Parker v. Parker

up- Appeals which judgment of the Court of statute and invoked Florida Tennessee plain- dismissal held the trial court’s dismiss or abate the support a motion to to state a cause complaint for failure allegations do tiffs litigation. These not Florida process action. charge perverted an action process

to use to obtain a result which the HOLDER, C.J., BIRCH, ANDERSON, was not intended law effect. JJ., suspension BARKER, provided statute concur. Florida attorney during powers pendency capaci proceedings principal’s to determine supra.

ty. litigation in See n. Florida by Snyder, exercising power was instituted poten attorney Frances The statute Bell. stay in a tially could have resulted lawsuit until conclusion of the conser- Florida vatorship proceeding. was William Since PARKER, Appellant, Michelle conservatorship proceed Bell who filed the ing, Bell to appropriate it was for William that he had filed a the Florida court advise PARKER, Appellee. Ken seeking appointment of petition in Tennessee Bell. liti a conservator for Frances Because Tennessee, Supreme Court of costly pur gation and because the is often at Nashville. conservatorship proceeding is to pose of a 8, 1999. March supervise, protect, person “the assist person,”4 property or both of a disabled litiga request that the Florida

William Bell’s stayed tion be resolution the conser until However, proceeding appropriate. vator complaint allege that the nowhere does the pro conservatorship defendants used the ceeding aas “threat” or a “club” to extort agreement plaintiff an dismiss or

from the litigation. Merely advising settle the Florida pro pendency Florida court of ceeding conjunction statute does improper act in the use of constitute process. Accordingly, that the we conclude allege

plaintiff’s complaint fails to one of process elements of essential abuse —an improper process; act in the use therefore upon complaint fails state claim granted. the same which relief can be For reason, fails state a complaint also See process. conspiracy

claim for to abuse Elgin Merritt-Chapman Corp. & Scott Inc., (E.D.Tenn. Coal, F.Supp. 1972).

CONCLUSION plaintiffs Because we conclude allege one of the essential complaint fails to process, affirm the of abuse of elements 34-11-101(4) (1996 Repl.). § 4. Tenn.Code Ann. Marks, Marks, Shell,

Robert Clive Maness Marks, Clarksville, Tennessee, & Appel- For lant. McMillan, Jr., Cunningham,

Laurence M. Hicks, Mitchell, McMillan, Brollier & Clarks- ville, Tennessee, Appellee. For

OPINION

ANDERSON, C.J. granted appeal

We child custo- dy ease to determine whether the trial court admitting testimony expert regard- erred the effects excluding and in later the trial court’s comments the statement of evi- dence. Appeals Court of held that the trial considering improper erred in testi-

mony excluding and later a comment it made held, from the record. The court further the trial court’s decision awarding custody properly father supported by the record. reviewing applicable

After the record and authority, agree Ap- with the Court of peals in admitting that the trial court erred testimony excluding the race-based and in its Notwithstanding comment from the record. errors, however, these we conclude that the evidence in the limited record before this preponderate against Court does not grant to Richard Parker. judgment is therefore affirmed.

