own untruths.” In re: Marriage of Lopp , 378 N.E.2d 414, 701-02 (Ind. 1978). Appellant argues that

the trial court’s ruling on custody and visitation was based largely on the evidence presented from the audio tapes. Unlike Beaber v. Beaber , there is ample e vidence in this record, independent of the tapes, to support the act ion of the trial judge in both granting the divorce to Mr. Johnson and in awarding him custody. Under such circumstances, eve n i f the admission of the audio tapes into evidence wa

s error, such er

ror was harmless

c onsidering the evidence at trial supporting the trial court’s decision. It does not justify reversal on the m

erits of this
case. Hamm v. Hamm , 614 S.W.2d 366, 371 (Tenn. Ct. App. 1980); Tenn. R. App. P. 36(b).

The appellant ha s a prob lem controlling her temper and obscene language around her children. Testimony fr

om the parties and

witnesses at trial

reveals the unfi

tness of the appel

lant. The mother testified th

at she got into it wi

th her child’s teacher because the teacher told the father’s sister that the eldest child, Hank, had a learning disability. The mother testified that she did not consider the lea rni ng di sab ili ty a nyon e’s business and that it was not for the community to know about it.

Tim othy B ennett, Jesse’s baseball coach, testified that during a tournament game, the appellant cussed him out in

the dugout wher

e children were

present. She used profane language in front of the who le team, including her child. The children on the team were approximately nine years old. Michelle Bottoms testified that she attempted to calm the appellant down but it did not work so she got her own son

out of the dugout so he would not hear the language she was using. The father was not present but he apologized to Mr. Bennett for his wife’s behavior at a later time.

Mrs. Bottoms further testified that she saw the app ellant, Ms. Johnson, jerk her children aroundwhen the childre

n were youn

g and heard he

r make statements

that she would “sla

p the shit out of them.”-9-

Rick Hensel, Kayce’s baseball coach, testified that whe

n he was in

the middle of the ba

llfield the mother cussed him out using sexually explicit language.

Clark Presley also testified that he witnessed the mother using profanity on the ballfield. He also testified that when she arrived f or her wee k of custody at the martial home, she again used sexually explicit profanity.

Joann Johnson, Mr. Johnson’s mother, testified that the appellan t spit in her face in front of the children and used

profanity. Hank

Johnson, the parties’ eldest child, testified that he witnessed the appellant, his mother, spit in his paternal grandmother’s face.

A number of witnesses testified as to the appellant’s repeated use of sexually explicit profanity in the prese

nce of both her own ch

ildren and other c

hildren as she und

ertook to berate baseball coaches during the children’sball games. Thus, the tapes were a mino

r factor in determining the appellant’s unfitness as a parent. From the testimony at trial, it is clear that it is in the best interest of the children to be in the custody of the appellee.

EXCLUSION OF WITNESSES AND DENI AL OF OFFERS OF PROOF

The trial court found that Appellant had unclean hands applying the analysis of that doctrine found in Inman v. Inman , 1989 WL 122984 (Tenn.Ct.App. 1989). The trial court erred in applying the doctrine of unclean hands to the present case. “[U]nclean hands does not necessar ily repel a petition regarding the welfare of a child which predominates over any offended dignity of the court.” Haynes v. Haynes , 904 S.W.2d 118, 120 (Tenn.Ct.App. 1995) ( citing Strube v. Strube , 53 Tenn. App. 88, 379 S.W.2d 44 (1963) and authorities therein)). The primary concern is for the best inte

rest of the child.

