# FILED January 13, 2000 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF AP PEALS OF TENNESSEE, AT JACKSON

____________________________________________________________ ) JOSEPH EDMUND STEP HENSON and ) Shelby County Circuit Court NORMA NUNN STEPH ENSON , ) No. 155831 R.D.

) Plaintiffs/Appelle

es, )

) C.A. No. W1998-00668-COA-R3-CV VS. ) ) KEITH ALAN WEST , ) ) Defendant/Appe

llant. ) )

______________________________________________________________________________ From the Circuit Co

urt of Shelby

County at Memp

his. Honorable Robert A. Lanier, Judge
David E. Caywood , Memphis, Tennessee Stacy A. Ingle , Memphis, Tennessee Attorneys for Defendant/Appellant
John R. Branson , James M. Allen , BRANSON & BEARMAN, PLLC, Memphis, Tennessee Attorneys for Plaintiffs/Appellees

OPINION FIL

ED: AFFIRMED IN P

ART, REVERSED IN PA RT, MODIFIED AND

REMANDED
FARMER, J. CRAWFORD, P.

J., W.S. : (Concurs) LILLARD, J. : (Concurs)This is a dispute involving two minor children, Kathleen and Scott West. Defendant

Keith West is the father of Kathleen and Scott while Plaintiffs Joseph and Norma Stephenson are the children’s maternal grandmother and step-grandfather. Mr. West appea ls an order of the trial court granting the St

ephensons’ requ

est for custo

dy of Kathleen and visitation with Scott and awarding the Stephensons ch ildsupport and a ttorney’s fees. For the reasons set forth below, we affirm in part, reverse in part, modify and remand.

Factual and Procedura

l History

In January of 19

96, Lauren We

st was killed in

an automobile

accident. Lauren was the wife of Mr. West

and the m other of Kathleen and Scott. At the time of the hearing that is the subject of this appeal, Kathleen was sixteen years of age and Scott was twe lve. The Stephensons are Kathleen and Scott’s maternal grandmother and step-grandfather. After Laure n’s death, Mr. West initially maintained a close relationship with the Stephensons. Mr. Stephen son gave Mr . West advice about buying

a car and on leg

al matters whil

e Mrs. St ephenson gave Mr. West advice regarding his personal life. Specifically, when Mr. West began dating a woman named Donna , Mrs. Stephenson recommended tha t he take his time bef

ore dating ag

ain. Mr. West thoug

ht that this advice was inapp

ropriate. Mr. Wes

t’s relationship

with the Stephensons further deteriorated after
an incident in June of 19 96 involving the St

ephensons’ adult son Stewart. Mrs. Stephenson attempted to prevent Stewart from driving while intoxicated. Stew art beca me angry and began yelling and banginghis fists on the hood of the car while Mrs. Stephenson and Scott were in the car. After this incident, Mr. West prohibited Kathleen and Scott from visiting the Stephensons at their home. Additional ly, Mr. Wes t informed the Stephensons that he no longer wanted to have any contact with them.

Mr. West’s relationship with Kathleen began to break down when Mr. West married Donna in September of 1996. During October of 1996, the conflicts between Kathleen and Mr. West escalated and they began having

frequent arg

uments. Kathleen

called the Stephe

nsons and asked if she could move in

with them. The Stephensons told Kathleen that she could come over anytime but encouraged

her to work t hings out with Mr. West. Kathleen finally left home on October 30, 1996 and moved in with the Stephensons. Since the move, Kathleen’s grades hav e dro ppe d dr ama tic all y.Also after the move, Mr. West wrote a series of letters in which he

renounced his re

lationship with Kathle en and indicated his b elief that he was

no longer respo

nsible for her. A

dditionally , Wes t informedKathleen that she was no longer allowed to maintain a relationship with Scott. In August of 1997, the Stephensons removed Kathleen from her high school in Memphis and sent her to the Patterson School in North Carolina. Kathleen’s poor a cademic p erformance continued and she developed serious disciplinary problems. Eventually, she was expelled from the Patterson School for serving as a loo

kout for some

other students who were smoking marijuana. After her expulsion, Kathleen was re-enrolled

at her former hig

h school in Memphis. Sh e withdrew from th

is school in January of 1999, however, expressing an intent to either obtain employment or pu rsue a gen eral education degree (GED).

