### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE

D. A. PRICE v. P. C . PRICE Direct Appeal from the Circuit Court for Blount County No. E-17212 Hon. W. Dale Young, Judge

No. E1999-00102-COA-R10-CV - Decided May 31, 2000

This is an appeal of the Trial Court's Order changing physical custody o f the parties' two children to the Mother, ostensibly because the Father, who had shared joint physical custody since t he divorc e, moved from Maryville to Knoxville. The Mother was granted a temporary injunction awarding her temporary physical custody pending final adjudication of her petition for permanent change

of custody. The Trial Court scheduled a hearing solely on the issue of whether the injunction awarding Mother tempo rary cust ody should remain in force until the trial on the change of custody. The Tr ial Court, based on

limited proof rec

eived at th

e injunction hearing, permanently

changed custody fr om joint to Mo ther. Because the Trial Court made no finding of irreparable

harm to s upport cont inuing the temporary injunction, and because the record does not support such a finding, we vacate the injunction and reinstate the original joint cus tody award pending further

action by the Trial Court. It is apparent from the record before us that both parties and the Trial Court at the hearing resulting in the order appealed from proceeded solely on the issue of whether or not the temporaryinjunction should re main in force until the hearing on the change of custody. As a result,neither party had an opportunity fully to present her or his evidence on the change of custody issue. We hold that the Trial Court erred in changingcustody without allowing the parties a full hea

ring on that issue. Ther efore, we reve

rse the judgment of

the Trial Court, reinstate the original custody arrangement, and remand the case for a trial on the requested change of custody.

Tenn. R. App. 3; Judgment of t he Trial Court Reve

rsed and case Rema

nded to the Tr

ia l Court.
S WINEY , J., delivered the opinion of the court, in which F RANKS , J., and S USANO , J., joined. Scarlett A. Beaty, Knoxville, for the Appellant, D. A. Price. Carl P. McDonald, Maryville, for the Appellee, P. C. Price. 

### OPINION1 Father testified that

“Seth was born August 7th, 1984 at 11:43 p.m.” and that Sara was born “May 6th, 1988 about 8:18 a.m.” 

### -2- Background
D. A. Price (“Father”) and P. C. Price (“Mother”) divorced on November 22, 1996. They agreed that lega

l and physical cust

ody of the two minor

chil dren of th e marriage would be vestedin the parties jointly, and the Trial Court so ordered. For the next two and one-half years, the children, now 15 and12 years old 1 , divided their time equally between

the homes of their

parents, who lived "about two minutes away from each other" in Maryville, Tennessee. In accordance w

ith their agreement, neither party paid child support to the other.

On July 22, 1999, Mother filed a Motion asking the Trial Court to change physical and legal custody of the children to her, set visitation for Father, and establish child support obligations. For grounds, Mother alleged in her Motion, among other reasons, that Father was planning to move voluntarily from Maryville to Knoxville, Tennessee the next day, July 23, 1999. In her Motion, Mother also asked the Court to order that during the children's visitation, the Father “be the only non-famil

y member spending t

he night in his apar

tment in Knoxville, unless he is married to any such person.” She also asked that a temporary injunction be entered pursuant to Tenn. R. Civ. P. 65.07, changing legal andphysical custody of the children to her, pending further order of the Court, and allowing Father visitation every other week end. Mother complained in her pleadings that

Father is homosexual and has gay friends with whom he has all owed the childre

n to associate. The Trial Court entered an ex parte injunction on the day the Mother filed her Motion, giving her sole temporary physical custody of the children pending a full hearing.

Father filed an Answer and

Counter-Petition on August 2, 1999, alleging that "there is absolutely no meaningful difference in the Father's former or current living arrangement and his ability to provide for the children and to meet their needs." He further alleged that Mother had taken the children to

see Dr. Thomas Ha

naway, a clinica

l psychologist,

who concluded that the children are well adjusted, we

ll cared for and

that “they need b

oth parents equa

lly in their lives.”

Fath e r allegeda change in

circumstances consisting of the Mother’s attempts to alienate the children from their Father and to inter

fere with the exe

rcise of his custo

dial rights, and he asked the Court to grant him sole legal and physical custody of the children.

