# FILED
December 28, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF A

PPEALS OF TENN ESSEE AT JA CKSON ANDREI M. MIHUT, ) ) ) Plaintiff/Appellee, ) Shelby Chancery No. D29487-1 R.D. ) VS. ) Appeal No. W1998-00601-COA-R3-CV ) MARIA G. MIHUT, ) ) ) Defendant/Appellant. ) APPEAL FROM

THE CHANCE RY COURT O F SHELBY COUNTY AT MEMPHIS, TENNESSEE THE HONORABLE WALTER L. EVANS, JUDGE

JEFFREY JONES Memphis, Tennessee Attorney for Appellant

T. TARRY BEASLEY, II Memphis, Tennessee Attorney for Appellee

AFFIRMED

ALAN E. HIGHERS, J.

CONCUR: W. FRANK CR

AWFORD, P.J., W.S . HOLLY KIRBY LI LLARD, J.1 At the time of the trial co urt pr oce eding s, Je ffrey w as ag e eigh t and And rea w as tw o and a half

years ol d. 2 Maria G. Mihut (“Mrs. Mihut”) has appealed from the trial court’s determination regarding c hild custody during a divorce proceeding between Mrs. Mihut and Andrei M. Mihut (“Mr. Mihut”

). Based upon the following , we affirm the decision of the tr ial court.

Facts and Procedural His tory

This divorce and child custody action was originally commenced on May 5, 1998, bythe fili ng of a

complaint for divorce by Mr. Mihut. After a hearing, the trial court granted Mr. Mihut temporary custody of the children. On October 27, 1998, the court granted Mr. Mihuta final d ivorce decre e and awarded him permanent custody of the children. Mrs. Mihutwas ordered to pay child support and was granted liberal visitation rights. Mrs. Mihut appeals based on the following facts.

Mr. and Mrs. Mihut wer e married in Santa Ana, California, on November 14, 1989. They had two minor chil dren, Jeffrey, born December 29, 1989, and Andrea Marie, born January 9, 1996. 1 During the course of the M ihut’s marriage, the family relocated to Shelby County, Tennessee. At the time this cause of action arose, Mrs. Mihut w as employed fulltime. Mr. Mihut worked at home tryingto establish a new business and taking care of the children.

The Mihuts began experien cing marital problems i n 1997. Mrs. Mihut did not offer an explanation for these problems . However, accor ding to Mr. Mihut, these proble ms resulted from Mrs. Mihut’s alcohol and drug use and her alleged invol vement in a lesbian relationship. The couple sought marital counseling that was ultimately unsuccessf ul.

As a result of

the rapidly deterior

ating relationship, Mr. Mihut petitioned for and was granted a restraining order preventing either party from remov ing the children from the area on May 4, 1998. Subsequent ly, Mr. Mihut filed a complaint for divorce in the Chancery Court. In his complaint, Mr. M ihut alleged irreconci lable differences and inapprop r iate2 Mr. Mihut’ s witnesses i ncluded busine ss associates, family f riends, andthe husband of one of

Mrs. Mihut’ s cousins. The deposition of Mr. Mihut’s private i nvestigat or was also consi dered. 3 marital conduct by Mrs. Mi hut as grounds for divor ce. An amended complaint by Mr. Mihut soughtcus tody of the two children. Mr s. Mihut did not countercl aim for divorce, but she did seek custody of the children in her answer.

A temporary custody hearing was held before Chancellor Ne a l Small on July 28, 1998. At this hear ing, Mr. Mihut presented six live witnesses and one witness via dep osit ion to testi

fy on hi s behalf. 2 Mr. Mihut testified r egarding Mrs. Mi hut’s use of alcohol and drugs. Specifically , Mr. Mih ut claimed that Mrs. Mih ut drank regularly and sometimes to excess in the presenc e of the children. Mr. Mih ut testified that Mrs. Mi hut drove while intox

icated and at times did so with Andrea, the Mihut’s daughter, in the car. In addition, a Shelby County depu tytestified that a search of Mrs. Mihut’s car by police revealed a package contai ning marijuana.

Mr. Mihut also testified about hi s relationship w ith the chi ldren and Mrs. Mihut’s alleged carelessness andapathy regarding th e children. According to Mr. M ihut, he was the children’s principal care-gi ver. He claimed that both his son and daughter relied upon him for everyd ay neces sities such as food, clean cl othes, and transportation. Mr. Mihut also claimed that Mrs. Mihut did not spend time w ith the children and was careless when she was with them. Speci fically, Mr. Mihut alleged that Mrs. Mihut left a plugged-in iron on the bed and floor of a bedroom, resulting in scorched bedding and carpet on two separate occasions.

