### FILED March 24, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

SANDY LYNN BURRELL, ) C/A NO. 03A01-9809-CV-00291 ) Plaintiff/ Counter-Defendant ) BRAD LEY C IRCUIT Appellant ) ) HON . JOH N B. H AGL ER, JR ., v. ) JUDGE ) MARK ALLEN BURRELL, ) ) AFFIRMED AS Defendant/Counter-Pla intiff ) MODIFI

ED AND Appellee. ) REMANDED

M. DREW R OBINSON, BA TES & ROB INSON, P.A., Cleveland, for Defendant/Counter-Pla intiff/Appell

ee.

JES BE ARD , Chattano oga, for P laintiff/Cou nter-Defe ndant/Ap pellant.

O P I N I

O N

Franks, J. In this chil

d custody dis

pute between the parent s, the Trial

Judge changed the custody

from the mother to t

he father joint

ly with t he paternal grandparents. The Judge directed t hat the children were not to be lef t alone with the father’s gir

lfriend, and t

he children were not t

o spend the night wit

h the father if

the father and the gi

rlfriend were st

aying toget

her in the same househol d. The mother was granted vis itation and o rdered to pa y child suppo rt.2 Our review in child custody cases is de novo upon the record of the t rial court, accompanied by a presumption of correctness of the trial court’ s finding, unless the prepon derance o f the evide nce is otherw ise. T.R.A .P. Rule 13 (d).; Hass v. Knighton, 676 S.W.2d 5 54 (Tenn. 1984 ). Custody and visitation arrangem ents are “customarily

left to the t

rial court ’s discret

ion.” Sherrod v . Wix , 849 S.W.2d 780, 784 (Tenn. App. 1992). Therefor e, appellat

e courts general

ly “give gr

eat weight to t

he decision of the Trial Judge who saw and heard the part ies testi fy.” Rubin v. Kirshner, 948 S.W .2d 742, 74 6 (Tenn. A pp. 1997 ); see also Dailey v. Dailey , 635 S.W.2d 391, 395 (Tenn. A pp. 1981).

The mother argues that

it was error t

o award joint cust

ody to the pat

ernal grandparents,because that rel ief was not sought in t

he father’s pet

ition. I t is error for a trial court to grant relief not sought in the plea dings, and in determining whether a judgment is beyond the scope of the pleadings, the pl eadings are to be gi

ven a liberal

constru ction w ith all reas onable intendm ents in f avor of uphold ing the ju dgme nt. Brown v. Brown , 281 S.W.2d 492, 497 (Tenn. 1955) ; John J. Heirigs Const r. Co. v. Exide, 709 S.W.2d 604, 607 (Tenn. App. 1986). The error may be remedi ed by modifying the j udgment of the tri al court to confor m with the relie

f requested in t

he pleadin gs. See Fidelity- Phenix Fire Ins. Co. v. Jackson , 181 Tenn. 453, 462-463,181 S.W.2 d 625, 6 29 (19 44).

The father’s peti

tion only requested that

he be awarded custody of t he child ren. T he m othe r had no n otice that c usto dy mi ght b e aw arde d to a third part y, thus sh e could not be e xpecte d to off er proo f on the approp riatenes s of tha t possib ility. Accord ingly, the portion o f the judgm ent award ing joint custo dy to the grand parents is outside the s cope of th e pleading s and is reve rsed. How ever, the gra nt of custod y to the father can be upheld, if there has been a material change in circumstances.

Before re aching the dispositive issu e of custod y, it is appropriate to1 As this Court has stated “the rule is limited to specific proceedings, namely dependency and

neglect, severe child abuse, and term ination of parental rights, and does not enc ompass the issue of custody. We are disinclined to expand the rule beyond that established by the leg islature.” Beckner v. Zimmer, No. 03A01 -9602-D R-00060, 1996 LEXIS

682, *5 (Tenn.

App. 1996).

