James Lyle Graham v. Barbie Phylissa Graham

Citation: Not availableDocket: E2012-00416-COA-R3-CV

Court: Court of Appeals of Tennessee; March 21, 2013; Tennessee; State Appellate Court

Original Court Document: View Document

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The Court of Appeals of Tennessee addressed an appeal involving a post-divorce parenting plan between James Lyle Graham (Father) and Barbie Phylissa Graham (Mother). Initially, the parenting plan designated Father as the primary residential parent and denied Mother any visitation rights. Years later, Mother petitioned to modify this arrangement, citing a material change in circumstances. The trial court granted her liberal visitation rights, a decision that Father appealed. The appellate court affirmed the trial court's ruling.

The background reveals that Mother and Father married on July 30, 2004, and divorced on July 19, 2006, shortly after the birth of their Child. Mother's criminal history, including theft and embezzlement, was noted, as well as her abusive relationship with Father and the financial strain caused by multiple miscarriages. Despite a history of criminal behavior, Mother argued that she had never been charged with a crime before her relationship with Father. Throughout the hearings, Mother acknowledged her actions had negatively impacted the Child but attributed some blame to Father for disclosing her incarceration to the Child. The court's decision to grant visitation rights to Mother reflects a shift in circumstances since the original agreement.

The individual admitted to fabricating a pregnancy with twins and misleading family and friends, which included receiving gifts at multiple baby showers. She claimed that the father desired twins and would have discovered the truth had he attended her prenatal appointments. She acknowledged lying about having health insurance and falsifying information on her diversion application, including claims of a mental breakdown and an abusive upbringing. 

Additionally, she confessed to forgery on employment applications submitted to Greene County in 2006, where she faked her sister's reference signature and misrepresented her educational qualifications. Following the revelation of her deceptions, she alleged that the father’s violent behavior escalated, initially pressuring her to have an abortion before filing for divorce, with a subsequent arrangement to keep their divorce confidential if he retained custody of their child. 

Post-divorce, she continued to care for the child while living with the father, describing a situation of complete control by him. She recounted an incident in December 2006, where after a dispute, she ingested 25 Tylenol PM pills, leading to hospitalization due to injuries she initially denied as abuse but later revealed to a crisis worker. She lived with him until he forced her and their son to leave in November 2009, citing fears for their safety due to his intimidating behavior and possession of weapons.

After filing to modify the parenting plan, they reached an agreement for supervised visitation, which she stated went well until the father changed the child’s school, disrupting her visitation rights and communication. She argued against being a flight risk, highlighting that she had secured a lease for a suitable home and obtained employment. Teri Myers testified about previous threatening behavior from the father, including an attempt to break into a house and intimidating remarks made in the courthouse.

Ashlee Shirey testified she arrived at the courthouse with Ms. Myers and did not hear any conversation between Father and them. She loaned Mother money, which Mother was repaying, and disregarded Father’s advice to sue Mother, choosing instead to honor their repayment agreement. Rita Davis, Mother’s sister, testified that Mother reported Father’s abuse and indicated she had seen bruises on Mother multiple times. She learned of the divorce only in November 2009 and claimed Mother had signed a job reference form without permission. Teresa Carver, a close acquaintance of Mother, also learned about the divorce in 2009 and recounted a conversation with Father in which he spoke negatively about Mother, whom she regarded positively. Barbara Shelton had known Mother for 35 years, believed her to be a good mother, and loaned her money in 2010, noting that Mother was making payments, though one check did not clear. Father suggested she sue Mother, but she instead bought Mother’s home as collateral. Sandy Gammon, administrator of Noah’s Ark Day Care, noted that the Child was initially quiet but became more expressive over time. She observed that Mother was typically the one transporting the Child to school and had a strong relationship with the Child, although visits during school were emotionally difficult for the Child. Gammon found Father’s behavior uncomfortable, particularly when he expressed anger over minor incidents involving the Child and attempted to limit Mother’s visitation rights. She eventually issued a letter of dismissal to Father due to his conduct but allowed the Child to return to school on a probationary basis after his promise to improve. Cathlyn Cannon, a mental health consultant, attempted to assess Mother’s parental fitness but was unable to observe her interactions with the Child due to existing visitation restrictions.