In Strube v. Strube , this Court observe d:

The third ground, namely, that appellant comes into court with unclean hands might in some cases be sufficient justification for denying a hearing to appellant. As
was said by

Mr. Justice Cook, however, speaking for the Supreme Court in State ex rel. Daugherty v. Rose, 167 Tenn. 489, 71 S.W.2d 6 85, “When s uch proceedi ngs involve the custody of children, they are not decided according to the strict leg al right of the petitioner, but are dependent upon the child’s welfare.” And in State ex rel

. French v. French , 182 Tenn. 60 6, 188 S.W. 2d 603, Mr. Chief Justice Green, speaking for the Supreme Court, where a similar question was pres

ented, said, “I

f it be said that the father is in contempt of the Ohio courts, nevertheless w e think he might be heard if the welfare of the boy so dictated. The Ohio c ourts would not likely penalize the boy for the father’ s contumacy.” For the same reason, we think the father, in the instant case, is entitled to a hearing on the merits of his appeal.

Strube v. Strube , 53 Tenn.App. 88, 96, 379 S.W.2d 44, 48 (Tenn. Ct. App. 1963).-10-

The trial court refused to allow Appellant to submit certain offers of proof for excluded witnesses andto call the minor children as witnesses. Appellant argues that the

trial court erre

d in refus ing to allow Appellant to make her offers of proof which constitutes reversible error. Th e Ch ancellor

did not allow certain of Mrs. Johnson’s witnesses to testify or offer proof from thos e witnesses, James Borenstein, Ralph Head, or Lisa Coleman (the children’s guidance counselor ). It is error for a trial judge to refuse an o ffer of proo f. Geyer v. Geyer, No. 01A01-9707-CH-00372, 1998 WL 68934, at *4 (Tenn. Ct. App. Feb. 20, 1998).

At the trial, the Chancellor invoked the Rule for sequestration of witnesses upon request of counsel for Mrs. Johnson. The trial court, uponmotion of counsel for Mr. Johnson, excluded Mr. James Borenstein

as a witness because he and Mrs. Johnson spoke about the case. The trial court also excluded Mr. Ralph H ead because Mr

s. Johnson had calle

d him the day p

rior tohis appearance. The children’s prof

fered testimony

was provided to

the cour t so the trial court could determine whe the r to all ow t hem to t est ify.
“[T]he trial court is givenbroad discretion in deciding whether to exclude the testimony of witnesses who may have violated Rule 615. See Anderson v. O tte , No. 02A01-9402- PB-00023, 1 995 WL 116013, *4 (Mar. 15, 1995 Tenn. Ct. App.) . The trial court’ s determination wh ether to exclude witnesses who have violated the Rule w ill not be reverse

d unless the trial judge abused its discretion. Id . The Chancellor did not abuse his discretion in excluding the witnesses.

Lisa Coleman took the stand and counsel for Mr. Johnson objected on the grou nd o f hea rsa y. The court, after hearing arguments, determined that statements of the children to Mrs. Coleman wer e hearsay and sustai n ed the objection. The court did not allow offers of proof on these excluded witn esses. In Alley v. State, 882 S.W.2d 810, 815 (Tenn.Crim.App. 1984), the genera l rule wa s stated that “assuming a

n offer of proof

has been reas ona bly m ade, it is error f or the trial court

to refuse to permit counsel to state what evidence he is offering.” “The purpose of a

n offer is two-fo

ld. First, the proof informs the trial court wh

at the party intends to prove . . . [s]econd, an offer creates a record so t hat an appellate court can determine whether there was reve

rsible error in excluding the evidence.” State v. Torres , No. E1999-00866- CCA-R3-DD, 2001 WL 245137, *32 (Tenn.Crim.App. Mar. 13, 2001).

Rule 103 of the Ten

nessee Rules of Ev

idence provides , in part:

Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and

. . . . (2) offer of proof. - - In c ase the ruling is one excluding evidence, the substance of the evidence and the specifi c evidentiary basis supporting admission were made known

to the court by

offer or were

apparent from th

e context.-11-

Tenn. R. Evid. 103.