A hearing was held by the Trial Court on August 23 and 24, 1999. At the beginning of that hearing, c

ounsel for Mother

announced to the T

rial Court: So, what we’re here on today is whether or n ot this TRO shall continue, because your

Honor may want to give us some suggestions as to what par ameters you may want us to de al with with regar

d to that.

### -3-

Counsel for Father replied:

I think he summed up wh at I perceive the reason we’re here today, which is for you, Your Honor, to determine wh ether or not the injunction that he obtained ex parte , obviously with you having limited information of the facts, should con

tinue in effect or whether the Order that these

people have had f

or the last three y

ears is sufficient to hold everybody i

n place until

w e can get a final trial date. The Trial Court inquired:

When have you all agreed to a date to hear the issue of whether or not the custody arrangement will be changed? Counsel for Father replied:

We haven’t set the trial date yet, Your Honor . . . . The Trial Court told counsel that he had scheduled only one hour to hear the matter, and stated the issue: Let’s all understand that the issue before us today is that whether or notthe Petitioner can show to the Court by the greater weight of the evidence that

irreparable harm will be committed as to these children unless the TRO is extended. Good custody, bad custody, change of custody, leave it alone is not an issue today, an d so we won’t be trying those

matters. We’ll just be determining whether or not the greater weight of the evidence shows that irreparable harm will result to these children. There is no doubt th

at all participan

ts in that hearing believed and proceeded as if the hearing was solelyto determine whet

her or not the injun

ction would rema

in in effect until a later hearing was held on the requested change of custody. As stated by the Trial Court, the change of custody issue was not to be tried at tha

t hearing as the so

le purpose of that

hearing was to determine whether or not irreparable

harm would result t

o the children unless the temporary injunction was extended to the time of trial.

Counsel for Mother called Father and questioned him as an adverse witness. Father testified that he taught school for 19 years and, after leaving that career, has been a self-employed realtor for three years. He testified that he is involved in

a homosexual relationship and that he has moved from Maryville to a condominium in Knoxville partly because his partner lives in that complex, in a different condominium. Father also testified tha

t it was a twenty

minute drive from

### -4-

his condominium in Knoxv ille to Maryville

High School and a twenty two minute drive to Mar yville Middle School. Father also agre ed that the childr

en would remain in

the Maryville School system and that it was his

intention that the children would continue to participate in all their activities in Maryville as before. Another r

eason fo r the move is that his children benefi

t from shopping in Knoxville, swimming and playing tennis at hi s condominium comple

x, going to movies,

concerts and plays, and visiting friends who live in Knoxville. He testified that his ch ildren have live d in Maryville and hav

e attended Maryv

ille schools all of t

heir lives, and tha

t the children wan

ted him to move to Knoxville so that they could enjoy the benefits of Knoxville. He told his children that at some time

in the future, he may buy or build a house to live in with his partner, but testified that he has no present pla

ns to do so. He also testified , “I have no inten

tions of every hav

ing a live-in while I have my children. ” He testified tha t Mother was upset b

ecause their son

made the guest

list for his birthday dinner with his Father and, as a result, some of the people who attended the birthday dinner at a Knoxville restaurant were gay friends of the Father. Father’s counse l questioned him

on cross-examination:

Q: Why are you opposing your ex-wife’s attempt to change the custody situation, Mr. Price?
A: Because the children - - THE COURT: That’s not a question for today. MS. BEATY: Okay.
THE COUR T : The question today is what irreparable harm, if any, will these children suffer if this temporary restraining order is or is not effectuate

d. We’ll get to the

custody matter one

of these days. Father testified that Mother had complained to him about his spending money on the children that she could not afford to do. He also testified that it was the Mother, and not he, w ho discussed h i s sexual orientation with people in the community, thereby potentially causing the children to be subjected to ridicule or stress. He stated that he “was not going to lie about it,” but that Mother insisted he be more “discreet.” He also testifiedthat, since early in their marriage, he has been confronte

d on numerous occa

sions by numerous pe

ople about the sexual preference of Mother. William Tillery, License d Clinical Social Wo

rker, testified f

or Mother that his background

and training deal with the person in thecontext of family and society, as compared with clinical psych ology, which deals more with the individual. He currently is counseling five individuals

who are “living a

homosexual lifestyle.” Over Father’s continuing objection, he testified that “Blount County is a small, southern type atmosphere that is basically very conservative . . . and so homosexuality in

this type of atmosphere is treated with disrespect, with scorn, as though there is something wrong wit

h people who are

homosexuals.” Coun

sel for Mother att

empted to ask Tillery “about areas conc erning joint custod y and what harm, if

any, there may be

with regard to

### -5-

what the situation was before, irreparable harm to the children . . .” The Court instructed:

