### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE March 26, 2001, Session ROY EUGENE SCHRIMSHER v. SHER RY LYNN SCHRIMSHER Appeal from the Circuit Court for Monroe County

No. 8955 John Hagler, Judge FILED JUNE 14, 2001 No. E2000-02169-COA-R3-CV

This is a post divorce custody dispute. Mother seeks custody of the two minor c hildren because she believes the children are dependent and neglected. Father seeks an increase in child support for the children. Mother

requested the Trial Judge to hear the testimony of the children who were 12 and 11 at the time. The children were the witnesses to the acts complained o

f inthe petiti on to change cus tod y. Mother could only present hearsay evidence from

the children. The

Trial Judge refu

sed to hear the testimony of the children and continued custody with Father and incr

eased Mother' s child support. Mother then filedthis appeal. We vacate the decision of the trial court and remand for the purpose hereina

fter set out. Tenn. R. App. P. 3 Appe al as of Right; Judgme

nt of the Circuit Cour

t Vacated and This Case Remanded
H OUSTON M. G ODDARD , P.J., delivered the opinion of the court, in which C HARLES P. S USANO , J R
. and D. M ICHAEL S WINEY , JJ., joined. Gerald C. Russell, M

aryville, T

ennessee, for A

ppellant, Sherry

Lynn Sch

rimsher (Roberts

) Charles E. Ridenour, Sweetwater, Tennessee, for Appellee, Roy Eug ene Schrimsher OPINION
Pursuant t o a Marital Dissolution Agreement, Father had custody of the par ties' two children. In December 1999,

Mother filed a moti

on requesting a

change of cust

ody from Fa

ther to her and to set visitation and child support. In February 2000, Mother f iled an emergency

motion for immediate change of custody.

Mother attached

an affidavit

from each of

the children. The Trial Judge ordered a Department of Children's Services investigation. Until the DCS investigation, daughter and son were sleepingin same room. Shortly after, Father moved upstairs and gave his room to daughter. He cleaned son's room up. Father filed an answer den ying the allegat ions in th e Mother's petition and for an increase in child support and for Mother to pay some medical e xpenses.1 36-6-10 6. Child cus tody.

(a) In a suit for annulment, divorce, separate maintenance, or in any other proceeding requir ing the court to make a custody determinati

on regarding a minor

child, such

determination shall be made upon the basis of the best in terest of the child. Th e court shall co nsider all releva nt factors includ ing the following where app licable:

. . . (7) The reas onable preference of the child if t welve (12) years of age or older. The court may hear the preference of a youngerchild upon

request . The prefe

rences of

older chi

ldren sh ould normal

ly be gi ven great

er weight

than th ose of younger ch ildren;

2 His date of

birth wa s 11/5/87. 3 Her date of bi

rth was 4/6/86.
4 The child ren told M other that Fa ther wrote fou r untrue notes to excuse the m from sch ool. 5 Mother testified that she personall y saw bottles of tequila, beer and other liquors, in the refri gerator. -2- I. THE HEARING AND ACTION OF THE TRIAL COURT Mother filed a formal notice pursuant to T.C.A. 36-6-106 1 for the children to testify. The hearing was held on March 3, 2000. Mother testified at the hearing that

her primary source of her information was from her two children. The parties' son, Mic hael, 2 was 12, and their daughter, Crystal, 3 was almost 14 at the time. The children averred in their affidavits that they knew a lie from the truth and that a person can be put in jail for sw earing to a li e. They also aver red the foll owing:
1. From

August of

1998 to October of 1999, almost every night our father would

leave us home overnight by ourselves. During this time, we did not eat breakfast. During this time, our grandmother

would come

to the house on scho

ol mornings to make

sure we woke up in

time to go to school. This only changed when our gra nd mother's car tore up, and she couldn 't come and wake us up. 2. We now spend the night at our grandmoth

er's house. Of

ten she does not g

et us up in time for school and we

miss the bus. 3. Our father write

s untrue notes for

us to take to school w

hen we have misse

d school. 4 4. We still are left at home by ourselves on many

nights when we do

n't have to go to

school the nex t da y. 5. Our father smokes inside out home. 6. Our father drinks beer and whiskey at our house. 56 Fat her t old Mot her t hat he us ed a w eight l

ift ing belt to di sci pli ne t he ch ild ren. He also admitted at thehearing that he did wh ip the children with a weight lifting be lt.