From the record before the Court, the offer of proof a s to Mr. Hea d concerned some conversation he had with Mr. Johnson outside the courtroom at oneof the hearings in July. As to the testimony of

the three children, the trial court examined written questions and answers involving the three children and while the court disallowed the testimony of the children, these questions and
answers appear in

the record. Assuming the testimony of the children would be consistent with the questions and answers app earing in the re

cord, it isdifficult to see how suchtestimony could have affected the outcome of the case. Although it was error for

the trial judge to

refuse the offers of proof, it is apparent from the context of the record that the offers of proof in the present case, more probably than not, would not have affected the ju

dgment in the cas

e or resulted in prejudice to thejudicial process . Tenn.R.App.P. 36(b).

Given the broad discre tion of the tria

l court in determining wh ether to exclude a

witness suspectedof violating Tenn. R. Evid. 615, State ex rel. Commissioner v. Williams , 828 S.W.2d 397, 401-402 (Tenn. Ct. App. 1991), and the context of the record relative to the offers of proof, any error of the trial court in this respect is harmless and not a basis for reversal. Tenn.R.App.P. 36(b).

CUSTODY AND VISITATION Next, Appellant contests the trial court’s award of sole custody to the father and refusal to grant visitation. Appellant asserts that the trial court ab used its dis cretion in the custody determination because of the father’s violent nature, refusal to support the children, and his illegal acts in proffer

ing the improper

ly admitted a

udio tapes.

The tr ial court relied on the case of Suttles v. Suttles , 748 S.W.2d 427 (Tenn. 1988) t o terminate visitation between Appellant and her three children. The trial court provided that theonly contact Appellant was allowed with her children was on the telephone which does not in any way constitute visi tatio n. In Suttles , the court held “the combination of [the Father’s] incarceration, the crime for which he is in prison, the age of the child, his history of violent behavior toward his son and[the Mother], and his

obvious need to dea

l with his violent temp

er make visitation

inappropriate at this time.” Suttles , 748 S.W.2d at 423.

This Court recently visited the issue of custody and visitation when a par ent was re fu sed visitation rights in Wix v. Wi x , No. M2000

-00230-CO

A-R3-CV,

2001 WL

219700 (Tenn.Ct.App. Mar. 7, 2001). In Wix , this Court stated:

Cus tody an d visitation decisions are among the most sensitive decisions confronting a trial court in a divorce case. Gaskill v. Gaskill , 936 S.W.2d 626, 630 (Tenn.Ct .Ap p. 1996). Rather than calling for heavy handed, authoritaria n intervention, Jones v. Jo n es , No. 01A01-9607-CV-00346, 1997 WL 80029, at *4-12-

(Tenn.Ct.App. Feb. 26, 1997) (No Tenn.R.App.P. 11 application filed), they require trial court s to exercise compassionate and practical judgment to devise an arrangement

that will promote the continuation and developm ent o f the child’s relationship

with both parents. Aaby v. Strange , 924 S.W.2d 623, 629 (Tenn. 1996); Taylor v. Tayl or , 849 S.W .2d 319, 331-32 (Te nn. 1993); Wilson v. Wilson , 987 S.W.2d 555, 564 (Tenn.Ct.App. 1998). Trial courts must not use these decisions to reward o r punish parents. Adelsperger v. Adelsperger , 970 S.W.2d 482, 485 (Tenn.Ct.App. 1997); Turner v. Turner , 919 S.W.2d 340, 346 (Tenn.Ct.App. 1995).

The goal of custody and visitat i on decisions is to pr

omote the child’s b

est interests by placing

him or her in an environment that will best serve his or her physical or emotional needs. Luke v. Luke , 651 S.W.2d 219, 221 (Tenn. 1983). No hardand fast rules exist for determining which custody an d visitation arrangement will serve a

c hild’s needs best. Taylor v. Taylor , 849 S.W.2d at 327 (Tenn. 1993); Dantzler v. Dantzler , 665 S.W.2d 385, 387 (T enn.Ct.App. 1983) . The inquiry is factually driven and requi

res the courts to c

arefully w eigh numerous c

onsiderations, including those identified in Tenn. Code Ann. § 36-6-106 (Supp. 2000). Nichols v. Nichols , 792 S.W.2d 7 13, 716 (Tenn. 1990 ); Rogero v. Pitt

