1 His date of bir th is not rev

ealed. 

# FILED

Au gust 27, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COU RT OF A PPEA LS OF TENN ESSEE EASTERN SECTION A T KNOXVILLE

BARBARA SPRU ELL, ) HAMILTON CIR CUIT ) Plaintiff/Appellee ) NO. 03A01-9704- CV-00124 ) v. ) HON. ROBER T M. SU MMITT ) JUDGE KENNETH WAYNE SPRUELL, ) ) Defendant/Appellant ) VACATED and ) REMANDED

Catherine M. White, Chattanooga, for the Appel lant Leslie B. Mc

Williams, Chattanooga, for t he Appellee

O P I N I O N

INMAN, Se nior Jud ge

This acrimoniou s custody dispute was not allev iated by i nordinate objec tions to testimony which ser

ved princ ipally t o obfuscate the iss ues and make a meaning ful review more difficult. The parties were divorced in July , 1991. Custody of their son, Ja son, then seven ye ars old, 1 was awarded to the appell ee [hereafter, mother ] with ag reed-upon support and alimony. The latt er award was unconditional for 24 month s; thereafter it would conti nue an additional 36 months unless mot her remarri ed or viol ated the cohabitation st atute. In April 1996, mother filed a peti tion for contempt al leging t hat the appellant [hereafter, father] t erminated his al imony pay ments without cause, but if he w

as justified in doi ng so, his child support obligatio n should be incr eased. Father responde d by alleg ing that he l earned in Febr uary 1996 that mother was cohabi ting w ith a non-rel ated member of the opposit e sex, Dr . Fred Lansford,2

whom she married on April 7, 1996, thu s justifying the termination of alim ony. He alleged a mater ial change of circumstance w ith respect t o the care and cu stody of Jason: mother’s

meretricio us conduct, her neglect of his

basic needs, he r drunkenness, and her de nigration of father. Followi ng a protrac

ted trial theCourt found: (1) That mother did no t cohabit with her ‘present husband’ prior to the ir marriage in April 1996, and that f ather was indebted for two months’ alim ony; (2) That child suppor t should be inc reased commensurat e with the Guidelines; (3) Tha t the evide nce d id no t just ify a c han ge of Jaso n’s cu stod y; (4) That mother was entitled to an award for attorney fees. Fath er a ppea ls a nd presen ts fo r re vi ew t he i ssue s of: (1) Whether the Court erroneousl y concluded that the evi dence was not suf fici ent t o jus tif y a cha nge in cust ody; (2) W hether the Court erred in excluding statemen ts made by Jason to his step-father; (3) Whether the trial judge i mproperly “hindered the ab ility of Jason to testify fully ;” (4) Whether the Court erred in fin ding that mother had not “cohabit ed with two different men”since her di vorce, and therefore was disquali fied from receivi ng alimony ; (5) Whether the adjustment of child suppo rt was er roneously made retroactive, and (6) Whether attorney fees were properly awarded. Our review of the findings of fact m ade by the trial Court is de novo upon the record of the tr ial Court, accompanied by a presumption of the correctness o f the finding, unles s the preponderance of the evidence is otherw ise, T ENN
. R. A PP
. P., R ULE 13(d). There i s no presumption of the correctnes s of the decision of the trial Court on a q uestion of law

. NCNB Nat’ l Bank v. Thr

ailkill, 856 S.W.2d 150 (Tenn. Ct. App. 1993). At th e out set, we may o bser ve tha t Jas on, n ow 14 ye ars o ld, a ppe ars to have maintained his aplom b throughout the discord surround ing him. A steady Honor Roll2 He plays six instruments and sang with the Chattanooga boys choir for six

years. The evidence indicates that he is mat ure beyond his years.

3 Stark photographs taken by Dr. Lansfo rd show her en dishabille , on the floor in an unconsci ous state, w hich she ascr ibed to medicati on, others to al cohol. She testified that her

live-i n relationshi p with D r. Lansford was platonic i n nature, made necessary because her house was damaged by the elements.

4 He was m arrie d fo ur tim es pr eviou sly. 3 student, he is accomplishe d in music 2 and athletics , and is an acti ve Boy S cout. The record is replete w ith invec tives each hurled at the ot her with respect to his/her inattentiveness to the nee ds of Jason. W e need not reproduce th e episodic events each r

ecounted; there i s substantial evidence th at mother has an ong oing problem wi th alcohol, her denial of whi ch in the face of w ell-nig h irrefutable pr oof to the contrary 3 is unsettling, to say the least. She apparently was less than candid about her involvement with Johnson, whom the proo f revealed was her paramour; she began a live-in relationship with Dr. Lansford in February 1996, and married him in April 199 6. 4 After two mont hs he filed an acti on to annul the marr iage whi ch was pending at the t ime this case was heard. The record does not reveal in a meaningful way the reason for the pending annulm ent, nor the appellee’s current sta tus vis-a-vis Dr. Lansford. A ll in all , this recor d reflects her somewhat anemic denials of inappropriate parental conduct

