# FILED December 9, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk 

### IN THE COURT OF AP PEALS OF

TENNESSEE, WESTE RN SECTION AT JACKS ON

_______________________________________________________ ) GLORIA E. HILL-EVANS , ) Shelby County Circuit Court ) No. 127514-9 R.D. Plaintiff/Appellee. ) ) VS. ) C.A. No. 02A01-9607-CV-00157 ) BREDELL MICHAEL EVANS, SR. , ) ) Defendant/Appe

llant. ) )

______________________________________________________________________________ From the Circuit Cou

rt of Shel by C ounty

at Memphis . Honorable George H. Brown, Jr., Judge Jeffrey Jones , Memphis, Tennessee Attorney for Def endant/A ppellant . Mimi P hillips , PHIL

LI PS, HOWARD & GRUBB, Memphis, Tennessee Attorney for Plaintiff/Appe llee.
OPINION FIL

ED: AFFIRMED AND

REMANDED FARMER, J. HIGHERS, J. : (Concurs) LILLARD, J. : (Concurs)In thi s divorce ac tion broug ht b y Gloria E. Hill-Evans (M other) against Bred ell

Michael Evans, Sr. (Fat her) , the tr ial court

award ed cus todyof t

he partie s’ two minorsons to Mother with Fathe r t o have reasona ble vi sit ati on. Howev er, the t ria l cour t’s de cree further provided that vis itation be sus pended “ unti l both of the parti es andthe c hild ren ha ve compl ete d a cou nselin g program which is satisfactory to the cou rt, and the court has been furnishe d a re portthat the counsel ing cours e has been s ucces sfu lly comple ted. When the counsel ing proc ess has been
succ essfully co mple ted, the court w ill con sider th e defen dan t’s visita tion righ ts.”

The parties were m arried in 198 1 and separa ted in N ove mbe r 199 3. T he c hild ren, Bredell MichaelEvans, Jr. , andBradl ey Levo n Evans we re bor n Apri l 7, 1987, and Apri l 20, 1988,
res pe ctiv ely. At the time of the div orc e Mothe r was living in M emph is and the Fa ther in North Carolina.
Father appeals and presents his issues as f ollows:

I. Whether

the Tri al Court er

red i n fa ili ng to conside r a form of shar ed par enti ng f

or the par tie s, g iven t

he strong partici pati on of Mr. Eva ns in the l ives of h is c hild ren. II. Whe ther the Trial Cou rt erred in refusing to grant Mr. Evans any access to his children or anyvisitati on until he completed joint c oun seling. III. Whe ther the Trial Cou rt erred in finding Mr. Ev ans in violation of an injuncti on against disposition of mari tal assets.

Our revi ew of

the matter is de novo on the record with a presu mption that the tr ia l court’s fi nding s of

fa ct are c orr ectunles s the prepo ndera nce of the e videnc e is otherwise. Rule 1 3(d) T.R. A.P. In a suit for divorce, where cus tody of minor child ren is a question , the court may award the care, custody , and control of t he minor children to either of the parties or to both in the instance of joint or shared custody, as the we lf are and i nter ests of t

he chi ldre n may demand. T.C. A. § 36- 6- 101(a) (1) . In the pres ent c ase, both parti es sou ght cust ody o f t

he chi ldre n.

CustodyThe primary concern of the trial court and of t his Court in determining issues of child cust ody is the bes t inte rests and wel fare o f t he ch ild. Barnh ill v. Barnhill , 826 S .W.2d 443 , 453 (Tenn. App . 199 1). The courts routinely employ a comparative fi tness analysi s, whereb y the court determines whic h of tw o or m ore av ailable custo dian s is mo re fit than o thers. Bah v. Bah , 66 8 S.W.2d 663, 66 6 (Tenn . App. 19 83); Edwards v. Edwards , 501 S.W .2d 283 , 290 (Ten n. App . 1973). Trial court s ar e vested with wide di scr eti on in ma tte rs of chil d cust ody and thi s Court willnot interfere exce pt up on a s how ing of ab use o f discretio n. Marm ino v. Marmino , 238 S .W.2d 105 , 107 (Tenn. App . 195 0). By s tatute, there is “nei ther a pre ference n or a p res umptio n for or ag ains t j oint legal cust od y, joi nt phy sical cus todyor so le c ustody . . . . ” Tenn. Code Ann. § 36-6- 101(a) (2) (1996). Nevertheless, t he practical problems of joint custody have been repeatedlyacknowledged by thi s Court , par