What we’re here for to day is for the Court to make a determination of whether or not there is irreparable harm if the temporary restraining order is not

extended. It’s that temporary restraining order t hat keeps Mr. Price from ha ving joint custody of

these children in Knox County on the basis that the parents hav e agreed o n a temporary basis. So I need to find out from every witness who comes to this courtroomtoday what his or her opinion is about whether or notthere are facts and circumstances that would cause

these children irreparable

harm. So that’s what

we really need to get

down to, and that’s where you need to focus your attention, and that’s where you need to focus my attention.
So instructed, Tillery responded that joint custody arrangements in general are very difficult fo r children, since “they don’t have a place to hang th

eir hat.” He opin

ed that in this particular case:

. . . you have a tort ured father because he couldn’t live his gay lifestyle. He had something th at wa s hurting on the inside that he needed to t ak e care of. So he comes out, and so they divorce as gentlemanly

as possible. . . . These problems became greater whe n the father decided to move out of the community p rimaril y for the proposes of, appeared anyway from what I’veread in the trans cripts and interviews, where h e migh t feel more comfortable or more a ccepted in his gay lifestyle. So now we have a conservative Maryville family and we have the liberated gay li festyle in another community. And to me, the homose xual issue is not o

f pri mary concern. It ’s the tremendous dif ference in the a

ttitudes, beliefs, rearing practices and pa

renting skills of bot

h of th ese pa rents. To switch children back and fort h e very two to three

days with this measure of difference between parents, I think is just asking fo r irreparable ha

rm. Mr. Ti llery testified that joint custody of these children was not reasonable, wo rkable , practical or in the best inter est of the childre

n. He is generall

y opposed to joint cu

stody on the basis that it creates problems for the children. He is awa re that these particular parents agreed to joint custody three years ago when they divorced, and he thinks that w as a mistake. He testified that having the children change environmen ts eve ry few days from Maryville to Knoxville, with the change in lifestyle between Mother’s and Father’s environments, “ju st adds more fuel to t

he fire to create problems.” He h ad a concern, “since I have children who commuted to the University of Tennessee, who were older than these kids, and it terrified me - - Alcoa Highway is o ne of the worst2 The Trial Court took judicial notice that Alcoa Highway is “a scary place.” 

### -6- and most dangerous hi ghways . . . .” 2 Mr. Tillery also te stified that Maryv

ille, as compare

d with Knoxville, presents very little opportunity for secrecy about one’s lifestyle:

Secrecy is probably the biggest destro yer in families and in mental health. And in Blount County, to its credit or discredit, and Maryville, people kind of watch what you do and are a

little bit nosey and critical, and so if children are different, or havinga different kind of famil y, that ex poses them to criticism by their peers and other people in the community. In Knoxville, they probably would not get that much criticis

m except under ve

ry specific circ

umstances. Mr. Tillery also opine

d that “homosexua

lity is probably developed out of a lot of different areas and learning is one,” therefore continuing with joint cus tody of the children posed the possibility of irreparable

harm to the children. He opined that the children would be harmed by continuing joint custody and that they should stay in Maryville. Incredibly, despite his specific opinions about the welfareof these children, he testified that he had never seen or talked to eithe

r one of them,

or to the Father.
M other

testified that she

is a registered n

urse and has work

ed at Blount Memoria

l Hospital for nearly 20 years. The children were born in Blount County and have lived there all of their lives. Her son is a member of a church in Blount County, and all of the children’s doctors and dentists have their offices in Blount County. All of the children’s friends live in Blou nt County. The children’s paternal grandparents live less than one mile from her house, an d they have been involved in the care of the children on a dail

y basis. The childr

en have bedrooms

at their grandparents’ home. Father lived less than a mile fr

om Mother’s house b

efore he moved to Knoxville. Mother’s home is two miles from her daughter’s school and three miles from her son’s school. When asked what has happened since the divorce of 1996 which caused her to contend that irreparable

harm will occur to her children if the j oint custody arrangement is reinstated and the injunction dissolved, she replied:

I’m very fearful be

cause, number on

e, the move. Here

he’s t aki ng two children that have been raised in this community and taking them to a community that they are not familiar with. They have no friends that they have formed

relatio nshi ps with as they have here. . . . I’m worried about their isolation over there. I think that they need to be in their own community where their school activities are, where their churchis. I think that they need to be around the support that they have here, such as their grandparents and myself. We have all been a part of their lives and

that would be a big problem as far as that is concerned, as far as the move is concerned.

### -7- Mother further t estified that she no longer trusts Father, and the joint custody arrangement

no longer works, “. . . just the sheer fact o

f trying to move the

children back a

nd forth to their activities a

nd forgetting things, and their lives notbeing – being chao tic as it is.” She als

o complainedthat the children “can’t tell their friends about what’s going on, and they’re in conflict about that,” and that Father had bo ught the children expensive gifts and given them an allowance of $200 a month. The Tr

ial Court then remin

ded Mother to testify about “whether or not the children will suffer irreparable harm.”

Mother testified that Father

has become progressively open about “his homosexual lifestyle” since the divorce. The children don’ t want to tell her things, are more isolated and secretive. She testified that, prior to the divorce, Father had “made a verbal commitment. . . that he would not expose the children to his lifestyle. . . that he wouldn’t have them around his friends

. .

. that he couldn’t se

e ever in his life t

hat he would be with

someone, that his children were his primary focus in his life . . . . and that’s why I agreed to joint custody.” She stated that in the month she has had sole ph ysical custody since the granting of the temporary Order, the children have adjusted to the change, althoughthey were upset when she first obtained the Order. In her opinion, there would be irreparable harm if the chil dren return to the joint custody arra

ngement. She also thoughtthat “certain things can be learned ” and that the chil

dren are expose

d to certain things in the Knoxville lifestyle with which she has a problem. On cross-examinat

ion, she stated tha

t she told the children she woul

d seek sole custod

y if their Father d

id not stop taking the

m to social events w

ith his gay friends. She also acknowledged having told her son that if he and Father s aw eac h other more often than the temporary Order called for, Father would be “in contempt of court.”

After Mother’s proof, counsel for Father announced that Father would not call any witnesses except Seth, the parties’ 14-year old son. The Trial Court stated:

I respectfully de

cline to do that at this stage of the hearing. That may be most appropriate when the Court considers whether or not the joint custody arr an gement will be changed, but insofar as making a decision about whether or not irreparable

harm has occurred

or will occur, I respectfully decline to interviewthe child along those lines. Father introducedthe deposition of Dr. Thomas P. Hanaway, ClinicalPsychologist, as well as a large number of pr ofessional journal articles supplied by Dr. Hanaway. Mother was cross-examined

to elicit the fact that she had consulted Dr. Hanaway for an evaluation of the children to determine whether their Father’s sexual orientation and the joint custody situation was causing emotional harm tothe children. Dr. Hanaway had interviewed the children and done some testing, and had told the Mo

th er that the children were well-adjusted. Mother had not advised the Trial Court of this evaluation because she did not agree with Dr. Hanaway’s findings and opinion.

The Trial Court instructed the attorneys to prepare Memoranda of Law and to submit “proposed

findings of fact a

nd conclusions of th

e law for the Cour

t to consider in mak

ing this decision as to this temporary restraining order issue only.” The Court then continued the temporary custody Order in favor of Mother until September 3, 1999, the deadline for subm ission of the

### -8-

requested documents.