On a few occasions, the parties have attempted to meet in an effort to r epair the ir relationship. For example, on one occasion, Kathleen bought gifts for Mr. West and Donna and prese nted them during Than ksgiving dinner

. Mr. West, however

, thought that thes

e giftswere i n poor taste and returned them to Kathleen. On another occasion, Kathleen made plans to have lunch withDonna but Donna cancelled the meeting because she was busy. During the period of time that Kathleen was at the Patters on School, Donna tol

d Kathleen t hat she woul d call her rega rding a possible visit. Kathleen obtained permission for the visit, but Donna never called her to make the
ar rangements.

Finally, Mr

. West and Donna invi

ted Kathleen to vis

it them during the

holid ays . When Kathleen returned to Memphis and called them, however, she discovered that they had made plans to go out of town.

In May of 1997, the Stephensons filed a petition seeking custody of Kathleen and visitation with Scott. They later amended th

is petition to allege that Mr. West had abandoned Kathleen. Mr. West fil ed ans wers to both the petition and amended petition in January of 1998. After a four day hearing in May and June of 1998, the trial court issued an order granting the Stephensons’ request for custody of Ka thleen and visitation with Scott. The Stephensons subsequently

filed a motion seeking child support, attorney’s fees, expenses, and discretionary

costs. Ad diti ona lly, Mr. West filed a motion to alter or amend the trial court’s ruling with respect to the custody of Kathleen, accompanied by an affidavit stating that he was willing to execute any document necessary

to give the Stephen

sons the authority

to make daily business and legal decisionsfor

Kathleen. On August 27, 1998, the trial court issued an order denying Mr. West’s motion to alter
or amend its ruling and an order granting the Stephensons’ request for child support, atto

rney’s fe es, expenses, and discretionary costs. Mr. West filed a notice of appeal. In January of 1999, the parties appeared before a divorce re feree r egarding the matters of child support, attorney’s fe es, and expenses. Mr. West subsequently filed a petition with the trial court (1) seeking termination of the Stephensons’ visitation with Scott, (2) asking the court to denythe Stephensons’ request for attorney’sfees, and (3) appealing the divorce referee’s ruling regarding child support. Afte r a he aring on thes e matters, the trial court issued an order (1) denying Mr. West’s re quest for termination of visitation, (2) modifying the divorce referee’s ruling to reflect that Mr. West’s chil

d support obligation is retroactive to June 15, 1998, (3) ordering Mr. West to pay a portion of the attorney’sfees incurred by the Stephensons in connection with the June 1998 custody hearing, (4) declaring that the parties shall be responsible for their own attorney’s fees incurr ed in c onnection with Mr. West’s current petition, and (5) assessing costs against Mr. West.
Issues and Standard of Review

The issues raised

on appeal, as sta

ted by Mr. Wes

t, are as follows:

1. W hether

the trial court erred in awarding the Stephensons custody of K

athleen West? 2. Whether

the trial court er

red in ordering

Mr. West to pay the Stephensons child s

upport for Kathle

en West? 3. Whether

the trial court e

rred i n awarding the Stephensons visitation with Scott West pursuant to T.C.A. §36-6-306? 4. Whether

the trial court er

red in deny

ing Mr. West’s pet ition to modify visitation order? 5. Whether

the trial court er

red in awarding

the Stephenso ns attorney’sfees incurred i n the proceeding

s whic h led to the court’s order of June 15, 1998?

To the extent that the

se issues involve questions of fact, our rev iew of the trial c

ourt’s ruling is de
novo with a pre sumption of correctness. See T.R.A.P. 13(d). We m ay not reverse th ese findin gs unless they are contrary

to the preponderance of the evidence. See, e.g., Randolph v. Randolph , 937 S.W.2d 815, 819 (Tenn. 1996); T.R.A.P. 13(d). With respect to the trial court’s

legal conclusio

ns,1 During the pend ency of this

appeal, Kathlee

n reached the a

ge of majority

. Thus, as a practical matte

r, the custody

of Kathleen is no lo

nger at issue. We

nevertheless ad

dress this matter, however, because it affects our review of the trial court’s ruling with re spect to the issue of child support.