, 759 S.W.2d 109, 112 (Tenn. 1988); Holloway v. Bradley , 190 Tenn. 565, 571, 230 S.W.2d 1003 , 100 6 (1950). The comparative fitness analysis is not intended to ascertain which parent has been perfect becau

se perfection is as

unattainable

both in marriage and in parenting
as it is in life’s other

activities. Rice v. Rice , 983 S.W.2d 680, 682-83 (Tenn.Ct.App. 1998); Bush v. Bush , 684 S.W.2d 89, 93 (Tenn.Ct.App. 1984)

. Courts understand that parents have the

ir own unique virtu

es and vices. Gaskill

v. Gaskill , 936 S.W.2d at 630. Accordingly, we do not expect parents to prove that they are exe mplary or that the other parent is completely unfit. Instead, they carefully consider

the conduct andcircumstances of the parents to determine which of the a vailable cu stodians is comparatively

more fit to have permanent custody of the child. Earls v. Earls , 2000 WL 696816, at *6; Gaskill v. Gaskill , 936 S.W.2d at 631. Custody and visit ation determinations often hinge on subtle factors, including the parents’ demeanor and credibility during the d ivorce procee

dings themselves

. Acco rdi ngly, appellate court s are reluctant

to second-gues s a trial court’s decision s. Trial courts must be able to exercise broad discretion in these matters, but they still must base their deci si ons on the proof and upon the appropriate application of the applicable

principles of law. Gaskill v. Gaski ll , 936 S.W.2d at 631; D v. K, 917 S.W.2d 682, 685 (Tenn.Ct.App. 1995). Thus, we review these decisions de novo on the record with

a presumption that the trial court’s findings of fac t are correct u

nless the evidence preponderates otherwise. Nichols v. Nichols , 792 S.W.2d at 716; Doles v. Doles , 848 S.W.2d 656, 661 (Tenn.Ct.App. 1992).-13- . . . .

. . . Accordingly, Tennessee’ s General Assembly and courts have recognized that non-custodial parents have a f undamenta

l right tovisit their children. Tenn. Code Ann. § 36-6-301 (Supp. 2

000); Suttles v. Suttles , 748 S.W.2d 427, 429 (Tenn. 1988); Helson v. Cyrus , 989 S.W.2d 704, 707 ( Tenn. Ct.App. 1998); Jahn v. Jahn , 93 S.W.2d 939, 941 (Tenn.Ct.App. 1996); Weaver v. Weaver , 37 Tenn.App. 195, 202- 03, 261 S.W.2d 145, 148 (1953).

. . . .

. . . However, a pa

rent’s right to v

isit with his or her c

hildren is not a

bsolute. The courts may restrict, suspend, or terminate visitation rights upon the presentation of clear and definite e vidence that permitting continued visitation will jeopardize the child physically

, emotionally

, or morally . Tenn. Code Ann. § 3 6-6-301; Suttles v. Suttles , 748 S.W.2d at 429; Helson v. Cyrus , 989 S.W.2d at 707; Weer v. Weaver , 37 Tenn. App. at 202-03, 261 S.W.2d at 148.

Bec ause of the legal and

psycholog

ical significan

ce of a parent’ s visitati o n rights, persons seeking to restrict or eliminate visita

tion must demonstrate that there is probable cause

that the child will be placed at risk if visitation is permitted. The TennesseeSupreme Court req uires that this proof mus t be “definite,” Suttles v. Suttles , 748 S.W.2d at 429, and Tenn. Code Ann. § 36-6-301 requires that the proof demonstrate

that visitation is “likely” to endanger the child’s physical or emotional health. These ev

identiary s

tandards have e

ffectively created a pres

umption against severely circumscribing or denying visitation to non-custodial parents. Such dra stic
measures are appropri ate only when arr ange ments less d etrimental to the p arent-child relationship are not available or workable as a practical matter.