On September 30, 1999, the Trial Court filed a Memorandum stating that h e had “carefully reviewed the Proposed Findings of Fact and Conclusions of Law, together w ith very thorough Briefs, submitted by Counsel for the parties.” In that Memorandum, the Trial Court made no finding with regard to the sole issue about which the Court had narrowed the hearing, i.e., “the greater weight of

the evidence tha

t irreparable h

arm will be committe

d as to these

children unless the TRO is extended.” The Trial Court instead found that the joint custody arrangement between the parties has worked very well except for the Father’s move to Knox County, whic h would prohibit these minor children from maintaining “a haven in all of the storms of life” in the place where they have grown up all of their young lives. The Trial Court concluded that the sole issue before it was “to make a decision th

at will serve the c

hildren’s best inte

rest. The parents’ wants, wishes and desires are not the criteria; the sole criteria is the best interest of the children.” The Trial Court then found that it is to the manifest best interest of the children that their parents continue to enjoy joint legal custody and that the Mother of the children be designated the physical custodial parent. Father was granted standard visitation and, in addition, “such additional visitation as may be reasonable and as may be agreed upon between the parties.” On October 21, 199

9, the Trial Court f

iled an Order whi

ch provides, in pa

rt: 1. Patricia is hereby designated the physical custodian of the minor children of this marriage, Seth and Sara.
2. Dwight A. Price (“Dwight”) is hereby granted visitation pursuant to the standing orders of this Court, and in addition, such additional visitation as may be reasonable and agreeable between Patricia

and Dwight. 3. All other joint cu

stodial responsibil

ities shall remain w

ith both Patricia an

d Dwight.
4. By agreement of the parties, Dwight shall pay child supp ort to Patricia in the agreed amount of $1,805.00 per month as of September 30, 1999, which amount is agreed to by the parties in compliance with the Ch ild Support Guidelines, and shall be responsible for an amount equal to the amount necessaryfor Patricia to obtain health insurance for the children with her employer, Blount Memorial Hospital, Incorporated.
On November 16, 1999, counsel for Father filed a

Motion in the Trial Court which alleged: [Father] moves this Honorable Court to set a trial date in this matter and as grounds herefor would show that counsel for the parties have been unable to agree to set a trial date due to disagreement and/or confusion as to whether the Order previously en tered herein is a temporary or final Order. Accord ingly, the Responde

nt asks that this Courtimmediately set this matter for trial if said Order is a temporary Order and if it is not a temporary O

rder, then Respon

dent would ask

### -9- that the clerk be directed to forth with compile

and transmit the record in appeal pursuant to the Tennessee Rules of Appellate Procedure.
On that same day, cou

nsel for Mother f

iled a Motion for Pr

etrial C o nference and Entry of Pretrial Order which alleged:

This Court has heard evidence in this matter in Augus

t, 1999, and it appears there may be additional evidence should this Court conclude that the Order of October

20, 1999, is not a final order. Conducting a pretrial conference will allow for expediting the disposition of the case and encour

age more thoroug

h trial prepara

tions. The Trial Court re

sponded on Novembe

r 19, 1999, by filing

an Order as follo

ws:

. . . the Court advise

d that it was its intent that the October 20, 1999, Order be a final order disposing of all issue

s before the Cour

t at that time. Acco

rdin gly, i t is ORDERED as follows: (1) The motion to set a trial date be and the same is hereby ov erruled. (2) The motion for a pretrial conference be and the same is he reb y overruled. (3) The motion for attorney fees is

held in abeyanceand is not affected by the Order of October 20, 1999, or this Order. Discussion Father appeals to this Court and raises the following issues, which we quote:
I. Whether

the Trial Court er

red in changing c

ustody of the parti

es’ minor children from sha

red joint physical

custody by both par

ties to solephysical custody o

f the Mother at the

conclu sion of

what was stated to be a hearing on the sole issue of whe ther there was “irreparable

harm,” sufficient to warrant the extension of an ex parte injunction pending a

full hearing on the

merits. I(b). Fu rther , the Court erred in not finding that the

Mother had faile

d to meet her burden of irre parable harm sufficient to justify the continuation of the injunction.
II. The T rial Court erred in permitting the Mother to testify to allege d “promises”

made by the Father before the divorce w hich wer e not reflected in the parties’ Marital Dissolution Agreement.