2 This preference in favor of a parent in such cases is subordinate, however, to the we lfare and best interests of the child, which are the primary factors that the cour t must consider. See Doles , 848 S.W.2d at 661.

3 The trial court sp

ecifically found that Mr. West w

as not an unfit par

ent.
4 With respect to this d

anger of harm

, the court stated

as follows: If, therefore, a practical abandonment which might support a te rmination of the parent-child re

lationship exists, ca

n it be said that no “substantial harm” will occur to the child by continuing the abnormal relationship? In the opinion of the court, it cannot. If Petitioners, upon whom circumstances have thrust the responsibility

for Kathleen, do

not have the powe

r to make the nece

ssary daily business and legal decisions for her care, she will be subjected to the threat of substantial harm. however, our

review is de novo with no presumption of correctness. See, e.g., Bell ex rel. Snyder
v. Icard, Merrill, Cullis, Timm, Furen and Ginsburg, P.A. , 986 S. W.2d 550, 554 (Tenn. 1999); T.R.A.P. 13(d).
Child Custody 1

Under the Tennessee Constitution, parents havea fundamental ri ght of privacy

with respect to the raisi

ng of their children. See Bond v. McKenzie , 896 S.W.2d 546, 547-48 (Tenn. 1995); Hawk v. Hawk , 855 S.W.2d 573, 579, 5 82 (Tenn. 1993). Accordingly, in a child custody disput e between a par ent and a third party, the rights of the parent are pre ferred over those of the third party, eve

n when th e third party is the child’s grandparent. See Doles v. Doles , 848 S.W.2d 656, 660 (Tenn. Ct. App. 199 2); Bush v. Bush , 684 S.W.2d 89, 93-94 (Tenn. Ct. App. 1984). 2 This right of parental privacy gen

eral ly ma y not be disturbed unless the parent has been shown to be unfit, 3 see Doles , 848 S.W.2d at 660; Henderson v. Mabry , 838 S.W.2d 537, 540 (Tenn. Ct. App. 1992); Bush , 684 S.W.2d at 93-94; Cooper v. Cooper , 673 S.W.2d 152, 153 (Tenn. Ct. App. 1984),
or unless the court finds that the child would be subject to the danger of substantial harm if in the custody of his or her pare

nt, 4 see Petrosky v. Ke

ene , 898 S.W.2d 726, 728 (Tenn. 1995); Bond , 896 S.W.2d at 548; Hawk , 855 S.W.2d at 577, 579, 582; Webb v. Wilson , 980 S.W.2d 372, 375 (Tenn. Ct. App. 1998). Only then may the court apply

the comparative

fitness test to dete

rmine whether it is in the child’s best interests to be in the custody of the parent or, rather, whether the best

interestsof

the child demand that he or she should beplaced in the custody of the third party. See Petrosky , 898 S.W.2d at 728; Bond , 896 S.W.2d at 548; Hawk , 855 S.W.2d at 579-80; Webb , 980 S.W.2d at 375.

In Henderson v. Mabry , 838 S.W.2d 537 (Tenn. C t. App. 1992), this Court recognized

a narrow exception to the general rule that a finding of parental unfitness or substantial harm is required before a court may place a child in the custody of a third party rather than in the custody of the child’s par

ent. At the time of th

eir divorce in

1985, Gary and Barbara

Mabry agreed that their two minor children, ages four and seven, would remain in the custody of Ms. Mabry. See id. at 538. Following the divorce, Ms. Mabry and t he child ren moved into the h

ome of David Henderson, whom Ms. Mabry married in 1989. See id. When Ms. Mabry died in 1990, Mr
. Hendersonfiled a

petition seeking custody of the children,which was contested by Mr. Mabry
. See id. After a

hearing on the matter, the trial court determined that the evidence had failed to show that Mr. Mabry is an u

nfit parent but nevertheless awarded “absolute custody, car e andcontrol” of the children to Mr. Henderson. See id. at 539, 540. On appe al, this Court agr

eed with the trial court’s finding regarding parental fitness and stated that “the children should be entrusted to the custody of [Mr. Mabry] unless exigent and compelling circumstances require otherwise.” Id. at 540. We then concluded as fol

lows:

It is uncontroverte

d that, for six y

ears, the children have lived in the home of David

D. Henderson, who has been a good step-father to them, and that the re is a bond of affection, trust and dependence betweenthe children and D avid D. Henderso

n, which is especi

ally important to the children following the tragic loss of their mother. This Court concurs with

the conclusion of t

he Trial Court th

at, under the circumstances, it would beinjurou s to the children to remove them at this time from the familiar and f avorable environment which they have occupied for six yea rs.

