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 ) BRADLEY CIRCUIT

Appellant )

) HON. JOHN B. HAGLER, JR.,

v. ) JUDGE

)

MARK ALLEN BURRELL, )

) AFFIRMED AS 

Defendant/Counter-Plaintiff ) MODIFIED AND

Appellee. ) REMANDED

M. DREW ROBINSON, BATES & ROBINSON, P.A., Cleveland, for

Defendant/Counter-Plaintiff/Appellee.

JES BEARD, Chattanooga, for Plaintiff/Counter-Defendant/Appellant.

O P I N I O N

Franks, J.

In this child custody dispute between the parents, the Trial Judge

changed the custody from the mother to the father jointly with the paternal

grandparents. The Judge directed that the children were not to be left alone with the

father’s girlfriend, and the children were not to spend the night with the father if the

father and the girlfriend were staying together in the same household. The mother was

granted visitation and ordered to pay child support.
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Our review in child custody cases is de novo upon the record of the trial

court, accompanied by a presumption of correctness of the trial court’s finding, unless

the preponderance of the evidence is otherwise. T.R.A.P. Rule 13(d).; Hass v.

Knighton, 676 S.W.2d 554 (Tenn. 1984). Custody and visitation arrangements are

“customarily left to the trial court’s discretion.” Sherrod v . Wix, 849 S.W.2d 780, 784

(Tenn. App. 1992). Therefore, appellate courts generally “give great weight to the

decision of the Trial Judge who saw and heard the parties testify.” Rubin v. Kirshner,

948 S.W.2d 742, 746 (Tenn. App. 1997); see also Dailey v. Dailey, 635 S.W.2d 391,

395 (Tenn. App. 1981).

The mother argues that it was error to award joint custody to the paternal

grandparents, because that relief was not sought in the father’s petition. It is error for

a trial court to grant relief not sought in the pleadings, and in determining whether a

judgment is beyond the scope of the pleadings, the pleadings are to be given a liberal

construction with all reasonable intendments in favor of upholding the judgment. 

Brown v. Brown, 281 S.W.2d 492, 497 (Tenn. 1955); John J. Heirigs Constr. Co. v.

Exide, 709 S.W.2d 604, 607 (Tenn. App. 1986). The error may be remedied by

modifying the judgment of the trial court to conform with the relief requested in the

pleadings. See Fidelity-Phenix Fire Ins. Co. v. Jackson, 181 Tenn. 453, 462-463, 181

S.W.2d 625, 629 (1944). 

The father’s petition only requested that he be awarded custody of the

children. The mother had no notice that custody might be awarded to a third party,

thus she could not be expected to off er proof on the appropriateness of that possibility. 

Accordingly, the portion of the judgment awarding joint custody to the grandparents is

outside the scope of the pleadings and is reve rsed. However, the grant of custody to

the father can be upheld, if there has been a material change in circumstances.

Before re aching the dispositive issue of custody, it is appropriate to
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As this Court has stated “the rule is limited to specific proceedings, namely dependency and

neglect, severe child abuse, and termination of parental rights, and does not encompass the issue of

custody. We are disinclined to expand the rule beyond that established by the legislature.” Beckner

v. Zimmer, No. 03A01-9602-DR-00060, 1996 LEXIS 682, *5 (Tenn. App. 1996).

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consider the issues raised as to the admissibility of evidence and procedure. At trial,

the Trial Judge permitted the child’s counselor to testify as to what the child had told

the counselor which rela ted to abuse. This testimony was hearsay. See Tenn.R.Evid.

803(c). The father argues that the Trial Court properly allowed in the hearsay

testimony of the child because the statement about marijuana use in the mothe r’s

home pertains to allegations of abuse and neglect, and he relies on Rule 803(25). The

Rule provides:

Tenn. R. Evid. 803(25) provides for the following exception to the

hearsay rule:

Children’s Statements. Unless the circumstances indicate lack of

trustworthiness, statements about abuse or neglec t made by a child

alleged to be the victim of physical, sexual, or psychological abuse or

neglect, offered in a civil action concerning 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 issues concerning

termina tion of parental rights pursuant to T.C.A. § 37-1-147(d). 

The Rule is limited to civil actions concerning issues of dependency and neglect,

severe child abuse, or termination of parental rights. The statutes cited in the Rule

deal with placing children in protective custody. The Rule does not encompass a

custody proc eeding, unless parental custody is being terminated or limited by the state

because of neglect or severe child abuse.1 While the Trial Court admitted these

hearsay statements, the error is harmless because the Trial Court did not consider that

testimony in its decision. The Court expressly stated about the marijuana use, “I make

no finding about that whatsoever because I consider those hearsay statements. And I

do not hold that against the mother or any other party.” The Court further said, “the
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testimony of the guidanc e counselor established that the party’s son was emotionally

disturbed by the relationship between the parents and by his inability to see his f ather. 