Mother raises two

issues in this appea

l:
I. The Trial Court erred when it did not require t hat , during visitation

### -10- withDwight, there be no overnight guest s with whom Dwight ha

s a sexual relationship or inv olvement, and that

he be required to

visit withhis children unac

companied by his a

lternate lif

esty le friends, especially his “boyfriend.”
II. This Court should award attorney’s fee

s in favor of Appelle

e, Patricia Price, in connection with

this appeal and re

mand the fixing of t

hose fees to the Trial Court for determination of the appropriate amo

unt to be awarded.
Our review is de novo upon the record, accompanied by a presumption of the correctn ess of the findings of

fact of the Tria

l Court, unless the pr

eponderance of

the evidence is otherwise. Rule 13(d), T.R.A.P.; Davis v. Inman, 974 S.W.2d 689, 692 (Tenn. 1998). The Trial C ourt’s conclusions of law are subject to a de novo review with no presumption of correctnes s . Ganzevoort v. Russell, 949 S.W.2d 293 (Tenn. 1997).

Mother obtai ned temp orary physical custody of the children when the Trial Court grantedher request for t emporary injunction filed pursuant to Rule 65 of the Tennessee Rules of Civil Procedure. That

ruleprovides that temporary injunctions may be granted during the pendency of an action:
if

it is clearly shown

by verified compl

aint, af fidavit or other evidence that the movant’s r ights are being or will be violated by an adverse party and the movant will suf fer immediate and irre

parable injury, loss or damage pending a final judgment in the action, or that t he acts oromissions of the adverse party will tend to render such final judgment inef

fectual. Mother specific

ally sought the appl

ication of Tenn. R.

Civ. P. 65.07, which p

rovides:
In domestic relations cases, restraining orders or injunctions may be issued upon such terms and conditions and remain in force for such time as shall seem ju

st and proper

to the judge to whom application therefor is made, and the provisions of [Rule 65] shall be followe d only insofar as deemed appropriate by such judge. This Court has interpreted the above-quoted language in Rule 65.07 as permitting wide discretion by a Trial Court when issuing tempor ary restraining

orders in domestic relations cases. In Wilson v. Wilson, 987 S.W.2d 555 (Tenn. Ct. App. 1998), we observed:

After laying down rules a

bout rest raining orders and temporary inju n ctions and providing certain procedural safeguards, Rule 65, Tenn. R. Civ. Proc. then provides that the proceduralsafeguards may be ignored in domestic relations cases if the trial court deems it just

### -11- and proper to do so. Rule 65.07, Tenn. R. Civ. Proc. Wilson v. Wilson, 987 S.W.2d 555, 565 (Tenn. Ct. App. 1998). Owing to the Trial Court’s wide latitude in custody cases under 65.07, as construed by this Court in Wilson, supra, we decline to revisit the original granting of the temporary injunction. However, the Trial Court then conducted a hearing to determinew hether the temporary injunction should be continued. The Trial Court directed that the injunction would be continued only if Mother showed that irreparable ha

rm would occu r if the injunction were v acated. The par

ties presented su

ch proof as the Tr

ial Court would allow under time constraints and the Trial Court’s limiting instructions. The Trial Court made no finding that irreparab

le harm would

occur if the injunction were not continued. Moreover, the Trial Cou rt found that “the joint custody arrangement between the parties has worked very well exc ep t for the Father’s move to Knox County, whichwould prohibit these minor children from maintaining ‘a haven in all of the storms of life’ in theplace where theyhave grown up all of their young lives.” From the record before us, we hold that Mother has failed to show t hat Father’s move to Knox County would result in “irreparable harm” required t o suppo rt a continuation of the temporary injunction. Ac cordingly, w e vacate that injunction and reinstate the original custody award to the parents jointly pending further action by the Trial Court as directed below.

Next w e address the Trial Court’s Order which permanently changed physical custod y of the children to Mother. We presume the original award of joint physical and legal custody of the ch ildren was made in accordance with the standard set out in T.C.A. § 36-6-101(a)(2), wh ic h provides, in part:

Unless the court finds by clear and convincing evidence to the con tra ry, there is a pr esum ption that joint custo dy is in the be

st interest of a minor child where the parents have agreed to joint custo dy or so a gree in open court at a hearing for the purpose of determining the custody of the minor child.
That statute also provides that “[t]he burden of proof necessary to modify an order of joint

custody at a subsequent proceeding shall be by a preponderance of the evidence.” T.C.A. § 36-6-101(a)(2). An award of custody cannot be changed in the absence of a showing of new fac ts or “chan ged circumstances”

jus ti fying an alteration of the original custody award. Musselman v. Acuff, 826 S.W. 2d 920, 924 (Tenn. Ct. App. 1991). Accordingly, the Trial Court was required to determine whether the preponderance of the evidence showed that change d circumstan ces required a change from joint custody to the sole custody of their Mother.