Several other witnesses testi fied about Mr. M ihut ’s relationship with the children. The essence o f this te stimony w as to show that Mr. Mihut had a very loving and close relationship with his children, especially Andrea. In additio n, seve ral of the witnesses stated that Mr. Mihut was a good parent and was best q ualified to take care of the children. Although most of the witnesses knew and had been friends with both parties, no witness recomme nded tha t Mrs. Mihu t be given cu stody.4

Mrs. Mihut testified regarding Mr. Mihut’s allegations

and her relationship with the children. Mrs. Mihutdenied she abused alcohol. She also testified tha t the reason she did not spend much time with the children was because they were always with Mr. Mihut. Mrs. Mihutclaimed that the

witnesses who testified on behalf of Mr. Mihut did not know her well enough to make a recommendati on. In a ddition, Mrs. Mihut sai d that Andrea was responsible for the iron burns on the bed and floor
. No other witnesses testified on behalf of Mrs. Mihut.

After hearing the testimony

of the parties and witnesses , the court granted Mr. Mihut temporary custody of the children on July 28, 1998. Pursuant to the custod y order, Mrs. Mihutwas given permis sion to remain in the marital home pending the divorce. A hearing regarding the divorce and final custody determination was set for September 9, 1998. D ue to a continuance the hearing w as not held until October 12, 1998. The events between the temporary custody hearing and the final custody hearing are at issue on this appeal.

On the Monday after the tempora ry custo dy ruling, Mr. M ihut and the children moved out of the marital homeand into a hotel room. Acc ording to Mr. Mihut, the move was promp ted by Mrs. Mihut’s erratic behavior and the atmosphere it created. For example, Mrs. Mihut apparently threatened Mr. Mihut with a knife on two occasions, once in the p resence

of Andrea. Mr. Mihut and the c hildren continued to reside in the hotel pending the divorce hear ing.
During this period, Mrs. Mihut successfully sought the court’s permission to hav e the children evaluated by a counsell or. As a result, the chil dren were seen by Dr. Susan Ackerman Ross, a psychologist. D r. Ross, whose testi mony was taken by depos ition on October 8, 1998, stated that she had two sessions with the children, for 45 minutes at each session. Dr. Ross stated that both c hildren looked healthy , but that Jeffr ey has some emotional problems and exhibited aggressive behavior. In addition, Dr. Ross’s secretary observe d Jeffrey take his fist and repeatedly punch his sister in the vaginal a rea an d separate her legs and stick his face into her vaginal area. Dr. Ro ss did n ot make a3 Chan cellor Eva ns ass ume d the ben ch on S eptem ber 1, 19 98, and h eard all m atters ther eafter. 5 recommendation regarding c ustody but did recommend that Jeffrey receive counseling
.
The divorce and final custody hearing was held on October 12, 1998, before Chancellor

Walter Evans. 3 The divorce was unc ontested, so the primary i ssue regarded cus todyo f the children. The court rev iewed the testimony from the temporary custody hearing, as well as hearing further testimony by both Mr. and Mrs. Mihut, a witness for Mrs. Mihut, a witness for M r. Mihut, and the depositional testimony of Dr. Ross.

In addition to his previous allegations, Mr. Mihut testified about Mrs. Mihut’s failure to mainta in th e house and yard. Mr. M ihut presented photographs detai ling the deterioration of the family home that occurred after he moved out . The phot ographs revealed piles of garbage bags i n the yard, some of which ha d b een torn open and scattered by the family dog. The photos also showed stains on the carpet, a roach, and a generally unkept house.

Mr. Mihut also testified

that Mrs. Mihut exhibited inappropriate behavior in front of the children . Specif ically, Mr. Mihut alleged that Mrs. Mihut was

involved in an ex

tramarital relationship with a lesbian (“Ol ga”). According t o Mr. Mihut, Mrs. Mihut had sexually explicit telephone conversations with Olga in the pr

esence of the children. In addition, Mrs. Mih ut had homoerotic literature in th e car she u sed to transport the children. Mr. Mihut also alleged that during marital counseling sessions, Mrs. Mihut admitted to the occasional use of marijuana.

Mrs. Mihut denied Mr. Mihut’s allegations of excessive drinking, mariju a na possession or use, explicit sex ual talk, and homosexualliterature aroundthe children. In add ition, Mrs. Mihut claimed that the condition of the house was a result of Mr. Mihut’s removal of cleaning supplies and the c ancellation of the garbage service . Mrs. Mihut testified that Mr. Mihut was forcing the children to sleep with him in the same bed at night. Mrs. Mihut also presented the deposition t estimony of Dr. Ross in regard to Jeffrey ’ s6

behavior.

After considering all of the te stimon y, the trial court g ranted both a divorce and custody of the children to Mr. Mihut, with liberal visitation to Mrs. Mihut. The court specifically disregarded the allegations of Mrs. Mihut’s drug and alcoho l abuse and alleged lesbian relationship in making the custody determination. The court based its determinat ion on the close relationship bet ween Mr. Mihut and the c hildren and the fact that he had devoted more time and effort to their upbringing. Thereafter, Mrs. Mihut filed a Notice of Appeal.

