# FILED

July 20, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE JAMES MARCUS CARR and wife, ) MARY GENE CAMPBELL CARR,) ) Petitioners/Appel

lants, ) Appeal No.

) 01A01-9807-CH-00402 v. ) ) Sumner County Chancery JOHNNY ALLEN MOORE, ) No. 97-A15 ) Respondent/Appellee. ) ) COURT OF APPEALS OF TENNESSEE APPEAL FROM THE CHAN CERY COURT FOR SUMNER COUNTY AT GALLATIN, TENNESSEE

THE HONORABLE THOMAS E. GRAY, PRESIDING

LESLIE B. MCWILLIA

MS SUITE 3900 6100 BUILDING CHATTANOOGA, TENN ESSEE 37411 ATTORNEY FOR PETITIONERS/APPELLANTS

CAROL ANN BARRON 264 THIRD AVENUE DAYTON, TENNESSEE ATTORNEY FOR RESPONDENT/APPELLEE

AFFIRMED AND REMANDED

PATRI CI A J. COTTRELL, JUDGE CONCUR: CANTRELL , J. CAIN, J.-2- 

# OPINION

James Marcus Carr and h is wif e Mary Gene Campbell Carr ("Appellants") commence d the underlying a

ction by filing a p

etition for adoption of the latter's minor child, M.C.M. The p etition, which alleged that James Marcus Carr ac

quired custody

of the child

upon his marriage to M.C.M.'s mother, sought to terminate the parental rights of M.C.M.'s father, Johnny Allen Moore ("Appellee"). The trial court in iti ally ter minated Mr. Moore's parental rights pursuant

to Tenn. Code Ann. § 36-1-102 for failure to pay child support for more than four

months imm

ediately prec

eding the filing of the

petition for adoption. However, aft

er considering Mr.Moore's motion to alter or am end the judgment,the trial court re tracted that decis

ion and rejected A

ppellants' petition. Appellants appeal the

trial court's ref

usal to termina

te Appellee's par

ental rights,

asser ting two er rors. For th e foll owing reaso ns, we affir m. Johnny Allen Moore and Mary GeneCampbell Carr are

the biological parents of M.C.M. At the ti me of M.C.M.'s bi rth in 1992, they w

ere marrie

d and residing together. After several acrimonious separations, they divorced in 1994 in Hamilton County, Tennessee. The initial divorce decree granted Mrs. Carr primary custody and ordered Mr. Moor

e to pay $250 per m

onth in child support. Howe ver, on J uly 24, 1995, the trial court ordere

d Mr. Moore to pay

weekly childsupport of $64 plus a 5% clerk's fee to be automatically

deducted from his wages by his employ

er. The court a

lso or dered Mr. Moore t

o pay directly

to Mrs. Carr $547.71 in arre arages at the rate of $5 p er week. When Appellants ma

rried in 1996, Mrs. Carr and M.C.M . moved to the Nashville area. Shortly

thereafter, Mr

s. Carr filed a

motion in

Hamilton County seeking modification of

the existing court-or

dered arrangem

ents for picking up and delivering M.C.M. for vi sitation with Mr. Moo re. Mr. Moore testifiedthat he unsuccessfully

requested Mrs. Carr's counsel to reschedule the hea ring on the motion. After Mr. Moore failed to attend the May

1996 hearing, the H

amilton County Circuit Court decreed that Mr. Moore would pick up and deliver M.C.M. for visitat ion at a gas station in Hender sonville, Tennesse

e, one and one half hours from Mr. Moore's Hamilton County residence, until a

second hearing was held. The Hamilton County Circuit Court held the second heari n g in June-3-

1996. Mr. Moore appear ed pro se and attempted t o explain that d riving to Hendersonville

for visitat ion pres ented an intolerable burden, forcing him

to arrange child care for his three other childr en as his only

vehicle had a single seat and lacked the proper r estraints necessar

y to transpo

rt all his children simulta neousl y. Mr. Moore's ar gument resulted

in an order termina

ting his visitation unti l he got "his mind strai ghtened out." After the issuance of that

order, Mr. Moor

e's contact with M.C.M. decrease d. He called M.C.M. in September, several tim es in November, an d twice in December. When he requested visitation around Christmas, Mrs. Carr informed him that M.C.M. already had pla ns with her family. In November 1996, M r. Moor e was laid off from his job. The final $134.40 child support paym ent made through

his employe

r was sent November 1 2. Mr. Moore testifi

ed that he did not m

ail the next support pa

yment to Mr

s. Carr because arrearage checks he sent her in October a nd November had been returned with the

notation, "Return to Sender, Address Unknown. " Instead, he began purchasingmoney orders for his son's child support and setting them aside rather than sending them to Mrs. Carr's pre vious addr ess. At trial, Mrs. Carr admitted that she moved four times during 1996 and failed to provide Mr. Moore with forwarding a

ddresses. When Appellants filed the underlying petition for adoption in Sumner County Chance ry Court on Mar ch 26, 1997, alleging

that Mr. Moore w

illfully abandoned his son by failing t o visit or pay chil

d support, the Chance

llor initially terminated

Mr. Moore's parental rights and granted Mr. Carr's request to adopt M.C.M. The Chancellor pr emised this dispos

ition on a finding that Mr. Moore had failed to support or make reasonable payments toward support of M.C.M. for four (4) con secuti ve month s, there by a bandoni ng his son. The Chanc ellor declined to find that Mr. Moore willfully fai led to visit his son

when visitation had been termi

nated by the Ha

milton County

Circuit Court. Mr. Moore mov ed to a lter and amend the judgment,

arguing that the Chancellor

had miscalcula

ted the time bet

ween his last pay

ment and the date the petition was filed. Mr.Moore asserted tha t the petition was filed on March 26, 118 days after the

child support was due and payable. He calculated the number of days in the sta

tutory four (4)

month period at 12 1.75. The Chancellor granted Mr. Moore's motion and vacat ed the order of-4-

adoption, finding that the four (4) month period had n ot expired. The C

hancellor based this conclusion

on findings that the gross amount of the child support Mr. Moore paid from Sept

ember 1, 1995 to November 21, 1996 was $4,435. 20 and the gross amount due from September 1, 1995 to Novem ber 30, 1996 was $4,368. The Chancellor reasoned that Mr. Moore's last child support pay ment on November