. . . . In co nformity with the foregoing, the judgment of the T ria l Courtin respect to cust

ody is modifie

d to delete

therefrom the words “absolute custody, care and control”, and to substitute therefo r the words, “temporary custody” and to substitute the word “ entrusted” for the word, “awarded”. The intent of this modification is to assure full co nside ration of entrusting custody of the children to their natural father so long as he is a fit custodian and when the present exigent circumstances no longer require custody in another.Id. at 540-41.

In the instant case, Mr. West wrote

a series of letters expressing his belief that he no longer had a relationship wi th Kathleen a nd that she was no lo nger welcome i

n his home. These letters provide in

pertinent part a

s follows:
[December 6, 1996 letter to Kathleen]

For many reaso

ns that won’t be possible given the current state of affairs. Your presence alone is uncomfortable and disrupting to them all.

. . . .

. . . Up until you wr

ote that letter, D

onna was still

wanting to try and get you back home, but no more. . . .

. . . .

. . . Also, I’d appreciate it if you don’t come into the house anymore withouteither Donna or I here. We’ll be instruct in g Jennifer and Mrs. Doris to not let you in.
[December 6, 1996

letter to the Stephe

nsons]

However, as I told her the night she lef t - once she walked out the door, she wasn’t coming back.

[March 2, 1997 letter to Kathleen]

I’ve really had

three choices f

or some time now - to leave you there, to remove you and send you to a place like French Camp, or to bring you back home. The last was really not an option, as I’m not going to put the rest of the family here through what happened the nig ht you left again. . . .

. . . .

. . . I’m going to be sending Joe and Norma a medical release form that will allow then [sic] to take you wherever they want to. I reallydon’t care anymore, when or where y ou go.
[March 2, 1997 lette

r to the Stephenson

s]

These will be your p

roblems to deal with. Feel free to take her where you will, buy

her what yo

u want, let her do w

hatever she wan

ts.

. . . . Driving. I’m going to check on the liability issues here, but once she gets to driving age I want to make sure that her insurance a nd car titling is such that I

am not under any liability. Bottom line, she wi ll be your total responsibility, both to get the car , and i nsuri ng her. If I have ANY legal liability, I will not allow her to drive. So, I’ll send what my exact req

uirements are on

this before I ’ll allow her

to start driving. College. Should sh

e go to college

, I will not pay

for any of i

t. Social Security. Once she turns 18 t his account will be

hers. Until then, it will remain in the account, as she clearl y has no need of m one y. The account is at NationsBank, and all monies ar e automatically deposited. Medical. I will continue

to have her under

my medical plan, until she is 18, at which point sh

e’s on her own. Along with the medical release, I’ll also be sending her medical ca r d, which outlines all her insurance stuff. Any

out-of-pocket expenses will be yours to handle, regardless of

the amount.
[May 4, 1997 letter to Kathleen]

We plan on leaving i

n July. I saw

no reason to notify

you until now, as I felt no obligation to, as you really

aren’t part of th

is family anymore. Yourgrades. . . . No point in saying much on this - I just hope y ou realize what you’re doing. I think it’s important that y ou understand that I will not be there to bail you out should you do poor ly. . . .

. . . .