BACKGROUND

Statement Evidence Richard Parker were son, Dylan, married in had a July June of 1992. Teri Parker caring and Parker had been a mari- that Richard alleging inappropriate filed for divorce Dylan. conduct, supportive father Richard Parker counter- tal inappropriate con- alleging marital claimed investigator that he had private A testified Both differences. duct and irreconcilable He discover- Parker. been hired sought custody of the minor child. parties Parker’s Sidberry visited Teri that Dr. ed occasions, average an trial, three for apartment on transcript but no There was couple one of the per of hours visit. On of a statement of according parties’ to the written occasions, Sidberry for visited four Dr. approved three recollection Sidberry visiting videotape Dr. A court, hours. the witnesses testified sub- apartment was introduced at Teri Parker’s stantially as Teri Parker testified follows. evidence. Sidberry. into nurse Dr. that as a for she worked custody Dylan during period She had family practitioner Phillips, nurse Robin sepa- in and Richard Parker were which she Sidberry, also testi- under Dr. who trained Mulberry Dylan enrolled at the rated. was relationship purported be- fied about Day and was also cared Bush Care Center Sidberry Phil- and Teri Parker. tween Dr. by babysitters family for members while if harmful for lips, when it would be asked that she Teri Parker worked. She testified “environment,” Dylan in this to be raised provided always supported, had cared and objection it would be over that testified Dylan. for rela- “harmful.” stated that interracial She larger acceptable in cit- tionships more were had affair Teri Parker denied that she an ies, “to and that it harmful for be Sidberry, Dr. or sexual relations with who household because be raised in an interracial they African-American. She that conceded of small town views.” good occasionally who would see were friends She denied one another outside work. custody that The trial court ruled Sidberry had her her that Dr. visited governed by the law com- minor child was in apartment engaged any “inappropriate” found Teri and parative fitness and both admitted, later that conduct. She parents. proper fit and Richard Parker Sidberry Dr. had visited her at home on one trial found that Teri Parker had Dylan for occasion to treat a cold. lied, that, had whether or not there been “primary transgressions, her con- marital Seism, mother, Gail Teri Parker’s testified Sidberry. for Dr. cern” was good provid- that and had Teri was mother decision was stated that Dylan. for had Teri one ed asked on She race, wrong for but that based was relationship occasion about her with Dr. Sid- anyone with an em- to have and Teri said berry, only friends. were custody to ployer. The trial court awarded She conceded that she once said she would Parker, Teri Par- and visitation to Richard Dylan try get custody if in fact Teri was unrequested of visitation condition ker. One having Sidberry, Dr. an affair with “because judge’s that the child in the trial order was not want him in environ- [she] would Sidberry. with Dr. to have no contact was reiterated, however, that Teri ment.” Seism Dylan. a good mother to Post-Trial Events in Parker he Richard testified that works custody ruling. appealed the hours Teri Parker arranged and had to work construction trial, transcript no caring Dylan. for said there was for He Since convenient post-trial hearing to family recon- assist trial court held that his mother and other would parties’ proposed caring Dylan suspect- He differences state- him as well. cile al- recollection. having an ments of evidence from ed Teri Parker had been ruling h'ad Sidberry, leging been Dr. he that the trial affair which believed bias, proposed Teri Parker Dylan. racial interfered with her care of affected allegedly made primary caretaker to include a statement Parker claimed to be period judge cross-examination provider Dylan during the mother, her Gail Seism: separation. Several other witnesses testified She [Wife’s mother] from, comes from the same know where this come I [sic] but school I help way do. can’t probably She she made some kind of a today Society differently feels. feels than there about that. (this brought up we were referred When counsel for Parker requested Teri white, seeing wife who Dr. Sidber- opportunity elaborate, the trial court said: black). ry, who is you If referring are No. to interracial— argued Counsel for interracial, you are referring my con- parenthetical reference reflected the context marriages, cern about interracial interra- judge’s which the trial babies, statement had been you forget cial can it. I never said judge made. The trial conceded he had anything talking like that. amI about made a similar statement but denied that children, people that live in of front that’s any there was inference of racial bias as set opposed what—-that is what I am I to and proposed parenthetical:

forth in the minute, you in will tell and I don’t care— Appellate think Court I am parenthesis out, You can take the I never wrong, do, if they they can tell me. But it Appellate referred to that. can Court . just good no is put children. any interpretation they kind of want to it, on telling you, but I am that’s not my The trial court request denied counsel’s to interpretation. That is not I in- an evidentiary hearing conduct on the issue tended it. permit or to an counsel to make offer of proof. approved The trial then explained: The court of by statement evidence proffered Never I—and I did do this in a lot of appeal, Parker for use on which deleted the cases, just I what I have children said. statements issue. very have a-—am much concerned with appeal, Appeals On the Court of people, guess term, held that I for lack of a better refusing permit the trial court erred in to shacking up. am referring I to white of in inclusion his comments talking and I statement of people black. am about that evidence, properly but refused to together live include the without benefit of mar- parenthetical appeals information. The riage in front of children. No where did I improper further held that it was to referring ever admit Seaberry to Dr. mean — [sic], practitioner’s testimony the nurse black, about that he was no did I where “harmful” effects of interracial an relation- mean that. I talking was in What about ship a minor Appeals on child. The Court of think you case and I a tran- have nonetheless concluded: script you talking will find out that I was just people about go ... out There is evidence in the record from shacking up, opposed I with children. am which the trial court could conclude that lawyers to prac- that. The regularly who Wife’s extramarital caused her tice in neglect front of me I Although know that. don’t child. this is de- children, think good by Wife, that it hinges and that nied when an issue on the referring is what I credibility witnesses, was to. No did I where the trial court will any ever make comment —it like looked not be reversed unless there is found started, concrete, me clear, ever since this trial convincing has been the record trying say to make effort to Court testimony that the other oral evidence than the objection has some [to] associa- witnesses that contradicts (Citation black, omitted). I they findings. tions. don’t whether care are Nothing in white, are, going supports finding red or what I am not the record that either children, to allow parent comparative children —I don’t allow is unfit. Under the doctrine, however, peo- some of them parent have to—to be around fitness need ple together only relatively that live without the benefit more “fit” than the other marriage. just opposed I am it. custody. And in order to be awarded Even above, that is referring considering what I to. where prepon- No errors did I weighs ever intend nor do I even feel that derance the evidence favor of way. So, I think it has been —I don’t the trial court’s determination objec- filed, appellee file shall ment as in the best interest the Husband was Therefore, the clerk of the trial the trial court tions thereto the child. days after service court within fifteen on issue. affirmed filing and notice of the declaration regarding Any differences the statement. ANALYSIS set settled as forth shall be of Evidence Statement (e) this rule. in subdivision must address 24(c). The threshold issue we rules further P. R.App. Tenn. sufficiency appeal, of the record is the regarding whether provide that “differences specifically, the statement of occurred accurately discloses what the record con parties. Teri Parker recollection shall be submitted to in the trial court excluding court erred tends that the trial regardless of wheth- trial court settled it made the cross-ex the statement has been transmitted er record Seism, as exclud of Gail well extraordinary amination cir- appellate court. Absent pro parenthetical information which cumstances, of the trial the determination 24(e). context for statement. She vided the R.App. Tenn. P. court is conclusive.” argues have held court should Appeals, As the Court of discussed proffer of evidentiary hearing or a allowed preparing an accurate state- resources Par develop the issue. Richard evidence to resolving any disputes of and ment evidence evidentiary hearing was ker that an contends include: unnecessary court recalled because the trial (2) (1) memory judge, of the trial the properly excluded the state the events and (3) judge, and of the trial memoranda ment. evi- evidentiary hearing to what establish the to the Tennes- To resolve issue look presented during the trial. dence was Procedure, pro- Appellate which see Rules of used, used, but, if is third resource seldom transcript report if no or vide that verbatim hearing pre- is at such and the evidence available, preparation of proceedings of the appellate might court appeal, the served on may require a of evi- the record statement of support therein for revision find some dence: evidentiary the record. report, substantially stenographic If no Hall, 432, (Tenn.App. 772 435 Hall v. S.W.2d transcript or of the evi-

verbatim recital Am., 1989); v. N’ Bird Inc. see also Beef of available, ap- proceedings is the dence or (Tenn. Co., 234 803 Cas. S.W.2d Continental pellant prepare a of the shall Here, said that App.1990). the court proceedings or from the best hearing unnecessary because it recalled means, including appellant’s the available question. the events convey recollection. The statement should Appeals’ of agree the Court deter- We with fair, complete of accurate and account in exclud- mination that the trial court erred transpired respect to those is- what with ing its comment that: appeal. The sues are the bases of comes from the same [Wife’s mother] She statement, appellant or certified way help She can’t she school I do. appellant’s counsel as an accurate account differently Society today feels than feels. filed shall be with proceedings, brought up. we were days after clerk the trial court within 90 post-trial proceeding re- of the The record Upon fifing the fifing appeal. the notice essentially conceded flects that the court statement, appellant shall simulta- Moreover, a similar statement. that made fifing neously serve notice of the on made in the course remarks were since plain appellee, accompanied a short and testimony, it have been should the witness’s appellant in- issues the declaration of evidence. included in the statement appeal. Proof ser- present on tends to hearing that the trial post-trial reveals of the trial vice be filed with the clerk shall rejected the information counsel If fifing of court the statement. court with i.e., parenthetically, Parker had included objections to state- Teri appellee has 562 white, seeing special child;