That was the only thing in her testimony that was really relevant.” 

Next, it is charged that the Trial Court erred in denying the mother the

opportunity to review the notes of a witness to assist her counsel in cross-examination

of that witness.

The counselor who testified had brought her notes with her, and the

Trial Judge allowed the mother’s counsel to examine the notes, but did not allow the

mother to examine the notes during the trial. The mother argues that the notes were of

the counselor’s session with the son, and that the mother may have been able to make

sense of the notes and therefore could assist her counsel in framing questions for

cross-examination. The mother unquestionably could have had access to these notes

during pre-trial discovery. She was aware that the witness had been counseling the

son, and could be a witness at trial. However, the re was no pre-trial discovery of this

witness. The provision in the Rules of Evidence which allows for limited discovery

during trial is Tenn. R. Evid. 612, which provide s: “If a witne ss uses a writing while

testifying to refresh memory for the purpose of testifying, an adverse party is entitled

to inspect it, to cross-examine the witness thereon, and to introduce in evidence those

portions which relate to the testimony of the witness.” This rule would allow an

adverse party, not just the party’s counsel, to examine such a document, but the rule

does not apply to these circumstance s. The Rule applies when a writing is used to

refresh a witness’s recollection while that witness is testifying. The advisory

comments to the rule state, “Only if a witness’s memory requires refreshing should a

writing be used by the witness. The direct examiner should lay a foundation for

necessity, show the witness the writing, take back the writing, and ask the witness to

testify from refreshed memory.” That did not occur in this case. The notes were not
5

used to refresh the counselor’s recollection. She had her notes with her, but they were

not used during her testimony. She testified that she had used the notes to prepare a

report. Her testimony was about the report, and the mother did have a copy of the

report. We find no error in the Tria l judges action. 

Next, the mother insists the Trial Judge erred in refusing to consider

evidence of the husband’s physical abuse during their marriage. 

It is clear from the Judge’s comment that the violence of the father

toward the mother was a factor the court considered in the original custody

determination, but the issue in the modification proceeding was whethe r there were

changed circumstances, and not a retrial of the divorce case. There was no evidence

offered that the father had abused the children or any other person following the

divorce, but the evidence reveals that the mother entered into another abusive

marriage and that she exposed the children to a variety of people with criminal

backgrounds.

In a modification proceeding, the Court does not need to repeat the

comparative fitness analysis. Instead, it must find a “material change of

circumstances that is compelling enough to warrant the dramatic remedy of changed

custody.” Musselman 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 custody 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

modification of the custody award is to do wha t is in the best intere sts of the child. 

Nichols v. Nichols, 792 S.W.2d 713, 716 (Tenn. 1990); Woodard v. Woodard, 783

S.W.2d 188, 190 (Tenn. App., 1989). The father offered evidence on factors set forth

in T.C.A. § 36-6-106(8)-(9), which are:
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(8) Evidence of physical or emotional abuse to the child, to the

other parent or to any other person; and

(9) The character and behavior of any other person who resides in or

frequents the home of a parent and such person’s interactions with the

child.

The Trial Judge concluded the evidence was compelling enough to warrant a change

of custody, and we conclude the evidence does not preponderate against his

determination. T.R.A.P. Rule 13(d). In this regard the Trial Court observed:

It’s also very clear to the Court that the mother allowed an incredibly

dangerous group of people to go in and out of her house. This is a

completely unacceptable environment. It’s poor judgment on her pa rt. 

It shows no insight whatsoever. I mean, it was a list of just every kind

of crime you could think of that would be harmful to children that was

associa ted with some of the people coming through your home. 

I could accept that maybe on - - in the case of this person or that person

you might not have known everything. But I think you knew a great

deal about some of these people. I find that any denial that you did not

know about their conduct was just not believable. I just have never seen

that many people with those kinds of records going through a house.

The Trial Court found material changes in circumstances due to the

mother’s a ssocation, and further found those circumstances placed the children in

danger of physical and emotional harm. We concur in these findings.

While the Trial Court awarded custody to the father, it also provided that

the children were not to be left alone with Kathy Adams until an appropriate

investigation was completed and the matter revisited, and further the children were not

stay the night with the father when he and Adams were staying together in the same

household. We uphold that portion of the decree awarding custody of the children to

the father, with the same limitations plac ed on that custody by the Tria l Court.

We affirm the judgment of the Trial Court in part, as modified, and

remand with the cost of the appeal assessed one-half to each party.
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__________________________

Herschel P. Franks, J.

CONCUR:

___________________________

Houston M. Goddard, P.J.

___________________________

Charles D. Susano, Jr., J.