If this case were in

the customary

appellate posture in which counsel for the parties have brought all of their competent witnesses and admissible evidence before the Trial Court and the Trial Court has made a factual determination about where the preponderance of the evidence of changed circ umstan ces lies, we would be able to review that determination de novo with a presumption of correctness , as it is our duty to do under T. R. A. P.

13(d). However, we are

unable t o perfo rm any meaningful appellate review of the fac ts in this case because the parties were

### -12-

repeatedly

admonished by the Trial Court to present only evidence tending to show whe therthe temporary

injunction should be continued in force. We restate for emphasis the Court’s instruction

s: Let’s all understand that the issue before us today is that whether or notthe Petitioner

can show to the Court by the greater weight of the evidence that irreparab

le harm will be committed as to these children unless the TRO is

extended. Good custody, bad custody, change of custody, leave it alone is not an issue today, and so we won’t be trying those matter s. We’ll just be determining whether or not the greater weight of the evidence

shows that irrepa

rable harm will re

sult to these children.
* * * Q: Why are you opposing your ex-wife’s attempt

to change the custody situation, Mr. Price?
A: Because the children - - THE COURT: That’s not a question for today. MS. BEATY: Okay.
THE COURT: The questio n today is what irreparable harm, if any, will these children su

ff er if this tempora

ry restraining or

der is or is not effectuate

d. We’ll get to the

custody matter one

of these days.
* * *
What we’rehere for t oday is for the Court to make a determination of whether or not there is irreparable harm if the temporary restraining order is not extended. It’s that temporary restraining order that keeps Mr. Pric

e from ha ving joint custody of these children in Knox County on the bas is that th e parents have agreed on a temporary basis. So I needto find out from every witness who comes to this courtroom today what his or her op inion is about whether or notthere are fac

ts and circumstances that would cause these children irreparable harm. So that’s what we really need to get down to, and that’s where you need to focus your attention, and that’s where you need to focus my attention.
* * *
After Mother’s proof, counsel for Father announced that Father would not call any

### -13-

witnesses except Seth, the parties’ 14-year old son. The Trial Court stated:

I respectfully de

cline to do that at th

is stage of the hearing. That may be most appropriate when the Court considers whether or not the joint custody arrangement wil l be changed, but i

nso fa r as making a decision about whether

or not irreparable harm has occurred or will occur, I respectfully de

cline to interview

the child along thos

e lines.
The Trial Court instructedthe attorneys to prepare Memoranda of Law and to submit “proposed

findings of fact a

nd conclusions of th

e law for the Cour

t to consider in mak

ing this decision as to this temporary restraining order issue only.”

Neither party was allo

wed t o litigate the issue of whether changed circumstances required a change of custody. The Trial Court permitted only testimony which it deemed relevant on the issue of whether the temporary injunction should be continued. Offers of proof on the issue of changed circumstances were rebuffed by the

Trial Court with the

admonition that only

the issue of “irreparable harm” was before the Court. Under these pecu liar circumstances, it would be improper for this Court to off

er even conjec

tu re about wha t the prepondera nce of the evide

nce, if fully developed, might show on the issue of changed circumstances. Clearly, neither of these parents has had her or his day in court. Even after the entry of the Trial Court’s final judgment, counsel for both parties filed motions asking for a trial date or a pre-trial conference. The Trial Court responded that “ the October 20, 1999, Order [is] a final order disposing of all issues before the Court at that time.” For the reasons he rein stated, we respectfully disagree. There is no dispute placed before the Courts of this State more important than the custody of children after a divorce. Such a determination requires a

full, fair, and complete hearing. The parties in this case have not received such a hearing, and therefore, we remand the case for trial on that issue. CONCLUSION
The judgment

of th e Trial Court is reversed and this cause remanded to the Trial Courtfor trial o

n the issue of whether changed circumstances require the phy sical custody of the parties’ children to be changed. Pending such trial, physical custody of the childrens hall be as originally ordered in the divorce decree, joint physical and legal custody. The costs of this appeal are a sse sse d aga ins t th e par tie s ev enl y.