# FILED
February

5, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk VICKIE ELAINE SPIEGEL, ) ) Plaintiff/Appellee, ) ) Appeal No. ) 01-A-01-9607- CH-00294 VS. ) ) Rutherford Chancery ) No. 93DR-989 JEREMY PE RCY JUL IAN SPIEGEL, ) ) Defendant/Appellant. )

COURT OF APPE ALS OF TENNESSEE MIDDLE SEC TION AT NASHVILLE

APPEALE D FRO M THE C HANC ERY C OURT O F RUTH ERFOR D COU NTY AT MURFREES BORO, TENNESSEE THE HONORABLE ROBERT E. COR LEW, III, CHANCELLOR

TERRY A. FANN W ALDRON AND FANN 202 West Main Street Murfreesboro, Tennessee 37130 Attorney for Plaintiff/Appellee MARLENE ESKIN D MOSES EISENSTEIN, MO SES & MOSSMAN Suite 500 One Church Str

eet Building Nashvil le, Tennessee 37201 Attorney for Defendant/Appellant

AFFIRMED AND REMAN DED

BEN H. CAN TRELL, JUDGE

CONCUR: TODD, P.J., M .S. LEW IS, J.- 2 - 

## O P I N I O N

The issues on appeal in this divorce case include the restrictions put on the father’s vi sits wi th his minor d aughter and the award of attorneys f ees to the mother. We affirm the judgment of the tri al court.

I. The parties marr ied in Mary land in 199 1. Their chil d, Elizabet h, was born in May of 1993 and the parties moved to Smy rna in August of that year so that Mr. Spiegel could wor k in a company owned by

his mother-i n-law. Mrs. Spieg el filed
a complaint

for divorce on September 30, 1993. Mr. Spieg el moved back to Mary land to work.

The chancellor granted Mr s. Spiegel a divorce and custody of the minor child. He restricted Mr. S piegel’s visitati on by order ing that for a period of one yea r the visitat ion be superv ised and that it take place onl y in the state of Tennessee. On Mrs. Spiegel’s

prayer for

attorneys fees, the court or dered Mr. Spi egel to pay her $7,954.25 and an additional $250. 00 for having to respond to M r. Spiegel ’s motion to alter or amend.

II. Visitation a. Restricted to Tenn essee Mr. Spiegel as ked to be allowed to take the chi ld to Mary land for visitatio n one week

each month. On appeal he asserts t hat the court er red in not allowinghim enough time with the c hild to establ ish a meaningful relationshi p.- 3 - At the time of the trial the child was almost two and one- half years ol d. Mr. Spiegel was living in his mother’s house in Maryland where his mother als o boarded four Alzhei mer’s patients in a six bedroom house. Formerly , the mother had two nurses

and another

assistant l iving in the house, but at the time of the trial, she had none. Mr. Spi egel proposed that the child sleepin his mother ’s room but he w as unclear whether his mother would vacate her bedroom altogether.

In addition, the c hild’s pediatrician testified that she was exhibit ing improper behavior which in his opinion was brought on by the stress o f be ing separated from her mother during Mr. Spiegel’s visits

. He also testified that the child
was going thr

ough an importan t stag e of developi ng her sense of home and of having
a stable ca regiver. Cons equent ly, he test ified, being away from her mother for an extended peri od of time would disrupt the c hild’s emotio nal development

.

The child’s best interests are the prime facto r in struc turing a pl an for how the child’s

time should be di vided between the d ivorced p arents. Suttles v. Suttles , 748 S.W.2d 427 (Tenn. 1988). W e think the chancellor’s decision to restrict visitati on to the state of Te nnessee was in the child’s b est interest and s hould be affirmed.
b. Supervised Visitation

The proof showed t hat in September of 1993 Mrs. Spiegel found us ed condoms, tissue paper, an adult magaz ine, and pictures of their baby daughter in Mr. Spiegel’s car. She hired a pr ivate detect ive w ho observed Mr. Spieg el dispose of the condoms

and t he ti ssue pape r and then drive to a public par k where he masturbated in his car. He admitted that he had done so on several occasions.