Mother exhibits no signs of emotional or psychological dysfunction, as confirmed by psychometric tests and a clinical interview. Her depressive disorder is well-managed, posing no risk to her parenting abilities or flight risk assessment. Although she tends to avoid conflict, she struggles with Father's controlling behavior, which has included physical and verbal abuse. Father has monopolized decisions regarding contact with the Child and restricted Mother's family interactions. The report strongly advises against continued separation, recommending immediate reunification of Mother and Child with a proposed 50/50 custody arrangement. The emotional distress caused by their forced separation has not been adequately addressed. A psychological evaluation of Father is recommended, using the same instruments applied to Mother, but this evaluation should not delay reunification. Mother's claims, while based on her testimony, were supported by testing that found no psychopathology. Testimony from Dr. Nagy, who treated Mother following a suicide attempt in 2006, revealed evidence of abuse from Father, who intimidated Mother during her examination. A pediatric nurse testified about Father's belligerence during a follow-up appointment for the Child, and a 19-year-old son reported good academic performance and employment history, indicating stability.

Since the divorce of Mother and Father, their son has spent equal time with both parents. He testified that Mother was actively involved in caring for her child, performing tasks such as bathing, feeding, and comforting her, while claiming that Father did not engage in these activities. The son expressed a desire to reestablish visitation with the child and noted conflicts between Mother and Father, describing Father as aggressive and emotionally abusive towards Mother. He recounted an incident on November 9, 2009, when Father forced Mother to leave their home, during which he felt threatened and had to defend himself. The son acknowledged his parents' divorce occurred when he was three but stated they managed to co-parent cooperatively despite their issues.

Witnesses, including colleagues of Mother, described her as loving, kind, and nurturing, asserting that she posed no danger to children, despite her past issues with embezzlement and dishonesty. One witness reported witnessing signs of physical abuse when Mother had visible bruises and claimed Father choked her. Another witness, Reverend Daugherty, who had known Father for over 40 years, supervised a visitation between Mother and the child, noting that the child initially resisted but ultimately had a normal interaction with Mother. Daugherty expressed concerns about Mother’s ability to care for the child unsupervised, fearing she might abscond with her.

A teacher reported that the child’s self-esteem improved after visits with Mother ended, describing the child as more focused and socially engaged. Lastly, a childcare business owner testified about hiring Mother, indicating her involvement in childcare.

Mother failed to provide required paperwork for a background check and submitted forged documents, later admitting to the forgery before ultimately providing valid materials. She claimed to be a teacher at Asbury and knowledgeable in Spanish, but it was discovered she did not speak the language. Concerns arose regarding Mother's instability, as she exhibited erratic behavior in front of children. Mother left her position in August 2009 and allegedly defamed a colleague while attempting to attract clients to her new facility. Witnesses expressed doubts about Mother's ability to care for children, citing her dangerousness and lack of control.

Gordon Britton, from Northside Emergency Hospital, stated he would have reported any allegations of physical abuse to law enforcement. He described Father as concerned but not angry about Mother's situation. Amanda Waddell, Director of Career Development at Asbury, testified that she fired Mother for resume fraud in March 2006 and later discovered Mother had embezzled funds meant for a child’s tuition following the child’s mother's death. Waddell feared for her own children’s safety around Mother and noted that Asbury had issued a restraining order against her.

The parties agreed that Ronnie McAmis and Samantha Ramsey would testify about Mother's theft of checks and forgery in 2010, with McAmis stating that Mother's dishonesty disqualified her from caring for the Child. Ramsey recounted an incident where Mother stole checks while she attended to her own child. Lynette Hill, former Director at Asbury, recalled that Mother had recirculated personal stories as her own and deemed her unstable, refusing to allow her near her daughter.

Special Agent Douglas Allen described Father as a caring and responsible parent with a good reputation, while Linda Gass observed the Child’s affection for Father at a graduation event. Chief Deputy John Jones praised Father’s professional demeanor and honesty, contradicting Mother's allegations of stalking. Detective Lieutenant David Crum also found Mother's complaints against Father to be unfounded, noting her association with a convicted thief involved in check forgery.

Thomas Schacht, Psy.D., assessed Mother's parenting capability through document reviews and observations of interactions with the Child and Father. He diagnosed Mother with an impulse control disorder linked to bulimia and criminal behavior, suggesting a tendency for "intermittent explosive disorder," indicating uncontrollable anger. Schacht expressed concerns about Mother's judgment, moral reasoning, and ability to relate to the Child, stating her behavior posed a risk of harm. He noted her self-deception and unrealistic expectations regarding shared parental responsibilities with Father. Despite these findings, he recommended supervised visitation rather than prohibiting contact altogether. Schacht criticized Ms. Cannon's assessment of Mother as limited and potentially misleading due to the reliance on Mother's self-representation, asserting that Cannon's custody determination was unprofessional.