tic ularly “wher e the re i s hostili tyand ill will between the parents.” Jones v. Jones , No. 01-A- 01-9601- CV-00038, 1996 WL 512030, at *4 (Tenn . App. Sept. 11, 19 96); see Malone v. Malone , 842 S .W.2d 621 , 623 (Ten n. App . 1992); Dodd v. Dodd , 737 S .W.2d 286 , 289- 90 (Tenn . App. 1987 ). Joint

cust ody a

rrangeme nts “ depend f

or their succe ss on ahig h deg ree of c ooperation between the parents, so it is perhaps not surprising that they should frequently f ail.” Jones , 19 96 WL 512030, at *5.

In ord er fo r j ointcust od y to work, it has been this Cou rt’s experience that it is extr emely

important

that the p are nts ha ve open l ines of comm unication . It

is firmly established in
our jur ispr

udence that , i n case s invol ving the c ustod y of mi nor ch ildren, t he bes t i nter est of t

he children is the para mo un t con sid erati on . Ho we ver, the b est in teres t of th e ch ildre n is o ft e n int ertw ine d w ith the rela tio ns hip be tw een the pa ren ts w he n c on sid erin g jo int cu sto dy.

The record reveals that

the F athe r at

one poi nt went

for a period of

six wee ks without seeing the childr en. His explanation was that he coul d not a ff

ord the tr ip t o Memphis. He didnot att end their baptism or Christmas play . Mother testif ied that during the period of s eparation Father physically abuse d her in the pre sence of t he children. He sto pped p aying child support f or a p eri od of several mo nths. His ex pla nat ion wa s that, al though he was not paying Mother directly , he was pay ing other

expense s f

or the chil dren. On another oc casi on he t ook the children from M emph is to North Carolina, enrolled them in school there, and ref used to tell Mother of t

heir where abouts . The record disc lose s that these p are nts we re una ble t o communic ate reg ardi ng vi sit ati on. This inability to communic ate is no ted by the t ria l j udge when he made the f ollo wing comments fr om the b ench:I mean, you don’t have to be Sigmund Freud to conclude that they have commun ications problems. I mean, if Ms. Evans has to write a letter, these lett ers as detail ed as t hese are, and stil l aft er com mun icating, as detailed as tho se letters are , they don’t comm unicate or re ach an un der standin g, the n th ey nee d some help in com mun icating.

. . . . The Courtis of

the opinion that Ms. Evans ha s been operating under clouds of second guess and that the re ought to be some clear and unequivocal and definitive resolution as to who will direct these children. I

believe at this time it ought t o be Ms. Evans. Now, by making that d eci sion i n thi s cas e, t he Court is no t sugg esti ng that Mr. Evan s is an u nfit paren t, quite th e con trary. Iam concl uding that the se parti es at this time n ot join tly parent. It just has not and it shall not wor k beca use Mr. Evans t hinks h e oug ht t o be runni ng the railroad, and unless I gi ve him the t ota l r ail road to run, then i t’s not g oing to be . It’s just not g oing to work. The se parti es can ’t agree tha t today is T hurs day.
In granting custody to the M other, the trialcourt furt her provided in the decree that “Ms. Evans is hereby ordered to i nform Mr. Evans of all such decisions when they are made, and to make arr ange ments with t he chi ldre n’s s chool for Mr. Eva ns to r ecei ve all notices norm ally sent to parents, i nc l ud i ng bu t no t l i mi t ed t o c op i es of al l r ep ort car ds , sc he du l e o f sc ho ol ev en t s, etc. ” We beli eve that the fact the trial court feltit necessary to include this provision in the decre e illustr ates the c ourt ’s c oncern overthe p are nts’ lac k of communic ati on.