3 consider th e issues raised as to the adm issibility of eviden ce and pro cedure. A t trial, the Trial Jud ge permitted the child’s co unselor to tes tify as to what th e child had told the cou nselor w hich rela ted to ab use. Th is testimo ny was h earsay. See Tenn.R.Evid. 803(c). The father

argues that t

he Trial Court proper

ly allowed in the hearsay testimony of the child because the statement about m arijuana use in the mothe r’s home pertains to al

legations of abus e and neglect, and he relies on Rule 803(25). The Rule provides:

Tenn. R. Evid. 803(25) pr ovides for the fol

lowing exception t

o the hearsay rul

e: Children’s Sta tements . Unless the ci rcumstances indicate lack of trustworthin ess, statemen ts about abu se or neglec t made by a ch ild alleged to be t

he victim of physical, sexual , or psychol ogical abuse or neglect, offer

ed in a civil

action concerni

ng issues of dependency and neglect pursuant to T.C .A. § 37-1-102(b)(10 ), issues concerning severe child abuse pursuant

to T.C.A. § 37-1-102(b) (19), or is sues concerning termina tion of p arental r ights pu rsuant to T.C.A . § 37-1 -147(d ). The Ru le is limited to civ il actions con cerning issu es of dep endency an d neglect, severe child abuse, or term ination of p arental rights. T he statutes cited in the Rule deal with placing children in protective custody . The Rule does not encompass a custody proc eeding, un less parental c ustody is being terminated o r limited by the state because of neglect or

severe child abus e. 1 While the Trial Court admitted these hearsay st

atements, the

error is har

mless because the Trial Court did not consider that testimony

in its deci sion. The Court expres sly st ated about the mari

juana use, “I make no finding about that

whatsoever because I cons ider those hearsay stat ements. And I do not hold that aga

inst the mother

or any other pa

rty.” The Court further sai

d, “the4

testimony of th e guidanc e counse lor established that the party’s son was em otionally disturbe d by the re lationsh ip betw een the parents and by h is inability to see his f ather. That was the only t

hing in her testimony that was really r

elevant.” Next, it is

charged that the

Trial Court err

ed in denying t

he mother the opportunity

to review the notes

of a witness to assist her counsel in cross-examina

tion of that witness.

The counselor who testi fied had brought her not es with her, and t

he Trial Judge all

owed the mother’s counsel to examine the notes , but did not al low the mother to examine the not es during the t

rial. The mother

argues that t

he notes were of the counselor’s

session with t

he son, and that t

he mother may have been abl e to make sense of the notes a

nd therefore could assist her c ounsel in framing questions for cross-examinat

ion. The mother unquest ionably coul

d have had access to the se notes during pre-tr

ial discover

y. She was aware that

the witness had been couns eling the son, and co uld be a w itness at trial. Ho wever, the re was no pre-trial discov ery of this witness. The provision in the Rules of Ev idence which allow s for limited discovery during trial is T enn. R. Ev id. 612, wh ich provide s: “If a witne ss uses a w riting while testify ing to refresh memory

for the purpose of t

estifyi ng, an adverse part

y is enti tled to inspect it, to cross -examine the witness thereon, and to introduce in evidence those portions which relate to the t estimony of t

he witness.” This

rule would allow an adverse p arty, not just the party’s c ounsel, to ex amine suc h a docum ent, but the ru le does not a pply to these circ umstance s. The Ru le applies w hen a w riting is used to refresh a witness’s recollection w hile that witness is testifying. The advisory comments to the rule

state, “Only

if a witness’s

memory requires

refreshing shoul

d a writing be used by

the witness. The di

rect examiner shoul

d lay a foundati

on for necessity, show the witness the writing, tak e back the writing, and ask the w itness to testify from refreshed memory. ” That did not occur i n this case. The notes were not5

used to refresh the cou nselor’s recollection. She had h er notes with her, but they were not used during her t

estimony. She testified that she had used t he notes to prepar

e a report. Her t

estimony was about

the report,and the mother did have a copy of the report. W e find n o error in the Tria l judges action.