“this referred to the who is requirements wife and the Sidberry, parentheti- Dr. who is availability black.” The party and extent of third information, cal ostensibly pro- which was support; the associations and influences to comment, vide context for the trial likely which the is most exposed to be appeared would not have page afforded, positive in the alternatives both transcript written or other verbatim record. negative; greater and where Instead, the comment would have made been likelihood of an environment for the child whole, proceedings love, the context of the warmth, as a stability, support, consis- parenthetical interpretations guide without tency, concern, physical care and reviewing court. Appellate The Rules of spiritual nurture.” provide “[n]othing Procedure in this rule Gaskill, 626, Gaskill 936 S.W.2d 630 empowering parties shall be construed as Bah, (Tenn.App.1996) (quoting Bah 668 any court to add to or subtract from the (Tenn.App.1983)); S.W.2d see also except may necessary record insofar as (1996 § Supp. Tenn.Code Ann. 36-6-106 & fair, convey complete accurate and account 1998). considering factors, In all of these transpired of what in the trial “comparative court must undertake fitness” respect to those issues that are the bases analysis by which it which determines appeal.” R.App. 24(g). According- Tenn. P. is comparatively available custodians more fit ly, we conclude that the trial court did Gaskill, 630; than the other. 936 S.W.2d striking parenthetical err in information. Parsons, (Tenn. In re S.W.2d App.1995). Testimony