. . . The night you left and went to Joe and Norma’s, I wa s no longer responsible

for you, or obligated to you, in any way. However, I tried for 6 months to keep some semblance of direction and discipline for you, but finally gave t

his up as a futile effort. You will NEVER know how much p ain I went thr ough during tha

t time in trying

to keep some hold on you, in the hopes you would return, but i

tfinally got too much for me to

deal with, so I

finally dec

ided to cut you loose com ple tel y. I finally have some peace n ow, and don’t worry about you anymore, as I finally

re alized that you chose the life you’re leading, and turned your back on me.Unf ort una tel y, I was again thrust into having to deal with your actions by Joe and Nor ma, whe n th ey insi sted I take you back on Friday night. I want to make

sure you kno

w that I empha

tically said

I would not take you back . . . .
[May 4, 1997 le

tter to the Stephen

sons]
Any options that have to be considered are yours, not mine. You and Norma caused this si

tuatio n, you’ll hav

e to deal with it. I

will not. Whatever problems she caus

es, they’r e yours to de

al with - she’s in your care, not mine. If you

choose to put her in “Juvenile Court”, as you emphatically mentioned last night - then that’s y

our decision to do so. Next problem that aris es from her that you hav e a hard time dealing with - don’t call me. I’ll just hang up on you a gain. . . .

. . . . Just to reiterate

a point I made a couple of months ago . . . I will not pay for anything re

garding Kathleen. She is totally on her own. . . .

. . . . Since I’m moving out-of

-state this summer, I’ll be removing Kathleen from my medical insurance. I’m g iving you a head’s up so that you can obtain insurance fo r her . I’ll probably remove her at the end of June.
[May 27, 1997 letter to Mr. Stephenson]

This is a reminder - I will be dropping Kathle en from all my insurance’s [sic] in June. This includes dental, medical,

AD&D, and life.

At trial, Mr. West

testified that in or

der for Kathlee

n to return to his

home, she must satisfy a number of condi tions includ ing showing remorse, obtaining help, and working on her problems. When asked whe ther he could conceiv

e of any wa

y that Kathle

en could return to

his residence, Mr

. West responded that he

could not. Additiona

lly, Kathlee

n testified as foll

ows:
Q. Your

dad says words to the

effect of if y

ou initiate effor

ts to rec oncile and you go get counseling and accept responsibility and show remorse, then maybe you can gradualy be re-acclimatized into the family
. Do you think that’s going to work?

A. No. Q. Why not?5 Specifically , the duration of a

parent’s support

obligation is expla

ined as follows: Parents shall continue to be responsible for the support of each child for whom A. Because it’s no

t just all my fa

ult. Q. Whatwould you do if you were told you could move

back to your dad’s house? A. I wouldn’t – I don’t think I would go.

On appeal, the Stephensons argue that there are “exigent and compelling circumstances”

in the case at bar warranting the application of the

exception recog

nized in Henderson
. We agree. As evidenced by th e letters and test

imony discuss

ed above, Mr. West renounced

his relationship

w ith and obligations to Kathleen. At the time of trial, he expressed a desire to reconcile with Kathleen, but placed a number of conditions on this reconciliation. Kathleen
was unwilling to comply with these conditions and doubted that reconciliation was possible. Thus, the trial court was confronted with an impossible situation. It could have ordered that Kathleen be retu rned to the home of Mr. West. Mr. West candidly stated, however, that Kathleen was not welcome in his home unless she was willing to satisfy certain conditions with which Kathleen had refused to comply. Instead, the trial court devised a temporar y custody arrangement similar to the
one endorsed in Henderson , stating that “for the present, in this unique set of circumstances, custody must be placed where responsibility already lies - with Petition ers” T he trial court’s ruling recognizes the practical problems with returning Kathleen to Mr. W est’s home. Additionally, by using language sug

gestin g that the cu stody arrangement is temporary one, the court does not preclude the possibility that, in the event of a future reconciliation, Kathleen may return to Mr. West’s home. Because we fi nd t hat thi s is an ap pro pri ate case in w hic h to app ly t he “exigent and compelling circumstances”

excepti on r ecognized in Henderson , the trial court’s ruling with respect to the custody of Kathleen is affirmed.
Child Support

Mr. West a

r gues on appeal t

hat the trial cour

t erred in order

ing him to pay

child support to the Stephensons. We disagree. Under Tennessee law, a parent has a duty to s

upport his
or her minor child. 5 See State ex rel. Grant v . Prograis , 979 S.W.2d 594, 600-01 (Tenn. Ct. App.they are r esponsible after

the child reache

s eighteen (18)

years of a

ge if the child is in high school. The duty of support shall continue until the child graduates from high school o

r the class of whic

h the child is a membe

r when the child attains eightee

n (18) yea rs of age gra

duates, whicheve

r occurs first. Tenn. Code Ann. § 34-11-102(b) (1996). 1997)(citing Smith v. Gore , 728 S.W.2d 738, 750 (Tenn. 1987); Hall v. Jordan , 227 S.W.2d 35, 39 (Tenn. 1950); Tenn. Code Ann. § 31-11-102 (1996)). Thus, Mr. West had an obligation to support Kathleen regardless of

whether she was

in his custody or in

the custody o

f the Stephensons.

