Shearer Rebecca Agee v. David Steven Agee

Citation: Not availableDocket: W2007-00314-COA-R3-CV

Court: Court of Appeals of Tennessee; May 16, 2008; Tennessee; State Appellate Court

Original Court Document: View Document

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The Court of Appeals of Tennessee affirmed the trial court's decision to modify child custody from Mother, Shearer Rebecca Agee, to Father, David Steven Agee, due to a material change in circumstances. Mother appealed, arguing that the evidence did not substantiate a material change and questioning the trial court's reliance on specific evidence. 

The background includes the couple's marriage on September 8, 2000, their separation in June 2001, and the birth of their only child, R. I. A., on February 8, 2002. Following their divorce in August 2002, they established a Marital Dissolution Agreement designating Mother as the Primary Residential Parent. 

In early 2004, Mother faced potential deployment to Iraq and subsequently raised concerns about possible sexual abuse of R. I. A. during visits with Father. She reported her suspicions to authorities, leading to examinations and testing of R. I. A.'s garments, which yielded inconclusive results. No criminal charges were brought against Father. Additionally, Mother sought medical attention for R. I. A. citing allegations of sexual assault, but subsequent examinations also proved inconclusive.

In October 2004, Father filed a petition for a change in custody, claiming that Mother's allegations were unfounded and harmful to R. I. A. The court's ruling was upheld, indicating no errors in the original trial court's findings.

Father claimed that accusations made against him were intended to alienate his child, R. I. A. On October 28, 2004, Mother filed a Response and Motion for Civil Contempt, alleging Father's violations of the parenting plan, which he denied on November 22, 2004. Following R. I. A.'s visit to Father over Christmas, Mother had a nurse examine her daughter and subsequently filed a Motion for Civil and Criminal Contempt on December 30, 2004, claiming Father exceeded his parenting time. Father denied these allegations and on January 14, 2005, filed a Petition for Contempt against Mother for alleged assault and derogatory remarks. He also requested a custodial evaluation. On January 25, 2005, Mother filed a Motion to Terminate or Require Supervised Parenting Time, alleging sexual abuse by Father, followed by a Petition for a Restraining Order, which was temporarily granted. Father responded, alleging denial of visitation.

After inconclusive medical examinations, the Chancery Court held a hearing on February 23, 2005, and in April ordered both parents to undergo a psychological evaluation. The evaluation from LeBonheur concluded that it was unlikely Father had sexually abused R. I. A. and indicated a positive relationship between them, while suggesting that Mother showed traits of Borderline Personality Disorder. The court allowed Father supervised visitation and ordered R. I. A. to attend counseling, requiring both parents to participate. Mother was also mandated to undergo long-term therapy for personality disorders. Mother attended therapy with Dr. Spring, who later released her, stating he found no evidence of Borderline Personality Disorder. On October 11, 2005, the court expanded Father’s visitation and required ongoing family counseling. Shortly thereafter, Mother was informed her job would terminate due to funding issues, prompting her relocation to Fulton, Kentucky.

Father and Dr. Pickering opposed Mother's relocation outside the court's jurisdiction. In response, Mother moved to South Fulton, Tennessee, to stay within the jurisdiction. On December 12, 2005, the Chancery Court dismissed several petitions and motions, mandating adherence to the "Shared Parenting Provisions" of the Permanent Parenting Plan and continued family counseling with Dr. Pickering. On January 8, 2006, R. I. A. reported discomfort, prompting Mother to take her to Parkway Regional Hospital for examination, which yielded inconclusive results. Father alleged that Mother falsely accused him of sexual abuse on January 9, 2006, to avoid military deployment. Subsequently, on January 10, 2006, Father filed for a change in custody and a restraining order, resulting in a temporary order prohibiting Mother from contacting R. I. A. Several hearings ensued to evaluate the custody change. Julia Austin, a social worker, testified that she believed sexual abuse had occurred, while Dr. Pickering refuted this, stating no signs of abuse were present and criticizing Mother's conduct as self-serving. On January 11, 2007, the court ruled Father as the Primary Residential Parent, citing a significant change in circumstances. The court established that Mother would have supervised visitation twice weekly and mandated her to maintain counseling sessions with Dr. Pickering. Father’s child support obligation was terminated as of January 2006, and Mother was ordered to pay retroactive support. The order required the creation of a Permanent Parenting Plan reflecting these terms and noted Mother's failure to attend required counseling. The order remains effective until further notice from the court.

Mother raises seven issues in her appeal regarding the modification of the Permanent Parenting Plan: 1) whether a material change in circumstances justifies the modification; 2) whether relocating within Tennessee, less than 100 miles, constitutes a material change; 3) the impartiality of Dr. David Pickering as a court advisor; 4) whether the trial court improperly delegated decision-making authority to a third party; 5) if the modification violates T.C.A. 36-6-112(c), the Protective Parent Reform Act; 6) whether the trial court erred in admitting and relying on a letter from Dr. Pickering; and 7) whether Mother should be awarded attorney’s fees for the appeal.

The standard of review for factual findings by a trial court is de novo, with a presumption of correctness unless the evidence suggests otherwise. Legal conclusions are also reviewed de novo without any presumption of correctness. The trial court holds the discretion to assess witness credibility.

In child custody cases, a prior custody decree is res judicata and can only be modified if a material change in circumstances affecting the child's welfare occurs. Such changes may include unforeseen factors arising post-initial determination. If a material change is found, the trial court must then apply a "best interest" standard for custody decisions, with a strong presumption favoring the existing arrangement. The burden of proof lies with the party seeking a change to demonstrate a significant change in circumstances and that the modification serves the child's best interests.