Michael Marsh testified that Mother rented an apartment from him but had never worked for him, contradicting her claims. Father, self-employed with a degree in Engineering, shared that he learned of Mother's pregnancy in 2005, during which she falsely claimed to be pregnant with twins. Following incidents of theft involving Mother, he reimbursed the victim to support her. After the Child’s birth, Father finalized their divorce but allowed Mother to remain in the house temporarily for the Child's safety. He stated that the divorce agreement was understood to be temporary and contingent on Mother's financial situation. Father detailed Mother's suicide attempt in December 2006, her subsequent theft indictment, and her unauthorized signing of his name on a check for $2,700. He characterized Mother's behavior as self-centered, prioritizing her needs over the Child's.

Mother frequently left the household for extended periods, causing distress to the Child, although Father denied ever ordering her departure. He asserted that he and Mother shared responsibilities for the household and child-rearing but had separate bedrooms post-divorce. Father refuted claims that he misrepresented his relationship with Mother during her 2006 hospital visit, stating he communicated their divorce to others and was not present during her examination. Following Mother's suicide attempt, Father closely supervised her interactions with the Child out of fear for their safety, permitting limited contact after a year due to perceived improvement. He described an incident in May 2009 where Mother left after hitting him in front of the Child, and a final confrontation in November 2009 when she left and did not return, asserting the Child did not express missing her. Father expressed concerns about Mother's stability, her potential to abduct the Child, her past thefts, lack of employment, and ability to forge documents. He claimed the Child had been harmed when left unsupervised with Mother.

The trial court recognized a material change in circumstances due to the parents’ cohabitation against the parenting plan and Mother's abrupt removal from the Child's life in November 2009. Despite acknowledging Mother's criminal behavior, the court found substantial evidence of her competency and love as a caregiver, citing testimony from credible witnesses regarding her positive history with children over 19 years. The court ruled that Mother would continue to be a good mother, designating Father as the primary residential parent while granting Mother “liberal unsupervised visitation” rights. A permanent parenting plan allowing 140 days of visitation for Mother was adopted. Following this decision, an appeal was made, raising two key issues: whether the trial court erred in finding a material change in circumstances to modify the parenting plan and whether the modification itself was erroneous. On appeal, the trial court's factual findings carry a presumption of correctness, while legal conclusions are reviewed de novo without such presumption.

In Blackburn v. Blackburn, it is established that mixed questions of law and fact are subject to de novo review without a presumption of correctness, though appellate courts have significant leeway to assess whether the trial court's findings are supported by evidence. In divorce and child custody cases, trial courts have broad discretion, with appellate courts only intervening upon clear evidence of an erroneous exercise of that discretion. Custody and visitation decisions often rely on nuanced factors, including parental demeanor and credibility, leading appellate courts to be cautious in second-guessing trial court rulings.

In the case at hand, the father contends that the trial court erred in determining a material change in circumstances when the mother left the shared residence, arguing that her absence was foreseeable. The mother counters that the trial court correctly identified a material change in circumstances stemming from her living situation with the father and subsequent eviction. Although custody decisions are typically res judicata based on the facts known or foreseeable at the time of the original ruling, courts can modify custody arrangements when significant changes occur.

The modification process involves a two-step analysis: first, the parent seeking modification must demonstrate a material change in circumstances that occurred post-decree; second, the change should not have been reasonably anticipated when the original order was made and must significantly impact the child's well-being. The standard for determining a material change differs depending on whether the request is to modify custody or merely the residential schedule, with a lower threshold for changes to the residential parenting schedule. In this instance, the trial court denied the mother's request to modify custody but altered the residential parenting schedule, applying the lower standard for modifications.

The Code stipulates that when seeking to modify a residential parenting schedule, the petitioner must demonstrate a material change in circumstance that affects the child's best interest, without needing to prove a substantial risk of harm. Such changes can include significant alterations in the child's needs, the parent's living or working conditions, or failure to comply with the parenting plan. In this case, the parents did not comply with the original plan, but both acknowledged that the mother was a consistent presence in the child's life, which the child adapted to and later struggled with when she was absent. The court concluded that the mother's presence and subsequent absence warranted a modification of the parenting schedule, affirming that a material change in circumstances had occurred.

The court must determine if changes to visitation align with the child's best interest, considering factors outlined in Tennessee Code Annotated sections 36-6-106 and 36-6-404. While the trial court is not required to list every factor or its impact on custody decisions, it must conduct a best interest analysis to evaluate parental fitness. The court engaged thoroughly with testimonies and arguments from both parents, each accusing the other of moral failings that could affect the child. Ultimately, the court found that maintaining a relationship with both parents was in the child's best interest, recognizing the nurturing from the mother and stability from the father. The trial court's judgment was affirmed, and the case was remanded for any necessary further proceedings, with costs of the appeal assigned to the appellant.