Mrs. Spiegel charged that Mr. Spiegel was using thebaby pictur es for the purpose of self-st imulation. Mr. Spieg el denied theaccusation and asserted that- 4 -

he had the pictures in the car to show his family to customers. He admitted that he used bad judgment in his conduct but he de nied any abuse of the child or do in g anything improper in her presence. He presented t he testimony of a psycholog ist who had test ed Mr. S piegel and said that in his opinion Mr. Spiegel was not menta lly ill,
was n ot a s exua l devia nt, a nd was not a thre at to the c hild . The witne ss did say, however, that Mr. Spi egel’s behav ior was abnormal and that he used extremely poor judgment.

The chancellor madethe followi ng findings with res pect to this i ssue:

The Husband has ack nowledged engaging in self-sex ual stimulation in a public place, albeit in hi s car, at a public park. He further acknow ledges that pictures of the child were in his car, however he a lleges tha t the ph otogr aph s we re in the backse at of his car, while the W ife asserts that such photographswe re in the front seat of his car, and she presented evidence w hich she asser ts links t he photographs of the child with the sexual behavior of the Husband. Much of the evidence te ndered by the Hus band tended to justi fy the acts of self-sexual stimulation, bu t the Husband was never able adeq uate ly to address the co mmission of such ac tions in a public place. Dr. Victor P estr ak, who was called by the Husband, appeared to th e Co urt to be a very credible witness, and he further

testified in j ustification of such activi ty, but acknowled ged that the acti on of e ngaging in such beha vior in a park reflects

poor judgment, and testified that such activit

ywas abnormal by today’s standards. Dr. Pestrak found no indication of child abuse on the part of the Hus band, but Dr. John C harles Anders on, who test ified for the Wife, and who never met the Husband but worked as pediatrici an forthe minor chi ld, testified as to a number of proble ms which the child ex hibited wh i ch he te stified were consistent w ith a form of abuse wherein the child may have v iewed the s exual displays of the father. Certa inlythere is no di rect evi dence that the Defendant has used the chi ld for purposes of self-stimulati on. At the same time thereis circ umstantial ev idence that suc h mayhave occur red. The Defendant never ade qua tely explained why

photographs of the child would be loo se in his automobile, at various places within the car, just as physi cal evidence, or residue left as a result of his self -stimulation in the car w a s al so fo und stre wn a bout the v ehic le. The Wife testified that she found th e residue and the photo graphs in veryclose prox imity to ea ch other, w hile the Husba nd testified tha t certainly they w ere some distance apart. Furthe r, Dr. Anders on testified at so me length as to various probl ems which he obse rved t he child to su ffer, yet he acknowledg ed also that each ofthese problems in fact cou ld have been occasioned by some other event th an the- 5 - presence of the child during any such episodes on the part of the father. The Court understands Dr . Anderson’s t estimony to be thatall of the probl ems which h e noted were consistent with the a llege d abu se, b ut th at th ere wa s no c oncl usive evidence.

Mr. Spiegel argues that an order of super vised v isitation must be based
on some finding of abuse or neglect of the child. S ee Sutherland v. Sutherland , 831 S.W.2d 283 (Tenn. App. 1 991); Mimms v. M imms , 780 S.W.2d 739 (Tenn. App. 198 9). In a ddition he cites the 1995 Ve rsion of Tenn. Code Ann. § 36-6-301 which provides: After

making an award of custody, the court shal l, upon request of th e non-custodial parent, gr ant such rig hts of visitati on as wil l enable the chi ld and the non-custodial parent to maintain a parent-child relationsh ip unless the court finds, aftera hearing, that visitat ion is lik ely toendanger the child’s physical or

emotional health. If the court finds that the noncustodial parenthas physical ly or emoti onally abus ed the chi ld, the court may

require that visi tation be superv ised or p rohibit ed until such ab use has ceased or until there is no reasonable likelihood that su ch abuse will recur.

We think , howeve r, that Mr. Spiegel i s incorrec t in asserti ng that an order of supervised visitation requires a spe cifi c finding of abuse o r neglect. The statute might require such afinding in order to deny or terminate visitation altogethe r, but the provi sion wit h respect to s upervised visitati on is permiss ive and doesnot say that the court shall not ord er superv isedvisitat ion absen t a findin g of physical or emotional abuse. This is an area that addresses itsel f to the sound discretion of the trial court, Sherrod v. Wix , 849 S.W.2d 780 (Tenn. App. 1993), and we do not think the legislature intended to remove that di scretion by restrict ing the power to orde r supe rvise d visitat ion to cases i nvolvi ng physi cal or emotional abuse by the noncustodial parent.