7 Daughter stated in her affidavit that Father whipped her several times unti l he put bruises on her.
8 After the DCS began it s investi gation, All

en moved out of grandmother 's house. -3- 7. Our

father whips us with a weight liftingbelt. 6 He has whipped me once until he put bruises on me. I reme

mber him bruising

my sister sev

eral times. 7 8. Allen Schrimsher is our uncle who lives with our grandmother. 8 He drinks beer, etc. about all the tim e and gets dru nk a bou t ev ery da y. He yells at us, and the threatens us. He urinates in the living room floor. I am afraid of him and I live in fear when staying at my grandmother's house. 9. Our

father never prepares food at our house. Hemakes us coo k or sends u s to his mo ther's house to eat. 10. I noti ced that ou r father had these sores on his body. Shortly ther eafter, sores and itching broke out on my hands , etc. He wou ld not take me to the do ctor even th ough he told me that I probably had scabies. Our

mother seen (sic

) it and took me to the

doctor. The docto

r said it was scabies and prescribed "acticin" cr

eam to treat my

condition. My

father went to the doctor the same weekend my mother took me. 11. I do not want to live with my father. I want to live with my mother and visit my fa

th er. I request that my custody be immediately changed to my mother. Also of concer

n is that da ughter said that there were loa

ded firearms und

er her mattress (which Mother has seen) and a loaded shotgun in her closet. Father at the hearing admitted that there was a sixteen gage shotgun under daughter's mattress. He was nebulous in answering where he kept his guns. Mother also testified that at Christmas when she visited the home, the house was trashed, she could not get into son's room, and the house had a very bad odor. Mother testified that Father never attends son's football games and was not there for the children. He was out riding his motor cycle with his girlfriend. The Trial Judge was a

damant in refusin

g to allow t he children to testify. Th e Trial Jud ge refused to admit the children's affidavits into evidence. He did, however, allow the affidavits that are in record to be the offer of proof as to what the children would testify to. He said:
I know that these affidavits from children are recognized in some of

our jurisdictions, andI think I understan

d why that is so.

And I don't f

ault counsel for d

oing that, because that's something that is being approved. But I have to state my disapproval of that procedure. We're

basically asking persons whose competency as witnesses is marginal to sign instruments prepared in good faith, but prepared by attorneys. . .

. . .-4-

And while I do not doubt that the children said many of these things. And I do not doubtthat some

of them are true . I doubt very much that this is the w

ay to deal with this problem. So I would not put these children on the stand andsubject them to vigorous cross examinatio n that's require d in our judicial sy

stem in order for t

he Court to determine where the truth li es. I'm per

fectly willi

ng just for purposes of this ruling to assume that the childrenwant to live with their mother. But that's not the end of any issue lik

e this. The Court ordered the Department of Children's Services to investigate to see whether there was abuse or neglect sufficient for the department to re move the child

ren. The Department of Children's Services found no abuse or neglect sufficient for the department to take the childre n. The Judge foundno material change of circumstances substantial eno ugh t o ch ange cus tod y. The trial court admoni

shed Father to

change se

veral things in regard to the children, but did not change custody to Mother. In this reg ard the Trial Judge said: There were certain is sues raised here that I think I

should mention to

the fa ther. I think they'll be accepted in the s

pirit in which they're given. I don't think the brother should actually live with the children, the one we discussed. That doesn't mean he should not be around them. He's a member of the family, too.But I don't think he should live with them

. . . . I don't see any reason tha t it would be part of the order. It seems to bother the

m, it perhaps bothers the childr en. I'm not c

ompletely s ure about that, there's a possibility. I think that the father should be v ery carefu

l withfirearms. I'm not saying tha t he's not but the chi ldr en are getting a little older andthey obvio

u sly know where all these firearms are, or they think they do. So, I would be very ca

reful. I woul

d be very c

areful a bout that. I wo uld also be careful about where alcoholis left beca use again the age of the children, they like to check these things out. Y

ou need to be very

careful about th

at. You also, I think, need to be awar e of the need , not to allow or in any way even encourage your daughter to take on any kind of mother-role ther e. . . And I think the children should not

be left alone. I think

that's a dangerous proposition. I think you hav

e to be very

careful about th

at. The Court increased

the amount of child

support paid

by Mother to $104.00 per week and order edMother to pay 1⁄2 of the medical bills. The court also ordered Mother to pay $350.0 0 t o Fath er's att orn ey.9 T. C. A. 3 6-6-106 . Child Custo dy.

( a) In a suit f

or annulment, divorce, separat e maintenance,

or in any other

proceeding requiri

ng the court t

o make a custody de

termina tion regarding a mi

nor chil d, such det

erminat ion shal l be made upon the

basis of the best intere st of the child. Th e court shall co nsider all releva nt factors includ ing the following where app licable: (1) The love, affection a nd emotio nal ties existing be tween the pa rents and ch ild; (2) The disposition of the parents to provide the child wit h food, clothing, medical care, education and other necessary care and th e degree to which a par ent has been the primary c aregiver; (3) The importance of conti nuity in the ch il d's life and the l ength of time the child has l ived in a stable, sati sfactory environm ent; provided, that where there i s a finding , under§ 36-6-1 06(8), o f child abuse, as defined i

n § 39-15-401 or § 39-15-402, or child sexual abuse, as defined in § 37-1- 602, by one (1) parent, and that a non-

perpetrating

parent has relocated

in order to fl

ee the perpetrat

ing paren

t, tha t such r elocati on shall not weig

h agains t an awar

d of cust ody; (4) (continued ...) -5- II. ISSUES The appellant prese

nted six issues for ou

r review. We rest

ate the issues to b e whether the trial court erred by refusing to permit the two minor children to be called as witnesses. Because of our finding that t

he trial court did s

o err we decline

to address the othe

r issues.