Race-Based considering all circum relevant next We the issue of whether the turn stances, however, a not consider trial allowing court erred in a witness alleged preju the effects or effects of racial testify alleged about the harmful of an effects Sidoti, 429, 104 In dice. Palmore v. 466 U.S. relationship on a minor child. 1879, (1984), S.Ct. 80 L.Ed.2d 421 the father argues that issue of race was sought change a of custody because the injected proceeding improperly into the and mother, Caucasian, living who was was with by making custody considered the court in its man, an African-American she later whom appellee decision. The Richard Parker married. The following made the expressly maintains that the trial court de- findings: using nied race as a applied factor and significance It is of some ... that appropriate governing custody. factors child bring mother did see fit to a man into her appropriate governing The factors carry home and on a sexual custody child are set out below and exclude being with him without married to him. case, In custody race. a child the needs of place gratification Such action tended to paramount. Lentz, the children are Lentz v. her own desires ahead of her concern for 876, (Tenn.1986). Every 717 S.W.2d 877 ef the child’s This future welfare. Court fort promote must be made to the child’s despite feels that the strides that have by placing interest the child an environ bettering been made in relations between physical ment that his or her will best serve country, the races in this it inevitable Luke, and Luke emotional needs. 661 See will, [the if remain in child] that allowed to (Tenn.1983). 219, Among S.W.2d 221 present her situation and attains school relevant factors for consideration include: age peer pres- and thus vulnerable to more habits, age, and mental emotional sures, stigmatization suffer the social from make-up parties the child and those that is sure to come. competing custody; and education 431, 466 at (emphasis U.S. 104 S.Ct. at 1881 experience seeking of those to raise the omitted). child; propensities their character and by conduct; past appeal, their Supreme evidenced the finan- On United States physical cial and circumstances available Court observed that the trial court had made party seeking custody regarding the home of each findings no other the mother’s fit- Dr. with therefore, to have no contact that, the child was determin- that ness and sole was not discussed by Sidberry race. condition that ing applied the trial court was factor —a analysis observing requested any party to the case.1 began The its or Court ignore reality suggest that that would “[i]t applying the Palmore decision prejudices do not exist” and ethnic racial ease, apparent it present living with “is a risk that child there Palmore, First, are differences. there subject may by race stepparent of a different granted to natural mother custody variety pressures and stresses to a change filed the father later parents living child present were ruling in Second, custody. the trial court’s origin.” or 466 U.S. racial ethnic the same In con- solely on race. based Palmore was con- at 1882. The Court S.Ct. trast, initial case involves an cluded, however: hearing comparison of fitness reality question The ... is whether of a racial parents two where evidence injury possible private biases and post-trial hear- admitted. At the factor was might they permissible inflict are consider- evidence, the trial on the statement an from ations for removal of infant child while considered race that he court denied custody of natural mother. We its alleged to racial excluding comments reflect difficulty concluding little have was the indicated his concern bias. He cannot control are not. Constitution affair that inter- presence of an extramarital it prejudices but neither can tolerate such well-being of child. See with the fered may outside them. Private biases Sutherland, 831 S.W.2d Sutherland law, cannot, di- but law reach (sexual does (Tenn.App.1991) indiscretion rectly indirectly, give them effect. itself, not, being disqualify parent omitted). (footnote therefore Id. Court custody, be a relevant but awarded prejudice, effects of racial child). “[t]he held that neglect factor if it involves real, justify cannot a racial classifi- however court, recognize that appellate As an removing an infant from the cation discretion must exercise broad custody of natural mother found to be its Gaskill, 936 custody matters. in child custody.” person have appropriate such accept the trial court’s at 631. S.W.2d We 434,104 466 at at U.S. S.Ct. 1882-83. play part in its did not that race statement by the inter This is troubled Court decision-making awarding custody to the in jection testimony pro based in of race these Moreover, it the trial appears that father. in clearly prohibited is ceedings, which so factors weighed the relevant properly a nurse Palmore. The court allowed analy- comparative fitness performing the in testify practitioner expert regarding as an to Although nothing this Court indi- before sis. alleged upon a the harmful effects unfit, evidence parent is cates that either relationship. When counsel interracial preponderate does not in the limited record inquiries Parker as to made custody awarding to judgment against the Gail racial issue in his cross-examination of judgment therefore The is Richard Parker. Seism, judge remarked he affirmed. “from the same school” Ms. Seism were today. society are that the views of different CONCLUSION explained that Although judge later in the rec- peo evidence at We conclude his were aimed unmarried comments preponderate not this Court does up” living together, there is ord before ple “shacking judgment. trial court’s against this to show that no in record evidence affirming judgment, Appeals’ Fi Sidberry together. Court of and Dr. lived Par- grant custody to Richard part final trial court’s nally, we observe that ker, are appeal Costs of affirmed. judgment, trial court ordered divorce ruling Appeals’ challenged portion party the Court of Appeals vacated this 1. The Court of further regard, we affirm without finding not this which that it was trial court’s order after by Neither discussion. supported evidence in record. Parker, taxed accept, to Teri Michelle for which unequivocally, I the trial court’s necessary. execution shall issue the record race did not play part in its custody decision to award HOLDER, JJ., DROWOTA and concur. acceptance, the father. This nei- ther erases the ap- errors nor removes the BIRCH, J., separate see concurrence. Thus, pearance of impropriety. judicial REID, J., Sp. not participating. process is the ordinary victim. Under cir- cumstances, appearance such an would man- Justice, BIRCH, concurring. date that this Court remand case for a Although majority’s I concur in the deci custody. new determination of See Tenn. sion grant custody to affirm the to the 36(b) (final R.App. judgment may P. be set father, separately I write to condemn the involving right aside if “error a substantial appearance impropriety this case exudes. judicial ... in prejudice would result to the As Supreme the United States stated Court process”). U.S., 11, 14, 11, 348 U.S. 75 S. Ct. Offut case, however, typical This of those in 13, 11, (1954), “justice 99 L.Ed. must appropriate “legal which the decision” would satisfy justice.” appearance The trial effectively have a synergistic effect on the satisfy in this actions ease do now, already errors made. At least for appearance. become, custody trial court’s has decision authority Sidoti, Under the Palmare degree, simply unassailable because of the 429, 1879, 466 U.S. S.Ct. 80 L.Ed.2d 421 passage of time. Recognizing how the mere (1984), clearly the trial court erred allow- passage of ability time can frustrate our ing the practition- introduction of the nurse justice, do this Court has instituted mecha- testimony er’s regarding harmful alleged designed expedite custody nisms review of effects on the child from an rela- Unfortunately, cases. case was well into tionship. testimony The admission of this process when those mechanisms were seemingly prohibition violated Palmare’s thereby instituted was unaffected against heeding private biases. at See id. them. 104 S.Ct. at 80 L.Ed.2d 426. compounded trial court then its error therefore, agree, I majority’s with the deci- testimony of another remark- witness judgment sion to affirm the ing: father without a remand for fresh determi- She [Mrs. Parker’s comes from mother] fitness, parties’ comparative nation I help same school do. She can’t because there is some record way Society today she feels. differ- feels supporting the trial court’s conclusion that ently brought up. than the we were employer the mother’s her neglect caused her the child. Even This remark was made a series though appearance impropriety questions about the mother’s erased, court’s actions cannot with her employer. Afro-American It thus nevertheless, judgment probably, the most easily could been have construed reflect- disposition apparent reasonable now prejudices regarding the trial own available. relationships. The trial court’s visitation order also fur- appearance

thered impropriety. order, prohibited mi- the trial court having any nor child from with the contact employer, alleged mother’s who was her paramour. prohibition Afro-American This was neither requested party either nor rather, supported by any way; the record in “gratuitously” imposed by court.

Case Details

Case Name: Parker v. Parker

Court Name: Tennessee Supreme Court

Date Published: Mar 8, 1999

Citation: 986 S.W.2d 557

Docket Number: 01S01-9704-CH-00085

Court Abbreviation: Tenn.