12, 1996, as applied , w oul d have made the child support current through the first week of December, less than the statutorily mandated four (4) months. I. Appellants argue that the Chanc ellor erred in

reversing the

decision to terminate Mr. Moore's par

ental rights. The

y argue that the

statutory tim

e period shouldbe measured from Nov ember 12, the date of Mr. Moore 's last child support paym

ent. Our re view of the trial c

ourt's factual fi

ndings is de novo with a presumption

of correctness unless a preponderance of the evidence is otherwise. Tenn. R. App. P. 13 (d). That deference is not applied to issues of law which receive plenary review. Ganzevoort v. Rus sell , 949 S.W. 2d 293, 296 (Tenn. 1997). Before termination of parental rights is pe

rmissible , the grounds therefor must be establishedby clear and convincing evidence. Tenn. Code Ann. § 36-1-113 (c) (1) (Supp . 1998). In addition , the parental rights ter mination statuterequires a finding t hat t erminatio n is in the child's best interest. Tenn. Code Ann. § 36-1-113 (c) (2) (Supp. 1 998). Abandonm ent is one of the statutory grounds for terminat

ion. Tenn. Code

Ann. § 36-1-113 (g) (Su pp. 1998). In this context, abandonm

ent means: For a period of four (4)

consecutive mon

ths immedia

tely precedingthe filing of a proce eding or pleading to

terminate the parental rights of t

he parent(s) or guar

dian(s) of the child who is the subject of the petition for termination of parental rights or adoption, that the parent(s) or guardian(s) either have willfully failed to visit or hav e w illfully faile d to support or make

reasonable pay

ments toward t

he support of the child. Tenn. Code Ann. § 36-1-1 02 (1) (A) (Supp. 1998).-5- The record shows that on July 24, 1995, the Hamilton County

Circuit C ourt ordered Mr. Moor e to make wee

kly child support pa

yments of $6

7.20 , which included a 5% clerk's fee. The gross amou ntof child support Mr. Moore paidfrom Septem

ber 1, 1995 to November 12, 1996 was $4,435.20. T he gross

amount of child support due from

September 1,

1995 to November 30, 1996 was $4,368. Mr. Moore's em ployer mad

e a $403.20 paym

ent on his behalf on

July 8 and $268.80 payments on his behalf on August 1 and 28, and October 1 and 29. The final payment by the employ er was for $1 34.40 on Nov emb er 12. T hese figures indicate that acco rding to the

pattern previously

adopted by the par

ties, Mr. Moore's child suppor t payments w

ere current throu

gh the first week of December, cutting short the requ isite four (4) m

onth time spancalculated from March 26. While Appellants may dispute the method used to calculate pay

ments, itwas their

burden to establish

by clear and convincing evidence that Mr. Moore failed to pay child support for t he statutory period. See State v. Defriece , 93 7 S.W.2d 954, 961 (Tenn. App. 199 6). "Th e clear and convincing standard imposes a heightened burden on those seeking to term

inate the rights of a natural parent. To meet

this standard, a party must go beyond the mere threshold of a preponderance of the evidence: Clear and convincing evidenc e eliminates a

ny serious or substantial doub t concerning the corr ectness of the conclusions drawn fr

om the evidence. It should

produce in the fact-finder's m

ind a firm belief

or conviction with regard to the truth of the all

egations sought to be est

ablished. O'Daniel v. Messier , 905 S.W.2d 182, 1 88 (T enn. App. 1995) (c itations omitted)." Id. We agree with the trial court that the Appellants failed to meet their burden. II.-6- Appellants contend that the trial court erred in find ing that Mr. Moore did not willfully f

ail to visit hi s son f

or four (4) mon

ths before the petit

ion for adoption was filed . They maintain Mr. Moore could have returned to court at any time a

nd requested the rei

nstatement of h

is visitation privileges. Appellants bore the burden of establishing that Mr. Moore's failure t o visit M.C.M. was willful by clear and con vincing evidence. See id. In light of the Hamilton County Circuit Court's order ter m inating Mr. Moore' s visitation rights, we cannot say t

he Chancellor err

ed in finding that Mr.Moore's failure t o visit M.C.M. was not willf ul. Accordi ngly, the Chancellor's r efusal to te rminate Johnny Allen Moore's parental rights and denial of Appellant s' petition f

or adoption are affirmed and

the case is remanded for such further proceedings as may arise. Costs on appeal are taxe

d to the Appellants,

for which executi

on may issue

if

necess ary.

_______ _ ______________________ _ PATRICIA J. COTTRELL, JUDGE CONCUR:

__________________________________ ______ BEN H. CANTRELL, P

RESIDING JUDGE (M.S)

__________________________________ ______ WILLIAM B. CAIN, JUDGE