                   IN THE COURT OF APPEALS OF TENNESSEE
                               AT KNOXVILLE
                             July 11, 2001 Session

  STATE EX REL ALICE ELIZABETH DURRANT v. EDWIN BRITTAIN
                         HOWARD, II

                   Direct Appeal from the Juvenile Court for Knox County
                         No. E0458 Hon. Carey E. Garrett, Judge

                                       FILED SEPTEMBER 20, 2001

                                 No. E2000-02072-COA-R3-CV




In this custody dispute, the Trial Court gave custody to the father. The mother appealed. We affirm.


Tenn. R. App. P.3 Appeal as of Right; Judgment of the Juvenile Court Affirmed.


HERSCHEL PICKENS FRANKS , J., delivered the opinion of the court, in which HOUSTON M. GODDARD ,
P.J., and D. MICHAEL SWINEY, J., joined.

Jonathan A. Moffatt, Knoxville, Tennessee for Appellant, Alice Elizabeth Durrant.

Wanda G. Sobieski, Diane M. Messer, and Nanette J. Landen, Knoxville, Tennessee for Appellee,
Edwin Brittain Howard, II.



                                             OPINION



             In this custody dispute over twins born to the parties on September 10, 1997, the Trial
Court awarded father custody and the mother has appealed.

               This action originated when the mother filed a complaint to establish parentage and
set support. The father responded that he had already filed an action to legitimate the twins and that
he wished to legitimate the twins and was seeking custody of the twins.
               Subsequently, a Parentage Order legitimating the twins was entered, temporary
custody was awarded to the mother, child support set in accordance with the guidelines, and the
father was ordered to provide insurance.

                 Evidence on the issue of custody was offered in a prolonged trial, and the Court, after
taking the case under advisement, entered an Order finding that an initial custody determination was
required, and that the comparative fitness test applied. The Court found that mother had limited
father’s access to the twins “as much as possible” and that her behavior had created a “substantial
obstacle” in father’s relationship with the twins. The Court found the mother often had other people
watch the twins when the father was available and “begging” for more time with them. The Court
found the mother had been hospitalized for mental illness issues, including depression, and the
mother had “repeatedly refused to enter and complete treatment” even though it had been prescribed.
The court also found the mother had denied a need for treatment. The court concluded that the
father’s testimony was credible, and that he was a dedicated and stable father, with an “exemplary”
parenting record, and that it would be in the twins’ best interests to be in their father’s custody.

       The Court ordered that the father would have custody, and the mother a “reasonable visitation
schedule” as agreed by the parties “allowing as much time with the mother as her work schedule
permits.”

                The mother raises these issues on appeal:

                1.      Whether the referee erred in admitting medical/psychiatric records related to
                        mother, permitting questioning of the guardian ad litem regarding such
                        records, and considering statements from the records in rendering the
                        judgment?

                2.      Whether the referee erred in applying a comparative fitness analysis in this
                        case?

                3.      Whether the evidence preponderates against the referee’s award of custody
                        to father?

               The mother argues that the Court erred in admitting her medical/psychiatric records
in evidence, and in permitting the guardian ad litem to testify about them. Mother alleges that the
records were irrelevant, were hearsay, and were not properly authenticated.

               As to the relevance of the records, it is clear that both the legislature and the courts
have recognized that the mental health of a parent is a factor to be considered in making a custody
determination. Tenn. Code Ann. §36-6-106; Bah v. Bah, 668 S.W.2d 663 (Tenn. Ct. App. 1983.)
As to the mother’s argument that the records were not properly authenticated, it does not appear that
mother’s counsel actually raised this objection at trial. Counsel objected on the basis of relevance
and objected on the basis of hearsay. Because this objection was not raised at trial, it cannot be


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raised for the first time on appeal. Tenn. R. App. P. Rule 36.

                However, we conclude that the records constitute inadmissible hearsay. The
statements contained in the records are clearly out of court statements, and the persons who made
the statements did not testify at trial. The statements appear to have been offered for the truth of the
matters asserted (and not just to impeach the mother’s testimony.) Moreover, the records and the
statements contained therein do not fit within any of the defined hearsay exceptions. It was therefore
error to admit these statements. Tenn. R. Evid. 801-803.