On appeal, Mrs. Mihut asserts two issues. First, that the trial court err ed by failing to make a referra l sua sponte of potential allega tions of sexual a buse concernin g t h e children to the Juven ile Court pursuant to Tenn. Code Ann. § 37-1-605 and Tenn. Code Ann. § 37-1-403. In addition, Mrs. Mihut asserts that the trial court erred in failing to delay or hold in abeyance any determina tion of final custody pending inv estigation of allegations of abuse.
Analysis

In the trial court, the primary factor for determining chil d custody is the best interest of the children. Gaskill v. Gaskill , 936 S.W.2d 626 (Tenn . App. 1996); See Tenn. Code. Ann. § 36-6-106. Child custody cases a re reviewed pursuant to Rule 13 of the Tennessee Rules of Appellate Procedure. Hass. v, Knighton , 676 S.W.2d 554, 554-555 (Tenn. 1984). Accordin gly, the finding of facts by the trial court i s de novo, with a pres umption of the correctness. This presumption of correctness can be overcome only if a preponderance of the e vidence ind icates otherwise. See T ENN . R. A PP . P. 13(d). Therefore, for Mrs. Mihutto prevail on appeal, she must show that sexual abuse of the children was indi cated by a preponderance of the evi dence.

I. Tenn. Code A

nn. §37-1-605 and §37-1-4034 Tenn . Code A nn. § 37- 1-605 p rovides in p ertinent pa rt: (a) Any person, incl uding, but not limit ed to, any: (

5) Judge of

any cour

t of t he stat e... who knows or has reasonabl e cause to suspect t hat a chil d has been sexuall y abused; shal l report such knowledge or suspicion to the departmen t in the manner prescribed in subs ection (b).

(b)(2) I f a law enfor

cement offici al or judg e becomes aware of known or suspected chi ld sexual abuse ...such info rma tion shall be r eported
... Tenn. Code. Ann. § 37- 1-403 provi des the same protecti on, but i ncludes report ing of suspected brutali ty, ab use, or negl ect, i n additi on to chil d sexual abuse. 7 Mrs. Mihut’s first issue on appeal is based on two sections of the Tennessee C ode Annotated; § 37-1-605 and § 37-1-403. The substance of these code sections is to require any person, including the j udge of any court, to report potential sexual abuse of a child to the Juvenile Court

. 4 Our analysis indic ates that application of these sec tions were not triggered by the ev

idence presented to the trial court.

In reviewing the ev

idence, we find it appropri ate to note that Mrs. Mihut did not raise the issue of pote n tial sexual abuse at either the temporary custody hearing or the permanent custody hearing. Ins tead, she as serts on appeal that it should have been obvious to the trial court that a referral to Juvenile C

ourt was appropriate. We do not agree with Mrs. Mihut’s assertions for the following reasons.
Mrs. Mihut argues that a fair and unbiased reading of the testimony of Dr. Ross compels the conclusion that Jeremy’s acts wer

e potentially of a sexual ly abusive nature. However, in her characterization of Jeremy’s behavior, Dr. Ross stated, “I’m not saying that he ’s [Jeremy] sexually abusing her [Andrea].” D r. Ross never sugg ested that furthe r examination and inv estigat ion of any possible sexual abuse was mandated under the circumstances. Dr. Ross did recommend that Jeremy receive counseling , but explained that many children exhibi t inappropriate behavior in the midst of a divorce. Additionall y, the alleged abuse by one sibling t oward the other, occurr ed in Dr. Ross’ office w hile the children were under Mrs. Mihut’s control.

The only other evidence that Mrs. Mihut can point to is the allegation that Mr. Mihut shared a bed with his ch i ldren while liv ing in the hotel. This all egation, even if relev ant, was disproved by the children during their sessions with Dr. Ross.8

The evidence presented by M rs. Mihut during the temporary an d permanentcustody hearings does not even hint at the possibility of sexu al abuse of the children. Mr s. Mihut relies solely on her own unfounded accus ations a nd the acting-out behavio r of Jeffrey under stressful circumstances. There was no basis for a referr al to Juvenile Court on

the evidence presented in the trial court. Therefore, sections 37- 1-605 and 37-1-404 are not applicable. In addition, we find it appropriate to note that al legations of sexualabuse of a child are very serious and damaging for not only the child, but all pa rties involved, and should n ever be use d as a last -ditch ef fort to win custody.

In dealing with an issue of this nature, the court cannot always recogni ze when abuse occurs even if presented w ith evidence or

allegations of such. However, in a case such as this one, where there is no evidence suggesting abuse, and n o allegations of abuse, the court cannot act as c lairvoyant. Without an evidentiary foundation, th e court cannot predict that sometime, someday, in some m anner, abuse may occur.
II. Abeyance of Custody Proceeding

Mrs. Mihut’s second issue on ap peal is whethe r th e trial court erred by failing to postpone the dete rminati on of fi nal custo dy until an appropriate i nvestigation into the allegations

of child sexual abuse could be completed. Because there w ere no allegations or any apparent evidence of abuse before the trial court, we find that this issue is meritless. The trial court was not in error in proceeding with the custody deter mination.

Conclusion
Based on the foregoing, the judg ment of the trial court is her eby affirmed. Costs on appeal are taxed to Mrs . Mihut, for which ex ecution may issue if necessar y.9 HIGHERS, J.

CONCUR:

CRAWFORD, P.J., W.S.

LILLARD, J.