. Arrayed ag ainst the ev idence of mother’s conduct is ev idence that the father neglected Jas on for much of his li fe and whose pater nal interest was rev italized over money matters. Tenn. Code Ann. § 36- 6-106 requi res that a custody determi nation ‘shall be made upon the basis o f the best interest of the child,’ and mandates a lit any of factors to be considered . One of these fa ctors is the preference of the child if he is 12 years of ag e or older. Jason was 13 years ol d, and all of the ev idence reflects that because of his stability and intelli gence, his t estimony was not only relevant, but highly desirable. The appellant insi sts that the tr ial Court h indered Jason’ s testimony by cutting him off during crucial answers. W e reproduce pertinent portion s of his test imon y: THE Court: All rig ht. We’ve had some questio ns about activ ities of your dad and your mom. So I ’ll ask y ou if you know

of any activ ities that y

our mom4 has d one that look ed lik e it was n’t qu ite ri ght? Do you k now of any? JASON SPRUE LL: Richard Johns on, he lived at our house for a while. I know that

he did that. And I think - - THE Court: What did you mean that he lived at your ho use. J. SPRUELL: He lived at our house. They slept in the same be d together. THE Court: Did you see t hem. J. SPRUELL: I’veseen t hem. THE Court: Okay. Al l right. J. SPRUELL: And, I think we stayed over a couple of nights with Bob McCallie

and we sta yed ove r the re at his ho use. A long time ago, we stayed over there maybe two nights I think. THE Court: Okay. Al l right. Any others ? This is ju st what I’ ve renounced to

them but and but go ahead get it i n the record. Did you h ave to - what happened to Johnson. J. SPRUELL: They j ust - - jus t had a b ig fig ht one d ay I r emember

and my mom was just throwing all of his stuff out of the garage because he was keepi ng his stuff in ou r house after they sort of broke up or s omet hinglike that. A nd sh e ju st t hrou gh [ sic] al l of h is s tuff out of the house and he was bringing it back in and he just - - they broke up and we haven’t heard from him since.

. . . . . THE Court: All right. But you saying that you, I believe you said he was in

the same bedroom as your mother for a while. Is that a short period, a long period. J. SPRUELL: I think it mi ght have bee n like two months maybe. L ike maybe a

month or two months.

. . . . . THE Court: Do you know of any incide nts where your mom mig ht have done something els e that you di dn’t like or felt wasn’t

right. J. SPRUELL: Drinking. She’s - - THE Court: All rig ht. Tell us w hat you know about that. J. SPRUELL: She’s come home drun k. THE Court: Well, I’d rather you wouldn’ t say drunk . I’d rather

you t ell me how she acte d. See I don’t r eally want your opi nion, but I want your knowledge of what she was doing. First, did you actually see her drinking, I guess? J. SPRUELL: I’ve seen her drink ing. THE Court: Okay. I g uess the same q uestion, did y ou see your dad drinking?5

J. SPRUELL: I haven’t seen my da d drinkin g. THE Court: Never? J. SPRUELL: I’ve se en hi m when they we re sti ll ma rried and e veryth ing I’ ve

seen him d rinki ng bu t I ha ven’t seen him d rinki ng in t he pa st fi ve years. THE Court: They both drink when they were married, is that what you’re

saying? J. SPRUELL: Yes, sir. THE Court: All right. Go ahead. W ere you going to tell us something else

about the drin king? J. SPRUELL: W hen we were in - - THE Court: Just what yo u kno w now. J. SPRUELL: We were in Reno one summer, we were dr iving somewhere and

I had seen her and my cousins have seen her , she was drinking. And we got

in a wreck on the way to this house in Wildwood. And we just

got in a w reck and, I mean, me and my cousi n, who were ri ding in ther

e with me, we knew that she was -- that she had been drinki ng. And w e were tel ling her to slow down and everything. THE Court: Did you see her drink? J. SPRUELL: I saw her drinking. She had beers in the car with her. THE Court: Okay. But yo u don ’t kno w how mu ch sh e con sume d act uall y? J. SPRUELL: (Moves h ead from side to si de.) THE Court: Was there any - - do you know, I g uess I shouldn’ t ask about

what happened because that woul d be hearsay whether she went to Cour

t or not, so don’ t answer that. Any ot her incidents where you have seen y our dad or your mom or any body like that that did somethingwrong you felt? J. SPRUELL: No. I think that’s it. THE Court: What about lately in the last year or six months , or anythi ng. Have you seen either of the m acting impr operly or what you thought was improper? J. SPRUELL: Well, my mom - - the last time I saw

her drinki ng I think i t might have been maybe two months ago. But then I haven’t seen her, like, dri nking other

than that.