Mr. Evans admitted that, when he enrolled the children in school in North Carolina, he execu ted a form for the scho ol wherein he stated that the children were remo ved from M emph is by emergencycourt order, which was untrue.

The rec ord f

urth er reveal s that, when thechil dren w ere retur ned to Memphis f rom North Carolina, Mr. Evans rented an apar tment , pu tt ing the le ase , ut il it ies , t ele phone , a nd so me re nted fu rni tur e i n hi s na me. He then s topp ed pa yme nt f or a ll of the abov e, fo rci ng h is wi fe an d children to vacate the apartment and move into a motel. He then notif ied the Tennessee Department of Human Services that Ms. Evans was neg lec tingthe c hild ren be cause they were havingto sl eep on pal let s i n th e mot el room.

Mother test ified tha t Fa the r ha d a n o ve rrid ing be lief t ha t do cto rs a re n ot n ece ssa ry an d that he refused to acknow ledge when any of his children hav e medical n eeds. As an exam ple Mothertestif

ied that when one of the chi ldren was a baby, she noticed that he was holding his arm in an unusual positi on. When she a sked he r husb and what had occ urr ed, h e sai d that he had b een pl ay ing with the c hild and t hat he ha d hurt his a rm. She as ked hi m to ac companythe c hildto the doct or w hich he refused to do. She took the child t o the hospital and it was determined that his arm was disl ocat ed. She said that h is response was that h e wa nted to “make a man out of Bredy that I was treating h im like a bab y . . . . ”

Aftera careful review of this record, w e do no t find the eviden ce to prepo nderate against the trial court’s finding that custo dy of the minor child ren be aw arded to their M other.
Contempt

Mr. E vans was e njoi ned f rom: Disp osin g, tr ansf

erring , enc umbe ri ng, loan ing, trans portin g, concea lingor rem ovin g from this jurisd iction or in an y way redu cing, modif yi ng or comp romising the interest o f either party in th eir join t or indiv idua l prop erty of any kin d, inclu ding, but not li mite d to, bank accounts, sto ck , jew elry, furniture, automobiles, and real estate, with the excep tion of reasona ble and ordin ary monthly payments on joi nt expenses or joint debts such as house note, ren t or utilities, until further o rders o f this Co urt to th e con trary.

M r. Ev an s ad mi tted tha t he vio late d th e in jun ctio n b y the foll ow ing tes tim on y:

Q. Ok ay, and, Mr. Evans, after you were a ware o f t

he inj uncti on of the Cou rt on the assets, you, in spite of that, took 10,894 dollars out of your Federal Ex press retirement fun d in March of 1994, didn’t you? A. Tha t’s corre ct. Contempt

consi sts of wi llf

ul di sobedi ence o r obst inac y i n ref

using to obey an order of the c ourt . Here the appel lant was puni shed f

or fa ilure to c omply with the pr iororders of the cou rt, conduct which would con stitute cr iminal contempt. Criminal conte mpts are pun iti ve in na ture , and the purpos e of criminal contem pt proceed ings is to vindicate the authority of the law and the co urt
as an orga n of so ciety. Crabtree v. Crabtree , 716 S. W.2d 923, 925 (Tenn . App . 198 6) (citin g Shiflet v. State , 400 S.W.2d 542 (Tenn . 1966)). While acknowledging that he violate d the court’s order,Mr. Evans contends that he was just if ied i n doing so. This rea soningis rele vant to the issu e of punish ment, and no t the issue of contem pt. D v. K , 917 S .W.2d 682 , 685 ( Tenn. App. 1995 ). The trial court sentenced him to two days in jailfor contempt but suspended all but four hours.