We are aware of the r ule of constructi on that says where a statute mentions one sub

ject, other

subje cts, n ot me ntioned , are excl uded. See State v. Harkins , 811 S.W.2d 79 (Tenn. 1991). A strict application of that rule would require- 6 -

a holding that

supervis ed visit ation could be or dered only in casesof phy sical or emotional abuse. W e do not think that is what the l egislature intended. Southern v. Beeler , 195 S.W .2d 857, 183 Ten n. 272 (1946).

Since this is a mat

ter of discret ion, we do n ot think the cha ncellor abused his discretion by or dering super

vised v isitation. Therefore, we affirm his custody and visitation order.

We n ote that the one year limitati on on supervi sed visi tation has now expired and the questi on of visitat ion must be, once again, d ecided. We stress for the benefit of the parties that the questi on is open for a dete rmination on the basis of the child’s best interest.

III. At torney ’s Fees Mr. Spiegel asserts that the chancellor erred in making him pay a part of Mrs. Spiegel’s legal expenses. Since attorneys’ fees are considered a form of alim ony, Gilliam

v. Gilli am , 776 S.W.2d 81 (Tenn. App. 1988), need and the ability of the obligor

spouse to pay

are considered the prime statutor y factors i n review ing an award.

The parties had veryfew assets at the time of the div

orce. They ha d a house in Mary land whic h Mr. Spieg el received in the div ision of the mari tal p rope rty. According to his testi mony the mortg age on the house exceeded its value, but at the time of the decree, the house was rented an d the rent almost covered th e mortga ge payments. Mr. Spieg el’s income w as approxi mately $3,800 per month; Mrs. S piegel earned approx imately $1,35 0 per month.- 7 - The award of a ttor neys fees in divorce cases is largelyin the discr etion of the trial j udge and wi ll not be disturbed on appeal absent a showing of abuse of that discretion. Threadgill v. Threadgill , 740 S.W .2d 419 (Tenn. App . 1987). We do not think the tri al judge abus ed his discr etion in this

case.

The judgment of the cour t below is affirmed and thecause is remanded to the Chancery

Court of Ruther

ford County for further proceedi ngs. Tax t he costs on appeal to the appell ant.

_____________________________ BEN H. CAN TRELL, JUDGE

CONCUR:

_______________________________ HENRY F . TODD, PRESID ING JUDGE MIDDLE SEC TION

_______________________________ SAMUEL L. LEWIS, JUDGEIN THE COURT OF APPEALS OF TEN NESSEE MIDDLE SEC TION AT NASHVILLE

VICKIE ELAINE SPIEGEL, ) ) Plaintiff/Appellee, ) Appeal No. ) 01-A-01-9607- CH-00294 ) VS. ) Rutherford Chancery ) No. 93DR-989 ) JEREMY PE RCY JUL IAN SPIEGEL, ) Affirmed ) and Defendant/Appellant. ) Remanded



### J U D G M E N T
This cause came on to be heard upon t he record on appea l from the ChanceryCourt of Ruth e rford County , briefs and arg ument of counsel; upon consideration whereof, thi s Court is of the opinion that in the decr ee of the Chancello r there is no reversible error.

In accordance w ith the opinion of the Court filed herein, i t is, therefore, ordered and decreed by this Court

that the decree of the C hancellor beaffirmed. The
cause is remanded to the Chancery Court of Rutherford County for the enforcement of t he de cree and f or th e col lect ion o f th e cos ts ac crue d bel ow.

Costs of this appeal are taxed agai nst Jeremy Percy Jul ian Spiegel , for which execu tion may is sue i f ne cess ary.

ENTER _______________________.

_________________________________ HENRY F . TODD, PRESID ING JUDGE MIDDLE SEC TION

_________________________________ SAMUEL L. LEWIS, JUDGE

_________________________________ BEN H. CAN TRELL, JUDGE