When
a parent fails to sup

port his or her chi

ld and such support

is p rovi ded to t he ch ild by a t hir d pa rty, the third party

is entitled to reimbursement from the parent under the theory of implied contract. See Prograis , 979 S.W.2d at 601. I t follows, then, that the Steph enson’s are enti

tled to reimbursement for the support that they provided to Kathleen while she was in their care.

The divorce refer

ee in itia lly ruled tha

t Mr. West became o

bligated to pay

child support to the Stephensons on October 30, 1996, the date that Kathleen left home and began residing withthe Stephensons. The trial court modified this ruli ng, however, stating simply that “[i]n view of the peculiar circumstances of this case, this court is of the opinion that chi

ld support should not beg in until the date of this court’s order in this case, which was June 15, 1998.” We find n o evidence in the record or legal justificat ion to support this modifi cation. Mr. West ce

ased his support of Kathleen when

she moved out of his

home on October 30, 1996, not when the trial court entered its order on June 15, 1998. Likewise, the Stephensons began supporting Kathleen on October 30, 1996, not June 15, 1998. We therefore modify the trial court’s ruling to reflect that the ruling of the divorce referee regarding child support is reinstated and that Mr. West’s obliga

tion to pay support to the Stephensons is retroactive to October 30, 1996, the date on which Kathleen began residing with them.

Visitation

As stated above, the trial court granted the Stephensons’ petition for visitation with Scott, specifying

that the Stephensons shall have no less than four hours of visitation during every other month. The c

ourt explained its ru

ling as follows:Under the law of this

state, there appears to be a presumption that per manent

loss of the relationship with grandparents would be a “severeemotional and psychological blow to the chi ld . . . and substantial danger to the welfare of the child.” T.C.A. § 36-6-307 (a). Unlike the case of c ustody of a child, the law of this state does not demand that visitation be left to the discretion of the single parent and, where the court

finds it in the best in

te r est of the child to have somevisitation with the grandparents, it may be permitted. The court has considered the factors set forth in the statute [T.C.A. § 36-6-307 (d)(2)] and finds that

someminimal visitation wit h the grandpar

ents will be in the best interest of the child.

As an initial matter, we find that the trial court’s reliance on section 36-6-307(a) of the Tennessee Code A

nnotated is misplac

ed. Section 36-6- 307 is entitled “Vis ita ti on rights of parentsadopting relative or stepparent.” Subsection (a) of this provision applies on

ly “[i]f a relative
or a stepparent adopts a child.” Tenn. Code Ann. § 36-6-307(a) (Supp. 1999). In the instant case, Scott has not been adopt

ed by Mr. West

’s current w

ife Don na o r by a ny other relative. Thus, the rebuttable presumption of

substantial danger set forth in section 36-6-307(a) does not apply. Rather, the present case is governed by section 36-6-306 of the Tennessee Code Annotated, which provides in pertinent part a

s follows:
(a) If: (1) Either the father or mother of an unmarried minor c

hild is deceased; (2) The c hild’s f

ather and mother

are divorced or

legally separated; (3) The child’s father or

mother has been missing for not less than six (6) months; or (4) The co urt of another state has ordered grandparent visitation; then, the parents of such deceased person or the parents of either of such divorced or separated persons or the parents of the missing person may be gra nte d reasonable visitation rights to the child dur ing i ts m ino rit y by a court of competent jurisdiction upon a finding that such visitation rights a re in the best interests of the minor child, based on the factors in § 36-6-307(d)(2).
Tenn. Code Ann. § 36-6-306(a) (Supp. 1999).