Mr. Evans argues on ap peal that the injun ction was not sufficiently specific in terms. We respe ctf

ully disa gr ee. The tria l cour t st ate d:

I fi nd Mr. Evans in conte mpt of c ourtfor his d isobe dienc e of the Court’s ord er e nj oini ng hi m fr om the Cour t’s ear lie r i njunction when he withd rew his mo ney from his retirement. The C ourt is of t he opini on tha t no t on ly di d h e d iso be y the Court’s order t hen, he has fai led t o pay obli gations betwe en Sept ember ’94 an d November ’95 when he had the abilityto do and that his attit ude has been generally conte mptuous of the Court’s orde rs, butparti cul arl y o n th ose two occasions, for the record, the Court is basing hi s conduct on those occa sion s as a b asis of find ing him in con temp t.

The tr ial court ’s f

indi ng of conte mpt i s af

fi rmed.

Visit atio n
Father contends that the tri al court erred in s uspending his visitation. The decree provide s that:

The Defendan t’s ri ght to h ave vis it ati on wi th t he part ies ’ t wo minorchi ldr en s houl d be and t he s ame hereby is suspen ded un til both of the p arties and th e chil dren h ave co mplet ed a counseling program which is sa tisfa cto ry to t he Court, and the Court has been furnished a report that

the counseling course has been succe ssf ully comple ted. Whe n the co uns eling pro cess h as bee n suc cessfu lly comp leted, th e Co urt will c ons ider the Defen dan t’s visita tion righ ts. Subseque nt to the entryof the f inal divorce decree on M ay 22, 19 96, a consent order was entered by the tr

ial court with r espect to visitation as follows:

IT APPEARING TO THE COU RT that the Defendant has f i led a Petiti on to e stab lis h spec if ic vi sit ati on ri ght s with the minor c hildren of the parti es; and the parties and thei r respective counse l beli eve that the Defendant presentl y should be allowed sp eci fic visi tation ri ght s bet ween the dat es of Decembe r 22, 19 96, th rough Janu ary 1, 1997 , at

hi s ho me pla ce i n North Carol ina; and that t he Defe ndantshal l be respon sible for alltr ansportation co sts att endant to his visita tion ri ght s and he shal l r eturn the minor chil dren to the Plai ntif f on January 1, 1997.Defe ndanthas completed the p are ntin g cla sses as r equired by the Cou rt. IT IS THEREFOREORDERED, by conse nt, that the p revi ous Orders of t

his Cour t are modif

ied to allow the D efendant certain holi day visi tation privilege with his mi nor ch ildren pendi ng he ari ng of his temporary visi tation Pe tition, and which sa id holi day visi tation privileges shal l con s ist of v isi tation rig hts i n North Carol ina f rom Dec emb er 22, 1 996 , throu gh Jan uary 1, 19 97.

In addition, du ring the presentation of oral argument before this C ourt, coun sel f or the ap pell ant announced that the parti es had worked out and the trial j udge had approved summervisi tation of one and one-half months during the summer of 1997, and counsel for the appellee advised t he Court that “pursua nt to an agreemen t between the parties and w e went to J udge Bro wn an d we said that they had agreed that he couldhave t hem f or a l arg e part of

the s ummer that he had compl ete d the counsel ing and so we ente red a conse nt or der on that .” In view of the above, w e believe that it wo uld be prope r and in the bes t i nter est of t he chi ldre n to re mand this matter to the trial court to allow it to reexam ine the Father’s visitation rights. The judgmen t of the trial court is in all other respects aff irme d. Co sts of th is a pp eal are tax ed to th e ap pe llan t for wh ich ex ecu tio n m ay is su e if n ece ssa ry.

____________________________________ FARMER, J.

______________________________ HIGHERS, J. (Concurs)

______________________________ LI LLARD, J. (Concurs)