With these principles in m i nd, the courts have terminated or suspended visitation by a non-custodial parent only in extre m e circumstances such as (1) the non-custodial parent’s history of physically abusing his spouse and child, Suttles v. Suttles , 748 S.W.2d at 429; (2) the non-custodial parent’s abandonment of the child; Turner v. Turner , 919 S.W. 2d at 346; Mimms v. Mimms , 780 S.W.2d 739, 745 (Tenn.Ct.App. 1989); or

(3) conduct of the non-custodialparent that is injur ious to the child’s phys

ical healt h , Smith v. Smith , No. 03A0 1-9603-CV -00078, 19

96 WL 591181, at *4 (Tenn.Ct.App. Oct. 11, 1996) (No. Tenn.R.App.P. 11 a pp lication filed). In other circumstances, the courts have stopped short of terminating or suspending visitation when lessrestrictive alternatives, such as supervised visitation, have been reasonably available. E.g., Whitaker v. Whitaker , 957 S.W.2d 834, 838-39 (Tenn.Ct.App. 1997) (disapproving unreasonably burdensome restrictions on visitation on a parent orde red to undergo c

ounse l ing); (approving supervised
v isitation for a parent who permitted a child t

o play unatte

nded in a parkin

g lot) ;-14-

Pizillo v. Pizzillo , 884 S.W.2d at 7 57 (ap proving supervised visitation for a noncustodial parent convicted of sexual abuse); (approving supe rvised visitation for a non-custodial parent charged with sexual abuse).

Wix v. Wi x , No. M2000-00230-COA-R3-CV, 2001 WL 219700, at *9-11 (Tenn. Ct. App. Mar. 7, 2001).

The record in this case, developed through eight days of trial spread over a six month period, reflects that the trial j udge wa s faced with an analysis of comparative unfitness rather than comparative fitness. He chose theleast objectionable of his alternatives and the evidence does not preponderate

against that choice. Weighing strongly ag ainst Mrs. Johnson is not her lack of love for her children, deficiencies as a homemaker, or her attention to the physical needs of her children. The
rec ord, howeve r, is replete with incidents of her s

eemingly u

ncontrollable te

mper reflected

in confrontations with the children’s teachers and c oaches in which sh

e expresses her c

omplaints with sexually explicit profanity in the

presence of her own children and other children. L

ikewise, while the court’s orders prohibiting her relationship with Carl Harbison are probably une nforceable when limited to a

one to one relatio

nship in the absenc

e of the children

, it certainly

is a factor in any

fitness analysis. Of more significance is her repeated relationship with Carl Harbison in the presence of he r children.
Mrs. Johnson testified on December 15, 1999: Q. Slept

in the bed w ith hi m ther e? A. Yes, sir. Q. When your children were there? A. My children

have never see

n us sleeping tog

ether. I will p

romise you th

at. Q. Did you sleep in the bed? A. I answered that question. Q. With Carl Harbison when your children were present in the house? A. I have slept with

Carl but my children have never seen me sle

eping with Carl. Q. When the children w ere there did y

ou get in the bed w

ith him? A. Yes, sir, but they

still never saw it. Q. Where did they sleep? A. They slept o

n the couch or on pa

llets or in beds.

The above was not an isolated incident but a continuing pattern which included a four day vacation to Florida during which she slept with Mr. Harbison. She testified: Q. You weren’t there for your court appear ance, were you? A. No, sir, I was

n’t. Q. Tell the Court where you were. A. I took my kids on vacation to Florida. They have ha d the roughest year of their life and th

ey’ve al ways had a vacation. School was getting ready to start and-15-

Jim was trying to have it put off, and the DA - - Q. You kne w th e cas e was set tha t da y? A. Yes, sir, but Kevin had plenty of dates postponed on me before. Q. Tell the Court who you went with. A. Me and the kids and Carl and Jonathan. Q. And Carl and Jonathan stayed at a motel in Panama City Florida Da ys Inn? A. Yes, sir, we did. Q. And you and Carl slept where? A. We had two rooms. Q. Where did you sleep? A. Everybody switched up overnig ht. No particular place. Q. You didn’t sleep in the room with Mr. Harbison? A. I may have one night. I’m not sure. We had kids laying every where. Q. With children in the r oom? A. And I slept in w

ith the kids.