III. LAW AND DISCUSSI ON Our sta nd ard of review is as follows: "Unless otherwise required by statute, re view of findings of fact by the trial court in civil actions shall be de novo upon the record of the trial court, accompanied

by a presump

tio n of th e correctness of the finding, unless the preponderance of the evidenceis otherwise." Rule 13(d), Tennessee Rules of Appellate Procedure. In a de novo review, the parties areentitled to

a reexamination of

the whole matter o

f law and fact a

nd this court should render the judgment warranted by the law and evidence. Thornburg v. Ch ase , 606 S.W.2d 672 (Tenn. Ct. App. 1980); American Buildings Co. v. White , 640 S.W.2d 569 (Tenn. Ct. App. 1982); Rule 36 of the TennesseeRules of Appellate Procedure. Nosuch presumption, however, attaches to conclusions of law. Adams v. Dean Roofing Co. , 715 S.W.2d 341 (Tenn. Ct. App. 1986).
A decree of custody remains in the control of the trial court and is subject to change or modification "as the exigenc ies of the case

may require." T.C.A. § 36-6-101. "Exigencies" as used in the statute means new facts and changed conditions which have emerged since the decree which could not have been anticipated by the decree. Smith v. Haase , 521 S.W.2d 49 (Tenn. 1975). The modification of a prior custody determination is

not changeable except for "change of circumstances." This is "defined as that which requires a change to prevent substantial harm to the child. Custody is not changed for the welfare or p

leasure of eithe

r parent or to puni

sh either parent

, butto preserve the welfare of the child. Custody is not changed because one parent is able to furnish a more commodious or

pleasant environ

ment than the other

, but where contin

uation o f the adjudicated

custody will substantially harm the child." Wall v. Wall , 907 S.W.2d 829, 834 (Tenn. Ct. App. 1995); Dailey v. Dailey , 635 S.W.2d 391 (Tenn. Ct. App. 1981). T. C. A. 36-6-106(a) sets forth the criteria for determining the appropriate child custodian. 99 (...continue d) The stab ility of the family unit of the p arents; (5) The mental and physical health o f the parents; (6) The home, scho ol and co mmunity reco rd of the child ; (7) The reas onable preference of the child if t welve (12) years of age or older. The court may hear the preference of a youngerchild upon

request . The prefe

rences of

older chi

ldren sh ould normal

ly be gi ven great

er weight

than th ose of younger ch ildren; (8) Evidence of physi

cal or emot

ional abu se to th

e child, to the ot her parent

or to any other person; provided, that where there are allegat

ions that one (1) paren t has comm itted child ab use, [as define d in § 39-1 5-401 o r § 39-15 -402], or c hild sexual abuse, [as d efined in § 3 7-1-602 ], against a family membe r, the court shall consider all evidence relevant to the physical and emotional saf

ety of the child, and dete rmine, by a cl

ear preponderance of th e evidence, whet

her such abuse has occurred. The court shall include in its decision a written findi ng of all evidence, and all fi ndings of facts conn

ected theret o. In addition, the court shall , whe r e appropriate, re fer any is sues of abuse t o the juvenil

e court for f

urther proceed ings; (9) The character

and behavior of any

other per son who resi des in or freq uen ts th e ho me o f a pa ren t and such per son 's intera ctions with t

he chil d; and (10) Eac h pa ren t's past and potential for future performance of parenting responsibilities, including the will

ingness and ability of each of the parents to facili tate and encourage a close and continuing p arent-child rela tionship betw een the child and the othe r parent, co nsistent with the be st interest of the child

. -6- In this case, Mother had

an impossible burden of proving the truth of the averments contained in her petition and in

the children's a

ffidavits since most of the informati on came directly from her children and the children were prohibited from testifying by the Trial Judg e. As the Tr ial Judge stated at t he commence ment of the hearing:
I want tohear the testimony of the parties and any adult witnesses that you think have any provative (sic)

-- evidence in th

is case relating

to custody. I

'm going to

be lenient in allowing he arsay testimo ny. Not for the p urpose of pr oving w hat's in t he testimony, but perhaps trying to ge t better understanding of the case. And then, after I have heard that testimony then I will make

a decision as to whether I need anything more than hear the preference of the children.