Next, the mother i

nsists the Trial Judge err

ed in refusing t

o consider eviden ce of th e husb and’s p hysical ab use du ring the ir marria ge.

It is cle ar from the Judge’s comment t hat the viole

nce of the father toward the mother was a fact or the court consi

dered in the original custody determination, but the issue in the m odification proceeding was whethe r there were changed circumstances , and not a retr ial of the divor

ce case. There was no evidence offered that t

he father had abused t

he children or any

other person foll

owing the divorce, but t

he evidence reveals

that the mother

entered into anot

her abusive marriage and that

she exposed the chil

dren to a variet

y of people with cr

iminal backgrounds. In a modification proceeding, the Court does not need to r epeat the comparative fit

ness analysis. Inst

ead, it must fi

nd a “material change

of circumstances t

hat is compelli

ng enough to warrant the dr amatic remedy of cha

nged custody.” Muss elman v. Acuff , 826 S.W.2d 920, 922 (Tenn. App. 1991);“Changed circumstances” include s “any material change of c ircumstances affecting the welfare of the child,including new factors or changed conditions which could not be anticipa ted by the custod y order.” Blair v. Badenhope , 940 S.W.2d 575, 576 (Tenn. App. 1996). The primary consideration in both the original custody award and in a modif ication o f the cu stody aw ard is to d o wha t is in the b est intere sts of the child. Nicho ls v. Nich ols, 792 S.W.2d 7 13, 716 (Tenn. 19 90); Woodard v. Woodard , 783 S.W.2d 1 88, 190 (T enn. Ap p., 1989). T he father o ffered ev idence on factors set fo rth in T.C.A. § 36-6-106(8) -(9), which are :6 (8) Evidence of physical or emotional abuse to the chi ld, to the other parent or

to any other

person; and (9) The character

and behavior of any ot

her person who resides i n or frequents the home of a par ent and such person’s

interacti ons with the child. The Trial Judge concluded t he evidence was compelling e nough to warrant a change of custod y, and we co nclude the evidence does not p reponde rate against h is determination. T.R.A.P. Rule 13(d) . In this r egard the Trial

Court observed: It’s also very clear to the Court th at the moth er allowed an incredib ly dangerous group of people to go in and out of her house. This is a comp letely una ccepta ble env ironme nt. It’s po or judg ment o n her pa rt. It shows no insight

whatsoever. I mean, i

t was a list of j ust every ki nd of crime you could t

hink of that would be harmful to children t

hat was associa ted with some o f the pe ople co ming th rough your hom e. I could accept t

hat maybe on - - i

n the case of this

person or that per

son you might not have known every thing. But I t

hink you knew a great deal about some of these people. I find t

hat any denial

that you did not know about their conduct was j ust not believable. I just have never seen that many people with those kinds of r ecords going through a hous e. The Trial Court found mater ial changes in ci

rcumstances due to t

he mother’s a ssocation, an d further fo und those circumstan ces placed the children in danger of physical and emotional harm. We concur in these findings.

While the Trial Court

awarded custody t

o the father, it also provi ded that the children were no t to be left alon e with K athy Adam s until an app ropriate investigat

ion was completed and the mat ter revisi ted, and furthe

r the childr

en were not stay the ni ght with th

e fat her whe n he and Adams wer

e sta ying toge

ther in th e same househo ld. We up hold that po rtion of the d ecree aw arding cus tody of the ch ildren to the father, w ith the same limitations plac ed on that c ustody by the Tria l Court.

We affirm the judgment of the Tr ial Court in par

t, as modified,

and

rem and with the c ost o f the app eal a sses sed o ne-h alf to each part y.7 __________________________ Herschel P. Franks, J.

CONCUR:

___________________________ Houston M. Godd ard, P.J.

___________________________ Charles D. Susano, Jr., J.