. . . . . THE Court: Now do you have a go od relationshi p with your dad? J. SPRUELL: It’s ver y good between my dad. THE Court: And you have a good relationship with your mother?5 Jason could, of course, have been called as a courtroom witness. This

entails confrontation, the avoidance of whi ch is saluta ry. But t he en camera proceeding is for the child’s benef it, and he should have been allowed to express himsel f fully , frank ly, and w ithout hindrance or

crit icis m. 6 J. SPRUELL: Yes.

. . . . . THE Court: Okay. Al l right. You got o ne question. Now, let me say this . I don’t ask you where you want to live. I think it’s too much for a youngster

to have to tr

y to make that judgment. But t he statute says that a lawyer

can ask you. And you can answer i t in the way you feel you want to. Whether it has an effect on me or not I don’t know . But she’s g ot a right under the statute to ask you that question. MS. WHITE: Jason, just to explain, it’s not to pu t you on the s pot or make you uncomfortable. Hi s Honor is trying to make a decisi on about what’s i n your best

interest. S o having said that, I’m going to ask yo u if yo u have a pre fer ence of wh ere yo u woul d like to live in te rms o f whic h par ent? And t hen let yo u tel l the Court why. THE Court: There again, y ou don’t have to answer that. But if you wish to , you can. I think it’s

too much for a youngster. B ut then the statute says

that you can be asked that. Whether you want to answer i s up to you. J. SPRUELL: I don’t know where I want to live. I mean, I love both of them just

the same and, I g uess, I’ll live w herever y ou tell me to. THE Court: All rig ht. Anybody else? MsMcWILLIAMS: Jason, living with your dad - - THE Court: You can’t ask it - - wait, wait, wait -- MsMcWILLIAMS: I’m sorry , Judge. That w as just a follow-up to what she had asked. That’s all that is. THE Court: No, I think we better leave it alone. MsMcWILLIAMS: Well, I’m not asking his preference, I’m as king him about visitati on. THE Court: Oh, oh. Okay . Visitati on. Well, I can ask him about t hat. MsMcWILLIAMS: If he wants to continue - -

. . . . . Appellant arg ues that the tri al Court in terrupted Jaso n’s testimony and generally failed to follow-up with logical and pertinent questioning. Perhaps th e most serious error was telling Jason twice that he did not have to answer counsel’s question conc erning custodial preferenc e, 5 in light of the statute and particu larly in6 It was revealed duri ng argument that, after judg ment was ren dered, Jason

decided he needed a l awyer . He apparentl y was motivated by his dissati sfaction with the en camera

interrog ation. 7 light of the fact that Jason’s c ustodial prefere nce was the sole reason for the in
camera proceed ing. But Jason, ever the diplomat, stated that he l oved both of his parents, that they loved him, and he would live wherever he was told. The appellant filed a post-trial motion for a psychological evaluation which the trial judge granted. This report was not reviewed by the trial judge, although it is included in th e record before us . Because of its obvious hear say nature we do not consider it under Rule 40, T. R. A. P. as post -judgment facts. The a ppel lant

nex t fil ed a p ost-

judg ment

moti on se eki ng t he ap poin tmen t of a guardian ad litem

for Jason. This motion was de nied. Jason was restrained from “contactingany other at torney,” 6 and his father was similarly restrained from “arranging for the child to have an atto rney.” The record does not reveal the reason for this action. In light of our

disposition of this appeal, we believe t hat a further rec itation of the evidence would not be productive. Our concer n, as it must be, is the advancement and pr

otection of Jason’ s best intere sts. While he necessaril y cannot be the sole arbi ter of his desti ny, he is absolutely entitled to ex press his v iews in an unimpeded setting . To this end, we conclude that t he judgment shoul d be vacated in toto and the case remande d for a new trial as to all issues. In doing so, we express no opinion as to whether Jason’s custod y should be changed; that decision mu st await a new

hearing. In light of al l of the circumstances, parti cularly the colloq uy betwe en Jason and the t rial j udge , a pro per d ecor um re quire s tha t the case shou ld be hear d by a different judge w ho is direc ted to consider

the appointment of a g uardian ad li tem for him. Costs are as sessed to the par ties evenl y. This ca se is remanded t o the trial curt for further proceedings , consistent w ith this opi nion.8 ___________________________________ W illiam H. I nman, Senior Ju dge
CONCUR:

________________________________ Housto n M. Godd ard, Pre siding Jud ge

________________________________ Charles D. Susano , Jr., Jud ge