This Court has held:

Absent some co mpelling reason otherwise, considerable weight must be given to the judgment of a trial court in a divorce procee ding in r espect to the cre

dibility of the parties and their suitability ascustodians. Bush v. Bush , Tenn.App. 1984, 684 S.W.2d 89.

The trial courts are vested with a wide discretion in matters of chi ld c ust ody, andthe reviewing courts will not interfere except upon a showing of erroneous exercise of that dis cret ion. Grant v. Grant , 39 Tenn.App. 539, 286 S.W.2d 349 (1956).

Mimms v. Mimms , 780 S.W.2d 739, 744-45 (Tenn.Ct.App. 1989).

The trial court

did not abuse its disc

retion in awardin

g custody o

f the minor childre

n to Mr. Kevin Johnson.

The refusal of thetrial court to grant any form of visitation to Mrs. Johnson with her children is in error for the same reasons set forth in Wix . There is no evidence in the record that the appellant’s behavior put the children in danger of physical abuse, or that the appellant has abandoned her children, or has injured their health.

The action of the cour

t denying v

isi tation to M rs. Johnson is reversed and on remand, a reasonable

visitation schedule will be established for Mrs. Joh nson, conditioned as the trial court may deem appropriate.-16-

THE CRIMIN

AL CONTEMPT

In the final judgment and decree of divorce entered January 20, 2000, the trial cou rt held, in part:
This matter came on to be heard on th e 6th day of January, 2000 as well as the previous dates of

July 26th, 28th, 29th, and 30th, 1999, December 15th, 16th, and 17th, 1999, before the Honorable Russ Heldman, Judge, holding the Chancery Court of Williamson County, Tennessee, in the continuing trial of this cause and hea r ing
on the Petition For Contempt filed on behalf of Plaintiff, and upon testimony of witnesses, statement of counsel, and theentire record of this cause the Court having heard proof finds that Defendant’s violations of the Orde rs of th is Court are not justifiable; that the Petition for Contempt filed on be

half of Plaintiff i

s proper and the contemptuous violations of Defe ndant are crimin

al not civi l; that in having heard proof beyond a reasonable doubt the Court finds Defendant committed thirty-three (33) separate violations of the Orders of this Court (i.e. Agreed Order entered April 28th, 1999; Agree d Or der entered June 22nd, 1999; and, Order entered December 17th, 1999) every other weekend since June of 1999 with respect to having contact or been with Carl Harbison (i.e. twelve (12 ) weeken ds x 2 days per weekend= twenty-four

(24 ) violations; four (4) days in Florida trip; three (3) occasions since Order of December 7th, 1999 ; o ne (1) dinner with Carl Harbison after entry of Agreed Order of June 22 nd, 1999; and, one (1) telephone conversation with Carl Harbison for clearly at least thirty-thr ee (33) v iolations); but sinc e the Court is running the violations of Defendant with thechildren concurrent with the separate violations of the Defendant herself, the Court did not make a determination as to the number of violations by

Defendant with r

espect to the minor children of

the parties having contact with Carl Harbison; that becau se of De fendant’s willful, gross and flagrant violations of the Or

ders of this Court a

nd in an effort to p

rotect the integ

rity of the judicial system as well as to enforce these Orders of thi s Court, the Court sentences Defendant to ten (10) days in

the Williamson County Jail for ea ch violation, which makes a total of 330 days of incarceration in the Williamson County Jail, and sets Defendant’s bond at $33,000.00 and hereby orders Def endant to be taken immediately into custody and taken to jail by the Williamson County Sheriff’s Department

upon the Court’s conclusion in adjudicating the di vorce i ssues of this
case.
KevinJuli an Johnson had filed a Petition for Contempt against Donna Cole Johnson o n August 26, 1999. In this Petition for Contempt, it is asserted:

2. That

on April 28th, 1999 an Agreed Order was entered in this cause, said Agreed Order i s adopted h erein by referenc e as though fully and specifically set out. The Agreed Order provided, among other things, that Wife agrees to terminate all contact with Carl Harbison pending the final hearing of this cause.-17- 3. That

on June 2 2nd, 199 9 an Order was e ntered in this cau

se, said Order is adopted herein

by refere nce as though fu

lly and specifi cally set out. The Order provided, among other things, that each party keep the minor

children of the parties in the marital home of the parties for a week at a time; that Defendant/Wife shallremain

in the marital home until 6:00 p.m. on Sunday, June 20th, 1999, at which time the Defenda

nt/Wife shall leave

the home and Plainti

ff/Husband shall
move back into the mari

tal home andremain until 6:00 p.m. on Sunday, June 27th, 1999; that the parties sh

all alternate liv

in g in the marital home every other week thereafter until the final hea

ring in this

cause; and, that Defendant/Wife is enjoined and restrained from any contact with Carl Harbison or with keeping the children of the parties and the children of Carl Harbison together.

4. Plaintiff

alleges on thefirst

night after the Agreed Order was entered into by the parties in open Court the Defendant, Mrs. Johnson, and Carl Harbison went to dinner together which was a flagrant disregard and conte mpt of the Agreed Order.

5. Plaintiff

states Defendant has violated the Order of the Court entered
on Ju ne 22nd, 1999 on an almost daily basis as she has continued her adulterous relationship

withCarl Harbison as w

ell as having the

parties’ minor children and Carl Harbison’s child, Johnathan, together. On numerous occasions, Defendant has had the parties’ minor children at the home

of Carl Harbison.

On numerous occa

sions, Defendant

and the parties’ minor children have stayed overnight at the home of Mr. Harbison with Defendant sleeping in the same bed with Mr. Harbison and the p arties’ minor children sleeping on the floor. As testified to by Carl Harbison in open Co

urt, Defendant

and the parties’ minor children even spent the night before the final hearing in this cause a t the home of Mr. Harbison with Defendant sleeping in the same bed with Mr. Harbison and the children sleeping on the floor.

6. Further, Plaintiff states Defend ant and the parties’ minor children went to Florida with Carl Harbison and Mr. Harb ison’s child, Johnathan, from August 9th, 1999 through August 12th, 1999 an d then they spent the night at the home of Carl Harbison on August 13th and 14th, 1999.

7. Plain tiff

states Defendant’s flagrant disregard and contempt of th e Court’s orders in continuing her adulterous relationship with Carl Harbison and allowing the parties’ minor children and the children of Carl Harbison to be together is an act of willfu

l contempt of this Cou

rt.
PREMISES CONSI

DERED, PLAI

NTIFF PRAYS:

1. That

proper p ro cess issue and be served on the Defendant, Donna-18-

Cole Johnson, by an d through her co unsel, James L. Cu

rtis, causing De

fendant to answer this Petitio

n for Contempt.

2. That

at the hearing of this cause, Defendant be found in contempt of thi s Co urt and pun ish ed ac cord ingl y.
3. That

the Defendant be required to pay all attorney’s fees and court costs in this cause.

4. For

such other, further and

general relief as to which the Plaintiff may be entitled. At the hearing of December 15, 1999, the following occurred:

THE COURT: You made me aware. I’m going to rule on the cont empt petition Mr. Johnson has filed based on the evidence and of course give Mrs. Johnson wide latitude to defend against it. Is there going to be any proof from Mrs. Johnson that is not before the Court in the divorce case?

MR. CURTIS: I

don’t know. I have answered it. I don’t know what other facts they are going to put forwar d. THE COURT: Then - - MR. YOUNG: From the petitioner’s point of view it will be the same proof that is going to come out as a result of the divorce case.

THE C OURT: We will make a determination adjudication of Mr

. Johnson’s contempt petition during these proceedings as anticipated . . . .