. . . I can ass ure you tha

t this Court is not going to make a decision based on hearsay evidence. But it might help me understand if I feel I need to bring the children in here

as witnesses.

. . . I personally, as you

know, ordered an investigation of the home environment to make sure that I wasn't missing something here on the allegations that there was an immediate threat to the safety of the children. Rule 6 02 of the Tennesse e Rules of Evidenc

e provides that " [a] witness may not testify to a matter unless ev

idence is introduc

ed sufficient to

support a finding that the witness has personal knowledge of the matter. Evidenceto prove personal knowledge may, but need not, consist of the witness's own test

imony . This rule is subject to the provisions of Rule 703 relating to opinion testimony by expert witnesses.”-7-

The essence of Moth

er's argument is that the Trial Judge abused his discretion in not permitting the children, ages twelve and almost fourteen, to testify. Under Rule 601 of the Tennessee Rules of Evidence "[e]very person is presumed competent to be a witness except as otherwise provided in these Rules or by statute" . According to the comment, children are included, but the presumption is rebuttable. Rule 603 of the Tennessee Rules of Evidence provides "[b]efore testifying, every witness shall be required

to declare that th

e witness will testify truthfully by

oat h or affir

mation, administered in a form calculated to awaken the witness's conscience and impress the witness's mind with the duty to do so."
If a witness is competent, the Court is required to

accept his or her testimony, but there are circumstances where the Court should tailor the manner in which the evidence is r

eceived so as to minimize any harmful effects on the witness. We find the failure of the Trial Judge to allow evidencefrom the children was error. See Tennessee Dept. of Human Se rvices v. Norton , 928 S.W.2d 445 (Tenn. Ct. A pp. 1996); Tennessee Dept. of Human Services v. Barbee , 714 S.W.2d 263 (Tenn. 1986) (Eleven and a half yea

rs old child was co

mpetent to testify

and trial court sh

ould have allowed child to testify).
In Higgins v. Higgins , 629 S.W. 2d 20, 22 (Tenn. Ct. App. 1981) this court held that the trial judge "simply failed to exercise his discretion. He was not in position to do so because he declined to hear even the voir

dire qualification of the witness. Without such qualifying evidence, the Trial Judge could not, and this Court cannot, make a just decision as to whether or not the witness was qualified." We f

ind that in this instan

ce the Trial Judge

failed to proper

ly exercise his discretion. He was very adamant in refusing to let the children testify

. The policy of the Trial Judge in respect to testimony of childre n in divorc e cases arises from a co mmendable desire to protec t them from the emot

ional strain andtrauma engendered by the dispute between their pa rents. Howev er commendable the motive and desirable the re sult, the right of the parties to prove the facts and the duty of the Court to

ascertain the facts must take precedence over the natural desire to protect a child from temporary emotional disturbance. Higgins v. Higgins , 629 S.W.2d 20, 22 (Tenn. Ct. App. 1981).
Our cases recognize the Trial Judge can allow the examination of the children in chambers withcounsel and the court reporter present. Rutherford v. Rutherford, 971 S.W.2d 955 (Tenn. Ct. App. 1997). Therefore, it

will be necessary to vac ate the jud gment and rem and to enabl e the Trial J udge to hear evidence

as to the capacit

y of the children to understand the obligation of the oath and if they are f oun d to hav e su ch ca paci ty, t o he ar t hei r te sti mon y.-8-

We also take issue with the Trial Judge concerning the method of determining the number of and the reason for the children being absence and tardy from school. While school records may be the best method of determining the number of times the children were tardy and absent, the school and its teachers usually do not know whether a parent's notes are true or not. The childre n themselves are th

e best source of t

hat information, n

ot school records

. We are concerned that the Trial Judge did not place in the order disposing of the issues at the trial level, the admonishments to the Fat her, particula

rly as to leaving the children alone and the firearms under the daughter's mattress. Father admitted at the hearing t

hat there was a

sixteen gage shotgun under hi s dau ghter's mattress. This is a dangerous practice and should be stopped imm edi ate ly. No child

should be sleeping on top of a gun. For protection of the children, it may be appropriate to

place in effe ct continu ing monito ring of the ch ildren's situation on an unannounced basis. Also, the trial cou

rt may deem

it appropriate to

appoint a guardian ad litem to represent the children's interests in this matter.

IV. CONCLUSION
For the foregoing reasons, we vacate the judgment of the Trial Court and remand to the Trial Courtfor a determination of the capacity of the children to understand the oblig ation to tell the truth, andif they are found to have such capacity , to hear their test imony and for s uch further proceedings as may be necessary c

onsistent with this opinion and collection of costs below. Costs on appeal are adjudged against the appellee, Roy Schrimsher.

_________________________________________ HOUSTON M. GODDARD, PRESIDING JUDGE