Mr. West contends on ap peal that the tria

l court’s rulin

g c onstitutes an
unco nstitu tional infringement on his right to parental privacy. We agr ee. In Hawk v. Hawk , 855 S.W.2d 573 (Tenn. 1993), the Tennessee Supreme Court considered the constitutionality of section 36-6-301 of the Tennessee Code Annotated, which is the predecessor to sections 36-6-306 and 36-6-307. See id. at 575. Section 36-6-301, like section 36-6-306, allowed a court to order reasona

ble visitation with grandparents if it finds that such visitation is in the child’s best interests. See id. at 576. After discussing a number of cases involving

the rights of par

ents with respect

to their children, the court in Hawk concluded as fol lows:

We hold that Article I, Section 8 of the Tennessee Con stitution protects the privacy interest of these parents in t hei r child-rearing decisions, so long as their decisions do not substantially endanger the welfare of their childr en. Absent some harm to the child, w e find t hat the state lacks a sufficiently compelling justification fo r in terfering with this fundamental right. When applied to married pare

nts who have maintained

continuous custody of their children and

have acted as fit parents, we conclude that court interference

pursuant to T.C .A . § 36-6-301 constitutes an unconstitutional invasion o f privacy righ ts under the Tennessee Constitution.

Id
. at 582. Thus, Hawk clearly established that, when a child’s pa r ents are marrie

d and neither is unfit, a court may not order grandparent visitation without first finding that a lack of visit ation would result in substan tial harm t o the child . In a number of cases follo wing Hawk , the courts of this state have recognized that the rule set forth in Hawk is equally applicable to cases in which the child is not part of a n intact nuclear family. See Simmons v. Simmons , 900 S.W.2d 682, 684 (Te nn . 1995)(paternalgrandparent s seeking visitation after father’s parental rights terminated, mother remarried, and step-father adopted child); Hilliard v. Hilliard , No. 02A01-9609-CH-00230, 1997 WL 61510, at *4 (Tenn. Ct. App. Feb. 14, 1997 )(matern al grandparent seeking visitation when child’s parents were di

vorced and fath

er was grante

d custody); McVay v . Blen , No. 02A01-9508-JV00183, 1996 WL 72991 1, at *3 (T enn. Ct. App. Dec. 19, 1996)(paternal grandparents seeking visitation with child born out of wedlock but subsequently

legitimated by

father); Floyd

v. McNeely , No. 02A 01-940 8-CH-00187, 1995 WL 390954, at *4 (Tenn. Ct. App. July 5, 1995)(paternal grandmother seeking visitation where parents were divorced and fathe r subsequently died).

C onsistent with the afo remention ed authorit y, we find that, before maki ng a determination regarding whether visitation with the Stephensons is in Scott’s best interest, the trial court was required to c

onsider whether

the failure to

visit with the Stephenson

s would subject Scot

t to substantial harm. A

lthough the trial

court noted the re

buttable presumption of substantial harm set forth in section 36-6-307(a), which for the reasons stated above is inapplicable, the court failed6 Thi s om iss ion is u nde rst and abl e, h owe ver, give n th at s ect ion 36- 6-3 06 r equ ire s on ly a

determination regarding the best interests of the child. To the extent that section 36-6-306 does not require a fin

ding of substantia

l harm before the

court may e

ngage in the be

st interests analysis, we find that the statute is unconstitutional. This finding is identical to the holding of Ellison v. Ellison , 994 S.W.2d 623 (Tenn. Ct. App. 1998). The parties disagree regarding whether Ellison may be retr oactively a

pplied to the case

at bar. Becaus

e our decision in th

is case is reached independently of Ellison , however, we find it unnecessary to address the issue of ret roac tiv ity.

7 In light of our reversal of the trial court’s order gr anting the Stephensons’ request for visitation with Scott, we find it unnecessary to address whether the trial court erred in deny ing Mr. West’s petition to modify this order. to make any finding regarding the existence or non-existence of substantial harm under the facts of the case at bar
. 6 Thus, we reve rse the portion of the trial court’s order granting visitation to the Stephensons and remand the c ause so that the co

urt may dete

rmine whether a f

ailure to visit

with the Stephensons would result in subst antial harm to Scott

and, if so, whethe

r it is in Scott’s best inter

ests that the Stephensons’ request for visitation be granted. 7
Attorney’s Fees

Fin all y, Mr. West contends th at the trial court

erred in requiring him to pay a portion of the attorney’s fees that the Stephensons incurred in connection with their petition for custody and visitation. Specifically, Mr. West argues tha t this awa rd of attorney ’s fees is inequita ble because there is a significant i

ncome disparity

betw een the partie s. The court’s ru ling with respec

t to this matter is as follow

s:

Evidence was presented, and the co ur t hereby fi nds, that there is a g reatdisparity in the incomes of the grandparents and of the defendant. De fend ant’s average income is approximately $98,000.00 pe r year and he is holding in reserve some $20,000.00 in cas h pending the outcome of this appeal. He has a $90,00 0.00 equ ity in his new home in Texas. Those are the only assets of substance

which he presently h

as. The grandparents have a net worth of appr

oximately $2.8 milli on dol lars. The step-grandfather’s income was listed at approximately

$171,000.0 0. Attorney’s fees in domestic relations disputes involving children are generally awar de d on the theory of support for the child. They

are awarded to

insure that the ch

ild will be able to have access to thecourt, through h is or her adult pro

tectors, and wi ll not be d eni ed t he p rot ect ion of t he co urt due to p ove rty. Neither party in this suit is without resource s to obtain legal representation. Thegrandparents primarily prevailed at the custody hearing in 1998. To the exten t tha t the court is asked to rule on the attorney’sfees for the c ustody hearin g, and to the extent thatthe court has not previously

ruled on them, the a

ttorney’s f

ees should

be borne in proportion to t he inc omes mentioned abo ve and in the ratio

to8 This provision does not limit recovery of attorney’s fe es to divorcing spouses who are parents of the child, but also includes “other person[s] to whom custody of the child, or children, is awarded.” Tenn. Code Ann. § 36-5-103(c) (Supp. 1999). Addit ionally, the

statute specific

ally applies to attorney’s fees incurred “in enforcing any decree for alimony

and/or child support, or in regard to any suit or action concerning the a djudication of the custody or the change of custody of any child, or children of the parties.” Tenn. Code Ann. § 36-5-103(c) (Supp. 1999). The Stephensons are persons to whom custody of Kathleen was awarded. F urther, the Stephensons incurred attorney’s fees in an action concerning the custody of Kathleen. Thus, we think that section 36-5-103(c) is applicable to the case at bar.

which they bear to each other.

In cases involving child custody, the trial court is authorized to award attorney’s fees under section 36-5-103(c) of the Tennessee Code Annotated. 8 See, e.g., Place ncia v. Placencia , 3 S.W.3d 497, 504 (Tenn. Ct. App. 1999). The allowance of attorney’s fees in such cases is lar

gely within the sound discretion of

the trial court. See, e.g., Smith v. Smith , 984 S.W.2d 606, 610 (Tenn. Ct. App. 1997) (citing Storey v. Storey , 835 S.W.2d 593, 597 (Tenn. Ct. App. 19 92 )). Absent an abuse of discretion, reviewing courts will not interfere with a trial court ’s ruling regarding th is matter. See id. In the instant case, the trial court considered the relative incomes and assets of the parties and, according

ly, ordere d Mr. West to pay

only a portio

n of the Stephenson

s’ attorney ’s fees. B ecause we find no abuse of discretion on the part of the trial court, we affirm the court ’s rulin g regarding attorney’s fees.

Conclusion

Based on the foregoin

g, the trial court’s ruling with respe ct to the matter of

child support is modified to reflect

that Mr. West’s obligation to reimburse the Stephensons is retroactive to October 30, 1996.

Additionally, the trial court’ s ruling with resp ect to the Stephens

ons’ request for visitation with Scott is reversed. In all other respects, the rul ing of the tri al court is affirmed. Fin all y, the cause is

remanded so that the trial court may determine the total amount of child support owedto the Stephensons by Mr. West and further to determine whether a lack of visitation with the Stephensons would

result in substantial harm to Scott. Costs on appeal are assessed one-half aga

inst Mr. Wes t an d on e-ha lf a gain st t he S tep hen son s, f or w hic h ex ecut ion may i ssu e if nece ssa ry.

____________________________________ FARMER

, J.______________________________

CRAWFORD, P.J., W.S.

______________________________ LIL LARD, J.