T he record shows without doubt that Mrs. Johnson repeatedly violated the orders of t he court , much in the manner

charged in the

August 26, 1999 Pe

tition for Contempt.

The convictions of Mrs. Johnson for criminal contempt cannot stand. The very first time that criminal contempt is mentioned is in the Final Judgment and Decree of Divorce entered on January 20, 2000 where the court determines Mrs. Johnson to be guilty of criminal conte

mpt. No effort is made to comply with Rule 42(b) of the Tennessee Rules of Criminal Procedure and such failure is fatal to a conviction for criminal contempt. This Court has held:

Because the contempt was c

riminal in nature, the husba

nd was entitled to a

ll the constitutional protections of any criminal defendant, including “the presumption of innocence and th

e right to requir

e guilt to be shown beyond a reasonable doubt,” id. (citing Strunk v. Lewis Coal Co. , 547 S.W.2d 252, 253 (Tenn.Crim.App. 1976), the right not to incrim

inate himself, and notice. Gompers v. Buck’s Stove & Range Co. , 221 U.S. 418, 444-46, 31 S.Ct. 492, 499-500, 55 L.Ed. 797, 807-08 (1911).-19- The husband has challenged the trial co urt’s findings of criminal contempt
on the grounds that thecontempt petition did not provide notice that the husband was being charged with c

riminal contempt a

nd that the petitione

r failed to

prove th e husband’s contem

pt beyond a r

easonable doubt.

With regard to notice , the United States Supreme Court stated in Gompers that manifestly

every citizen, however unlearned in the law, by mere inspection of the papers in contempt

proceedings ought to be able to see whether it was instituted for private litigation or for

public prosecuti

on, whet her it sought to benefit the complainant or

vindicate the court’s authority. He should not be lef t in doubt as to whether relief or punishme

nt was th e object in

view. He is not only entitled to be informedof the nature of the cha rge against h

im, but to know that it is

a charge and not a suit. Id. at 446, 31 S.Ct. at 500, 55 L.Ed. at 807-08.

In addition, Rule 42 (b) of the Tennesse e Rules of Criminal Procedure requires that a criminal contempt be prosecuted on n otice, which “shall state the time and place of hearing, al

lowing a reason

able time for the preparation of the defense, and shallstate the essential facts constituting the criminal contempt charged and describe it as such .” Tenn.R.Crim.Proc. 42(b) (emphasis added).

Our review of the record indicates that none of the contempt

petitions agains

t the husband designa

ted the contempt a

s crim inal. Apparently, the nature of the contempt did not become known to the parties until the t rial court entered it

s memorandum

opinion sentencing

the husband to a se

t time in the county

workhouse and providing no opportunity for the contemnor to purge himself.

Because the hus band was not afforded proper notice as required by the TennesseeRules of Criminal Procedure and Gompers, supra , we find it neces sary to reverse that part of the trial court’s ord er sentencing the husband to two 10-day periods in the county workhouse. Storey v. Storey , 835 S.W.2d 593, 599-600 (Tenn. Ct. App. 1992) (internal footnotes omitted).

The action of the trial court finding Mrs. Johnson in criminal contempt is reversed and the sentences imposed upon her are vacated. The final issue on appealrelative to alleged forgery of checks was abandoned in argument by the appe

llant.

CONCLUSION

The judgment of the trial court aw arding cu stody of the c hildren to Kevin John

son is-20-

affirmed. The judgment of t he trial court de

nying visita

ti o n to Mrs. Johnson is reversed. The judgment of the trial court

finding Mrs. Johnson

guilty of c

riminal con tempt is reversed and all sentences imposed are vaca ted. The case is r

emanded to the tri

al court with instru

ctions to se t reasonable

and meaningful visitation rights for Mrs. Johnson, subject to such conditions as the trial court may deem appropriate. Costs of appeal ar

e assessed equa

lly to the par

ties.

____________________________________ WILLIA M B. CAIN, JUDGE