                We conclude, however, that the admission of the records was harmless error, given
the abundance of other proof regarding the mother’s emotional instability. The mother testified she
had problems with depression in the past and had been prescribed medication and ongoing therapy,
but that she had not followed through with either treatment. There was testimony from Dr. Vey
Nordquist , a clinical psychologist, who had performed custody evaluations in the case. He had
administered psychological tests, but he felt that observation of and interviews with the parents were
better indicators. He testified regarding the mother’s previous mental health history at great length.
Numerous other witnesses testified regarding the mother’s mood swings, anger, violent outbursts,
and temper problems. “The admission of improper evidence of a fact in issue is harmless where the
verdict or judgment is supported by sufficient competent evidence." Berke v. Chattanooga Bar
Ass'n, 436 S.W.2d 296, 304 (Tenn. Ct. App. 1968).

                The mother argues that the proper standard which the Court should have applied in
making its custody determination was whether there had been a change in circumstances, since Tenn.
Code Ann. §36-2-303 states that the custody of a child born out of wedlock is automatically with the
mother. The Trial Court found that it was required to make an initial custody determination, and
thus applied the comparative fitness test. This was proper, because there was no previous decree
as to custody. We have previously ruled that the changed circumstances standard cannot be invoked
absent a prior judicial determination regarding custody. Gillenwaters v. Gillenwaters, 1999 WL
893889 (Tenn. Ct. App. Oct. 13, 1999); Smith v. Smith, 1989 WL 139726 (Tenn. Ct. App. Nov. 16,
1989.) Also see, e.g., In re Price, 1997 WL 338588 (Tenn. Ct. App. June 20, 1997). We conclude
it was proper to apply the test to the facts of this case.

                Finally, the mother argues that the evidence preponderates against the Trial Court’s
award of custody to the father. The standard of review of an initial custody determination is “de
novo upon the record of the trial court, accompanied by a presumption of the correctness of the
finding, unless the preponderance of the evidence is otherwise.” Hass v. Knighton, 676 S.W.2d 554
(Tenn. 1984). Furthermore, because custody decisions are factually based and often are determined
by the credibility of the testimony, the appellate courts are hesitant to reverse the trial courts’
decisions because the trial judge was able to observe the witnesses and judge their credibility.
Adelsperger v. Adelsperger, 970 S.W.2d 482 (Tenn. Ct. App. 1997).

                It is well-settled in this jurisdiction that in custody cases, the “welfare and best
interests of a child are of paramount concern.” Koch v. Koch, 874 S.W.2d 571 (Tenn. Ct. App.


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1993). To determine what is in the child’s best interests, courts are instructed to look at numerous
factors, as set forth in Tenn. Code Ann. §36-6-106. Moreover courts are instructed to apply the
doctrine of comparative fitness, such that neither party must be deemed unfit, but rather the two
possible custodians should be compared and a judgment made regarding who is more fit. See Koch.

                It appears that the twins were emotionally connected to and loved both parents, and
the parents love the children. Both parents work and can provide for the children, and have in fact
done so, and the mother had been living with the children, so continuity is a factor in her favor. But
her own instability and lack of proficiency at keeping her job situation and home life steady mitigates
against her having custody. Both parents have family, but father is the only parent with family in
the area who regularly interact with the children. Both parents appear to have good physical health,
but the father has a better mental health status than the mother, given the evidence about her angry
outbursts, violence, mood swings, and desertion of her children, and the like. There was also
evidence the mother physically abused her children, and that she was somewhat neglectful.

                Accordingly, we conclude that the evidence does not preponderate against the Court’s
determination of custody. The Trial Court had the opportunity to observe the “manner and
demeanor” of the witnesses who testified, and the “weight, faith, and credit to be given to witnesses’
testimony lies in the first instance with the trier of fact”, such that the credibility attached should be
given great weight by the appellate court. Whitaker v. Whitaker, 957 S.W.2d 834 (Tenn. App. 1997).
“Nowhere is the presumption of correctness of the trial court’s conclusions more applicable than in
matters of child custody where the surrounding testimony is complex and involved and frequently
filled with disputes and acrimony.” Herrera v. Herrera, 944 S.W.2d 379 (Tenn. App. 1996).

               We therefore affirm the custody determination made by the Trial Court and remand,
with the cost of the appeal assessed to Alice Elizabeth Durrant.




                                                         _________________________
                                                         HERSCHEL PICKENS FRANKS , J.




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