The determination of whether there has been a material change in a child's circumstances is central to modifying custody orders. A material change must occur post-order and cannot be one that was known or anticipated at the time the order was made. Such changes must specifically relate to the child's circumstances, not those of the parents, and must materially impact the child's well-being. Tennessee courts consider factors such as the custodian's character, conduct, and the child's welfare for custody modifications. The child's preference is one of many factors in custody decisions. The burden of proof lies with the party seeking custody change to demonstrate both a material change affecting the child's welfare and that they are comparatively more fit than the current custodian. 

The trial court found that Mother's actions, involving multiple examinations of R. I. A., represented a material change in circumstances. Mother argues this finding violates the Protective Parent Reform Act, which protects parents acting in good faith on concerns of child abuse. She claims her allegations against Father were based on a reasonable belief of sexual abuse, supported by R. I. A.’s behaviors and statements. The document highlights the complexities surrounding accusations of child abuse between parents, emphasizing the necessity for thorough investigations while acknowledging the potential for false allegations to be used manipulatively. In this case, Mother's accusations were investigated by relevant authorities.

Numerous tests and examinations were conducted regarding allegations of sexual abuse against Father by R. I. A., all of which failed to provide evidence of such abuse. Evaluations by professionals at LeBonheur confirmed the absence of evidence or personality traits indicative of abuse by Father. Dr. Pickering testified that he saw no signs of abuse and noted that R. I. A. was comfortable separating from her parents, contrary to typical behavior of sexually abused children. Dr. Pickering also indicated that Mother appeared to have "coached" R. I. A. into discussing non-existent events, suggesting that Mother's questioning led to unwarranted negative feelings about Father. 

R. I. A. underwent at least four medical examinations, including visits to various hospitals and inspections where her genitalia was photographed. Father argued that these examinations were intended by Mother to prevent his deployment to Iraq and to alienate him from R. I. A. Conversely, Mother claimed her actions were justified by her concerns for R. I. A.'s safety. The trial court ruled that Mother required counseling and noted the potential harm from R. I. A.'s exposure to repeated intrusive examinations. 

The court designated Father as the permanent Primary Residential Parent, concluding that a material change in circumstances existed, particularly due to Dr. Pickering's findings that there were no signs of abuse and that Mother was not acting in R. I. A.'s best interests. The court's thorough investigation and multiple hearings ultimately determined that Father's alleged abuse was unfounded and that Mother's allegations were false, driven by her hostility towards him and her desire to avoid deployment. Despite the absence of proof, Mother persistently maintained her accusations against Father.

R.I.A. has been subjected to repeated invasive tests due to Mother's insistence that she is a victim, which has negatively impacted the child's best interests and constitutes a material change in circumstances. The Court recognizes that excessive protectiveness regarding potential sexual abuse can harm a child, as noted in Keisling, 196 S.W.3d at 723. Mother's continuous allegations against Father and her quest for evidence of abuse may have caused psychological harm to R.I.A. The trial court's decision to designate Father as the Primary Residential Parent is supported by the evidence and deemed to be in R.I.A.’s best interest.

Mother challenges Dr. Pickering’s neutrality, claiming he has criticized her actions and should not influence the case. Despite her assertions, the Court finds Dr. Pickering's concerns valid, particularly regarding her proposed move to Fulton, Kentucky, which would disrupt R.I.A.’s stability and familiarity. Dr. Pickering recommended that R.I.A. remain in Father’s custody while starting supervised visits with Mother, potentially including her maternal grandmother. 

Regarding the admissibility of Dr. Pickering’s January 23, 2006, opinion letter, the trial court exercised proper discretion. Mother’s attorney acknowledged receipt of the letter before its introduction and did not raise an objection until after a recess, which is considered untimely. The ruling aligns with established legal standards that require objections to be made at the time evidence is introduced.

Ms. Scott objected to the admission of a letter dated January 23, asserting it was hearsay, but the court noted it as a court record since it was addressed to the judge. The letter was initially faxed to Mr. Spencer’s office, and the court confirmed that once the original arrives, it would be included in the record. On appeal, the mother argued that the letter's hearsay content warranted its exclusion; however, her trial objection was solely based on it being a copy, preventing her from raising a new objection at the appellate level. 

Additionally, the mother contended that the trial court improperly relied on Dr. Pickering’s opinions, suggesting the court relinquished its decision-making authority. The court countered that it took the allegations seriously and opted for a psychologist’s evaluation due to the case's complexity. The court decided to keep temporary custody with the father based on Dr. Pickering's recommendations while allowing the mother supervised visitation rights through the Carl Perkins Exchange Club, citing concerns for the child's well-being after multiple invasive examinations. The court indicated that future telephone communication with the child would depend on Dr. Pickering's approval.

The Court emphasized the necessity for the mother to communicate with the father regarding recent developments, particularly about telephone visitation. The trial court's decision was based on a comprehensive review of the evidence, which included testimony from multiple witnesses and reports from professionals, indicating that it did not solely rely on Dr. Pickering’s recommendations. The mother contested the requirement to continue counseling with Dr. Pickering, citing logistical and financial difficulties. However, since she is now receiving individual therapy from Dr. DeBoard, the trial court maintained that she should still participate in R. I. A.'s therapy with Dr. Pickering for consistency and the child's best interests. The Court noted that both parents’ involvement is essential for the child's stability and development. The trial court's orders were found reasonable given the circumstances, and the mother's request for attorney’s fees was denied. Costs for the appeal were assigned to the appellant, Shearer Rebecca Agee.